in the Matter of K.W. ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00323-CV
___________________________
IN THE MATTER OF K.W.
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. JV19-0052
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant K.W., who was ten days shy of turning eighteen at the time of the
hearing from which this appeal arises, contends that the juvenile court1 abused its
discretion by waiving its jurisdiction and ordering him transferred to “the appropriate
criminal district court” to be prosecuted as an adult for four offenses—three counts
of aggravated sexual assault of a child and one count of indecency with a child by
contact—that he allegedly committed when he was fourteen and fifteen. See generally
Tex. Fam. Code Ann. § 54.02. Under the statute governing waivers of jurisdiction
and discretionary transfers, a juvenile court may transfer a child to the appropriate
district court or criminal district court for criminal proceedings if the child was at least
14 years of age at the time he is alleged to have committed a first-degree felony or at
least 15 years of age at the time he is alleged to have committed a second-degree
felony. See id. § 54.02(a). In four points, Appellant challenges the legal and factual
sufficiency of the evidence to support the findings that he was statutorily eligible by
minimum age to be tried as an adult for each of his four offenses. Because the record
contains legally and factually sufficient evidence from which the juvenile court could
have calculated Appellant’s age on the dates alleged for the four offenses and could
The “Petition Alleging Delinquent Conduct” states that the 415th District
1
Court of Parker County was sitting as a juvenile court.
2
have determined that Appellant met the statutory minimum age to be tried as an adult
for all four offenses, we affirm the juvenile court’s waiver and transfer order.
II. Background2
At the outset of the hearing on the State’s petition for discretionary transfer,
the State offered two exhibits: Appellant’s psychological evaluation and the “Case
History” prepared by assistant chief juvenile probation officer Scott Gieger. The
psychological evaluation states that in June 2019, during the administration of a
polygraph examination, Appellant “admitted to having sexually abused [a relative]
since age 12, when she was age 9.” The case history specifically states that Appellant
was born in August 2001 and that the relative was born in January 2004. The case
history also contains a notice of unsuccessful discharge from the Parker County
Juvenile Offender Treatment Program. The discharge notice states that “[i]n
preparation for a sexual history polygraph in April 2019, [Appellant] disclosed that he
had sexually abused [a relative], who is approximately 22[ ]months younger . . . when
she was aged nine to 12.” The discharge notice also states that during the sexual-
history polygraph in June 2019, Appellant stated that he had sexually abused a relative
until she was 12 but that he had continued to expose himself to her after that in an
attempt to get her to go along with sexual contact.
2
Because Appellant challenges only the sufficiency of the evidence regarding his
age at the time of the four offenses, we focus the background section on evidence
regarding his age.
3
One witness testified during the hearing. Tara Ross, who serves as the
therapist for juveniles in the Parker County Juvenile Probation Department and who
had prepared the notice of unsuccessful discharge that is summarized above, testified
that Appellant was adjudicated in 2018 for “a sexting offense.” As a component of
his plea agreement in that case, Appellant was placed in the sex-offender treatment
program. While Appellant was in sex-offender counseling, Ross learned about the
circumstances surrounding the four offenses that Appellant is charged with in this
case.3 Appellant told Ross that he began sexually abusing a relative “when she was
around 9 and ended around when she was 12.” Ross believed that Appellant was
approximately twenty-two months older than the relative. Based on that belief, Ross
calculated that Appellant was “around 11 to 14” when he abused his relative. Ross
testified that Appellant showed a level of sophistication and maturity commensurate
with a “normal 17-year-old.”
At the conclusion of the hearing, the juvenile court granted the State’s petition
for discretionary transfer. The waiver and transfer order includes the following
findings:
After careful consideration of all the evidence presented, the Court finds
the following:
3
While preparing for the sexual-history polygraph, Appellant disclosed new
offenses of sexually abusing the same relative mentioned above; he committed those
offenses while he was on probation. At the time of the hearing, Appellant was
incarcerated for the indecent-exposure offense that he had committed while on
probation at age seventeen.
4
1. [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated
Sexual Assault of a Child, in violation of Section []22.021 of the Texas
Penal Code, in that the said [Appellant], on or about May 1, 2016, in
Parker County, Texas, did then and there intentionally and knowingly
cause the penetration of the mouth of JaneDoe201902144,[4] a child who
was then and there younger than 14 years of age, by the said
[Appellant’s] sexual organ.
2. [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated
Sexual Assault of a Child, in violation of Section []22.021 of the Texas
Penal Code, in that the said [Appellant], on or about May 1, 2016, in
Parker County, Texas, did then and there intentionally and knowingly
cause the sexual organ of JaneDoe201902144, a child who was then and
there younger than 14 years of age, to contact the sexual organ of the
said [Appellant].
3. [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated
Sexual Assault of a Child, in violation of Section []22.021 of the Texas
Penal Code, in that the said [Appellant], on or about September 15,
2016, in Parker County, Texas, did then and there intentionally and
knowingly cause the anus of JaneDoe201902144, a child who was then
and there younger than 14 years of age, to contact the sexual organ of
the said [Appellant].
4. [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a second[-]degree felony, to-wit:
Indecency with a Child by Sexual Contact, in violation of Section []21.11
of the Texas Penal Code, in that the said [Appellant], on or about
December 1, 2016, in Parker County, Texas, did then and there, with the
intent to arouse or gratify the sexual desire of the said [Appellant],
engage in sexual contact with JaneDoe201902144, hereafter styled the
complainant, by touching the genitals of the complainant, a child
younger than 17 years of age.
The juvenile court referred to the victim using this pseudonym.
4
5
5. [Appellant] is a male child who was born August [XX],[5]
2001, and who is seventeen (17) years of age at the present time . . . .
6. [Appellant] was fourteen (14) years of age at the time of the
alleged offense[s] on May 1, 2016. [Appellant] was fifteen (15) years of
age at the time of the alleged offense on September 15, 2016.
[Appellant] was fifteen (15) years of age at the time of the alleged offense
on December 1, 2016. . . .
....
13. The Court considered the sophistication and maturity of
the child and finds that [Appellant] is sophisticated and mature under the
Code.
14. The Court considered the record and previous history of
the child and 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 and the Court finds
that the procedures, services, and facilities currently available to the
juvenile court will not likely rehabilitate [Appellant].
15. A full investigation and hearing of the child, his
circumstances and the circumstances of the offense(s) was conducted by
this Court[,] and the Court finds that there is probable cause to believe
that the child committed the offense(s) as alleged.
16. The Court has considered the seriousness of the offense(s)
and the background of the child and finds that because of the
seriousness of the offense(s), the welfare of the community requires that
criminal proceedings proceed in criminal court concerning the
aforementioned felony offense(s) and all criminal conduct occurring in
said criminal episode(s).
We omit the day of Appellant’s birth to protect his identity. See generally Tex.
5
R. App. P. 9.9(a)(3).
6
III. Sufficient Evidence Supports the Juvenile Court’s Findings
on Appellant’s Age
Each of Appellant’s four points challenges the evidence supporting the
minimum-age requirement for the four offenses to be transferred to district court.
We address all four points together as Appellant did in the analysis in his brief.
A. Standards for Waiver of Juvenile Jurisdiction
As briefly mentioned above in the introduction, a juvenile court may waive its
exclusive original jurisdiction and transfer a child who is 10 years of age or older and
under 17 to the appropriate district court or criminal district court for criminal
proceedings if the following statutory requirements are met:
(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 he is alleged to have
committed the offense, if the offense is . . . a felony of the first degree,
and no adjudication hearing has been conducted concerning that
offense; or
(B) 15 years of age or older at the time the child is alleged to have
committed the offense, if the offense is a felony of the second or third
degree or a state jail 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 of the
offense alleged or the background of the child the welfare of the
community requires criminal proceedings.
7
Id. § 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 has the burden to persuade the
juvenile court by a preponderance of the evidence that “the welfare of the community
requires transfer of jurisdiction for criminal proceedings, either because of the
seriousness of the offense or the background of the child (or both).” In re P.A.B.,
No. 14-18-00290-CV, 2018 WL 4354679, at *6 (Tex. App.—Houston [14th Dist.]
Sept. 13, 2018, pet. denied) (mem. op.) (quoting Moon v. State, 451 S.W.3d 28, 40–41
(Tex. Crim. App. 2014)).
In making the determination required by Section 54.02(a), the juvenile court
shall consider, among other matters, the following factors:
(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). Any combination of these criteria may suffice to
support a waiver of jurisdiction; not every criterion need weigh in favor of transfer.
P.A.B., 2018 WL 4354679, at *7 (citing Moon, 451 S.W.3d at 47 & n.78). “The trial
court is bound only to consider these . . . factors in deciding whether to waive
jurisdiction. The court need not find that each factor is established by the evidence.”
8
In re C.M.M., 503 S.W.3d 692, 701 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied) (quoting In re D.L.N., 930 S.W.2d 253, 258 (Tex. App.—Houston [14th Dist.]
1996, no writ)).
B. Standard of Review
We have recently set out the standard of review to be applied when reviewing a
waiver and transfer order:
In evaluating a juvenile court’s decision to waive its jurisdiction under
Section 54.02(a), we first review the juvenile court’s specific findings of
fact regarding the Section 54.02(f) factors under “traditional sufficiency
of the evidence review.” See Moon, 451 S.W.3d at 47. In this context,
our sufficiency review is limited to the facts that the juvenile court
expressly relied upon in its transfer order. Id. at 50.
We then review the juvenile court’s ultimate waiver decision for
an abuse of discretion. Id. at 47. That is to say, in deciding whether the
juvenile court 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
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.
In other words, was the juvenile court’s transfer decision essentially
arbitrary, given the evidence upon which it was based, or did it represent
a reasonably principled application of the legislative criteria? Id. In
conducting our review, we 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. Id.
In re T.L., No. 02-19-00200-CV, 2019 WL 4678565, at *3–4 (Tex. App.—Fort Worth
Sept. 26, 2019, no pet.) (mem. op.) (footnote omitted).
9
C. Analysis
Here, Appellant does not challenge any of the Section 54.02(f) factors, nor
does he challenge the requirements in Section 54.02(a)(1) or (3). We therefore focus
on the only findings that Appellant disputes—the minimum-age-requirement findings
under Section 54.02(a)(2)(A) and (B).
The case history admitted during the transfer hearing reflects that Appellant
was born in August 2001 and that his relative was born in January 2004. The
difference between their ages is 29 months, not 22 months as Ross estimated.
Moreover, using Appellant’s date of birth and the dates alleged for the four offenses,
we can calculate how old he was at the time each of the offenses was alleged to have
been committed:
Count Offense alleged Degree of Date alleged Appellant’s age
offense at time of
offense
Count 1 Aggravated sexual First-degree 5/1/16 14
assault of a child felony
Count 2 Aggravated sexual First-degree 5/1/16 14
assault of a child felony
Count 3 Aggravated sexual First-degree 9/15/16 15
assault of a child felony
Count 4 Indecency with a Second-degree 12/1/16 15
child by contact felony
Under the governing statute set forth above, the juvenile court had discretion
to transfer Appellant to criminal district court if he was 14 years or older at the time
he was alleged to have committed a first-degree felony. See Tex. Fam. Code Ann.
10
§ 54.02(a)(2)(A). As set forth in the chart above, Appellant met this criteria for the
first-degree felonies alleged in Counts 1, 2, and 3.
Under the governing statute, the juvenile court had discretion to transfer
Appellant to criminal district court if he was 15 years or older at the time he was
alleged to have committed a second-degree felony. See id. § 54.02(a)(2)(B). As set
forth in the chart above, Appellant met this criteria for the second-degree felony
alleged in Count 4.
Appellant, relying solely on Ross’s testimony that Appellant was 22 months
older than his relative, argues that “at his very oldest the Appellant was two months
younger than 14 years of age and 14 months younger than 15 years of age,” that
“[t]here is not more than a scintilla of evidence that Appellant had reached 14 years of
age,” and that “[t]here is zero evidence in this record that Appellant had reached 15
years of age[] as to the allegation in Count 4.” But as explained above, Ross
miscalculated the age difference between Appellant and his relative by seven months.
The correct calculation shows that Appellant was 29 months older than his relative.
Even ignoring the offense dates alleged in the indictment, the trial court could have
relied on Ross’s testimony that Appellant had admitted that he had sexually abused his
relative from the time she was “around 9 and ended around when she was 12” and thus
calculated that Appellant would have been 14 when his relative was 11 years and 7
months and that he would have been 15 when she was 12 years and 7 months.
[Emphasis added.] These calculations, which rely on testimony regarding the victim’s
11
approximate age range, also support the trial court’s findings that Appellant had met
the statutory minimum age for both the second-degree felony and the three first-
degree felony offenses.
This court recently decided an opinion in which the minimum statutory age
was challenged under the subsection of Section 54.02 that deals with whether a
juvenile court may waive its jurisdiction and transfer a respondent who has turned 18
years old but was at least 14 years old on the date of the offense. See In re A.B.,
No. 02-18-00274-CV, 2019 WL 983751, at *1 (Tex. App.—Fort Worth Feb. 28, 2019,
no pet.) (mem. op.) (focusing on Section 54.02(j)(2)(B)). Because the age analysis in
that opinion is analogous to the age analysis we conduct here, we set forth the
pertinent portion of the opinion’s discussion of the appellant’s age:
Despite the uncertainty surrounding [the appellant’s] age at the time of
the alleged offense and the possibility that he was under 14, and despite
[the victim’s] incomplete and contradictory recollections, the record
contains some evidence . . . that the alleged incident occurred after
August 2010 and therefore after [the appellant] turned 14. We hold that
there is more than a scintilla of evidence supporting the trial court’s
finding and thus that the evidence is legally sufficient.
Although [the appellant] correctly asserts that the evidence is
contradictory and inexact, the trial court as the factfinder was free to
accept or reject any or all of any witness’s testimony. As the factfinder,
the trial court was also free to reconcile any apparent inconsistencies in
the testimony. . . .
Moreover, the trial court was free to rely on [the detective’s]
testimony that she was able to determine that the offense most likely
happened around January 1, 2011[,] “[f]rom the outcries” and because
[the victim] was “pretty sure it happened around 2011.” That 2011
timeframe, coupled with [the detective’s] explanation that [the victim]
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“remembered that she was on winter break from school,” provides some
evidence that the offense likely occurred in the winter of 2011. Because
[the appellant] turned 14 in the summer of 2010, the trial court’s finding
is supported by sufficient evidence. Thus, we hold that the evidence was
not so against the great weight and preponderance of the evidence as to
be clearly wrong and unjust and was thus factually sufficient.
Id. at *6 (citations omitted).
Appellant argues that A.B. is distinguishable because “there was at least
testimony in that case from a detective and the victim that provided more cover to the
age range.” Although the juvenile court here did not have testimony from a detective
or a victim, the juvenile court did have before it Appellant’s date of birth and the
alleged dates of the offenses, which constituted some evidence to support the juvenile
court’s findings regarding Appellant’s age on the alleged dates of the offenses.
Accordingly, we hold that there is more than a scintilla of evidence supporting the
juvenile court’s age findings for each of the four offenses and thus that the evidence is
legally sufficient. See id. (holding evidence legally sufficient to support juvenile court’s
finding regarding appellant’s age on the date of the alleged offense).
Moreover, the juvenile court, as the factfinder, was free to reject any apparent
inconsistencies between Ross’s testimony about the age difference between Appellant
and the victim and the actual age difference as calculated based on the case history.
See id. at *3. Because the calculations based on Appellant’s birthdate show that he had
met the statutory minimum age for each of the four offenses, the juvenile court’s age
findings are supported by sufficient evidence. Thus, we hold that the evidence was
13
not so against the great weight and preponderance of the evidence as to be clearly
wrong and unjust and was thus factually sufficient. See id. at *6 (holding evidence
factually sufficient to support juvenile court’s finding regarding appellant’s age on the
date of the alleged offense).
Having concluded that the juvenile court’s age findings under Section
54.02(a)(2)(A) and (B) are supported by legally and factually sufficient evidence, we
overrule Appellant’s four points.6
6
Appellant’s sole basis for his contention that the juvenile court abused its
discretion is that the juvenile court’s age findings under Section 54.02(a)(2) for each of
the four offenses are not supported by legally and factually sufficient evidence.
Although Appellant’s brief does not include a separate argument challenging any of
the Section 54.02(f) factors on which the juvenile court based its waiver decision, for
the sake of completeness, we will consider whether the juvenile court acted without
reference to guiding rules or principles in waiving its jurisdiction. See Moon, 451
S.W.3d at 47; P.A.B., 2018 WL 4354679, at *10. The juvenile court’s waiver and
transfer order includes findings based on the Section 54.02(f) factors, as set forth
above. After reviewing the record, we conclude that there is sufficient evidence
supporting the Section 54.02(f) findings—all of the offenses were against a person,
not property; Appellant possessed a level of sophistication and maturity
commensurate with a “normal 17-year-old”; he had committed the offense of sexting
and then committed additional offenses while on probation and was currently
incarcerated for an offense committed while he was 17; and the procedures, services,
and facilities currently available to the juvenile court would not likely rehabilitate
Appellant. Such evidence weighs in favor of the juvenile court’s decision to transfer
Appellant’s four offenses to criminal court. Given the evidence in the record and the
juvenile court’s Section 54.02(f) findings, we cannot say that the juvenile court’s
decision was arbitrary or made without reference to guiding rules. Rather, the juvenile
court’s decision resulted from a principled application of legislative criteria. See Moon,
451 S.W.3d at 47. Accordingly, we hold that the juvenile court did not abuse its
discretion by waiving its jurisdiction and transferring Appellant’s four offenses. See
T.L., 2019 WL 4678565 at *10 (concluding that juvenile court’s decision to waive its
jurisdiction and transfer case was not an abuse of discretion).
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IV. Conclusion
Having overruled Appellant’s four points, we affirm the juvenile court’s waiver
and transfer order.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: January 9, 2020
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