In the MATTER OF A.M.

NO. 01-18-00017-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 21, 2019

Sarah Beth Landau, Justice

A police investigation determined that A.M. was involved in a retaliatory gang shooting that resulted in the death of a rival gang's leader. Legal proceedings were initiated in juvenile court because A.M. was sixteen years old at the time of the shooting and juvenile courts hold exclusive jurisdiction over minors. On the State's motion to certify A.M. as an adult to face criminal charges in district court, the juvenile court issued an order finding that the State met its burden under Family Code section 54.02(a) for waiver of jurisdiction and transfer to district court.

After A.M. was convicted, an appellate court vacated his conviction and remanded the matter to the juvenile court, having concluded that (1) although the State had argued that Section 54.02(a) was the correct standard for waiver and transfer, Section 54.02(j) was the applicable standard because A.M. turned eighteen before the waiver and transfer hearing occurred and (2) the State had not presented any evidence directed to the Subsection (j) statutory requirements. *Morrison v. State* , 503 S.W.3d 724, 727-28 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (remanding for review of evidence in support of waiver and transfer under Section 54.02(j) ).

On remand, the juvenile court heard evidence from law-enforcement witnesses and others. The juvenile court ruled that the State met its burden under Subsection (j),2 and the court waived its jurisdiction to allow transfer for criminal proceedings against A.M. as an adult.

In a single issue, A.M. argues that the trial court abused its discretion in waiving its jurisdiction because the State "failed to prove by a preponderance of the evidence that it was beyond the control of the State *657to proceed to certification before [A.M.'s] 18th birthday." A.M. seeks a reversal of the trial court's waiver order and dismissal of the case against him for lack of jurisdiction.

A.M. is now an adult and all parties agree that the Family Code statutory scheme that was in place at the time the State petitioned for certification applies to our review.3 Under that scheme, A.M. can no longer be adjudicated in juvenile court. The disposition of this appeal can take only one of two forms. If we were to determine that the trial court did not abuse its discretion in waiving jurisdiction, we would affirm the trial court's order and A.M. would be retried as an adult for the murder. If, on the other hand, we were to conclude that the trial court abused its discretion in waiving jurisdiction, our only option would be to reverse and render a judgment of dismissal.

Because the trial court abused its discretion in concluding that the State met its burden under Section 54.02(j)(4)(A), we reverse the trial court's order and render a judgment of dismissal.

**Waiver of Exclusive Jurisdiction and Transfer for Criminal Prosecution**

A.M. contends that the juvenile court abused its discretion in waiving its exclusive jurisdiction and transferring his proceeding to criminal district court for prosecution as an adult. Specifically, A.M. argues that the State failed to meet its burden, under Section 54.02(j)(4)(A) of the Family Code, to establish "by a preponderance of the evidence that it was beyond the control of the state to proceed to certification before [A.M.]'s 18th birthday."4 Before turning to the lengthy factual background of this case, we first set forth the statutory criteria for discretionary waiver and transfer that must guide the evidentiary review.

**A. Law on waiver of exclusive jurisdiction over minors and standard of review on appeal**

"Children ordinarily are not subject to criminal proceedings like adults." *In re S.G.R.* , 496 S.W.3d 235, 238 (Tex. App.-Houston [1st Dist.] 2016, no pet.). When a child engages in conduct that would be considered criminal if committed by an adult, it is called "delinquent conduct." *See* TEX. FAM. CODE § 51.03(a)(1). Murder, when committed by a minor, constitutes delinquent conduct. *See id.* ; *see also* TEX. PENAL CODE § 19.02.

Juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children between ten and seventeen years old. TEX. FAM. CODE §§ 51.02(2)(A), 51.04(a). Delinquency proceedings against minors proceed in juvenile court under the Juvenile Justice Code. *See id.* §§ 51.01-61.107. A juvenile court may waive its exclusive original jurisdiction under certain conditions and allow transfer of the proceeding to a district *658court for criminal prosecution. *Id.* § 54.02(a), (j). "Generally, the transfer of a juvenile offender from a juvenile court to a criminal district court for prosecution as an adult should be regarded as the exception, not the rule." *In re J.W.W.* , 507 S.W.3d 408, 414 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (citing *Moon v. State* , 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) ).

In a juvenile transfer proceeding, the State must produce evidence that persuades the juvenile court, by a preponderance of the evidence, that waiver of its exclusive original jurisdiction is appropriate. *Moon* , 451 S.W.3d at 40-41, 45. What the State must prove to obtain transfer depends on whether the minor has reached the age of eighteen by the date of the transfer hearing. " Section 54.02(a) applies where the juvenile is less than eighteen years of age at the time of the transfer hearing," while " Section 54.02(j) applies where the juvenile is eighteen years old at the time of the transfer hearing." *In re D.L.C.* , No. 06-16-00058-CV, 2017 WL 1055680, at *4 (Tex. App.-Texarkana Mar. 21, 2017, no pet.) (mem. op.); *see**Morrison* , 503 S.W.3d at 727-28.

A.M. was sixteen years old when the rival gang leader was shot and killed. He was seventeen years old when he was arrested and the State filed its motion for waiver and transfer. But he was eighteen years old when the juvenile court held the transfer hearing and later issued its ruling.

Once A.M. turned eighteen, the juvenile court's jurisdiction was limited to either dismissing the case or transferring the case to criminal district court.5*Moore v. State* , 532 S.W.3d 400, 404-05 (Tex. Crim. App. 2017) ; *In re N.J.A.* , 997 S.W.2d 554, 555-56 (Tex. 1999). If the State did not meet its burden under Section 54.02(j), the juvenile court's only option was to dismiss the case against A.M. *Morrison* , 503 S.W.3d at 727-28 ; *see**Moore* , 532 S.W.3d at 405 ; *N.J.A.* , 997 S.W.2d at 557.

The only subpart of Section 54.02(j) that was at issue on remand and now on appeal is whether the State met its burden, under Section 54.02(j)(4)(A) to establish "from a preponderance of the evidence that ... for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person...." TEX. FAM. CODE § 54.02(j)(4)(A) ; *see**Morrison* , 503 S.W.3d at 727-28. Subsection (j)(4)(A) "is meant to limit the prosecution of an adult for an act he committed as a juvenile if his case could reasonably have been dealt with when he was still a juvenile." *Moore* , 532 S.W.3d at 405 (concluding that State's "failure to get around to this case in time did not meet [its] burden" under Section 54.02(j)(4)(A) ).

In reviewing a discretionary transfer, we evaluate the trial court's findings of fact under traditional sufficiency-of-the-evidence principles. *In re J.G.* , 495 S.W.3d 354, 369 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) (citing *659*Moon* , 451 S.W.3d at 47 ). Under a legal-sufficiency challenge, we credit evidence favorable to the challenged finding and disregard contrary evidence unless a reasonable factfinder could not reject the evidence. *Id.* at 369-70 (citing *Moon v. State* , 410 S.W.3d 366, 371 (Tex. App.-Houston [1st Dist.] 2013), *aff'd* , 451 S.W.3d 28 (Tex. Crim. App. 2014) ). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. *Id.* at 370. Under a factual-sufficiency challenge, we consider all the evidence presented to determine if the court's finding is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. *Id.* (citing *Moon* , 410 S.W.3d at 371 ).

If the findings of the juvenile court are supported by legally and factually sufficient proof, then we review the ultimate waiver decision under an abuse-of-discretion standard. *Moon* , 451 S.W.3d at 47 ; *In re H.Y.* , 512 S.W.3d 467, 478-79 (Tex. App.-Houston [1st Dist.] 2016, pet. denied). As with any decision that lies within the trial court's discretion, the question is not whether we might have decided the issue differently. *Moon* , 451 S.W.3d at 49. Instead, we ask whether the juvenile court's transfer decision was "essentially arbitrary, given the evidence upon which it was based, or [whether] it represent[ed] a reasonably principled application of the legislative criteria." *In re J.G.* , 495 S.W.3d at 370 (quoting *Moon* , 451 S.W.3d at 47 ). "A trial court has no 'discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." *Walker v. Packer* , 827 S.W.2d 833, 840 (Tex. 1992).

With that standard in mind, on remand four years later, the State presented evidence to satisfy its burden to establish by a preponderance of the evidence that, due to a reason back then that was beyond its control, it was "not practicable to proceed" in juvenile court before A.M.'s eighteenth birthday. *See* TEX. FAM. CODE § 54.02(j)(4)(A) ; *Morrison* , 503 S.W.3d at 727-28.

**B. Testimony regarding law enforcement's initial view of the case**

The original lead investigator assigned to this gang murder was Lieutenant R. Terry of the Missouri City Police Department. The matter was later assigned to Sergeant R. Ramirez, a member of the Sugar Land Police Department who was also the supervisor of a tri-city Special Crimes Unit that had recently been formed to support gang-related and other specialized criminal investigations in Sugar Land, Stafford, and Missouri City. Both officers testified.

Lieutenant Terry received a report of a homicide in Missouri City the evening of August 26, 2010. Terry went to the home of Kristian Sullivan, who had been shot multiple times and killed in his front yard. Sullivan was a known leader of a high-school-affiliated gang known as FAB. At the scene, Terry found spent shell casings that were all the same caliber but were two different brands or manufacturers. This meant there was either one shooter who used mismatched ammunition or two shooters-at this point it was unclear. Terry's initial view of the case, formed while at the crime scene that evening, was that it was likely a gang-related shooting involving either one or two shooters.

During their testimony, both Terry and Ramirez discussed the inherent difficulties in investigating gang crimes: gang members generally are reluctant to implicate fellow gang members; when they do, their statements are often self-serving and not credible; when a gang member provides a lead, the name given is often a street name *660or gang name that the officers have trouble linking to a particular individual; and, finally, even when the officers suspect that the person who committed the crime has a particular gang affiliation, the officers still have a relatively large list of possible suspects because some local gangs have hundreds of members. These gang-specific concerns were expected to make the case development more difficult.

**C. Testimony detailing the criminal investigation between August 2010 and October 2011**

***August 2010 to November 2010: Beginning of criminal investigation***

While Terry was at the murder scene, one of Sullivan's friends, Curtis Taylor, suggested to Terry that Rickel Baker might have been the shooter. Baker was a member of a rival gang known as 100 Clikk. Before Terry completed his on-site investigation, he received a call that Baker had been shot at his house in a drive-by shooting. Terry suspected the shooting was retaliatory. According to Terry, the shootings appeared to be part of the on-going gang violence between FAB and 100 Clikk.

Two days later, another 100 Clikk gang member, Darius Pye, was arrested in Pearland and claimed to have information related to Sullivan's murder. Terry met with Pye, who alleged that another person known as "Black Mike" had been involved in the murder. Terry determined that "Black Mike" was a 100 Clikk gang member named Michael Wilbourn and met with him on September 1, 2010, less than one week after the murder. Wilbourn denied involvement.

Over the next month, the police pursued leads and excluded a couple people as suspects.

In October 2010, Wilbourn reached out to police to provide additional information. At the time, Wilbourn was in a federal detention facility on charges of aggravated robbery. The FBI assisted in arranging the interview, which occurred in December 2010.

***December 2010: First allegation that A.M. is connected to murder weapon***

During his interview, Wilbourn told Terry that a person referred to as "Tony T" had tried to sell Wilbourn the gun "that was used to kill ole boy." Terry understood at the time that Wilbourn was referring to Sullivan's death. Terry testified that he did not find Wilbourn's statement to be credible, but he intended to follow up on the lead.

By the next day, Terry had figured out that "Tony T" was A.M.'s 100 Clikk gang name. Terry went to a house that had been linked to A.M., intending to interview him, but the house was vacant. Terry left a business card on the door. A week later, Terry learned that A.M. had recently been released from a juvenile detention center and, as a condition of his release, A.M. was required to wear an ankle device that would monitor his location. Terry did not ask the juvenile probation department to give him the address linked to the ankle monitor. When asked why he did not ask for the linked address to go interview A.M., Terry responded, "Because I didn't." Terry did not otherwise attempt to interview A.M.

Terry summarized the investigation status as of December 2010 as follows:

> I really don't have a suspect identified at this time because I have multiple individuals who are providing with street names who we've identified some, but we don't have anything to corroborate what each of those individuals said or to provide that each individual may be involved in this homicide.... You really *661can't move forward without tangible evidence that you can link a person or a named person to the crime or to the criminal offense.

There were no additional direct leads for several months.

***June 2011: New leads focus on another 100 Clikk gang member, Sterlyn Edwards, with no mention of A.M.***

In June 2011, the murder investigation was assigned to the Special Crimes Unit led by Sergeant R. Ramirez. The Special Crimes Unit was focused on maintaining frequent, direct contact with gang members in a tri-city area that included Sugar Land, Stafford, and Missouri City. These targeted contacts were known as "gang sweeps." During weekly gang sweeps, the Special Crimes Unit officers would find and document gang members and, during the interactions, ask the gang members for information about Sullivan's murder.

Both Terry and Ramirez described the gang members as uncooperative. When the gang members provided possible leads, they appeared to be self-serving statements that the officers were unable to corroborate. Ramirez described it as "kind of just names that were bouncing around" without corroboration.

Once Ramirez took over the investigation, he sought to re-interview Pye and Wilbourn. Both 100 Clikk members provided additional information during their second interviews. Pye was interviewed in June 2011. He indicated that fellow 100 Clikk gang member, Sterlyn Edwards, had been involved in Sullivan's murder. Pye told Ramirez that he had overheard Edwards threaten to shoot a FAB gang member like he shot the FAB leader, Sullivan. According to Ramirez, "this was the first actual break in the case" because "one gang member ... was implicating someone else within his gang."

Over the next few months, four additional people-100 Clikk and FAB members-further implicated Edwards.

***October 2011: Edwards implicates A.M., and two non-gang members connect A.M. to Sullivan's shooting***

In October 2011, Sergeant Ramirez interviewed Edwards. Edwards said that he had become friends with rival gang member Sullivan. One day, Edwards called Sullivan to set up a meeting at which two fellow 100 Clikk gang members-A.M. and Joshua Patterson-would buy marijuana from Sullivan. According to Edwards, the only purpose of the visit was to buy marijuana. Edwards told Ramirez that he, A.M., and Patterson drove to Sullivan's house in a borrowed car, A.M. and Patterson got out of the car, and he stayed in the car. During the interview, Edwards minimized his role and, according to Ramirez, "placed all the responsibility" on A.M. and Patterson.

Edwards also told Ramirez about two young women who could provide additional information. Ramirez interviewed the women and determined that they had loaned their Taurus to the 100 Clikk gang members that night. The two stated that they were with Edwards, Patterson, and A.M. at A.M.'s house. Edwards, Patterson, and A.M. were "plotting something" using "gang code" that the women did not understand. When they prepared to go out, one of the women decided not to go because she did not want to be involved; the other agreed to go along. The woman who went out with the gang members told Ramirez that they left A.M.'s house in the Taurus with Patterson driving, they drove to Sullivan's house, A.M. and Edwards got out of the car, she heard gun shots, A.M. and Edwards returned to the car, Edwards recounted how Sullivan looked when he shot him, and A.M. was comparatively quiet. After they dropped A.M. at his *662house, she saw Patterson hide a gun in the hood of the Taurus.

That same month, a non-gang member, R. Moreno, told Ramirez that he was A.M.'s best friend and that he had been shot while hanging out at a 100 Clikk house a year earlier. Ramirez found that information significant because it provided a possible motive for Sullivan's shooting in that gang violence is often retaliatory.

At that point-October 2011-based on his investigation, and particularly based on the information he received from Edwards and the two young women, Ramirez considered both Edwards and A.M. to be suspects in Sullivan's murder.

**D. Law on holding a person criminally responsible for another's acts, Sergeant Ramirez's testimony on timing of meeting the probable-cause threshold to arrest A.M., and additional testimony on seeking and obtaining corroborating evidence before arresting A.M.**

**1. Law of parties: criminal responsibility for person who is not the primary actor**

The Penal Code authorizes criminal responsibility for a person who is a "party to an offense" if the offense "is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." TEX. PENAL CODE § 7.01(a). "A person is criminally responsible for an offense committed by the conduct of another if ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." *Id.* § 7.02(a)(2).

When a party is charged for an offense in which he was not the "primary actor," the State must prove, first, the conduct constituting the offense, and, second, an act by the defendant done with the intent to promote or assist the criminal conduct. *Beier v. State* , 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). The law of parties establishes a party's responsibility for the conduct of another based on the party's "level of participation in the offense, even if he was not the proverbial triggerman." *McIntosh v. State* , 52 S.W.3d 196, 200-01 (Tex. Crim. App. 2001).

Evidence is sufficient to sustain a conviction under the law of parties if it shows that the defendant was physically present at the offense and encouraged the commission of the offense either by words or other agreement. *Cordova v. State* , 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). An agreement among parties to act together in common design is seldom proven by words. Often, the State must rely on the actions of the parties, shown through direct or circumstantial evidence, to establish the understanding or common design to commit the criminal offense. *Marable v. State* , 85 S.W.3d 287, 293 (Tex. Crim. App. 2002) ; *In re J.S.* , No. 03-17-00344-CV, 2018 WL 4100785, at *2 (Tex. App.-Austin Aug. 29, 2018, no pet.) (mem. op.); *Miller v. State* , 83 S.W.3d 308, 314 (Tex. App.-Austin 2002, pet. ref'd). Any agreement must have been made before or contemporaneous with the criminal event, but in determining whether one has participated in an offense, the court may examine the events occurring before, during, and after the commission of the offense. *Miller* , 83 S.W.3d at 314.

"Mere presence at the scene of a crime does not implicate an individual as a party. However, participation in a criminal offense may be inferred from the circumstances." *In re J.S.* , 2018 WL 4100785, at *2 (citing *Beardsley v. State* , 738 S.W.2d 681, 684 (Tex. Crim. App. 1987) ).

*663There are numerous cases analyzing criminal liability for gang-related and other drive-by shootings. In one gang-related drive-by shooting case, an appellate court held that there was legally sufficient evidence to affirm a murder conviction tried under a law-of-parties theory on evidence that a man was gunned down outside his home, two cars drove past his house with occupants shooting at the man, one bullet killed the man, and the defendant drove one of the two cars. *Leal v. State* , No. 13-04-00287-CR, 2005 WL 2476260 (Tex. App.-Corpus Christi Oct. 6, 2005, no pet.) (mem. op., not designated for publication). The defendant's conviction under a law-of-parties theory did not require evidence that the defendant fired the bullet that killed the man, that he fired a gun at all, or even that he drove the particular car from which the fatal shot was fired. *See**id.* at *3 ("We believe appellant's actions in driving a vehicle used in the drive-by shooting aided or attempted to aid the person who murdered Medina, even if that person was not in appellant's vehicle. From this circumstantial evidence, the jury could have concluded that appellant intended to promote or assist the commission of Medina's murder."); *see**Anguiano v. State* , No. 05-92-01065-CR, 1993 WL 438181 (Tex. App.-Dallas Oct. 26, 1993, no pet.) (mem. op., not designated for publication) (appellate court affirmed murder conviction under law-of-parties theory in gang-related drive-by shooting in which defendant knew of plan to fight, drove vehicle to fight location, shot his gun "into the air," drove from scene, and helped dispose of weapons, holding that "evidence is sufficient to establish that [the defendant] was aware that his actions were reasonably certain to aid in causing the shooting death" of individual killed); *Esparza v. State* , No. 14-95-01257-CR, 1998 WL 724364 (Tex. App.-Houston [14th Dist.] Oct. 8, 1998, no pet.) (not designated for publication) (appellate court affirmed murder conviction under law-of-parties theory on evidence that defendant and person killed were in rival gangs, they had history of gang altercations, defendant was driver of vehicle used in drive-by shooting and leaned out of his vehicle holding gun, concluding that factfinder reasonably could have determined that defendant had requisite intent to aid passenger-shooter in act of shooting person who was killed even though there was no evidence that defendant fired his gun).

**2. Sergeant Ramirez's testimony that the police had probable cause to arrest A.M. by mid-October 2011 under a law-of-parties theory of criminal responsibility**

Sergeant Ramirez was specifically asked whether he was familiar with the law of parties and whether he believed in mid-October 2011-based on the information he had after interviewing Edwards and the two young women-that A.M. could be held criminally responsible for Sullivan's murder as a party to the offense. Ramirez replied, "Absolutely, yes." He was asked the same question about Patterson and again replied, "Absolutely."

Ramirez was asked why, then, he did not request an arrest warrant for Edwards, Patterson, or A.M. in mid-October 2011. He responded, "We weren't there yet. There's one other person we needed to talk to." Ramirez explained that he was referring to Patterson. He later added that he also wanted to talk to A.M.

**3. Sergeant Ramirez's testimony on further criminal investigation after probable-cause threshold had been met for A.M.**

Ramirez interviewed Patterson in late-October 2011. During the interview, Patterson admitted that he drove the Taurus to Sullivan's house. Patterson told Ramirez *664that Edwards and A.M. got out of the car just before Patterson heard the gunshots. Patterson said that, later that night, Edwards gave him a gun to conceal in the hood of the Taurus.

Ramirez testified that he requested an arrest warrant for Patterson the same day he interviewed him in late-October 2011. Ramirez's explained that his primary focus, at that time, was on securing Patterson's immediate arrest because he was the only of the three 100 Clikk gang members in the Taurus that night who was not already in custody somewhere for some offense. Ramirez was concerned about the safety of the two young women who had provided information in the criminal investigation. A.M. and Edwards were already confined and posed no threat to the women's safety. Patterson, though, was still free.

While Ramirez testified that he was focused only on securing Patterson's arrest, he also testified that he requested A.M.'s arrest at the same time as Patterson's. It is undisputed that Ramirez presented information on October 31, 2011 to obtain an arrest warrant for Patterson, Edwards, and A.M. Consistent with requesting an arrest warrant for these three gang members, Ramirez testified that he believed he had probable cause to arrest Patterson, Edwards, and A.M. on October 31, 2011.

Despite having requested A.M.'s arrest, Ramirez testified that his intention, at that time, was to wait for physical evidence to corroborate a two-shooter theory before moving forward against A.M. He testified, "I think I was ready to move forward with the warrant like on Tony T," referring to A.M.'s gang name, but he also noted that he "didn't have any physical evidence ... as to his involvement" or to "corroborate he was there." Ramirez explained that he still "wanted some more" evidence-physical evidence.

At that point, when Ramirez moved forward with the arrest of Patterson based on probable cause but did not move forward with the arrest of A.M. despite probable cause, A.M. was seventeen years and 7 months old. He was only five months from his eighteenth birthday. Ramirez was asked about his decision to wait to pursue A.M.'s arrest, given that A.M. was almost eighteen years old. Ramirez explained that it was never conveyed to him that A.M. was about to turn eighteen or that his age created any prosecutorial deadlines. Ramirez stated that he was not aware of any reason for urgency in the case against A.M.

The police investigation continued. In December 2011, Ramirez re-interviewed Wilbourn, who told Ramirez about an earlier conversation he had had with A.M. and Edwards. The two had given Wilbourn a ride because Wilbourn's car had broken down. They picked Wilbourn up in a borrowed Taurus. During the car ride, Edwards told Wilbourn that he had been involved in Sullivan's shooting, A.M. attempted to sell Wilbourn a gun, and Edwards and A.M. told Wilbourn that the Taurus was the same car they had used to "do the murder." A.M. was not arrested on this new information.

**4. Sergeant Ramirez's testimony about waiting to obtain physical evidence before arresting A.M.**

Ramirez waited to arrest A.M. until after he received confirmation from a firearms lab, in January 2012, that two weapons were used in the Sullivan murder.6 When it was pointed out to him that he did not likewise wait for the lab report to arrest Patterson, Ramirez agreed that both men already were subject to prosecution *665even if the firearms analysis failed to provide incriminating physical evidence. Probable cause was established in mid-October 2011. Ramirez explained why he, nonetheless, waited on the lab report before arresting A.M.:

> Yeah, I think what-it's been a while but I think what I wanted is when I got to the point where I could interview [A.M.], like I could have physical evidence to bring to that interview. It's better to have that information with you so that way if a suspect starts lying to you, that you can pull something out and say, no, actually I do have proof that this happened. That would be one reason that I was waiting on physical evidence.

Ramirez's explanation fails to take into account A.M.'s impending birthday.

**5. Firearms examiner's testimony about findings and issuance of lab report**

One of the witnesses at the Section 54.02(j) transfer hearing was J. Turner, the firearms examiner at the Harris County Institute of Forensic Sciences. She explained the timeline for testing the casings, reaching the conclusion that two weapons were used in Sullivan's murder, and conveying that information to investigators:

```
*Year**Date**Event* 2010 Sept. 9 First portion of the items were received for analysis Oct. 12 Additional items received from medical examiner 2011 June 10 Items removed from the lab so that DNA testing could be performed before the firearms analysis Oct. 27 Items returned to lab and placed back in line for analysis "Somebody" requested that the analysis be "given some priority," but Turner does not know who made the request Nov. 3 Turner began analysis Nov. 4 Turner completed analysis Nov. 17 Technical review completed 2012 Jan. 27 Administrative review completed May 30 Written lab report forwarded to law enforcement
```

Thus, according to Turner, the process lasted more than one and one-half years.

Turner explained that the form used to request an analysis from the lab did not have a section to mark the work request as a priority or rush assignment. Turner stated that the lab nonetheless was willing to accommodate rush requests and that such *666requests were "not an uncommon thing." Rush requests typically were made by phone or email. In 2011, the lab did not use a tracking method to memorialize phoned requests to expedite. If anyone called to request a rush in this case, there would be no record of it.

Ramirez testified about requests for expedited lab analyses as well. He stated that the Harris County Ballistics Firearms Lab is not a part of his police department and that the lab assists police departments from surrounding areas as a "favor":

> Harris County isn't part of Fort Bend County ... And they're basically doing us a favor by conducting the firearms examination; and though Fort Bend, we don't have a lot of murders involving guns, Harris County, they do. So, I know that they're backlogged. I know that it does take a while to get firearms labs back.

But Ramirez also testified that he knew he was able to request a rush and had done so in earlier cases. He did not request a rush in this case because he was unaware there was any need for a rush: "I didn't see the rush in this case ..."

Turner completed her examination on November 4, 2011 and concluded that two weapons had been used to shoot Sullivan. But her written report could not be immediately released because the lab's procedures required a mandatory, internal review. The first step of the mandatory review was a "technical review" of the physical evidence to confirm Turner's conclusions. The lab completed the technical review on November 17, 2011. Under the labs procedures, lab results normally would not be released after the technical review; instead, the release followed the completion of an administrative review. However, according to Turner, she would have been permitted to verbally release her findings to law enforcement after the technical review if she had received a request to do so. No such request was made.

Turner's draft written report was forwarded for the "administrative review" on November 17, 2011. The purpose of that review is to analyze the report for completeness and grammatical errors. The lab completed the administrative review more than two months later, on January 27, 2012. The lab results were forwarded to law enforcement the same month.

According to Turner, the lab would have permitted release of its conclusions to law enforcement once the technical review was completed in November 2011, even though the administrative review had not been done. Turner testified that she "wouldn't say that it's a known fact" that the lab was willing to release findings early. She further testified that "it's not done that often."

On the topic of early release of findings, Sergeant Ramirez testified that he did not know findings could be released early or that they would have been released in mid-November 2011 if he had requested that they be.

**6. Sergeant Ramirez's testimony about receiving lab results and arresting A.M.**

Ramirez testified that he received a call on January 26, 2012 letting him know that the firearms lab had confirmed that two guns were used in the murder of Sullivan. According to Ramirez, this provided the physical-evidence corroboration he was seeking. He explained, "[T]hat was the first date that I finally had something physical-some physical evidence. I knew two people got out of the car. Now I know two separate guns were used."

The same day he received the lab results confirming that there had been two shooters, Ramirez filed new documents to obtain *667A.M.'s arrest.7 But these new documents did not include the newly received information from the firearms lab. Instead, Ramirez relied on the same information he had included in the affidavit to support Patterson's arrest in late-October 2011.

Three days later, on January 29, 2012, officers removed A.M. from a juvenile detention center where he was being held on unrelated charges and transported him to a juvenile holding center in Fort Bend County. At that point, A.M. was seventeen years and ten months old, and the juvenile court would lose jurisdiction in two months.

**7. Summary of Sergeant Ramirez's testimony on timing of establishing probable cause to arrest A.M. and subsequent events**

Ramirez testified that probable cause existed to arrest A.M. in mid-October 2011 following the interviews of Edwards and the two young women. He testified that probable cause still existed in late-October 2011, after he interviewed Patterson. Relatedly, Ramirez requested A.M.'s arrest on October 31, 2011, when he also requested Patterson's arrest. Yet he arrested Patterson and not A.M.

Ramirez confirmed that he was aware that criminal defendants could be prosecuted as a party to the offense. And he thought, in October 2011, that A.M. could be prosecuted under a law-of-parties theory.

Instead of pursuing A.M.'s arrest at either of these junctures, Ramirez preferred to wait for physical evidence that would support direct liability against A.M. as a triggerman. Ramirez was unaware of any rush in the case that would counsel against waiting on physical evidence in a murder case against a minor offender who was approaching his eighteenth birthday. In the end, Ramirez agreed that he had probable cause to arrest A.M. in mid-October 2011 and would have still had probable cause if the lab results did not further implicate Ramirez as a triggerman.

**E. Evidence of prosecutorial activity between the date of A.M.'s arrest and the date of the first waiver and transfer hearing**

On February 13, 2012-about two weeks after A.M. was arrested-the State filed its petition for a discretionary transfer to criminal district court under Section 54.02(a) of the Family Code. This is the provision that applies to transfers of minor-offenders who are still minors on the date of the transfer hearing. TEX. FAM. CODE § 54.02(a). Section 54.02(d) establishes certain required steps for transfer under Section 54.02(a), including that "the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense" before the hearing on the transfer motion. *Id.* § 54.02(d). To comply with Section 54.02(d), the juvenile court appointed Dr. K. Gollaher to evaluate A.M. But the Fort Bend County Juvenile Probation Department did not send the information she needed for her evaluation until one month later. The State did not call Dr. Gollaher to testify or present any evidence explaining why a month passed between her appointment and the *668necessary information being provided to her.

On March 26-four days before A.M.'s eighteenth birthday-the State requested and the juvenile court signed an order transferring A.M. from Fort Bend County Juvenile Detention to Fort Bend County Jail, where adults are housed.

On March 27, the Probation Department's Psychology Division forwarded to Dr. Gollaher the information she needed to conduct her psychological evaluation.

On March 30, A.M. turned eighteen.

On April 5, Dr. Gollaher performed her psychological evaluation of A.M. She completed her report later that month, and the juvenile court released the report to all parties.

On June 8, A.M.'s juvenile probation officer completed her social home study report, which could not be completed before receipt of Dr. Gollaher's psychological evaluation.

On June 12, the juvenile court held a hearing on the State's petition to transfer. The prosecutor described the hearing as "a traditional discretionary transfer hearing" filed under Section 54.02(a). The prosecutor noted that A.M. had turned eighteen on March 30 but that the State had filed its petition for discretionary transfer while A.M. was still seventeen years old. The prosecutor argued that transfer was governed by Section 54.02(a), not Section 54.02(j), because the petition to transfer was already on file when A.M. turned eighteen. According to the prosecutor, because the petition was filed "well before" A.M.'s eighteenth birthday, Section 54.02(j) was "never triggered." Accordingly, the State did not put on any evidence in support of transfer under Section 54.02(j).

On June 13, 2012, the juvenile court granted the State's petition, waived its jurisdiction, and transferred the case to the criminal district court. The transfer and subsequent conviction were reversed on appeal, which led to the hearing and testimony discussed above in the State's efforts to meet the requirements of transfer under Section 54.02(j). *See**Morrison* , 503 S.W.3d at 728.

**F. The juvenile court's findings following the second waiver and transfer hearing on remand analyzed under Section 54.02(j)**

The juvenile court held the second waiver and transfer hearing, on remand, in December 2017. As discussed, Lieutenant Terry, Sergeant Ramirez, and firearms examiner J. Turner testified, among others. Following the hearing, the trial court made 50 factual findings that laid out the chronology of events during the two-year criminal investigation. These findings note when the police interviewed various gang members, when the lab took certain actions, when Dr. Gollaher received and released information, and when filings were made in support of transfer.

The trial court did not make any specific findings on witness credibility. Nor did the trial court make any findings about whether a particular event could or could not have occurred at a given time. Instead, the first 50 findings are strictly a chronological recitation.

The trial court then made five additional findings "in favor of discretionary transfer" under Section 54.02(j), the first of which stated:

> [A.M.] is 18 years or older. On the date of the initial discretionary transfer hearing [A.M.] was eighteen (18) years of age, having been born on March 30, 1994. On the date of the remanded discretionary transfer hearing [A.M.] was twenty-three (23) years of age. For reasons beyond the control of the state, it *669was not practicable to proceed in juvenile court before the eighteenth (18th) birthday of [A.M.]

The fourth additional finding stated:

> The juvenile court finds from a PREPONDERANCE OF THE EVIDENCE that pursuant to Texas Family Code section 54.02(j) for reasons beyond the control of the state it was not practicable to proceed in juvenile court before the eighteenth (18th) birthday of [A.M.], based on the previous factual findings of this Court.

The other three findings dealt with A.M.'s age and probable cause in general terms.

Nowhere in these findings did the juvenile court make a factual determination that identified a condition or event as a Section 54.02(j) "reason beyond the control of the state" or that linked any identified "reason" to a sense of not being practicable to proceed.

**G. The trial court abused its discretion in waiving its exclusive jurisdiction and granting transfer of A.M. to criminal district court for prosecution as an adult**

The trial court's factual findings set forth a timeline of events during the development of the murder case against A.M. The State's witnesses discussed the progression of the case as these events unfolded. The State's witnesses identified at least three periods of time in which, according to the State's own witnesses, the case was ready to proceed to the next stage but did not.

The first period was the three months between October 2011 and January 2012. Ramirez testified that he understood the law-of-parties theory permitted criminal charges against those who aid or assist in a crime. In October 2011, Ramirez thought the requirements of probable cause were met for Patterson and A.M., under a theory of law of parties, because of their involvement in driving to Sullivan's house and killing him with multiple gunshots. Ramirez even filed papers requesting A.M.'s arrest in October 2011. But the State did not pursue the arrest. The State-whether at the behest of Ramirez or the prosecutors-preferred to wait for physical evidence, which would support a theory of direct liability for actually shooting a gun at Sullivan.

Even if the State had been in the position to wait for evidence that would support a theory of direct liability, there was a second three-month period identified by the State's own witnesses in which the case was ready to proceed but did not. The lab technician's report was disclosable on November 17, 2011. The State's witnesses all testified that they did not realize there was any reason to rush the lab review process or the case generally, and so they never called or otherwise asked for an expedited release of the lab's results. The lab's results were available for release on November 17, 2011, but the State was satisfied to wait until their release through routine procedures three months later in late-January 2012.

The third period identified by the State's own witnesses was in connection with Dr. Gollaher's required evaluation. The timeline established by the State's witnesses, and accepted by the trial court in its findings of fact, shows that the juvenile court ordered a psychological evaluation of A.M. on February 22, 2012-just over one month before A.M.'s eighteenth birthday-but the information Dr. Gollaher needed to conduct her evaluation was not provided by the Fort Bend County Juvenile Probation Department until March 27-which was more than one month later and only three days before A.M.'s birthday. Dr. Gollaher completed her report about one *670month after receiving the information from the probation department, even though there was no evidence she was asked to expedite the report.

Testimony provided by the State's witnesses identified these three periods: two three-month periods and one one-month period.8 No witness identified any "reason" the case did not move forward during these seven months. They did the opposite. Without exception, the State's witnesses testified that there were no impediments: probable cause existed in October 2011, yet A.M. was not arrested; the lab results were ready November 17, 2011, yet no one requested expedited release much less expedited analysis; and Dr. Gollaher demonstrated that she could produce a report in about one month, yet no one sent her the needed materials for more than a month.

Ramirez did offer that the State waited to proceed with arresting A.M. because Ramirez "wanted more" evidence against him, even though Ramirez understood that the State already met the threshold of probable cause. Ramirez's testimony provides some explanation why the State waited. But it does not provide what is required: a reason beyond the control of the State that influenced the available progression of the case. Ramirez conceded that he was aware there was probable cause to move forward in the case on the allegation of murder in October 2011 under the law of parties. The "more" that Ramirez wanted could have been used in an interrogation to establish A.M. was being untruthful, but there is no suggestion in this record that the State needed "more" to shore up its investigative conclusion that A.M. was responsible for this crime.

Not only was there no "reason" identified in the State's evidence, the State also failed to establish through its evidence that any reason would qualify as "beyond the control of the State." TEX. FAM. CODE § 54.02(j)(4)(A). Not one witness testified that, for any of these three periods, there was an outside factor that influenced the progression of the case.

The juvenile court's factual findings in this case distinguish it from another waiver and transfer case, *In re B.C.B.* , No. 05-16-00207-CV, 2016 WL 3165595 (Tex. App.-Dallas June 7, 2016, pet. denied). There, a teenager disclosed to a neighbor on April 11 that she had been sexually assaulted two years earlier by a classmate who had since moved away. *Id.* at *5. The investigating police officer learned of the allegation the next day, on April 12, and thought it provided probable cause to arrest the accused. *Id.* The police officer waited to make an arrest until the following month, however, because the officer "did not have an official outcry from complainant," the accused's "location was unknown," "additional gathering of information could cause [the officer] to change his mind" about the accusation, and waiting would "protect the accused" from an unfounded allegation that had not yet been investigated. *Id.* The appellate court held that the State met the requirement of Section 54.02(j) on that evidence. The probable cause threshold was reached the day after the complainant first disclosed the earlier assault, but, at that point, the police had not interviewed the complainant or otherwise investigated the alleged *671crime. Moreover, the arrest was only one month after the initial outcry.

The progression leading to a probable cause determination was very different here. The first witness to implicate A.M. was Wilbourn in December 2010. He told the officers that "Tony T" had tried to sell him a gun used to kill Sullivan. By the next day, the investigating officers understood that "Tony T" was A.M.'s gang name. A.M. was in the mix of potential suspects for almost a full year when, in mid-October 2011, Edwards and the two young women implicated him through their statements that were consistent with each other, with earlier statements by others, and with the physical evidence collected at the crime scene. Then, by late-October 2011, after Patterson was interviewed, law enforcement had four individuals placing A.M. at the scene of the shooting, another individual indicating A.M. was in possession of the murder weapon, and a statement that A.M. had discussed the murder in a way that implicated himself. Probable cause against A.M. was the result of a lengthy criminal investigation with ample corroboration. And the State's own witness stated that probable cause existed in October 2011-three months before the State pursued the arrest of A.M.

The State argues that its actions were within the bounds of appropriate case advancement. It argues that it should not be required to "drop everything and do everything perceivable and conceivable to avoid delay" or establish that it was wholly "prevented" from proceeding. We agree. Section 54.02(j) does not set such a high standard. Instead, it places a burden on the State to establish, by a preponderance of the evidence, given that the waiver and transfer hearing did not occur until after A.M.'s eighteenth birthday, that it was not practicable for it to have proceeded before his eighteenth birthday because of a reason beyond the State's control. *See* TEX. FAM. CODE § 54.02(j)(4)(A) ; *Moore* , 446 S.W.3d at 52. We do not locate any evidence in this record of a "reason" that was "beyond the control of the State" on which the State could rely. *Cf.**Moore* , 446 S.W.3d at 52 (concluding that detective's heavy caseload and mistake as to defendant's age were not "reasons beyond the State's control" to satisfy Section 54.02(j) burden and vacating conviction). Simply put, failing to realize that a deadline existed is not outside the State's control.

Looking at the record in its entirety, the absence of supporting evidence is consistent with the State's position at the first waiver and transfer hearing: the State had been proceeding under a theory that the Subsection (j) requirements would not apply, meaning that the State would not be put to the burden of establishing a reason it had not been practicable to proceed before A.M.'s eighteenth birthday, and the State simply "didn't see the rush in this case."9

A.M. contends that the State failed to carry its burden under Subsection (j) at the second waiver and transfer hearing and that the juvenile court abused its discretion in granting the motion on insufficient evidence. We must agree. The State did not present any evidence of a reason beyond its control that it linked to a practicability analysis. The State investigated this murder under the impression there was "no rush," found out only after A.M.

*672turned eighteen that the heightened standard of Subsection (j) applied, and then looked to the record for a fortuitous reason beyond its control that influenced the case progression to meet the standard of being not practicable to proceed. The record simply does not provide such proof. Instead, it affirmatively establishes the opposite.

The dissent would permit the State to investigate a case at its own pace without regard to the statutory deadline of the juvenile's eighteenth birthday. The plain language of the relevant statute does not permit this approach. In the event that it is impracticable for the State, for reasons beyond its control,10 to file a petition and obtain a transfer ruling from the juvenile court before the child's eighteenth birthday, the State need only make a showing of the reason by a preponderance of the evidence. Statutory compliance with a deadline when probable cause was established months earlier is neither "heroic" nor extraordinary. It is, however, difficult where the State did not realize the deadline existed and must rationalize, post hoc, a failure to comply with it.

This case is only about whether the juvenile court had jurisdiction to authorize transfer pursuant to Texas Family Code section 54.02(j). The dissent's sojourn into the merits of the juvenile court's waiver of jurisdiction under Section 54.02(f) transcends the question before the Court. Accordingly, Section 54.02(f), *Moon v. State* , 451 S.W.3d at 47-56, and *Matthews v. State* , 513 S.W.3d 45, 55-56 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd), have no relevance to the jurisdictional inquiry. For that reason, discussion of the Subsection (f) factors, such as the record and previous history of the child and the nature of the offense, distracts from the resolution of the narrow jurisdictional question presented.

Because there was no evidence to support the trial court's ultimate determination that the requirements of Section 54.02(j)(4)(A) were met, we must reverse the trial court's order waiving jurisdiction and transferring to district court.

**H. Mandatory disposition**

Because the State did not meet its burden, its non-compliance with Section 54.02 deprived the juvenile court of jurisdiction. We therefore hold that the juvenile court lacked jurisdiction to transfer the case to a criminal district court and, as a result, the criminal district court may not acquire jurisdiction. *Moore* , 446 S.W.3d at 52,. The trial court abused its discretion. We proceed with the only available disposition: dismissal of the case for lack of jurisdiction.

**Conclusion**

We reverse and dismiss the case for lack of jurisdiction.

2

*See* Tex. Fam. Code § 54.02(j)(4)(A) (permitting waiver of jurisdiction and transfer if, among other things, "the juvenile court finds from a preponderance of the evidence that ... for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person" subject to transfer); *see also**Moore v. State* , 446 S.W.3d 47, 51-52 (Tex. App.-Houston [1st Dist.] 2014) (holding that "the State" within Section 54.02(j) encompasses more than just prosecutors and includes members of law enforcement involved in case investigation and prosecution), *aff'd* , 532 S.W.3d 400 (Tex. Crim. App. 2017).

3

No party argues that Section 51.0412 of the Family Code, which became effective on September 1, 2013-before the December 2017 transfer hearing on remand-applies. *See* Tex. Fam. Code § 51.0412, Acts 2013, 83rd Leg., ch. 1299 (H.B. 2862), § 7, eff. Sept. 1, 2013 (permitting juvenile court to retain jurisdiction over person if, among other things, person is respondent in adjudication proceeding and proceeding is not complete before respondent turns eighteen, so long as court enters finding that prosecuting attorney exercised due diligence in attempt to complete proceeding before respondent became eighteen years of age).

4

Subsection (j)(4) contains alternative grounds for waiver and transfer that all parties agree are not relevant to this appeal. *See* Tex. Fam. Code § 54.02(j)(4)(B).

5

Effective September 1, 2013, a legislative exception to this rule of limited jurisdiction became available. *See* Tex. Fam. Code § 51.0412, Acts 2013, 83rd Leg., ch. 1299 (H.B. 2862), § 7, eff. Sept. 1, 2013. Under this exception, a juvenile court may retain jurisdiction over a person, without regard to the person's age, if, among other things, the person is a respondent in an adjudication proceeding and the proceeding is not complete before the respondent turns eighteen, so long as the court enters a finding in the proceeding that the prosecuting attorney exercised due diligence in attempting to complete the proceeding before the respondent's eighteenth birthday. *See**In re B.R.H.* , 426 S.W.3d 163, 166 (Tex. App.-Houston [1st Dist.] 2012, no pet.) ; *In re V.A.* , 140 S.W.3d 858, 859-60 (Tex. App.-Fort Worth 2004, no pet.). As stated, neither party argues that the transfer hearing in this case is subject to the Section 51.0412 legislative exception.

6

The circumstances around the issuance of the firearms lab's finding is discussed below.

7

Because A.M. was a minor at the time of the offense, the arrest warrant was referred to as a "directive to apprehend." *See* Tex. Fam. Code § 52.015(a) ("On the request of a law-enforcement or probation officer, a juvenile court may issue a directive to apprehend a child if the court finds there is probable cause to take the child into custody under the provisions of this title."). There is no meaningful distinction between an arrest warrant and a directive to apprehend in the witnesses' testimony.

8

There is arguably a fourth period of delay between December 2010 and October 2011. In December 2010, Wilbourn told Terry that A.M. had tried to sell him the gun used to kill Sullivan, yet no officer pursued A.M.'s interview despite knowing A.M. was wearing an ankle monitor. In October 2011, those interviewed by law enforcement again signaled A.M.'s involvement, and the investigative focus returned to A.M.

9

The State does not argue that there is a good-faith exception to adherence to Subsection (j)'s requirements in the event the State has failed to operate under the correct subsection. *Cf.* Tex. Code Crim. Proc. art. 38.23(b) (providing good-faith exception to exclusionary rule when law enforcement, acting in objective good faith, rely on warrant issued by neutral magistrate based on probable cause).

10

Failure to mitigate investigative or procedural delay is not something outside the State's control. *See, e.g.* , *Moore* , 532 S.W.3d at 404-05 (law enforcement's heavy case load was not beyond State's control); *Webb v. State* , No. 08-00-00161-CR, 2001 WL 1326894, at *6 (Tex. App.-El Paso Oct. 25, 2001, pet. ref'd) (not designated for publication) (failure to ask the court to expedite the transfer hearing, causing a six-week delay, was not outside State's control).

Justice Keyes, dissenting.

**DISSENTING OPINION ON REHEARING**

Evelyn V. Keyes, Justice

I respectfully dissent. The majority opinion is deeply contrary to established law. It creates a wholly new, unprecedented, and unworkable standard of review of a *673juvenile court's findings with respect to a transfer from juvenile court to criminal district court of proceedings filed against a juvenile before his eighteenth birthday but decided after his eighteenth birthday, and it erroneously dismisses the case for lack of jurisdiction.

***Background***

This case is before this Court following remand from the Fourteenth Court of Appeals to the juvenile court in which murder proceedings were initiated against A.M. before his eighteenth birthday. The case was initially transferred by the juvenile court to criminal district court after A.M.'s eighteenth birthday. A.M. was tried for murder, convicted, and sentenced to forty-five years in prison. *Morrison v. State* , 503 S.W.3d 724, 725 (Tex. App.-Houston [14th Dist.] 2016, pet ref'd). Following the trial, he filed his first appeal of his conviction, which was assigned to the Fourteenth Court of Appeals.

Applying a then-recently decided case from the Texas Court of Criminal Appeals, *Moore v. State* , the Fourteenth Court of Appeals held that when, as here, a juvenile is arrested before he turns eighteen for a crime committed before he was seventeen, but the juvenile proceedings against him are concluded and an order of transfer issued after the person turns eighteen, not only must the State satisfy the factors under Texas Family Code section 54.02(a), on which the prosecutor in this case had relied, it must also prove that transfer is appropriate under section 54.02(j), which the State had not done because it mistakenly thought that section 54.02(j) did not apply. *Id.* at 727-28 (citing *Moore*1 and explaining that section 54.02(j) applies when transfer occurs after person turns eighteen even if petition to transfer is filed before birthday). Accordingly, the Fourteenth Court ordered the juvenile court to hold a new transfer hearing to allow the State the opportunity to put on evidence in support of the transfer from which the juvenile court could reasonably conclude by a preponderance of the evidence that "for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person."2*Morrison* , 503 S.W.3d at 727-28 ; *see* TEX. FAM. CODE § 54.02(j)(4)(A) ; *Moore v. State* , 532 S.W.3d 400, 404-05 (Tex. Crim. App. 2017) (per curiam) (subsection 52.04(j)(4)(A) "is meant to limit the prosecution of an adult for an act he committed as a juvenile if his case could reasonably have been dealt with when he was still a juvenile").

This appeal is from the juvenile court's order on remand finding that it was not practicable to conclude the proceedings in juvenile court regarding the murder charge against A.M. before his eighteenth birthday. We review the transfer order on remand to determine whether the juvenile court abused its discretion in making the practicability finding, waiving its jurisdiction, and transferring the case to criminal district court.

***Discussion***

As the majority acknowledges, this appeal presents one issue: whether the juvenile *674court abused its discretion by finding that it was not "practicable" for reasons beyond the State's control for that court to have concluded proceedings commenced against A.M. before A.M.'s eighteenth birthday.

I strongly disagree with the majority's handling and disposition of this case. The majority does not recite the detailed statutory requirements for reviewing transfer orders set out by the Court of Criminal Appeals in *Moon v. State* , 451 S.W.3d 28 (Tex. Crim. App. 2014), and by this Court in a number of recent cases, which are addressed below. The majority does not construe the term "practicable" in its opinion, although the case was remanded solely for a practicability finding; and it does not apply the Court of Criminal Appeals' construction of that term as used in Family Code section 54.02(j), which states that the conclusion of proceedings against a juvenile in juvenile court before his eighteenth birthday is "practicable" "*if his case could reasonably have been dealt with when he was still a juvenile* ." *See**Moore* , 532 S.W.3d at 405 (emphasis added).

Nor does it apply this standard as it was applied in *Moore* . Notably, the facts in *Moore* , which established the criteria for determining the practicability of completing proceedings against a juvenile before his eighteenth birthday are materially different in every respect from those in this case. Specifically, (1) although the defendant in *Moore* was sixteen years old at the time of his sexual assault of his twelve-year-old cousin, "[t]he police investigation began soon thereafter with the investigating detective requesting reports from Child Protective Services and the hospital where the victim was examined"; (2) because the investigating detective had a heavy caseload and gave priority to other cases, she did not forward the case to the district attorney's office for almost two years; (3) the investigating detective believed that the defendant was seventeen years old, when he was actually eighteen, because of an error in one of the reports; and (4) the State took another year to file a petition for discretionary transfer of the case from juvenile court to criminal district court. 532 S.W.3d at 402. The only reasonable inference from these facts in *Moore* , in the absence of evidence to the contrary, is that the State did nothing to prosecute the case for three years.

The majority applies its own standard of practicability that is contrary to law in multiple respects and in direct contravention of its own admonition that "the question [before this Court] is not whether we might have decided the issue differently." Slip Op. at 8 ("As with any decision that lies within the trial court's discretion, the question is not whether we might have decided the issue differently") (citing *Moon* , 451 S.W.3d at 49 ). And, rather than following the established standard of review of a juvenile court's findings in a transfer order or applying the construction of the term "practicable" as in *Moore* , as soon as it states the standard of review, the majority rejects the juvenile court's findings in favor of conducting its own independent evaluation of the facts and prosecutorial decisions made by law enforcement it finds relevant under its own unstated standard of review.

On this basis, the majority implicitly finds a legal duty of law enforcement officials and prosecutors to bring any charges they can against a juvenile as fast as they can without waiting for physical evidence, without going through regular police procedures for analyzing evidence, and without taking the ordinary professional course in completing the statutory pre-requisites to a transfer order once charges are filed. It requires express findings on witness credibility and on what the witness *should**675*have known* and done. And it bases its decision that the district court abused its discretion in transferring the case on this substituted standard of review.

And to what end does the majority deem this heroic effort to be mandated in this case? So that the juvenile court would not lose the option of sending A.M.-at least a three-time offender-to rehabilitation instead of transferring him to criminal district court for trial for murder, which is all that is lost by holding a transfer hearing after a juvenile's eighteenth birthday. *See* TEX. FAM. CODE § 54.02(j) ; *Moore* , 532 S.W.3d at 404-05 (acknowledging that when juvenile turns eighteen, juvenile court does not lose jurisdiction, but its jurisdiction becomes limited, and it may then only either transfer case to appropriate court or dismiss it); *In re H.Y.* , 512 S.W.3d 467, 476 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (stating that material difference between proceeding under subsection 54.02(a) and proceeding under 54.02(j) "is that the juvenile court must consider the person's likelihood of rehabilitation if he is under 18, but is not required to consider it if the person is 18 or older").

In short, the majority sets a standard of review of a juvenile court's findings in support of a transfer order that contravenes established law and that violates every *reasonable* construction of the term "practicable" in order to assure that A.M.-and by extension all future juveniles-does not lose the benefit of having the juvenile court consider whether he should be sent to rehabilitation before his eighteenth birthday rather than being tried for murder as an adult-no matter how illusory the benefit in the actual case and no matter the efforts required to attain it. And it turns a blind eye to whether "the seriousness of the offense alleged or the background of [A.M.] warrant[ed] transfer for the welfare of the community," despite *Moon* 's mandate that the juvenile court's findings in a transfer order speak precisely to this ultimate issue, as well as to the best interests of the juvenile. *See*451 S.W.3d at 50.

I would conclude, under the correct standard of review to the juvenile court's practicability finding, that the State met its burden on remand of showing that the conclusion of proceedings against A.M. in the juvenile court before his eighteenth birthday was not practicable. Accordingly, I would hold that the juvenile court did not abuse its discretion in so finding and in waiving its jurisdiction and transferring the case to criminal district court, and therefore it did not err. I would affirm the juvenile court's transfer of the murder case against A.M. to criminal district court for retrial.

**A. The Law Governing a Juvenile Court's Waiver of Jurisdiction and Transfer to District Court**

A juvenile court has exclusive original jurisdiction over all proceedings involving a person who has engaged in delinquent conduct as a result of acts committed between the ages of ten and seventeen. *See* TEX. FAM. CODE §§ 51.02(2), 51.04(a).

Family Code section 54.02 governs the waiver of a juvenile court's exclusive original jurisdiction and transfer of the case to the appropriate criminal district court. TEX. FAM. CODE § 54.02. Section 54.02 provides in relevant part:

> (j) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if [among other requirements]:

> ....

> (4) the juvenile court finds from a preponderance of the evidence that:

> *676(A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person; or

> (B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:

> ....

> (ii) the person could not be found....

TEX. FAM. CODE § 54.02.3

Section 54.02 and related sections of the Family Code place numerous statutory protections for juveniles on the power of a juvenile court to waive jurisdiction and transfer proceedings to district court when, as here, a juvenile was fourteen years of age or older at the time he was alleged to have committed a felony of the first degree (here, murder under Penal Code Chapter 19) but had not turned eighteen when the proceedings in juvenile court were commenced. TEX. FAM. CODE § 54.02(j)(2)(A).

Statutory prerequisites to transfer include the preliminary investigation and determinations and notice to parents required by Family Code section 53.01, which can only commence once there is probable cause to believe the juvenile engaged in delinquent conduct-a determination made here on January 27, 2012, and confirmed by the juvenile court's probable cause finding on January 31, 2012. *Id.* § 53.01(a). If, as here, the case is a felony, it must promptly be forwarded to the office of the prosecuting attorney along with all documents that accompanied the current referral and a summary of all prior referrals of the child for consideration by the juvenile board. *Id.* § 53.01(d) - (f).

The referral is then reviewed by the prosecutor, who must terminate all proceedings if there is no probable cause or return the referral to the juvenile probation department for further proceedings. *Id.* § 53.012. If the preliminary investigation reveals that further proceedings are authorized and warranted, rather than dismissal for lack of probable cause, the prosecuting attorney may file a court petition for an adjudication or transfer hearing with the juvenile court "as promptly as practicable," and may, prior to that, refer the offense to a grand jury to further investigate the facts and circumstances concerning the offense and approving prosecution. *Id.* §§ 53.04, 53.035.

The petition and notice requirements of sections 53.04, 53.05, 53.06, and 53.07 must also be satisfied. *Id.* § 54.02(b).

The juvenile court must then conduct a hearing without a jury to consider transfer of the child for criminal proceedings. *Id.* § 54.02(c). But, prior to the hearing, the juvenile court "shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense." *Id.* § 54.02(d); *see**In re D.L.N.* , 930 S.W.2d 253, 255 (Tex. App.-Houston [14th Dist.] 1996, no pet.). At the transfer hearing, the court may consider written reports from probation officers, court employees, professional consultants, and witnesses; and, at least five days before the hearing, "the court shall provide the attorney for the child and the prosecuting attorney with access to all written matter to be considered by the court in making the transfer decision." TEX. FAM. CODE § 54.02(e).

The hearing's purpose is not to determine guilt or innocence but to establish whether the best interests of the minor and society are furthered by maintaining jurisdiction in the juvenile court or by transferring the minor to district court for *677adult proceedings. *In re D.L.N.* , 930 S.W.2d at 255. Accordingly, the juvenile court determines whether there is probable cause to believe that the minor committed the offense alleged and whether, because of the seriousness of the offense or the minor's background, the welfare of the community requires criminal proceedings. *Id.*

In making the transfer determination, the court must consider "(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person"; "(2) the sophistication and maturity of the child"; "(3) the record and previous history of the child"; and "(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court." TEX. FAM. CODE § 54.02(f).

If the court waives jurisdiction, it must "state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and shall transfer the person to the appropriate court for criminal proceedings," and cause the psychological study to be transferred to the appropriate criminal prosecutor. *Id.* § 54.02(h). "A transfer of custody made under this subsection is an arrest." *Id.*

When a juvenile is arrested before he turns eighteen for a crime committed before he turned seventeen, but the transfer hearing is held after the juvenile's eighteenth birthday, the juvenile court must make the findings required by subsection 54.02(j) in addition to the findings required by subsection 54.02(a). *Morrison* , 503 S.W.3d at 727-28. Section 54.02(j) provides that, if the prerequisites to completion of the proceedings in juvenile court cannot reasonably be dealt with before the person's eighteenth birthday, the juvenile court may hold the transfer hearing after the person's birthday, waive its exclusive original jurisdiction, and transfer the person to criminal district court if (1) the person is eighteen years of age or older; (2) the person was between ten and seventeen years of age at the time he is alleged to have committed an offense such as one under Penal Code section 19.02 (Murder); (3) no adjudication concerning the alleged offense has been made or adjudication hearing concerning the offense conducted; (4) the court finds from a preponderance of the evidence that it was not practicable to proceed in juvenile court before the child's eighteenth birthday; and (5) the juvenile court determines there is probable cause to believe the child committed the offense alleged. *Id.* § 54.02(j).

That was the case here. Specifically, the juvenile court was required to find facts (1) from which it could reasonably be inferred that the State conducted a diligent investigation to discover and bring to justice the killer of the complainant, Kristian Sullivan or "K-Su," between the time K-Su was murdered and the time A.M. was identified as a participant in the murder, physical evidence linking him to the crime was found and processed, and probable cause was developed to arrest him and (2) from which it could reasonably be inferred that the statutorily-mandated prerequisites to transfer could not reasonably have been dealt with in the eight weeks between the time probable cause to arrest A.M. was obtained and his eighteenth birthday.

Only, here, the juvenile court did not make its finding that it was not practicable to proceed in juvenile court before A.M.'s eighteenth birthday on the record at the original hearing in 2012, as required by section 54.02(j)(4). The Fourteenth Court of Appeals' remand of the case to the juvenile court in 2016 was specifically to allow the juvenile court the opportunity to *678hold another transfer hearing and to make the omitted findings on the basis of the preponderance of the evidence standard.

**B. Standard of Review of Order Transferring Proceedings from Juvenile Court to Criminal District Court**

Appellate courts review a juvenile court's order waiving its jurisdiction and transferring proceedings to criminal district court under an abuse of discretion standard. *See**Moon* , 451 S.W.3d at 40 (holding that State has burden "to produce evidence to inform the juvenile court's discretion as to whether waiving its otherwise-exclusive jurisdiction is appropriate in the particular case"); *Moore v. State* , 446 S.W.3d 47, 50 (Tex. App.-Houston [1st Dist.] 2014), *aff'd* , 532 S.W.3d 400 (Tex. Crim. App. 2017) ; *Matthews v. State* , 513 S.W.3d 45, 55-56 (Tex. App.-Houston [14th Dist.] 2016, pet. denied) (relying on *Moon* ); *In re H.Y.* , 512 S.W.3d at 479.

The Court of Criminal Appeals explained the appellate courts' standard of review of a lower court's findings of fact and conclusions of law in an order transferring proceedings from juvenile court to criminal district court in *Moon* . Under this standard,

> In deciding whether the juvenile court erred to conclude that the seriousness of the offense alleged and/or the background of the juvenile called for criminal proceedings for the welfare of the community, the appellate court should simply ask, in light of its own analysis of the sufficiency of the evidence to support the Section 54.02(f) factors and any other relevant evidence, whether the juvenile court acted without reference to guiding rules or principles. In other words, was its transfer decision essentially arbitrary, given the evidence upon which it was based, or did it represent a reasonably principled application of the legislative criteria?

*Moon* , 451 S.W.3d at 47 ; *Matthews* , 513 S.W.3d at 56.

*Moon* emphasized the importance of the juvenile court's making the determinations required by section 54.02 before waiving its jurisdiction and transferring the case. *See*451 S.W.3d at 46-47 (citing TEX. FAM. CODE § 54.02(a) ); *see also**In re T.S.* , 548 S.W.3d 711, 720 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (discussing standard set out in *Moon* ). The *Moon* court, like the *Moore* court after it, "made clear that ... if the juvenile court waives jurisdiction, it must 'state specifically' in its order its reasons for waiver." *In re T.S.* , 548 S.W.3d at 721 (quoting *Moon* , 451 S.W.3d at 41 ). It must "spread[ ] its deliberative process on the record, thereby providing a sure-footed and definite basis from which an appellate court can determine that its decision was in fact appropriately guided by the statutory criteria, principled, and reasonable." *Id.* (quoting *Moon* , 451 S.W.3d at 49 ).

Each case from this Court that has reviewed findings of fact and conclusions of law in regard to a waiver of juvenile court jurisdiction and transfer to district court has followed *Moon* . *See, e.g.* , *id.* In several recent opinions, this Court has specified that, in a transfer case, the juvenile court must consider and make findings in the transfer order as to each of the four statutory factors set out in Family Code section 54.02(f), which are recited above. *See id.* ; *Ex parte Arango* , 518 S.W. 3d 916, 920-21 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) ; *see also**Matthews* , 513 S.W.3d at 55-56 (ruling of Fourteenth Court of Appeals, holding same). In addition, as stated above, if section 54.02(j) applies-i.e., if the transfer hearing takes place after the person's eighteenth birthday-the juvenile court must also make the findings required *679by subsection 54.02(j), including the practicability finding that is at issue here.

"[I]n evaluating a juvenile court's decision to waive its jurisdiction, an appellate court should first review the juvenile court's specific findings of fact regarding the Section 54.02(f) factors under 'traditional sufficiency of the evidence review.' " *Moon* , 451 S.W.3d at 47 ; *see**In re T.S.* , 548 S.W.3d at 721. Specifically,

> [I]n conducting a review of the sufficiency of the evidence to establish the facts relevant to the Section 54.02(f) factors and any other relevant historical facts, which are meant to inform the juvenile court's discretion whether the seriousness of the offense alleged or the background of the juvenile warrants transfer for the welfare of the community, *the appellate court must limit its sufficiency review to the facts that the juvenile court expressly relied upon, as required to be explicitly set out in the juvenile transfer order* under Section 54.02(h).

*Moon* , 451 S.W.3d at 50 (emphasis added); *In re T.S.* , 548 S.W.3d at 722. This Court stated emphatically in *Matthews* : "The *Moon* court ... emphasized that ... if the juvenile court waives jurisdiction it must 'state specifically' in its order its reasons for waiver," and we concluded that "we 'should *not* be made to rummage through the record for facts that the juvenile court *might* have found, given the evidence developed at the transfer hearing, but did not include in its written transfer order.' " 513 S.W.3d at 56 (quoting *Moon* , 451 S.W.3d at 49-50 ) (emphasis in original).

I am also mindful of the standard for reviewing mixed questions of law and fact set out by the Court of Criminal Appeals in *State v. Garcia* . In that case, the Court of Criminal Appeals addressed in detail the standard of appellate review when "the trial judge is required to make findings of fact and conclusions of law expressing the basis for his ruling." *State v. Garcia* , 569 S.W.3d 142, 148 (Tex. Crim. App. 2018). The court recited the established standard:

> *Reviewing courts should afford "almost total deference" to the trial judge's findings on matters of historical fact* , especially when those findings "are based on an evaluation of credibility and demeanor." But "application[s] of law to fact" or "mixed questions of law and fact" are entitled to deference only if they "turn[ ] on an evaluation of credibility and demeanor." Otherwise, they are reviewed de novo.

*Id.* (internal citations omitted) (emphasis added).

*Garcia* centered around "interrelated issues" raising questions as to "(1) ... which of the trial judge's findings and conclusions are entitled to deference; (2) which of the trial judge's findings and conclusions are reviewable de novo; and (3) which of the trial judge's findings and conclusions are relevant to determining [the ultimate question]." *Id.* at 148-49. The court therefore determined to "lay out some of the factors that informed the trial judge's decision in this case and attempt to describe, item by item, both the deference owed to the trial judge in that regard and the relevance each item should have in determining [the ultimate question]." *Garcia* , 569 S.W.3d at 149.

In particular, *Garcia* instructs, "*in assessing the reasonableness of an officer's actions* [under the circumstances and law of the case] *a reviewing court should take into account not only the facts known to the officer, but also the 'specific reasonable inferences which he is entitled to draw from the facts in light of his experience* ,' " necessitating "an inquiry into whether a particular inference was, or was not, 'reasonable' under the circumstances." *Id.* at 151 (emphasis added). However, as the Court of Criminal Appeals pointed out, *680this "finding" of reasonableness is not a finding at all, but a legal conclusion, and is, therefore, subject to de novo review. *Id.*

The exact same sorts of interrelated issues that characterized *Garcia* are involved here in determining whether the juvenile court abused its discretion in concluding, on the basis of reasonable inferences from findings of historical fact, that the State proved by a preponderance of the evidence that concluding proceedings in the juvenile court before A.M.'s eighteenth birthday was not practicable. Here, as in *Garcia* , the juvenile court's findings of historical facts, as long as they find support within the record, are entitled to deference and are "highly relevant" to deciding the legal issues, as they "clearly and properly informed the trial judge's determination of whether there was time" to conclude juvenile proceedings before A.M.'s eighteenth birthday. *See**id.* at 149.

The majority in this case reverses the mandates of the Court of Criminal Appeals. It not only fails to follow but *rejects* the notion of limiting its sufficiency review to the facts that the juvenile court expressly relied upon. It reviews the sufficiency of the evidence according to what it thinks *should* have been facts upon which the juvenile court based its review and alternative courses of action *not* taken but that it deems *should have been* taken and *would have been* sufficient, in its judgment, to justify a practicability finding. And it rummages through the record " 'for facts the juvenile court *might* have found, given the evidence developed at the transfer hearing, but did not include in its written transfer order,' " exactly contrary to *Matthews**. See*513 S.W.3d at 56.

The majority does not defer to the trial court's findings and reasonable inferences therefrom. It ignores many of the pertinent facts showing both what the officers did and what activities the State was required to complete to prepare for the transfer hearing. Instead, it concludes that the trial court's fifty findings of fact in support of its transfer order are all simply irrelevant because they are not findings that meet the majority's own criteria. That is, the findings do not state that the juvenile court found witnesses credible, and they do not state that it was not practicable (under its unexplained criterion of "practicability"), i.e., humanly possible, to complete proceedings in the juvenile court had every heroic measure and short-cut possible been undertaken to complete the case against A.M. before his eighteenth birthday, even if it meant arresting A.M. as soon as the investigating officer thought he had probable cause to arrest him under the law of parties, even though, in that officer's judgment, it was important to get physical evidence to tie A.M. to the scene of the crime, and even if it meant rushing scientific studies of the evidence of the crime and not waiting for the completeness report, and even though the case must be dismissed if the juvenile court determines the probable cause standard was not met.

In the majority's analysis, the investigation and proceedings should have been driven solely by the fact that A.M.-one of many persons identified in connection with the complainant's gang-related murder over the course of the sweeping investigation-would turn eighteen five months after he was first placed by witnesses at the scene of the murder and so he must be arrested and charged as the murderer, regardless of the state of the proof, and all necessary prerequisites to transfer completed before his birthday or the proceedings against him would be dismissed.

Likewise, the majority does not take into account the *reasonableness* of the inferences the investigating officers were entitled to draw "under the circumstances" in light of their experience, and that the juvenile *681court was allowed to credit, as instructed by *Garcia**. See*569 S.W.3d at 150. These would include, for example, the inference that it was reasonable to allow the investigative process to take its normal course to its conclusion and that, therefore, it was unnecessary to arrest A.M. in October 2011, since he was already in juvenile detention, and that it made sense to seek physical evidence linking him to the crime scene to support a probable cause statement in his affidavit and to analyze the evidence found under standard law enforcement procedures, and thereby to determine the truthfulness of A.M.'s identification by witnesses as being at the murder scene and the extent of his involvement in the crime in order to enhance the chances that the probable cause finding indispensable to criminal prosecution would be made by the juvenile court.

The majority substitutes its own judgment for the officer's and determines that everything the officers did was *unreasonable* by the majority's own standards, which are honed in solely on meeting the deadline for concluding proceedings in juvenile court before A.M.'s eighteenth birthday. Nor does the majority defer at all to the juvenile court's historical findings of fact, although mandated to afford them almost total deference by *Garcia**. See*569 S.W.3d at 148 ; *see also**Moon* , 451 S.W.3d at 49-50 (holding that reviewing court should measure sufficiency of evidence to support juvenile court's stated reasons for transfer by considering sufficiency of evidence to support facts as they are expressly found by juvenile court in its certified order).

There could be no clearer case of an appellate court " 'rummag[ing] through the record for facts that the juvenile court *might* have found, given the evidence developed at the transfer hearing, but did not include in its written transfer order,' " exactly contrary to *Moon* and *Matthews* . *See**Matthews* , 513 S.W.3d at 56 (quoting *Moon* , 451 S.W. 3d at 50 ). And there could be no clearer case of an appellate court's second-guessing both the investigators and the discretion of the juvenile court in implicitly finding that the gap following the time Lieutenant Terry was first told by Wilbourn that "Tony T" (A.M.) had tried to sell him "the gun 'that was used to kill ole boy,' " Slip Op. at 11, was immaterial to its decision that it was not practicable to conclude the proceedings in juvenile court before A.M.'s eighteenth birthday. *See**In re J.W.W.* , 507 S.W.3d 408, 413 (Tex. App.-Houston [1st Dist.] 2016, no pet.) ("As with any decision that lies within the discretion of the juvenile court, the salient question is not whether we might have decided the issue differently.") (citing *Moon* , 451 S.W.3d at 49 ).

At the same time, the majority fails almost entirely to opine on the many statutory prerequisites that had to be fulfilled after the investigation was completed and A.M. was transferred to Harris County from detention in Fort Bend County and detained on the murder charge and before the decision to transfer the case to criminal district court could be made, except to find it unreasonable for the juvenile court not to have required an expedited psychological study of A.M. The majority does not concern itself with what it might have taken for the juvenile court to obtain that report before March 27, when it was delivered. And it is heedless of the time required to complete other statutory requirements, including not only "a complete diagnostic study," but also a "social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense," the collection of "written reports from probation officers, professional court employees, ... professional consultants," and other witnesses, and the provision to the attorney for the *682child and the prosecuting attorney of "all written matter to be considered by the court in making the transfer decision." TEX. FAM. CODE § 54.02(c), (d), (e).

Nor does the majority consider the determination the juvenile court was required to make before ordering the proceedings against A.M. transferred to criminal district court, which is to answer the question whether the best interests of the minor and *also* the best interests of society are furthered by maintaining jurisdiction in the juvenile court or by transferring the minor to district court for adult proceedings because of the seriousness of the offense or the minor's background and the welfare of the community. *In re D.L.N.* , 930 S.W.2d at 255. It is to assist the juvenile court in making these determinations that the court is required by law to consider the four factors set out in section 54.02(f) -including "the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court"-as well as, when the transfer hearing is not held before the juvenile's eighteenth birthday, whether the proceedings could reasonably have been dealt with in juvenile court before the minor's eighteenth birthday. *See**Moore* , 532 S.W.3d at 404-05 ; *In re D.L.N.* , 930 S.W.2d at 258.

Under the established standard of review, the majority could not have reasonably concluded that the juvenile court abused its discretion in finding that it was not practicable to conclude the proceedings in juvenile court before A.M.'s eighteenth birthday, and it could not have reasonably concluded that A.M.'s rights were trampled in this case, that he should be protected against criminal prosecution, and that criminal proceedings against him must be dismissed, regardless of the threat he poses to the community.

I would decide this case under the governing standards of review of a juvenile court's transfer order set out above. *See**Moore* , 532 S.W.3d at 405 ; *Moon* , 451 S.W.3d at 46-47. I would afford almost total deference to the historical findings of fact of the juvenile court, and I would review de novo mixed questions of law and fact to determine whether they support the juvenile court's conclusions as reasonable. *See**Garcia* , 569 S.W.3d at 148-49 ; *see also**Moon* , 451 S.W.3d at 46-47 ("As long as the appellate court can determine that the juvenile court's judgment was based upon facts that are supported by the record, it should refrain from interfering with that judgment absent a scenario in which the facts identified in the transfer order ... bear no rational relation to the specific reasons the order gives to justify [its findings]."). I would determine that the juvenile court did not abuse its discretion in ordering transfer of the proceedings against A.M., and I would enter judgment accordingly.

**C. The Juvenile Court's Findings of Fact and Transfer Order**

The juvenile court made fifty findings following A.M.'s transfer hearing to determine whether it was practicable to conclude the proceedings against him in juvenile court before his eighteenth birthday. These findings and the record evidence present the following scenario.

***1. Law enforcement's investigation of Sullivan's murder***

On April 20, 2010, A.M. was placed on juvenile probation for an unrelated crime in Harris County, Texas. The probation was transferred to Fort Bend County for supervision.

*683On August 26, 2010, the complainant, seventeen-year-old Kristian Sullivan, who was a member of the gang "Forever About Bread" and also known as "K-Su," was shot multiple times by an unknown assailant and killed outside his home in Missouri City, Texas, in a gang-related shooting. No weapons were found at the scene, and no eye-witnesses came forward. Two different brands of cartridge casings were found, but they were of the same caliber. The police suspected, but were not sure, that there were two gunmen. At the time of Sullivan's murder, A.M. was sixteen years and five months old.

Before Sullivan's death, there had been "numerous, numerous crimes, shooting, fights, that were going on" between feuding gang members. While police were still on the scene of Sullivan's murder, another shooting occurred at the home of a rival "100 Clikk" gang member. The shooting appeared to be in retaliation for Sullivan's murder.

During the intensive investigation of the second murder that immediately followed Sullivan's killing, several members of the 100 Clikk gang were identified as persons of interest, including "Black Mike," who was identified by gang member Darius Pye on August 28.

On August 30, 2010, A.M. was detained by the Missouri City Police Department on an unrelated charge.

On September 1, the police identified Black Mike as Michael Wilton and interviewed him. He provided a possible alibi. The investigation continued, and other suspects were identified and interviewed.

On September 7, two weeks after the killing, the police requested grand jury subpoenas for phone records of the complainant in an attempt to generate leads. They continued to interview gang members and to follow up on leads.

On September 16, police sent gunshot residue collected from one suspect to a lab for testing.

On October 11, they collected Sullivan's clothing from the Medical Examiner's office and found an additional cartridge casing.

On October 25, A.M. was placed on formal juvenile probation on an unrelated charge.

The lack of evidence and the reticence of gang members to speak with the police made the murder investigation difficult. Sullivan was "very involved" in the leadership of the FAB gang. Sullivan's residence was typically where FAB gang members would "hang out." Sullivan's friends were not cooperative with the police; there was testimony at the transfer hearing that "traditionally gang members don't just come to police with information." Police had multiple names of suspects, but researching those names, and generating and corroborating information, took substantial time. Although not included in the findings of fact, the record shows that Police Sergeant K. Tullos testified that any member of 100 Clikk "would be a possible suspect at the time." Around the time of Sullivan's murder, 100 Clikk had about 300 members.

A.M.'s name was first mentioned on December 6, 2010, by a senior member of 100 Clikk, Michael Wilbourn, who was then in federal custody for aggravated robbery. Wilbourn identified "Tony T" as a person who wanted to sell him "a gun used to kill ole boy." Missouri City Police Lieutenant R. Terry testified that Wilbourn did not implicate himself in the murder and was not credible. At that point, there was nothing to corroborate Wilbourn's statement, but Lieutenant Terry "still [had] to follow up on his statement just to verify."

*684Police learned that Tony T's real name was A.M. A.M. was a student at Marshall High School, and he lived just outside Missouri City. Lieutenant Terry went to A.M.'s address, but he found a vacant house. Lieutenant Terry later learned that A.M. was in juvenile detention in Fort Bend County, but he did not speak with A.M. at that time. Lieutenant Terry then learned that A.M. had been released from juvenile detention on December 8, 2010. Lieutenant Terry did not attempt to locate A.M., in part because he did not believe he could get information about a juvenile on probation.

From December 2010 through June 2011, both the Missouri City Police Department gang unit and the tri-city Special Crimes Unit (SCU) conducted multiple gang sweeps, attempted widespread gang documentation, and ran organized patrol action plans in an attempt to suppress gang activity, document gang members, and generate leads in Sullivan's murder. The SCU was "busy"-over 100 gang members were entered into the Department of Public Safety database during this time, and a lot of information was coming in.

During this time, on March 30, 2011, A.M. turned seventeen. On May 9, 2011, A.M. was committed to the Texas Juvenile Justice Department (TJJD) on an indeterminate commitment for an unrelated felony.

On June 3, 2011, police returned to A.M.'s last known home address, were again unable to make contact with him, and learned that the house had been sold at foreclosure.

Also on June 3, 2011, in anticipation of the promotion of the lead investigator, the Missouri City Police Chief turned the investigation over to the SCU.

On June 10, police attempted to generate leads by submitting evidence to be entered into the DNA database.

On June 13, SCU investigators spoke to 100 Clikk member Darius Pye, "a respected high-ranking gang member," who implicated a fellow gang member, Sterlyn Edwards, in the murder. Pye said that, after the murder, he was in a car driven by Edwards, who was talking on the phone to a rival FAB gang member. According to Pye, Edwards told the rival gang member, "I'll bang, bang you like I bang, bang K-Su." The record reflects that the police considered this to be the first break in the case, but this information still needed to be corroborated.

On August 18, 2011, SCU investigators met with Donald Reed, another member of 100 Clikk, who said that Darius Downer, also a member of 100 Clikk, had told him that Edwards shot Sullivan. The investigators spoke with Downer, who said that Edwards had tried to sell him a gun after Sullivan's murder. Downer was the second 100 Clikk member to implicate Edwards, a fellow 100 Clikk member, and investigators thought this information was credible.

SCU investigators learned that a week before Sullivan's murder someone named "Rene" was shot at Downer's house by FAB gang members. Investigators met with Rene, who was still recovering from his gunshot wound. Rene said one of his best friends was A.M. The record reflects that the information that one of A.M.'s best friends had been shot by FAB gang members provided the officers with a possible motive for Sullivan's murder.

On August 23, 2011, investigators went to speak with Wilbourn. Since his December 2010 interview, Wilbourn had been convicted of bank robbery and was then serving a fifteen-year prison sentence. Wilbourn implicated 100 Clikk in Sullivan's murder. Wilbourn told investigators that *685Edwards was involved in the murder of Sullivan and that A.M. had tried to sell him a gun that A.M. claimed was involved in the murder. Wilbourn said that Edwards and A.M. had borrowed a tan or cream Ford Taurus from some girls from Pearland and that they drove that car to commit the murder.

On August 29, investigators interviewed FAB gang member Allen Henderson. Henderson said that, during a phone conversation he had had with Edwards, Edwards threatened to "bang, bang him like he did K-Su." The record reflects that Henderson gave no information about A.M.

On October 11, 2011, having learned that Edwards was incarcerated in the Texas Department of Criminal Justice (TDCJ), investigators interviewed Edwards for the first time. During the interview, Edwards implicated himself and two other gang members-A.M. and Joshua Patterson, or "J-Pat"-in Sullivan's murder. Edwards said that he arranged for Patterson and A.M. to buy marijuana from Sullivan. After Edwards set up the marijuana deal, Kandace Hall drove Patterson and A.M. to Sullivan's house, where they committed the murder. The record reflects that this was the first time that investigators actually considered A.M. to be a suspect in Sullivan's murder.

On October 14, 2011, investigators spoke with Samon Williams. She stated that she used to own a tan or pewter Ford Taurus, which matched the description provided by Wilbourn in the August 2011 interview and that it was used in the murder. The record contains her testimony that, on the night Sullivan was killed, Williams was hanging out at A.M.'s house with A.M., Patterson, and Hall, among others. Williams said that Hall, Patterson, and A.M. left the house in her car but she knew something was going on, so she stayed back and went to her boyfriend's house down the street. When Hall, Patterson, and A.M. returned, Edwards was with them. Later that night, Williams and Hall dropped off A.M., then they dropped off Edwards, and finally they dropped off Patterson. When they arrived at Patterson's house, Patterson put a gun in the hood of the car, and Hall told Williams that the gun was used to "kill that boy."

On October 15, 2011, investigators interviewed Hall, who corroborated Williams's statement and said she drove with A.M., Patterson, and Edwards to Sullivan's house. The record contains Hall's testimony that, on the night of the shooting, they were at A.M.'s house, and A.M. and the other gang members were talking about something in gang language or jail code, which she did not understand. Hall went on the marijuana run with them, noting that Patterson was driving the car and that Edwards and A.M. were passengers. When they arrived at Sullivan's house to buy the marijuana, Edwards and A.M. got out of the car. Hall then heard several gunshots, and Edwards and A.M. came running back to the car. Edwards told them to "go, go, go" and indicated that he had shot someone.

Sergeant Ramirez considered the information given by Williams and Hall credible. However, neither of them saw A.M. shoot Sullivan or saw him hold a gun. Still, the use of two different brands of ammunition to shoot Sullivan indicated there might have been two shooters.

The record also contains the chief investigator's testimony that, after speaking with Williams and Hall, he believed that Edwards, Patterson, and A.M. were all involved in the murder, at least as parties to the offense. But he did not believe the police were ready to request warrants for arrests. He testified that he still needed to *686speak with Patterson, who he believed acted as the getaway driver.

On October 21, 2011, an automobile was identified as being involved in the murder.

On October 25, 2011, investigators met with Patterson at the police department. Patterson gave a statement that corroborated the statements of Williams and Hall. Patterson's statements were consistent with there being two shooters.

That same day, Sergeant Ramirez obtained an arrest warrant for Patterson, and he was subsequently arrested. The record contains the chief investigator's testimony that because both Edwards and A.M. were already in custody,4 he was not concerned with getting warrants for their arrest in this case. Patterson was the only person who participated in the murder who was not already in custody and therefore could potentially hurt the female witnesses who had provided evidence against the suspects. Also, at that point, the investigator was concerned that he had no physical evidence to corroborate A.M.'s involvement. Investigators were waiting on laboratory results regarding DNA testing on the shell casings and firearms examinations.

On October 26, 2011, officers located Williams's Taurus, which four witnesses-Wilbourn, Williams, Hall, and Patterson-had said was used in the murder. The Taurus had been repossessed and resold, but it was recovered and processed for blood evidence and anything related to the murder. It contained no evidence.

On October 31, 2011, the investigators referred the whole case to the Fort Bend County District Attorney's Office and filed an offense report recommending that A.M., Patterson, and Edwards be arrested and charged with murder. However, the record reflects that the lead investigator did not sign a probable cause affidavit or obtain a directive to apprehend A.M. at that time. Rather, he testified that, although his October 2011 report requested A.M.'s arrest, he did not intend to arrest A.M. at that time because he needed "some physical evidence to help corroborate" the testimony against him.

On November 3, 2011, the firearms examiner began a firearms analysis of the casings evidence.

The next day, November 4, Turner, the firearms examiner, completed her analysis and reached a preliminary opinion that two guns had been used in the murder.

On November 17, 2011, a required "technical review" of the examination was conducted and the results were then available for verbal release.

On January 11, 2012, a DNA report was completed showing negative results for blood on swabs from the car. No evidence was found in the Taurus.

On January 27, a required final administrative review of the firearms examination was conducted and released to the police.

That same day, investigators received a verbal confirmation from the firearms lab that two guns had been used in the murder. This was the first physical evidence to indicate that there were two shooters.

Investigators immediately obtained a formal directive to apprehend A.M. *See* TEX. FAM. CODE § 52.015(a) ("On the request of a law-enforcement or probation officer, a juvenile court may issue a directive to apprehend a child if the court finds there is probable cause to take the child into custody under the provisions of this title.").

***2. A.M.'s arrest and proceedings in juvenile court****687On January 30, 2012, three days after the directive to apprehend A.M. was issued and eight weeks before his eighteenth birthday, the directive to apprehend was executed at TJJD, and A.M. was taken to Fort Bend County Juvenile Detention.

On February 1, 2012, an initial detention hearing was held in Fort Bend County and a finding of probable cause made.

On February 13, 2012, six weeks before A.M.'s eighteenth birthday, the State filed its petition for a discretionary transfer to criminal district court under Family Code section 54.02 and a motion for a psychological examination pursuant to section 54.02(d).

On February 22, 2012, the juvenile court ordered a psychological evaluation of A.M. *See**id.* § 54.02(d) ("Prior to the hearing [on the petition for transfer], the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense."). The juvenile court appointed Dr. Karen Gollaher to conduct the evaluation, based on her educational background and experience in conducting psychological examinations pursuant to section 54.02. The court ordered "a full and thorough study of the background and circumstances of [A.M.]," but information Gollaher needed for her evaluation was not sent to her by the Fort Bend County Juvenile Probation Department for more than a month.

On March 26, 2012, due to A.M.'s impending eighteenth birthday, the State requested and the juvenile court signed an order that A.M. be transferred from Fort Bend County Juvenile Detention to Fort Bend County Jail, as the former does not house adults. The next day, the Probation Department's Psychology Division forwarded to Gollaher the information she needed for her psychological evaluation.

On March 30, 2012, A.M. turned eighteen.

On April 5, 2012, Dr. Gollaher performed her psychological evaluation of A.M. She completed her report later that month, and the juvenile court released the report to all parties.

The record reflects that, on June 8, 2012, A.M.'s assigned juvenile probation officer, Heather Boswell, completed her social home study report, which could not be completed before receipt of the psychological evaluation.

On June 12, 2012, the juvenile court held a hearing on the State's petition to transfer. The record reflects that the prosecutor described the hearing as "a traditional discretionary transfer hearing." The prosecutor observed that A.M. had turned eighteen on March 30 but that the State had filed its petition for discretionary transfer while A.M. was seventeen years old. The prosecutor argued-based on the prosecutor's understanding of the statute at the time-that the juvenile court's decision whether to transfer the case was governed by section 54.02(a), not section 54.02(j), which the prosecutor believed only applied when the State files its petition to transfer after the juvenile's eighteenth birthday. According to the prosecutor, because the petition was filed "well before" A.M.'s eighteenth birthday, section 54.02(j) was "never triggered." *But see**Morrison* , 503 S.W.3d at 727-8 (holding that Section 54.02(j) applies when transfer occurs after defendant turns eighteen even if petition is filed before birthday).

On June 13, 2012, following the hearing, the juvenile court waived its jurisdiction and ordered the case transferred to criminal district court, where A.M. was tried, convicted, and sentenced to forty-five years in prison.

*688A.M. appealed his conviction to the Fourteenth Court of Appeals, which found that the juvenile court had abused its discretion in waiving its jurisdiction and transferring the case to criminal district court without making the findings required by section 52.04(j), vacated the criminal district court's judgment and A.M.'s sentence, and ordered the case remanded to the juvenile court for a finding as to whether conclusion of the proceedings in juvenile court was not practicable before A.M.'s eighteenth birthday. That court found on remand that it was not practicable to have completed the proceedings against A.M. before his eighteenth birthday, and it again waived its jurisdiction and transferred the case to district court. A.M. again appealed.

**D. Review of the Juvenile Court's Order for Abuse of Discretion**

I would review the juvenile court's findings of fact and conclusions of law on the practicability of concluding proceedings in the juvenile court before A.M.'s eighteenth birthday to determine whether the juvenile court's finding that all law enforcement, prosecutorial, and juvenile proceedings could not "reasonably have been dealt with" prior to A.M.'s eighteenth birthday was itself reasonable. I would include in that determination "whether a reasonable law-enforcement inference was available on particular facts," as this "is often highly relevant to resolving [legal] issues [such as those in this case]." *Garcia* , 569 S.W.3d at 152. If reasonable, the law enforcement officers' and the trial court's inferences should be considered in determining whether, as a matter of law, the State proved its case. *See**id.* I would also be mindful of the Court of Criminal Appeals' instruction that, "[o]nce the preceding matters are settled, the trial judge should finally decide whether, in light of the known facts and reasonable inferences therefrom, an objectively reasonable officer [of the court] would conclude that" completion of juvenile proceedings before A.M.'s eighteenth birthday was practicable. *See**id.* And I would be mindful that we review this inquiry de novo. *See id.*

Having reviewed the reasonableness of law enforcement's investigation and prosecution of the case de novo, as reflected in the record, and having reviewed the juvenile court's findings of fact for their reasonableness in light of *Moore* , I would conclude that all of the factors present here show that, for reasons beyond the control of law enforcement and the prosecutors, A.M.'s case could not reasonably have been dealt with when he was still a juvenile. These factors include the length of time required to identify A.M. as a suspect, to identify his role in the murder, to identify the vehicle used to transport the murderers to the murder scene, to inspect the vehicle fruitlessly for physical evidence, to discover casings from the murder scene and to send them to the firearms examiner for a complete examination in accordance with standard law enforcement procedures before it could be determined that A.M.'s weapon was used in the murder, and, after A.M. was identified as a shooter, to transfer him from detention in Fort Bend County to Harris County, to hold a hearing and find probable cause to charge and detain him, and to fulfill all the statutory prerequisites to transfer or dismissal of the charges in accordance with professional standards. *Cf.**Moore* , 532 S.W.3d at 402.

I would conclude that the juvenile court correctly determined that the conclusion of juvenile court proceedings before A.M.'s eighteenth birthday was not practicable under the circumstances of this case and its order waiving its jurisdiction and transferring the murder case against A.M. to district court were both reasonable in that *689its determinations was based on known facts and reasonable inferences therefrom. *See**Garcia* , 569 S.W.3d at 152. Accordingly, I would hold that the juvenile court did not abuse its discretion in waiving its jurisdiction and transferring the murder case against A.M. to criminal district court.

***Conclusion***

I would affirm the order of the juvenile court transferring the case against A.M. to criminal district court pursuant to Family Code section 54.02.

1

On December 28, 2018, a panel of this Court issued an order withdrawing its August 28 opinion and judgment and reinstating the appeal to be resubmitted at a later date. *See* Tex. R. App. P. 19.1 (court of appeals holds plenary power over its judgment until 30 days after court overrules all timely filed motions for rehearing or en banc reconsideration); 19.2 ("In a civil case, the court of appeals retains plenary power to vacate or modify its judgment during the periods prescribed in 19.1...."). The case was resubmitted on January 29, 2019 to a new panel.

1

The Fourteenth Court cited *Moore v. State* , No. PD-1634-14, 2016 WL 6091386 (Tex. Crim. App. Oct. 19, 2016), which the Court of Criminal Appeals subsequently withdrew and replaced with a new opinion, *Moore v. State* , 532 S.W.3d 400 (Tex. Crim. App. 2017) (per curiam). The new opinion, however, did not change the rule on which our sister court relied. *Id.* at 405.

2

Subsection 52.04(j)(4) contains alternative grounds for waiver of jurisdiction by the juvenile court and transfer that all parties agree are not relevant to this appeal. *See* Tex. Fam. Code § 54.02(j)(4)(B).

3

It is undisputed by the parties that subsection (j)(4)(B) is inapplicable.

4

At the time, A.M. was still detained by TJJD.