In re A.E.B.

IN THE MATTER OF A.E.B.

NO. 01-19-00517-CV

Court of Appeals For The First District of Texas

July 13, 2021

On Appeal from the 314th District Court Harris County, Texas

Trial Court Case No. 2017-01822J

MEMORANDUM OPINION

Appellant, A.E.B., challenges the juvenile court's Dispositional Order to Transfer to the Institutional Division of the Texas Department of Criminal Justice, entered after a release-or-transfer hearing, which transferred appellant from the Texas Juvenile Justice Department ("TJJD") to the Texas Department of Criminal Justice-Correctional Institutions Division ("TDCJ-CID") for the remainder of his determinate sentence¹ of commitment for ten years. In three issues, appellant contends that the juvenile court exceeded its authority and jurisdiction in transferring appellant to the TDCJ-CID, appellant's constitutional rights to due process and due course of law² were violated when he did not receive sufficient notice of the release-or-transfer hearing, and that the juvenile court erred in ordering appellant transferred to the TDCJ-CID.

We affirm.

Background

In March 2017, the State filed its determinate-sentence petition in the juvenile court seeking to adjudicate appellant delinquent and alleging that on or about February 27, 2017, appellant engaged in delinquent conduct. Specifically, appellant "unlawfully, while in the course of committing theft of property owned by [the complainant] and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] [the complainant] in fear of imminent bodily injury and death," and appellant "use[d] and exhibit[ed] a deadlyweapon, to wit: a firearm."³ (Emphasis omitted.) A Harris County grand jury approved and certified the State's determinate-sentence petition.⁴

A. Plea and Sentence

On January 29, 2019, appellant, with an agreed punishment recommendation from the State, pleaded true to having engaged in delinquent conduct by committing the offense of aggravated robbery. Specifically, in the Stipulation of Evidence, which appellant signed, appellant agreed that he had been "served with a summons and petition on th[e] case" and that on or about February 27, 2017, in Harris County, Texas, appellant "did then and there unlawfully, while in the course of committing theft of property owned by [the complainant] and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place [the complainant] in fear of imminent bodily injury and death, and [appellant] did then and there use and exhibit a deadly weapon, to wit: a firearm."⁵ (Emphasis omitted.) For the purposes of the affirmative deadly-weapon finding, appellant stipulated thathe "used a deadly weapon, namely, a firearm." And appellant accepted and agreed to the State's punishment recommendation of ten years' commitment "in the [TJJD] with a possible transfer to the [TDCJ-CID] or the [TDCJ-Pardons and Paroles Division ("TDCJ-PD")].⁶ In connection with the plea agreement, the State non-suited a separate petition filed in the juvenile court, arising from the same conduct, which also sought to adjudicate appellant delinquent and alleged that appellant engaged in delinquent conduct by committing the offense of criminal trespass.⁷

In accordance with the plea agreement, the juvenile court signed the Determinate Sentencing Judgment and Order of Commitment, imposing a determinate sentence of commitment for ten years against appellant. Because the delinquent conduct that appellant stipulated he had committed constituted a first-degree felony offense under the Texas Penal Code,⁸ the juvenile court assessed against appellant a minimum period of confinement in the TJJD of three years.⁹ Appellant received credit for "307 days in detention" before he was committed tothe TJJD, making March 28, 2020 the end date for his minimum period of confinement in the TJJD.

B. TJJD Referral for Release-or-Transfer Hearing

On April 2, 2019, the TJJD sent a written referral to the juvenile court notifying the court that appellant had been assessed a determinate sentence of ten years' commitment and he would "not complete his statutory minimum period of confinement of three years [in the TJJD] . . . by the time of his 19th birthday" in June 2019. Thus, the TJJD requested that a hearing be set "no later than [sixty] days" from the date the juvenile court received the referral "to determine whether [appellant] w[ould] be transferred to [the TDCJ-CID] or released to [the TDCJ-PD]."¹⁰ The TJJD acknowledged that because appellant had not completed his minimum period of confinement, it could not release appellant without the approval of the juvenile court. And the TJJD asked the juvenile court to have a bench warrant issued for appellant's return to the juvenile court for a release-or-transfer hearing.

The juvenile court issued a bench warrant to return appellant to Harris County on May 1, 2019, and again on June 5, 2019.

C. Release-or-Transfer Hearing¹¹

On June 10, 2019, the juvenile court held a release-or-transfer hearing with appellant present and represented by counsel. Appellant's aunt also attended the hearing. At the start of the hearing, appellant's counsel announced that he and appellant were "ready."

At the hearing, the complainant testified about the 2017 aggravated robbery committed by appellant. She stated that she and her family were in the parking lot of a grocery store. Their truck was stopped near a Water Mill Express, a purified water vending machine near the grocery store. As her husband filled jugs with water, the complainant waited in the driver's seat of the truck. Her three-year-old and ten-month-old daughters were in their car seats in the backseat.

The complainant briefly turned around to talk to her daughters. When she turned back to face the front of the truck again, she saw appellant holding her husband "at gunpoint." She then noticed that appellant was beside the driver's side door of the truck pointing a firearm at her. Appellant told her "to give him everything that [she] had." The complainant gave appellant her cellular telephoneand her wallet with her "credit card, cash[,] and ID." Then appellant ordered her to "[g]et off the truck," while continuing to point the firearm at her. (Internal quotations omitted.) The complainant told him, "No. My girls are in the backseat." (Internal quotations omitted.) Appellant looked back and saw the complainant's daughters and said, "I'm not playing. Get [out of] the truck. Hurry up and get them [out]." (Internal quotations omitted.) At that point, the complainant was scared for her daughters. She stepped out of the truck and "opened the back door." She could not reach her three-year-old daughter, who was on the other side of the truck and "couldn't get [her] out of her car seat." Meanwhile, appellant was "still pointing the gun at [her] telling [her] to hurry up." The complainant "unbuckled the baby out of the car seat," but she would not let go of the seat "because [she] didn't want them to take off with the truck with her three-year-old [daughter] inside."

The complainant's husband, who was still being held "at gunpoint" by the other teenager who was present, reached for the three-year-old daughter, but "it was hard to unbuckle her because she was in a panic." While appellant and the other teenager continued to hold the complainant and her husband "at gunpoint," the complainant and her husband were "able to get the girls out [of the truck]." Appellant and the other teenager then fled in the truck.

A little later, the complainant and her husband drove around the area to see if appellant had abandoned the truck nearby. They "heard gunshots and then [they]saw an ambulance . . . ." They followed the ambulance, which stopped near a Wing Stop restaurant by the highway. They got out of their car and asked some of the bystanders "what [had] happened." The complainant and her husband learned that a woman had been shot and that someone in "a dark [J]eep [truck] shot at a vehicle." They were able to confirm that the truck belonged to the complainant because the bystanders "had part of the license plate number."

When asked about the aggravated robbery's effect on her, the complainant responded that she is "still scared." She does not "go out by [her]self with [her] girls." Her three-year-old daughter "still remembers" the aggravated robbery and is scared, too. When they pass by the grocery store where the aggravated robbery happened, her daughter says, "Mom, look. That's where they took our truck." (Internal quotations omitted.)

The complainant acknowledged that she was aware that appellant [had] received a "[ten]-year sentence" for the aggravated robbery offense. When asked how she felt about the possibility of him "being paroled before . . . serv[ing] three years" of that sentence, she said that she "fe[lt] confused." She and her daughters "can't even get past that stage and [appellant]'s being released."

The juvenile court admitted into evidence a copy of the Houston Police Department's offense report for the aggravated robbery and the related investigation. Included in the report is the complainant's witness statement taken near the time ofthe aggravated robbery, which was consistent with her testimony at the release-or-transfer hearing. The offense report also states that the complainant's stolen truck "was used [i]n a murder" involving appellant and three other suspects.

The juvenile court also admitted into evidence a copy of the TJJD's master file relating to appellant's behavior during his time in TJJD custody, and a copy of a summary report about appellant's behavior since his commitment to the TJJD. Among other things, the TJJD's master file shows that during a November 2018 psychological evaluation, appellant told the evaluator that his criminal history started when, at about nine years old, "he began stealing BB guns from the store." He did this five or six times and "got caught every...