in the Matter of Z.J., a Juvenile ( 2019 )

AFFIRMED and Opinion Filed August 1, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00190-CV
IN THE MATTER OF Z.J., A JUVENILE
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JD-18-00958-X
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Nowell
Opinion by Justice Bridges
The juvenile court certified Z.J., a sixteen year old, to be tried as an adult and transferred
criminal proceedings to a criminal district court. In a single issue, Z.J. argues there was no
testimony at the underlying hearing concerning the services available to Z.J. regarding a
commitment to the Texas Juvenile Justice Department, and it was therefore “not possible for the
court to conclude no services were available.” We affirm.
In August 2018, the State filed a petition for discretionary transfer asking the juvenile court
to waive its jurisdiction and transfer Z.J.’s case to adult criminal court. See TEX. FAM. CODE ANN.
§ 54.02. As required by family code section 54.02(d), the trial court ordered a complete diagnostic
study, social evaluation, and full investigation of Z.J., his circumstances, and the circumstances of
the alleged offenses.
After the evaluations were completed, the juvenile court conducted a hearing regarding the
State’s motion to transfer. Dallas police detective Adam Thayer testified he investigated “a series
of robberies involving several youth” that occurred on July 22, 2018. Z.J. was one of the juvenile
suspects, along with five other juveniles. The first robbery occurred on Pentagon Parkway in
Dallas. The second robbery victim was Mauricio Hernandez. Hernandez was outside his residence
when a black Chevy Impala pulled up, and six male suspects “jumped out of the car and punched
him in the face.” One of the assailants matched Z.J.’s description. Z.J. kept saying, “come on
man, give me your wallet.” Z.J. was “holding a black semiautomatic pistol and then struck the
complainant Hernandez over the head with the pistol two or three times.” Minutes after the
Hernandez robbery, Z.J. and the other suspects arrived in the Impala and robbed Garrett and
Caroline Scharton at gunpoint and stole Caroline’s cell phone. Surveillance video of the robbery
showed Z.J. using a pistol to commit the robbery. After the Scharton robbery, Z.J. and the other
juveniles proceeded to a location on Crow Creek Drive where they committed “the same type of
robbery” against Gerardo Rodriguez-Mata. The juveniles took cash that was in Rodriguez-Mata’s
hand and $80 worth of pizza that he was delivering. After D.T., the juvenile driving the Impala,
wrecked the car and attempted to run away, Mesquite police found the Impala, and all the juveniles
involved in the robberies were arrested and charged. One of the other juveniles, J.C., later testified
at his plea hearing that Z.J. was “the leader” and was “in possession of the pistol during the entire
crime spree.” Another juvenile, T.J., also described Z.J. as the leader and said Z.J. had a pistol
during all the offenses. Thayer testified there was probable cause to believe Z.J. committed the
offenses that Thayer testified about; criminal proceedings were required in Z.J.’s case for the
welfare of the community; Z.J.’s conduct was willful and violent, and he used a deadly weapon
during the course of the offenses; personal injury resulted from the offenses to Hernandez and the
Schartons; and the public needed protection from Z.J.
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Dr. Leilani Hinton, assistant chief psychologist for the Dallas County Juvenile Department,
testified she evaluated Z.J. and determined he was fit to proceed. Hinton testified that, in terms of
criminal sophistication, Z.J. is “at least as sophisticated as peers his age.” However, on
“intellectual tests developmentally,” he was lower than peers his age, and intellectually he fell in
the “extremely low range.” Hinton testified Z.J. had “very good knowledge of the legal system,”
he had “been through the system several times before,” and he had “good knowledge of possible
legal defenses.” Hinton testified she was not surprised to hear Z.J. was the leader in the offense,
and he did not show any empathy or sympathy for the victims. When questioned about the
underlying offenses, Z.J. said he did not believe they were very serious because he did not kill or
shoot anyone.
Kedrick Smith, a probation officer for the Dallas County Juvenile Department, testified
concerning the social evaluation and investigative report he made in this case. According to
Smith’s report, Z.J. has been referred to the juvenile department eleven times. Z.J.’s first referral
was on October 27, 2015 for criminal trespass, and he received deferred prosecution. Z.J. received
two additional referrals for criminal trespass on October 29, 2015 and March 11, 2016, and he
completed his deferred prosecution on August 9, 2016. On October 27, 2016, Z.J. received his
fourth referral for theft of property. Z.J. was released but continued to reoffend. Between
November 1, 2016 and February 17, 2017, Z.J. received five additional referrals for offenses
including theft of property, possession of marijuana, aggravated robbery, aggravated sexual
assault, and unauthorized use of a motor vehicle. On July 17, 2017, Z.J. was adjudicated for
aggravated assault with a deadly weapon and theft of property and was ordered to placement at the
Dallas County STARS (sex offender residential treatment center). Z.J. was admitted to the STARS
program on July 21, 2017 and was successfully discharged from the program on May 24, 2018.
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Upon Z.J.’s release, he was placed on Intensive Supervision Probation in the custody of
his mother. However, Z.J. continued to fail to comply with the terms and conditions of his
probation, and he was referred to the home detention program to help monitor his whereabouts
and prevent him from further engaging in delinquent conduct. On June 1, 2018, Z.J.’s mother
notified his probation officer that a runaway report was made because Z.J. had left home the
previous night and had not returned. A judge signed a bench warrant on June 5, 2018, and Z.J.
was arrested and released to the Community Alternative Initiative program where he completed
the program but remained when his mother refused to sign an agreed order allowing Z.J. to reside
with his aunt. On July 5, 2018, Z.J. was detained at the juvenile detention center for a violation of
conditions of release. On July 10, 2018, Z.J. was released into his father’s custody, but his father
reported Z.J. left home without permission, violating the terms of his probation, on July 12, 2018.
On July 20, 2018, a judge signed another bench warrant for Z.J., and Z.J. was detained for the
underlying offenses in this case on July 22, 2018.
Smith testified that, while Z.J. was in detention, he did well for a time, was on “a Level 4,”
and was placed in the Honors Program for “maybe a month or two.” Z.J.’s behavior “declined,”
and he was involved in a fight, aggressive toward staff, and had “lots of peer conflict.” Smith
testified Z.J. has a history of smoking marijuana daily and claims to be in a gang. Smith confirmed
that detention was a “highly structured environment” where Z.J.’s level was a 2.3 at the time Smith
testified. Smith testified it was “correct” to say Z.J. “can’t behave properly here in a high level of
structure for juveniles” and “even the possibility of” the Texas Juvenile Justice Department was
“not going to be enough” for Z.J. Smith also confirmed that “the prospects of adequate protection
of the public and the likelihood of rehabilitation” by the use of procedures and services and
facilities available to the juvenile court was “remote.” Smith testified that, for the welfare of the
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community and the seriousness of the offenses and the background of Z.J., criminal proceedings
were required, and Smith recommended Z.J. be transferred to criminal district court.
At the conclusion of the hearing, the juvenile court made oral findings on the record. On
February 4, 2019, the court signed its waiver of jurisdiction and order of transfer to a criminal
district court. The order stated the court considered “all the testimony, diagnostic study, social
evaluation, and full investigation” and found “it is contrary to the best interest of the public to
retain jurisdiction.” This interlocutory appeal followed.
To waive its jurisdiction and transfer Z.J. to adult criminal court, the juvenile court had to
find Z.J. was alleged to have committed a felony, he was fourteen years old or older at the time he
committed the alleged offense, after a full investigation and a hearing there was probable cause to
believe Z.J. committed the alleged offense, and the welfare of the community requires criminal
proceedings because of the alleged offense’s seriousness or Z.J.’s background. See TEX. FAM.
CODE ANN. § 54.02(a)(1)–(3).
In making the determination required in subsection (a), 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; (2) Z.J.’s sophistication and
maturity; (3) Z.J.’s record and previous history; and (4) the prospects of adequate protection of the
public and the likelihood of Z.J.’s rehabilitation by use of procedures, services, and facilities
currently available to the juvenile court. See id. § 54.02(f). These are nonexclusive factors that
serve to facilitate the juvenile court’s balancing of the potential danger to the public posed by the
particular juvenile offender with his amenability to treatment. Moon v. State, 451 S.W.3d 28, 38
(Tex. Crim. App. 2014) (citing Hidalgo v. State, 983 S.W.2d 746, 754 (Tex. Crim. App. 1999)).
Family code section 54.02(h) requires that, if the juvenile court waives jurisdiction, “it shall state
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specifically in the order its reasons for waiver and certify its action, including the written order
and findings of the court.” TEX. FAM. CODE ANN. § 54.02(h); Moon, 451 S.W.3d at 38.
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
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.
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However, while the order must show the juvenile court considered the four factors in
section 54.02(h), 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, 983 S.W.2d at 754 n.16.
Z.J. argues there was not any testimony about the services available to Z.J. regarding a
commitment to the Texas Juvenile Justice Department. Absent any testimony regarding the
juvenile prison and the services available to the court, Z.J. argues it was not possible for the court
to conclude no services were available for Z.J. Z.J. also asserts generally that the “overwhelming
weight of the evidence supported a finding of the juvenile court retaining jurisdiction and denying
the State’s petition.”
Contrary to Z.J.’s assertions, the juvenile court heard Smith’s testimony that it was
“correct” to say Z.J. “can’t behave properly here in a high level of structure for juveniles” and
“even the possibility of” the Texas Juvenile Justice Department was “not going to be enough” for
Z.J. Smith also confirmed that “the prospects of adequate protection of the public and the
likelihood of rehabilitation” by the use of procedures and services and facilities available to the
juvenile court was “remote.” In the juvenile court’s order of transfer, the court specifically stated
among its reasons for its disposition that “the prospects of adequate protection of the public and
the likelihood of rehabilitation of the child by use of procedures, services and facilities currently
available to the Juvenile Court is remote.”
The record shows further that Z.J. had been referred to the juvenile department eleven times
between the ages of thirteen and sixteen. One of the offenses, Smith testified, was the aggravated
sexual assault of “an adult grown woman.” During the sexual assault, Z.J. had a deadly weapon
and “pointed it at the victim.” The evidence showed Z.J. was the “leader” of the crime spree on
July 22, 2018 and used a pistol in committing the aggravated robberies at that time. Z.J. had been
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provided services available to the juvenile court, but as set forth in the juvenile court’s transfer
order, Z.J. “unsuccessfully completed juvenile probation and exhibited assaultive conduct while
in juvenile placement and in detention.” Thus, despite Z.J.’s history of receiving services available
to the juvenile court, Z.J.’s criminal behavior continued and escalated over time. “As long as the
appellate court can determine that the juvenile court’s judgment was based upon facts that are
supported by the record, it should refrain from interfering with that judgment absent a scenario in
which the facts in the transfer order, based on evidence produced at the transfer hearing . . . bear
no rational relation to the specific reasons the order gives” to justify transfer. Moon, 451 S.W.3d
at 46. In light of the juvenile court’s findings regarding Z.J.’s receipt of services and their
inefficacy and our review of the record, which supports those findings, we conclude the juvenile
court did not abuse its discretion by waiving jurisdiction and transferring Z.J. for trial as an adult.
We overrule Z.J.’s sole issue.
The juvenile court’s certification and transfer order is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
190190F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE MATTER OF Z.J., A JUVENILE On Appeal from the 305th Judicial District
Court, Dallas County, Texas
No. 05-19-00190-CV Trial Court Cause No. JD-18-00958-X.
Opinion delivered by Justice Bridges.
Justices Brown and Nowell participating.
In accordance with this Court’s opinion of this date, the juvenile court’s certification and
transfer order is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered August 1, 2019.
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