in the Matter of C.F. ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00195-CV
___________________________
IN THE MATTER OF C.F.
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-117087-21
Before Kerr, Birdwell, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
I. INTRODUCTION
Appellant C.F. (Calvin)1 was sixteen years old when, on or about July 23, 2021,
he—along with J.F. (Jeffrey), a juvenile co-defendant—allegedly committed five
felony offenses related to the shooting deaths of thirteen-year-old J.W. (James) and
James’s seventeen-year-old brother K.W. (Kevin). See Tex. Penal Code Ann.
§ 19.02(b)(1) (murder), (b)(3) (felony murder), § 19.03 (capital murder). After a
hearing, the juvenile court waived its original jurisdiction and transferred Calvin’s case
to criminal district court.2
A juvenile court abuses its discretion when its transfer decision is arbitrary in
light of the evidence upon which it was based. In re A.K., No. 02-20-00410-CV, 2021
WL 1803774, at *18 (Tex. App.—Fort Worth May 6, 2021, pet. denied) (mem. op.).
By contrast, a transfer decision representing “a reasonably principled application of
the legislative criteria” generally will pass muster under this standard of review. Id. In
a single issue in this accelerated appeal, see Tex. Fam. Code Ann. § 56.01(h), Calvin
argues that the juvenile court abused its discretion. Because the record reflects no
abuse of discretion, we affirm the juvenile court’s order.
We use pseudonyms to protect the identity of juveniles. See Tex. R. App.
1
P. 9.8.
The certification hearing involved both Calvin and Jeffrey. The juvenile court
2
opted not to waive its jurisdiction over Jeffrey.
2
II. THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION.
Family Code Section 54.02(a) allows a juvenile court to waive its exclusive
original jurisdiction and conduct a transfer if (1) the child is alleged to have committed
a felony offense, (2) the alleged offense was—among other things—a capital or first-
degree felony and the child was fourteen or older when he committed it, and (3) after
a full investigation and a hearing, the court determines that there is probable cause to
believe that the child committed the alleged offense and that because of the offense’s
seriousness or the child’s background, the community’s welfare requires criminal
proceedings. Tex. Fam. Code Ann. § 54.02(a).
To facilitate the Section-54.02(a) determination, the juvenile court “shall
consider, among other matters” the four factors set out in Section 54.02(f). See Ex
parte Thomas, 623 S.W.3d 370, 378 (Tex. Crim. App. 2021) (quoting Tex. Fam. Code
Ann. § 54.02(f)). These factors are (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; (3) the child’s record and previous
history; and (4) the prospects of adequate protection of the public and the likelihood
of the child’s rehabilitation through procedures, services, and facilities currently
available to the juvenile court. Tex. Fam. Code Ann. § 54.02(f)(1)–(4). Section
54.02(f)’s factors, which are nonexclusive, facilitate the juvenile court’s balancing of
the potential danger to the public posed by the juvenile offender with his “amenability
to treatment,” and any combination of these criteria may suffice to support a waiver
3
of jurisdiction and transfer. A.K., 2021 WL 1803774, at *19. The State has the
burden to persuade the juvenile court to transfer the case by a preponderance of the
evidence. Id.We must consider the evidence under the traditional sufficiency-of-the-
evidence standard and then determine whether the court acted without reference to
guiding rules and principles. Id. at *18. No abuse of discretion occurs when the
juvenile court bases its decisions on conflicting evidence so long as some substantive
and probative evidence supports its decision. See In re J.H.L., No. 02-22-00037-CV,
2022 WL 3273593, at *3 (Tex. App.—Fort Worth Aug. 11, 2022, no pet. h.) (mem.
op.).
A. THE OVERLAPPING EVIDENCE OF THE SECTION 54.02(F) FACTORS IS
SUFFICIENT.
The certification hearing began on April 29, 2022. Calvin stipulated to his
name, date of birth, age, and the date of the offenses. Arlington Police Detective Julia
Hall, the murder case’s lead detective, Robert Lewis, Calvin’s probation officer, and
Victor, Calvin’s father,3 testified, and the juvenile court admitted into evidence
Calvin’s probation records—866 pages kept by Tarrant County Juvenile Services4—
3
Calvin’s mother was unable to attend the hearing.
The probation records also contained police reports from the July 23, 2021
4
shootings.
4
and his pre-diagnostic report, which contained additional statements by witnesses and
his co-defendant Jeffrey.
1. Ample Evidence Supports Probable Cause on the Murder Charges.
The evidence showed that on Friday, July 23, 2021, at 1:27 p.m., Arlington
police officers were dispatched in response to reports of multiple gunshots near an
apartment complex. James had been shot once in the chest, with a front entry wound
and an exit wound in his back. Kevin had been shot four times, with entry wounds in
his neck, chest, and back. Not long after arriving on the scene, officers stopped a
vehicle attempting to exit the apartment complex at a high rate of speed—Jeffrey’s
mother was driving, and Jeffrey, her passenger, had a gunshot wound in his shoulder.
Jeffrey was transported to the hospital for treatment, and the police obtained a search
warrant for his residence and his mother’s vehicle.
Witness statements, surveillance footage, and items collected under the search
warrant tied Calvin, Jeffrey, and T.N. (Timmy)5 to the offenses. During the search of
Jeffrey’s residence, police found a black sweatshirt with a green design6 on the front,
which a witness had described and which contained a hole matching Jeffrey’s injury.
They also found a black-and-silver 9-mm Ruger—a semiautomatic firearm—and two
5
Timmy did not participate in the certification hearing, and it is unclear from
the record whether he was charged with any offenses.
6
The witness described it as “a green skull or apple.” A photograph of the
black sweatshirt shows that it is a green teddy bear wearing tattoos, a scowl, a gold
watch and chain, and an earring and clutching dollars in one of its paws.
5
firearm magazines inside a gray backpack. The sweatshirt that Calvin had been
wearing was also inside Jeffrey’s residence, but it was not collected at that time;
Jeffrey’s father delivered it to the police two or three weeks later. The evidence
connected Jeffrey to the nickname “8 ball” and Calvin to the nickname “Chucky.”7
Jeffrey told the police that after he argued with James and Kevin, he called
Calvin and Timmy and told them to bring firearms. They met together at a nearby
strip mall just before the shooting. Jeffrey told the police that he had wanted to fight
James and Kevin, but he alleged that “Chucky” (i.e., Calvin) had been the shooter. He
also told them that Chucky had accidentally shot him because he had been standing
between Chucky and the victims and that Chucky had continued firing after hitting
him because James had reached for Kevin’s gun. Kevin’s gun was found deep within
his undershorts, and Detective Hall opined that based on the gun’s location, it seemed
highly improbable that Kevin had the gun out at the time of the shooting.8
A different witness told the police that she saw three suspects fleeing the scene
and that they had dropped something before they jumped over the fence. Police
found a black Ruger semiautomatic firearm on the ground near the fence. Jeffrey’s
DNA was on this weapon.
7
Before replacing his Instagram profile picture with a photograph of himself,
Calvin had used an image of the doll “Chucky” from a horror movie.
8
One of the officers’ narratives indicated that a paramedic had found the gun—
a SCCY 9-mm semi-automatic pistol with a 30-round magazine loaded with live 9-mm
Full Metal Jacket rounds—inside Kevin’s waistband.
6
Regarding the black-and-silver handgun found in the backpack at Jeffrey’s
residence, a DPS crime lab matched ballistics to it. DNA on the black-and-silver
handgun showed a mixture of male DNA, and after Y-STR testing,9 Jeffrey, Timmy,
and the victims were completely excluded as possible contributors. The lab “could
not make any conclusions as to whether or not [Calvin] was a possible contributor.”
The police obtained thirty pages of Calvin’s text messages, photos, and
screenshots, which were admitted into evidence, and Detective Hall summarized the
content of messages between Calvin and Jeffrey’s sister as follows:
[Jeffrey’s] sister is basically confronting [Calvin] about being . . . with
[Jeffrey] during the initial offense, and he does admit to her . . . he was
there. He saw [Jeffrey] and the victims arguing. She asked him, like,
who had the gun in the backpack and then goes on to say that your
jacket—or what she was referring to the sweatshirt was in the backpack,
and he . . . responds by saying, I left it on the porch, and she says, well, I
pulled your jacket out and the gun fell out, and then he was saying,
everyone is going to think I did it and it’s going to have my DNA on it
because his sweatshirt was in the bag with it. He is alleging to [Jeffrey’s]
sister that him and [Timmy] . . . had gone . . . all the way to Parkland
Pointe to take their sweatshirts off and then walked back to Artisan in
order to fight. He said that [Jeffrey] had only wanted to fight, but that
the victim had pulled out a gun.
Calvin told Jeffrey’s sister that Jeffrey was the shooter, but Detective Hall opined that
the evidence did not support that conclusion. Calvin told another text-message
9
Y-STR testing examines genetic markers on the Y-chromosome, which is
found only in males. See Curtis v. State, 205 S.W.3d 656, 661 (Tex. App.—Fort Worth
2006, pet. ref’d) (describing Y-STR testing); Nicole L. Phillips & Stephen Smith,
Reinterpreting the Ethical Duties of A Prosecutor: Y-Str As A Model Investigatory Tool, 22 Geo.
J. Legal Ethics 1073, 1076 (2009) (explaining advantages and drawbacks associated
with Y-STR testing).
7
correspondent that he had been at the scene with Timmy and that they ran when they
heard the shooting, explaining, “we was posed to link and smoke . . . but don’t tell
nobody ion want my name dragged in sh-t,” and denying having shot anyone that day.
He told someone else by text, “I was with 8 ball to make sure they just fought n das
it.”
2. Sufficient Evidence Supports Calvin’s Record and Previous History.
Calvin was taken into detention for the murders on July 29, 2021, and
subsequently received a referral for another felony offense—aggravated robbery—
that he was alleged to have committed on July 12, 2021. The aggravated-robbery
victim was a pizza delivery driver, and the assailant—described as a black male in a
dark hoodie and gray mask and later identified as Calvin—pointed a Glock-style
handgun at the driver and demanded his car keys. When Calvin was unable to start
the vehicle, he engaged in a physical altercation with the victim and then fled the
scene.
Calvin was also involved in an assault-bodily injury case at the detention center
on September 25, 2021. The victim, another detention-center resident, suffered a cut
and a swollen lip after being assaulted by another resident with Calvin’s alleged
assistance.
Detention involved a daily behavior assessment from Level 1 (best behavior) to
Level 3 (worst behavior). On October 25, 2021, detention-center staff reported to
Lewis, Calvin’s probation officer, that Calvin had physically assaulted another resident
8
after a brief exchange of words about their placement in line; Calvin received a safety-
based seclusion and the other resident received a disciplinary seclusion.10 On
March 8, 2022, Calvin received a Level 3C assessment because he had attempted to
punch a detention staff member.
From July 29, 2021 to April 17, 2022, Calvin lost behavior points for talking
out of turn, talking too much, or talking to the wrong person. He also lost points for
horseplay, for moving around without permission, for not being on task, for farting,
for being disruptive, for throwing gang signs, and for making derogatory and
threatening comments to other residents.
3. Conflicting Evidence Exists of Calvin’s Sophistication and Maturity.
Calvin had lived in Louisiana with his mother, who sent him to Texas a couple
of months before the charged offenses to live with his father, Victor. She sent Calvin
to Texas to live with his father to keep Calvin out of trouble. According to Victor,
Calvin’s personality had changed after one of Calvin’s younger brothers died in an 18-
wheeler wreck in 2018. He became isolated, anxious, and depressed, and there were
other changes, such as his “[a]ttitude, just staying out later, being with different
people, not in the house anymore.” His grades dropped “all the way down” and he
started failing some classes. Victor did not approve of the new kids with whom
10
Lewis explained that seclusion “is when the resident of the detention center is
removed from the population of the detention center and placed in their room for a
period of time.”
9
Calvin had been associating, and he described Calvin in the period of time after the
2018 accident as immature and “not acting his age.” Calvin had been diagnosed with
ADHD but had elected to stop taking his medication to treat it even though he
performed better academically when medicated.
Three weeks before the shooting, Calvin had started his first job, a part-time
position at McDonald’s. Victor had filled out the job application for him. Before the
shooting, Victor had been a long-distance truck driver, and his sister, who lived with
him, kept an eye on Calvin when Victor was away. Victor had not known that Calvin
had been smoking marijuana or carrying guns. They had not talked about the
aggravated robbery involving the pizza delivery person because Victor had not known
about it.
Lewis testified that Calvin had received “more than a few” seclusion reports—
twenty-two separate ones—for things like fighting, being disrespectful, and refusing
to participate. However, on cross-examination, Lewis agreed that a safety-based
seclusion was not disciplinary and that a number of Calvin’s seclusions were safety-
based; eleven were resident-initiated separations, meaning that Calvin had chosen to
remove himself.
Lewis agreed that, as stated in the pre-diagnostic report, Calvin’s IQ score of
4011 was significantly below average and that his grade-equivalent levels were between
11
“IQ” or “intelligence quotient” testing is “a significant factor in making both
the legal and clinical assessment of intelligence or intellectual functioning.” Robert M.
10
first and third grade with a borderline range of adaptive behavior functioning, which
went to Calvin’s ability to conform his behavior to norms.
Dr. Monica Jeter, the licensed psychologist who conducted Calvin’s
assessment, stated in her report that Calvin did not have an intellectual disability or a
significant mental illness, that he was not more sophisticated or mature than his same-
aged peers, and that he would likely benefit from juvenile-justice services. She also
stated that it “appear[ed] the community would be at a moderate level of risk were
[Calvin] to remain in it,” that the intellectual testing results “appear to be an
underestimate of [Calvin’s] current intellectual and academic functioning,” and that
his test-taking approach “reflected that he may not have been fully attentive and/or
cooperative when completing the test form.” Specifically, while evaluated, Calvin was
“fidgety, distractible[,] and displayed poor motivation.”
Sanger, IQ, Intelligence Tests, “Ethnic Adjustments” and Atkins, 65 Am. U.L. Rev. 87, 101
(2015) (discussing IQ in the death-penalty context). For comparative purposes, an IQ
of 100 “is the average IQ score of youths nationwide, ranging mostly from 85 to
115.” Thomas Grisso, Ph.D., Adolescents’ Decision Making: A Developmental Perspective on
Constitutional Provisions in Delinquency Cases, 32 New Eng. J. on Crim. & Civ.
Confinement 3, 9 (2006); see In re A.G., No. 02-21-00297-CV, 2022 WL 488924, at *1
& n.2 (Tex. App.—Fort Worth Feb. 17, 2022, pet. denied) (mem. op.) (noting juvenile
parent had a full-scale IQ of between 43 and 53). Calvin’s pre-diagnostic study
referred to a “composite intelligence score of 40 on the Reynolds Intellectual
Assessment Scales.” The Reynolds Intellectual Assessment System is an intelligence
test similar to an IQ test. See Griffin v. State, 491 S.W.3d 771, 786, 790 (Tex. Crim.
App. 2016) (Yeary, J., dissenting) (noting that “[s]ignificantly subaverage intellectual
functioning is generally characterized by a full-scale IQ score of about 70 or below”).
11
4. Scant Evidence Exists of Rehabilitation and Available Services
Victor opined that Calvin could benefit from counseling, therapy, anger
management, tutoring, and job training, but he did not testify about whether Calvin
had received any of these services before the shootings.
Lewis acknowledged that Calvin had not received juvenile-department services
before his detention, and he was unaware of any juvenile-justice history before
Calvin’s move to Texas. He agreed that Calvin appeared to have a hard time
managing his anger but had not been offered anger management treatment because
the detention center had no therapeutic programming. Lewis also agreed that in light
of his brother’s death, Calvin would benefit from grief counseling.12 No one testified
about the procedures, services, and facilities available to the juvenile court, but
Calvin’s probation records contained his report card for the final six-week period of
the 2020–2021 term, which reflected multiple absences, tardies, and failing grades. It
also contained his student discipline report, which reflected insubordination, skipping-
class, and dress-code violations, as well as in-school and out-of-school suspensions.
B. THE JUVENILE COURT’S OBSERVATIONS SUPPORT ITS ORDER.
At the hearing’s conclusion, the juvenile court took notice of its file, as well as
“all the competent evidence provided at th[e] hearing,” including Calvin’s complete
pre-diagnostic study and social evaluation. The juvenile court stated that it considered
12
Not long after Calvin went into detention, one of his close friends committed
suicide.
12
whether the offense was against persons or property, Calvin’s sophistication and
maturity, his record and previous history, and the public’s protection and likelihood of
his rehabilitation. And it found that Calvin was at least 15 years old at the time of the
capital and first-degree offenses, that he had not yet been subject to an adjudication
hearing, and that there was probable cause to support charging him with the offenses.
The juvenile court specifically observed that Calvin had demonstrated
sophistication through his actions and that the odds of rehabilitating him through the
juvenile-justice system were low, stating,
[T]he evidence presented before the Court today shows a high level of
sophistication both the planning, as you are the person who it appears
brought the gun and appears that you’re the one that shot the gun, and it
appears to have had all the steps to avoid culpability in this offense. In
your case, sir, given your background, your history and your behavior in
our detention facility gives me no hesitation in deciding that we -- the
juvenile justice system cannot rehabilitate you. At that point since there
will be no . . . rehabilitative [e]ffect on you, sir, I’m not sure why the
juvenile justice system needs to retain your case. So I am waiving my
jurisdiction over your matter and will refer this case to adult criminal
court for future prosecution.
....
[Calvin], as much as I would like to see the possibility of
rehabilitation, given your behavior, especially since you were brought
here into Kimbo, it tells me there’s just nothing we can do for you, and
it’s that it’s not my desire. I wish there was. I just don’t see it. So I’m
comfortable waiving my jurisdiction.
....
Finally, the law requires me that I must tell you the reason for my
transfer. Specifically, my reason is I do not believe the juvenile justice
system can assist you in rehabilitation, all right, and that’s what it’s based
13
on. That’s the difference between you and [Jeffrey]. [Jeffrey], maybe, I
don’t know. With you, I’m pretty certain we just can’t do anything for
you.
In its order, the juvenile court found that Calvin had been charged with a
capital felony and four first-degree felonies, that there was probable cause to believe
that Calvin had committed the offenses, and that Calvin was of sufficient
sophistication and maturity to be tried as an adult. The juvenile court also found that
the likelihood of Calvin’s reasonable rehabilitation by the use of procedures, services,
and facilities currently available to the juvenile court was low and that “after
considering all of the testimony, exhibits, diagnostic study, social evaluation, and full
investigation, . . . it is contrary to the best interests of the public to retain jurisdiction.”
Because of the circumstances and seriousness of the alleged offenses, as well as
Calvin’s role before, during, and after the offenses, the juvenile court determined that
the welfare of the community required criminal proceedings.
In the order, the juvenile court stated that it had considered the Family Code
Section 54.02(f) factors and based its findings on the contents of the pre-diagnostic
study; the testimonies of Lewis and Detective Hall and the evidence admitted through
them; “on the heinous nature of” the offenses and the manner in which Calvin had
allegedly committed them; Calvin’s role in planning, setting up, and executing the
offenses; his actions during and after the offenses; and the evidence that Calvin would
not benefit from services afforded through the juvenile-justice system.
14
C. CALVIN’S ARGUMENT RELIES ON CONFLICTING EVIDENCE.
In his single issue, Calvin observes that the State met its burden of proof that
probable cause existed to issue an arrest warrant for him. He nonetheless argues that
the evidence “clearly established that the juvenile court should have retained
jurisdiction because there were sufficient safeguards in place for the public and a high
probability of rehabilitation for [Calvin] by use of procedures, services, and facilities
currently available to the juvenile court.” He further argues that he should not have
been transferred to adult criminal court because of his significantly below-average IQ,
his low grade-level equivalent, his borderline adaptive behavior functioning score, and
Dr. Jeter’s psychological evaluation, in which she opined that he would likely benefit
from juvenile-justice services.
The State responds by pointing out that in Calvin’s psychological evaluation,
Dr. Jeter also stated that he was not intellectually disabled or significantly mentally ill
and that “[i]t appears that the community would be at a moderate level of risk were he
to remain in it.” The State further points out that the juvenile court was the sole
judge of the witnesses’ credibility and the weight to be given their testimony and that
the seriousness of the charged offenses alone support the waiver and transfer order.
See In re D.T., No. 02-20-00312-CV, 2021 WL 5028769, at *13 n.16 (Tex. App.—Fort
Worth Oct. 28, 2021, no pet.) (mem. op., not designated for publication) (“As the
factfinder, the juvenile court was the sole judge of the witnesses’ credibility and the
weight to be given their testimony.”).
15
Based on the evidence set out above and the juvenile court’s role as factfinder,
see id., we cannot say that the juvenile court abused its discretion, see A.K., 2021 WL
1803774, at *18. As conceded by Calvin, there was sufficient evidence to support a
finding that he had committed a capital or first-degree felony. See Tex. Fam. Code
Ann. § 54.02(a). Further, the offenses resulted in the death of two people, for which
greater weight in favor of transfer is given. See id. § 54.02(f). And in light of the
aggravated-robbery offense that he allegedly committed just weeks before the
murders, the record of his behavior while in detention, and the school records
contained within the probation file that showed his earlier disciplinary issues, the
juvenile court could also have reasonably concluded that the community’s welfare and
protection required the transfer. See id. § 54.02(a), (f).
Furthermore, the evidence of Calvin’s sophistication and maturity was subject
to interpretation by the juvenile court. Although the evidence reflected Calvin’s low
intelligence and lack of mental health treatment before and after the offenses, it also
showed Calvin’s efforts to try to shift blame from himself and to avoid the
consequences of his actions, and the juvenile court had the discretion to determine—
based on this information—whether Calvin could be safely rehabilitated while
adequately protecting the public. Because any combination of the Section 54.02(f)
factors may suffice to support a waiver of jurisdiction and transfer, see A.K., 2021 WL
1803774, at *18, the juvenile court did not abuse its discretion. Accordingly, we
overrule Calvin’s sole issue and affirm the juvenile court’s judgment.
16
/s/ Brian Walker
Brian Walker
Justice
Delivered: September 29, 2022
17