in the Matter of D. M., a Child

NUMBER 13-17-00319-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE MATTER OF D.M., A CHILD
On appeal from the 449th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Benavides
By three issues, appellant D.M.1, a juvenile, challenges the juvenile trial court’s
certification of his case being transferred to the adult criminal justice system. D.M.
asserts that: (1) the trial court erred by considering documents that were not in
evidence, (2) the evidence was insufficient to support the determination to certify D.M. as
1 Pursuant to Rule 9.8(b) of the Texas Rules of Appellate Procedure, we will utilize aliases when
referring to parties and persons related to this proceeding. See TEX. R. APP. P. 9.8(b); TEX. FAM. CODE
ANN. § 56.01(j) (West, Westlaw through 2017 1st C.S.).
an adult, and (3) the trial court committed error by excluding relevant evidence during his
competency trial. We affirm.
I. BACKGROUND
A. Procedural History
D.M. was charged with the capital murder of M.A. and the aggravated assault of
F.R. On March 29, 2016, the State filed its Petition for Discretionary Transfer to Criminal
Court, asking the trial court to waive its jurisdiction and transfer D.M.’s case to the adult
criminal courts. See TEX. FAM. CODE ANN. § 54.02 (West, Westlaw through 2017 1st
C.S.). D.M. subsequently filed a motion to determine whether he was unfit to proceed,
as a result of mental illness or mental retardation. The trial court ordered a social study
to be conducted by the juvenile probation department and appointed Dr. David Moron
and Dr. Gregorio Pina to conduct evaluations of D.M. under chapter 55 of the Texas
Family Code. See TEX. FAM. CODE ANN. ch. 55 (West, Westlaw through 2017 1st C.S.)
(proceedings concerning children with mental illness or intellectual disabilities).
A two-day jury trial was held to determine if D.M. was competent to proceed with
the charges filed against him, with the jury finding D.M. fit to proceed. Approximately
three months later, the trial court conducted a hearing regarding the State’s motion to
transfer D.M. to an adult criminal court.
B. Discretionary Transfer Hearing
During the transfer hearing, the State called Hidalgo County Sheriff’s Office
Investigator Javier Vargas as its first witness. Investigator Vargas testified that he was
the lead investigator on the capital murder case. On February 15, 2016, Hidalgo County
Sheriff’s deputies were called out to a homicide in Mission. Upon arriving, the deputies
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discovered the body of M.A. and interviewed F.R., the complainant in the underlying
aggravated assault charge.
F.R. told deputies that he sold small amounts of hydroponic marijuana out of his
house, and M.A. had arrived with D.M. and others to purchase drugs from him. After the
drug transaction occurred, D.M. and M.A. returned to the waiting vehicle they arrived in,
but F.R. stated that suddenly M.A. jumped out from behind the driver’s side seat of the
vehicle, came running towards F.R., and told F.R. in Spanish that “they had a gun.” F.R.
then said the front passenger, whom he believed to be D.M., started shooting, hitting
M.A.2
Further investigation by the sheriff’s office found a video sent to M.A. on Facebook
Messenger which depicts D.M. holding a gun and wearing an identical shirt to the one
described to deputies by F.R. Investigator Vargas testified that the gun and bullets 3
seen in the video appeared to match the bullets found at the crime scene. Based on the
information gathered, the sheriff’s office deputies arrested D.M. for the death of M.A. and
aggravated assault of F.R.
D.M. gave deputies a statement placing himself at the crime scene and implicated
a co-defendant, J.M. Investigator Vargas testified that based on this information, police
executed a search warrant at J.M.’s girlfriend’s home, where deputies located ammunition
that matched the ammunition seen in D.M.’s video and found at the crime scene, as well
as other U.S. Border Patrol-issued items. After arresting J.M. and charging him with the
2 Additional eyewitnesses interviewed also identified the front passenger as the shooter.
3 Investigator Vargas testified that the bullets had a distinctive “purple” hue to them, which he
identified as being used by the U.S. Border Patrol in their training exercises.
3
murder of M.A. and the aggravated assault of F.R., J.M. gave a statement corroborating
many of the details given by F.R. and identifying D.M. as the shooter.
Probation officer Marissa Arispe-Marmolejo (Arispe) testified that she supervised
D.M. Arispe stated she was first assigned to D.M. when he was placed on supervision
following a prior state jail felony charge of unauthorized use of a motor vehicle. See TEX.
PENAL CODE ANN. § 31.07 (West, Westlaw through 2017 1st C.S.). Arispe also said she
was the probation officer who prepared the social study and discretionary transfer hearing
report4 for the trial court. Arispe told the trial court that she had not had contact with
D.M. or his family for supervision purposes or for the completion of the social study
because D.M.’s counsel had requested that the probation department not have contact
with D.M.
Arispe explained that she gathered information for her social study based on
interviews with D.M.’s teachers at the juvenile detention center, her observations of D.M.
from the courtroom or accompanying him to doctor’s appointments, and included the
doctor’s recommendations. Arispe stated that her report included recommendations
from Drs. Xavier Martinez, Gerardo Mireles, David Moron, Gregorio Pina, and Ramiro
Ramirez. She agreed with D.M. that she did not review any records from outside of the
detention facility.
Arispe explained that D.M. was doing well in his classes at the detention facility, to
the point where at least one of his teachers did not believe he belonged in special
education classes. Arispe noted that it appeared that D.M. liked to selectively forget
4 The discretionary transfer hearing report was referred to as the social study addendum during
the hearing.
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things when convenient and also appeared to understand the courtroom proceedings.
Arispe testified that the juvenile probation department recommended for D.M. to
be transferred to the adult criminal system based on the type of offense committed.
The trial court waived its jurisdiction and explained the factors that contributed to
its decision. The trial court signed D.M’s certification on May 23, 2017. This
interlocutory appeal followed. 5 See TEX. FAM. CODE ANN. § 56.01(c)(1)(A) (West,
Westlaw through 2017 1st C.S.).
II. STANDARD OF REVIEW AND APPLICABLE LAW FOR DISCRETIONARY TRANSFER
In order to waive jurisdiction and transfer D.M. to be tried as an adult, the juvenile
court had to find that: (1) D.M. was alleged to have committed a felony; (2) D.M. was
fourteen years old or older at the time he committed the alleged offense (a capital felony
for which no adjudication hearing has been conducted); (3) after a full investigation and
a hearing, there was probable cause to believe that D.M. committed the alleged offense;
and (4) that the welfare of the community required criminal proceedings because of the
alleged offense’s seriousness or D.M.’s background. See TEX. FAM. CODE ANN. §
5 Although juvenile certification cases are on an accelerated 180-day deadline for the courts of
appeals, this case was delayed by actions of the parties involved. See TEX. FAM. CODE ANN. § 56.01(c),
(h-1) (West, Westlaw through 2017 1st C.S.); see also Order Accelerating Juvenile Certification Appeals
and Requiring Juvenile Courts to Give Notice of the Right to An Immediate Appeal, TEXAS SUPREME COURT,
Misc. Docket No. 15-9156 (Tex. 2015), http://www.txcourts.gov/media/1055398/159156.pdf (mandating
that courts of appeals ensure, as reasonably possible, that juvenile certification appeals are brought to final
disposition within 180 days of the date the notice of appeal is filed).
The notice of appeal was filed in the trial court on June 14, 2017. The reporter’s record was not
filed until September 25, 2017. D.M.’s original appellate counsel filed a motion for extension of time due
to his trial commitments, requesting a deadline of January 30, 2018. This Court abated the appeal on
October 31, 2017, and requested new appellate counsel be appointed for this appeal only. The trial court
appointed D.M.’s appellate counsel on this appeal on November 2, 2017. Appellate counsel filed his brief
on November 27, 2017. The sealed social study and addendum were filed with this Court on December
7, 2017. The State filed its brief on December 28, 2017.
5
54.02(a)(1)–(3); Matter of G.B., 524 S.W.3d 906, 914 (Tex. App.—Fort Worth 2017, no
pet.).
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 persons; (2)
the sophistication and maturity of D.M.; (3) the record and previous history of D.M.; and
(4) the prospect of adequate protection of the public and the likelihood of the rehabilitation
of D.M. by use of the procedures, services, and facilities currently available to the juvenile
court. See TEX. FAM. CODE ANN. § 54.02(f). These aforementioned factors are
nonexclusive and serve to facilitate the juvenile court’s balancing of the potential danger
to the public posed by that particular juvenile offense with the juvenile’s 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 specifically in the order its
reasons for waiver and certify its action, including the written order and
findings of the court, and shall transfer the person to the appropriate court
for criminal proceedings and cause the results of the diagnostic study of the
person ordered under Subsection (d), including psychological information,
to be transferred to the appropriate criminal prosecutor. On transfer of the
person for criminal proceedings, the person shall be dealt with as an adult
and in accordance with the Code of Criminal Procedure. . . .
TEX. FAM. CODE ANN. § 54.02(h).
Regarding our review of the trial court’s order, the court of criminal appeals has
instructed the following:
[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
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fact regarding the Section 54.02(f) factors under “traditional sufficiency of
the evidence review.”[ 6 ] 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.
Matter of G.B., 524 S.W.3d at 914–15 (quoting Moon, 451 S.W.3d at 47). Additionally,
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. 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 order. We therefore hold that, in conducting a review
of the sufficiency of the evidence to establish the facts relevant to the
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
6 Juvenile cases are reviewed under the civil standards of review for legal and factual sufficiency.
Matter of G.B., 524 S.W.3d 906, 914 n.13 (Tex. App.—Fort Worth 2017, no pet.). Because the State’s
burden is the preponderance of the evidence, see Moon v. State, 451 S.W.3d 28, 35, 40, 46 (Tex. Crim.
App. 2014), we may sustain a legal sufficiency challenge only when: (1) the record discloses a complete
absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence 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. Ford Motor
Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014). In determining whether there is legally sufficient
evidence to support the finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder
could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). Anything more than a scintilla of
evidence is legally sufficient to support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444,
450 (Tex. 1996).
When reviewing a challenge that evidence is factually insufficient to support a finding, we set aside
the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding,
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 answer should be set aside and a new trial ordered. Pool
v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
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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 transfer order under Section 54.02(f).
Id. at 915 (quoting Moon, 451 S.W.3d at 49–50) (emphasis in original).
III. SUFFICIENCY OF THE EVIDENCE
By his second issue, which we address first, D.M. argues the evidence was
insufficient to support the trial court’s determination to certify.
A. Applicable Law and Discussion
“Any person accused of committing a felony offense between his tenth and
seventeenth birthdays is subject to the exclusive original jurisdiction of a juvenile court.”
Ex parte Arango, 518 S.W.3d 916, 920 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
“This means that the juvenile court has the power to hear and decide matters pertaining
to the juvenile offender’s case before any other court, including the criminal district court,
can review them.” Id. But “the right of a juvenile offender to remain outside the
jurisdiction of the criminal district court is not absolute.” Id.
The first step of our evaluation of the trial court’s decision to certify D.M. as an
adult is to review its findings of facts under a traditional sufficiency review. See Matter
of G.B., 524 S.W.3d at 914–15. The trial court stated the following facts in reaching its
decision:
1. There is probable cause to believe [that D.M.] committed the
offenses as alleged in the Petition, namely the offenses of CAPITAL
MURDER and AGGRAVATED ROBBERY, which are capital and
first degree felonies, pursuant to Texas Penal Code § 19.03 and
§29.03, respectively. [D.M.] is seventeen (17) years old, having
been born on March 31, 2000, and was 14 years of age or older and
under 17 years of age on or about February 15, 2016, the date he is
alleged to have committed the offenses set out in the State’s Petition
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for Discretionary Transfer to Criminal Court.
2. [D.M.] was properly served with the petition and the summons in
compliance with the notice requirements of §§ 53.04, 53.05, 53.06,
and 53.07 of the Texas Family Code including that the summons
stated the purpose of the hearing was to consider discretionary
transfer to Criminal District Court. Moreover, [D.M.] received the
petition and summons at least two days before this Court conducted
the hearing.
3. The Court ordered a complete diagnostic study, social study, and full
investigation of [D.M.], his circumstances, and the circumstances of
the alleged offense. The Court did receive a full investigation of
[D.M.], his prior referrals, diagnostic study, and his circumstances.
The social study submitted for the Court’s consideration in this matter
was prepared without assistance from [D.M.] or his family inasmuch
as Counsel for [D.M.] instructed [D.M.] not to speak with the assigned
Juvenile Probation Officer.
4. At least five days before this hearing the attorney for [D.M.] and the
attorney for the State received a copy of all reports this Court
considered in reaching this decision, namely: the complete social
and diagnostic study ordered by the 449th District Court;
psychological and/or psychiatric evaluations prepared by Dr. Ramiro
Ramirez, Dr. Xavier Martinez, Dr. Gerardo Mireles, Dr. David Moron,
and Dr. Gregorio Pina, as well as the offense reports from the
arresting agency, which included witness statements and a
statement of accused. The Court also considered still images from
a video of [D.M.] displaying the firearm and bullets used during the
alleged offenses which he sent to the victim’s Facebook account.
(emphasis in original).
The trial court then evaluated the different factors in section 54.02(f) of the family
code in support of its decision to certify D.M. as an adult. See TEX. FAM. CODE ANN. §
54.02(f).
a. Alleged Offense
The trial court first considered the offense itself based mainly on the testimony of
Investigator Vargas and his investigation. The trial court issued the following findings:
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1. This Court reviewed and considered whether the alleged
offenses were against person or property and finds in support
of the discretionary transfer specifically as follows:
There is probable cause to believe [D.M.] committed multiple
offenses against the person of another, and that because they are
against the person it gives greater weight in favor of discretionary
transfer under this factor.
More specifically, the Court finds the following aspects of the alleged
offenses, and [D.M.]’s alleged participation in it, particularly
egregious and aggravating:
[D.M.] used and exhibited a deadly weapon, namely a firearm, during
the commission of each of these offenses.
On February 15, 2016, [D.M.] threatened the victim, [F.R.], by
pointing a firearm at him while attempting to steal his marihuana.
This action put the victim in fear of death or serious bodily injury.
While co-defendant, [J.M.], drove away, [D.M.] proceeded to fire
multiple rounds with the firearm in the direction of the victim and the
deceased.
Further, on February 15, 2016, while [D.M.] was discharging the
firearm as he fled the Aggravated Robbery, he fatally wounded the
deceased, [M.A.]. [D.M.] was later identified by the victim, [F.R.], as
the gunman in the aggravated robbery and capital murder.
(emphasis in original).
The record provides evidentiary support for the trial court’s findings. The State
presented evidence about the investigation of the capital murder and aggravated robbery.
The evidence showed that D.M. went to F.R.’s house to buy marijuana, and then shot
M.A. afterward. Statements by F.R. identify D.M. as the front passenger and shooter.
Additional eyewitness statements corroborate the front passenger was the shooter. The
trial court also considered still images from a video that D.M. sent M.A. on Facebook. In
the video, D.M. is seen holding and pointing a gun similar to the one thought to be used
in the murder. The bullets seen on the still images have a “purplish hue” to them, similar
10
to the bullets found at the crime scene and in the co-defendant’s home. D.M.’s own
statement places him at the crime scene, although he does attempt to implicate J.M.
Based on the record, we conclude there is both legally and factually sufficient
evidence to support the trial court’s findings that probable cause existed that D.M.
committed multiple offenses and that his alleged actions were egregious and aggravating.
b. Sophistication and Maturity
The trial court next considered the sophistication and maturity of D.M. and made
the following findings:
2. This Court reviewed and considered the sophistication and
maturity of [D.M] and finds in support of discretionary transfer
specifically as follows:
According to testimony and social study prepared by Probation
Officer Marissa Arispe-Marmolejo, [D.M.]’s behavior while in
detention is in line with his chronological age. Further, based on
her observations he seems to be aware of the nature and scope of
the court proceedings. She indicated that he is able to ask
appropriate question[s] and verbalize his feelings regarding his
current situation.
Additionally, the teachers in detention find [D.M.] to be sufficiently
sophisticated and mature in comparison to other students. They
expressed that he does well in class when he applies himself, and
that despite his diagnosis and special education needs he is an
intelligent child. They also indicated that [D.M.] exhibits
manipulative behavior, not only with them, but with detention staff.
Further, [D.M.] has had in excess of one hundred (100) Incident
Reports while in detention, some of which include manipulation of
staff, threats of violence/intimidation, and possession of contraband.
[D.M.] has used manipulation and threats against staff in order to
obtain contraband, such as gum, books/magazines, and statues of
the Santisima Muerte.
According to Dr. Pina’s report, [D.M.] admits to belief in Santisima
Muerte which based on Dr. Pina’s clinical experience with legal
offenders, is reported to be a cult which will protect the devotee in
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difficult or desperate situations. Dr. Pina further reported that this
cult appears to psychologically protect those who live in the margins
of the law or outside it and rewards its devotees with financial gain
and finding acceptance/love.
[D.M.]’s level of sophistication and maturity, according to Dr. Pina, is
of someone who is “street smart” and therapized. He indicated that
[D.M.] exaggerated his symptoms during the evaluation and uses his
Intellectual Disability to his advantage.
Further, Dr. Mireles indicates in his report that the results on several
assessments were in the extreme low range and that he was unsure
whether those results were accurate or if they were due to
malingering, failure to follow instructions, invalid responding, or
purposeful attempts to portray himself in an unduly negative manner.
Although [D.M.] is diagnosed as having Intellectual Disability, most
of the doctors who evaluated him report that he was able to
understand the court proceedings. Specifically, Dr. Moron indicates
that this disability is not currently interfering with his understanding
of the charges against him or his ability to assist in his defense.
Dr. Mireles’ report indicates that [D.M.]’s mother, [R.M.], mentioned
that he fantasizes about being in a gang. His report also indicates
that [D.M.] admitted he is a gang member and that most of his friends
are gang members. Further, [D.M.] has admitted to worship of the
Santisima Muerte. Based on the testimony of Investigator Javier
Vargas, [D.M.] also made a video of himself displaying the firearm
and bullets used during the alleged offenses which he sent to the
victim. This testimony is corroborated by the still photographs of
[D.M.] which were admitted into evidence.
All these factors when considered together point to [D.M.]’s
glorification of the gang/street lifestyle and supports Dr. Pina’s
assertion that he is street smart and possesses a maturity sufficient
to understand the behaviors he is engaging in. Further, [D.M.]
demonstrated that he clearly understands and is very aware that
there are different consequences in the juvenile compared to the
adult justice system.
(emphasis in original).
During the hearing, Arispe testified that she only included the findings made by
each doctor who evaluated D.M. However, the reports were made part of the record
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before this Court, as the trial court noted that it reviewed the reports in making its
determination. Although all the doctors who evaluated D.M. agreed he suffered from an
intellectual disability, multiple doctors felt that D.M. and his mother exaggerated his
symptoms during their evaluations. Additionally, the trial court considered D.M.’s school
records and the information received from his teachers in detention. Based on the
record in this case, we conclude that there is legally and factually sufficient evidence to
support the trial court’s finding that D.M. was sufficiently sophisticated and mature to
stand trial as an adult.
c. Record and Previous History
The trial court then considered D.M.’s prior criminal history and behavior while in
the juvenile detention facility and made the following findings:
3. This Court reviewed [D.M.]’s record and previous history and
finds in support of discretionary transfer specifically as follows:
[D.M.] had two prior referrals to the Hidalgo County Juvenile
Probation Department. On November 5, 2015, [D.M.] was placed
on Court Ordered Deferred Prosecution for the felony offense of
Unauthorized Use of a Motor Vehicle that was referred on September
12, 2015. [D.M.] was not compliant on his supervision. On
January 16, 2016, he was charged with misdemeanor Possession of
Marijuana.
[D.M.] has had in excess of one hundred (100) disciplinary write-ups
while detained at the Hidalgo County Juvenile Detention Center,
including violations for assaulting staff/another resident, exhibiting
behavior that poses a threat to the safety/security of the facility,
destroying/defacing county property, disrespecting staff, and
possession of contraband. Additionally, [D.M.] self-reported that he
is, or at one time was, in a gang.
(emphasis in original).
D.M.’s prior criminal referrals show he was given an opportunity to rehabilitate with
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the services available to him; however, he chose to escalate his criminal behaviors and
demonstrated an indifference to the consequences. His referrals while in detention
showed a continuing disregard for the system. We conclude there is legally and
factually sufficient evidence to support the trial court’s finding that D.M.’s record and
history support certification.
d. Protection of the Public and Likelihood of Rehabilitation
Last, the trial court considered what types of rehabilitation would be available if
D.M. stayed within the juvenile system, and if those options were likely to offer protection
to the public. The following findings were made:
4. This Court reviewed and considered the prospects of adequate
protection of the public and the likelihood, if any, of the
rehabilitation of [D.M.] by use of the procedures, services, and
facilities currently available to the Juvenile Court and based on
the above and its knowledge of the rehabilitative services that
may be provided under TITLE III OF THE TEXAS FAMILY CODE and the
age restrictions imposed by the TEXAS HUMAN RESOURCES CODE,
finds in support of discretionary transfer specifically as follows:
The crimes [D.M.] is alleged to have committed are so egregious and
aggravated that this Court determines that based on these offenses
and his prior referral history, that he will not be amenable to this
Court’s additional efforts to rehabilitate him.
Further, the efforts of the Hidalgo County Juvenile Probation
Department to rehabilitate [D.M.] for past criminal behavior have
been unsuccessful, and instead, [D.M.]’s criminal behavior escalated
to the more serious offenses of Capital Murder and Aggravated
Robbery.
Further, the age of [D.M.] at this time excludes him from being eligible
for most programs and placements available to the Juvenile
Probation department for rehabilitation.
Further, the decision to seek a determinate petition is in the
discretion of the prosecutor and the prosecutor chose not to seek
grand jury approval in these cases. See TEX. FAM. CODE ANN. §
14
54.045(a) (West 2014).
(emphasis in original).
The escalation of D.M.’s criminal offenses, as well as his age at the time of the
hearing, disqualified him from most programs available through the juvenile justice
system, according to Arispe. Additionally, the trial court found that being placed on
probation did not rehabilitate D.M. from reoffending. Because there is more than a
scintilla of evidence that the public would not be adequately protected from D.M.’s future
conduct and that D.M. was unlikely to be rehabilitated by the juvenile justice system, we
conclude the evidence is legally sufficient to support the trial court’s findings. Also,
based on all of the evidence presented, especially Arispe’s testimony that no facility would
accept D.M., we conclude that the evidence is also factually sufficient to support a finding
that transferring D.M. to be tried as an adult would protect the public from future conduct
and lack of rehabilitation options available in the juvenile justice system.
B. Summary
We hold the written order by the trial court contains sufficient findings specific to
D.M.’s case to support its certification order. In light of the trial court’s findings and our
own review of the record, we conclude the juvenile court did not abuse its discretion by
waiving jurisdiction and transferring D.M. for trial as an adult. We overrule D.M.’s second
issue.
IV. DOCUMENTS PROPERLY CONSIDERED
By his first issue, D.M. argues the trial court considered documents that were not
properly in evidence.
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A. Applicable Law and Discussion
D.M. alleges the trial court improperly considered the social study and addendum
created by Arispe in making its determination. Prior to the beginning of the hearing, the
State asked the trial court to take judicial notice of all of the documents in the trial court’s
file, specifically, Drs. Martinez and Pina’s reports, as well as the social study and
addendum prepared by Arispe. D.M. had no objections and asked to include the
doctors’ reports that had been offered during the prior competency hearing. The State
then clarified that it was specifically pointing out the documents prepared by order of the
trial court that were statutorily required. Again, D.M. failed to object. The trial court
then took judicial notice of the court’s file.
Section 54.02(c) states “the juvenile court shall conduct a hearing without a jury to
consider transfer of the child for criminal proceedings.” See TEX. FAM. CODE ANN. §
54.02(c). Section 54.02(d) states “prior to the hearing, 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.” Id. § 54.02(d).
Section 54.02(e) states that “at the transfer hearing the court may consider written reports
from probation officers, professional court employees, or professional consultants in
addition to the testimony of witnesses.” Id. § 54.02(e).
“Section 54.02(e) allows the court to consider a probation officer’s written report.”
Matter of K.B.H., 913 S.W.2d 684, 686 (Tex. App.—Texarkana 1995, no pet.). Any
complaint that the State improperly introduced the social evaluation through Arispe is
“misplaced because the court could consider her report even if the State had not formally
offered it into evidence.” Id. at 687–88; see L.M. v. State, 618 S.W.2d 808, 818 (Tex.
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Civ. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.). Here, the trial court was permitted
to consider the statutorily required social study and addendum Arispe completed even
though it had not formally been entered into evidence as an exhibit during the hearing.
Additionally, by D.M. not objecting to the trial court taking judicial notice of the court’s file,
with a specific request from the State to include the social study and addendum, any issue
that could be raised was waived. See TEX. R. APP. P. 33.1. We overrule D.M’s first
issue.
V. TRIAL COURT DID NOT EXCLUDE RELEVANT EVIDENCE
By his third issue, D.M. complains that the trial court excluded relevant evidence
by not notifying the jurors in the competency hearing that D.M. was not present for part
of the competency hearing.
A. Applicable Law and Discussion
D.M. refers to an event that occurred during his Chapter 55 competency
evaluation. See TEX. FAM. CODE ANN. § 55.32 (West, Westlaw through 2017 1st C.S.).
However, an appeal may only be taken on “behalf of a child from an order entered under.
. .(E) Chapter 55 by a juvenile court committing a child to a facility for the mentally ill or
intellectually disabled.” Id. at § 56.01(c)(1)(E) (West, Westlaw through 2017 1st C.S.).
Additionally, in his notice of appeal filed with the trial court, D.M. challenges the order of
the juvenile court waiving jurisdiction and transferring him to a criminal court, not the order
stating he is fit to stand trial. Therefore, this issue is not properly before us and therefore,
waived. See TEX. R. APP. P. 33.1. We overrule D.M.’s third issue.
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VI. CONCLUSION
We affirm the juvenile court’s order transferring jurisdiction.
GINA M. BENAVIDES,
Justice
Delivered and filed the
18th day of January, 2018.
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