In re A.K.

IN THE MATTER OF A.K.

No. 02-19-00385-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

April 2, 2020

On Appeal from the 323rd District Court Tarrant County, Texas

Trial Court No. 323-107606-18

Before Birdwell, Bassel, and Wallach, JJ.

Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

Appellant A.K. appeals the juvenile court's order waiving its jurisdiction and ordering him transferred to an appropriate district court or criminal district court (criminal court) to be prosecuted as an adult for capital murder and aggravated robbery. In three points, Appellant contends that (1) the transfer to a criminal court violated the constitutional provision against cruel and unusual punishment and that Family Code Section 54.02(c) is unconstitutional because it (2) violates the federal and state prohibitions against cruel and unusual punishment and the Fourteenth Amendment's Due Process Clause and (3) denies him the right to a jury determination of a fact issue affecting the upper limits of a possible sentence. Within his first point, Appellant complains that the transfer order was not based on factually sufficient evidence because nothing in the order shows that the juvenile court considered the fact that he is intellectually disabled. Because we hold that the evidence is factually insufficient to support the juvenile court's finding that A.K. is sufficiently sophisticated and mature to be tried as an adult and therefore, in turn, the evidence is factually insufficient to support the juvenile court's determination that A.K.'s background justifies the transfer, we reverse the juvenile court's transfer order and remand this case to that court for further proceedings.

I. Factual and Procedural Background

The evidence presented at the transfer hearing included (1) a prediagnostic evaluation with the report of Appellant's latest psychological evaluation attached; (2) his police interview; (3) photographs depicting the crime scene, other evidence of the crime, and the decedent's family; and (4) testimony of Appellant's probation officer and the Fort Worth Police Department detective in charge of the investigation.

Appellant was a fourteen-year-old seventh-grader when the offenses occurred. Despite his youth, Appellant, an alleged member of the 300 Mafia Crips gang, had already had several legal scrapes. He was on juvenile probation for burglary after having had three prior referrals to the juvenile court. After being on probation for burglary for less than a month, he received another referral for criminal trespass and was suspended from school for marijuana possession. On May 18, 2018, the day of his scheduled detention hearing for those two new referrals, Appellant did not appear at the 10:30 a.m. hearing.

A woman was killed by a gunshot to the head around noon that day in a west Fort Worth apartment complex. A nine-millimeter shell casing found by the woman's body had an "RP" headstamp. Viewing a nearby store's surveillance footage, cohorts identified Appellant and another boy as the two teenagers filmed running from that apartment complex that day.

On the night of May 18, 2018, police detained Appellant and three other young men for unrelated gang activity. Appellant carried a loaded magazine of Winchester nine-millimeter shells. The adult male in the group carried a loaded nine-millimeter gun that ballistics later showed fired the casing found by the woman's body. The gun's magazine contained shells with RP headstamps. The man told police the gun was Appellant's. The police learned that Appellant had tried to sell that gun after the murder.

Appellant admitted to the police that he had kicked in the woman's apartment door and had taken her phone, but he denied shooting her and claimed that he was outside the apartment when he heard gunshots inside. His accomplice told the police that Appellant brought the gun, kicked in the door, demanded items from the woman, including her phone, and shot her even after she had given him her phone. Police arrested Appellant two days after the murder, and he remained in custody at the juvenile detention center from the day of his arrest until his transfer hearing almost seventeen months later. Another youth confined in the detention center with Appellant reported that Appellant bragged about shooting the woman and showed no remorse for the murder.

The State filed its petition for discretionary transfer to a criminal court soon after Appellant's arrest. Appellant's latest psychological evaluation was completed in August 2019. It referred to his previously diagnosed ADD/ADHD disorder as well as his documented "physical or mental impairment" that "affected one or more major life activities," including communication, concentration, learning, and thinking. In the evaluation, Appellant was given the Kaufman Brief Intelligence Test. His composite IQ was 68. On the Wide Range Achievement Test, he performed under a second-grade level. The psychologist noted in the evaluation that he did not try to answer any questions that he thought were too hard. She opined, "Subsequently, his intellectual and academic functioning appear to be an underestimate of his ability." The psychologist concluded that he would benefit from juvenile services "such as a high level of structure and supervision." However, she also found that he was not mentally retarded, understood the legal implications of a discretionary transfer motion, and could assist his lawyer.

In the hearing, the probation officer spoke of Appellant's background. Before Appellant was involved with the juvenile department, he had lived at All Church Home for a time and had also been in foster care. While he was in foster care, he received counseling for behavioral issues at school. He also received an MHMR evaluation in which he was diagnosed with disruptive behavior disorder and ADHD. He was prescribed medication and had taken it "maybe a year or so." However, Appellant had not been on medication since the probation officer had been working with him despite the absence of evidence that he was "taken off of it." Also, the probation officer was not sure whether Appellant was receiving the accommodations in the detention center that his 504 plan¹ would have required in a normal school setting.

The probation officer also testified that Appellant had behavioral issues at school in the 2017-18 school year, resulting in "manifestation determination"² meetings to determine whether his misbehavior resulted from his diagnosed disorders or his choices. The probation officer testified that the school records indicated that Appellant's behavior was more of a choice than a sign of his disability. In that single school year, he held a female classmate in a headlock and pushed her; hit another female student in what he characterized as "a playful way"; brought an air pistol to school; threatened a teacher; and made gang signs toward her.

The probation officer additionally testified about Appellant's time in detention. Even though he was on Level One—the best level—at the time of the hearing, for months at a time, and for a majority of the time, he had been written up during his first several months for making gang signs, not following instructions, not doing his school work, threatening staff members, being disruptive and disrespectful, and fighting. Nevertheless, his probation officer testified that for the most part, Appellant tried to follow the rules and tried to stay on Level One.

Appellant did not testify at the transfer hearing and his counsel did not call any witnesses. However, his counsel did cross-examine the State's witnesses. Regarding Appellant's not attempting to answer certain questions of the tests evaluating his intellectual ability, the probation officer testified that it "would seem logical[] that someone who struggles academically would be hesitant to try something [he does not] fully understand" because of risks of embarrassment or getting teased and that Appellant's refusal to try to answer the questions did not necessarily indicate misbehavior. The probation officer also admitted that a fourteen- or fifteen-year-old child who acts more like an eleven- or twelve-year-old child could be a child who struggles with interpreting social cues. The probation officer further testified that in his experience, "the adult system is not as equipped to deal with juveniles in the same way [as the juvenile system] because [the adult system] would treat everyone on the same level." The probation officer believed "that the juvenile system would be more successful in rehabilitating [Appellant] at this stage than sending him to the adult system."

The juvenile court decided to waive its jurisdiction and transfer the case to a criminal court, explaining its reasoning from the bench:

So the Court having reviewed the complete diagnostic study, the social evaluation and full investigation of the child and circumstances of the child and circumstances of the offense ha[s] come to a conclusion. The Court in coming to this conclusion, having heard the competent evidence provided to the Court, is considering various factors. The Court is considering whether this offense was against a person or property. The Court is considering the sophistication and the maturity of the child. The Court is considering the record and previous history of the child, and the Court is also considering the protection of the public and the likelihood of rehabilitation of the child within the juvenile system.

Court finds that the child was 14 years old at the time of the offense, a first-degree felony and capital offense, that there has not been an adjudication hearing yet, and that after a full investigation hearing, the juvenile court will find probable cause that the offense of capital murder and . . . aggravated robbery has occurred and because of the seriousness of the offense as well as the background of the child, the welfare of the community requires criminal

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