In re W.C.R.

1

IN THE MATTER OF W.C.R.

No. 13-23-00294-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 3, 2023

On appeal from the County Court at Law of Gillespie County Texas.

Before Justices Tijerina, Silva, and Peña

MEMORANDUM OPINION

CLARISSA SILVA, JUSTICE

Appellant W.C.R.^[1] appeals from the juvenile court's order waiving jurisdiction and transferring appellant to district court.^[2] See Tex. Fam. Code Ann. § 54.02. By two issues appellant argues that the juvenile court lacked jurisdiction over appellant because appellant was not a child at the time juvenile proceeding were initiated; and there was no probable cause to believe appellant committed two of the three offenses alleged; therefore, transfer under § 54.02(j) was inappropriate. See id. We affirm.

I. Background

On January 9, 2023, the State filed a petition with the juvenile court seeking to transfer nineteen-year-old appellant to district court to stand trial for one count of indecency with a child by contact and two counts of aggravated sexual assault of a child. See Tex. Penal Code Ann. §§ 21.11, 22.021. A hearing was conducted on the State's petition during which the following evidence was adduced.^[3]

On October 7, 2022, Cynthia Reyes called the Kerrville Police Department to report the contents of a note that eleven-year-old N.R. had passed her daughter during school. In the note, N.R. threated to commit suicide, alleging he had been molested by his cousin, appellant, five years prior. Police contacted N.R.'s parents. During a discussion with officers, N.R.'s parents recalled an incident occurring approximately five years prior that N.R.'s older brother, E.R., had relayed involving appellant. Appellant purportedly showed E.R. and N.R. his genitals and asked to see theirs when the children were at the family's ranch in Mountain Home, Gillespie County. N.R.'s parents stated that E.R.'s disclosure prompted them to have a discussion with their children about "inappropriate touching," but at the time, no allegations of sexual assault arose. N.R.'s parents were cooperative with the investigation and transported N.R. to be interviewed at the Kid's Advocacy Place (KAP).

N.R. told the KAP interviewer he was sexually abused when he was in the second grade by appellant and, separately, by appellant's sister. N.R. stated that the incident with appellant occurred in appellant's black Jeep outside the family's Mountain Home ranch. Appellant reportedly put N.R. in the back seat, crawled beside him, and exposed himself to N.R. Appellant then made N.R. "suck on [appellant's] privates." N.R. described the appearance of appellant's genitals and stated he "gag[ged]" when appellant's penis hit the back of his throat. Appellant thereafter made N.R. strip down and kneel over the backseat while appellant inserted his penis in between N.R.'s buttocks. N.R.'s KAP interview confirmed the location of the alleged sexual assault, and the case was transferred to Gillespie County on October 10, 2022.

Gillespie County Sheriff's Deputy Investigator Sergeant James Ahrens testified that he met with appellant on November 2, 2022. During the interview, appellant confessed to a single incident involving N.R. occurring at the family's Gillespie County ranch three years prior in 2019, when he was sixteen and N.R. was eight. Appellant stated that he and N.R. had been looking at pictures of girls on his phone when N.R. asked appellant if he could touch appellant's genitals, which appellant allowed because appellant was "drunk." Following appellant's confession, Sergeant Ahrens referred the case to the State on a single indecency charge on November 16, 2022. On cross examination, Sergeant Ahrens was questioned as to why he had elected not to include charges of sexual assault, which he responded that he "d[id no]t have enough proof for sexual assault."

The juvenile court waived its jurisdiction and certified appellant to stand trial in district court by written order on May 10, 2023. The juvenile court supported its order with findings of fact and conclusions of law, including:

• N.R. is a credible complainant and "under fourteen (14) years of age at the time of the alleged acts of sexual abuse in the State's Original Petition[.]"

• Appellant was over the age of eighteen at the time of the State's filing of its petition, and it had not been practicable to proceed in juvenile court before appellant's eighteenth birthday because N.R. "had not disclosed or revealed or told anyone or made any allegations concerning any acts of alleged sexual assault against [him] by [appellant]," prior to appellant's eighteenth birthday.

• Appellant is "sophisticated and mature to a degree to understand the nature of these proceedings[.]"

• "[N]o adjudication concerning the alleged offenses have been made or no adjudication hearing concerning the offenses have been conducted[.]"

• Probable cause exists to find that appellant committed the first-degree offense of aggravated sexual assault and the second-degree offense of indecency with a child against N.R. on or about October 1, 2019, as alleged in Counts 1, 2, and 3.

• "[B]ased upon a consideration of all of the evidence before the court, discretionary transfer of jurisdiction to [district] court is granted with respect to [Counts 1, 2, and 3] in the State's Original Petition because the juvenile system does not have the practical ability to offer any services to the Respondent due to his age, without transfer a serious crime could potentially go unpunished, without transfer the alleged victim would be denied justice, and the seriousness of the offense merits transfer of jurisdiction[.]"

This accelerated appeal followed.

II. Due Diligence

By his first issue, appellant challenges the juvenile court's jurisdiction because "appellant was nineteen years old when the State filed its Original Petition to Transfer."

A juvenile court has exclusive original jurisdiction over all proceedings involving the "delinquent conduct" of a person who was a child at the time they engaged in the conduct. Tex. Fam. Code Ann. § 51.04(a). A person accused of committing a felony offense between his tenth and seventeenth birthday is subject to the exclusive original jurisdiction of a juvenile court. Id. §§ 51.04(a); 51.02(2)(A) (defining "child" as a person who is "ten years of age or older and under 17 years of age"). A juvenile court does not lose jurisdiction when a juvenile turns eighteen, however, its jurisdiction becomes limited. Moore v. State, 532 S.W.3d 400, 404 (Tex. Crim. App. 2017).

Specifically, § 54.02(j) provides the procedural vehicle for a juvenile court to waive its exclusive original jurisdiction and transfer a person to the appropriate district court or criminal district court for criminal proceedings where the accused is over eighteen years of age at the time of the State's filing. Id. Waiver and transfer may occur where the following criteria are met:

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

(2) the person was . . . 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 . . . [or] 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 . . . 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;

(5) the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged.

Tex. Fam. Code Ann. § 54.02(j); Ex parte Thomas, 623 S.W.3d 370, 377-78 (Tex. Crim. App. 2021) ("But if the person who is alleged to have committed a felony as a child has reached his eighteenth birthday, the juvenile court must make the transfer under [§] 54.02(j)."). Section § 54.02(j) "does not impose an arbitrary deadline for prosecutorial action." Moore, 532 S.W.3d at 404. Rather, it sets forth the criteria necessary for a juvenile court to waive its jurisdiction and transfer a person who is eighteen years of age or older to a district court. Id. "[I]f the person is over the age of [eighteen], and [§] 54.02(j)'s criteria are not satisfied, the juvenile court's only option is to dismiss the case." Id. at 405.

To appellant's first issue, we disagree that the fact that appellant was over eighteen at the time the State filed its petition creates an automatically jurisdictionally prohibitive circumstance. See Moore, 532 S.W.3d at 404. Pursuant to § 54.02(j), because appellant was over eighteen, the appropriate inquiry is whether the State was diligent in moving forward with its prosecution of appellant's case and able to reasonably explain delays if any.^[4] See In re J.C.W.G., 613 S.W.3d 560, 566 (Tex. App.-San Antonio 2020, no pet.); 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) ("To transfer the case to a criminal district court after a person's eighteenth birthday, the juvenile court must find, by a preponderance of the evidence, that the State has satisfied the [§] 54.02(j) requirements-that the delay happened for reasons outside the control of the State."). Diligence is usually a question of fact, and we review the juvenile court's findings for an abuse of...