in the Matter of H.F., a Juvenile ( 2019 )

AFFIRM; and Opinion Filed August 23, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00237-CV
IN THE MATTER OF H.F., A JUVENILE
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JD-18-01302-X
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Schenck
H.F. is a juvenile charged with one count of capital murder and two counts of aggravated
robbery against three different complainants in three separate incidents, occurring on three
consecutive days. TEX. PENAL CODE ANN. §§ 19.03, 29.03. Upon petition of the State, the juvenile
court certified H.F. to be tried as an adult and transferred his case to a criminal district court. On
appeal, H.F. contends the juvenile court abused its discretion in waiving its jurisdiction and
transferring his case because the evidence introduced at the hearing on the State’s petition
established there are sufficient safeguards in place for the public and a very high probability of
rehabilitation for H.F. by use of procedures, services, and facilities currently available to the
juvenile court. We affirm the transfer order. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
H.F. was charged with three first-degree felony offenses alleged to have occurred on
October 21, 22, and 23 of 2018. He was sixteen years old at the time. In November 2018, the
State filed a petition for discretionary transfer asking the juvenile court to waive its jurisdiction
and transfer H.F.’s case to adult criminal court. See TEX. FAM. CODE ANN. § 54.02. The juvenile
court ordered the psychological evaluation and social study required by family code section
54.02(d). H.F. met with the probation officer assigned to conduct the social study but refused to
meet the psychologist assigned to conduct the psychological evaluation.
After the evaluation was completed, the juvenile court conducted a hearing regarding the
State’s petition seeking to transfer H.F.’s case to a criminal district court.1 At the hearing, the
juvenile court took judicial notice of the Social Evaluation and Investigation Report and the
memorandum of psychologist Dr. John Pita, stating H.F. refused to be evaluated. The report and
memorandum were already on file with the court.
The Social Evaluation and Investigative Report indicates H.F. had been arrested on five
prior occasions by the Dallas, Lancaster, and Wilmer Police Departments. He had eight referrals
to the Dallas County Juvenile Department, which included multiple adjudications, his probation
being extended and him being ordered to several placement facilities. The report sets forth the
current offenses of capital murder and aggravated robbery and the circumstances surrounding
those offenses—which are detailed more fully below in the recounting of the detectives’
testimony—as well as identifying the prior offenses, including terroristic threats, violation of
probation, burglary of habitation, evading arrest, criminal mischief, and engaging in organized
criminal activity, and the dispositions of those offenses. The report identifies prior placements at
the Dallas County Youth Village, the START Program and the Dallas County Juvenile Residential
1
Because H.F. refused to participate in the psychological evaluation, the juvenile court did not have the benefit of that evaluation.
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Drug Treatment Program and set forth various problems H.F. had during those placements. The
report indicates that while H.F. was on probation he failed to participate in his court-ordered
programs, used illegal drugs, committed additional offenses, and endangered the lives of himself
and others. The officer who prepared the report states his belief H.F.’s level of sophistication is
excessive, as compared to others of a similar age. The report indicates H.F. has a history of
associating with older individuals who have criminal histories and are negative influences. The
report concludes that the prospects of adequate protection of the public and the likelihood of
rehabilitation with service, procedures, and facilities currently available to the juvenile court are
remote with respect to H.F. The report further indicates that, “[d]ue to the subject’s pending
referrals; his current age; his drug use history; his continued association with older and negative
peers who have criminal histories; his continued lack of respect for authority figures and his
conditions of probation; his lack of respect for a person’s life; and his continued history of
delinquent conduct, rehabilitation of the subject within the Juvenile Justice System is remote.”
The probation officer concludes the report with a recommendation that the State’s petition for
discretionary transfer be granted.
In addition to the social study, at the hearing, the State presented testimony from three
detectives and the probation officer who conducted the study. H.F. presented testimony from a
friend of the family, his mother, and a clinical coordinator for the Dallas County Juvenile
Department Residential Drug Treatment Program.
At the hearing, Detective Adam Mayorga testified he investigated a robbery that occurred
during the early hours of October 21, 2018 at a gas station in Irving. Two males were alleged to
have approached a 72-year-old woman while she was feeding cats at the gas station, which was
closed at the time. One of the men pointed a gun at her and demanded the keys to her car. She
ran to a convenience store located across the street and called 9-1-1. The men took off in her car,
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which was later found in the city of Wilmer on the side of the highway. Detectives found H.F.’s
fingerprints on the driver’s side door of the car. Detective Mayorga testified that detectives
retrieved the surveillance video from the gas station which showed two males approaching the
complainant, with one of them pointing a gun at her before she fled on foot. Detective Mayorga
indicated he watched the video of a Lancaster Police Department officer’s interview of H.F.
During that interview, H.F. confessed to having committed the offense. He refused to identify his
accomplice.
Detective Jason Tapscott testified he investigated another robbery that occurred on October
22, 2018 at approximately 8:30 p.m. at an apartment complex in Lancaster. The complainant
stated she was approached by two young Hispanic males wearing red hoodies. She stated one of
the males pointed a gun at her head and the other said, “shoot her man, shoot her man, she’s lying.”
They took her purse and car. The car was recovered in Dallas on Zang Boulevard near Saner Road.
Detective Tapscott sat in on the interview of H.F. in connection with the investigation of a murder
that occurred the next day. During the interview, H.F. initially claimed he did not remember if he
was involved in the Lancaster robbery because he was high on “lean,” but later confessed to the
robbery. H.F. described the vehicle, what was taken and admitted that he was the individual who
pointed the gun at the complainant.
Detective Jay Rohack testified he investigated the murder of Larry Hearn, which occurred
on October 23, 2018. Hearn lived in Lancaster and had returned to his home on his lunch break.
His neighbors reported hearing a single gunshot. They went outside and saw Hearn laying on the
ground between the street and the sidewalk and noticed Hearn’s vehicle, which was parked on the
street, was running. The neighbors called the Lancaster Police Department. When the police
arrived, they observed Hearn was bleeding, and administered CPR until paramedics arrived. After
paramedics arrived, Hearn was transported to a hospital where he was later pronounced dead.
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Police received an anonymous tip that the offense had been committed by a Hispanic male
identified by his first name only, that name being the same as H.F.’s. The tipster told police the
individual came out of the woods, got into an argument with Hearn, and shot him. Given the
information relayed to Detective Rohack, including the Hutchins Police Department’s notification
that it was investigating H.F. and his brother concerning numerous robberies, he suspected H.F.
might be the individual the tipster identified. He contacted H.F.’s mother by telephone and asked
her where H.F. was. She said she did not know and indicated that he had been released from a
detention center two weeks prior, was on probation, and took off running as soon as he got home.
She advised that the Hutchins Police Department had H.F.’s brother in custody and they were
looking for H.F. H.F.’s mother stated she could not control H.F. or his brother. Another
anonymous tipster reported H.F. could be found at an apartment complex located in South Dallas.
Thereafter, with a few additional tips, Dallas police found H.F. They brought him into custody
and took him to the Lancaster Police Department.
Detective Rohack testified that, thereafter, Judge Henry Campbell was contacted and H.F.
was placed in the juvenile processing room. Detectives Rohack and Tapscott were present when
H.F. gave a statement after waiving his Miranda rights. H.F. spoke not only about shooting Hearn,
but also about the offenses that occurred on October 21 and 22. Detective Rohack showed H.F. a
picture of Hearn and H.F. acknowledged that he tried to rob Hearn of his vehicle at gun point and
that he shot him after he gave him the wrong set of keys. At that point, H.F. claimed he ran into
nearby woods and threw away the gun. H.F. told the detectives he was the one with the gun in the
October 21 and 22 robberies. Detective Rohack further stated he asked H.F. if he had anything to
say to Hearn’s family, and H.F. replied “no”. Detective Rohack further asked, “do you not care?
Do you not have any remorse?” to which H.F. responded, “no, I don’t care about them.”
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Detective Rohack also testified that his department had investigated H.F. in connection
with other robberies and that H.F. has a pattern of law offending. Detective Rohack indicated he
believed H.F. was a member of, or associated with, a gang calling themselves East Side Homeboys.
He expressed his belief the public needs protection from H.F.
Dallas County probation officer Chris Jefferson testified he generated the Social Evaluation
and Investigative Report on H.F. He stated that the probation department recommends that the
court grant the State’s petition for discretionary transfer. He indicated H.F. was born on May 24,
2002 and has been involved in the juvenile justice system regularly since the age of 12, he has
been arrested 5 times by Dallas, Wilmer and Lancaster Police Departments and has had 8 referrals
to the Juvenile Department and multiple adjudications. He further indicated that H.F. had been
placed on probation on several occasions. After his first probation, officers had problems with
him reporting, using illegal drugs, behavior problems, and committing new offenses. H.F. was
placed in the START Program, which he successfully completed after initially having problems.
Once released from START, H.F. committed new offenses, and was brought back into probation,
adjudicated, and then sent to the Dallas Juvenile Department Residential Drug Treatment Program.
While in the drug treatment program, H.F. exhibited a pattern of behavioral problems. He
was self-medicating, was assaultive towards peers and staff, and attempted to tie a pillow case
around his neck. Eventually, he got on the right track, although he relapsed and took another
resident’s medication, but ultimately progressed to obtain the necessary levels for discharge. He
was released from that placement on September 11, 2018, a little over a month before committing
the latest series of offenses. Once released in September 2018, H.F. violated curfew, attended
school irregularly, and ran away from home. He also used drugs. Then, H.F. came back to the
department on the current charges. Officer Jefferson concluded that, given H.F.’s background and
the seriousness of the offenses, for the welfare of the community criminal proceedings are required.
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Officer Jefferson further indicated that the likelihood of rehabilitation of H.F. by the use of
procedures, services and facilities currently available to the Juvenile Court is remote. Officer
Jefferson confirmed on cross examination that the Texas Juvenile Justice Department has a capital
offender program that is designed to meet the needs of offenders like H.F. He also confirmed that,
if the court placed H.F. in that program, he would be able to stay there until he reached the age of
19.
H.F. called Arturo Rodriguez Maldonodo to testify on his behalf. Maldonodo lives in
Nuevo Laredo Mexico and is a Pastor of a church there. He is a friend of H.F.’s father. He testified
that, at some unidentified point in time, H.F. lived with him for a period of 3 months while he
reunited with his father. Thereafter, H.F. lived in another house in Nuevo Laredo for
approximately 5 months. Maldonodo stated H.F.’s behavior improved while living with him and
that H.F. responded to redirection.
H.F. called his mother to testify. She indicated she believed H.F.’s behavior was caused
by mental issues. She asked to have H.F. maintained in the juvenile system.
H.F. called Dr. Katie Chadwick, a clinical coordinator for the Dallas County Juvenile
Department Residential Drug Treatment Program. She testified H.F. entered the program on
March 9, 2018 and was discharged on September 11, 2018. She explained the primary focus of
H.F.’s therapy was substance abuse, but he also received mental health support, and art therapy.
She stated that when H.F. entered the program he had a lot of ups and downs behaviorally and that
over time he improved. She further stated, although H.F. made significant improvement while he
was in the drug treatment program and completed the program successfully, the department
believed there was much work yet to be done.
At the conclusion of the hearing, the juvenile court made oral findings on the record. On
the same day the juvenile court signed its waiver of jurisdiction and order of transfer to a criminal
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district court. The order stated, in part, that the court found “for the welfare of the community, the
seriousness of the alleged offenses and the background of H.F., that criminal proceedings are
required.” In addition, the court found H.F. has not accepted or responded adequately to
supervision, and has a pattern of refusing to remain at home and to remain away from associates
in the community who habitually violate the law. The court also found the previous history of
H.F. indicates a present need for placement of H.F. in a controlled, structured facility. The court
further found the public needs protection from H.F. and the prospects of adequate protection of
the public and the likelihood of rehabilitation of H.F. by use of procedures, services and facilities
currently available to the juvenile court are remote. As to specific factual findings, the court found,
in part, H.F. had multiple prior adjudications, three prior placements, and pending violations of
the juvenile probation, H.F. absconded from home immediately after the last court ordered
placement, refuses to remain home, has gang association, numerous contacts and investigations by
the Lancaster Police Department of felony offenses, and H.F. expressed no remorse for causing
the death of Hearn. This interlocutory appeal followed.
DISCUSSION
To waive its jurisdiction and transfer H.F. to adult criminal court, the juvenile court had to
find (1) H.F. was alleged to have committed a felony, (2) he was fourteen years old or older at the
time he committed the alleged offense, and (3) after a full investigation and a hearing there was
probable cause to believe H.F. committed the alleged offenses, and that because of the seriousness
of the offenses alleged or the background of H.F. the welfare of the community requires criminal
proceedings. See TEX. FAM. CODE ANN. § 54.02(a)(1)–(3).
In making the determination required by section 54.02(a)(3), the juvenile court had to
consider, among other matters:
(1) whether the alleged offense was against person or property, with greater weight in favor
of transfer given to offenses against the person;
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(2) H.F.’s sophistication and maturity;
(3) H.F.’s record and previous history; and
(4) the prospects of adequate protection of the public and the likelihood of H.F.’s
rehabilitation by use of procedures, services, and facilities currently available to the
juvenile court.
See id. § 54.02(f). Family code section 54.02(h) requires that, if the juvenile court waives
jurisdiction, “it shall state specifically in the order its reasons for waiver and certify its action,
including the written order and findings of the court.” FAM. § 54.02(h); Moon v. State, 451 S.W.3d
28, 38 (Tex. Crim. App. 2014).
With regard to our review of that order, the court of criminal appeals has instructed us as
follows:
[I]n evaluating a juvenile court’s decision to waive its jurisdiction, an appellate
court should first review the juvenile court’s specific findings of fact regarding the
Section 54.02(f) factors under “traditional sufficiency of the evidence review.” But
it should then review the juvenile court’s ultimate waiver decision under an abuse
of discretion standard. That is to say, in deciding whether the juvenile court erred
to conclude that the seriousness of the offense alleged and/or the background of the
juvenile called for criminal proceedings for the welfare of the community, the
appellate court should simply ask, in light of its own analysis of the sufficiency of
the evidence to support the Section 54.02(f) factors and any other relevant evidence,
whether the juvenile court acted without reference to guiding rules or principles. In
other words, was its transfer decision essentially arbitrary, given the evidence upon
which it was based, or did it represent a reasonably principled application of the
legislative criteria? And, of course, reviewing courts should bear in mind that not
every Section 54.02(f) factor must weigh in favor of transfer to justify the juvenile
court’s discretionary decision to waive its jurisdiction.
Moon, 451 S.W.3d at 47. Further, a reviewing court should measure sufficiency of the evidence
to support the juvenile court’s stated reasons for transfer by considering the sufficiency of the
evidence to support the facts as they are expressly found by the juvenile court in its certified order.
In re G.B., 524 S.W.3d 906, 914–15 (Tex. App.—Fort Worth 2017, no pet.). The appellate court
should not be made to rummage through the record for facts that the juvenile court might have
found, given the evidence developed at the transfer hearing, but did not include in its written
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transfer order. Id. Thus, in conducting a sufficiency review of the evidence to establish the facts
relevant to section 54.02(f) factors and any other relevant historical facts, which are meant to
inform the juvenile court’s discretion whether the seriousness of the offense alleged or the
background of the juvenile warrants transfer for the welfare of the community, the appellate court
must limit its sufficiency review to the facts that the juvenile court expressly relied upon, as
required to be explicitly set out in the juvenile court’s transfer order under Section 54.02(h). Id.
However, while the order must show the juvenile court considered the four factors in
section 54.02(f), the court “need make no particular findings of fact with respect to those factors.”
Moon, 451 S.W.3d at 41–42. Further, the court may order a transfer on the strength of any
combination of the criteria listed in section 54.02(f). Hidalgo v. State, 983 S.W.2d 746, 754 n.16
(Tex. Crim. App. 1999).
In the juvenile court’s transfer order the court states “the alleged offenses were against
persons and property . . . [H.F.’s] level of maturity is sufficient to be tried as an adult and to aid an
attorney in his defense . . . [H.F.] has not accepted or responded to supervision; [H.F.] has a pattern
of refusing to remain at home; [H.F.] refuses to remain away from associates in the community
who habitually violate the law; . . . the background of [H.F.] indicates that the welfare of the
community requires criminal prosecution; the previous history of [H.F.] indicates a present need
for placement of the child in a controlled, structured facility; the public needs protection from
[H.F.]; the prospects of adequate protection of the public and the likelihood of the rehabilitation
of the child by use of procedures, services and facilities currently available to the Juvenile Court
is remote.” Consequently, the order establishes the juvenile court considered all of the section
54.02(f) factors.
H.F. does not challenge the juvenile court’s determinations concerning the first three
section 54.01(f) factors; rather, he claims the juvenile court abused its discretion in ordering the
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transfer because, he claims, the evidence introduced at the hearing established there are sufficient
safeguards in place for the public and a very high probability of rehabilitation for H.F. by use of
procedures, services, and facilities currently available to the juvenile court. More particularly,
H.F. contends because the department has a capital offender program, that is designed to meet the
need of offenders like H.F., and because he demonstrated he successfully completed structured
programs, it was arbitrary for the court to choose not to retain jurisdiction to allow H.F. to
participate in the capital offender program. For the following reasons, we disagree.
First, we note, that not every section 54.02(f) factor has to weigh in favor of transfer.
Nevertheless, in this case they do. While it may be true that the department has a capital offender
program, no evidence presented at the hearing establishes this placement would protect the public
and rehabilitate H.F. In fact, the evidence presented indicates the opposite. The juvenile court
judge was familiar with the complete ineffectiveness of the multiple types of juvenile rehabilitation
measures already attempted with H.F.: probation, Juvenile Detention, the START program, and
the drug treatment program. Notwithstanding these measures, when released from detention and
on probation, H.F. violated numerous terms of his probation, and within a short period of time
after being released from the drug treatment program, H.F. was on drugs again and committed
several violent and egregious crimes, one resulting in the death of a man. At the time of the
hearing, H.F. was almost 17-years old and he had been in the juvenile justice system for over four
years without successfully having been rehabilitated.
Given the repeated failures of the prior rehabilitative measures and the increasingly violent
nature of H.F.’s behavior, and the assessments and recommendations of Detective Rohack and
Officer Jefferson, the evidence is legally and factually sufficient to support the juvenile court’s
determination that “the prospects of adequate protection of the public and the likelihood of
rehabilitation of [H.F.] by use of procedures, services and facilities currently available to the
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Juvenile Court is remote.” See In re Z.J., No. 05-19-00190-CV, 2019 WL 3491934, at *4 (Tex.
App.—Dallas Aug. 1, 2019, no pet. h.); In re K.J., 493 S.W.3d 140, 154 (Tex. App.—Houston [1st
Dist.] 2016, no pet.).
In light of the juvenile court’s findings regarding H.F.’s prior placements, violations of
juvenile probation, propensity to run away, abuse drugs, commit criminal acts, and the lack of
remorse for causing the death of Hearn and our review of the record, which supports those findings,
we cannot say the trial court’s decision was arbitrary or made without reference to guiding rules.
See Moon, 451 S.W.3d at 47. Accordingly, we conclude the juvenile court did not abuse its
discretion by waiving jurisdiction and transferring H.F. for trial as an adult. We overrule H.F.’s
sole issue.
CONCLUSION
We affirm the juvenile court’s transfer order.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
190237F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE MATTER OF H.F., A JUVENILE On Appeal from the 305th Judicial District
Court, Dallas County, Texas
No. 05-19-00237-CV Trial Court Cause No. JD-18-01302-X.
Opinion delivered by Justice Schenck.
Justices Osborne and Reichek participating.
In accordance with this Court’s opinion of this date, the order of the trial court waiving its
jurisdiction and transferring H.F. case to the criminal district court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 23rd day of August 2019.
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