in the Matter of A.W.

Affirmed and Opinion filed February 2, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00615-CV
NO. 14-22-00634-CV
IN THE MATTER OF A.W.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2021-00678J & 2021-01242J
OPINION
This is an accelerated appeal from the juvenile court’s order waiving
jurisdiction and transferring A.W. to criminal district court to stand trial as an
adult. In his only issue on appeal, A.W. argues that the juvenile court improperly
admitted evidence—over his hearsay objections—at the transfer hearing. We
affirm.
I. BACKGROUND
On April 28, 2021, appellee the State of Texas filed its original petition in
cause number 2021-00678J alleging that A.W. committed delinquent conduct,
alleged to have been committed on or about April 26, 2021, by assault on Timothy
Snyder, a public servant. On August 9, 2021, the State filed its original petition in
cause number 2021-01242J alleging that A.W. committed delinquent conduct,
aggravated sexual assault against B.H.1, alleged to have been committed on or
about July 11, 2021.2
On October 4, 2021, the State filed amended petitions requesting that the
juvenile court transfer both of A.W.’s cases to felony district court.3 The
individuals below testified at the transfer hearing on June 27, 2022; most of the
underlying facts are undisputed by A.W.
Transfer Hearing Testimony
B.H.
B.H. is a therapist with the Harris County Leadership Academy, a juvenile
probation facility in Katy, Texas. B.H. was the only therapist working on July 11,
2021. A.W., one of the juvenile residents at that facility, had made multiple
requests to speak with B.H. A.W. sent the guards to go get B.H. for a therapy
session. B.H. notified the guards via radio that she was retrieving A.W. from his
unit, and then escorted A.W. from his unit to her office for a fifteen-minute therapy
session.
B.H.’s office was formerly a cell constructed of concrete walls and a heavy
metal door which locked automatically upon closing. B.H. testified that during
therapy sessions with the residents she always kept the door open for safety
purposes.
1
Both parties refer to the complainant as “B.H.”
2
Trial cause number 2021-00678J corresponds to appellate case 14-22-00615-CV and
trial cause number 2021-01242J corresponds to appellate case 14-22-00634-CV.
3
Appellant was fifteen years old at the time of the alleged offenses.
2
When B.H. began the therapy session with A.W. in her office, A.W. laughed
and told her that a fight was going to break out in his unit. B.H. continued to
converse with A.W. until the end of the therapy session. When B.H. informed
A.W. that it was time to return to his unit, A.W. stalled and kept asking B.H.
questions. B.H. attempted several times to radio the guards for clearance to return
A.W. to his unit, but she received no response because all of the guards had
responded to a fight that had broken out in the unit. B.H. eventually decided to
escort A.W. back to his unit without obtaining clearance.
As B.H. exited the office, A.W. asked her to retrieve the telephone number
of a relative for him. When she returned to her desk, A.W. kicked the doorstop
causing the office door to close and lock. A.W. then seized the radio from the desk
and ripped out the battery. A.W. approached B.H. with his fists balled, backed her
into the wall, and pulled her legs out from underneath her, causing her to fall to the
floor. When B.H. screamed, A.W. got on top of her, grabbing her neck with one
hand and covering her mouth with the other. A.W. lifted a desk exercise bike over
B.H’s head and threatened to bash her head in and kill her if she screamed. B.H.
testified extensively and in graphic detail that A.W. forced her to remove her
clothing, attempted to penetrate her vagina with his sexual organ, and forced B.H.
to place her mouth on his sexual organ.
Afterwards, A.W. turned the office light back on and told B.H. to get
dressed. He asked her where she lived and threatened to kill her and her family if
she told anyone about the sexual assault. Before they left the office, A.W. grabbed
all of the pens from the desk and hid them in his pants. Then A.W. allowed B.H. to
unlock the door and she escorted him back to his unit. Once A.W. had been
returned to his unit, B.H. immediately went to the guard room and told the
supervisor that A.W. had sexually assaulted her and stolen her pens; B.H.
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mentioned the stolen pens because she was afraid that A.W. was going to “arm all
the people in the unit and maybe attack the guards.” The police were contacted and
B.H. was transported to the hospital for a sexual assault examination.
Leneka Winters
Leneka Winters testified that she is a deputy investigator with the Harris
County Sheriff's Office Adult Sex Crimes Unit. Winters averred that during B.H.’s
sexual assault examination, swabs were collected from B.H.’s body. A sample of
A.W.’s DNA was also obtained via a search warrant. His DNA was compared to
the evidence collected during the sexual assault examination, and the results
showed that his DNA was present on B.H.’s vagina, rectum, neck, hands, right
breast, and on her underwear. A.W. was charged with aggravated sexual assault
and relocated to the Harris County Juvenile Detention Center.
Winters also testified concerning an aggravated assault committed by A.W.
in Georgia in April of 2019 while he was under court supervision. Counsel for
A.W. asserted a hearsay objection, which the trial court overruled. According to
Winters, A.W. approached a thirteen-year-old female and offered her a cigarette.
The girl refused and turned to go back inside her apartment, and A.W. chased after
her. She managed to push A.W. back before closing the door. A.W. waited outside
the complainant’s apartment for some time before she eventually left the apartment
again. At that point, A.W. threatened the complainant with a knife and she fled
back into the apartment, notified her parents, and contacted 911. A.W. was charged
with aggravated assault.
Over A.W.’s objection, the State also offered and admitted the following
exhibits related to the Georgia incident:
• the thirteen-year-old complainant’s written voluntary statement
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describing the aggravated assault;
• A.W.’s admission of guilt—signed on April 18, 2019—to one count of
aggravated assault;
• the April 22, 2019, order from the juvenile court of Fulton County,
Georgia adjudicating A.W. of one count of aggravated assault in case
number 19DL01583; and
• the May 9, 2022, order from the juvenile court of Fulton County, Georgia
closing case number 19DL01583 after jurisdiction was transferred to the
juvenile court of Harris County, Texas.
Stefanie Semper
Stefani Semper testified that she was formerly a behavioral therapist at the
Harris County Leadership Academy. On February 3, 2020 there was a disturbance
in A.W.’s unit, and Semper was asked to speak with A.W. for purposes of de-
escalation. When her session with him ended and Semper told A.W. it was time to
return to his unit, A.W. refused to return to his unit. A.W. kicked the door stand
causing the office door to shut and lock. Semper went to her desk to retrieve her
keys, but A.W. moved directly in front of her and blocked her path. A.W. then
attempted to touch Semper’s face, but she slapped his hand away and pushed him.
Semper pleaded with A.W. to stop what he was doing. She convinced A.W. to sit
down and let her open the office door so she could use the restroom. Semper was
able to unlock the door and she returned A.W. to his unit and informed her
coworkers of the incident.
Timothy Snyder
Snyder works with the Harris County Juvenile Probation Department as a
correction officer. On April 26, 2021, he was working at the Harris County
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Leadership Academy. Snyder was assigned to unit 2, the same unit as A.W. While
in the dayroom, Snyder asked A.W. to get out of his chair. A.W. refused, and
eventually slapped Snyder.
Florencia Iturri, PhD
Florencia Iturri, a licensed staff psychologist at the Harris County Juvenile
Probation Forensic Unit with a Masters in clinical psychology, conducted a
certification evaluation of A.W. In making her evaluation, Iturri reviewed all of
A.W.’s probation records, offense reports, medical records, and his prior
evaluations. Iturri took several factors into account, including A.W.’s
dangerousness, sophistication, maturity, and his amenability to treatment. She
testified that A.W. demonstrates an average level of maturity compared with other
adolescents his age.
Concerning A.W.’s sophistication, Iturri clarified that intellectual
sophistication refers generally to A.W.’s intelligence, his IQ, and his ability to
think things through. Criminal sophistication, on the other hand, refers more
specifically to how A.W. behaves when committing acts that could be considered
criminal. Iturri averred that A.W.’s level of general intellectual sophistication is
below average. Speaking on A.W.’s criminal sophistication and dangerousness,
Iturri opined:
I also judged [A.W.] to have an average level of criminal
sophistication when the offense is not considered. When the offense is
considered, his criminal sophistication increases to a moderately high
level. In terms of dangerousness, both when the offense is not
considered and when the offense is considered, he is judged to have a
high level of dangerousness.
Iturri additionally testified that since December of 2017, A.W. has been
placed in juvenile facilities on twenty-two different occasions. For the majority of
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his placements in Harris County, A.W. was removed for assaulting staff members
prior to A.W.’s successful completion of his placement term. During his time in
juvenile probation facilities, A.W. accumulated eighty different incident reports for
assaulting or threatening to assault residents and staff members. Iturri noted that
even after the charged offenses occurred, A.W. continued to receive reports for
sexually inappropriate behavior on numerous occasions. Iturri also admitted that
A.W.’s behavior has been “escalating.” Based on A.W.’s prior history, Iturri
judged A.W.’s treatment amenability to be in the moderately low range.
Iturri did not specifically give an opinion as to whether the trial court should
waive its jurisdiction as to A.W., but did opine that A.W. would likely benefit from
a more structured environment. Iturri admitted that the Texas Department of
Criminal Justice for adults is more structured than the Texas Juvenile Justice
Department.
Jennifer Hunley
Jennifer Hunley, the facility administrator for the Leadership Academy,
testified in-depth concerning A.W.’s prior juvenile record.
On April 5, 2018, A.W. was adjudicated for unauthorized use of a motor
vehicle and was sent to the Burnett-Bayland Reception Center (“BBRC”), a post-
adjudicative facility for children. A.W. was released to live with his father in
Georgia between December of 2018 and May of 2019.
On June 6, 2019, A.W. was adjudicated for another charge of unauthorized
use of a motor vehicle. A.W. was sent to the BETA unit of the BBRC, which had a
trauma-informed program specifically designed for young offenders. On August
12, 2019, A.W. was returned to detention after harassing a public servant. A.W.
was again released to his father’s custody but was subsequently returned to
7
detention after engaging in disorderly conduct. A.W. was adjudicated on January
21, 2020 and sent to the Harris County Leadership Academy, where he received
therapy based on an individualized treatment plan. After being released from the
Leadership Academy into his father’s custody, A.W. was subsequently detained
and adjudicated for evading arrest with a motor vehicle. A.W. was sent to the
Harris County Youth Village to participate in a trauma-based program. While at
that facility, A.W. was charged with assault of a public servant and returned to
detention. A.W. was adjudicated and sent to AMIKIDS, a private placement
facility in the Rio Grande Valley which is occasionally used if other juvenile
facilities have not worked. Due to behavioral issues at AMIKIDS, A.W. was again
detained, adjudicated, and sent to the Leadership Academy for a nine-month
trauma-based therapy program. It was during his time at the Leadership Academy
that A.W. assaulted probation officer Snyder and sexually assaulted B.H.
Mark Salinas
Deputy Mark Salinas, a juvenile investigator for Precinct 1 of the Harris
County Sheriff ’s Office, testified that he received six reports of A.W. exposing
himself to female staff members between August 2021 and October 2021, which
was after he sexually assaulted B.H. On August 12, 2021, A.W. exposed his penis
and attempted to masturbate in front of a youth development coach. On August 22,
2021, A.W. exposed himself to a nurse. The following day, A.W. exposed himself
to a teacher. On September 30, 2021, A.W. masturbated in front of a therapist. On
October 2, 2021, he dropped his pants and masturbated in front of another female
youth development coach. And finally, on October 25, 2021, A.W. masturbated
while on a virtual tele-therapy appointment with a different therapist.
On August 23, 2022, following the combined certification hearing for both
cases, the trial court signed orders granting the State’s request, waived its original,
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exclusive jurisdiction in cause numbers 2021-00678J and 2021-01242J, and
transferred those causes to felony district court. In both cases, A.W. timely filed his
notice of appeal on August 25, 2022.
II. ANALYSIS
A. STANDARD OF REVIEW & APPLICABLE LAW
“We review a trial court’s decision to admit evidence for an abuse of
discretion.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011). The
juvenile court’s ruling to admit or exclude evidence at a waiver and transfer
hearing under § 54.02 of the Family Code is also reviewed for an abuse of
discretion. See In re H.Y., 512 S.W.3d 467, 473 (Tex. App.—Houston [1st Dist.]
2016, pet. denied). An abuse of discretion only occurs if the court’s ruling is “so
clearly wrong as to lie outside the zone within which reasonable people might
disagree.” Id. The erroneous admission of evidence warrants reversal only if the
error probably caused the rendition of an improper judgment. See Tex. R. App. P.
44.1; In re H.Y., 512 S.W.3d at 473.
Under § 54.02(a) of the Texas Family Code, the juvenile court may waive its
exclusive original jurisdiction and transfer a child to criminal district court if: (1)
the court determines there is probable cause to believe the child committed the
offense alleged; and (2) the court determines that “because of the seriousness of the
offense alleged or the background of the child the welfare of the community
requires criminal proceedings.” Tex. Fam. Code Ann. § 54.02(a)(3).
B. APPLICATION
A.W. argues that the trial court reversibly erred when it admitted evidence—
over his hearsay objections—related to the incident of A.W. allegedly threatening a
young girl with a knife in Georgia. According to A.W., the Texas Rules of
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Evidence are applicable even in discretionary transfer hearings held under the
Texas Family Code § 54.02. See Tex. Fam. Code Ann. § 54.02. A.W.
acknowledges that several courts of appeal have concluded that in juvenile transfer
proceedings, the Texas Rules of Evidence do not apply and that juvenile courts
may consider hearsay evidence. See Grant v. State, 313 S.W.3d 443, 444 (Tex.
App.—Waco 2010, no pet.) (“[A] juvenile court can determine probable cause in a
nonadversary preliminary hearing through the use of hearsay besides written and
oral testimony.”); McKaine v. State, 170 S.W.3d 285, 289 (Tex. App.—Corpus
Christi–Edinburg 2005, no pet.) (concluding that juvenile court may consider
hearsay evidence because “[s]trict rules of evidence are not applied in transfer
proceedings.”); In re J.A.W., 976 S.W.2d 260, 264 (Tex. App.—San Antonio 1998,
no pet.) (“Section 54.02(e) of the Family Code, which allows the court to consider
written reports from probation officers, professional court employees, and
professional consultants, provides an explicit exception to the hearsay rule in a
transfer to criminal court proceeding.”); In re G.B.B., 638 S.W.2d 162, 164 (Tex.
App.—Houston [1st Dist.] 1982, no writ) (“Appellant's argument, concerning the
hearsay [evidence] . . . has no merit when directed at a juvenile transfer hearing.
The sole purpose of such a hearing is to determine whether, in the best interest of
the child and society, the minor may be rehabilitated, or if he should be criminally
tried as an adult. No determination is made of the minor's guilt, punishment or
delinquency. Because such a hearing is dispositional, rather than adjudicational in
nature, a juvenile court may consider hearsay reports . . . .”); see also In re B.M.,
No. 01-18-00898-CV, 2019 WL 1388561, at *13 (Tex. App.—Houston [1st Dist.]
Mar. 28, 2019, no pet.) (mem. op.) (“And because the transfer hearing is a
nonadversary preliminary hearing, the juvenile court may rely upon hearsay as
well as written and oral testimony in making its probable-cause findings.”).
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Our court has historically reached the same conclusion regarding a juvenile
court’s reliance on hearsay evidence in making its probable cause finding. See In
re S.J.M., 922 S.W.2d 241, 242 (Tex. App.—Houston [14th Dist.] 1996, no writ)
(“Because a juvenile transfer hearing is dispositional, rather than adjudicational in
nature, a juvenile court may consider hearsay reports without violating the
juvenile's right of confrontation.”); L.M.C. v. State, 861 S.W.2d 541, 542 (Tex.
App.—Houston [14th Dist.] 1993, no writ) (“The juvenile court determines
probable cause in a nonadversary preliminary hearing. The juvenile court may use
hearsay as well as written and oral testimony.”) (internal citations omitted); In re
D.W.L., 828 S.W.2d 520, 524–25 (Tex. App.—Houston [14th Dist.] 1992, no writ)
(“Further, the trial court can determine probable cause in a nonadversary
preliminary hearing through the use of hearsay besides written and oral testimony.
The judge does not determine appellant’s innocence or guilt at the hearing, but
merely evaluates whether he should be tried as a juvenile or adult in subsequent
proceedings.”).
Nevertheless, A.W. argues that many of these cases relied on a prior version
of § 54.02, which allowed the trial court to consider “whether there is evidence on
which a grand jury may be expected to return an indictment.” Act of June 16,
1973, 63rd Leg., R.S., ch. 544, § 54.02(f)(3), 1973 Tex. Gen. Laws 1460, 1477,
formerly Tex. Fam. Code Ann. § 54.02(f)(3). But effective January 1, 1996, that
language was removed from the statute. Act of May 27, 1995, 74th Leg., R.S., ch.
262, § 34, 1995 Tex. Gen. Laws 2517, 2533. Thus, A.W. asserts that the removal
of that language from § 54.02 means that the Texas Rules of Evidence now apply
in juvenile transfer hearings.
The First Court of Appeals has addressed a similar argument. See Navarro v.
State, No. 01-11-00139-CR, 2012 WL 3776372, at *6 (Tex. App.—Houston [1st
11
Dist.] Aug. 30, 2012, pet. ref’d) (mem. op., not designated for publication).
Relying on our court’s decision in L.M.C., the First Court of Appeals in Navarro
ultimately concluded that due to the nature of a transfer hearing, a juvenile court
may still rely on hearsay evidence, despite the changes to § 54.02:
Appellant notes that the Juvenile Justice Code was amended to delete
the provision that the juvenile court, during a transfer hearing, “shall
consider, among other matters . . . whether there is evidence on which
a grand jury may be expected to return an indictment.” However, as
noted in L.M.C., the consideration of grand-jury evidence was only
one justification for not requiring juvenile courts to rule on the
admissibility of evidence during a transfer hearing. The Texas Family
Code still only requires a juvenile court to determine whether there is
probable cause that the juvenile committed the alleged offense. Thus,
a transfer hearing remains a “nonadversarial preliminary hearing” and
“appellant’s rights will be fully protected when the case reaches trial.”
Accordingly, we opt to agree with our sister court in L.M.C. and hold
that the juvenile court was not required to resolve the admissibility of
appellant’s statements before the transfer hearing.
Id. (citing L.M.C., 861 S.W.2d at 541–42) (internal citations omitted); see State v.
Lopez, 196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet. ref’d) (concluding
juvenile defendant was not entitled to jury trial at transfer hearing because, during
such hearing, juvenile court “is not required to conform to all of the requirements
of a criminal trial or even of the usual administrative hearing” and transfer hearing
“is comparable to a criminal probable cause hearing and the court need not resolve
evidentiary conflicts beyond a reasonable doubt”).
We agree with the reasoning of Navarro and L.M.C. that a juvenile court in a
transfer hearing is not required to resolve the admissibility of hearsay evidence
offered against the juvenile because of the non-adversarial nature of a transfer
hearing. See L.M.C., 861 S.W.2d at 541–42; see also Navarro, 2012 WL 3776372,
at *6. A juvenile court may consider hearsay evidence in deciding whether to
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waive its exclusive original jurisdiction and transfer a child to criminal district
court because the juvenile’s rights will be fully protected at trial. See Grant, 313
S.W.3d at 444; Lopez, 196 S.W.3d at 874; In re S.J.M., 922 S.W.2d at 242; L.M.C.,
861 S.W.2d at 542; In re D.W.L., 828 S.W.2d at 524–25; see also In re B.M., 2019
WL 1388561, at *13; Navarro, 2012 WL 3776372, at *6. Accordingly, we
conclude that the trial court did not err in admitting the evidence related to the
incident in Georgia involving A.W.
Moreover, assuming without deciding that the juvenile court erred in
admitting the hearsay evidence, A.W. has not demonstrated that he has been
harmed by the alleged error. See Tex. R. App. P. 44.1. There was an abundance of
evidence to support the trial court’s finding that A.W. committed the offenses as
charged and that he should be tried as an adult, based on the seriousness of the
offenses committed and considering A.W.’s background. See Tex. Fam. Code Ann.
§ 54.02(a)(3). There was ample evidence and testimony to support the nature and
seriousness of the offenses A.W. committed against Snyder and B.H. Additionally,
the trial court could consider A.W.’s extended history of escalating offenses, the
eighty incident reports involving A.W. threatening or assaulting other residents and
staff members, and the six times A.W. exposed himself to female staff—all of
which was admitted without objection. The trial court also heard evidence from
Iturri regarding A.W.’s high level of dangerousness, moderately high criminal
sophistication, average maturity, and moderately low level of amenability to
treatment. Thus, even without considering the Georgia incident, there is sufficient
evidence to support the trial court’s order transferring A.W. to criminal court, and
A.W. has failed to demonstrate that the alleged error probably led to the rendition
of an improper judgment. See Tex. R. App. P. 44.1; In re H.Y., 512 S.W.3d at 473.
We overrule A.W’s sole issue on appeal.
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III. CONCLUSION
We affirm the trial court’s judgment.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
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