## In t he Court of Appeals Second Appellate District of Texas at Fort Worth

________________ _________ __ No. 02

- 19

- 00385

- CV

_____________________ ______

On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No

. 323

- 107606

- 18

Before Birdwell, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Wallach 

### I N THE 

### M ATTER OF 

### A.K.2 MEMORANDUM OPINION Ap pellant A. K. appeals the juvenile court ’ s order waiving its jurisdiction an d ordering him tran sferred to a n appropriate dist rict court or criminal district court ( criminal court ) to be prosecuted as an adult for capital murder and aggravated
robb ery . In t h ree points , Appellant contends that (1) the transfer to a criminal court violated th e constitutional provision against cru el and unusual punishment and tha t Family Code S ect ion 54.0 2 (c) is unconstituti onal because it (2) violates the federal and

st ate prohib itions against cruel and unus u al punishment and the Fourteenth
Amendment ’ s Due Process Clause and (3) denies him the rig ht to a jury determination
of a fact issue af fecting the upp er lim its of a possible sentence. Within his first point , Appe l la nt complains that the transfer order was not based on factually sufficient
evidence because nothing in the order shows that the juvenile co urt con sidered the fact that he is intellectually disabled

. Because we hold that th e ev idence is factually
in suff icient to suppor t the juvenile court ’ s finding that A.K. is suffic iently

s ophisticated and mat ure to be t ried as an adult and ther efore , in turn, the evidence is
fact ually insufficient to support the juvenile court ’ s determination that A.K. ’ s background ju stifies the tran sfer , w e reverse the juve nile court ’ s transfer order and
remand this case to t hat court for further proceedings.
I. Factual and Procedur al Background The evidence presented at the transfer hearing included (1) a pre diagnostic
evaluation wi th t he report of Appellant ’ s late st psychological evaluation attached ;3 (2) his police interview ; ( 3) photo graphs depicting the crime sc ene , other evidence of
the crime , and the decedent ’ s fam ily ; and (4) testimony of Appellant ’ s probation
officer and t he Fo rt Worth Police Depar tment detective in charge of the investig ation

. Appellant was a fourteen

- year

- old seventh

- grader when the offenses occurred. Despite his youth, Appell ant , a n alleged member of the 300 Mafia Crip s gang , h ad
alread y had several legal s crapes. H e was o n ju venile probation for burglary after having h ad three prior referrals to t he juvenile court
. After being on probation for burglary for less than a mon th , he received another referral for criminal tre spass and was suspended from school for mar ijuana pos session. On May 18, 2018 , the d ay of
his sc heduled detent ion hearing for those two ne w referrals , Appella nt did not appear
at the 10:30 a .m. he aring.
A woman was killed by a gunshot to the head around noon that day in a west Fort Worth apartment complex. A nine

- mi llimeter s hell casing found by the woman ’ s body had an “ RP ” head stamp. Viewing a nearby sto re ’ s sur veilla nce f ootag e , c ohorts
identif ied Appel lant and another boy as t he two teenager s filmed running from th at apartment complex that day

. On the n ight o f May 18, 2018 , p olice detained Appellant a nd three other young

men for unrelated gang activit y . Appellant carried a loaded magazine of W i nchester
nine

- millimeter shells. The adult male in the gro up carried a loaded nine

- mill imeter
gun that balli st ics later showed fire d the cas ing found by the woman ’ s body. The
gun ’ s magazine contained shells with RP headstamps. T he m an told police the gu n4 was Appell ant ’ s . The police learne d that Appellant had tried to sell that gun af ter t he
murder. Appellan t ad mitted to the police that he had kick ed in the woman ’ s ap artment door and had taken her phone , but he denied shooting her and cla imed that he was

ou tside the apartment when he hear d gunshots ins ide

. His accom plice told the police
that Appellant brought th e gun, kicked in t he doo r, de manded items from the woman, including her phone, and shot her even after she had given him her phone. Pol ice

arres ted Appel lant two days after t he murder , and he remained i n custody at the juvenile detention center from the d ay of h is arr est until his transfer hearing almost
seventeen months later

. A nother youth confined in the detention center with Appellant report ed that Appell ant bragged about shooting the woma n and showed no

remor se for the murder.
T he State filed its pet ition for discre tio n ary transfer to a crim inal court soon after Appellant ’ s ar rest
. Appellant ’ s l atest ps ychological e valuation was completed in Augu st 2019

. It referred to his prev iou s ly diagnos ed ADD /ADHD disorder as well

as his documente d “ ph ysical or mental impairment ” that “ affected one or more major
life activities , ” inc luding communication, concentration, lear ning, and thinking. In the evaluation, Appellant was given the Kauf man Br ief Intelligence Test. His composite IQ was 68 . On the W ide Range Achievement Test, he performed under a second

grade level. T he p sycholog ist noted in the eval uation that h e did not try to answer any questions that he thought were too hard. She o pined, “ Subsequently, hi s intellectual5 and academic functioning appear to be an un derestimate of his ability. ” The psychologist concluded that he would benefit f rom juvenil e servi c es “ such as a high
level of stru cture and superv ision. ” However, s he als o found that he wa s not mentally
retarded , un derstood the legal implicat ion s of a discretio nary transfer motion, and
could assist his lawyer

. In th e hearing, t h e probation officer spoke of Appellant ’ s background. B efore App ell ant was involved with the j uvenile department, he had lived at All Church
Home for a time and had also b een in foster care. While he was in foster care, he

re ceived counseling for behavior al issues at school. He also received an MH MR
eval uation in which he was di a gnosed with disruptive behavior disorder and ADHD.
He was prescribed medi cation and had taken it “ maybe a year or so

. ” H owever, Appellant had not been on med ication since the probation officer had been w orking with him despite th e abse n ce of evidence that he was “ taken off of it. ” A lso, the
pro bation office r was not sure whether Appellant was re ceivin g the accom mod ations
in th e detenti on center that his 504 plan 1 would have required in a normal school

s etting.

1 “ A 504 plan is mandated in public sc hools and federally f unded private sch ools by Secti on 504 of the Rehabilitation Act of 1973 for children with a physical or mental co ndition that substantially impacts a major life act ivity. See 29 U.S .C. § 701 (2012); 34 C.F. R. § 104.33 (2015). ” L. Kate Mitchell, “ We Can ’ t Tolerate That Beha vior in This School! ” : The Consequences of Excluding Children with Behavioral Health Condition s and the Limits of the Law , 41 N.Y.U. Rev. L. & So c. Change 407, 4 13 n .27 (2017)

.6 Th e prob a tion officer also testified that Appellant had behaviora l issues at school in th e 2017

– 18 school year , resulting in “ manifest ati o n determi na tion ” 2 meeting s to de termine whether his misbehavior resulted from his diagnosed disorders

or hi s cho ices

. The probation officer testified that the school records i ndicated that Appellant ’ s behavior w as mor e of a choice than a sign of his disab ili ty. In t hat single school year, he held a female classmate in a headlock and pushed her; hit another
femal e st ude nt in what he cha racterize d a s “ a playful way ” ; bro ught an air pistol to
school ; threatened a te acher ; and made gang si gns toward her

. The probati o n officer additio n a lly testified about Appellant ’ s time in detention. Even though he was on L evel O ne

— the best lev el

— at the tim e of the hear ing , for
months a t a time, and for a majority of the time , he had been w ritten up during his
first s everal months for mak ing gan g signs, not following instructions, not doing his

sc hool work, threatening staff membe rs, being disr u pt ive and dis respectful , a nd fighting

. Nevertheless, his probation off icer testified that for the m ost part, Appellant

t ried to follow the rules and tr ied to stay on Level One.

2 “ When a school seeks to discipline a child w ith a disa bility, [ the Indiv idu als wit h Disabilities Educat ion Act ] requires that the child ’ s ‘ individualized education program team ’ (IEP Team), including the child ’ s parents and educators, co nduct a
‘ manifestation determinat ion r eview

. ’ An IEP Team is also refer red to as an

‘ admis sion, rev iew, and dismissal ’ (ARD) committee. The purpose of the ARD committee ’ s manifestation determin ation review is to determine whether the child ’ s behavior was a manif estation of the child ’ s d isabi lity. ” Hollingsworth v. Hackler , 303 S.W.3d 884, 889 (Tex. Ap p.

— Fort Worth 2009, pet. denied) ( footnotes omitted )

.7 Appellant did not te stif y at the transf er hearing and his counsel did not call any
witnesses. However, his counsel did cross

- exam ine the State ’ s witne sses. Regardi ng Appellant ’ s not at temptin g to answe r certain ques tions of the tests evaluat ing his intellectual ability, t he pro bation officer testified that i t “ would s eem logical [] tha t someone who struggles academically would be he sitant to try something [he does no t] fully understand ” because of risks of embarrassme nt or getting teased and that Appellant ’ s refusal to try to answe r the q uesti ons did n ot necessarily indicate
mi sbehavior. The probation officer also admitted that a fourteen

- or fifteen

- year

- old
ch ild who acts more l ik e a n el even

- or t welve

- year

- old chil d could be a child who struggles with interpreting s ocial cues. The probation officer further testified that in his experience, “ the adult system is no t as equipped to deal with juvenile s in the same

way [as the ju venile system ] because [the adult system] would t reat everyone on the
same level

. ” The probation officer believed “ that the ju venile sy stem would be more
successful in rehabilitat ing [Appellant] at this stage than send ing him to the adult
sys te m. ”
The juvenile court decided to waive its jur isdic tion and transfer the case t o a criminal court , explain ing its reasoning from the benc h : So the Court having reviewed the complete diagnostic study, the social evaluatio n and full investigat ion of the child and circumstances of the child and circumstances of the o ffense ha [s] c ome to a conclusion. The Court in coming to this c onclusion, ha ving heard the competent evidence provided to the Court, is considering various fac tors. The Court is c onsidering whether this offense was against a person or property. The Cou rt is consider ing th e sophistication an d the maturity8 of the chil d. The Court is considering the record and previ ous history of the child, and the Court is also considering the prot ection of t he public and the likeli hood of rehabilitation of the c hild wit hin the juveni le sys tem. Court finds that the child was 14 year s old at the time of the offense, a first

- degree felony and capital offen se, that there has not been an adjudication hearing yet , and that after a full investigation hearing, the juveni le court will find p robabl e cause that the of fense of capital murder
an d

. . . aggra vat ed robbery has occurred and because of the seriousness of the offense as well as t he background of th e child, the welfare of the community requires criminal pro ceedings. Specifi cally, th e r eason for this transfer, [Appellant], is I am genuinely concerne d abo ut all four factors that are presented to the Court. I ’ ve considered all four a nd all four are ver y significant to me in your particular case. I am particul arly conc erned ab out the s afe ty of the public. [Appellant] , you had a history with the school system with behavior problems and criminal acts. You had a problem

— a history with t he law. You were s upervisory cautioned out of this Court. You were on probat ion out o f this C ourt. In fa c t, wh ile you were supposed be in court on May 18th, you skipped court and it resulted in a death of a woman. There ’ s probab le cause to determine th at it resulted in t he death of a woman. Had you come to court, this would not have bee n an iss ue. That wo uld ha ve been the ultimate ali bi for you had you just done what you were supposed to do. It ’ s apparent to me that you planne d the crime. You had a h istory of b urglariz ing buildings and homes. I also look at the testimony toda y and it seems a pparent th at you ne ver really admitted to your involvement. Seems like you ’ r e passing the blame to [your accomplice] and you ’ re creating space for yourself abo ut your engagement in all these matters. It seems like after the of fense that y ou attem pt [ed] t o hide and co nceal your involvement whether it ’ s by discarding your clo thing or trying to get rid of the firearm that was used in th is offense, and it see ms like you were tryi ng to blame someone else this entire time. And I think wh at hits the hard est is e ven in the de tention this whole time you were here

. . . you had the op portunity to show me that you ’ re rehabilitated, that you ’ re d oing well, that you do n ’ t need to go to the adult system because everything that the juvenile system c an offer,9 you ’ re takin g ad van tage o f. Yet,

. . . your time here

. . . really indicates to
me that the likelihood of rehabilitation in the juvenile system just isn ’ t

— there ’ s no th ing that we can do for you and this is a matter that simply the adult system n eeds to handle

. So I a m wa ivi ng my jurisdiction as the j udge of the 323rd District Court, and I ’ m going to transfer this to an appropriate adult criminal district court here in T arrant County, Texa s. The juvenile court also issued a written order granting the tr ansf er : T he Cou r t finds that the acts alleged in Paragraphs III and IV of the Fi rst Amended Petition on file in this cause are felonies under th e penal laws of the Stat e of Texa s if committed by an adult. T he Court finds that the offenses were a gainst the person o f anot h er. The Court finds there is probable cause to believe t hat the R espondent committed the offenses alleged in Paragraphs III and IV of the F irst Amended Petition on file in this cause. The Court finds that the Respondent is of su fficient sophistica tion a n d maturity to be tried as an adult. A psychologist who
e xamined the Respondent concluded that he appears capable of understandi ng the legal implication s surroun ding a discretionary transfer motion and assisting his attorney in hi s defense

. The fac ts of t h e offenses themselves weigh towards the sophistication a nd maturity of the Respondent to carry out a collaborative scheme. The Respondent obtained and carried a loaded handgun. After the Respondent and his companion saw a video game system in the apart m e nt window, the Respondent kicked in the apartment door. Both the Respo ndent and his companion entered the apartment, but the R espondent po inted the lo aded hand gun at the victim, and demanded her property. The Respondent himself not only wielded a firea r m during this home invasion, but also shot and killed the victim, who was a mother of three children and cooperated with his dem ands. After the offense s, the Re spondent disp osed of the stolen cell phone [] and the clothing he wore during the commiss ion of t he offense [] and attempted to dispose of the handgun. T he Court finds that the prospects of adequate protection of the public and the like lihood of th e rehabil itation of the R espondent by the use of procedures, services, and fac ilities currently a v ailab l e to the10 Juvenile Court is low. The Court finds that the Respondent had prior referrals to the juvenile system for Terroristic Threat, Burg lary of a Ha bitation, Criminal Trespass, and Burglary of a Building, and that the Responde nt has received sup e rvisi o n and services from the Tarrant County Juvenile Probation Department (a local Juvenile Proba tion Department) prior to these offe nses. The C ourt finds t hat the R espondent has been documented as a member of the 300 Mafia, a crimina l street gang. Fur t her, t he Court finds that the Respondent was on felony juvenile probation and had both a Motion to Modify that probation and new misde meanor law v iolations pe nding in the Tarrant County Juvenile Court at the time that he is alleged to h ave committed these offen s es . The Court finds that while under the supervision of the Tarrant County Juvenile Probation Department, the Respondent was of ten truant f rom school, regularly broke curfew, and committed new law violations. The Respondent had a court appearance t o add r es s probation violations scheduled for the same day as th e offense. A psychologist who examined the Respondent stated [,] “ [T] he community
w ould be at a mode rate to high level of risk were he to remain in it. ” His danger to the c ommunity is further demon s tr ated by the violent nature of the offenses he is accuse d of, including the fact that he used deadly force without hesitation a gainst a vic tim in her own ho me. Finally, because of his present age of 15 years, 11 months, the Resp ondent could only r e ceive se rvices from the Juvenile Probation Department or the Te xas Juvenile Justice Department for a maximum period of time of 37 mont hs. The Cou rt, after conside ring all the testimony, diagnostic study, social evaluation, and full inv estigation , finds t ha t it is contrary to the best interests of the public to retain jurisdiction. The Court finds that because of the seriousness of the alleged offe nses and the back grou nd of the Respondent, the welfare of the community requires criminal proceedings.
In ma king t h at de termination, the Court has considered, as detailed a bove, and among other matters: 1. Whether the a lleged offenses were ag ainst person or property, wit h th e greater weight in favor given to the offenses against person; 2. Th e sophistication an d mat u r ity of the child;11 3. The record and previous history of t he child; and 4. The prospects of adequate prote ction of the public and the likelih ood of reasonable reh abilitation of the child by use of procedures, services, and faciliti es currently availa ble t o the Ju venile Court. THEREFORE, by reasons of the foregoin g, I

. . . hereby waive jurisdiction of this cause and transfer [Appell ant] to the approp riate Distr ict Court or Criminal District Court of Tarrant County, Texas for crimina l proceedings and d o her e b y cert ify said action.
II. Discuss ion
We f irst address Appellant ’ s second and third points challenging the
constitutio nality of Family C o de Sectio n 54.02 (c) because if succ essful, they would afford the greatest relief

— a reman d to the juveni le court for proceedi ngs without the application of the ch allenged transfer provision

. See, e.g. , In re B.G. , 317 S.W.3d 250, 258 (Tex. 2010 )

. W e the n address h is first point challenging the transfer decision.
A. C o nstit ut ional Challenges
1. Ma ndator y S entencing Sc heme for Ju ve niles
A ppellant ’ s constitutiona l challe nges to the transfer prov ision mirror challenges
made to the manda tory se ntencing scheme for j uveniles , so we begi n with a brief
discussion of that law. S ection 12.31 (a) of the Texa s Pena l Code is the p u nishmen t provision governing capital felonie s , and it provides that life with the possibility of parole is the mandatory puni shment for a person f ou nd guilty of commi tting a capital felony under the age of eighteen. Tex. Penal Code A nn. § 12 .31(a)(1). I n Miller v. Alabama , the United States Suprem e Court held that automatic life sent ences without12 the possib ilit y of parole for juveniles violated th e Eight h Am en dment p rohibitions against c ru el and unusual punishment. 567 U.S. 460, 470, 4 79, 132 S. Ct. 245 5, 24 64 , 2469 (2012)

. H o wever, t he Texas Court of Criminal Appeals has declined to broade n Miller ’ s scope
. In Lewis v. St ate , th at court held that autom atic life sentences with the possibility of parole for juv eniles do not violat e the Eig hth Amendment b ecause t hey offer juveniles rehabilitation : M i ller does not forbid mandatory sentencing schemes. The mandatory nature of a se ntencing scheme is n ot the aspect that precludes
r ehabilitation; rather, t he sentencing scheme in Mill er was unco nstitutional b eca use it d enied juveniles convicted of m urder all possibility of par ole, leaving them no opportunity or incentive for reh abilit ation. Life in pr is on with the possibility of pa role leaves a route for juvenile offenders to prove th at the y hav e changed whil e a lso
asse ssing a punishment that the Le gislature has deemed appropri ate in light of the fact that the juvenile took some one ’ s life under spec ifi ed circumstances.

. . . .

. . . . Miller does not entitle all juvenile offenders t o indi vidua lized sentenci ng. It requi res an individualized hearin g only when a juvenile can be sentenced to life without the possibility of parole

. 428 S.W .3d 860, 863 (Tex. Crim. App. 2014) ; see also McCardle v. State , 550 S .W.3d 265, 269 (Tex. App.

— Houston [14th Dist. ] 2018 , p et. re f ’ d)

. I n Turner v. State , the Texas
Court of C r iminal Appe a ls rel ied on Lewis to reject an Eighth Amendment challenge
to Section 12.31(a)(1) as applied. 443 S.W .3d 128, 129 ( 2014); see also Matt hews v. State , 513 S.W.3d 45, 61 (T ex. App.

— Houst on [1 4th Di st.] 201 6, pet. ref ’ d)

.13 2
. Constitu tionality of Section 54.02(c) In his second and third points, Appellant complains that Family Code Section
54.0 2 (c) is unconstitutio nal on its face and as applied to him because it v iolates the

“ cruel and unusual punishm ent ” p r ovisions of the E i ghth A m endment to the United
States Const itut ion and Article O ne, Section 13 of the Texas Constitution, the
Fourt eenth Ame ndment ’ s D ue P rocess C lause , and the right under Apprendi t o have a jury determine any issue of fact affectin g the u pper ran ge of punishment in a criminal

cas e. Stat utes are presumed to be constitutional. Sax v. Votteler , 648 S.W.2d 661,
664 (Tex. 1983); In re J.G. , 495 S.W. 3d 354, 364 (Tex. App.

— Houston [1s t Dist. ] 2016, pet. denied ) ; see also Peraza v. State , 467 S

. W.3d 508 , 514 (Tex. Crim. App. 2015)

. A party challenging th e cons titutionality of a statute bea rs the burde n of rebutting the presumption. Peraza , 467 S.W.3d at 514 ; J.G. , 495 S.W.3d at 364

– 65

. W e endeavor to uphold th e statute , “ mak [ ing] every reason a ble pres umption in favor of the statute ’ s constitutionality, unle ss the c ontrary is clearly shown. ” Peraza , 467 S.W.3d at 514 ; see J.G. , 495 S.W.3d at 36 5. When a party chall eng es th e cons titutionality o f a s tatute on its face, it a ttacks the statute, not just a parti cular application of it, and must show that “ no set o f
circu mstances exists under which [ the ] statute would be valid. ” Peraza , 467 S.W.3d at
514. If the statute could be va lid in any circumstanc e, t he facial challenge fails. I d. a t
5 15

– 16

. Because of this high burde n, a facial challenge ra rely su cceeds. United States14 v. Salerno , 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987 ) ; Allen v. State , No . PD

- 1042

- 18, 2019 WL 6 139077, at *3 (Tex. Crim. App. Nov. 20, 20 19)

. When a par ty brings a n as

- applied challenge to a statute ’ s constitutionality , the
party claims that the statute, “ although generally constitutional , operates
unconstitu tionally as to the claimant because of his particular circumstances. ” Faust v.
State , 4 91 S.W .3d 733, 743

– 4 4 (Tex . Crim. App. 2015) (footnote omitted) ; see In re A.J.F. , 588 S.W.3d 322, 339 (Tex. A p p.

— Houston [1 4th Dist. ] 2019, no pet .)

. I n his second point , Appellant contends that Family Code Section 54.02 is
unconsti tutional on its face and a s applied beca u se it v iolates the federal and state

cons titutio n s ’ prohibiti o ns agains t c ruel and unusual punishment and the Fo u r teen th
Ame nd ment ’ s Due Process Cl ause by “ fai l [ing] to require the juvenile court to consider the mandatory sentencing scheme for a child con v icted o f ca pital murder ”
and “ to take into a c count whether a juvenile ’ s particularized family history, character, mental cap acity, education, bac kground and personal moral culpability

. . . require a mandatory sentence of 40 calendar years . ” Before reach i ng the merits of t his point , we first dispose of claims for feited by inadequate briefing and by design in oral
argument
. Fi rst , Appellant has no t discussed the “ cruel and unusual pun ishment ” provision of the Texas Co nstitution in hi s brie f , nor has he arg ued tha t i t provides
grea ter protections than the Eighth Am endment. We therefore overrule his claim s bas ed on the Tex as pro vision as inadequatel y briefed

. See Tex. R. App. P. 38.1(h);15 Murphy v. State , 112 S.W.3d 592, 607 (Tex. Crim . App. 2003); In re J.B .L. , 31 8 S.W.3d 544, 546 n.1 (Tex. App.

— Beaumont 2010, pet. denied); In re R .J.R. , 281 S.W.3d 43,
50 (Tex. App.

— El Paso 2005 , no pet.). Second , during oral argument, Appellant
clarified that he does not argue in t his point that the statut e is unconstituti onal on its
face but only that it is unconstitutional as ap plied to intellectually disabled juveniles.
See Tex. R. App. P. 39.2. We therefore d o not address his briefed argument s in this point that Section 54.02 is unconstitutional on it s fac e . See Tex. R. App

. P. 47.1.

a . Appellant ’ s Eighth Amendment “ Cruel and Unusual Pu nishment ” Claims Turning to the merits of Appella nt ’ s remaining claims , w e overrule his as

applied challenge grounded in the Eighth Amendment for the followin g five reasons. See U.S. Const. amend . VIII

. First , a t the time of the transfer hearing , Appellant was still within the j uvenile court ’ s jurisdic tion and ha d not been indicted, tried, charged,
or convicted. He ha d not yet been and may never be subject t o the mandatory
sentencin g schem e. In State ex rel. Lykos v. Fine , the Texas Cour t of Criminal Appeals
held that the trial court erred by granting the de fendant ’ s pre t rial motion to hold th e d e ath

- penalty sentencing statute unconstitutional as applied , pa rtly b ecause the
defendan t was “ asking Texas trial and appellate courts to enterta in a purely hypothetical claim and make an advisory ruling in a c ase that ha [d] not be en litigated to any final reso lution

. ” 330 S.W.3d 904, 91 1

– 1 2 (Tex. Crim. App. 2011) . Sim ilarly , in Ex parte Cr oss , th e El Paso Court of A p p eals dismissed the defendant ’ s appeal challenging the co nstitutionality of the statute he was ch arged with violating because16 he had not yet been tried and “ [a]ny injury that [ he ] might suffer [was] therefo re sti ll sufficiently conti ng ent or re mote such that the issue [was] not ripe for adjudication

. ” 69 S.W.3d 810, 81 4 (Tex. App.

— El Paso 2002, no pet
. )

. Appellant ’ s challenge is to the transfer statute, whi ch was implemented. However , that challenge is based on the
mandator y sentenci ng sch eme. Any complaint regarding Appellant ’ s fa cing a mandatory sentence of life with parole is not ripe for rev iew, however it is co uched.
Second , Section 54.02 is not a punishment provision but a transfer provision.
Tex. Fam. Co de Ann. § 5 4.02

. Sec tion 12.31 o f the Penal Code is the pun ishment
p rovision. Tex. Penal Code Ann. § 12.31(a). A transfer hearing i s a “ nonadversarial
p reliminary hearing ” in which the ju ve nile court determines wh ether there is probable

cau se to believe the respon dent commi tted the all eged crime. Navarro v. State , No s . 01

- 11

- 00139

- CR, 01

- 11

- 00140

- CR, 2012 W L 3776372, at * 5 (Tex. App.

— Ho uston [1st Dist.] Aug . 30, 2012, pet. ref ’ d) (mem. op., not designated for publication ) ; In re D.W.L. , 828 S. W.2d 5 20 , 52 4 (Tex . A pp.

— Housto n [14th Dist.]
1 992, no pet.) . It is not a trial o n the merits. State v. Lopez , 196 S.W.3d 872, 874 (Tex. App.

— Dal las 2006, pet. ref ’ d)

. T

h ir d

, the Texas Court of C riminal Appeals has upheld the mandatory life

- with

parole sente ncing scheme i n r esponse to m itigation

- co nsideration arguments

. Turner , 443 S.W.3d at 129 ; Lewis , 428 S.W .3d at 863 . Th ose holding s signal that cons titu tional

c hall enge s to the transfer statute grounded in the necessity of sentence

- focused
consider ation of mitigation evi dence shou ld likewise fa il

.17 Fourth , Appellant ar gues in t his point that under Moon , a “ court need n ot consider or make a f inding on the mitigat ion evidence that encompasses the
sop histication and maturity issues , ” impl ying that the juven ile court did not consider

t he mitigation evidence here. While it is true that the juvenile court is not required to
fin d that every Section 54.0 2(f ) factor suppo rts transferring the case, Moon v. State , 451 S.W.3d 28, 47 & n.78 (Tex. C rim. A pp. 2014) (citing Hidalgo v. St ate , 983 S .W.2d 746, 754 (Tex. Crim. App. 1 9 9 9 ) ) , Moon an d section 54.02 require the juvenile court to

cons ide r , at a minimum, ( 1) whether the alleged of fense was against person or property, with greater weight in favo r of t ransfer given to offenses agains t the pe rs on; (2) the sophistication and m a t ur ity of the child; (3) the record and previous history of the ch ild; and (4) the pros pects of adequate prote ction of the public and the likelihood of the rehabilitation of t he chi ld by use of procedures, service s, and f ac ilit ies currently available to t h e j uvenile co urt. Id. at 38 (quoting Section 54.0 2( f ) )

. T he ju ve nile court must also “ make specific findings of fact regarding each of the section 54

. 02 (f) factors. ” J.G. , 495 S. W.3d at
367 ; see Moon , 451 S.W.3d at 47

. M itigation evidence fa ll s within t ho se factors ; the juvenile court is therefore required to conside r it

. In J.G. , the r espondent argued that Section 54.02(j) , the transfer provision which applies to re sponde nts ov er the age of eighteen, did “ not allow the juvenile
court to consider [his] greater need for rehabilitation and the lesser weigh t placed on

r etribution when makin g [the] transfer decision ” and therefore vio late d the Eighth
Amendment prohibition again st cru e l and unusual punishm ent as ap pl ied to him

.18 495 S .W.3d at 369. The appellate court n ote d that when making the transfer d ecision , the juven ile court did conside r respondent ’ s “ prior history with the juvenile justice system, the rehabil itative placement s that wer e made , his lack o f coope ration wit h those rehabilitative goals, and the escalatio n of his criminal conduct

. ” Id. The appellate cou rt therefore held tha t Section 54.02(j) did not violate the Eighth
Amendment as ap plied to the respondent

. Id

. In A p p ellant ’ s case, although we ho ld
below t hat the evidence i s factually insuffi cient to support the transfer, we cannot conclude from the ju venile court ’ s oral r endition and written order that it did not
consider any mitigation evidence. For example, t he ora l re ndition and written order
both indi cate that the juvenile court consider ed the diagnostic report and t he psychologist ’ s evaluation

. For all these reasons , we hold that Section 54.02 as applied to Appell ant did not v iolate the Eight h Amendment.
b
. App ellant ’ s Fourteenth Amendment Due Pr oce ss Claims
W e also overrule Appellant ’ s a s

- applied challenge grounded in the Due Process
Clause of the Fourteenth Amend ment
. See U.S. Const. amend

. XIV

. In Kent v. United
States , t he Supre me Court held that th e tran sfer “ hearing must measure up to the

es senti als of due process and fair treatmen t. ” 383 U.S. 541, 562, 86 S. Ct. 1045 , 1057 (1966)

. Due process ma ndates “ a hearing, including access t o the social records and probation or similar reports which presu ma bly are considered by the court , and

. . . a statement of reasons f or the Juvenile C ourt ’ s decision. ” Id. at 557, 86 S. Ct.
at 1055 ; J.G. , 4 95 S.W.3d at 367 (quo ting same in Section 54.02(j) case )

. A transfe r19 hearing was held in this ca se, Appellant do es not ar gue that he lacked a ccess to the
doc u mentary evidence considered by the court , and t he order stat es some reasons for
the decision. We therefore hold that Appellant received due process under the

sta tut e . W e overrule Appellant ’ s second point.

c. A ppel lant ’ s Apprendi Claims
I n hi s third po int , Appellant complains that Section 54. 02 (c) is u nconstituti onal on its face and as applied beca use it violates his r ight under Apprendi to have a jury
determine f acts that impact the upper range of punishment i n a criminal case. Apprendi v. N ew Jersey , 530 U.S. 466 , 120 S. Ct. 2348 (2000) . T he United States Supreme Court held in Apprendi that “ [o] ther than the fact of a prior conviction, any
fact that in creases the penalty for a crime beyond the prescribed s ta tuto ry maximum
must be submitted to a jury, and proved beyond a reasonable doubt. ” Id. at 490,
120 S. C t . at 2362

– 63. The prescribed statut ory maximum punishmen t for capital murder committed by a j u venile is co nfinement for life with the possibility of p arol e. Tex. Penal Code A n n. § 12 .31(a). T he transfer from ju venile court to crimin al court
does not “ increase th [at] penalty beyond the pre scribed statutory max imum

. ” Lopez , 196 S.W.3d at 87 5

. Apprendi theref ore does not require that a jury f ind fact s allo wing the transfer of a juveni le from th e ju venile court to a criminal court

. Id

. Consequently, we hol d that Section 54.02 (c) ’ s failure to require that a ju r y determine
whether t o transfer a juvenile to a criminal court does not make it uncon sti t ut i on al o n i ts fac e . Se e id. W e furt her hold , for the same reason, that Section 54.02 a s applied to20 Appellant did not violate his r ight s to a ju ry trial gu aranteed b y the Sixth and
Fourteenth Amendments

. See Rivera v. State , No s . 05

- 06

- 000 26

- CR, 05

- 06

- 0002 7

- CR, 2007 WL 3245610, at *4 (T ex. App.

— Dalla s Nov. 5, 2007, no pet. ) ( not d esignated for publication)

. We overrule Appellant ’ s thir d p oint

. B. Factuall y Insuffi cient Evidence to Support the Transfer Order In his first point, Appellant contend s that the juvenile court ’ s transfer ring him

to a crimi nal court violated the constitu tional prohibition against cruel and unusual punishment. W i thin his first poi nt, Appellant argues that the juvenile court ’ s decision was based on factually insufficient ev iden ce, contending that “ nothing in the tra n sfer
orde r . . . indicates that the [ juve nile ] court considered or weigh[]ed A.K. ’ s intellectual
di s abilit y. ” We agree that the juvenile court ’ s decision was based on factually
insufficient evidence

. 1. Applicable Law Transferring a juvenile from juvenile court to criminal co ur t sh ould be “ the exception not the rule;

. . . wheneve r feasible, children and adole scents below a certain age should be ‘ protected an d rehab ilitated rather than subjected to the harshness of the criminal system. ’ ” Moon , 451 S.W.3d at 36 ( quoting Hidalg o , 983 S.W.2d at 754 ).
In Texas and as appli ca ble to th e case before us , j uvenile cou rts may exercise their
discretion to waive their jurisdic tion and transfer juv eniles to a criminal court if (1) the child is alleged to have violated a pena l law of the g ra de o f felony; (2) the child was:21 (A) 14 years of age o r older at the time [of the alleged offense], if the offense is a capital felony

. . . , and no adjudicati on hearing has been conducted concerning that offense; [and]

. . . (3) after a full inves ti gati on and a hearing, the juv enile court determines that t here is probable cause to believe that the child before the court committed the off ense al leged and that because of the seriousness of the offense alleged or the background of the child [or both] th e we lfare of the community requires criminal proceedings. Tex. Fam. Code Ann. § 54.02(a); Moo n , 451 S.W.3d at 38. In making these
determina tions, t he juvenile c ourt must consider the followin g nonexclusive factors: (1) whether the alleged offe nse was a ga inst person or property, with greater weight in favor of tr ansfer given to offenses against th e person; (2) the sophistication and maturity of the child; (3) the record and previous history of the child ; and (4) the prospects of adequate protect ion of t he pub lic and the likelihood of the rehabilitation of the chil d by use of procedures, services, and facilities currently available to the juven ile court. See Tex. F am. Code Ann. § 54.02(f); Moon , 451 S.W.3 d at 38. These factors en able the ju

venile court t o bala nce th e ju venile ’ s potential danger to the public agains t his
amenabilit y to treatment. M oon , 451 S.W.3d at 38. The State has the burde n to produce evidence that persua de s the juv enile court, by a preponderance of the evidence, that waiving its jur is dict ion and transfer ring the case to th e criminal court is

t he best course of action

. Id. at 45. When the juvenile court waives its jurisdi ction, “ it shall stat e specifically in the order its reasons for waiver and certify its action, including the wri tt en o rder and22 findings of the court, and shall transfer the p erson to the ap propriate court for criminal proceedings. ” Tex. Fam. Code Ann. § 5 4.02(h)

. That is, th e juvenile cou rt should “ ‘ show its work ’ . . . by spreading its deliberative process on the re cord , thereby providing a sure

- footed and definite basis fro m which an appe llate court can determine that its decision was in fact appropriat ely guided by the sta tutory criteria, pri ncipled, and reasonable

. ” Moon , 451 S.W.3d at 49.
2. S tandard of R evie w T his court recently explai ned how w e rev iew a waiver and tra nsfer order:
In evaluating a juvenile court ’ s decision to waive its jurisdiction under Section 54

. 02 (a ), we first review the juve nile court ’ s specific findings of fact regarding the Sect ion 5 4

. 0 2 ( f) f actors under “ traditio nal suf ficiency of the evidence re view. ” In this context, our sufficiency review is lim ited to the facts that the juvenile court expres sly relied upon in its tran sfer order. We then revi ew the juvenile court ’ s ultimate waiver de cisi on for an abuse of dis cretion

. That is to say, in decidi ng whether the juvenile court erred to conclude that the seriousness of the offe nse alleged or the ba ckground of the juvenile or both called fo r criminal proceedings for the welfare of t he comm un ity, we simply ask, in light of o ur own analysis of the suffi ciency of the evidence to support the Section 54

. 02 (f ) factors and any other rel evant evidence, wheth er the juvenile court acted without ref erence to guiding rules or principles. In oth er word s, was the juvenile court ’ s transfe r decision essentially arbit rary, given th e evidence upon which it was based , or did it represent a reasonab ly principled applica tion of the legislative cri teria? In conducting our review, we bear in mind that no t e very S ection 54

. 02 (f) factor must w eigh in favor of transfer to jus tify the j uvenile court ’ s discretionary decisi on to waive its jurisdiction.
In re K.W

. , No. 02

- 19

- 00 323

- CV, 2020 WL 98144, a t *4 (Tex. A pp.

— Fort Worth Jan. 9, 202 0, no pet. ) (citations a nd in ternal quotation marks omitted ) (quoting In re T.L. ,23 No. 02

- 19

- 00200

- CV , 2019 WL 4678565, at *3

– 4 (Tex. App.

— Fort Worth Sept. 26, 2019, no p e t.) (mem. op.) ).
When reviewing an assertion that the evidence is factually insufficient to support a finding , we s et aside the finding only if, after considering and weighing a ll the pe rtinent record evidence, we determine tha t the credible evidence suppo rting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that
the finding shoul d be set aside and a new trial ordered. Pool v. Ford Motor Co

. , 715 S. W.2d 629, 635 ( Tex. 1986) (op. on reh ’ g); Cain v. Bain , 709 S.W.2d 175 , 176 (Tex. 1986); Ga rza v. Alviar , 395 S.W.2d 821, 823 (Tex. 1965). W hen reversing for
factual insufficienc y , we detail the evidence relevant to the point in consideration and clearly state why the finding is factually insufficient

— that is, why the evide nce supporting the fi nding is so weak or is so against the great weight and preponderance
of the evidence tha t the finding is manifestly unjust, shocks the conscience, or clearl y demonst rates bias. Pool , 715 S.W.2d at 635.
3. Analysis
The transfer ord er states that the ju venile court determined that the welfare of the community required crimi nal proceedings bec aus e of both Appellant ’ s background and the seriousness of the alle ged off ense s and that the juvenile court
considered the four Section 54.02(f) factors listed above

. The transfer order also details the facts the juvenile court found regardi ng each fac tor
. With his sufficiency complaint that there is no evidence that th e juven ile court considered his intel lectual24 disability, Appellant challenges the factual sufficie ncy of the ev idence supporting the juvenile court ’ s finding that he is suffic iently s oph ist ica ted and mature to be t ried as an adult and supporting the juveni le court ’ s related de termination that his backgrou nd justifies the transfer. The order provides t he following regarding the soph isticatio n

and

- maturity fact or , The Court finds that [App ell ant ] is of su fficient sophistication an d maturity to be tried as an adult. A psychologi st who examined [him] concluded that he appears capable of understandi ng the legal implicati on s surrounding a discretionary transfer motion and assisting his attorne y i n h i s defense

. The facts of t he offenses themselves weigh towards the sophistication an d maturity of [Appellant] to carry out a collaborative s cheme. [He] obtained and carried a loaded handgun. After [Appellant] and his companion saw a video game sys tem in the apartm ent window, [Appellant] kicked in the apartment door. Both [he] and his c ompanion entered the apartment, but [Appellant] p ointed the lo aded handgun at the victim [] a nd demanded her property. [Appellant] himself not only wielded a firear m du rin g this home invasion, but also shot and killed the victim, who w as a mother of three children and cooperated with his dem ands. After the off ense s, [Appellant] di sp osed of the s tolen cell phone [] and the clothing he wore during the commission of the off ens e [] and attempted to dispose of the handgun. Thus, the facts the juvenile court expr essly relied on in finding that A p pellant is
sufficientl y sophisticated and m ature are the p sychologist ’ s conclusion that he appears capable of understandi ng the leg al r am ifications of being transferred to criminal court
and of helping his attorney with his defense and the facts of the offenses themselves.
In light of all the evid ence pertaining to Appellant ’ s sophistication and maturity, we hold that these facts are not e no ugh to support the finding.25 F

i rst , the conten ts of the psychol ogical ev aluation provide prima facie evidence
that Appellant meets the Un ited S tates Supreme C ourt ’ s test for intellectual disability , but the juvenile court does not address this fa ct
. T he S upreme Court ’ s test for intellectual disability is (1) intellec tual

- f unctioning deficits (indicated by an IQ score approximately two stan dard deviations below the mean

— i.e. , a score of roughly 70

— adjusted for the standard error of measurement ) ; ( 2) ada ptive deficits ( the inability to learn basic skills and adjust beha vior to changing circumstances ) ; and (3) the onset of these deficits while still a minor. Moor e v. Tex

. , 137 S. Ct. 1039, 1045 (201 7) (citations and internal quotation marks
omitted )

. Appe llant satis fies a ll three element s. The psychologist did not testi fy. The juvenile court only had the psychologist ’ s written evaluation. That evaluation show s that in A u gust 20 19, Appellant ’ s composite IQ on the Kaufman Brief Intelligence
Test was 68

. He therefore meet s the first element of th e tes t. See id. Ad aptiv e deficit s , the subject of the s e cond element of the Supreme Court ’s test, must be
shown in one of the three adaptive are a s: social, conceptual, or practical. Id. at 1050 ;

see American Ps ychiatric Association, Diag nostic a nd Statistical Manual o f Di sorder s 33 ( 5th
ed. 2013) ( “ DSM

- 5 ” )

. T he psychologi cal evaluation references information from Appellant ’ s school rec ords recognizing that he “ [h]as a physical or mental impairment that signific ant ly impacts a m ajor life activity and meets eligibility stan dards to be
identified as havin g a Sect ion 504 Dis ab ility. ” His imp acted life activi ties listed were communication, concent ration, lear ning, and thinking. Ap pellant therefore has26 adaptive defi cits satisfying the second element of the Supreme Court ’s test
. See Moore , 137 S. Ct. at 1045 ; DSM

- 5 at 33; see also 19 Tex. Admin. Code § 89.1040 (c) (5)(B)

. Appellant was and i s still a minor; the t hird and final element of the Sup reme Cour t ’s

test is th erefore met. See Moore , 137 S. Ct. a t 1045

. We agree with Ap pellant that t his evidence is a prima facie showing of inte llectual disability. Despite Appellant ’ s meeting the Supreme Cour t ’ s test for intellectual disa bility,

t he psychologi st concluded in t he ev aluation that Appell ant is not mentall y retarded

. Intell ec tual disability is another term for mental re tardation. Brumfi eld v. Cain , 576 U.S. 305, 135 S. Ct. 2269, 2274 n.1 ( 2015)

. Neither th e juvenile court ’ s order nor the
rendition addresses this conflict in t he evaluation , nor d oes e ither mention inte llectual disability

. The evaluation does not explicit ly base the psychologist ’ s conclusion that Appellant has no intellectual disability on any evidence, but presumably she reached
that conclusion b ased on her un su pported opinion in the evaluation that Ap pellant ’ s low IQ te st scores “ are likely an under estimate of his i ntellectual and academic ability
due [to] his approach [] (i.e. lack of effort t oward answering items that he perceived as difficult)

. ” Just as t he evaluation contains no ex planation for that opinion, t he Stat e d id not offer evidence supporting it at the he arin g , although we not e that in a similar

case , it has explored the issue exte nsively with both documentary evidence and live
witnes ses . See In r e E.O. , No. 02

- 18

- 00411

- CV , 2019 WL 2293181 , at *4

– 5 (Tex. App

. — F ort Worth May 30, 2019, no pet.) (mem. op.)

. There is no indication in the27 record that t he psychologist teste d Appellant f or malingering his intellectual disability , although s uch tests do e xist

. See, e.g. , Ex parte Wood , 568 S.W.3d 678, 680 (T ex. Cri m. App. 2018 ) , cert. denied , Wood v. T ex. , 140 S. Ct. 213 (2019 ) ; Petetan v. State , No. AP

77,038, 2017 WL 915530, at * 20 (Tex. Crim. App. Mar. 8, 2017) , reh ’ g granted , 2 017 WL 467 8670 (Tex. Crim. App. Oct. 18, 2017) (order, not designated for
p ublication )

. Thu s, an “ analytical gap ” exists between the d ata relied on and the
p s y chologist ’ s opinion that A p pellant could hav e done better on the test
. See Gammi ll v. Jack Williams Chevr olet, Inc. , 972 S.W.2d 713, 726

– 27 (Tex. 1998). This gap renders her opinion unr e liable and no evidence. See Volkswagen of Am

. , Inc. v. Ramirez , 159 S.W.3d 89 7, 9 06 (Tex. 200 4) (relying in par t on Gammill , 972 S.W .2d at 726 ).
Si gnificantly, b ecause the psychologist ’ s opi nion that Appellant could have done
better on t he IQ test s is th e only basis in the record that we see for her conclusion
that he is not intellect ually di sabl ed, that conclusio n is likewise unrelia ble and no
evide nce because of an im permi ssibly wide analytical gap

. See Ramirez , 159 S.W.3d at
9 06 ; Gamm ill , 972 S.W.2d a t 726

– 27

. Second , although the psychological evaluation concludes that Appellant “ appear s

ca pabl e of understan ding the legal implic ations surroundin g a d iscretionary transfe r motion and of a ssisting his attorney in his defense, ” that conc lusion is not ti ed to any
evidence in the re cord. The juvenile court ’ s like finding is therefore based on not hing
but a n unsupp orted conclusion

. Se e Moon , 451 S.W.3 d at 51 n.88. A gain, the analytical gaps between the psychol ogist ’ s conclusions and the f acts she relied on28 render her conclusions unreliable and no evidence. See Ramirez , 159 S.W.3d at 9 06 ; Gam mill , 972 S.W.2d at 72 6

– 27

. Third , even i f the psycholo gist ’ s unsupported opinion th at Appellant
understan ds the legal significance of a transfer hea ring and can hel p his attorney with
his defense had evide ntiary support in the record, the Texas Court of Crim inal
A p pea ls has s tated in pers uasive d icta t hat whe ther a juvenile can assist in his defense
is irrelevant to whether he should be transferred to adult court : No case has ever undertaken to explain

. . . exactly how the ju venile ’ s capacity (or lack th ereo f ) to

. . . assist in his de fense is re levant to whet her the welfare of the commu nity requires transfer, and we fail to see that it is. Other cou rts of appeals h ave rightly declared the purpose of an inquiry into the mental ability and maturity of the juv enile to be to det ermine whe ther he app reciates the n atu re and effect of his volu ntary actions and whether they were right or wrong. In our view, [relying on] t h e juvenile ’ s capacity to

. . . help a lawyer to effectively represent him is almost as misg uid ed as the juvenile court ’ s l ogic in the present case whe n it orally pronounced th at the appellant should be transferred, inter alia, merely for th e sake of judic i al economy, so that his case could be consolidated with that of his already

- certified

- as

- an

- ad ult co

- defendant. Such a not ion is the v ery antithesi s of the kind of individual ized assessment of the propriety of waiver of juvenile jurisdicti on that both Ken t and our statutory scheme expect of the juvenile court in the exercise of its transfer disc ret ion. Moon , 451 S. W.3d at 51 n.87 (cit ations and int ern al quotation mark s omitted ) ; see also In re J.G.S. , No. 03

- 16

- 00556

- CV, 2017 WL 672460, at * 4 (Tex. App.

— A ustin F e b. 17, 2017, no pet.) (mem. op. on reh ’ g)

. We note that the psy chologist stated in th e report that App ellant “ is no more s op histicated or mat ure than his same aged p ee rs. ”
Four teen

- year

- olds typically are neither sophisticated no r mature. How th en could29 Appellant ’ s transfer be “ the exception not the rule ” ? Moon , 451 S.W.3d at 36 (quotin g Hidalg o , 983 S.W .2d at 754 ).
Fourt h , in light of the prima facie evi d ence of Ap pellant ’ s intellectual disability
in the reco rd, the facts of the crime the ju venile court relied on in its order are an insufficient basis for the finding that Appellant h as s ufficient soph istication and

m atur i ty for transfer

. W e recognize that capital m urder is among the most serious of crimes; however we also recogn ize that noth ing in the execution of this murder
demanded m aturity or so phistication. That is, i t is not c lear to this court how the
eviden ce t ha t Appellant , accomp anied by a thirt ee n

- year

- o ld, was able to car ry a loaded gun, kick an apartment door open, convince a n u narmed person to give him her cell phone, shoot her wh en her back was turned, and dispose of t he cell phone
and his cloth es shows tha t he had sufficient sophistication and matur i ty to be
transferred to criminal court

. Significantly, the detec tive in charg e of the investigation
testified that during the investigation he “ had a pretty g ood feel that th [ese offenses]

. . . p robably involved j uveniles ” b ecause it ’ s not real common t hat you see someone of the adults do something lik e this in just broad daylight in such a d ensely popula ted area where the chances of being seen are very high. Most of your adult burglars, by the t ime they get to th at point, t hey ’ re a l ot more careful abo ut it, where they go and h o w they approach things a nd

. . . to me it just seemed very juven ile. T he rec ord also shows that Appellant was essential ly caught red

- hande d by proxy
when , on the night of the murder, polic e found the adult of his small group was30 carrying the murder w e apon loaded with shells matchi ng the casing found by the body

. For a ll four reasons, we sustain this portion of A p pellant ’ s first point , and,
because of this di sp os ition, do not reach the rest of this point

. See Tex. R. App . P.
47.1.

*****
Thi s court recogn izes t hat A ppellant does not c ha llenge the juvenile court ’ s findi ngs on all the Section 54.02 factors

. But i n this case, the juvenile court relied on
all four factors and bas ed its decision on both Appe llant ’ s background and the

se rious ness of the offense s , and we do not know how much weight the juvenile court
accorded to each factor or to each of the two reaso ns f or the transfer decisio n. We
do know that e vidence of i ntellectual d isability means the difference between life and
death in death

- pen alty case s. A tkins v . Virgin i a , 536 U.S. 304, 321, 12 2 S. Ct. 2242, 2252 (2002). At minimum, the e vidence of A p pellant ’ s inte llectual disabili ty should have been explicitly addressed in the juvenile c ourt ’ s transfer order. T he
p sycholo gical evaluation d oes not s uf ficiently support the psycholo gist ’ s conclusion s that Appellant is not intellectually dis abled . It offers no evidence to support her
conclusion tha t his IQ test scores would have been better if he had tried to answer
quest ions he found difficul t , and it o ffers no e vidence of how much better those
scores would ha ve been. Thus, the juvenile co urt ’ s finding that Appellant is sufficiently sophisticated a nd mature to transfer to criminal court rests on insufficient
evidence . Becau se intelle ctual di sability ma y very wel l permeate Appellant ’s personal31 history, his criminal history, and the likeliho od of his rehabilitation, the trial court
ab used its discretion by basing its order on Appell ant ’ s background. Because we cannot determin e how muc h weight the trial court accorded Appellan t ’ s ba ck ground

versus how much weight it accorded the serio usness o f the crimes in deciding to
transfer him to crimin al cour t, we must remand this case to the juvenile court.
I II. Conclusion Having overruled Appellant ’ s c onstituti onal complaints b ut hav ing also held
factu al ly insuffi cient evidence supports the transfer order , we reverse the juvenile

c ourt ’ s transfer ord er and remand this case to th at cou rt for proceedings consistent
with this opinion.

/s/ Mike Wallach M ik e Wallach Justic e Delive red: April 2, 2020