### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON REHEARING

NO. 03-16-00556- CV

In the Matte r of J. G. S.

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F H AY S CO UNTY NO. 491 5, H ONO RAB LE ROB ERT UP DEGROVE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

We withdraw our opinion and judgme nt issued on Fe bruar y 10, 2017, and substitut e the following opinion and judgme nt in their place

.

The State filed a motion for discretionar y transfe r in the juvenile court reque sting that the court waive its e x clusive jurisdiction ove r J .G.S., a minor, and transfe r him to criminal district
court to be tried as an adult for the offe nse of murder. The juvenile court o rd ere d the statutorily require d social evalua tion and investiga tion and set the motion for a hear ing. Following the hear ing, the court g rante d the motion, waived its exclusive jurisdiction, and transfe rre d the case to district
court. This acc eler ated appea l followed. We will vaca te the juvenile court’s order and rema nd this

case to the juvenile cour

t for proc eeding s consistent with this opi nion.DISCUSSIO N
I n three issues, J .G.S

. ch al leng es the juvenile court’s waiver of jurisdiction. Specifica lly , he contends that the transfe r order did not state, with ade quate spe cificity , the fac tual underpinning s of the court’s conclusions an d gro u n d s for transfe r and that the evidenc e from the transfe r hear ing is leg ally and fac tually insufficient to support the court’ s decision to waive jur isdiction.

I. Appli cable law an d stand ard of review Section 54.02(a) of the J uvenile J ustice Code provides that the juvenile court may waive its exclusive orig inal jurisdiction and transfe r a child to the criminal district court for crimi nal
proce eding s if the following is determined:
(1) the c hild is allege d to have violated a penal law

of the g rade of fe lony ; (2) the child was . . .14 y ear s of ag e or olde r at the time [of the allege d] offe nse, i f the offe nse is a capital felony , an ag g ravated controlled substance felony , or a felony of the fir st deg ree [; ] . . . and (3) a fter a full investigation and a hear ing, the juvenile cour t determines that ther e i s p ro b ab l e cause to believe that the child befor e the court committed the offe nse alleg ed and that beca

use of the seriousness of the offe nse alleg ed or the backg round of the c hild the welfa

re of the community

require s criminal proc eeding s.

Tex. Fam. Code § 54.02(a)

. When deter mining the seriousne s s o f the offe nse alleg ed or the backg round of the child purs u ant to the third require ment, section 52.04(f) require s the juvenile court to consider the f

ollowing non- exclusive factor s:

2(1) whether the alleg ed offe nse was ag ainst person or proper ty , with g rea

ter weig ht in favor of

transfe r g iven to offe nses ag ainst the person; (2) the sophistication and ma turity of the c hild; (3) the r ecor d and pre vious history of the c hild; and (4) t h e prospec ts of adequate protec tion of the public and the likelihood of the reha bilitation of the child by use of proce dures, service s, and fac iliti es curr ently available to the juvenile cour t.

Id. § 54.02(f)

. As the petitioner seeking waiver of the juvenile court’s jurisdiction, the State has the burden “to produce evidenc e to inform the juvenile court’s discretion as to whether waiving its otherwise- exclusive jurisdiction is appropr iate in the particula r c a s e . ” M o o n v
. State , 451 S.W .3d 28, 40 (Tex. Crim. App. 2014). The State must “per suade the juvenile court, by a preponde ranc e of the evidenc e, that the welfa

r e o f th e c o mm

u n it y r e q u ires transfe r of

jurisdiction for criminal proce eding s, either beca

use of th e s eriousness of the offe nse or the backg round of the child (or both).” Id. at 40-41. When exercising its discretion to waive jurisdiction, the juvenile court must consider all four of the fac tors listed in section 54.02(f)

. Id. at 40. Although it makes its final deter mination from the evidenc e conce rning the section 54.02(f ) fa ct o rs , the juvenile court “nee d not find that eac h and

ever y one of those fac tors favor s transfe r befor e it may ex er ci s e i t s discretion to waive jurisdiction.” Id.

I n Moon v. State , the court of criminal appea ls rec ently elabor ated upon the statutory require ment that, if the juvenile court waives jurisdiction, it must “state specific ally ” in its order its

rea sons for wa iver:

3Secti o n 5 4 .02(h) obviously contemplates that both the juvenile court’s rea sons for

waiving its jurisdiction and the finding s of fac t tha t unde rg ird those rea sons should appea r in the transfe r order

. I n this way the L eg islature has require d that, in order to justify the broad discretion invested in the juvenile court, that court should take pains to “show its work,” as it wer e, by sprea ding its deliberative proces s o n t h e re cord, there by providing a sure- footed and definite basis from which an appellate court can deter mine that its decision was in fac t appropr iately g uided by the statutory criter ia, principled, a

nd rea sonable . . . .

Id. at 49. The court emphasized that a revie wing court “should not be made to rummag e throug h the

rec ord for fac ts that the juvenile court might have found, g iven the evidenc e develope d at the transfe r hear ing, but did not include in its written transf er or der.” Id. at 50. The court al s o clarified the standard of revie w when a juvenile court waives its exclusive jurisdiction pursuant to section 54.0 2 : “[I ]n evalua ting a juvenile court’s decision to waive its juris d i ct i o n , an appellate court should first revie w t he juvenile court’s specific findings of fac t
reg arding the Section 54.02(f) fac tors under ‘traditional sufficie ncy of the evidenc e revie w.’” Id

. at 47. Under a leg al sufficie ncy challeng e, we cre dit evidenc e favor able to the challeng ed finding and disreg ard contra

ry evidence unless a rea sonable fac t finder could not reje ct the evidenc e. Moon

v. State , 410 S.W .3d 366, 371 (Tex. App.—Houston [1st Dist.] 2013) , aff’d , 451 S.W .3d 28. I f there is more than a scintilla of evidenc e to support the finding , the no-evide nce challeng e fails. Id. Under

a fac tual sufficie ncy challeng e, we consider all of the evidenc e prese nted to deter mine if the court’s finding is so ag ainst the gre at weight and preponde ranc e of the evidenc e as to be clea rly wrong or unjust. Id. Our re view of the sufficie ncy of the e vidence supporting w aiver is limit ed to the facts the juvenile cour

t expressly

relied on in its transfe r orde r. Moon , 451 S.W .3d at 50.

4We must also revie w the juvenile court’s ultimate waiver decision under an abuse of

discretion st andar d. Id. at 47. We must consider, in light of our analy sis of t he sufficiency of t he evidenc e to support the s tatutory fac tors—and as limited by the express fac t findings contained in the transfe r order

—whether the juvenile court acte d without ref ere nce to g uiding rules or principles. Id. at 47, 50.

II. The or der wai ving jurisdiction in the present case lacked the case- specific find ings of fact required und er Moon
I n h is third issue, J .G.S. arg ues that the juvenile court’s order waiving jurisdiction lacks the case -spec ific fac t finding s nece ssary to support transfer t o t h e criminal district court. We ag ree . I n its transfe r order , the juvenile court noted that it was considering the fac tors mandated by

section 54.02(f

) and ma de the f

ollowing de terminations rele vant to this appeal:

1. [J .G.S.] is alleg ed to have violated a penal law of the State of Texas of the g rade of a F irst Deg ree felony , to wit: that on or about the 2 day of April, 2016, the said n d child violated a penal law of this State punishable by imprisonment or confine ment in jail, to-wit: Murder § 19.02 of the Te x as Penal Code. 2. The a lleg ed off

ense w as committed ag ainst . . . the dec edent.
3. [J .G.S.] is a male c hild who was born on the 12 day of Aug ust, 1999, and who t h is sevente en (17) y ear s of ag e at the time of this hear ing but six teen (16) y ear s at the time of the off

ense. * * *
8. Prior to the hear ing

. . . the C o u rt o rd er ed the Hay s County J uvenile Probation Depa rtment complete a Social E v aluation and full investigation of the child, his circ umstances, and the circ umstances of the alleg ed offe nse. The C ourt order ed a study conce rning [J .G.S.] as required in Texas Fa mily Code § 54.02(d), and said

5study was perf ormed by Dr. David L ander s. The entire study is cre dible, along with al l t h e o ral testimony offe red by Dr. David L ander s. Additionally , Dr. Eric Fr ey testified as an expert witness for [J .G.S.]

. Dr. Fr ey ’s oral testimony and written repor t are found cr edible.
9. The Court has considere d written repor ts from the probation office r, profe ssional court employ ees, and profe ssional consultants in addition to the t es timony of witnesses and finds that the Court has complied with the five day require ment prior to hear ing [si c] in making available to J ere miah Wil liams, attorne y o f rec ord, all written mater ials to be consider ed by the Court in making this transf er de cision.
10. The Court c onsidered the sophistication a nd maturity of the child and finds the Respondent is sophisticated and mature under the code. [J .G.S.’s] sophistication and maturity is normal as compar ed to other juveniles of this ag e. [J .G.S.] posess[es] the cog nitive abilities and aca demic skills to u n d er stand court proce eding s and to participa te in his own defe nse. 11. Notwit h standing the curr ent char g e of murder and possession of marijuana in this cause , [J .G.S.’s] juvenile history is limit ed to one char g e of Unlawf ul Carry of 1 [ ] a Weapon (Class A misdemeanor) alleg ed to be committed on November 23, 2015. [J .G.S.] rec eived no service s throug h Hay s County J uvenile Probation, or any other J uvenile Depa

rtment, befor e the curr ent char ge an d detention of Murder

. The Unlawf ul Carry of a Weapon is curr ently pending in the Hay s County Court at L aw. 12. The Court considere d the rec ord and previous history of the ch i ld and the prospec ts of adequate protec tion of the public and the likelihood of reha bilitation of the child by use of proce dures, service s and fac iliti es cu rr en t l y available to the juvenile cour

t will not l ikely

adequately

[si c] to rehabilitate Respondent. * * *
14. The Court ha s considere d the seriousness of the offe nse and the backg round of the child and finds that beca use of the seriousness of the offe nse, the sophistication and maturity of the child which is sufficie nt to assist in his own defe nse, among other things, and beca

use the offe nse was committed ag ainst an individual

. . . the welfa re of the community requires t h at criminal proce eding s proce ed in criminal court conce rning the afor ementioned felony offe nse and all criminal conduct occur ring in said criminal episode

.

The State soug ht w aiver of the juvenile c ourt’s jurisdiction only over the murder char g e. 1 6The juvenile court’s order indi cate d two rea sons for wa iver: (1) the seriousne ss of

the offense and (2) J .G.S.’s backg round. I n support of t he former , t h e order cites t he fact t hat t he offe nse wa s committed ag ainst a per son. I n support of the latter , the order cites the sophistication and maturity of appellant and that reha bilitation is unlikely

. As instructed by Moon , befor e rea ching the question of whe ther suff icient evidenc e supports transf er, w e conclude that the or der la cks the

case -spec ific finding s of fac t nece ssary to support the court’s rea sons for waiving jurisdiction under
Moon

. See M

oon , 451 S.W .3d at 48-51.

A. The of

fense w as com m itted against a person The first rea son for transfe r cited in the order was the seriousness of the offe nse. But the only finding in supp o rt o f t h at reason contained in the order was the fac t that the offe nse was committed ag ainst a per son. Although tha t finding is releva nt to a transfe r dete rmination, it alone does not justify

transfe r. See id. at 48 (tra nsfer order that cites categ ory

of ca se without providing specific s of offe nse will n o t s u p port transfe r). Absent from the order are case -spec ific fac ts
reg arding the char g ed offe nse or J .G.S.’s role in it that would provide a revie wing court a basis for defe renc e reg arding the juvenile court’s conclusion that the welfa re of the community require d criminal proce eding s beca use of the seriousness of the offen s e. S ee id. ; see also Bell v. State ,

___ S.W .3d ____, No. 01-15-00510- CR, 2016 WL 7369204, at *4-5 (Tex. App.—Houston [1st Dist.] Dec

. 15, 2016, no pet. h

. ) (orde r defic ient beca use lacke d case -spec ific finding s reg arding seriousness of offe nse, and child’s backg round not cited as rea son for transfe r); cf. In re S.G.R. , 496 S.W .3d 235, 240 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (court found that juvenile participa ted in g ang -re lated murder in which 14-y ear -old child sustained 46 injuries from mache te);

7In re K.J. , 493 S.W .3d 140, 143-33 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (orde r detailed

“eg reg ious and ag g ravating” fac ts of multipl e off enses)

.

B. J.G.S.’s background Turning then to the second cit ed rea son supporting transfe r—J.G.S .’s backg round—w e conclude that the order ag ain fails to provide case -spec ific finding s of fac t that support transfe r on that basis. See Moon , 451 S.W .3d at 49.

i. Soph istication and m aturi ty The order states that J .G.S. is “sophisticated and mature under the code,” explaining (1) his “sophistication and maturity is normal as compar ed to other juveniles of his ag e,” and (2) he “posess[es] the cog nitive abilities and aca demic skills to understand co u rt proce eding s and
p ar t i ci p at e in his own defe nse.” First, it is unclea r how a finding that J .G.S.’s sophistication an d maturity is normal for his ag e, without more, justifies transfe r from a sy stem desig ned to adjudicate individuals his age absent a dditional fact finding s favor ing tr ansfe r. 2

Second, the Moon court indicated that a deter mination as to whether a juvenile is able
to assist in his own defe nse is an improper application of that statutory fac tor. Id. at 50, n.87. The 3

A determination that such a finding supports trans fe r woul d also seem to impermissibly 2 shift the burden to the defense to demonstrate below-a vera g e sophi stication and maturity to avoid transfe r to the adult criminal-justice sy stem. See Moon v. State , 451 S.W .3d 28, 40 (Tex. Crim. App. 2014) (State ha s burden to demonstra te proprie ty of transf er)

. We note that the Moon court observe d that a sophistication-and-matur ity finding “would 3 have be en re levant to support t ransf er,” but conclude d that, beca use t he orde r did not cite Moon’s backg round as a rea son for transfe r, that finding was “super fluous.” Id. at 50-51. There fore , the court’s comments reg arding proper application of that fac tor are not binding, but the court’s analy sis is instructive of that issue. 8court observe d that “it is doubtful that the L eg islature meant for the so p h i s tication-and- maturity

fac tor to embra ce the juvenile’s ability to waive his constitutional rig hts a nd assist in his de fense .” Id. Rather, the court opined, the purpose of that consideration is to deter mine whether the juvenile “appr ecia tes the nature and ef fec t of his voluntary actions and whether they wer e right or wrong .” Id. (quoting In re E.D.N. , 635 S.W .2d 798, 800 (Tex. App.—Corpus Christi 1982, no writ); see also Matthews v. Sta te , ___ S.W .3d ___, Nos. 14-15-00452- CR, 14-15-00577- CV, 14-15-00616- CV, 2016 WL 6561467, at *7, n.4 (Tex. App.—Houston [14t h Dist.] Nov. 6, 201 6 , n o pet. h.) (noting that juvenile court may have misapplied that fac tor in finding that juvenile possessed suff i ci en t sophistication a

nd maturity to a id in his de fense but concluding that other finding s were sufficie nt
to support waiver ). I t is thus un clear from the order that the court proper ly applied that statutory criter ion. Moon , 451 S.W .3d at 49 (finding s must provide “a s u re -footed and definite basis from which an appellate court can deter mine that its decision was in fac t appropr iately g uided by the statutory criter ia, principled, a

nd rea sonable” ).
ii. Record and previous hi story The order indicates that J .G.S.’s criminal histor y i s limit ed to one unlawful-c arr y char g e that was then pen d i n g and that he had rec eived no service s from any juvenile depar tment befor e the curr ent char g es. The S t at e does not contend, and we do not find, that one pending misdemeanor c harg e would support tra nsfer

.

9iii. Protection of th e public and rehabil itation of the child Finally , the order states that re habilitation of J .G.S. is not l ikely

. Ag ain, howeve r, 4
the order provides no case -spec ific information underpinning that conclusion. Cf. K.J. , 493 S.W .3d
at 145 (orde r cited numerous case -spec ific fac ts supporting conclusion that defe ndant posed risk to public and wa s unlikely

to be re habilitated).
I n sum, the order i n this case e ssentially rec ites the s tatutory lang uag e setti ng forth the criter ia applicable to a transfe r deter mination, but it fails to provide the case -spec ific finding s of fac t nece ssary to permit a revie wing court to deter mi ne whether the court proper ly applied that criter ia as require d under Moon

. Moon , 451 S.W .3d at 49 (conc luding that statute require s more than
“mer ely an adher ence to printed forms” and instead require s a true delineation of rea sons supporting the court’s decision). Although the order indicates that the court hear d extensive evidenc e reg arding the p ropriety of transfe r and that the court found such evidenc e cre dible, the order contains no

case -spec ific finding s or rec itation of that evidenc e that would provide “a sure- footed and definite basis from which” we c an dete rmine that its decision was pr operly rea ched. See id. The State cites evidenc e in the rec ord that it contends supports the court’s transfe r deter mination, including evidenc e reg arding the specific s of the offe nse and of J .G.S.’s background.
Although the wording of the order is unclea r, it appea rs that the only finding the court made 4 with respe ct to those statutory fac tors conce rned the likelihood of re h abilitation and not J .G.S.’s rec ord and pr evious history or protec tion of the public: The Court considere d the rec ord and previous history of the child and the prospec ts of adequa te protec tion of the public and the likelihood of reha bilitation of the child by use of proce dures, service s and fac iliti es curr ently available to the juvenile court will not li kely

adequa tely [si c] to rehabilitate Respondent. See Tex. Fam. Code § 54.02(f )(3) , (4). 10But none of the details of that evidenc e wer e incor p orate d into the order , and the Moon court

expressly re

j ec t ed the State’s arg ument that the appellate court could simply revie w the

rec ord—irre spective of the fac t finding s set forth in the order —to deter

mine whether evidenc e introduced at the transfe r hear ing supported the court’s transfe r deter min at i o n . S

ee id. at 48, 50 (despite that evidenc e in rec ord “painted a much more g raphic picture of the appellant’s char g ed offe nse,” appellate court is not require d “to rummag e throug h the rec ord for fac ts that the juvenile court might have found

. . . but did not include in its written transfe r order ”); see also Bell , 2016 WL 7369204, at *6 (de clining to revie w rec ord to f ind f acts supporting waiver

when wr itten order did not provide ade quate f act f indings). The Moon court observe d that “the juvenile court that shows its wor k should r are ly be reve rsed” beca

use t h at co urt’s discretion “is at its apex when it makes this larg ely normative judgme nt” as to whether

a child should be tra

nsfer red to the c riminal court. Moon , 451 S.W .3d at 46, 49. When, however , the j uvenile court enter s an order that is devoid of case -spec ific findings of fac t suppor

ting the statutory criter ia for transfe r, as in Moon , the juvenile court is not entitled to such defe renc e. Id. at 51. Given the absenc e of case -spec ific fac t finding s supporting transfe r from the juvenile cour

t’s transfe r orde r in this case, Moon compels us to conclude that the cour t abused its discretion in w aiving its jurisdiction and sustain J.G.S.’s third issue. Acc ording ly , we need not

rea ch J .G.S.’s first and second issues challeng ing the sufficie ncy o f t h e evidenc e produce d at the transfe r hear ing to support the rea sons for transfe r cited in the order and take no position as to those issues. See id. at 51.

11CONCLUSION
We vacate the juvenile court’s transfe r o rder and rema nd this case to the juvenile court for further proce eding s consistent with this opi nion. 5

_________________________________________ Cindy Olson Bour land, J ustice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land
Vac ated a nd Remanded on Rehe aring Filed: F ebrua

ry 17, 2017

The case rema ins “pending in the juvenile court” wher e “at least one leg islatively provided 5 alterna tive would seem t o b e fo r the juvenile court to conduct a new transfe r hear ing and enter another order transfe rring the appellant to the j urisdiction of t he criminal court, assuming t hat the State can satisfy the criter ia under Section 54.02(j) of the J uvenile J ustice Code,” if applicable

. See Moon , 451 S.W .3d at 52 n.90 (citing Tex. Fam. Code § 54.02(j)); Bell v. State , ___ S.W .3d ____, No. 01-15-00510- CR, 2016 WL 7369204, at *6 (Tex. App.—Houston [1st Dist.] Dec

. 15, 2016, no pet. h.) (noting same); see also In re J.G. , 495 S.W .3d 354, 365-66 (Tex. App.—Houston [1st Dist.] 2016, pet. filed) (holding that, b ec au s e conviction reve rsed for trial err or and not insufficient evidenc e, double jeopa

rdy did not preclude rec ertifica tion procee dings)

. 12