Moon, Cameron

prong final of intellectual the third and lish MOON, Appellant during develop- disability onset Cameron —its failed to applicant If has period.

mental v. disabled, intellectually he prove that he is he was intellec- clearly prove did not Texas The STATE of age approxi- before tually disabled we For these reasons mately eighteen. No. PD-1215-13 deny Atkins claim and reject applicant’s Appeals of Texas. Court Criminal subsequent application for

relief on his corpus. habeas writ of December DELIVERED: PRICE, J., I IIA and joined Parts concurring opinion.

filed a OPINION

CONCURRING PRICE, J., concurring opinion. filed

I I and IIA of the join Parts Court’s today and otherwise concur opinion join pres- Part IIB. For result. I do not say I ent suffice it to contin- purposes, disagree decidedly with the Court’s ue to non-diagnostic approach evaluating of the standard for

adaptive-deficits prong determining disability intellectual vel non.1 Particularly opinion after the recent in Hall v. Supreme

United States Court Florida,21 think that the writing should viability

on the wall for the future of Ex Briseno,3 parte view, Peggy Tobolowsky, my approach determining M. Path Texas’s 1. See Different Capital Taken: Texas Post-Atkins prong, adaptive-deficits prong, second Offenders' Retardation, Hastings Claims Mental unconstitutionally over-inclusive—insufficient L.Q. 1, 123-25, (Fall 2011) ly diagnostic Const. tied to the clinical criteria and (discussing quoting extensively my from non-scientific, open impressionistic all too dissenting unpublished opinion in v. Lizcano Eighth considerations to withstand Amend AP-75,879, State, (Tex. No. 2010 WL 1817772 scrutiny. Tobolowsky, ment 39 Hast. Const. 5, 2010) (not desig Crim.App. May delivered L.Q. (citing quoting from at 163-66 publication)). nated for 2010 WL at *32-40 Lizcano (Price, J., dissenting)). - U.S. -, 188 L.Ed.2d S.Ct. (2014). approach Hall found Florida's (Tex.Crim.App.2004). 3. 135 S.W.3d 1 See determining prong first standard L.Q. Tobolowsky, 39 Hast. Const. at 173 significantly- disability, for intellectual ("[T]he leading remain a can- Briseno factors subaverage-general-intellectual-functioning [Supreme] scrutiny.”). prong, unconstitutionally didate for Court to be narrow. In Irons, LLP, Houston, TX,

Cousins & AT- TORNEYS FOR APPELLANT. McCrory, Dan Assistant District Attor- Houston, TX, McMinn, ney, Lisa C. State’s Austin, Attorney, ATTORNEY FOR THE STATE.

OPINION

Price, J., opinion delivered the Womack, Johnson, Keasler, Court which JJ., Acala, joined. Cochran and granted petition We the State’s for dis- in cretionary review this case order to questions address several related to the review of a court’s waiv- jurisdiction er its otherwise-exclusive person alleged over a to have committed What, age murder at the of sixteen. ex- actly, the appellate appropriate reviewing role in the adequacy juve- of the statutorily required nile court’s written or- transferring der the child to a criminal court for prosecution district as an adult? Ultimately, we hold that the court ap- peals appropriate conducted an review of order, court’s transfer and we judgment. affirm its I. AND FACTS PROCEDURAL POSTURE A. Motion to State’s Waive Jurisdiction and Trial 19, 2008, On November the State filed a petition in the 313th Juvenile Court County alleging appellant Harris engaged delinquent conduct commit- an ting knowing intentional or murder. date, On the same the State also filed a motion for the court to waive its ap- exclusive and transfer the pellant prose- to criminal court for district Law, adult, Carnegie, Attorney Jack G. alleging grounds cution as an as Houston, TX, Adler, Bellaire, TX, David the transfer because of the serious- Dobbs, Hagan, John alleged, ensuring Jackson Gilmour & ness of the offense PC, Wood, Coe, Thompson, community required Christine welfare of the waiver Division, of the findings which listed the jurisdiction. any hearing physical psycho- for a request appellant’s the State’s

granted —but and, to Section pursuant logical or behavioral—examination. on the motion 54.02(d) Justice Juvenile Code testi- part, appellant elicited For his Code,1 ordered Family Texas fami- mony from seven witnesses. Various Probation Officer obtain Chief Juvenile members, friends, acquaintances and ly study, social evalua- diagnostic complete specifically and generally testified both tion, investigation appel- full and appellant’s disadvantaged up- about the circumstances of background and lant’s life, family positive fractured and bringing, alleged offenses.2 politeness and personal qualities, including Men- the Mental Health and also ordered ac- pliability supervision. to adult Various Authority of Harris Coun- Retardation tal juvenile-justice system tes- tors within and file its an examination ty to conduct specifically about generally tified both report. within, conduct appellant’s constructive single called a hearing, the State At the juve- positive progression through, Detective Jason Mere- testify: witness characterizing him as nile-justice system, dith, who Deer Park Police officer through come “one of the best kids [to] inter- the crime scene and investigated intelligence far as his obedience and suspects, in- potential a number of viewed facility.” way he carries himself testimo- appellant. the Meredith’s cluding appellant The also introduced into evi- took the form of ny on direct examination dence, things, psy- forensic among other account of his investi- non-chronological a Dr. Seth W. Silverman’s detailed chiatrist murder, up including to and gation of the thorough and appellant. At the interrogation of the his as to whether fa- [the] recommendation objection testimony, over no end of his currently available to the cilities the State introduced appellant, from the provide adequate protection court will (1) a following the documents: ... public, and the likelihood appellant’s report revealing offense respondent will be rehabilitated Referral” for “MISCHIEF- “Previous the court decide to use the facili- should $500/$1499.99,”which, subsequent testimo- to the court as ties available show, appel- resulted from the ny would sophistication, maturity, well as the and of another student’s alleged “keying” lant’s aggressiveness appellant]. [of (2) vehicle; Probation Certifi- a “Juvenile opinion It was Dr. Silverman’s ultimate positive and Report” detailing cation behaviors, “dependent, easily a appellant, well as the academic that the as negative “thought pro- he un- influenced individual” whose history, appellant while was (a sophistication” characteristic juvenile-justice cess lacks der the observation (8) of imma- “Physician’s Medical Silverman considered “indicative system; and from turity”) probably “would benefit prepared Harris Assessment” in a environment placement therapeutic Health Services County Juvenile Probation Response to the State's Brief on Discre- Justice Code lant’s title Juvenile 1. Tex. Fam.Code Code”). (hereinafter, "the Juvenile Justice tionary appellant Review at 1. But the did not grounds raise this issue as for reversal on 54.02(d). appellant The 2. Tex. Fam.Code appeal, we have no occasion to direct and hearing, complains "[p]rior Appellant's speak to it. See Brief on Direct statutorily mandat- State failed to conduct Appeal at 16. Appel- diagnostic evaluation!.]” ed or social specifically designed for adolescent offend- cause to believe that the child committed Silverman contrasted this environ- ers[.]” the OFFENSE alleged and that because justice pro- ment to the “adult criminal OFFENSE, the seriousness of the which he deemed to have grams[,]” “few welfare of the community requires criminal constructive, possibly many destruc- proceeding.”3 again tive, influences to offer” the appellant. simply recited from the statute when it appellant Silverman also noted that stated that: had, during juvenile- his stint within the making determination, [i]n

justice system, already “responded to ther- ... Court considered among other mat- apy.” ters: evidence, At close and after both 1. Whether the alleged OFFENSE parties closing arguments, delivered against person WAS or property, with granted the State’s motion the greater weight in favor of waiver jurisdiction. to waive At the behest of the given to offenses against person; counsel, appellant’s the court also made sophistication 2. The maturity (1) following findings: oral “that there child; juve- is insufficient time to work with the 3. The previous record and history of (2) juvenile system”; nile “that the child; offense, murder, seriousness of the makes prospects 4. The adequate protec- inappropriate sys- to deal in this public tion of the and the likelihood of (8) tem”; respondent that “the have did reasonable rehabilitation of the child (4) prior probation”; criminal mischief procedures, use of services and “actually the instant offense occurr[ed] currently facilities available to the Ju- respondent probation the time was on venile Court.4 which ... makes the services and re- specifically also found in juvenile system sources of the look to be (1) its written order: (5) appellant “is inadequate”; “that because there is a of sufficient sophistication maturity and co-respondent [certified stand trial have intelligently, knowingly and volun- courts], logic the adult criminal there is a tarily all rights waived constitutional here- in putting respondents, they where are a waived[,] tofore ... to have aided the year apart years apart, or two together”; (6) preparation of HIS defense and to be re- “judicial economy, and that although (2) conduct;” factor, sponsible for HIS driving not the anis issue” because alleged against person offense “WAS “sometimes it’s more convenient to hear (3) another;” little, matter, if though the same even and that “there is there are involved, any, different people prospect adequate protection the same of the witnesses, public court for the convenience of the and likelihood of reasonable rehabil- attorneys, system and the in general.” appellant “by proce- itation of’ the use of dures, services, currently and facilities following day, juvenile The court available Juvenile Court.” signed and entered a written order waiv- order, Per the ing jurisdiction. Closely appel- its trial court’s following the statute, language juvenile lant’s case was the jurisdic- transferred to juvenile order affirmed that the tion of the 178th District in Harris Court trial, had there probable County, determined “that where he stood certified as 54.02(a). 54.02(f). § 3. Tex. Fam.Code Id. rehabilitation,”8 only “the evidence since first-degree felony adult,

an jury appellant convicted the that” the “is amenable was charge of murder. thirty presented him to and the “State no and sentenced rehabilitation” appellant penitentiary. contrary evidence.”9 years’ confinement ap- the court of published opinion, In a Appeal B. that the agreed appellant with the peals Appeals, Court of the First Before supported neither evidence complained appellant find- “sophistication-and-maturity” court’s “reasons for waiver” were court’s stated ing “adequate-protection-of-the- nor its and that insufficient evidence by supported public-and-likelihood-of-rehabilitation” abused its dis- court therefore “appel- The court noted that an finding.10 over the waiving jurisdiction cretion court reviews a court’s deci- late con- appellant Specifically, appellant.5 certify defendant as an sion to focusing appellant’s on the tended ... an abuse of discretion adult under knowingly, and vol- “intelligently, ability to own standard” and cited another of its rights constitutional untarily all waive[] “if proposition for the an opinions waived,” heretofore factually evidence appellate court finds the misapplied the ‘so- and “misunderstood support juve- legally or insufficient of Sec- maturity’ element” phistication necessarily court’s order ... it will nile not, 54.02(f) that, even if it did tion —and his juvenile judge find the has abused dis- evidence to there was still “no time, the court of cretion.” At same and matu- sophistication court’s [juvenile] appeals recognized that “the Indeed, expressed.6 given rity finding” as strength on the a transfer order Hidalgo opined that this Court in” any of the criteria listed Section 54.02(d) “psycholog- purpose of the Section 54.02(f). insight “provide[] is to ical examination” maturity, Regarding sophisti- juvenile’s sophistication, on the rehabilitation, cation-and-maturity finding, while the decision-mak- potential skills, psycholog- argued appellant]’s State efforts ing ability, metacognitive “[the sociological apprehen- other to conceal the crime and avoid development, ical factors[,]” he knew the differ- appellant found sion demonstrate that and cultural right wrong no ence between and that his troubling presented that “the State wrong,” the court of type whatsoever.”7 The conduct was evidence of this pointed “finding juve- that there out that the also maintained was appellant appel- ... on nile court was based supporting [the “no evidence relating adequate pro- ability rights to waive his and assist findings court’s lant’s defense, not an preparing and likelihood of counsel his public tection [of] 54.02(h) ("If juve- 9. Id. at 34. 5. See Tex. Fam.Code jurisdiction, waives it shall state nile court specifically its reasons for waiv- in the order State, (Tex.App.— Moon 410 S.W.3d 366 10. v. er[.]”). 2013). [1st Dist.] Houston Appeal Direct at 27. Appellant's Brief on G.F.O., (citing re 11. Id. at 370-71 In added) (quoting Hidalgo (Tex.App. (emphasis [1st Id. — Houston (Tex.Crim.App. 1994, writ)). no Dist.] 1999)). 8.Id. at 30. appeals of the nature of his ac- of described the

appreciation appellant’s act of since the State’s evidence And “keying tions[.]”12 a car” as “an undeniably low level appellant’s of the “efforts to conceal the misdemeanor mischief offense” and “hard primarily appel- crime” consisted of the ly the sort of offense for which ‘there is messages instructing compa- lant’s “text [a little, any, prospect if of adequate protec ”17 word,’ ‘say [and triot] to] ‘[t]ell public.’ tion of the The court of ap ” live,’ you ... where I them don’t know peals was by also influenced the fact that appeals the court of determined that there the appellant’s custodial officers was “no evidence supporting orders, testified that “he followed attended finding appellant] court’s was [the classes, and was not aggressive or mean- sufficiently sophisticated and mature to spirited.” Finally, appeals court of rights waive his and assist in his de- clearly was influenced Dr. Silverman’s fense.” assessment appellant “would respect With to the court’s find probably placement benefit from in a ther little, “there if ing any, prospect of apeutic specifically environment designed adequate protection public of the and like for adolescent offenders[.]”19 ... pro lihood rehabilitation use of Thus,. of the three “reasons for waiver” cedures, services, currently and facilities specifically gave Court[,]” available to the Juvenile order, its written appeals the court of de- áppeals significant court of found it reason, termined that one sophistication appellant “had a sole misdemeanor maturity, supported by was legally car, ‘keying' conviction for and while insufficient evidence. It determined that up juvenile facility locked was ac reason, another the protection pub- cused of four infractions.”14 The court of rehabilitation, lic and likelihood of was appeals took this to be “more than a scin supported by factually insufficient evi- tilla of evidence” to “support respect dence. With to the finding” regard, this and thus found the waiving jurisdic- court’s third reason for “legally evidence to be at least sufficient appellant’s tion—that the offense constitut- support the court’s determination” that the another, person ed a crime lack “adequate protection public property and not a mere crime—the court and likelihood of reasonable rehabilitation” appeals regarded inadequate this as an “However,” weighed in favor of waiver.15 itself, justification, by for waiver. To continued, the court of “careful to the criminal court in consideration all of the evidence^]” was, for this reason alone the court of cluding report, Dr. Silverman’s led to the concluded, appeals ultimately an abuse of “further ... conclusion that the evidence The court of rea- factually discretion.20 juve insufficient to that, “[i]f, finding.”16 nile court’s to the soned as the State Responding argues, argument contrary, justified State’s the court nature of the offense alone waiv- 12. Id. at 374. 17. Id.

13. Id. 18. Id.

14. Id. at 376. 19. at 376-77. Id. 15. Id. 377. 20. Id. at 378. 16. Id. any evidence that entire record for automatically be author- er, would transfer to waive support a valid’reason crimes would classes of ‘serious’ in certain ized (f) of whether the murder, jurisdiction, regardless and the subsection such as rely on juvenile purported court superfluous.”21 be rendered factors would court abused juvenile Concluding that evidence/reason. jurisdiction, to waive its discretion of these various assertions necessi- Review vacated the district appeals court of of the statuto- fairly global exegesis tates conviction, dismissed judgment juvenile-court for the waiver of ry scheme and declared the proceedings, criminal Texas, in as well as the abun- jurisdiction juvenile in the “pending to be still case generated law that has been dant case court.”22 half a past over the the courts of century. Discretionary for The Petition

C. THE II. THE LAW AND STANDARD Review OF APPELLATE REVIEW challenges the court of now The State argues four fronts. It appeals’s ruling on A. Kent v. United States erred: that the court of The transfer of a offender (cid:127) factual-sufficiency review to apply criminal court for from court to aspect analysis ques- of its any regarded as an adult should be prosecution court abused tion whether rule; opera exception, as the jurisdiction. its discretion to waive feasible, tive whenever principle (cid:127) whether the failing to consider seri- below a certain children and adolescents could, itself, of the offense ousness “protected should be and rehabilitated age justify court’s discretion- subjected than to the harshness of rather jurisdiction. ary decision to waive system[.]”23 the criminal Because (cid:127) abuse-of-discretion anal- limiting its juvenile-court jurisdiction means waiver for waiver set forth

ysis to the reasons status, in protected the loss of that Kent order, court’s written States, Supreme States United United failing to consider reasons statutory characterized the Court orally proclaimed court proceedings the District Columbia from the bench at the conclusion of the “critically any important,” and held that hearing. waiving juvenile- mechanism for (cid:127) anal- must at least “measure limiting its abuse-of-discretion up process reasons to the essentials of due and fair

ysis specific to a review of (whether gave Among requisites writ- treatment.”24 oral), minimally process, fair transfer the Su assay ten or rather than to (citing Hidalgo, at 754. See Tex. Id. at 375 R.E.M. v. 23. 51.01(2) (Juvenile Justice Code is (Tex.Civ.App. Antonio Fam.Code — San concept to be construed to balance "the n.r.e.), proposition writ ref’d for the punishment criminal acts” with the ideal "nothing in the which that there is statute remove, appropriate, the taint of “to where suggests deprived that a child be criminality committing children certain from system merely benefits of our pro with the unlawful acts”—all "consistent charged because the crime with which he is safety”). public public tection of the crime.''). a 'serious' 560-62, 86 S.Ct 24. 383 U.S. Id. at 378. 84(1966). L.Ed.2d Kent, tacitly assumed in is lar preme appropriate.27 Court offender is meaningful appellate opportunity Legislature incorporated Texas soon those appellate review.25 factors, non-exclusively, albeit into our own it a statutory Missing must have before statement scheme28 from the Su- motivating including, reasons the waiver preme opinion, however, Kent Court’s is course, a statement of the relevant any description detailed of a standard for may facts. It not assume that there are review of the reasons, merely- nor adequate transfer decision. investigation

assume that full has been Accordingly, made. we hold it is Statutory B. The Scheme incumbent upon Juvenile Court The Juvenile Justice Code of the its waiver order a accompany with state- Family Texas specifically provides Code ment of the reasons or considerations designated juvenile that the court of each therefor. do not We read the [relevant county original jurisdiction has “exclusive requir- District of statute as Columbia] proceedings over in all involving cases ... statement ing that this must be formal delinquent conduct ... engaged by necessarily or that it should include con- person who was a child within meaning findings of fact. ventional But the state- of this title at the time person engaged ment should be sufficient to demonstrate “Delinquent conduct.”29 conduct” full requirement of met; includes “conduct ... penal violates a investigation has been and that the question has received the law of this ... punishable by careful consid- state impris Court; by eration of the Juvenile and it onment or in jail;”30 confinement and a “child,” set forth the must basis for the order defined Juvenile Justice specificity permit Code, sufficient any “person years ... ten age meaningful review.26 years or older age[.]”31 and under Thus, any person committing accused of Kent, appendix In an opinion its felony offense between his tenth and sev Supreme policy Court included a memo- enteenth birthdays subject to the exclu promulgated by randum the District of original jurisdiction sive of a Juvenile Columbia Court that describes court, meaning “determinative factors” for guiding ju- has deciding “power venile court’s discretion in wheth- to hear and decide” matters er waiver of its over a particu- pertaining offender’s case 561, ("Meaningful 25. See id. at probably required 86 S.Ct. 1045 are [§ 54.02] as a matter of requires reviewing review Supreme federal constitutional law review.”). States, should Court’s decision Kent v. United 541, 1045, U.S. 86 S.Ct. 16 L.Ed.2d 84 (1966).”). see, (internal omitted). Galloway But contra: quotation 26. Id. marks 142, (Tex.Crim.App.1979) purport '{“Kent did not to do more than 565-67, 27. Id. at 86 S.Ct. 1045. construe the District of Columbia statutes, and it is not clear that it sets consti- Leg., 4, p. § 28. Acts 60th ch. requirements.”). tutional 1083-84, Aug. (currently eff. codified 54.02(f)). § at Tex. Fam.Code See Robert O. 51.04(a). Dawson, Delinquent Children and § 29. Tex Fam.Code Children Supervision: Need Comments Draftsman’s 51.03(a)(1). § Code, Id. Family to Title 3 the Texas 5 Tex. (1974) ("Most Tech. L.Rev. 51.02(2)(a). procedural safeguards incorporated Id. consider, shall court[,]” [juvenile] the including the any other “before (1) the court, other matters: whether among them.32 can review district criminal against person or alleged offense was offender to the right of weight in favor of greater property, the crim- jurisdiction the outside remain the given against to offenses however, court, is not absolute. inal district (2) and matu- sophistication the person; Justice Code of the Juvenile Section 54.02 (3) child; the the record and rity of met, that, are if certain conditions provides (4) child; history of the and previous may waive its exclusive “juvenile court adequate protection prospects and transfer a child to jurisdiction original rehabili- and the likelihood of the public court ... for crim- district appropriate by procedures, of the child use of tation may Before it exer- inal proceedings!.]”33 services, currently facilities avail- over jurisdiction to waive cise its discretion court.35 able to offender, alleged child an serve, factors we have These non-exclusive find that court must said, facilitate the court’s bal- (1) violated a alleged to have the child danger to the ancing potential of “the (2) felony; grade law of the penal particular juvenile of- public” posed or older at years age was ... 14 child n thetime amen- fender “with offender’s offense, if the alleged] [of Finally, ability to treatment.”36 should felony is ... a of the first de- offense its court choose to exercise (3) investigation after a full gree!;] and jurisdiction waive over the discretion to deter- hearing, Code, child, then the Juvenile Justice di- probable mines that there is cause specifically” a written rects to “state that, the child before believe cer- order “its reasons waiver and [to] alleged the offense and that committed action, tify including its the written order the seriousness of the offense because of findings of the court.”37 background of the child alleged or community requires welfare there are a number of juvenile, For the proceedings criminal remaining outside of the advantages to “In of the adult criminal courts. proper adult criminal court.34 advantages Not the least of these making required the determination [54.02](a)” is, exceptions, but a few a “child whether with Subsection —that community” penal re- be committed or transferred to the “welfare of the indeed facility primarily to be institution or other used quires proceedings adult criminal juvenile, persons for the execution of sentences instituted (de- (10th ed.2014) They guide [juve- are "intended to ante. Dictionary 32. Black’s Law fining “original jurisdiction” making court's "[a] as the determi- court’s discretion nile] any Dawson, power to and decide a matter before hear 5 Tex Tech. nation transfer." matter”). other review the See also court can 54.02(f) Initially, em- at 564. Section L.Rev. jurisdiction” (defining id. at 981 "exclusive factors, all of the Kent but the braced six power adjudicate an action or "[a] amended in 1996 to remove two statute was of all other class of actions to exclusion 262, 34, Leg., § 74th ch. of them. Acts courts"). p. Jan. eff. 1996. 54.02(a). § 33. Fam.Code Tex. Hidalgo, 983 S.W.2d at 754. 36. Id. 54.02(h) § 37. Tex. Fam.Code 54.02(f). Id. These are factors appendix. note derive from the Kent See crime, except ... after trans- terms was that an alleged juvenile convicted offend- prosecution fer for in criminal court under complain er could immediately juve- of the Indeed, juvenile Section a of- 54.02[.]”38 nile court’s order waiving jurisdiction, its may fender not even be handed a sen- and, if appropriate, discretionary seek re- disposition may tence—“no be made”— view from the Supreme Texas “as in Court upon being engaged his “found to have 1995, however, generally.”42 civil cases In delinquent conduct” unless and until the Legislature approved an amendment juvenile jury court or a determines that Code, to the Juvenile Justice effective Jan- “the child is in need of rehabilitation or the 1, 1996, in uary which the portion of Sec- or protection public of the child re- 56.01(c) tion provides direct, that for the be quires disposition made.”39 And civil appealability of Section 54.02 waivers acknowledged goals we ourselves have was struck.43 Contemporaneous with this justice system juve- of the criminal amendment, Legislature added Article nile-justice system fundamentally to be dif- 44.47 to the Texas Code Criminal Proce- ferent, describing the more “re- former as (b) dure, providing in Section thereof that tributive” than its “rehabilitative” may a appeal “defendant a transfer under counterpart.40 -54.02, Family only [Section con- Code] junction appeal with the of a conviction of 1, 1996, January Prior to Section ... the offense for which the defendant of the Juvenile provid 56.01 Justice Code was to transferred criminal court.”44 ed, another, in one or phrasing an practical What this means in terms is that appeal “from an order entered under ... alleged juvenile an may longer offender no respecting Section 54.02 of this code trans immediately appeal from the prose fer the child to criminal court for jurisdiction; instead, court’s waiver of he “by cution as an adult” could taken be or must wait until directly on behalf of a child” such time as he be from n juvenile court to the convicted in an proper app court of adult criminal court practical What this meant complain, appeal, on of some error in the eals.41 general exceptions 38. There are other purpose to this the Juvenile Justice Code's stated case, "remove, implicated including rule not an appropriate, this where the taint of exception “temporary jail criminality committing detention in a from children certain acts[,]” 51.01(2)(B), lockup pending juvenile hearing,” § or id. unlawful Tex. Fam.Code 51.13(c)(1), § juvenile-justice equivalent as well as one for "transfer ... of a "convic- 245.151(c), delinquent Section under Human Resources tion” for conduct is referred to 51.13(c)(3); § "adjudication,” Code.”'Id. see also Tex. an instead as Hum. Tex. Fam.Code 54.03, 245.151(c) (the juvenile-justice equivalent § § Texas Juvenile Res.Code Department adjudication a adju- Justice "shall "sentence” for an is instead transfer” an "disposition.” custody dicated offender referred "to the Tex. Fam.Code § 54.04. Department the Texas of Criminal Justice for completion person’s sentence” when, pursuant Hidalgo, to court order under Tex. 40. 983 S.W.2d at 755. l(i)(2) § 54.1 and Tex. Hum. Res.Code Fam.Code 244.014(a), 1973, 544, § Leg., p. § court determines 41. See Acts 63d ch. 1. 1, 1483, Sept. "the child’s conduct” while under State eff. 1973. supervision "indicates that the welfare transfer”). community requires the Id. 42. 262, 48, 54.04(c) ("If Leg., p. § § 43. 39. See Tex. Fam.Code the court Acts 74th ch. find, jury eff. Jan. or does not so shall dis- judgment miss the child and enter a final added). any disposition."). keeping p. (emphasis without In Id. at orders, general consensus of Although ruling. court’s transfer an from has been as designated appeal the various courts Legislature 54.02 order to be petitioning court’s Section The burden is on the follows. governed ... [the matter produce a “criminal evidence to party, the Tex- Procedure] of Criminal Code discretion as to inform the apply Procedure that Appellate as Rules ju- waiving its otherwise-exclusive whether case[,]” nevertheless ex- to a criminal particular appropriate risdiction is 44.47(d), in Article provided, pressly offender to Transfer of a case.46 44.47(b) “may in- Article appeal under an appropriate only is when criminal court the law that exist- any claims under clude court, persuade the State can 1, 1996, that could have January ed before evidence,47 by preponderance of the appeal in a transfer raised on direct been community requires the welfare of the 54.02, Family Code.”45 under Section pro- for criminal transfer of of the seriousness ceedings, either because statutory in lacking our What is of the background the offense or the of any in Kent —is ex- lacking scheme—as (or both).48 exercising In its discre- child applicable of the standard press statement tion, must consider all of of the court’s appellate review of currently factors as codified the Kent In the absence of an ex- transfer order. 54.02(f) the Juvenile Justice Section of appellate standard of re- plicit Code;49 “it is from the evidence concern- view, have the courts of filled 54.02(f) factors that a ing ] Section spelling [the law out how void with decisional court makes its final determina- providing “meaning- [juvenile] about they gowill 50 But it need not find that each and contemplated by Kent. tion.” ful review” every of factors favors transfer one those The Consensus C. may exercise its discretion before Appeals Courts of It transfer the jurisdiction.51 waive long as it is satisfied juvenile so explicit provisions of In the absence of the evidence that preponderance Code that define a the Juvenile Justice the offense or the baek- review of seriousness of standard for gation every field in Sec [listed material 45. Id. 54.02(f) and the result tion was undertaken ] Honsaker, 198, 539 S.W.2d 201 46. Matter of thereof"). 1976, n.r.e.); (Tex.Civ.App. ref'd — Dallas 126, State, (Tex.Civ. S.W.2d 131 B.R.D. v. 575 M.I.L., at 177. 50. Matter 601 S.W.2d of 1978, n.r.e.); App. Corpus Christi writ ref’d — M.I.L., 175, (Tex. 601 177 Matter S.W.2d of 748, E.g., ofJ.R.C., 753 Matter 551 S.W.2d 1980, writ); App. Corpus Civ. Christi no — 1977, n.r.e.); (Tex.Civ.App. ref'd E.D.N., 798, (Tex. — Texarkana Matter 635 S.W.2d 800 State, 392, (Tex.Civ. 395 D.J.R. v. 565 S.W.2d 1982, writ); App. Corpus no Moore Christi — 1978, writ); App. Worth no Matter State, 766, (Tex.App.— 713 S.W.2d 768 — Fort 751, G.B.B., (Tex.Civ.App.— 1986, writ). S.W.2d 756 572 no Dist.] Houston [14th State, 1978, n.r.e.); El ref'd Casiano v. Paso P.B.C., S.W.2d 448, (Tex. 47. Matter 538 453 447, (Tex.App. 449 687 S.W.2d - Houston 1976, writ). Civ.App. Paso no — El 1985, K.D.S., writ); no Matter [14th Dist.] 299, (Tex.App. [1st 302 — Houston State, 8, (Tex. S.W.3d 48. Faisst v. 11 1991, writ); C.M. v. no Dist.] 2003, pet.). App. Tyler no — (Tex.App. Antonio — San J.R.C., (Tex. 1994, writ). 49. See In re no n.r.e.) Civ.App. (juve ref'd — Texarkana “findings nile court's should show an investi (or both) ground of the child indicátes that the written order “shall state specifically the community requires the welfare of waiver”), [the reasons for court’s] proceedings.52 criminal the courts of appeals have sometimes sanc- tioned orders that recited the reasons for respect adequacy With transfer in terms no more specific than the written order mandated Section bare statutory language, namely, that 54.02(h), be- the courts of appeals gener- have cause of the all, seriousness of the ally agreed, first of offense or written child, background order must reflect waiving jurisdiction.53 required “reasons” for to ensure the De- welfare of the com- (ie., spite the express edict of the statute munity.54 In addition to specifying “rea- See, J.R.C., P.G., e.g., pear.”); Matter 551 S.W.2d at (juvenile 616 S.W.2d at 639 ("Section require' 54.02 does not court must “state the reasons for its trans- juris fer"). order for the court to waive its diction, all of the matters listed in Subsection (f) must be established. * * * The statute Honsaker, 54. Matter 539 S.W.2d at only juvenile directs court consider (construing 201-02 holding In re J.R.C. and (f) the matters listed under Subsection in that a transfer order that recited the * * * making They' its determination. are the juvenile jurisdiction criteria for waiver of by may criteria which it be if determined provided found them to be satisfied “suffi properly court concluded that specificity cient ... appellate to allow an background seriousness of the offense or the court to review and understand the reason for required of the child a transfer to criminal determination”); court's D.L.C.v. Q.D., court."); 392, In re 600 S.W.2d 395 State, 157, (Tex.Civ.App.— 533 S.W.2d 159 1980, writ) (Tex.Civ.App. Worth no - Fort 1976, writ) (order stating Austin no in conclu- ("[Tjhe [juvenile] only court is bound to con (f) sory terms that the Subsection factors (f) all sider the Subsection [of ] factors. It satisfied, detail, going were without into was need not find that each factor is established comply nevertheless sufficient to with the re evidence.’’); State, by the P.G. v. 616 S.W.2d quirement of written in "reasons” Subsection 635, 1981, (Tex.Civ.App. 639 Antonio - San (h)); W.R.M., 178, (Tex. In re 534 S.W.2d 181 n.r.e.) ("The [juvenile] ref’d court need not 1976, writ) ("In Civ.App. no the in - Eastland (f) find that all the factors in subdivision have case, stant the order that discloses the mat established, been but it must consider all considered, (f) ters listed in Subsection were these factors state the reasons for its specific and the order states reasons for waiv transfer so that the court re er. The fact that some of the recitations con view the on which basis the conclusion was require stitute conclusions does not a reversal made and can determine whether the evi Q.V. State, order.”); of the court’s 564 justify dence so considered does fact that 781, (Tex.Civ.App. S.W.2d 784 Antonio - San E.D.N., conclusion.”); Matter 635 S.W.2d of 1978, n.r.e.) (written ref’d transfer order that ("If enough the evidence 800 establishes of (f) merely conclusorily stated that Subsection (f) factors subdivision to convince the satisfied, any factors were sans detailed de [juvenile] court that a transfer is the best evidence, scription of the was nevertheless community, interest of the child and we will "sufficiently specific as to ‘reasons’ for” order."); not that McKaine v. disturb jurisdic court’s decision to waive 285, (Tex.App. Corpus 170 S.W.3d 291 - tion); C.L.Y., 238, 239, In re 241 2005, ("While pet.) Christi no 1978, (Tex.Civ.App. no [1st Dist.] - Houston court must consider all of these factors before writ) (same); 349, Appeal of B.Y., 585 S.W.2d court, transferring the case to district it is not 1979, writ) (Tex.Civ.App. 351 Paso no - El required to find that each factor is established ("Reversible present * * * error is not here by the evidence. The court is also not [juvenile fact that the court's] order seems to required give equal weight each factor parrot the Section 54.02 list of factors the considered.”). long as each is [juvenile making should consider in a court] J.R.C., transfer; e.g., sup See In re 522 S.W.2d at 584 the enumerated reasons are ("The motivating ported by reasons the Juvenile Court’s evidence. The order is suffi I.B., 584, cient.”); (Tex. expressly ap- waiver of must In re 587 also uniform- of have re- The courts expressly also sons,” should the order of discre- absent an abuse ly agreed took actually cite tion, should not set aside reviewing a 54.02(f) factors into account the Section transferring ju- order But it need determination.55 making this they mean “abuse risdiction.57 What findings of fact vvith particular make no altogether context is not discretion” this factors,56 notwithstanding to those respect de- have clear. Some courts 54.02(h)’s requirement pointed Section court’s decision clared that action, in- “certify its one, arbitrary guided simply must be findings of court[.]” ... cluding the so, the courts of Even capricious.58 or Dawson, writ) (same); Delinquent and Children in Children no Civ.App. - Amarillo (Tex. T.D., Supervision: 's Comments Need S.W.2d 775-77 Matter Draftsman Code, denied) Family writ Texas to Title 3 App. [1st Dist.] Tex. - Houston (1974) ("The (same). com Tech. L.Rev. 54.02(h) stated that ] mittee's draft Section [of W.R.M., (order S.W.2d at 182 In re jurisdiction 'it juvenile court waives if the list- it that the matters sufficient if "discloses briefly in the order its shall state reasons considered”); (f) In re were ed in Subsection Legislature The fact waiver.' (transfer C.L.Y., order stat- 570 S.W.2d at changed 'briefly specifically’ state’ to ‘state juvenile court "has considered” ed that the contemplated more than indicates P.G., 54.02(f) factors); the Subsection and, printed merely an adherence to forms (juvenile court’s order "list- at 638-39 indeed, contemplated [sic] a true relevation 54.02(f) and the ... factors of section ed making discretionary deci reasons for this in mak- had been considered stated that each sion.”). jurisdic- waiver of ing determination” that Casiano, appropriate); 687 S.W.2d tion was Honsaker, E.g., S.W.2d at Matter 539 57. of ("An which states 449 order is sufficient at 563; 201; C.M., at Matter 884 S.W.2d of 54.02(f) that all factors listed in alia [inter ] J.P.O., 695, (Tex.App 904 S.W.2d 698 . -Cor court[.]”). [juvenile] were considered 1995, denied); pus writ Matter Christi of K.B.H., 684, (Tex.App.- 687-88 913 S.W.2d 54, Early ante. case law seemed 56. See note J.J., 1995, pet.); In re 916 Texarkana no might contemplate greater specificity to 1995, 532, (Tex.App. no S.W.2d 535 - Dallas necessary satisfy emphasis on be to Kent ’s 872, writ); Lopez, 874 196 S.W.3d State J.R.C., meaningful appellate review. See In re Faisst, 2006, ref'd); (Tex.App. pet. - Dallas ("To up, at sum besides 522 S.W.2d 583-84 State, S.W.3d at 12. T.P.S. v. 590 105 Cf. giving for waiver in its order reasons 946, (Tex.Civ.App. S.W.2d 953-54 - Dallas mandatory duty to has a file Juvenile Court 1979, n.r.e.) (observing that Kent "rec ref'd considered, findings covering actually matters ognizes of Co that the statute of the District including matters mentioned in Subsection all gave question lumbia' there in (f), findings certify to and to such order degree of discretion as to court a substantial court.”). appropriate This insis- district evaluated, to be the factual considerations governing "rigid adherence to the tence on weight given to to be them and the conclusion nature[,]” proceedings of this statutes ... reached”) (internal quotation marks omit be however, 584, gave way a laxer at soon id. ted). long juvenile court's attitude so as the (however the relevant factors order identified M.D.B., 415, See, e.g., 757 S.W.2d Matter conclusorily) support and the evidence would of 1988, (Tex.App. no factors, Dist.] 417 [14th order based on those - Houston writ) ("In reviewing [juvenile] court’s ac Douglas regarded See would be as sufficient. discretion, for an abuse of this court tion Hager, TexasJuvenile WaiverStat- A. Does the [juvenile] acted determine if the must Requirements Comport Due ute with the of Process?, 813, guiding any rules and without reference to 838-45 26 Tex. Tech. L.Rev T.D., (1995) principles.”); 817 S.W.2d at (tracing Matter the retreat of the courts ("The [juvenile] with refer court must act appeals procedural safeguards in- 773 from "the guiding principles, reason holding”); ence to rules and Robert O. herent J.R.C. every have entertained various chal- not factor must appeals support transfer be- legal factual sufficien- fore the lenges exercise its and/or presented jurisdiction.61 of the evidence at the trans- discretion to waive cy Other hearing support appeals court’s courts of have accepted juve- fer jurisdiction.59 decision to waive its Some nile offender’s invitation to measure the (like sufficiency courts of the court of support evidence to case) conclusion, have examined the pursu- this evidence court’s ultimate 54.02(a), sufficiency support specif- determine its ant to Section the serious- findings respect ic of fact with to the Sec- ness of the offense or background of the 54.02(f) factors,60 tion while mindful child indicated the need for transfer factors); Moore, (f) ably, arbitrarily, accordance with al of the subsection- law.”). (reviewing legal at 768-70 both S.W.2d sufficiency sup and factual of the evidence to See, I.J., Jr., 110, e.g., Matter 546 S.W.2d port findings respect court’s 1977, writ) (Tex.Civ.App. no - Eastland (f) factors); to various subsection Matter of (finding support findings the evidence to "the T.D., (conducting legal 817 S.W.2d at 777-79 legally in the transfer order” to be both sufficiency analysis and factual of the last T.D., sufficient); factually Matter (f) factor); J.J., subsection In re 916 S.W.2d at ("The [juvenile] at 777 S.W.2d court’s find ("Additionally, legally there was and fac ings legal of fact are reviewable for and factu tually [juvenile] sufficient evidence before the sufficiency support al of the evidence to them supporting findings regard affirmative applied reviewing the same standards ing each of the ... factors set forth in section legal sufficiency or factual of the evidence 54.02(f) code.”); D.D., family Matter of supporting jury’s special answers to is 172, (Tex.App. 938 S.W.2d 174-76 - Fort sues.’’); G.F.O., Matter writ) (reviewing Worth no the factual (Tex.App. [1st 731-32 Dist.] - Houston sufficiency support ju of the evidence to (“If writ) no an court finds the evi finding regarding venile court’s two of the factually legally sup dence or insufficient to (f) factors); Bleys, subsection 319 S.W.3d at port transferring court’s order (reviewing sufficiency 862-63 the factual youth aof to the criminal district the evidence to court, necessarily it will find the 54.02(f)(4)). finding under Section discretion.”); court has abused its Matter of J.P.O, ("The juvenile 61. See, e.g., L.M. v. findings court's of are fact reviewable for 1981, (Tex.Civ.App. ref’d [1st Dist.] - Houston legal sufficiency and factual of the evidence to n.r.e.) ("Although all of the factors enumerat standards, support by them the same as are 54.02(f) by ed in section must be considered reviewing legal applied in the or factual suffi [juvenile] judge, the each need one not be ciency supporting jury’s of the evidence a E.D.N., case.”); specific in a present Matter of K.B.H., charge.”); answers to a Matter 913 of ("While at 635 S.W.2d 800 the court must ("Under S.W.2d at 688 an abuse of discretion factors, consider all of these it need not find standard, legal sufficiency the of the evidence established.”); they that State, have all been C.W.v. error, independent ground is not an of but is 72, (Tex.App. 738 S.W.2d 75 - Dallas assessing a relevant factor in whether the 1987, ("The writ) no court is bound [juvenile] discretion.”); [juvenile] court abused its consider, case, to as it did in [of the] this all Faisst, ("Relevant 105 S.W.3d at 12 factors to factors, among other matters. It determining [juve be considered when if the need not find that each of the ... factors is legal nile] court abused its discretion include evidence."); by established the Matter of evidence.’’); sufficiency and factual M.D.B., (”[W]hile juve at State, 857, (Tex. Bleys v. 319 S.W.3d required nile court is to consider all [of the] (same). App. pet.) Antonio no - San 54.02(f) ..., required factors of it is not to See, P.A.C., e.g., by Matter 562 S.W.2d find that each factor is established of 1978) C.C.G., evidence.”); (Tex.App. (finding that the evi Matter 805 S.W.2d of denied) factually support (Tex.App. Tyler dence was sufficient to writ - J.J., (same); (same); findings respect court’s to sever In re 916 S.W.2d at 535 explicitly have never appeals the courts of of the commu- ensure the welfare

order to Texas, addressed. of last resort nity.62 No court reveals, yet has research as our insofar matters. these

spoken on III. ANALYSIS ap- that the court of argues The State Sufficiency A. Factual Under respects. in four case erred peals in this Section 54.02 conduct First, appeals erred to the court ap- the court of argues State review, appeal factual-sufficiency since a apply factual-sufficiency peals erred to now “a order is from a 54.02(f)(4) factor, Section standard to the by the “governed” matter” that is criminal prospects adequate pro- “the regarding Procedure and Texas Code of Criminal and the likelihood public tection of apply appellate procedure rules of proce- the child use of rehabilitation Court, all, After this criminal cases.63 services, dures, currently and facilities sufficiency rejected factual Brooks Indeed, court.”65 available appeals.64 Sec- purposes for of criminal supplemental brief filed after oral ond, to conclude the court of erred Court, argues argument in this State of the offense could that the seriousness appropriate standard of not, itself, court’s justify ought to be a bare abuse-of-discre- review fourth, transfer order. Third standard, by any inqui- tion unencumbered by failing erred to take court of evidence, sufficiency of the ry into the ju- for waiver of into account the reasons factual, support juve- or legal either oral- gave risdiction disagree; nile transfer order. We court’s record, and, matter, any ly for that on transfer that justifications other appeal That the of a transfer order record, regardless matter,” of wheth- appear as a “criminal regarded is now purported rely 44.47(c), er on Article does not in itself under them, factual- orally question the record or in its of whether either on control sufficiency review is available on direct questions are written order. These D.D., (same); that both the serious- court's determination 938 S.W.2d at 176 Matter of (same). background Bleys, and the child's 319 S.W.3d at 862 ness of offense D.D., waiving jurisdiction); Matter merited See, Moore, 767-68, e.g., (reviewing at 176-77 the factual sufficiency (reviewing legal and factual sufficiency support ju- of the evidence to evidence (a) determination venile court’s subsection the of- determination that the seriousness of of the offense or the whether the seriousness background justified the child's fense and transfer); background warranted child’s transfer); T.D., Matter 817 S.W.2d at 777 (reviewing the Bleys, 319 S.W.3d at 862-63 (at nominally reviewing legal and factual least sufficiency support of the evidence to factual sufficiency question wheth- of the ultimate juvenile under Section court’s conclusion "probative that the wel- er there is evidence 54.02(a)(3)). community required fare of the a waiver of jurisdiction juvenile criminal court and 44.47(c). 63. Tex.Code Crim. Proc. art. proceedings against appellant”); Matter of J.P.O., (Reviewing both 904 S.W.2d 700-02 State, (Tex.Crim. 323 S.W.3d 893 64. Brooks v. legal sufficiency of the evi- and factual App.2010). support dence court's bottom- appropri- line that was conclusion transfer Moon, 54.02(f)(4). J.J., ate); § See (finding In re 916 S.W.2d at 536-37 Fam.Code 65. Tex. (holding that the evidence 410 S.W.3d at 377 the evidence sufficient

45 appeal.66 proceeding pellate transfer review sufficiency.67 for factual In character, governed by arguing remains civil in that factual-sufficiency review is Code; unavailable, proceedings Justice do Juvenile the State analogizes to the not become criminal unless until the juvenile-adjudication proceedings.68 In context, jurisdic- court waives its exclusive that courts of have tion and transfers the child to a .criminal declined to conduct factual-sufficiency re- view, prosecution court for as an adult. More to noting adjudication that proceedings availability point, “quasi-criminal” of factual-suffi- are in nature.69 But the event, is, ciency any review in not so much proof burden of in a juvenile-adjudication a proceed- proceeding doubt,70 function the character of the beyond is a reasonable ing it preponderance versus criminal —as is a func- not a of the evidence. In —civil context, tion of the applicable proof. burden of As certainly arguable is out, we have in already pointed holding a our applies.71 Brooks In the proceeding, transfer any burden is on the review of subject issue that to a produce persuades State to evidence that proof burden of beyond less than a reason- court, doubt, however, aby preponderance of able the Texas Supreme evidence, that waiver of its exclusive Court has authorized the courts of appropriate. which Facts to conduct a factual-sufficiency review.72 proven by preponderance must be a particular appellate standard for fac- ordinarily evidence are susceptible ap- sufficiency tual depends upon the level of factor, dicta, legally was factual-sufficiency may sufficient to establish this review like insufficient). factually but inappropriate wise be review of proceedings after the enact Indeed, 44.47(d), light of Article it is M.A.V., ment of Article 44.47. See In re arguable sufficiency that factual remains a 327, (Tex.App. 331 n.2 Antonio - San order, appeal claim viable on from a transfer 2002, pet.). no notwithstanding that it is now a "criminal all, sufficiency matter.” After factual was a 54.03(f) ("The 70. See Tex. Fam.Code child "claim[] under the law that existed before presumed shall be to be innocent of the 1, 1996, January that could have been raised charges against finding the child and no appeal on direct of a transfer under Section engaged delinquent a child has conduct or 54.02, Family Code.” Tex.Code Crim. Proc. art. indicating supervision conduct a need for 44.47(d). proved be returned unless the state has 662, doubt.”). (Tex. beyond such a reasonable 67. Matlock v. 392 S.W.3d Crim.App.2013). R.R., 734; A.O., In re 373 S.W.3d at In re 68. State's Brief on the Merits at 12-13. 239; C.E.S., 342 S.W.3d at In re 400 S.W.3d 187, 2013, writ). (Tex.App. Paso no - El R.R., 730, (Tex. 69. See In re 373 S.W.3d 2012, denied) App. writ [14th Dist.] - Houston C.H., (Tex.2002) 72. See In re 89 S.W.3d ("Although juvenile [adjudication] proceed (announcing appropriate appellate stan- matters, ings applicable are civil the standard factual-sufficiency dard for review of claims [i.e., proof beyond in criminal matters parental rights, in cases of termination of reasonable doubt] is used assess the suffi satisfy which the State must a clear and con- ciency finding the evidence vincing proof); conduct.”); evidence burden of In re engaged delinquent has In re J.F.C., (Tex.2002) A.O., (Tex.App . -Amaril And, indeed, A.O., (same). denied) (same). Cf., in In re the Amar- lo writ re In B.L.D., 340, (Tex.2003) Appeals, having (juve illo Court of refused to sub- 113 S.W.3d 351 ject juvenile-adjudication proceeding delinquency nile the to cases are considered to be review, "quasi-criminal”). only factual-sufficiency The State cites one in the next breath suggests, only factual-sufficiency case which and then in obvious did conduct a review of the 46 under Sec- question the burden of view of the ultimate applicable to

confidence of the evi- preponderance proof 54.02(a)(3), is, “because tion that whether —whether convincing evidence —in clear and dence or alleged seriousness of the offense or appeals the courts of court.73 But the trial of background the of child the welfare the of to issues factual have continued address community requires proceed- the criminal appeal raised on sufficiency they when are ings.” discretion of juvenile-adjudication context. in all but apex largely its when makes this is at it cases, Indeed, we in criminal have even judgment.76 long ap- normative As con- that the courts said juve- court can that the pellate determine factual-sufficiency reviews when con- duct judgment upon nile court’s was based facts fact for which bur- fronted with issues record, supported by that are it should preponderance is proof den of judg- from that interfering refrain The court of did not evidence.74 ment absent a in which the facts scenario appellant’s contention err to address the order, factually evidence insufficient in the was identified based on finding with to court’s produced hearing evidence at the transfer 52.04(f)(4).75 respect to Section as it relates the non-exclusive Subsec- (f) ration- beyond, tion factors and bear no Having agree we do said specific to the the order al relation reasons to the with the State’s contention limited justify gives the conclusion sufficiency may argue extent review should not appellate juve- seriousness of the apply re- offense and/or sufficiency challenge, proffered juvenile disposition legal "Under a evidence at we credit evidence to the chal- hearing. favorable 342 at 240. S.W.3d finding contrary lenged disregard evi- (distin C.H., 25 73. See In re at 89 S.W.3d dence unless a fact finder could reasonable * * * guishing appropriate appellate standard for reject the evidence. Under a upon sufficiency depending factual whether sufficiency challenge, factual we consider proof preponder the trial-level burden presented all of the evidence to determine if convincing ance of the clear and evidence or [juvenile] finding court’s so evidence); J.F.C., at In re 96 S.W.3d 267 great weight preponderance (same). Telephone See also Bell Southwestern wrong unjust.” clearly evidence as to be or Garza, (Tex.2004) Moon, Co. v. S.W.3d (citations omit- at 370-71 sum, ("In we whenever the think that stan ted). elevated, proof at dard of trial is standard enough, 76.Whether offense is serious review must likewise be elevat juvenile’s background demon- and/or ed.”). strates, that waiver jurisdiction is warranted to ensure the wel- See Matlock, ("Pri- is, many respects, community fare of the Brooks, or to we the traditional Texas used question similar to of whether the non- proof civil burdens of and standards review jury's pre- exclusive Keeton warrant a factors defenses context of affirmative where diction, punishment phase capital- at the of a rejection defense is of an affirmative es trial, probably will murder the accused 'preponderance tablished of the evi commit criminal of violence that would acts dence.' Our in Brooks did not affect decision * * * continuing society. constitute a threat that line of cases. A criminal defendant decided, Even Brooks insisted before was we factual-sufficiency might raise a chal also. issue, special "wholly that this while not nor- lenge finding jury's adverse on his nature,” “value- mative in is nevertheless too omitted). defense.”) (footnotes affirmative factual-sufficiency laden” to be amenable to a State, 75. The State not take issue with the does review. McGinn S.W.2d v. appeals's (Tex.Crim.App.1998); court of of the differ- formulation Keeton ence, law, legal- (Tex.Crim.App.1987); under current between Tex. 2(b)(1). factual-sufficiency analyses; Code Crim. Proc. art. 37.071 The background nile’s warrant transfer. court acted without reference to appellate courts should conduct appellate guiding rules or principles. In other discretionary review of the court’s words, was its transfer decision essentially in essentially decision to waive arbitrary, given the evidence upon which it way the same that the El Paso Court of based, was or did it represent a reasonably has said that the Appeals juvenile court’s principled application of legislative cri- determining juvenile discretion in disposi- And, course, teria? reviewing courts tions should be scrutinized on appeal, to should bear mind that not every Section wit: 54.02(f) factor weigh must in favor of apply two-pronged analysis

We a to de- justify transfer to the juvenile court’s dis- (1) an termine abuse of discretion: did cretionary jurisdic- decision to waive its [juvenile] court have sufficient infor- tion.78 upon mation which to exercise its discre- (2)

tion; [juvenile] did the court err B. The Seriousness of the Offense . application in its of discretion? A tradi- sufficiency tional of the evidence review The State complains that the court of helps question, answer the first and we appeals should not have concluded that the [juvenile] look to whether the act- juvenile court abused its discretion for any ed without reference to guiding waiving jurisdiction based upon the seri- rules or principles to answer the sec- ousness of the offense. points The State ond.77 out explicit made an finding of fact its transfer order that the

Similarly, we hold in evaluating appellant’s alleged offense was committed ju court’s decision to waive its another, person under Sec- risdiction, an court should first 54.02(f)(1). tion finding This of fact was specific review the court’s findings amply supported by tbe-r&qord, the State 54.02(f) regarding fact the Section fac contends, sufficientbby and was itself to sufficiency tors under “traditional provide legitimate basis forv the trial evidence review.” But it should then re discretionary ju- decision to view the \\vaive court’s ultimate waiver appeals rejected risdiction. court of decision under an abuse of discretion stan “[i]f, this contention because as the State say, dard. That is to in deciding whether argues, the nature of the offense alone court erred to conclude that waiver, justified transfer would automati- the seriousness of the offense alleged cally be authorized certain classes of background of the juvenile and/or murder, ‘serious’ crimes called for criminal such as and the proceedings for the wel (f) community, fare of the subsection factors would be rendered appellate court ask, superfluous.”79 In simply light analy support should of its own of the court of observation, sufficiency appeals’s appellant sis of the of the evidence to re- 54.02(f) Court Kent Supreme Section factors and minds us that the evidence, any other relevant whether the seems to have disfavored the “routine J.R.C.S., (Tex. re In criterion before it can transfer a case to dis- 2012, writ). App. Paso no See In also re trict court. order a transfer - El M.A.C., (Tex.App strength any on the combination of the . -El 1999, writ). Paso no criteria."). ("The Hidalgo, 78. See 983 S.W.2d at 754 n. 16 79.Moon, 410 S.W.3d at 375. required court is not to find each 48 in Kent that decision juvenile-court jurisdiction] the transfer would [of

waiver of crime.”80 alleged classes certainly certain ill-informed almost be too to con- anything arbitrary an stitute but decision. long of have held appeals courts juvenile alleged that the is offense that the The transfer in this case no order made committed, long so as it is substan- to have findings specifics about of the capital the hearing at the transfer by evidence tiated murder, finding probable no more than character, sufficiently egregious of a appellant cause to believe the that commit- juvenile the court’s waiver of justify will gave It alleged.” ted “the OFFENSE as regardless what the of evi- jurisdiction waiving the court’s sole reason for with to the respect show child’s dence the jurisdiction “because of serious- 54.02(f) and other Section fac- background OFFENSE, ness of the the welfare the of holding This is different from that tors.81 community proceed- requires criminal of the category offense is the mere ings!,]” and then recited the simply it “that committed, more, have without alleged to OFFENSE to have been allege com- [sic] justify' to transfer. If that is the will serve against person mitted WAS of anoth- informing only consideration The evidence at the of hearing, er[.]”82 to waive court’s decision —the course, graphic painted pic- a much more than alleged, crime rather category .of charged ture of the appellant’s offense. particular offense —then we specifics Supreme intimation agree Court’s Whether court of should have Response Brief Appellant's the State's at is free to decide to transfer court] to the case Kent, crime, (citing 383 n. 86 due to the U.S. S.Ct. seriousness even if the 1045). background suggests oppo of the child site.”); D.D., Matter 938 S.W.2d at 177 of ("The of the offenses seriousness D.D. In 81. The earliest case to so hold was re murder, murder, Buchanan, (Tex.Civ. charged with [capital aggra among n.r.e.). kidnapping, vated others] sufficient App. Worth ref'd Almost - Fort later, support despite his his transfer back eight years another court Faisst, ("[C]ourt order, ground.”); alia, 105 S.W.3d at 11 transfer inter reversed by finding does not abuse its discretion substantiating because of a lack of evidence community’s requires welfare transfer due to in the order that bare recitation transfer "the murder, crime [intoxication seriousness of the offense was committed alone, manslaughter] R.E.M., despite the child's back person another!.]" 541 S.W.2d at McKaine, ground.”); 170 S.W.3d at 291 Appeals The San Court of 846-47. Antonio (same). Buchanan, observing distinguished that there, "the ‘evidence introduced at the hear (f) ing appellant dispute without findings show[ed] 82.The other two Subsection fact, provocation conclusorily equally shot and killed a man without or stated order, corresponded cause.' 433 S.W.2d at 789. Here there is no R.E.M., (Section sophistication-and-maturity effect.” admissible evidence to that factor 54.02(f)(2)) supra, at 847. cases have prospects-for-adequate- Later likewise . public-protection-and-rehabilitation-of-the-ju- found the evidence sufficient to waiv (Section 54.02(f)(4)). juvenile jurisdiction er of based on the factor seri venile Both alone, ousness of the offense as established factors these seem far more relevant presented background-of-the-child hearing. evidence at the transfer reason conclud- C.C.G., e.g., ing community See Matter 805 S.W.2d at welfare of the re- ("[A]ssuming, arguendo quires proceedings that there is insuffi criminal than the seri- concerning background cient evidence ousness-of-the-offense reason—the latter of 54.02(a)(3) appellant, only court’s determination which was Section reason offense, actually provided that the seriousness of substan in its evidence, sufficient.”); jurisdic- to justify tiated C.M., is alone transfer order the waiver of ("The [juvenile 884 S.W.2d at tion. into account in evalu- cally’ taken evidence indicates contemplated merely more than an ating court’s exercise of dis- adherence and, indeed, printed forms contemplated whether the abuse- depends upon cretion a true relevation for [sic] reasons of-discretion evaluation must be limited to making this discretionary decision.”84 a review of the “specific reasons” and facts 54.02(h) Moreover, Section obviously con- support expressly in thereof that are set templates juvenile that both the court’s juvenile out court’s written transfer waiving reasons for its jurisdiction and 54.02(h), per order as Section or whether the findings of fact that undergird those appeals may the court of take into account appear reasons should in the transfer other reasons and facts not explicitly other In way order.85 this the Legislature has in set out the transfer order. We turn to required to justify order question that next. broad discretion juvenile invested court, that court should take pains to Appellate C. Review of the work,” were, by “show its as it spread- Cited in Reasons/Facts ing its deliberative on process the rec- the Transfer Order ord, thereby providing sure-footed and There is an inherent tension be definite basis appellate from which an tween the ju broad discretion that court can determine that its decision venile court in making is afforded the was in fact appropriately guided by the normative judgment of whether to waive criteria, principled, and reason- hand, jurisdiction, on the one short, able—in that it is a decision de- Kent’s, upon primacy insistence of monstrably deserving of appellate impri- appellate review in order to assure if matur even the appellate might court juvenile court’s broad discretion is have reached a different result. This abused, legisla not on the other. The legislative purpose by is not well served tive response to this inherent tension a transfer order lacking specifics so mandate, 54.02(h), was to in Section the appellate court is forced to court “shall specifically state speculate as to the rea- in its order its finding reasons waiver and sons for transfer to be appropri- action, ate or the facts the court certify including its found the written to substantiate those reasons.86 Section findings order and Al eourt[.]”83 54.02(h) requires court to do though the committee that drafted heavy lifting process in this if it ex- Juvenile Justice Code had recommended pects discretionary judgment its to be provision version of this that would token, appeal. By ratified on the same have required no more than a “brief’ that shows its work justifying statement reasons rarely should be reversed. transfer, Legislature in deemed this Legislature “The fact that the sufficient: legislative regime, Given this we changed ‘briefly state’ to specifi- only fitting reviewing ‘state think it that a 54.02(h). suppress 83. Tex. Fam.Code motion to context because "courts of assump- should not be forced to make Dawson, 5 Tex. Tech. L.Rev. at 564-65. (or outright guesses) tions about a trial court’s ruling suppress”; on a motion to thus ensur- J.R.C., 85. In re 522 S.W.2d at 583-84. ing appeal] "a [on resolution that is based on Cullen, State v. reality happened of what rather than on Cf. (Tex.Crim.App.2006) (requiring trial courts to fictitious”). assumptions entirely be explicit findings pre-trial enter of fact in the stated on the only specifically reason sufficiency of the evidence measure

should court’s stated rea- justify order to waiver support face of the transfer considering the suffi- sons for transfer that the offense juvenile jurisdiction the facts evidence ciency of the only fact alleged is a serious one. found they expressly are transfer order specified the written order. The certified court in its this reason is that the offense support of rummage be made to should alleged to have com- appellant juve- record for facts that through the person mitted is an offense found, given the might have nile court ap- the court of agree another. We hear- at the transfer developed evidence that a waiver of peals’s conclusion in its written include ing, but did not particular on this rea- jurisdiction based hold therefore transfer order. We fact, son, this constitutes only by fortified sufficiency of of the conducting a review an abuse of discretion. facts relevant establish the the evidence to 54.02(f) any factors and to the Section juvenile It is true that the facts, are historical which other relevant found other facts that would have been court’s discre- juvenile inform the meant to transfer for the alter support relevant to the offense the seriousness of tion whether appellant’s the back native reason juvenile the background the of alleged or as to render waiver of ground was such for the welfare warrants transfer First, juvenile jurisdiction appropriate. court must limit community, the detail, any into relevant the going without to the facts that the sufficiency review its appel found that the juvenile court’s order upon, expressly relied as juvenile court sophisticated enough and mature lant was set out required explicitly to be to have been able to waive his constitution order under Section juvenile transfer rights effectively prep al and assist 54.02(h). trial, just aration of his defense at as an Application Law to Fact D. of Second, without elab again adult would.87 “little, oration, if court found

The court did “show any” protecting public of and prospect in the transfer order this case. its work” event, question culpability Legisla- the child refers to the of any it is doubtful that the In conduct, and'responsibility for his and is not sophistication-and-maturi- ture meant for the juvenile’s ability to a consideration of whether he ty to restricted factor to embrace rights intelligently rights and and assist in can waive assist waive his constitutional Later, great many preparation of his defense.” Id. It that a of his defense. is true Appeals of observed that appeals to think that it Houston 1st Court the courts of seem requirement transfer order in courts have held that the ”[o]ur court’s does. ' [juvenile] early Buchanan included that the court consider child’s case of In re maturity ques- finding. sophistication at So did and refers to the 433 S.W.2d such a W.R.M., culpability responsibility tion of and orders In re courts’s Honsaker, conduct, 181-82, consider- Matter child for his as well 534 S.W.2d at of 200, P.G., intelligently he can 616 S.W.2d at ation of whether waive his 539 S.W.2d at Casiano, rights and Matter and assist in his defense.” Matter S.W.2d at S.E.C., added). D.D., relatively (emphasis Another 938 S.W.2d at 175. case, however, emphasis did the latter view of the relevance of a early found this on Thus rights rights juvenile’s ability juvenile’s ability waive and to waive his and assist his creep into difficult to in his defense as an adult our assist in his defense "somewhat R.E.M., jurisprudence. at 846. No case has ever undertaken understand.” however, juve- explain, exacdy Appeals how ”believe[d] The San Antonio Court thereof) (or capacity to waive his requirement nile’s lack that the rights in his defense maturity sophistication constitutional and assist consider the rehabilitating appellant given appeals’s its avail- conclusion But, finding regarding resources. because the this Section able 54.02(f) supported factor was by factually appellant’s not cite the back- court did insufficient evidence in that it was so ground as a reason for his transfer in its great weight preponder- order, findings written these of fact are ance of the evidence as manifestly to be superfluous. unjust.89 Moreover, regard even were we to conclusory the recitation of these facts in IV. CONCLUSION the written transfer order to constitute an of appeals did not err to un- acceptably implicit juve indication that the factual-sufficiency dertake a review of the nile court also considered the appellant’s underlying evidence the juvenile court’s transfer, as a for the background reason waiver of jurisdiction over the appellant. uphold we would nonetheless the court of Because the court made no case- First, appeals’s judgment. respect with specific findings of fact respect with appellant’s sophistication maturity, offense, agree seriousness we agree

we with the court of the court of the evidence fails legally support evidence was insufficient to this as a valid reason for waiv- finding, such a since the State offered no ing juvenile-court jurisdiction. Even had juvenile hearing evidence at the to inform juvenile the court cited the appellant’s juvenile court’s consideration of that background as an justi- alternative basis to 54.02(f) Second, Section factor.88 with re transfer, fy his appeals the court of was spect to the prospects protecting for correct sufficiency to measure the of the public rehabilitating appellant, and we to support evidence this reason liberty second-guess are not at to the court findings of fact in the transfer made order Moon, ("[T]here to is relevant whether the welfare of the com 88. See 410 S.W.3d at 375 transfer, munity requires support must and we fail be some evidence to to see finding appellant] court’s that [the was suffi- appeals right that it Other is. courts of have ciently sophisticated and mature for the rea- ly purpose inquiry declared "the of an into specified by uphold sons the court in order to ability maturity the mental and its waiver determination. Our review finds appreciates to determine [to be] whether he supportive finding no evidence of the court’s voluntary nature and effect of his actions appellant] sophisti- that was ‘of sufficient [the they right wrong." and whether were or maturity intelligently, cation and to have E.D.N., (citing Matter 635 S.W.2d at 801 of knowingly voluntarily all waived constitu- State, 428, (Tex.Civ L.W.F. v. 559 S.W.2d 431 rights tional heretofore waived ... [and] 1977, n.r.e.)). .App Worth ref’d In our . -Fort preparation have aided of de- [his] view, juvenile's capacity to waive his con ”). find fense.’ We no such evidence in the rights help lawyer stitutional to effec record either. tively represent misguided him is almost as logic present case State, 89. Id. at See 377-78. Cain v. orally pronounced appellant when it that the ("Our (Tex.Crim.App.1997) S.W.2d alia, transferred, merely should be inter inability questions precludes to decide of fact judicial economy, the sake of so that his case appeals'^] de novo of courts of review factual already- could be consolidated with that of his State, decisions.”); Laster v. certified-as-an-adult co-defendant. Such a ("We (Tex.Crim.App.2009) do not con very notion is the antithesis of the kind of review.”); sufficiency factual duct de novo propriety individualized assessment of the of (Tex. Villarreal v. juvenile jurisdiction ("Once waiver of that both Kent Crim.App.2009) appeals a court of has expect juve and our scheme determined such a claim of ‘factual’ insuffi nile court in the exercise of its transfer discre ciency, not a de this Court conduct novo determination.”). tion. review of the lower court’s Keller, P.J., dissenting opinion filed a the evidence conclude that and to itself J., Hervey, joined. findings. which those insufficient was the court of judgment of We affirm forty years, tendency For almost appeals.90 appeals courts of has been to among the order need hold that a P.J., Keller, dissenting opinion filed a supporting the facts specify not detail J., joined. Hervey, which appeals The court of this the order. that weight with the of J., case broke rank Meyers, dissented. spe- for additional appellant cause to the State nor the has Neither the ap- propriety findings of fact to determine retroactive- cific contested party disposition; neither ar- peals’s ly original ultimate transfer order was val- whether its erred, Elias, appeals even in gues the court of id. In State v. holding light of its example, (Tex.Crim.App.2011), for we held jurisdiction, to waive its discretion abused have the court of should not "pending in cause remains declare that the grant trial court’s of a motion to affirmed the Moon, 410 S.W.3d at juvenile court.” remanding suppress without first the case to ineluctably question nevertheless missing supply but critical the trial court to Pending for what? We leave presents itself: findings appellate review of of fact to inform court, question for the but we do motion, ruling aegis under the on legislatively provided one note that at least Appellate Rule 44.4 of the Texas Rules would seem to be for the alternative (a) pro- Procedure. Subsection of this rule hearing a new transfer court to conduct vides that court of must "[a] transferring appellant another order enter judgment affirm or reverse a or dismiss an court, the criminal as- (1) appeal ac- if: the trial court's erroneous satisfy the criteria suming that the State can prevents the tion or failure or refusal to act 54.02(j) the Juvenile Justice Section under proper presentation of a case to the court of 54.02(j)("(j) Code. See Tex Fam.Code (2) appeals; and trial court can correct its original may its exclusive juvenile court waive action or failure to act.” P. Tex.R.App. person ap- transfer a jurisdiction and (b) 44.4(a). requires appellate the Subsection or criminal district propriate district court court to "direct the trial court to correct the (1) per- proceedings if: the court for criminal 44.4(b). error.” P. There are at TexR.App. older; (2) age person years of or the son is 18 problems with a remand least two such here. (A) years age and under of or older was: all, First of it is far from clear that Rule 44.4 age person at the time the is years of can be read to authorize an court to ... an un- alleged have committed offense (not court”) juvenile trial direct a court "the Code; 19.02, (3) Penal ... no der Section missing finding Secondly, supply a of fact. concerning alleged adjudication the offense fundamentally, jurisdic- there is a and more adjudication hearing has been made or no impediment applying Rule 44.4 in tional conducted; concerning offense has been the present context—a kind of chicken-and- the (4) preponder- juvenile court finds from a the egg paradox. juvenile (B) The court has either ... after due ance of the evidence that: validly jurisdiction, waived its exclusive there- diligence practicable the state it was not by conferring jurisdiction on the criminal proceed juvenile 18th court before the courts, (iii) not. We cannot order the birthday person ... a or it has of the because: by appeals previous ap- an court of to remand the cause to the order was reversed court; pellate by juvenile we affirm or aside a district court unless and until its set (5) judgment juvenile court determines that the court’s transfer the the probable there is cause to believe that criminal order was invalid and that the courts acquired jurisdiction. child before the court committed the offense therefore never Unless alleged.” (emphasis supplied)). and until the transfer order is declared inval- id, that, jurisdiction, and the criminal courts retain suggested It has been rather than af- jurisdiction to retro- court lacks appeals's firm the court of reversal of order, findings actively supply critical of fact to es- juvenile court's transfer we should first validly it has waived its the court of tablish whether or not remand the cause to jurisdiction. an order remand the (3) authority, goes along this now previous Court record and history of child; appeals’s with the court of unconventional would, instead,

holding. (4) I stick with the the prospects adequate protection path by conventional followed most of the public and the likelihood of the n ease, appeals. In the present courts rehabilitation of the child use of pro- complied transfer order with the statute cedures, services, currently and facilities for the by listing reason transfer. available to the court.2 Moreover, if the order was effective juvenile court waiving jurisdiction A order given reason for transfer —seriousness of must “state ... specifically its reasons for the offense—was supported sufficient waiver and certify its action.”3 clearly supports evidence. The evidence 2. The Transfer Order Need given. the reason not Detail the Facts statute, In construing a we Requires give effect to A. What the Statute plain meaning of its text unless the 1. The Text language of the statute is ambiguous or plain Family provides meaning leads to absurd Code results that the legislature child above a could not age possibly certain who commits one have listed, intended.4 provisions None of the types quoted of offenses if, require above court to recite waive its upon which holding its transfer is facts investigation hearing, after a full and a Rather, based. scheme court determines that there merely directs the court to state probable cause to believe that the reasons for the waiver. And as the child before the court committed the clear, opinion Court’s makes weight alleged offense and that because of the authority in the courts of appeals suggests alleged seriousness of the offense or the the reasons in support of transfer background of the child the welfare may be conclusory, and transfer orders community requires pro- criminal may simply statutory language.5 recite the ceedings.1 legislature’s change failure to the stat- determination, In making this utory wording light authority of this consider, among court must other matters: some indication that legislature ap- (1) whether alleged offense was proves given.6 of the construction More- against person property, greater or with over, if the legislature had wanted to re- weight in favor of given-to of- quire court to recite the facts person; fenses transfer, that support its decision to (2) sophistication maturity legislature easily could have drafted lan- child; guage to that effect.7 54.02(a)(3). § Colyandro, 1. Tex. 6. v. State Family Code (Tex.Crim.App.2007). 54.02(f). § 2. Id. 11.07, e.g. 7. See Tex.Code Crim. Proc. art. 54.02(h). §

3. Id. 4(a) § (requiring subsequent application a “specific establishing contain sufficient facts” (Tex. Boykin v. excep- circumstances that would constitute an Crim.App.1991). general prohibiting tion to the rule subse- op. quent applications). 5. See Court's at n. 54. habeas beyond what the analysis a court’s strains assuming Supreme Court’s And even legislature had requires. If statute States8 in Kent United pronouncements supported listed to be us, wanted the factors statutory scheme before influenced subject to a evidence and by sufficient juvenile court hold that a did not that case review, have made sufficiency it could forth its order to set required was issues, imposed a burden special them decision. its transfer supported facts factors, proof respect to the individual held Rather, simply Court Supreme a finding be made on required or that a required statute before that the federal the stat- factor or factors.13 But particular accompany its waiver court “to court to require ute does not reasons or order with a statement true, factor and the any particular find Supreme The therefor.”9 considerations The are not exclusive. factors that it did not read expressly stated Court a analogues closest transfer statute’s require federal statute special issue are “seriousness formal or that it of reasons “be statement the child” “background offense” necessarily include conventional should statutory for transfer. four reasons Supreme Court findings of fact.”10 non-exclusive appear to be mere of relevant factors suggest that a “statement did review, deciding whether one of those guides necessary facts” was for a transfer exists. In that two reasons was made the con- suggestion but that statutory appear factors respect, the four hearing in which no was a case text of a role similar to that of the Keeton and, so, play have held,11 no evidence would future-danger- respect factors with present matter. In the on the been heard capital issue in murder case, hearing, special the record of ousness there was appeal on to deter- cases.14 can be reviewed which facts elicited at the hear-

mine whether the Attempting sufficiency to conduct a re- juvenile court’s stated rea- ing support the individually view on the four factors cre- son for the transfer. myriad problems, especially ates when sufficiency is involved. If factual review Statutory Factors are The Four sufficiency a factual review of one conducts Individually Subject to a one ac- individually, each factor how does Sufficiency Review cumulative effect of possible count for the is, if multiple factors? That two or more treated the four

The court of sufficient supported by legally factors are factors outlined above as individ- evidence, review,12 factually insufficient must all sufficiency and but ually subject to a disregarded be as insuffi- approach legiti- this of the factors upholds the Court cient, multiple or can factors that are indi- approach artificially con- mate. But this 37.071, 2(b) 16 L.Ed.2d 84 13. See Tex.Code Crim. Proc. arts. 86 S.Ct. 8. 383 U.S. 42.12, (1966). case), penalty (special issues in a death finding). 3g(a)(2) (deadly-weapon 561, 1045. 9. Id. at 86 S.Ct. 58, State, v. 724 S.W.2d 61 14. See Keeton Id. (setting (Tex.Crim.App.1987) forth a list of Id. assessing may a factors that be considered dangerousness). future defendant’s State, 366, v. 410 S.W.3d 372-78 12. See Moon 2013, pet. grant- (Tex.App.-Houston [1st Dist.] ed). Moreover, vidually supported by factually insufficient the nature of at least two of the four statutory factors suggests that a up evidence nevertheless add to sufficient .sufficiency review of the individual factors evidence as a whole? is inappropriate. The first statutory fac- conducting sufficiency And a review tor —whether alleged offense was enough individual factors is not to resolve against person or property just ques- a —is because, question the transfer at least in tion question of law. The simply is wheth- estimation, proof the Court’s of an individ- er alleged . the offense is a against crime a necessarily ual factor is not enough to person, against a crime property, or a were, appellant’s a transfer. If it crime that falls within neither of those clearly supported categories. transfer would be be- The answer to that question by can be resolved looking solely to the factor, alleged cause the first whether the charges. State’s The fourth statutory fac- against person property, offense is or prospects tor—the of protecting public definitively has been established and rehabilitating the for pre- child—calls State’s favor. Under the reason- Court’s dictions, such, and as would not seem to be of an ing, proof because individual factor is subject the sort of issue that would be to a necessarily not enough, sufficiency factual review.17 must still decide whether the factors as a Finally, the non-exclusivity of the four whole, factors, any other relevant are statutory factors also raises the issue of justify sufficient to either the “seriousness importing its fac- own “background of the offense” or of the tors and how we would conduct a sufficien- (or both). child” reasons for transfer This cy review in that context. This is not a results in a approach two-tiered to suffi- because, hypothetical question mere ciency: analyzing first the sufficiency of case, present the transfer order included factors, assessing the individual and then two factual conclusions that are not cov- sufficiency of the factors as a whole. (1) ered statutory four factors: analogue The closest ap- this two-tiered (2) appellant charged was with murder and proach is the test for constitutional probable that there was cause to believe violations, speedy-trial in which the indi- the offense had been committed. The first subject vidual factors are to a bifurcated undeniably legal is true as a matter and balancing standard of review and the supported by legally the second is subject those factors is to de novo review.15 factually sufficient evidence. fact context, But in that the factors are exclu- import trial court can its own factors and, sive once a showing threshold is suggests conducting a sufficiency re- made, they must all be balanced view of an individual factor myopic is each other16—neither of which is true of real, best. The relevant question is wheth- factors in the juvenile trans- er the matters considered the trial fer context. justify court are sufficient to a transfer on State, right wrong 15. See Cantu v. they S.W.3d or at the time of trial— State, (Tex.Crim.App.2008); Johnson v. only be shown as accurate or inaccurate events_ (Tex.Crim.App.1997). [Ojnce by subsequent the ration- established, ality prediction attempt- State, 16. See Gonzales ing jury’s prediction to determine whether a (Tex.Crim.App.2014). probability dangerousness of future wrong unjust nevertheless or because of coun- 17. See McGinn v. task.”). tervailing impossible ("But, evidence is an (Tex.Crim.App.1998) predictions are 56 to assess the so- the offense can be used of the offense seriousness

the basis child, maturity of the the child. and phistication background or of least some respects.20 Four are Relevant Two and 4. Factors factor,, the to the fourth respect With to the Seriousness-of-the-Offense crime and the back- circumstances of the for Transfer Reason are both relevant to of the child ground it concludes errs when also The Court pro- determining society whether can be fourth fac- and second can be rehabilitated. tected and the child “background only to relevant tors are mur- explained capital have in the As we The statuto- for transfer. reason of child” context, circumstances of the of- der purpose not limit does ry language determining to highly are relevant fense may statutory factors be four which the poses danger a future whether a defendant considered, fourth fac- the second and are sufficient society, to and sometimes to may well be relevant in particular tors protection-of- The themselves to do so.21 offense” reason for the “seriousness issue public/rehabilitation sophisti- factor—the The second transfer. inquiry into the context is much like the child—relates to maturity of cation and special issue. future-dangerousness reason for the seriousness-of-the-offense First, the more ways. in two Was B. Statute Satisfied child, and mature sophisticated court’s transfer order blameworthy likely his conduct is more of the seriousness of states that “because legitimate is a fac- Blameworthiness be.18 offense, community the welfare of the determining the seriousness of an tor in Second, criminal Under requires the circumstances of proceeding.”22 offense.19 Simmons, 571, 551, one of them—the com Roper U.S. and we believe this is v. 18. See 1183, ("Retri- (2005) plexity applicant’s and the role of the offense 161 L.Ed.2d 125 S.Ct. squared with a in the offense need to be if proportional the law's most bution is retardation.”); finding parte of mental Ex Bri imposed penalty is on one whose cul- severe seno, 1, diminished, (Tex.Crim.App.2004) 135 S.W.3d pability or blameworthiness (circumstances fore of offense show youth degree, reason of a substantial complex thought, planning, and execution of immaturity.”). purpose). 302, Penry Lynaugh, 492 U.S. 322- 19. See 457, State, (Tex. 21. Devoe v. (1989) 406 L.Ed.2d 256 109 S.Ct. ("The Crim.App.2011) circumstances of (defendant’s constitutionally culpability moral surrounding may the events be offense and whether he should receive the relevant to ‘yes' sufficient in some instances sustain jury given be a vehi penalty and must death dangerousness special future answer to the give effect to evidence of facts cle to issue.”); Druery v. the defendant’s blameworthi would reduce ("But (Tex.Crim.App.2007) the circumstances ness). among can be the most of the offense itself dangerousness.”) revealing evidence future Sosa, parte 20. See Ex omitted). (internal quotation marks ("We agree (Tex.Crim.App.2012) cannot categorically are irrel the facts of the offense wording portion of the 22. The exact of this of mental retarda evant to the determination juvenile court's order is as follows: Eighth purposes. The Amendment tion for investigation hearing which an claimant capital offense for Atkins full at which After MOON, generally FA- hearing, will be one of CAMERON was convicted said life, THER, present; events in his and cer MICHAEL MOON were best documented CAMERON proven jury the court finds that the said will have been tain facts MOON, charged a violation of a beyond doubt. In some cases— a reasonable 54.02(a)(3), after the offense. Text by messages § itself was a sufficient and sent this transfer, co-conspirator if is ade- before the crime asked a if justify a reason to ready begin bring the he was and to a supported by gun. record. quately crime, messages In text after the appellant Moreover, transfer order stated that involvement, attempted up to cover his the four juvenile court had considered saying: say “Don’t a word.” “Tell them factors, and the transfer order statutory my Crazy, you name is and don’t know factors in the State’s found three of those I where live.” factor, regard favor. With first one The offense appellant charged court found and that this offense was was one of person. regard With with—murder—is the most serious Code, factor, crimes in the Penal but under the statutory second presented, appellant’s “of sufficient so- evidence conduct—a appellant found that was maturity robbery to have intelli- murder the course of a phistication and —could murder, knowingly voluntarily charged capital waived have been gently, rights pun- all constitutional heretofore offense carries most serious waived[,] Appellant ... ishment in this state.24 prepara- to have aided showed responsible forethought planning robbery by tion of his defense and to be a set- regard ting up drug giving conduct.”23 And with a fake deal and in- his factor, accomplice. structions to his He showed fourth aggressiveness pursuing fleeing based on the evidence and vic- stated any, attempted “there is little if tim. And he to cover reports presented, up his involvement in the crime prospect adequate protection pub- by admonishing accomplice appellant only by lic likelihood of rehabilita- his to refer to reasonable [appellant] by procedures, say tion of use of a nickname and he was unaware of services, currently appellant where and facilities available lived. This evidence serious, crime that only to the Juvenile The transfer or- showed a was not Court.” effect, pointed appellant der also out that was because of its but also because of charged aggression with murder and concluded that how it was conducted—with re- probable forethought apparent there was cause to believe that and without been committed. morse. offense had presented hearing The evidence at the This Court and the court of only wrong by applying at the appel- demonstrates the seriousness of arrive result standards; wrong to be there are other Appellant pretended lant’s offense. In drug analyses. analyz- and set a fake deal flaws in those courts’ drug up seller factor, robbery. ing sophistication-and-maturity in order to He accomplish the court of and this focus pursued and shot the victim as the victim Court appellant’s ability on to waive his constitu- Appellant fled. sent instructions text rights tional and assist in his defense. But message co-conspirator to a both before penal grade felony, if lieve that the child committed the OF- law of the commit- adult, alleged ted an to wit: MURDER commit- and that because of the FENSE JULY, OFFENSE, day ted on or about 18TH the welfare of seriousness of 2008; adjudication community requires proceed- that there has been no criminal OFFENSE; years of THIS that he was 14 ing. age or older at time of the commis- Emphasis added. alleged having sion of the OFFENSE been FEBRUARY, day born on the 26TH 1992; 19.03(a)(2). probable that there to be- 24. See Tex. Penal Code cause only aspect sophistica- not the

that was Hernandez, HERNANDEZ, Jose Linda in the maturity described tion and Gil, Raul Vasquez, Claudia Javier by the court Overlooked order. court’s Vasquez, Appel- Vasquez Virginia and the fact that the this Court appeals and lants to have appellant found court also maturity to be sophistication sufficient That latter for his conduct. responsible NICHOLS, WATKINS, ABRAHAM, evi- by the ampfo/supported conclusion FRIEND, Texas Gen- SORRELS & in connection record. And dence Sorrels, Partnership, Randall eral factor, statutory the court fourth

with the Jr., Agosto, Appellees. Bernardino to the State’s short shrift appeals gave No. 14-13-00567-CV. cir- regarding the arguments legitimate Texas, Appeals Court of inaccurately of the offense and cumstances Dist.). (14th Houston conflating the State of various accused statute.25 Given subsections Oct. appeals’s opinion and in the court of flaws 13, 2014. Rehearing Overruled Nov. conclusions, we clearly erroneous its affirming today. be its decision should not

G. Conclusion that the court of I hold would improperly overturned juvenile court did not and that the decision to adult crim- transferring appellant err dissent. respectfully inal court. I Moon, (acknowl arguments the State’s was a at 375 of the offense or 25. See passing nature edging pointed reference to "the that the State to the offense itself, showing charged helping to establish the that it was com offense” to evidence (but transaction, sufficiency) legal sufficiency not factual during drug and to the mitted statutory repeatedly of the evidence to show the fourth appellant shot the victim fact factor). sufficiency acknowledging Even if a factual review fled and the State's while he factor, apply could to the fourth that "based on the seriousness of contention alone, analysis inade sufficiently appeals's would be the evidence offense failing relevant appellant’s quate for to "detail all the transfer was demonstrated exactly explain ... what public's protec need for evidence and consistent factually insufficient." concluding manner the evidence is tion” but that the State conflated (Tex. (a)(3) (f) statute); id. Steadman v. subsections Crim.App.2009). (only of the circumstances discussion

Case Details

Case Name: Moon, Cameron

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 10, 2014

Citation: 451 S.W.3d 28

Docket Number: PD-1215-13

Court Abbreviation: Tex. Crim. App.