In re B.W.K.

IN THE MATTER OF B.W.K., A JUVENILE

No. 11-20-00238-CV

State of Texas in the Eleventh Court of Appeals

April 15, 2021

On Appeal from the Juvenile Court Taylor County, Texas

Trial Court Cause No. 5557-J

MEMORANDUM OPINION

This is an accelerated appeal from an order in which the juvenile court waived its jurisdiction over B.W.K., Appellant, and transferred the cause to a criminal district court. See TEX. FAM. CODE ANN. § 54.02(j) (West 2014), § 56.01(c)(1)(A), (h), (h-1) (West Supp. 2020). In his first two issues on appeal, Appellant asserts that the evidence was legally and factually insufficient to support the juvenile court's finding that, despite the State's use of due diligence, it was not practicable to proceed in juvenile court before Appellant's eighteenth birthday because the State did not have probable cause to proceed in juvenile court at that time and because new evidence has been found since Appellant's eighteenth birthday. See id. § 54.02(j)(4)(B)(i). In his third issue, Appellant asserts that the juvenile court's decision was arbitrary and constituted an abuse of discretion. We affirm.

I. Factual Background

The State alleges that Appellant committed the offenses of aggravated sexual assault of a child and indecency with a child by contact in 2013 when Appellant was fifteen years old. See TEX. PENAL CODE ANN. §§ 22.021, 21.11 (West 2019). Because Appellant was fifteen years old when the offenses were allegedly committed, this proceeding was filed in juvenile court. However, because Appellant was no longer a juvenile at the time this proceeding was filed, the State filed a petition for discretionary transfer to a criminal district court. The State alleged in its petition that, despite the State's due diligence, it was not practicable to proceed in juvenile court before Appellant's eighteenth birthday because the State did not have probable cause to proceed in juvenile court at that time and because new evidence had been discovered after Appellant's eighteenth birthday.

The juvenile court held a hearing on the State's petition for discretionary transfer. Testimony presented at the hearing revealed that the first allegation against Appellant arose in 2011, when the victim, D.M., was four years old. D.M.'s mother overheard him talking in his sleep; D.M. said in his sleep: "[Appellant], no, don't touch my butt, that hurts." The second allegation occurred in 2013, when D.M. was six years old and was undergoing a psychiatric evaluation at a behavioral health facility in Abilene. The notes from the facility indicated that D.M. had informed his case manager at the facility of "possible sexual abuse" by D.M.'s uncle (Appellant is D.M.'s uncle) and that the case manager had made a "CPS report." D.M.'s mother, after talking to the case manager, informed the police that D.M. had made an outcry to the psychiatrist and the case manager "in reference to [Appellant] pulling his private parts out and grabbing [D.M.'s] hand and placing it on his penis to jack him off." According to the mother's report to the police, D.M. had "outcried to [thedoctor] that the uncle then was trying to get [D.M.] to give him oral sex but [D.M.'s] father walked into the room interrupting them." Although the police investigated the 2011 and 2013 allegations, D.M. made no outcry of sexual abuse during his forensic interviews that were conducted as a result of those allegations.

Subsequently, in 2018, D.M. wrote a letter to his mother. This letter precipitated another report to the police. In the letter, D.M. stated that Appellant "used to force [D.M.] to suck on his private as much as [D.M. could], so he took out his private and made [D.M.] suck it [while] he was playing on his game and used to push [D.M.'s] head down on it." In his 2018 forensic interview, D.M. "gave a good outcry of sexual abuse" against Appellant. Appellant was subsequently interviewed by Detective John Wilson about the allegations made by D.M. Appellant admitted during this interview that, on two or three occasions, Appellant had put D.M.'s hand on Appellant's penis, "masturbating him," and that D.M. had performed oral sex on Appellant one time when Appellant was fifteen years old.

II. Applicable Statute

After filing the case against Appellant in juvenile court, the State later moved for transfer pursuant to Section 54.02(j) of the Family Code. Section 54.02(j) sets out the requirements for the discretionary transfer of a person who was a juvenile at the time of the alleged offense but has since turned eighteen prior to being adjudicated as a juvenile. See In re N.J.A., 997 S.W.2d 554, 556-57 (Tex. 1999) (holding that, if the person is over age eighteen and if the criteria of Section 54.02(j) are not satisfied, the juvenile court's only option is to dismiss the case¹). To transfer the case to a criminal district court after a person's eighteenth birthday, the juvenilecourt must find, by a preponderance of the evidence, that the State has satisfied the requirements of Section 54.02(j), which provides essentially that the delay in proceeding to adjudication occurred because of reasons outside the control of the State. Moore v. State, 446 S.W.3d 47, 52 (Tex. App.—Houston [1st Dist.] 2014), aff'd, 532 S.W.3d 400 (Tex. Crim. App. 2017). Section 54.02(j) provides in relevant part that a juvenile court may waive its jurisdiction and transfer a person to a district court for criminal proceedings if:

(1) the person is 18 years of age or older;

(2) the person was:

. . . .

(B) 14 years of age or older and under 17 years of age at the time the person is alleged to have committed an aggravated controlled substance felony or a felony of the first degree other than an offense under Section 19.02, Penal Code; or

(C) 15 years of age or older and under 17 years of age at the time the person is alleged to have committed a felony of the second or third degree or a state jail felony;

(3) no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted;

(4) the juvenile court finds from a preponderance of the evidence that:

. . . .

(B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:

(i) the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person;

. . . . and(5) the juvenile court determines that there is probable cause to believe that the [person] before the court committed the offense alleged.

FAM. § 54.02(j). Here, the juvenile court made the requisite findings under Section 54.02(j).

III. Standard of Review

In an appeal from an order in which a juvenile court waives its jurisdiction and enters a discretionary transfer order, an appellate court applies an abuse-of-discretion standard of review to the juvenile court's decision to transfer.² In re S.G.R., 496 S.W.3d 235, 239 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Bleys v. State, 319 S.W.3d 857, 861 (Tex. App.—San Antonio 2010, no pet.); State v. Lopez, 196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet. ref'd); Faisst v. State, 105 S.W.3d 8, 12 (Tex. App.—Tyler 2003, no pet.). Absent an abuse of discretion, an appellate court will not disturb a juvenile court's transfer and certification order. Bleys, 319 S.W.3d at 861; Faisst, 105 S.W.3d at 12. On appeal, the reviewing court considers the sufficiency of the evidence when addressing whether the juvenile court abused its discretion by entering a transfer order. Bleys, 319 S.W.3d at 861; Faisst, 105 S.W.3d at 12. A trial court's findings of fact are reviewed by the generally applicable standards of review for legal and factual sufficiency. Bleys, 319 S.W.3d at 861; Faisst, 105 S.W.3d at 12.

Here, Appellant challenges both the legal and factual sufficiency of the evidence. To review the legal sufficiency of the evidence in support of a trial court's finding, we review the record—crediting evidence favorable to the finding and disregarding contrary evidence unless a reasonable factfinder could not reject theevidence—and will uphold the finding if it is supported by more than a scintilla of evidence. In re J.G., 495 S.W.3d 354, 370 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); see City of Keller v. Wilson, 168 S.W.3d 802, 813, 827 (Tex. 2005). To review the factual sufficiency of the evidence in support of a trial court's finding, we consider and weigh all the evidence in a neutral light and will set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); J.G., 495 S.W.3d at 370. Because the judge of the juvenile court acted as the factfinder during the hearing, it was the juvenile court's role to decide what inferences to draw from the testimony, what weight specific testimony deserved, and which witnesses were credible. See City of Keller, 168 S.W.3d at 819.

IV. Analysis

A. Sufficiency of the Evidence

The only finding challenged by Appellant on appeal is the finding made pursuant to Section 54.02(j)(4)(B)(i). Appellant challenges the factual sufficiency of the evidence in his first issue on appeal and the legal sufficiency of the evidence in his second issue.

Section 54.02(j)(4)(B)(i) requires the State to exercise due diligence in proceeding in juvenile court—a term that suggests the investigation must be reasonable given the information that was gathered during the investigation. See Collins v. State, 516 S.W.3d 504, 525 (Tex. App.—Beaumont 2017, pet. denied). The Texas Family Code does not define due diligence as it is used in Section 54.02. However, due diligence in this context has been defined by our sister courts as requiring the State to "move ahead" or to "reasonably explain delays." In re B.R.H., 426 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding) (quoting In re N.M.P., 969...