Opinion issued October 25, 2012.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-01067-CV

———————————

IN THE MATTER OF J.W., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Case No. 2009-05444J

MEMORANDUM OPINION

This is an appeal from an adjudication that appellant J.W. engaged in 

delinquent conduct by participating in an aggravated robbery when he was fifteen 

years old. J.W. raises two points on appeal. First, J.W. contends that the trial court 
2

lacked jurisdiction to adjudicate him delinquent because it has jurisdiction only 

over persons between the ages of ten and seventeen, and J.W.’s mental age at the 

time of the offense was less than ten years. Second, he maintains that because the 

Texas Legislature has determined that a child may not be found criminally 

responsible before the age of ten years, a child with a mental age less than ten

cannot be held criminally responsible as a matter of law. We affirm.

Background

On June 18, 2009, three men robbed Desiree Hernandez, the only teller 

working in the lobby of the United Energy Credit Union, at gunpoint. Two of the 

men, one of whom Hernandez later identified as J.W., jumped over the counter, 

pointed their guns at her, and demanded that she give them all the money. Afraid 

that they would kill her, Hernandez handed the men approximately $12,000. The 

men told Hernandez not to look at them and ordered her to get on the ground. 

After the men left, Hernandez pushed the panic button. 

Members of the Houston Police Department were called to the scene and, 

after viewing the surveillance video of the robbery, discovered that one of the men 

touched the plastic wall at the teller station. Police officers were able to lift a 

fingerprint from the teller station wall and that fingerprint was identified as 

belonging to J.W., who was fifteen at the time of the robbery. The State charged 

J.W. by determinate petition, in juvenile court, with aggravated robbery. 
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Before the bench trial began, the trial court conducted a hearing on J.W.’s 

motion to suppress his recorded statement and his motion to dismiss for lack of 

intent or responsibility, based on his mental age, which J.W. contends is less than 

ten. At the hearing, J.W. also argued, because J.W. had a mental age of less than 

ten, that the trial court lacked jurisdiction to hear the matter. 

Dr. Diane Wood, the chief psychologist for the Mental Health Mental 

Retardation Authority of Harris County, Child Adolescence Forensic Division, 

testified at the hearing that she supervised the testing conducted on J.W. in July 

2009, after the robbery occurred. She explained that several tests were performed 

on J.W. in 2009, including the Wechsler Intelligence Scale for Children, the Wide 

Range Achievement Test, the Street Skill Survival Questionnaire, and the BenderGestalt test. She explained that there are three requirements for a child to be 

diagnosed with mental retardation: (1) the child has to be under the age of 

eighteen; (2) the child has to score under or around seventy on an individually 

administered IQ test; and (3) there must be a concurrent deficit in adaptive 

functioning, which can be judged by whether the child can adapt to change or tell 

time. Dr. Wood testified that J.W. produced a full scale IQ of 40 on the Wechsler 

Intelligence Test, which shows that he functions between a kindergarten and first 

grade level. However, she noted that his achievement scores in 2008 placed him at 

a fifth grade reading level and a tenth grade spelling level. She testified that the 
4

Street Skill Survival Questionnaire is a test of adaptive functioning and that J.W. 

has a survival skills quotient of 10, which is described as profoundly mentally 

retarded. Finally, she testified that he scored at the level of a seven-and-a-half year 

old on the Bender-Gestalt Test, which is a visual spatial motor skills test. 

Dr. Wood testified that, according to the testing, J.W. appeared to be 

functioning at a moderate range of mental retardation and that he seemed to be 

functionally illiterate. She further testified that he did not have adequate skills to 

function independently in daily living. However, Dr. Wood explained that,

because there were so many discrepancies in the test scores from his first testing in 

2008 and the testing that was done later, she was comfortable concluding only that 

J.W. functions at the mild mental retardation range, which she said, if valid, would 

mean he was functioning at the level of a ten or eleven year old. Some of the 

abilities that she observed in the office during the evaluation were inconsistent 

with J.W.’s adaptive functioning score of 10. For example, she explained that a 

child whose adaptive functioning score was a 10 would need help with basic 

functions, like toileting, but J.W. does not. She testified that when J.W. was first 

tested in 2008, he produced an IQ estimate of 81 on the Test of Nonverbal 

Intelligence-3, with average reading and spelling scores. When he was tested 

again in 2009, he received an IQ estimate of 63 on the Test of Nonverbal 

Intelligence-3. Finally, when he was administered the full-scale Wechsler IQ test, 
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his IQ had dropped to 40. Addressing these contradictions in the testing, she made 

the following notations in her evaluation:

There is a difference in the IQ and achievement scores between his 

first [testing in 2008] and his later intellectual/achievement testing. 

There is a difference in his adaptive living scores on the [Street 

Survival Skills Questionnaire] and his observed behavior. There is a 

difference in what school information there is, specifically a learning 

disorder, versus the test scores obtained here. There is also the 

question of the possibility of malingering . . . . The diagnosis of 

Moderate Mental Retardation is being given provisionally due to the 

conflict between the original and most recent IQ scores. It is felt that 

[J.W.] should be observed for a period of time to determine at what 

level he truly functions at intellectually and what signs and symptoms 

are observed (vs. reported and/or endorsed).

Dr. Linda Wittig, a child and forensic psychiatrist, also testified at the 

hearing that she evaluated J.W. on August 1, 2011 and March 11, 2011 based on 

the testing conducted by Dr. Wood. She testified that J.W. was having issues with 

attention deficit and adjustment disorder and that he functioned in the range of 

mental retardation based on the testing. She testified that one test conducted by 

Dr. Wood showed J.W. was functioning in the first grade or kindergarten range. 

She opined that J.W.’s mental retardation would have been present all of his life. 

Dr. Wittig also testified that in her professional opinion, at the time of the 

robbery and despite his mental retardation, J.W. had substantial capacity to 

appreciate the wrongfulness of his conduct and to conform his conduct to the 

requirements of the law. She explained that she felt J.W. understood that robbing a 

bank was against the law and that he had the ability to conform his conduct to the 
6

law in a very basic manner, despite his mental retardation. She opined that J.W. 

was functioning in the mild range of mental retardation. She explained that there 

were several discrepancies in J.W.’s IQ function and testing, which is why she 

evaluated him at a mild to moderate range of mental retardation. 

At the conclusion of the hearing, the trial court denied J.W.’s motion to 

dismiss on jurisdictional grounds and specifically found that J.W. did not lack 

substantial capacity to appreciate the wrongfulness of his conduct and, therefore, 

was not absolved of responsibility as a matter of law. 

At trial, Hernandez recounted the events of the robbery and testified that 

each of the men appeared to be acting on their own; they were not being told what 

to do; and she did not hear the other two men tell J.W. to point the gun at her head 

or demand money from her. She acknowledged on cross-examination that she had 

no way of knowing what was said to J.W. before he went into the credit union. 

J.W. testified in his own defense and maintained that the two other men, 

known to J.W. as “Money” and “Boo,” approached him at an apartment complex 

where he hung out and threatened to kill him and his family if he did not go with 

them. He testified that they forced him into the car but that he did not know what 

the men were going to do. Once the men stopped the car, one of the men handed 

him a gun, told him to take it, and threatened J.W.’s family again. J.W. testified 

that he entered the credit union last, following the other two men inside. He 
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maintained that he never threatened Hernandez with a gun, never demanded money 

from her, and never jumped over the counter at the teller station. He testified that 

he was confused about what was happening and that he left the credit union before 

the other two men. 

After hearing the testimony of all the witnesses, the trial court found that 

J.W. engaged in delinquent conduct as alleged by the State. The court rejected 

J.W.’s duress defense, finding that there was no credible testimony that there was a

threat to J.W. or his family. Following a disposition hearing, the trial court 

sentenced J.W. to five years’ commitment to the Texas Youth Commission, 

suspended, and returned him to the custody of his mother. However, because J.W. 

would turn eighteen before the completion of his probation, the trial court ordered 

that the probation supervision be transferred to an adult district court on J.W.’s 

eighteenth birthday. This appeal followed.

Discussion

A. Jurisdiction

In his first point of error, J.W. contends that the juvenile court lacked 

jurisdiction to adjudicate him delinquent. He maintains that because juvenile 

courts have jurisdiction over children between the ages of ten and seventeen, the 

juvenile court did not have jurisdiction over him because he has a mental age of 

less than ten. The State responds that the statutes grant the juvenile court
8

jurisdiction over all children who have reached the physical or chronological age 

of ten, including J.W. 

1. Standard of Review

Whether a trial court has subject-matter jurisdiction is a question of law that 

we review de novo. In re R.G., No. 01-11-00748-CV, 2012 WL 3774430, at *3

(Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (citing Westbrook v. 

Penley, 231 S.W.3d 389, 394 (Tex. 2007)). Issues of statutory construction also 

present questions of law, which are reviewed de novo. In re J.J., 276 S.W.3d 171, 

175 (Tex. App.—Austin 2008, pet. denied) (citing First Am. Title Ins. Co. v. 

Combs, 258 S.W.3d. 627, 631 (Tex. 2008)). “Our primary objective in statutory 

construction is to give effect to the legislature’s intent.” Id. (citing State v. 

Shumake, 199 S.W.3d 279, 284 (Tex. 2006)). “We rely on the plain meaning of a 

text, unless a different meaning is supplied by legislative definition or is apparent 

from context, or unless such a construction leads to absurd results that the 

legislature could not have intended.” Id. (citing City of Rockwall v. Hughes, 246 

S.W.3d 621, 625–26 (Tex. 2008)).

2. Analysis

The Juvenile Justice Code “covers the proceedings in all cases involving the 

delinquent conduct or conduct indicating a need for supervision engaged in by a 

person who was a child within the meaning of this title at the time the person 
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engaged in the conduct.” TEX. FAM. CODE ANN. § 51.04(a) (West 2008). The 

juvenile court has exclusive, original jurisdiction over all proceedings involving a 

defendant who was a “child” when the alleged offense occurred. In re N.J.A., 997 

S.W.2d 554, 555 (Tex. 1999) (citing TEX. FAM. CODE ANN. § 51.04(a)). For the 

purposes of the Juvenile Justice Code, a child is “a person who is . . . ten years of 

age or older and under 17 years of age.” TEX. FAM. CODE ANN. § 51.02(2)(A) 

(West Supp. 2012). 

By the express terms of these statutes, the juvenile court has exclusive, 

original jurisdiction over all proceedings involving a person who is over the age of 

ten and under the age of seventeen. See id. §§ 51.02(2)(A), 51.04(a). “Age” is 

defined as “the time of life at which some particular qualification, power, or 

capacity arises or rests” or as “the length of an existence extending from the 

beginning to any given time.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 23 

(11th ed. 2003). The plain meaning of section 51.02(2)(A) indicates that the

Juvenile Justice Code confers jurisdiction over persons having a physical or 

chronological age of greater than ten and less than seventeen. Nothing in the 

statute suggests that the Legislature intended that the existence of jurisdiction 

should be determined by a person’s mental age. See TEX. FAM. CODE ANN. § 

51.02(2)(A). 
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Courts in other jurisdictions have rejected the concept that mental age should 

serve as a substitute for chronological age, when considering such things as the 

requisite age for execution or criminal responsibility. See Bowling v. 

Commonwealth, 224 S.W.3d 577, 583–84 (Ky. 2007) (citing Roper v. Simmons, 

543 U.S. 551, 125 S. Ct. 1183 (2005)) (interpreting United States Supreme Court 

decision, which declared unconstitutional the execution of any individual under 

age of eighteen at time of offense, to prohibit only execution of offenders whose 

chronological age was less than eighteen at time of commission of offense); Hill v. 

State, 921 So.2d 579, 584 (Fla. 2006) (citing Roper, 543 U.S. at 573–74, 125 S. Ct. 

at 1197–98) (rejecting defendant’s claim that his mental and emotional age places 

him in category of person for whom it is unconstitutional to impose death penalty 

because Eighth Amendment only prohibits execution of defendants whose 

chronological age is below eighteen); In re Ramon M., 22 Cal.3d 419, 429 (Cal. 

1978) (interpreting statute, which declared that children under age of fourteen were 

incapable of committing crimes, absent “clear proof that at the time of committing 

the act charged against them, they knew its wrongfulness,” to refer to 

chronological age rather than mental age). 

The Juvenile Justice Code provides mechanisms for children who have 

allegedly engaged in delinquent conduct to avoid adjudication and receive 

treatment when mental retardation or mental illness impairs the child’s fitness to 
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proceed or the child is deemed not responsible for his conduct as a result of mental 

disease or defect. See TEX. FAM. CODE ANN. §§ 55.31, 55.51 (West 2008). For 

example, a child is not responsible for his or her conduct “if at the time of the 

conduct, as a result of mental illness or mental retardation, the child lacks 

substantial capacity either to appreciate the wrongfulness of the child’s conduct or 

to conform the child’s conduct to the requirements of law.” Id. § 55.51(a). When 

a party has alleged that a child may not be responsible for his or her conduct as a 

result of mental illness or mental retardation, the trial court must order the child to 

be examined. Id. § 55.51(b). Following the examination, the issue of 

responsibility must be tried to either the court or a jury in the adjudication hearing, 

proved by a preponderance of the evidence, and the court or jury must state in its 

findings or verdict whether the child is not responsible for his or her conduct as a 

result of mental illness or mental retardation. See id. § 55.51(c), (d), and (e). In 

the event that the court or the jury finds the child is not responsible for his or her 

conduct as a result of mental illness or mental retardation, the child “shall not be 

subject to proceedings under this title with respect to such conduct” other than 

commitment proceedings or other appropriate treatment alternatives. Id.

§ 55.51(g); see also id. 55.52 (West 2008).

Here, the trial court found that J.W. could appreciate the wrongfulness of his 

conduct—that robbery was against the law—and this finding was supported by the 
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evidence. Therefore, the mechanism created by the Legislature to allow a juvenile 

to avoid criminal responsibility for his or her conduct due to mental illness or 

mental retardation does not apply. See id. § 55.51. J.W. does not challenge the 

trial court’s finding that he could appreciate the wrongfulness of his conduct, and 

we decline to create a new exception, based on a person’s mental age, to the rule 

that the juvenile court has jurisdiction over a person who was, chronologically, 

between the ages of ten and seventeen at the time of the alleged offense. 

We hold that the trial court had jurisdiction over J.W. Accordingly, we 

overrule J.W.’s first issue.

B. Lack of Responsibility

Citing United States Supreme Court cases, including Roper v. Simmons and 

Graham v. Florida, J.W. next contends that his mental age is less than ten and, 

therefore, he should not be found criminally responsible for his conduct as a matter 

of law. See Roper, 543 U.S. at 569–71, 125 S. Ct. at 1195–96; Graham v. Florida, 

130 S. Ct. 2011, 2026–27 (2010). The State responds that the record does not 

support the premise of J.W.’s claims, i.e., that he has a mental age of less than ten, 

therefore, J.W. has not shown any basis to avoid responsibility for his conduct due 

to his mental retardation. 

As we discussed above, nothing in the Juvenile Justice Code suggests a 

juvenile may be relieved of responsibility for his conduct because he may have 
13

been functioning at a mental age below ten. The Juvenile Justice Code requires a 

different threshold showing before a child will be relieved of responsibility; the 

question turns on his ability to appreciate the wrongfulness of his conduct. See 

TEX. FAM. CODE ANN. § 55.51(a) (child not responsible for his conduct “if at the 

time of the conduct, as a result of mental illness or mental retardation, the child 

lacks substantial capacity either to appreciate the wrongfulness of the child’s 

conduct or to conform the child’s conduct to the requirements of law”). The 

burden is on the juvenile to prove by a preponderance of the evidence that, at the 

time of the incident, he lacked the capacity to appreciate the wrongfulness of his 

conduct or conform his conduct to the requirements of the law. TEX. FAM. CODE 

ANN. § 55.51(d); see In re E.L.C., 656 S.W.2d 149, 150 (Tex. App.—San Antonio 

1983, writ ref’d n.r.e.). 

Here, the trial court found that J.W. could appreciate the wrongfulness of his 

conduct. This finding was supported by the evidence, thus, J.W. cannot be 

relieved of criminal responsibility under section 55.51 of the Juvenile Justice Code. 

However, J.W. asserts that Graham and other Supreme Court authority recognize 

that children and mentally retarded individuals must be treated differently from 

competent adults for purposes of sentencing and punishment. He argues that these 

cases support his claim that he cannot be held criminally responsible for his 

conduct because his mental age is less than ten. We conclude we need not reach 
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the merits of J.W.’s contentions because he failed to establish the factual premise

on which this argument rests—that his mental age is in fact less than ten. 

J.W. maintains that the most complete psychological testing available 

indicates that he was functioning at the level of a six or seven year old. But the 

record does not support this conclusion. Instead, the record reflects that there were 

great discrepancies between the test results from the tests conducted before the 

robbery in 2008, which indicated J.W. had an estimated IQ of 81, a tenth grade 

spelling level, and a fifth grade reading level, and those conducted after the 

robbery, which indicated that he was functioning in the moderate range of mental 

retardation, was “functionally illiterate,” and had an IQ of 40. Dr. Wood was 

confident the testing reflected that J.W. was functioning in the mild range of 

mental retardation, which translates to a functioning level of a ten or eleven year 

old; however, due to the numerous discrepancies, she was not comfortable giving 

more than a provisional diagnosis of moderate mental retardation. Dr. Wittig also 

testified that J.W. was given the diagnosis of mild to moderate mental retardation 

because of the numerous discrepancies in his IQ function. 

Dr. Wood noted that J.W.’s performance in some areas on the more recent 

tests, like adaptive functioning, reflected scores indicative of a six to seven year 

old or even a child who would need help toileting. She testified, however, that 

these scores did not reflect J.W.’s abilities that she observed during his evaluations. 
15

Both experts testified that they were concerned about the discrepancies in the test 

scores, and Dr. Wood also expressed a concern in her evaluation about the 

possibility of malingering. She recommended that J.W. be “observed for a period 

of time to determine at what level he truly functions at intellectually and what 

signs and symptoms are observed (vs. reported and/or endorsed).” Finally, Dr. 

Wood concluded that the confusion and conflicts regarding J.W.’s symptoms made 

it difficult, if not close to impossible, to diagnose J.W. In short, the record does 

not demonstrate that J.W. functions at the level of a child of less than ten years old. 

Because the record does not support the premise of J.W.’s argument relating 

to criminal responsibility—that his mental age is less than ten—we decline J.W.’s 

invitation to consider whether the trial court’s adjudication conflicts with the 

Supreme Court’s holdings in Graham and Roper. We overrule J.W.’s second 

issue.
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Conclusion

We hold that the trial court had jurisdiction to adjudicate J.W. delinquent 

because he was, chronologically, over the age of ten and under the age of 

seventeen at the time of the commission of the robbery. We further hold that the 

trial court did not err in finding that J.W. could be held criminally responsible for 

the offense. We affirm the judgment of the trial court. We dismiss all pending 

motions as moot.

Rebeca Huddle

Justice 

Panel consists of Chief Justice Radack and Justices Bland and Huddle.