Cameron Moon v. State , 2013 Tex. App. LEXIS 9345 ( 2013 )

Opinion issued July 30, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-00341-CR
———————————
CAMERON MOON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1196446
OPINION
Charged with the delinquent conduct of homicide, 1 sixteen-year-old
Cameron Moon was certified by the juvenile court to stand trial as an adult in
1
TEX. FAM. CODE ANN. § 51.03(3) (West Supp. 2012) (delinquent conduct); TEX.
PENAL CODE ANN. § 19.03(b)(1) (West 2011) (murder).
Criminal District Court, where a jury convicted him of murder and assessed
punishment at thirty years’ imprisonment.
On appeal, Moon contends that (1) the juvenile court erred in waiving its
jurisdiction and (2) the district court abused its discretion by denying Moon’s
motion to suppress the statements he made during his interrogation. We vacate the
district court’s judgment and dismiss the case.
I. Background
A. EVIDENCE OF THE MURDER
In July 2008, Deer Park Police Detective Jason Meredith arrived at a grocery
store parking lot to investigate a homicide and found Christopher Seabrook dead.
Seabrook’s cousin, Able Garcia, told the Detective that he and Seabrook had made
arrangements to buy a pound of marijuana from a seller whom Garcia knew as
“JT.” Garcia arrived first, and Seabrook pulled up and parked his truck alongside
Garcia’s car. The two cousins sat in Garcia’s car until a third vehicle, driven by
Gabriel Gonzalez, arrived and parked next to Seabrook’s truck.
Seabrook approached Gonzalez’s car, leaned in the window, and spoke to
the front seat passenger. Garcia heard the conversation grow heated, saw Seabrook
lunge into the passenger side window, and then heard gunshots. Seabrook then ran
from the vehicle but was fired upon by someone who jumped from the passenger
2
side of the car. The shooter, identified by Garcia only as a white male, returned to
Gonzalez’s car, which sped away.
Gonzalez later returned to the parking lot and admitted to the Detective that
he was the driver of the third vehicle, the shooter whom Gonzalez identified as
“Crazy” had been seated next to him, and Emmanuel Hernandez was the backseat
passenger. Gonzalez recounted that Seabrook pulled Crazy from the car and
gunshots were fired. Gonzalez thereafter directed the police to where the shooter
lived in La Porte. When recovered by the police, Seabrook’s cell phone indicated
that the last incoming call was from a phone owned by Moon.
The continued investigation at the parking lot led to the arrest of Hernandez
for possession of marijuana and to the discovery of the pistol from which, a
ballistic test confirmed, were fired three of the four bullets recovered from
Seabrook’s corpse.2 Hernandez identified Moon, who he knew as “J.T.,” as the
shooter and told the Detective that he and Moon had intended to “jack” Seabrook.3
Text messages from Moon on Hernandez’s cell phone before the shooting asked if
he was “ready to hit that lick”4 and to bring a gun; after the shooting the texts
2
The fourth bullet was so badly fragmented that tests could not be conducted.
3
According to Hernandez, although he and Moon had no marijuana when they met
Seabrook, they used the offer to sell to lure Seabrook so they could rob him.
4
Detective Meredith testified that to “hit a lick” means to commit a robbery.
3
pleaded “don’t say a word” and “tell them my name is Crazy, and you don’t know
where I live.”
Moon later confessed to the shooting, was arrested, taken into custody and
two days following the shooting, on July 20, 2008, taken to the Juvenile Detention
Center.
B. EVIDENCE OF MOON’S HISTORY AND BACKGROUND
At the juvenile court hearing on the State’s motion to waive jurisdiction held
December 17, 2008, Moon’s maternal aunt, Jennifer Laban, testified about Moon’s
family life: his parents divorced when he was very young; when Moon was two-
and-a-half years old, his mother gave birth to, suffocated, and threw her newborn
daughter into a trash can. After she was convicted of capital murder and sentenced
to life without the possibility of parole, Moon never saw his mother again. Moon
learned of his mother’s history for the first time in 2007, one year before the
incident that gives rise to this case.
Moon had been charged with criminal mischief five months earlier for
allegedly “keying” another student’s vehicle and subsequently went to live with his
maternal grandmother, Sharon Van Winkle, in La Porte. As a result of the
mischief charge, Moon was compelled to enroll in an alternative school and, Laban
testified, began exhibiting anxiety and panic attacks such that she and Van Winkle
took Moon to see Tom Winterfeld, a counselor.
4
Mary Guerra, the juvenile probation officer assigned to Moon for the
“keying” case, testified that Moon passed all of his classes with no reports of
negative behavior at either the alternative school or the detention center’s charter
school. He successfully completed a program designed to address teen and family
relationships, anger management and substance abuse, and was compliant, never
angry, always called to check in with her, and was “very cooperative.”
Forensic psychiatrist Dr. Seth Silverman 5 testified and submitted his
psychiatric evaluation that noted:
• Moon is mild mannered, polite, and dependent, almost to the point
of being fearful, easily influenced, and confused;
• It is this examiner’s strong opinion that adult criminal justice
programs have few constructive and, possibly, many destructive
influences to offer to Moon. There is little to no programming.
Therapy, and attempts at rehabilitation, if any, are clearly minimal.
Numerous severe, untoward, and aggravating influences are present.
• Moon has little inclination toward violence, does not fit the mold of
individuals treated and assessed who have been charged with similar
offenses, and he does not appear to be a flight risk or prone to
aggressive behavior; and
• Moon’s thought process lacks sophistication that is indicative of
immaturity.
5
At the time of the hearing, Dr. Silverman had thirteen years’ of extensive
experience with the juvenile justice system as well as extensive contact with the
adult criminal justice system.
5
Ulysses Galloway, a Harris County probation officer who supervised Moon
in the juvenile justice center, described him as “a good kid, young man.” 6 He
testified that, in his eleven years as a probation officer, he has seen a lot of kids
come and go and “Moon is one of the best kids I have seen come through . . . .”
Galloway also testified that Moon followed his orders, attended classes, was
neither aggressive nor mean-spirited, and he considered Moon amenable to
treatment. Two other Harris County probation officers who supervised Moon—
Warren Broadnaz and Michael Merrit—testified that their observations of Moon
were exactly the same as Galloway’s.
Julie Daugherty, the mother of Moon’s former girlfriend, described Moon as
extremely polite and respectful. Leslie Wood, Moon’s childhood friend, testified
that she had never seen Moon become aggressive.
On December 18, 2008, the juvenile court granted the State’s motion to
waive jurisdiction and transferred Moon’s case to the 178th District Court. On
April 19, 2010, a jury convicted Moon of murder and assessed punishment at thirty
years’ imprisonment. Moon timely filed this appeal.
II. WAIVER OF JURISDICTION
Moon’s first issue contends that the juvenile court erred in waiving
jurisdiction. Specifically, he argues that the juvenile court abused its discretion
6
Galloway approached Moon’s counsel on his own initiative and offered to testify
on Moon’s behalf.
6
because (1) it failed to provide a specific statement of its reasons for waiver or to
certify its fact findings; (2) it misunderstood and misapplied the factors it was
required to consider in deciding whether to waive jurisdiction; (3) its finding
related to Moon’s sophistication and maturity was unsupported by the evidence;
(4) its finding related to adequate protection of the public and likelihood of
rehabilitation was unsupported by the evidence; and (5) it based its decision on
factors that are not proper considerations in the waiver analysis. The State
maintains that the juvenile court followed proper procedure in reaching its decision
and that the evidence supported the court’s findings.
A. STANDARD OF REVIEW
An appellate court reviews a juvenile court’s decision to certify a juvenile
defendant as an adult and transfer the proceedings to criminal court under an abuse
of discretion standard. State v. Lopez, 196 S.W.3d 872, 874 (Tex. App.—Dallas
2006, pet. ref’d); Faisst v. State, 105 S.W.3d 8, 12 (Tex. App.—Tyler 2003, no
pet.). Absent an abuse of discretion, the appellate court will not disturb a trial
court’s transfer and certification order. Faisst, 105 S.W.3d at 12 (citing C.M. v.
State, 884 S.W.2d 562, 563 (Tex. App.—San Antonio 1994, no writ)). Relevant
factors to be considered when determining if the court abused its discretion include
legal and factual sufficiency of the evidence. In re K.B.H., 913 S.W.2d 684, 688
(Tex. App.—Texarkana 1995, no pet.).
7
A trial court’s findings of fact are reviewed by the same standards applicable
generally to legal and factual sufficiency review: if an appellate court finds the
evidence factually or legally insufficient to support the juvenile court’s order
transferring jurisdiction of a youth to the criminal district court, it will necessarily
find the juvenile judge has abused his discretion. In re G.F.O., 874 S.W.2d 729,
731–32 (Tex. App.—Houston [1st Dist.] 1994, no writ). Under a legal sufficiency
challenge, we credit evidence favorable to the challenged finding and disregard
contrary evidence unless a reasonable fact finder could not reject the evidence. See
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Faisst, 105 S.W.3d at
12. If there is more than a scintilla of evidence to support the finding, the no
evidence challenge fails. Faisst, 105 S.W.3d at 12. Under a factual sufficiency
challenge, we consider all of the evidence presented to determine if the court’s
finding is so against the great weight and preponderance of the evidence as to be
clearly wrong or unjust. See id.
B. APPLICABLE LAW
In Kent v. United States, 383 U.S. 541 (1966), the United States Supreme
Court stated that “[i]t is clear beyond dispute that the waiver of jurisdiction is a
‘critically important’ action determining vitally important statutory rights of the
juvenile.” Id. at 556. The Court characterized the “decision as to waiver of
jurisdiction and transfer of the matter to the District Court [as] potentially as
8
important to petitioner as the difference between five years imprisonment and a
death sentence.” Id. at 557. In Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App.
1999), the Court of Criminal Appeals likewise recognized that “transfer to criminal
district court for adult prosecution is ‘the single most serious act the juvenile court
can perform . . . because once waiver of jurisdiction occurs, the child loses all
protective and rehabilitative possibilities available.’” Id. at 755. The Hidalgo
Court noted that “transfer was intended to be used only in exceptional cases” and
that “[t]he philosophy was that, whenever possible, children ‘should be protected
and rehabilitated rather than subjected to the harshness of the criminal system’
because ‘children, all children are worth redeeming.’” Id. at 754 (citation omitted).
Section 54.02 of the Family Code authorizes a juvenile court to waive its
exclusive, original jurisdiction and to transfer a child to a criminal district court if:
(1) the child is alleged to have committed a felony;
(2) the child was fourteen years or older if the alleged offense is a first
degree felony or fifteen years or older if the alleged offense is a
second degree felony; 7 and
(3) after a full investigation and hearing, the juvenile court determines
that there is probable cause to believe that the juvenile committed the
offense alleged and that because of the seriousness of the offense
alleged or the background of the juvenile, the welfare of the
community requires criminal proceedings.
7
Other criteria may satisfy this prong of the statute, but they are not applicable in
this case.
9
TEX. FAM. CODE ANN. § 54.02(a) (West Supp. 2012). 8
To limit the juvenile court’s discretion in making the waiver determination,
the Supreme Court in Kent set out a series of factors for juvenile courts to consider.
Hidalgo, 983 S.W.2d at 754 (citing Kent, 383 U.S. at 566–67). These factors are
incorporated into section 54.02(f), which provides as follows:
(f) In making the determination required by Subsection (a) of this
section, the court shall 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;
(2) the sophistication and maturity of the child;
(3) the record and previous history of the child; and
(4) 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.
TEX. FAM. CODE ANN. § 54.02(f). The juvenile court “may order a transfer on the
strength of any combination of the criteria” listed in subsection (f). Hidalgo, 983
8
Before 1995, the Family Code authorized civil appeals from an order “respecting
transfer of the child to a criminal court for prosecution as an adult.” In 1995, the
legislature deleted former Family Code section 56.01(c)(1)(A), which had allowed
a civil appeal from an order waiving jurisdiction. See Act of May 27, 1995, 74th
Leg., R.S., ch. 262, § 48, 1995 Tex. Gen. Laws 2517, 2546. In the absence of a
statute allowing an appeal, the result was that the waiver-of-jurisdiction order
could only be appealed as in criminal cases generally, i.e., after final conviction in
the criminal court. See Apolinar v. State, 820 S.W.2d 792, 793 (Tex. Crim. App.
1991).
10
S.W.2d at 754 n.16 (citing United States v. Doe, 871 F.2d 1248, 1254–55 (5th
Cir.), cert. denied, 493 U.S. 917 (1989)).
Section 54.02(d) requires that, prior to the hearing on the motion to transfer,
the juvenile court “shall order and obtain a complete diagnostic study, social
evaluation, and full investigation of the child, his circumstances, and the
circumstances of the alleged offense.” TEX. FAM. CODE ANN. § 54.02(d). If the
juvenile court waives jurisdiction, it must “state specifically in the order its reasons
for waiver and certify its action, including the written order and findings of the
court . . . .” Id. § 54.02(h). Rigid adherence to these requirements is mandatory
before a court may waive its jurisdiction over a juvenile. In re J.R.C., 522 S.W.2d
579, 582–83 (Tex. Civ. App.—Texarkana 1975, writ ref’d n.r.e.); see also In re
J.T.H., 779 S.W.2d 954, 960 (Tex. App.—Austin 1989, no pet.).
C. JUVENILE COURT’S ORDER
In its Order to Waive Jurisdiction, the juvenile court found that “because of
the seriousness of the OFFENSE, the welfare of the community requires criminal
proceeding.” TEX. FAM. CODE ANN. § 54.02(a)(3). 9 The juvenile court noted that,
9
Here, it is undisputed that the first two prongs of section 54.02(a) are satisfied: the
State charged Moon with murder, a first degree felony, and Moon was sixteen
years old at the time of the alleged offense. See TEX. FAM. CODE ANN. § 54.02(a),
(b) (West Supp. 2012).
11
in making that determination, it had considered the four factors enumerated in
section 54.02(f), among other matters. The court concluded as follows:
The Court specifically finds that the said CAMERON MOON is of
sufficient sophistication and maturity to have intelligently, knowingly
and voluntarily waived all constitutional rights heretofore waived by
the said CAMERON MOON, to have aided in the preparation of HIS
defense and to be responsible for HIS conduct; that the OFFENSE
allege[d] to have been committed WAS against the person of another;
and the evidence and reports heretofore presented to the court
demonstrate to the court that there is little, if any, prospect of adequate
protection of the public and likelihood of reasonable rehabilitation of
the said CAMERON MOON by use of procedures, services, and
facilities currently available to the Juvenile Court.
Thus, the juvenile court found that waiver of its jurisdiction was supported
by the first, second, and fourth factors under section 54.02(f).10
D. “SOPHISTICATION AND MATURITY”
Moon’s argument regarding the court’s “sophistication and maturity”
finding is two-fold. First, he argues that the juvenile court misunderstood and
misapplied this factor. Second, he contends that the evidence does not support the
court’s finding. The State contends that the juvenile court applied the proper
approach in making its determination regarding Moon’s sophistication and
10
Absent a finding regarding the third factor—Moon’s record and previous
history—we presume that the juvenile court did not find that this factor supported
waiver. See TEX. FAM. CODE ANN. § 54.02(h); Hidalgo, 983 S.W.2d at 754 n.16
(“Should the juvenile court decide to waive its exclusive jurisdiction, the court is
required to state in its order the specific reasons for waiver.”).
12
maturity, and that the evidence was sufficient to support the juvenile court’s
finding on this factor.
1. PROPER STANDARD
Moon argues that the proper standard for considering the sophistication and
maturity prong is not whether he was sophisticated and mature enough to waive his
constitutional rights or to assist in the preparation of his defense, as the juvenile
court found. Rather, he argues, this factor relates only to the question of
culpability and criminal sophistication. In support of his argument, Moon relies on
R.E.M. v. State, 541 S.W.2d 841 (Tex. Civ. App.—San Antonio 1976, writ ref’d
n.r.e.) and Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App. 1999).
In R.E.M., the defendant sought reversal of the juvenile court’s order
transferring the murder charge against him to district court. See R.E.M., 541
S.W.2d at 843. With regard to the juvenile court’s finding that the defendant was
of “sufficient sophistication and maturity to have intelligently, knowingly, and
voluntarily waived all constitutional and statutory rights heretofore waived,” the
appeals court stated
This finding is somewhat difficult to understand. We believe that the
requirement that the juvenile court consider the maturity and
sophistication of the child refers to the question of culpability and
responsibility for his conduct, and is not restricted to a consideration
of whether he can intelligently waive rights and assist in the
preparation of his defense.
Id. at 846.
13
In Hidalgo, the appellant challenged his transfer from juvenile court on the
ground that he had been denied his right to assistance of counsel because his
appointed attorney had not been notified of a psychological examination until after
the exam had taken place. See Hidalgo, 986 S.W.2d at 747–48. In examining the
purpose of the transfer mechanism, the Court noted
State legislatures originally devised the process as a means of
removing serious or persistent juvenile offenders generally not
amenable to rehabilitation to the adult criminal system. The presence
of such juveniles was seen as a threat to the fundamental structure of
the juvenile system and the less criminally sophisticated. [Footnote
omitted]. Transfer was intended to be used only in exceptional cases.
Id. at 754 (emphasis added).
Based on the above-quoted language, Moon urges us to conclude that the
sophistication and maturity element relates only to his culpability and criminal
sophistication, and not to an ability to waive his rights or aid in the preparation of
his defense. We decline the invitation. Although the R.E.M. court believed that
the sophistication and maturity factor referred to the question of culpability, it also
stated that it was “not restricted to a consideration of whether he can intelligently
waive rights and assist in the preparation of his defense.” R.E.M., 541 S.W.2d at
846 (emphasis added). 11 With regard to Hidalgo, we do not read the Court’s
11
Several courts after Hidalgo have concluded, albeit in unpublished decisions, that
a juvenile’s ability to waive his rights and assist in the preparation of his defense
bear on the question of his sophistication and maturity. See Jiminez v. State, No.
13–99–776–CR, 2002 WL 228794, at *8 (Tex. App.—Corpus Christi 2002, pet.
14
explanation of the purpose behind transfer—to remove serious or persistent
offenders who were considered a threat to the less criminally sophisticated in the
juvenile system—as a restriction on what the court may consider in determining a
juvenile’s sophistication and maturity under subsection (f). We conclude that the
juvenile court did not err in considering Moon’s ability to waive his rights and
assist in the preparation of his defense.
2. EVIDENCE OF SOPHISTICATION AND MATURITY
Moon contends that the juvenile court’s finding as to his sophistication and
maturity is unsupported by the evidence.
Pointing to Moon’s text messages instructing Hernandez to not “say a
word,” “[t]ell them my name is Crazy, and you don’t know where I live,” and to
the exculpatory stories Moon told Detective Meredith before confessing to the
shooting, the State’s brief argues that Moon’s efforts to conceal the crime and
avoid apprehension demonstrate that he knew the difference between right and
ref’d) (not designated for publication) (finding juvenile was sufficiently
sophisticated and mature to understand adult criminal proceedings and to assist in
preparation of his defense); see also In re B.T., 323 S.W.3d 158, 161 (Tex. 2010)
(noting one court of appeals’s description of “complete diagnostic study” as one
that “bears upon the maturity and sophistication of the child and relates to the
questions of culpability, responsibility for conduct, and ability to waive rights
intelligently and assist in the preparation of a defense”); Acevedo v. State, No. 05–
08–00467–CR, 2009 WL 930347, at *2 (Tex. App.—Dallas 2009, no pet.)
(finding statutory requirement of complete diagnostic study bears upon juvenile’s
maturity and sophistication and relates to questions of culpability, responsibility
for conduct, and ability to waive rights intelligently and assist in preparation of
defense).
15
wrong and that his conduct was wrong. The finding of the juvenile court on the
sophistication and maturity issue, however, was based on Moon’s ability to waive
his rights and assist counsel in preparing his defense, not an appreciation of the
nature of his actions or that his conduct was wrong. Moon’s text messages and
exculpatory stories constitute no evidence supporting the juvenile court’s finding
that Moon was sufficiently sophisticated and mature to waive his rights and assist
in preparing his defense.
In Hidalgo, the Court of Criminal Appeals noted that a psychological
examination is ordinarily required to assist the court in assessing a juvenile’s
sophistication, maturity, and the likelihood of rehabilitation as required by
subsection(f). 12 In his psychiatric evaluation report, Dr. Silverman concluded that
Moon “has a lack of sophistication and maturity” and that his “thought process
lacks sophistication which is indicative of immaturity.” Dr. Silverman also found
Moon to be “mild mannered, polite, and dependent almost to the point of being
12
The Hidalgo Court stated
To assist the court in assessing these factors, the law requires a
psychological examination by a doctor with specialized training in
adolescent psychology and forensic assessment [citation omitted]. The
exam provides insight on the juvenile’s sophistication, maturity, potential
for rehabilitation, decision-making ability, metacognitive skills,
psychological development, and other sociological and cultural factors.
Hidalgo, 983 S.W.2d at 754.
16
fearful, easily influenced and confused.” The State presented no controverting
expert testimony to undermine Dr. Silverman’s conclusion regarding Moon’s lack
of sophistication and his immaturity.
The State correctly asserts that as the sole judge of credibility, the juvenile
court was entitled to disbelieve Dr. Silverman’s testimony that Moon lacked
sophistication and maturity. See In re D.W.L., 828 S.W.2d 520, 525 (Tex. App.—
Houston [14th Dist.] 1992, no pet.) (noting juvenile court is sole fact-finder in
pretrial hearing and may choose to believe or disbelieve any or all of witnesses’
testimony). Nonetheless, there must be some evidence to support the juvenile
court’s finding that Moon was sufficiently sophisticated and mature for the reasons
specified by the court in order to uphold its waiver determination. Our review
finds no evidence supportive of the court’s finding that Moon was “of sufficient
sophistication and maturity to have intelligently, knowingly and voluntarily waived
all constitutional rights heretofore waived . . . [and] to have aided in the
preparation of [his] defense.” As such, the evidence to uphold the juvenile court’s
finding regarding Moon’s sophistication and maturity is legally insufficient.
E. PROTECTION OF THE PUBLIC AND REHABILITATION OF THE JUVENILE
Moon next contends that the evidence adduced is insufficient to support the
court’s finding that
“there is little, if any, prospect of adequate protection of the public
and likelihood of reasonable rehabilitation of [Moon] by use of
17
procedures, services, and facilities currently available to the Juvenile
Court.”
The State contends that the evidence regarding this factor is sufficient to
support the court’s finding and asserts that the juvenile court does not abuse its
discretion by finding that the community’s welfare requires transfer due to the
seriousness of the crime alone, despite the juvenile’s background. Pointing to the
offense itself and the evidence showing that it was committed during a drug
transaction and that Moon repeatedly shot Seabrook while he fled, the State
concludes, “based on the seriousness of the offense alone, the evidence sufficiently
demonstrated that appellant’s transfer was consistent with the public’s need for
protection.”
The State conflates subsections (a)(3) and (f). Subsection (a)(3) authorizes
the juvenile court to waive jurisdiction if it determines that “because of the
seriousness of the offense alleged or the background of the juvenile, the welfare of
the community requires criminal proceedings.” TEX. FAM. CODE ANN. § 54.02(a)
(emphasis added). Thus, a juvenile court can properly find that the welfare of the
community requires criminal proceedings because of the seriousness of the
offense, the background of the individual, or both. See id. However, a finding
based on the seriousness of the offense under subsection (a) does not absolve the
juvenile court of its duty to consider the subsection (f) factors. If, as the State
argues, the nature of the offense alone justified waiver, transfer would
18
automatically be authorized in certain classes of “serious” crimes such as murder,
and the subsection (f) factors would be rendered superfluous. See R.E.M., 541
S.W.2d at 846 (“We find nothing in the statute which suggests that a child may be
deprived of the benefits of our juvenile court system merely because the crime with
which he is charged is a ‘serious’ crime.”). Further, the cases relied on by the State
do not suggest that the nature of the crime alone can support waiver; rather, they
merely make the observation that subsection (a)(3) is written in the disjunctive.
See McKaine v. State, 170 S.W.3d 285, 291 (Tex. App.—Corpus Christi 2005, no
pet.) (noting that because § 54.02(a)(3) is disjunctive, “[e]ven if we were to sustain
McKaine’s challenge regarding his background, his failure to challenge the court’s
finding regarding the seriousness of the offense would preclude relief.”); In re
D.D., 938 S.W.2d 172, 177 (Tex. App.—Fort Worth 1996, no writ) (“The second
element, however, is not written in the conjunctive. It requires only that the trial
court find that the seriousness of the offense or the background of the child
requires criminal prosecution to protect the welfare of the community.”).
19
I. EVIDENCE RELATED TO PROTECTION OF THE PUBLIC
The record reflects that Moon had a sole misdemeanor conviction for
“keying” a car, and while locked up in the juvenile facility was accused of four
infractions.13 The probation report provides no details.
In his psychiatric evaluation report, Dr. Silverman stated that Moon “has
little inclination towards violence,” “does not fit the mold of individuals treated
and assessed who have been charged with similar offenses,” and “does not appear
to be a flight risk or prone to aggressive behavior.” Dr. Silverman found Moon
“especially when compared to other individuals with similar [alleged] aggressive
behavior who have been treated by this psychiatrist—to be mild mannered, polite,
and dependent, almost to the point of being fearful, easily influenced and
confused.” In his report, Dr. Silverman also referenced the notes of Moon’s
therapist, Tom Winterfeld, stating that Moon showed no signs of aggression. Dr.
Silverman concluded that Moon “is at little risk to . . . harm himself or others.”
Moon’s juvenile probation officers described Moon as “very cooperative” and
compliant, never angry, “a good kid, young man,” “one of the best kids I have seen
come through,” and neither “aggressive nor mean-spirited.” Daugherty, the
mother of Moon’s former girlfriend, described him as “an extremely polite young
13
Moon was convicted of “mischief—$500/$1499.00 Property Damage” for keying
a car on school grounds. The infractions at the juvenile facility consisted of two
attempted physical altercations, one physical altercation, and one related to
contraband.
20
man” and “very respectful.” Wood, Moon’s childhood friend, testified that she
had never seen him become aggressive.
II. EVIDENCE OF LIKELIHOOD OF REHABILITATION
Dr. Silverman noted that “[p]rior to the alleged offense, Moon had been
subject to multiple significant psychosocial stressors, including but not limited to,
a change of caretakers, custody battle between caretakers, and placement in an
alternative school. He had also learned the reason that he had never had contact
with his biological mother—she was incarcerated for life because she had killed
her newborn after delivering at home and then place[d] it in a garbage dumpster.”
Dr. Silverman stated “[i]t is this examiner’s strong opinion that adult criminal
justice programs have few constructive, and possibly many destructive, influences
to offer [] Moon. There is little to no programming. Therapy and attempts at
rehabilitation, if any, are clearly minimal. . . . Moon, in the opinion of this forensic
psychiatrist, might be harmed by placement in an adult criminal justice jail due to
its untoward influences and lack of rehabilitative intent.” Dr. Silverman concluded
that Moon “would probably benefit from placement in a therapeutic environment
specifically designed for adolescent offenders, especially one licensed by, and
contracted with, the Texas Youth Commission.” His conclusion comported with
Winterfeld’s therapy notes indicating that Moon had responded to psychological
21
therapy. Officer Galloway, Moon’s juvenile probation officer, also testified that
he considered Moon amenable to treatment.
Construing the prior “keying,” juvenile facility infractions, and the nature of
the charged offense as more than a scintilla of evidence and considering only this
favorable evidence to support the court’s finding, we must conclude the evidence
to be legally sufficient to support the court’s determination that “there is little, if
any, prospect of adequate protection of the public and likelihood of reasonable
rehabilitation of [Moon] by use of procedures, services, and facilities currently
available to the Juvenile Court.” However, careful consideration of all of the
evidence presented further compels the conclusion that the evidence is factually
insufficient to support the juvenile court’s finding. As to the protection of the
public, Moon’s keying a car is not only a non-violent act, it is an undeniably low-
level misdemeanor mischief offense against property—hardly the sort of offense
for which “there is little, if any, prospect of adequate protection of the public and
likelihood of reasonable rehabilitation . . . by use of procedures, services, and
facilities currently available to the Juvenile Court.” Further, the probation report
offers no details regarding Moon’s “write-ups” at the resident juvenile facility.
Indeed, Moon’s juvenile detention officers, presumably in a position to observe
such incidents, uniformly testified that Moon “was one of the best kids I have seen
22
come through,” that he followed orders, attended classes, and was not aggressive
or mean-spirited.
The State relies only on the juvenile court’s conclusion that, “due to
appellant’s age, the juvenile system would not have authority over appellant long
enough to rehabilitate him.” Such a conclusion, of course, is not evidence, and
there is nothing in the record supporting this conclusion. 14 Further, the State’s
reliance on Faisst is misplaced. See 105 S.W.3d at 12–13, 15. There, the appeals
court found the evidence sufficient to support the juvenile court’s finding that the
juvenile system could not adequately provide for the defendant’s rehabilitation
because the offense of intoxication manslaughter required a longer period of
supervision and probation than was available under the juvenile system. See
Faisst, 105 S.W.3d at 15. However, there was specific testimony that (1) in the
juvenile system the maximum punishment is twelve months of intensive
supervision followed by twelve months of probation, (2) the defendant had a
“significant problem with alcohol abuse,” and (3) such a “person needs a minimum
of fifteen to twenty months of supervision to ensure that rehabilitation takes
place.” See id. at 12. The record here has no such evidence. Indeed, the only
evidence regarding the likelihood of Moon’s rehabilitation was the uncontroverted
14
This conclusion is particularly noteworthy in light of the juvenile court’s oral
finding at the conclusion of the hearing that “the court does not know of any, in
terms of the services, facilities and procedures in the juvenile system.”
23
testimony that Moon was amenable to treatment. Consequently, we conclude that
the juvenile court’s finding that “there is little, if any, prospect of adequate
protection of the public and likelihood of reasonable rehabilitation of [Moon] by
use of procedures, services, and facilities currently available to the Juvenile Court”
was so against the great weight and preponderance of the evidence as to be
manifestly unjust.
In sum, we find the evidence legally insufficient to support the juvenile
court’s finding related to Moon’s sophistication and maturity. We also find the
evidence factually insufficient to support the court’s finding regarding the prospect
of adequate protection of the public and the likelihood of Moon’s rehabilitation.
Thus, the first factor—whether the offense was against person or property—is the
only factor weighing in favor of Moon’s transfer. 15 Under these circumstances, we
hold that the juvenile court abused its discretion when it certified Moon as an adult
and transferred his case to the district court. 16
III. Conclusion
Because the juvenile court abused its discretion in waiving its jurisdiction
over Moon and certifying him for trial as an adult, the district court lacked
15
As previously noted, the juvenile court did not specify Moon’s record and
previous history as a reason supporting its waiver decision.
16
In light of our disposition of Moon’s first issue, we do not reach his second issue
complaining of the district court’s denial of his motion to suppress.
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jurisdiction over this case. We therefore vacate the district court’s judgment and
dismiss the case. The case remains pending in the juvenile court.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Publish. TEX. R. APP. P. 47.2(b).
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