in the Matter of Z.M. ( 2021 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-21-00213-CV
    ___________________________
    IN THE MATTER OF Z.M.
    On Appeal from the 323rd District Court
    Tarrant County, Texas
    Trial Court No. 323-115441-21
    Before Kerr, Birdwell, and Bassel, JJ.
    Memorandum Opinion by Justice Bassel
    MEMORANDUM OPINION
    Z.M., a juvenile alleged to have committed capital murder, contends in a single
    issue that the juvenile court abused its discretion by waiving its original jurisdiction and
    transferring the case for criminal proceedings against appellant in the criminal district
    court. Because we hold that the trial court did not abuse its discretion, based on the
    seriousness of the alleged offense in light of appellant’s chance of rehabilitation through
    the juvenile system, we affirm the trial court’s order.
    I. Governing Law and Standard of Review 1
    Family Code Section 54.02 sets forth the findings a trial judge must make to
    waive jurisdiction over a juvenile proceeding and transfer the case to the criminal district
    court:
    (1) the child is alleged to have violated a penal law of the grade of
    felony;
    (2) the child was:
    (A) 14 years of age or older at the time [of the alleged
    offense], if the offense is a capital felony . . . , and no adjudication
    hearing has been conducted concerning that offense; [and]
    ....
    (3) after a full investigation and a hearing, the juvenile court
    determines that there is probable cause to believe that the child before the
    court committed the offense alleged and that because of the seriousness
    Because we set forth the relevant facts in detail in our analysis of appellant’s sole
    1
    issue, we dispense with a brief introductory background.
    2
    of the offense alleged or the background of the child [or both] the welfare
    of the community requires criminal proceedings.
    Tex. Fam. Code Ann. § 54.02(a); see id. § 51.02(2) (defining “child” as “a person who is
    . . . ten years of age or older and under 17 years of age”). The State must persuade the
    juvenile court by a preponderance of the evidence that the community’s welfare requires
    the transfer, either because of the seriousness of the offense or the child’s background,
    or both. In re A.K., No. 02-20-00410-CV, 
    2021 WL 1803774
    , at *19 (Tex. App.—Fort
    Worth May 6, 2021, pet. denied) (mem. op.).
    In making the determination required by Section 54.02(a)(3), the juvenile court
    must 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 child’s sophistication and maturity, as well as his record and
    previous history; and, finally, (3) whether the “use of procedures, services, and facilities
    currently available to the juvenile court” will adequately protect the public and be likely
    to rehabilitate the child. Tex. Fam. Code Ann. § 54.02(f). These nonexclusive factors
    facilitate the juvenile court’s balancing of the alleged offender’s “potential danger to the
    public” with his “amenability to treatment.” A.K., 
    2021 WL 1803774
    , at *19. Any
    combination of these criteria may suffice to support a waiver of jurisdiction; not every
    criterion need weigh in favor of transfer. 
    Id.
     The juvenile court need not consider any
    other factors, nor need it find that the evidence establishes each factor. 
    Id.
     “A juvenile
    transfer order entered after the required transfer hearing and complying with the
    3
    statutory requirements constitutes a valid waiver of jurisdiction even if the transfer
    order does not contain factually-supported, case-specific findings.”          
    Id.
     (quoting
    Ex parte Thomas, 
    623 S.W.3d 370
    , 383 (Tex. Crim. App. 2021)).
    We review a transfer order using two steps: first, we review the trial court’s
    Section 54.02(f) findings using a traditional evidentiary-sufficiency review;2 second, we
    review the overall waiver decision for an abuse of discretion. 
    Id. at *18
    . Here, appellant
    appears to challenge the sufficiency of the evidence supporting only two of the trial
    court’s findings: “that the likelihood of reasonable rehabilitation of [appellant] by the
    use of procedures, services, and facilities currently available to the Juvenile Court is
    low” and that “it is contrary to the best interests of the public to retain jurisdiction.”
    Appellant contends the evidence establishes the opposite of both findings.
    In deciding whether the trial court abused its discretion in making the ultimate
    decision to waive jurisdiction and transfer the case––whether it erred to conclude that
    the seriousness of the offense alleged or the background of the juvenile or both called
    for criminal proceedings for the welfare of the community––we simply ask, in light of
    2
    Evidence is legally insufficient only when (1) the record bears no evidence of a
    vital fact, (2) the rules of law or of evidence bar the court from giving weight to the
    only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact
    is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite
    of a vital fact. Shields v. Ltd. P’ship v. Bradberry, 
    526 S.W.3d 471
    , 480 (Tex. 2017). We
    may set aside a finding for factual sufficiency only if, after considering and weighing all
    the pertinent record evidence, we determine that the credible evidence supporting the
    finding is so weak, or so contrary to the overwhelming weight of all the evidence, that
    the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co., 
    715 S.W.2d 629
    , 635 (Tex. 1986) (op. on reh’g).
    4
    our 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. 
    Id.
     A juvenile court abuses its discretion when
    its transfer decision is essentially arbitrary, given the evidence upon which it was based.
    
    Id.
     By contrast, a waiver decision representing “a reasonably principled application of
    the legislative criteria” generally will pass muster under this standard of review. 
    Id.
    II. Evidence Relevant to Statutory Findings
    Because appellant does not challenge the existence of probable cause, we need
    not detail the evidence concerning the crime other than to say that the police obtained
    evidence that appellant, along with another juvenile, allegedly planned a night-time
    robbery in an apartment complex; located and followed the victim to a darkened
    passageway inside the complex; held her at knifepoint while attempting to empty her
    pockets to find her car keys; and knocked her to the ground, after which appellant
    allegedly stabbed her in the neck. Appellant and his co-actor allegedly fled to the
    apartment complex where appellant lived and, from there, concealed themselves for
    five days and arranged to obtain fake identification and go into hiding in a different
    location. Appellant was fourteen at the time and already on juvenile probation for
    evading arrest, unauthorized use of a vehicle, and burglary of a vehicle.
    Appellant’s Tarrant County Juvenile Services probation officer testified about
    appellant’s prior involvement in the juvenile system. He said that appellant first
    committed the evading-arrest and unauthorized-use-of-a-vehicle offenses and that
    5
    officers had seized a knife from appellant in connection with the unauthorized-use
    offense. Appellant was offered the opportunity to participate in the Tarrant County
    Advocate Program (TCAP), but he never started because the COVID-19 pandemic
    affected the program’s availability. In July 2020, appellant reoffended by committing
    the burglary of a vehicle. As a result, his probation was extended, and he was ordered
    to participate in another program, through the Tarrant Youth Recovery Center (TYRC).
    TYRC provides a treatment program for substance abuse.               Appellant, a
    marijuana user, was in the residential treatment program for two months and in
    outpatient treatment afterward; he did not complete the outpatient treatment
    successfully. Appellant admitted to his probation officer that while in the program, he
    was just going through the motions.
    According to appellant’s probation officer, appellant was not able to physically
    report or take a drug test during the pandemic. Instead, he met with his probation
    officer virtually three times a month. Appellant’s mother was also available for virtual
    meetings, and she had a positive attitude. Likewise, the probation officer’s interactions
    with appellant’s family were “[v]ery positive, very cooperative.” COVID restrictions
    also prevented appellant from taking an anger-management class.
    Appellant’s aunt had said she felt she could be responsible for appellant and
    supervise him at home. But appellant did not have a steady home life. He moved back
    and forth between his mother’s apartment and his aunt’s apartment in the same
    6
    complex, at his own discretion. His aunt was not as strict as his mother, but although
    appellant liked that, he knew it was bad for him.
    Appellant was attending school virtually during the pandemic. His field officer
    assessed his intelligence as “average.”
    While in detention for the alleged capital murder, appellant had once been
    verbally abusive toward staff and had some negative interaction with peers but had also
    stayed at a level one “outstanding” behavioral rating for most of the 110 days he had
    been detained.
    Appellant’s probation officer testified that in similar cases, he would have
    recommended resource staffing––which appears to consist of a committee that
    explores the various programs and services available and most appropriate for the
    juvenile––but in this case, the trial court had instructed him not to do so. He agreed
    that violent offenders are not categorically excluded from resource staffing. But
    appellant’s probation officer agreed that, even without resource staffing, there were still
    juvenile services available that appellant could benefit from.
    Based on details about how the capital murder was executed and planned,
    appellant’s probation officer opined that appellant was more sophisticated than other
    fourteen-year-olds he had dealt with and that, based on his personal experience with
    juvenile services, he could not think of any juvenile-department program that would
    give appellant a chance of rehabilitation. But he also said he could try to look for a
    program “that could target [appellant’s] emotions, social skills[,] and the wrongdoing
    7
    on any offense he is found guilty of.” Appellant’s probation officer believed that “with
    [appellant’s] young age and the services that juvenile can provide[,] that juvenile [could]
    rehabilitate” appellant and that keeping appellant in the juvenile system would protect
    the public.
    A juvenile-services probation officer who had not supervised appellant discussed
    the various programs available within the department, primarily involving family
    engagement. TCAP, for instance, provides trained adult mentors to high-risk youth,
    helps them find employment, and engages them in prosocial activities. She also talked
    about the general availability of mental-health services and drug-treatment options.
    Appellant’s PACT3 report showed a high risk of reoffending, with a moderate
    criminal history.
    Dr. Emily Fallis, a clinical psychologist who evaluated appellant, opined that lack
    of structure was a problem in appellant’s life. She also noted that appellant told her his
    mother had been “physical” when punishing him, including hitting him with a phone
    book, and that there was no father in the home. According to Dr. Fallis, physical abuse
    in childhood can cause someone to act out in a violent manner. She agreed that
    appellant was at an age “when kids don’t really know how to cope with things.” She
    listed multiple services in the Tarrant County juvenile system that “have programs to
    address these children that do not have a father figure at home and have abandonment
    PACT stands for Positive Achievement Change Tool. A.K., 
    2021 WL 1803774
    ,
    3
    at *3.
    8
    issues”: Big Brothers Big Sisters; family intervention; individual and group therapy; and
    gang intervention, to name a few. She thought appellant could benefit from such
    programs. Dr. Fallis also opined that programs exist that can help “somebody that has
    been physically abused and acted out violently be rehabilitated” and that the recidivism
    rate goes down when someone who has been physically abused attends counseling.
    According to Dr. Fallis’s evaluation, appellant was detached from relationships
    and had an overly positive view of himself, both of which she considered protective
    mechanisms. She thought more treatment options would be available to him in the
    juvenile system than the adult system and thought he could benefit from the available
    options. She thought appellant’s risk of harming others was low “given that . . . what
    he faces right now are still alleged offenses.” But on cross-examination, Dr. Fallis
    admitted that in completing her evaluations, she does “not use information from a
    police report in a crime that has not yet gone to court, whether it be a[] juvenile or an
    adult.” Thus, she did not consider the alleged capital murder in considering her
    evaluation of risk.
    Overall, Dr. Fallis opined that appellant’s “age at the time of the alleged offenses
    and early childhood stressors,” as well as his “amenability to treatment,” were reasons
    “to consider keeping him in the juvenile system”
    III. Analysis and Conclusion
    Our review of the record shows that the evidence pertinent to the challenged
    Section 54.02(f) findings is sufficient. Although some evidence contradicts the trial
    9
    court’s findings––such as Dr. Fallis’s testimony that appellant is at a low risk to reoffend
    and that he could benefit from some juvenile services, especially therapy––the evidence
    supporting the findings is not exceptionally weak, nor is the conflicting evidence
    overwhelming. No person was able to testify to specific programs available to assist in
    rehabilitating appellant in light of the heinousness of the crime. And the evidence
    showed that appellant allegedly committed this “worst crime possible,” in the judge’s
    words, less than a year after first entering the juvenile system; in that short time, he had
    committed three other crimes and had carried a knife during one of them. Despite
    appellant’s participation in a two-month residential and subsequent intensive outpatient
    drug-treatment program, juvenile-services intervention had not prevented appellant’s
    alleged participation in a more serious offense than his prior ones. Finally, the State
    presented at least some evidence that appellant stabbed the victim after she was already
    on the ground, and while he and the other juvenile were leaving the scene, either
    because he got angry when they could not find her keys or because he did not want her
    to be able to identify him. We hold this evidence to be legally and factually sufficient
    to support the trial court’s finding “that the likelihood of reasonable rehabilitation of
    [appellant] by the use of procedures, services, and facilities currently available to the
    Juvenile Court is low” and that “it is contrary to the best interests of the public [for the
    trial court] to retain jurisdiction.”
    Additionally, we hold that the trial court did not abuse its discretion by deciding
    to waive its jurisdiction and transfer the case to the criminal district court. After a two-
    10
    day hearing at which the evidence detailed above was elicited, the State focused its
    closing argument exclusively on the heinousness of the crime, contending that “[t]he
    juvenile system is not made to rehabilitate this behavior” and that appellant would have
    only until his nineteenth birthday––a relatively short time––in the juvenile system to
    participate in any potentially rehabilitative services. In announcing its decision, the trial
    court pointed out that although appellant had been at low risk for his previous offenses,
    “there is no other way to escalate” the crime with which he is charged. The trial court
    thus expressed concern that if appellant were to continue within the juvenile system,
    “somebody else will die.”
    The nature and seriousness of the specific alleged offense, alone, may justify the
    juvenile court’s waiver of jurisdiction “notwithstanding other section 54.02(f) factors,
    so long as the offense: (1) is substantiated by evidence at the transfer hearing, and (2)
    is of sufficiently egregious character.” Matter of M.A.T., No. 13-18-00295-CV, 
    2018 WL 5289550
    , at *7 (Tex. App.—Corpus Christi–Edinburg Oct. 25, 2018, no pet.) (mem.
    op.); see also, e.g., Matter of S.T., No. 04-18-00133-CV, 
    2018 WL 5927983
    , at *6 (Tex.
    App.—San Antonio Nov. 14, 2018, pet. denied) (mem. op.). Here, the evidence
    suggested that although the actual murder was impulsive, the underlying robbery was
    allegedly carefully planned for the sole purpose of stealing the victim’s car while evading
    detection and––even without considering the murder––was carried out without regard
    to the victim’s welfare. Moreover, appellant allegedly committed the offense after what
    appears to be a pattern of escalating behavior. Accordingly, we cannot say on these
    11
    facts that the trial court abused its discretion by deciding, in its discretion, to waive its
    jurisdiction and transfer the case to the criminal district court.
    We overrule appellant’s sole issue and affirm the trial court’s order.
    /s/ Dabney Bassel
    Dabney Bassel
    Justice
    Delivered: October 21, 2021
    12
    

Document Info

Docket Number: 02-21-00213-CV

Filed Date: 10/21/2021

Precedential Status: Precedential

Modified Date: 10/25/2021