in the Matter of R.I.C.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00834-CV
IN THE MATTER OF R.I.C.
From the 436th District Court, Bexar County, Texas
Trial Court No. 2018JUV01596
Honorable Lisa Jarrett, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Beth Watkins, Justice
Delivered and Filed: February 19, 2020
AFFIRMED
R.I.C. appeals the juvenile court’s order waiving its jurisdiction and transferring him to
criminal district court. In his first issue, R.I.C. asserts the juvenile court abused its discretion in
admitting the testimony of a juvenile probation officer on R.I.C.’s susceptibility to rehabilitation.
In his remaining issues, which R.I.C. combines for argument purposes, R.I.C. challenges the
sufficiency of the evidence to support the juvenile court’s findings under Section 54.02(f) of the
Texas Juvenile Justice Code and contends the juvenile court abused its discretion in waiving its
jurisdiction. We affirm the juvenile court’s order.
BACKGROUND
R.I.C. is alleged to have committed capital murder on or about November 12, 2018 by
intentionally causing the death of Abram Garcia by shooting him with a deadly weapon, namely a
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firearm, while in the course of committing and attempting to commit the offense of robbery. R.I.C.
was born on February 4, 2003, and was fifteen on the date of the alleged offense. On December
28, 2018, the State filed a petition requesting the juvenile court to waive its jurisdiction and transfer
R.I.C. to criminal district court.
The juvenile court held a hearing on the State’s petition on April 16, 2019, and the juvenile
court signed an order granting the petition the same day. R.I.C. appealed the order to this court,
and we vacated the juvenile court’s order, holding the order lacked “the case-specific findings of
fact necessary to support the juvenile court’s reasons for waiving jurisdiction.” In re R.C., No. 04-
19-00262-CV, 2019 WL 4044029, at *4 (Tex. App.—San Antonio Aug. 28, 2019, no pet.) (mem.
op.). We remanded the cause to the juvenile court for further proceedings. Id.
After our mandate issued, the juvenile court held another hearing on October 15, 2019. At
the hearing, R.I.C.’s attorneys argued the juvenile court should not hear any additional evidence.
The juvenile court agreed to this procedure.
On November 13, 2019, the juvenile court held another hearing at which it signed an order
granting the State’s petition and waiving its jurisdiction. The order states R.I.C. and his attorneys
“stipulated and agreed that the court should proceed upon written reports from probation officers,
professional court employees and/or professional consultants, as well as the transcript of a previous
hearing on this matter held on April 16, 2019, and that they would not require any new live
testimony at the hearing.” In the order, the juvenile court noted: (1) a Discretionary Transfer
Hearing Report prepared by Bexar County Juvenile Probation Officer Jeremy M. Torrez was filed
with the court on January 30, 2019; (2) an amended Discretionary Transfer Hearing Report was
filed on April 11, 2019; and (3) a Certification and Transfer Evaluation of R.I.C. prepared by Dr.
Heather Holder was filed on February 4, 2019. Also in its order, the juvenile court made the
required findings regarding the Section 54.02(f) factors which are detailed below.
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OFFICER TORREZ’S QUALIFICATION AS AN EXPERT
In his first issue, R.I.C. contends Officer Torrez was not qualified to testify regarding
R.I.C.’s susceptibility to rehabilitation and amenability to treatment. R.I.C. first asserts Officer
Torrez lacked the education or experience to testify as an expert because he had only been a
juvenile probation officer for one and a half years and R.I.C. was “his first assigned juvenile
charged with capital murder.” R.I.C. further asserts Officer Torrez could not testify as a lay
witness because his opinions were not rationally based on his perception because he only met with
R.I.C. one time before the offense was committed and had “limited contact” with R.I.C.
At the April 16, 2019 hearing on the State’s petition, Officer Torrez testified he had been
employed with the juvenile probation department since December of 2015 and as a juvenile
probation officer since October of 2017. He further testified he was assigned as R.I.C.’s juvenile
probation officer on September 25, 2018, which was before the alleged offense. At that time,
R.I.C. was on probation for possession of marijuana. On September 27, 2018, Officer Torrez
received a phone call from R.I.C.’s school regarding R.I.C. being in an area of the school where
he was not supposed to be. Officer Torrez went to the school to talk to R.I.C. When R.I.C. told
Officer Torrez he was struggling to stay home while on the monitor, Officer Torrez told R.I.C. to
contact him if he needed to be removed from his home. Officer Torrez also told R.I.C. that
removing the monitor was the worst thing R.I.C. could do. The next day, R.I.C. removed the
monitor and absconded from supervision. A warrant was issued for R.I.C.’s arrest; however, his
whereabouts were unknown until he was arrested for the capital murder offense. Since R.I.C. was
placed in detention on November 13, 2018, Officer Torrez had met with him on a weekly basis.
Officer Torrez detailed all the resources he used in preparing his discretionary transfer hearing
report and also detailed R.I.C.’s referral history. Officer Torrez further detailed R.I.C.’s behavior
while in detention after the alleged offense, which included being placed in solitary based seclusion
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four times and group restriction eighteen times. Officer Torrez testified solitary based seclusion
is imposed for major rules violations, and R.I.C.’s violations ranged from being aggressive toward
staff to assault on another juvenile. Officer Torres further testified R.I.C.’s detention record also
shows other juveniles reported R.I.C. told them he was going to put them on “bow” which
“essentially means that they pretty much have the kids under their rule.” Juveniles who do not
follow the rules imposed when placed on “bow” face consequences from the juvenile in charge
which can include being assaulted.
When the State asked Officer Torrez if he had an opinion, based on his experience, “as to
whether there would be a likelihood of rehabilitation of [R.I.C.] by use of procedures and facilities
currently available to the juvenile court,” R.I.C.’s attorney objected that Officer Torrez was not
qualified to offer such an opinion. The State responded Officer Torrez was qualified based on his
experience. After the juvenile court gave R.I.C.’s attorney permission to voir dire Officer Torrez
regarding his qualifications, R.I.C.’s attorney asked only one question in response to which Officer
Torrez acknowledged R.I.C. was Officer Torrez’s first and only capital murder case. The juvenile
court then overruled the objection.
“We review a trial court’s rulings on the admissibility of evidence for an abuse of
discretion.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). Rule 702
of the Texas Rules of Evidence permits “[a] witness who is qualified as an expert by knowledge,
skill, experience, training, or education [to] testify in the form of an opinion or otherwise if the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue.” TEX. R. EVID. 702. A party offering an expert witness
“must demonstrate that the witness possess[es] special knowledge as to the very matter on which
he proposes to give an opinion.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718
(Tex. 1998) (internal quotation marks omitted). Rule 701 of the Texas Rules of Evidence permits
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a witness who is not testifying as an expert to testify in the form of an opinion if the opinion is: (1)
rationally based on the witness’s perception; and (2) helpful to determining a fact in issue. TEX.
R. EVID. 701.
Assuming for purposes of this opinion that Officer Torrez was required to be qualified as
an expert to opine on R.I.C.’s susceptibility to rehabilitation, the evidence established Officer
Torrez had been employed by the juvenile probation department for over three years and as a
juvenile probation officer for one and a half years. Based on his experience, the juvenile court
could infer Officer Torrez had observed the behaviors of juveniles in detention and their
progression or lack thereof. Furthermore, the evidence established Officer Torrez met with R.I.C.
weekly following his incarceration and, therefore, had experience with R.I.C.’s behavior and his
reaction to the discipline imposed. Accordingly, we hold the juvenile court did not abuse its
discretion in holding Officer Torrez was qualified to opine on R.I.C.’s susceptibility to
rehabilitation. 1
DECISION TO WAIVE JURISDICTION AND TRANSFER R.I.C. TO CRIMINAL DISTRICT COURT
In his remaining issues, which R.I.C. combines for argument purposes, R.I.C. challenges
the sufficiency of the evidence to support the juvenile court’s findings under Section 54.02(f) and
contends the juvenile court abused its discretion in waiving its jurisdiction.
A. Governing Statutory Provisions
To waive its jurisdiction and transfer R.I.C. to criminal district court for criminal
proceedings, the juvenile court was required to find:
(1) R.I.C. was alleged to have committed a felony;
1
The juvenile court also would not have abused its discretion in admitting Officer Torrez’s opinion as a lay witness
because his opinions were rationally based on his perception from his weekly meetings and interaction with R.I.C.
See TEX. R. EVID. 701.
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(2) R.I.C. was fourteen years old or older at the time he committed the alleged
offense; and
(3) after a full investigation and a hearing, probable cause exists to believe R.I.C.
committed the alleged offense and that because of the seriousness of the alleged
offense or R.I.C.’s background the welfare of the community requires criminal
proceedings.
See TEX. FAM. CODE ANN. § 54.02(a)(1)–(3). In making the determination required by Section
54.02(a)(3), the juvenile court was required 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 the person;
(2) R.I.C.’s sophistication and maturity;
(3) R.I.C.’s record and previous history; and
(4) the prospects of adequate protection of the public and the likelihood of R.I.C.’s
rehabilitation by use of procedures, services, and facilities currently available to the
juvenile court.
See id. § 54.02(f). If a juvenile court waives jurisdiction, “it shall state specifically in the order its
reasons for waiver.” Id. § 54.02(h).
B. Standard of Review
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.” 2 Moon v. State, 451 S.W.3d 28, 47 (Tex.
Crim. App. 2014). “When addressing a legal sufficiency challenge, we credit evidence favorable
to the challenged finding and disregard the contrary evidence unless a reasonable fact finder could
not reject that evidence.” In re R.C., 2019 WL 4044029, at *2. “If more than a scintilla of evidence
2
In his fourth issue, R.I.C. contends the juvenile court and this court are constitutionally required to take into
consideration the three general differences between juveniles and adults identified in Roper v. Simmons, 543 U.S. 551
(2005), when viewing and weighing the factual findings required by Section 54.02(f). R.I.C. does not cite any
authority in his brief to support this contention, and the Texas Court of Criminal Appeals did not adopt any such
requirement in establishing the standard of review appellate courts are required to apply in Moon v. State, 451 S.W.3d
28 (Tex. Crim. App. 2014). Accordingly, we overrule this issue.
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supports the challenged finding, a legal sufficiency challenge fails.” Id. “When addressing a
factual sufficiency challenge, we consider all of the presented evidence to determine whether the
juvenile court’s finding is so against the great weight and preponderance of the evidence as to be
clearly wrong or unjust.” Id. “At a transfer hearing, the juvenile court is the sole judge of
credibility and may choose to believe or disbelieve any or all of the witnesses’ testimony.” In re
S.T., No. 04-18-00133-CV, 2018 WL 5927983, at *3 (Tex. App.—San Antonio Nov. 14, 2018,
pet. denied) (mem. op.). As the factfinder, the juvenile court is also the sole judge of the weight
to be given the witnesses’ testimony, and an appellate court cannot impose its own opinion to the
contrary. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Golden Eagle Archery, Inc.
v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). In our sufficiency review, we must “limit [our]
sufficiency review to the facts that the juvenile court expressly relied upon, as required to be
explicitly set out in the juvenile transfer order.” Moon, 451 S.W.3d at 50.
After reviewing the sufficiency of the evidence to support the juvenile court’s findings, we
then review the juvenile court’s ultimate waiver decision for an abuse of discretion. Id. at 47. A
juvenile court does not abuse its discretion if its decision is not arbitrary but reasonably applies the
legislative factors to the evidence presented. See id. And, the Texas Court of Criminal Appeals
has instructed reviewing courts 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. Instead,
the juvenile court may waive its jurisdiction based “on the strength of any combination of the
criteria” listed in Section 54.02(f). Hidalgo v. State, 983 S.W.2d 746, 754 n.16 (Tex. Crim. App.
1999). A “juvenile court that shows its work should rarely be reversed.” Moon, 451 S.W.3d at
49.
C. The Nature of the Alleged Offense
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As previously noted, the first Section 54.02(f) factor a juvenile court is required to consider
is “whether the alleged offense was against person or property, with greater weight in favor of
transfer given to offenses against the person.” TEX. FAM. CODE ANN. § 54.02(f)(1). The juvenile
court made the following findings regarding this factor:
10. The seriousness of the offense alleged requires criminal proceedings because
according to the testimony of SAPD Detective Mark Duke: the offense alleged is a
capital murder involving a firearm; the offense was against a person; the
complainant was shot multiple times and the Medical Examiner’s office found that
gunshot wound was the cause of death.
The evidence at the hearing established R.I.C. was at a friend’s apartment when Abram
Garcia and his girlfriend arrived in a car outside the apartment intending to sell R.I.C. marijuana.
R.I.C. approached the car, demanded that Garcia give him all of the marijuana in his possession,
and then fired multiple shots. Garcia was shot two times and died as a result. Accordingly, the
evidence supports the juvenile court’s finding that the alleged offense was against a person, and
this factor is given greater weight in favor of transfer. 3
D. R.I.C.’s Sophistication and Maturity
The second Section 54.02 factor a juvenile court is required to consider is “the
sophistication and maturity of the child.” TEX. FAM. CODE ANN. § 54.02(f)(2). The juvenile court
made the following findings regarding these factors:
3
In his brief, R.I.C.’s argument regarding this factor focuses on the impact the admission of hearsay testimony has on
the State’s burden of proof and also alludes to R.I.C.’s right of confrontation. R.I.C. does not cite any authority
holding hearsay testimony is not admissible at a juvenile transfer hearing or that he has a right to confrontation at such
a hearing, and there is authority holding to the contrary. See In re C.E.C., No. 2-06-065-CV, 2006 WL 3627134, at
*2 (Tex. App.—Fort Worth Dec. 14, 2006, no pet.) (mem. op.); In re C.D.T., 98 S.W.3d 280, 283 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied); In re R. G. S., 575 S.W.2d 113, 117 (Tex. Civ. App.—Eastland 1978, writ ref’d
n.r.e.); see also L.M.C. v. State, 861 S.W.2d 541, 542 (Tex. App.—Houston [14th Dist.] 1993, no writ) (rejecting
argument regarding admissibility of hearsay at transfer hearing noting “appellant’s rights will be fully protected when
the case reaches trial, whether it ultimately takes place before the juvenile court or the criminal district court”). We
further note the details of the alleged offense are contained in Officer Torrez’s discretionary transfer hearing report.
See TEX. FAM. CODE ANN. § 54.02(e) (“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.”).
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11. The background of the child requires criminal proceedings because:
A. According to SAPD Detective Mark Duke, Respondent appeared mature and
sophisticated enough to understand what he was doing and seemed like a normal
15-year-old. 4
B. According to Bexar County Juvenile Probation Officer Jeremy Torrez, the
respondent is sophisticated and mature enough to understand the proceedings
against him; the Respondent was able to communicate with Officer Torrez; while
in detention, Respondent was in Safety Based Seclusion four times due to
aggressive and assaultive behavior, he was placed on group restriction
approximately 18 times (mostly for challenging authority), and has placed other
juveniles in detention “on bow” (Respondent has attempted to place other juveniles
under his rule).
C. The testimony of Dr. Heather Holder showed Respondent is sophisticated
and mature enough to survive away from his home for extended periods of time, as
he stayed away from his home a great deal, especially in the 6 months prior to his
detention; respondent has earned money doing painting and construction and set up
a service cutting hair in his home for a brief period of time.
D. According to Dr. John Matthew Fabian, the Respondent is competent to
stand trial. The Respondent was sophisticated and mature enough to be able to earn
incoming [sic] by working construction and cutting hair at home.
Having reviewed the record, we hold the juvenile court’s findings are supported by
evidence presented at the hearing. Although R.I.C. points to Dr. Fabian’s testimony that R.I.C. is
emotionally immature and cognitively lacking in capacity and Dr. Holder’s assessment that R.I.C.
was low to moderate in sophistication and maturity, the juvenile court could have placed greater
weight on the level of sophistication and maturity shown by R.I.C.’s behavior and actions,
including leading a gang, caring for himself after removing his ankle monitor and running away
while on probation, and admitting that he shot Garcia during the course of a drug transaction. See
Moon, 451 S.W.3d at 50 n.87 (citing courts holding sophistication and maturity refers to the
4
Although R.I.C. contends in his brief that the juvenile court sustained an objection to Detective Duke’s testimony,
the record reflects otherwise:
Q. And while you were talking to him, did he appear to be mature and sophisticated enough
to understand what he was doing?
A. Yes. He seemed like a normal 15-year-old.
No objection was made to this testimony.
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question of the juvenile’s culpability and responsibility for his conduct); see also City of Keller,
168 S.W.3d at 819 (noting factfinder is sole judge of weight to be given testimony); Golden Eagle
Archery, Inc., 116 S.W.3d at 761 (same).
In his brief, R.I.C. argues this factor “should always be weighed against the State, unless
the State showed a juvenile premeditation of such a documentable degree that it could overcome
the ‘rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial
personality disorder.’” R.I.C. does not cite any authority to support this argument, and we have
found none.
E. R.I.C.’s Record and Previous History, Prospects of Adequate Protection of the
Public, and Likelihood of Rehabilitation
The third and fourth Section 54.02(f) factors a juvenile court is required to consider are
“the record and previous history of the child” and “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)(3)–(4). The
juvenile court made the following findings regarding these factors:
11. The background of the child requires criminal proceedings because:
***
B. According to Bexar County Juvenile Probation Officer Jeremy Torrez, . . .
Respondent was in Safety Based Seclusion four times due to aggressive and
assaultive behavior, he was placed on group restriction approximately 18 times
(mostly for challenging authority), and has placed other juveniles in detention “on
bow” (Respondent has attempted to place other juveniles under his rule).
***
12. The welfare of the community requires criminal proceedings because:
A. The testimony of Juvenile Probation Office Jeremy Torrez shows that the
prospect of adequate protection of the public and the likelihood of rehabilitation of
the child using procedures, services and facilities currently available to the juvenile
court are minimal because the Respondent has had five referrals to the department,
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although he proceeded to court on only two (Possession of Marijuana from
November 8, 2017 and this Capital Murder). However, he was placed on probation
for the possession charge following an attempt to resolve the matter through a
deferred contract. He was on probation when he removed the GPS monitor himself
and absconded from supervision; Respondent admitted to being part of a gang
(South Side Gunnas) and engaged in gang-like activities; Respondent has been
noncompliant in his education. Based on Officer Torrrez’ past experiences with
the Respondent, Officer Torrez does not believe that the Respondent would make
himself available to services in the juvenile system. The Respondent was involved
with drug abuse and selling drugs. Officer Torrez recommended that Respondent
be transferred to adult criminal court.
B. Dr. Heather Holder’s report showed that the prospect of adequate protection
of the public and the likelihood of rehabilitation of the child using procedures,
services and facilities currently available to the juvenile court are minimal because
the Respondent is gang-involved (Southside Goons/Southside Gunnas) and
associates with “mature” friends who skip school, smoke weed, shoot guns and rob
people. She further states that all of Respondent’s friends have been to juvenile
detention for various crimes including aggravated robbery, concealing a weapon
and drug charges. According to Dr. Holder, Respondent is at high risk for future
violence and committing future crimes. Dr. Holder believes Respondent is at
moderate to high level of risk for future dangerousness because he has low empathy
and remorse for previous actions.
C. Additionally, the prospect of adequate protection of the public and the
likelihood of rehabilitation of the child using procedures, services and facilities
currently available to the juvenile court are shown to be low because Dr. John
Matthew Fabian reported that the “Respondent does not have a lot of self-reflection
or insight...has difficulties with need for immediate gratification...He has problems
with managing his mood and stress and anger...he has noted low frustration
tolerance.” Dr. Fabian also states that Respondent has a number of risk factors and
his risk for future criminality and violence is high (including: high risk teen mom
with mental health diagnoses and dysfunctional relationships with men; a broken
family; chaotic relationships; domestic violence; significant substance abuse;
exposure to drugs, drug dealing and drug paraphernalia; trauma and PTSD; neglect
and CPS involvement; access/exposure to other delinquents, gangs, guns, drugs,
and violence in the streets; poverty and lack of resources, etc.). Dr. Fabian reports
that Respondent started dealing drugs at 14; Respondent has had problems in
school, including truancy and a lack of parental commitment to fostering school.
Respondent has an anger problem, difficulty dealing well with stress, poor coping
skills and has low frustration tolerance.
Having reviewed the record, we hold the juvenile court’s findings are supported by evidence
presented at the hearing. Although R.I.C. focuses on the evidence that only two of his referrals
resulted in adjudications by the juvenile court and evidence that he consistently attended
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counseling while in detention, the juvenile court could have placed greater weight on R.I.C.’s
actions while on probation in removing his GPS monitor and then committing the alleged capital
murder offense. Similarly, although R.I.C. points to the evidence of the abuse and neglect he
experienced in his home environment, the juvenile court could have placed greater weight on
R.I.C.’s disciplinary record while in detention which demonstrated his inability to comply with the
facility’s rules even while consistently attending counseling.
F. Juvenile Court’s Decision to Waive Jurisdiction and Transfer
Based on the foregoing, we hold the evidence is legally and factually sufficient to support
the juvenile court’s findings. Furthermore, because the juvenile court reasonably applied the
legislative factors to the evidence presented, we hold the juvenile court did not abuse its discretion
in granting the State’s petition.5
CONCLUSION
The juvenile court’s order is affirmed.
Sandee Bryan Marion, Chief Justice
5
Even if we accepted R.I.C.’s argument that the juvenile court could not have placed great weight on the finding that
R.I.C. was sophisticated and mature because of Dr. Fabian’s and Dr. Holder’s assessment of R.I.C.’s sophistication
and maturity to be low to moderate, “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.” Moon, 431 S.W.3d at 47. Instead, the juvenile court
may waive its jurisdiction based “on the strength of any combination of the criteria” listed in Section 54.02(f).
Hidalgo, 983 S.W.2d at 754 n.16.
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