Opinion issued November 7, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-23-00358-CV

———————————

IN THE MATTER OF J.J.T., A Juvenile

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Case No. 2022-02190J

MEMORANDUM OPINION

J.J.T. (“Jacob”)1 was charged by petition with having engaged in delinquent 

conduct by causing the death of the complainant by shooting him with a deadly 

weapon while committing and attempting to commit robbery. The petition alleged 

that Jacob was between the ages of 10 and 17 when he engaged in the delinquent 

1 We use a pseudonym to refer to the child. See TEX. R. APP. P. 9.8(c)(2).
2

conduct. On the State’s motion, the juvenile court waived its jurisdiction and 

transferred the case to criminal district court. On appeal, Jacob argues that the 

juvenile court abused its discretion by waiving its jurisdiction because the evidence 

was insufficient to satisfy the statutory bases for transfer. See TEX. FAM. CODE

§ 54.02(j)(4)(A), (B)(i) (permitting discretionary transfer when juvenile court finds 

by preponderance of evidence that (A) State could not proceed in juvenile court 

before person’s 18th birthday for reasons beyond its control, or, (B) despite due 

diligence, State lacked probable cause before person turned 18 and found new 

evidence after person turned 18).

We reverse.

Background

Jacob was born on January 15, 2004. The alleged offense, capital murder, 

occurred on October 4, 2020, when Jacob was 16 years and 8 months old. Jacob was 

arrested in December 2022, around 11 months after he turned 18.

The State moved the juvenile court to waive jurisdiction and transfer the 

proceedings to criminal district court. The juvenile court held an evidentiary hearing 

at which Harris County Sheriff’s Deputy D. Crain testified that he investigated an 

apparent homicide after a man was found dead in the driver’s seat of a pickup truck 

with a cell phone in his hand. The decedent, M. Gutierrez, had suffered multiple 

gunshot wounds to the head. Crime scene investigators photographed the scene, 
3

processed the vehicle for latent fingerprints, collected multiple DNA samples, and 

took custody of Gutierrez’s cell phone. 

Deputy Crain notified Gutierrez’s family members of his death. The family 

told Deputy Crain that Gutierrez was “in the marijuana business” and was likely in 

that location to sell marijuana. Gutierrez’s sister provided investigators with the 

passcode to his cell phone. Deputy Crain read the text messages that Gutierrez 

received and sent prior to his death. These messages included turn-by-turn 

instructions to the location where Gutierrez was found from a contact listed as 

“Maybe Alfonso.” Deputy Crain researched the phone number using a law 

enforcement database and learned that the number associated with “Maybe Alfonso” 

belonged to Alfonso Hernandez Tovar. 

Deputy Crain found no witnesses to the murder. He and other deputies 

obtained video recordings from nearby houses. The investigators learned that Tovar 

had lived near where Gutierrez was found. Two investigators approached the house 

next to Tovar’s last known address, which was Jacob’s house, to ask about video 

recording from the night of the incident from their street-facing camera. The record 

does not indicate whether the investigators obtained a recording from that camera, 

but Jacob’s brother provided a video clip of Jacob and Tovar from the night before. 

Jacob’s brother also told investigators that Jacob and Tovar were best friends. 
4

Deputy Crain testified that, based on the recordings they obtained, they believed that 

three people had fled the scene after the murder. 

Around mid-October 2020, investigators spoke with Jacob with his mother

present. He was then 16 years old. At first, Jacob denied any knowledge of the 

shooting, but he later stated that Tovar had been involved in a marijuana deal that 

“had gone bad” and someone was killed. Jacob denied any involvement in the 

shooting, but he told investigators that “word on the street” was that he was involved. 

Jacob told them that he believed Tovar was involved and would have more 

information.

On November 12, 2020, the sheriff’s office obtained a warrant for Tovar’s 

arrest based on information found in Gutierrez’s phone that connected Tovar to the 

shooting. Tovar’s phone had communicated details of the deal and directions to the 

scene. And investigators determined that a latent fingerprint from the pickup truck 

was Tovar’s fingerprint. 

Tovar had his cell phone when he was arrested. The phone was passcode

protected. Deputy Crain testified that he obtained a search warrant to access Tovar’s 

phone and conduct a forensic examination. The cell phone was submitted to the 

“high-tech crime unit” to be placed on “the GrayKey, which is specialized 

equipment that is used to defeat the pass codes on the phone.” Deputy Crain testified 

that the GrayKey continuously attempts to unlock the phone by going through “all 
5

the sequences of numbers” to determine the passcode. Deputy Crain said that the 

GrayKey process “can take many months up to years” to unlock a phone. 

Deputy Crain attended Tovar’s custodial interview. At first, Tovar denied he 

was involved, but he later admitted that he was present when Gutierrez was

murdered. Tovar first said that he was with Jacob in Texas City when two other 

people killed Gutierrez. When confronted with inconsistencies in his answers, Tovar 

admitted that he was present at the time of the murder. Deputy Crain recalled Tovar 

saying that he was with Jacob and a third man, named Renaldo or Rolo, and that 

Jacob used a revolver to shoot Gutierrez over a marijuana deal. Tovar said that they 

ran away after the shooting, and that Jacob had the gun and the marijuana at that 

time. 

Deputy Crain testified that he did not believe he had probable cause to charge 

Jacob with capital murder based on Tovar’s interview. He said: “[A]t that point in 

time, all I had was the, basically, uncorroborated statement of a co-defendant that 

had kind of been all over the map and eventually gave us a pretty self-serving 

statement. So the only information I had implicating [Jacob] at that time was 

[Tovar’s] statement.”

Deputy Crain detailed the next steps in his investigation:

Well, after [Tovar] was placed in jail, the investigations continued in 

seeking a DNA lab report, firearms report and those types of things. 

Then I also—frankly, I get caught in other cases. I mean, our call 

volume is quite high. And, so, while I’m still—this case is on the desk 
6

for certain, with work to be done, there are other cases also coming in 

that require attention. 

About a year after Tovar’s custodial interview, in November 2021, an 

assistant district attorney contacted Deputy Crain to inform him that Tovar wanted 

to have a proffer meeting. In early December 2021, two other deputies attended the 

proffer meeting, where Tovar revealed the passcode for his cell phone. According to 

Deputy Crain, “at that time [Tovar’s cell phone] was still being processed on the 

GrayKey,” which had not unlocked Tovar’s passcode. After the proffer meeting, the 

investigators opened Tovar’s phone, and they confirmed Jacob’s cell phone number 

at the time of the murder. Tovar also told investigators at the proffer meeting that he 

and Jacob had traveled together to Texas City on the day of the murder. Tovar told 

them that while returning home, he and Jacob devised a plan to rob Gutierrez of his 

marijuana that night. At the time of the proffer meeting, Jacob was about one month

shy of his 18th birthday.

Deputy Crain testified that he did not believe he had probable cause to charge 

Jacob with capital murder in December 2021:

[T]he evidence that I had still was not any more than what I had before 

in terms of it was still an uncorroborated statement by a co-defendant 

that had not been bolstered by any other information; be it, cell phone 

records or DNA or latent prints or any other type of evidence. Nothing 

else had been really established at that time. 

On January 15, 2022, about 40 days after the proffer meeting, Jacob turned 18 

years old. 
7

In July 2022, about seven months after the proffer meeting, Deputy Crain 

obtained a search warrant for the call-detail records of Jacob’s phone to confirm the 

movements that Tovar described in his proffer meeting. By then, Jacob was 18 years 

old. Deputy Crain said that it took a week or ten days to receive to receive the calldetail records from the cell phone provider. He then gave the call-detail records to 

the crime analysis intelligence division of the Harris County Sheriff’s Office to 

conduct “GeoTime” plotting, an analysis that compared Jacob’s phone records with 

those of Gutierrez and Tovar.2

The GeoTime plotting analysis showed that Jacob and Tovar traveled together 

to Texas City on October 4, 2020, and that they returned together to Jacob’s home. 

The analysis also showed that Jacob’s and Tovar’s phones traveled together away 

from that area after the murder. Deputy Crain testified that this analysis confirmed 

that Jacob was with Tovar at the time of the murder and confirmed statements Tovar 

made at the proffer meeting. 

2 Deputy Crain explained how GeoTime works: 

The GeoTime program takes the latitude and longitude hits or points from each 

phone and it plots them in a moving time to where you can see if a phone is in 

communication with the same tower or if they have moved apart. And, so, in this 

case earlier in the day of October 4th, [Jacob] and [Tovar’s] phones traveled together

to Texas City and traveled back to the area of his home at the time of the murder; 

and then they both traveled away after the murder. It just gives us the location of 

what tower they’re hitting on. 
8

Deputy Crain sought to charge Jacob with capital murder based on the 

analyses combined with evidence obtained earlier in the investigation, which 

included Tovar’s statements, evidence from Gutierrez’s cell phone, and the latent 

fingerprint on Gutierrez’s truck. At the transfer hearing, Deputy Crain testified that 

the district attorney disagreed at that time. He said: “They’d only give me a probable 

cause warrant. Because they still did not feel that we had sufficient evidence to 

charge [Jacob], but they gave me a pocket warrant. So, we arrested him pursuant to 

that warrant. That’s what led to my second interview with him.” 

A warrant was issued November 8, 2022, and Jacob was arrested on December 

6, 2022, and taken to the police station for questioning. Jacob was about 18 years 

and 11 months old. Deputy Crain gave Jacob statutory warnings, and Jacob agreed 

to give a recorded statement. Deputy Crain testified that Jacob at first denied any

involvement in the murder. Deputy Crain said that when he challenged Jacob with 

additional evidence, Jacob “actually changed his story and admitted to being there 

and admitted what his role was supposed to be.”3Jacob told Deputy Crain that he 

3 Deputy Crain testified about Jacob’s intended role:

Well, he was supposed to just grab the marijuana and run. And he says 

that he took the marijuana, smelled it, gave it to Tovar . . . . and then 

he witnessed [Tovar] inexplicably shoot the victim with a handgun 

that they had retrieved from a friend’s house just prior to meeting him. 

. . . And that after shooting him, they began to run. And after ten steps 

or so in front of the vehicle, he observed [Tovar] pull the pistol out a 

second time and shoot through the windshield of the car before the 

three of them then ran off to another friend’s house.
9

knew that they were bringing a gun to meet Gutierrez and that he saw Tovar shoot 

Gutierrez more than once. Deputy Crain said that Jacob also admitted taking the 

marijuana and handing it to Tovar. 

Deputy Crain believed there was enough evidence to charge Jacob with capital 

murder based on Tovar’s statement at the proffer meeting, the cell phone data that 

showed Tovar and Jacob had traveled together, and Jacob’s admission during his 

custodial interview. Deputy Crain testified that some of Jacob’s statements were 

false, and when he confronted Jacob with the cell phone data records, Jacob changed 

his story, ultimately admitting involvement in Gutierrez’s murder. 

Deputy Crain noted that some details Jacob offered did not match the results 

of his investigation, specifically Jacob’s statement that Tovar used a “9-

milli[m]eter” to shoot Gutierrez. Deputy Crain explained that a 9-millimeter is a 

semiautomatic handgun that leaves spent shell casings. Investigators recovered a 9-

millimeter spent shell casing, but it was “at considerable distance” from the murder 

scene. Deputy Crain believed it “was the product of someone just driving by, 

randomly shooting a gun out of a car.” Based on evidence recovered at the scene, 

Deputy Crain believed that the murder weapon was a revolver, which does not leave 

spent shell casings. Tovar had stated that Jacob committed the murder using a 

revolver, a fact that Deputy Crain said was “something that no one would have 

known absent them being there.” 
10

After Jacob’s interview, Deputy Crain again contacted the district attorney’s 

office and obtained authorization to charge Jacob with capital murder. Deputy Crain 

believed that Jacob was not a flight risk and did not pose any danger to anyone, so 

he allowed Jacob to leave with his father. Deputy Crain also wanted to confirm what 

procedures to use because Jacob was 16 years old when Gutierrez was murdered, 

but he was 18 years old when he admitted involvement with the murder. Deputy 

Crain charged Jacob on December 7, 2022, the day after Jacob’s custodial interview. 

The next day, the State moved to waive jurisdiction and transfer the case to the 

criminal district court. On December 12, 2022, Deputy Crain arrested Jacob for 

capital murder. 

Defense counsel cross-examined Deputy Crain about the length of the 

investigation and his caseload. Deputy Crain testified that he had a heavy caseload. 

He acknowledged that Jacob was “certainly on [his] radar” within the first month 

after the murder based on video recordings that showed three men fleeing the scene, 

Tovar’s initial statement to police, Jacob’s brother stating that Jacob and Tovar were 

best friends, and the video from Jacob’s brother. 

Deputy Crain did not reapproach Jacob to confront him with Tovar’s 

accusation or any video. Interviewing juveniles, Deputy Crain testified, was “not 

something I’m real comfortable with. And, so, I try and avoid contacting juveniles 

as much as possible until we get to a point where we can get the order to apprehend 
11

and get them in.” There was no testimony that Deputy Crain tried to find the third 

man in the video.

Defense counsel asked about the status of the investigation between January 

and September 2021. Deputy Crain said that he communicated with Tovar’s cell 

phone provider regarding call-detail records and that because of the merger of TMobile and Sprint, the data was inaccurate, so he served a second subpoena to obtain 

the records. He also conceded that from January to September 2021, he did not “have 

documentable activity related to this case” because of the pandemic and his heavy 

caseload.

Defense counsel also asked why seven months elapsed between the proffer 

meeting and Deputy Crain’s application for a search warrant for Jacob’s cell phone 

records. He declined to call the seven months a delay, saying: “Some things take a 

year and some things I can get to in a month.” He acknowledged that this was due 

to his caseload. 

The trial court asked Deputy Crain what led him to interview Jacob the second 

time, and he explained that after the proffer meeting, the district attorney’s office did 

not believe there was enough evidence to charge Jacob and authorized only a pocket 

warrant to bring Jacob in for questioning. The court admitted and considered the 

certification report, along with photographs of Gutierrez, screen shots of text 

messages, and a cell phone showing a phone number. Jacob presented no evidence.
12

On May 1, 2023, the juvenile court waived its jurisdiction and transferred

Jacob to the jurisdiction of the criminal district court. In its order to waive 

jurisdiction, the court made these findings:

1. [Jacob] is charged with a violation of a penal law of the grade of 

felony, namely CAPITAL MURDER an offense in the first 

degree committed on or about October 4, 2020.

2. There has been no adjudication of this offense.

3. That the Respondent is currently over the age of 18 years.

4. There is probable cause to believe that [Jacob] committed 

CAPITAL MURDER alleged in the petition filed under this 

cause number.

5. That the respondent was 14 years or older but under 17 years of 

age at the time he/she is alleged to have committed this offense 

being born on January 15, 2004.

6. The Court finds 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 

Respondent the State [sic] did not have probable cause to proceed 

in juvenile court and new evidence has been found since the 18th

birthday of Respondent. 

Jacob appealed. 

Analysis

On appeal, Jacob argues that the trial court abused its discretion when it found 

sufficient evidence and a sufficient legal basis to waive its jurisdiction. 
13

I. Standard of review

Juvenile delinquency proceedings are civil proceedings that are quasicriminal. State v. C.J.F., 183 S.W.3d 841, 847 (Tex. App.—Houston [1st Dist.] 

2005, pet. denied). Juvenile courts have exclusive original jurisdiction over 

allegations by the State that a child has engaged in delinquent conduct. TEX. FAM.

CODE § 51.04(a); see TEX. FAM. CODE §§ 51.03(a)(1) (defining “delinquent 

conduct” to include “conduct, other than a traffic offense, that violates a penal law 

of this state”), 51.02(2)(A) (defining “child” to include person ten years old or older 

and under seventeen); In re A.M., 577 S.W.3d 653, 657 (Tex. App.—Houston [1st 

Dist.] 2019, pet. denied) (“When a child engages in conduct that would be 

considered criminal if committed by an adult, it is called ‘delinquent conduct.’”) 

(quoting TEX. FAM. CODE § 51.03(a)(1)). This jurisdiction, however, is not absolute. 

Bell v. State, 649 S.W.3d 867, 885 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d).

A juvenile court may waive its exclusive original jurisdiction and transfer a

child to criminal district court to be tried as an adult. See TEX. FAM.CODE § 54.02(j). 

Generally, when a child in delinquency proceedings turns 18 years old, the juvenile 

court’s jurisdiction is limited to either dismissing the case or transferring the child 

to criminal district court for criminal proceedings. In re A.M., 577 S.W.3d at 658 & 

n.5; but see TEX. FAM. CODE § 51.0412 (authorizing juvenile court to retain 

jurisdiction over incomplete proceedings once child has turned 18 in limited 
14

circumstances). The State bears the burden to produce evidence that persuades a 

juvenile court, by a preponderance of the evidence, that waiver of the court’s 

jurisdiction and transfer to criminal district court is appropriate. In re A.M., 577 

S.W.3d at 658; In re J.W.W., 507 S.W.3d 408, 415 (Tex. App.—Houston [1st Dist.] 

2016, no pet.).

We use a two-step standard to review a juvenile court’s order waiving its 

exclusive original jurisdiction and transferring a case to criminal district court. Bell, 

649 S.W.3d at 887. First, we review the challenged findings under a traditional 

evidentiary sufficiency review. Id. In considering the legal sufficiency of evidence 

supporting a finding, we view the evidence in the light most favorable to the 

challenged finding and disregard contrary evidence unless a reasonable factfinder 

could not reject it. Id.; In re A.M., 577 S.W.3d at 659. If more than a scintilla of 

evidence supports the finding, then the evidence is legally sufficient. Bell, 649 

S.W.3d at 887; In re A.M., 577 S.W.3d at 659. In conducting a factual sufficiency 

review, we consider all the evidence presented to determine whether the challenged 

finding conflicts with the great weight and preponderance of the evidence so as to 

be clearly wrong or unjust. Bell, 649 S.W.3d at 887; In re A.M., 577 S.W.3d at 659.

When the juvenile court sits as factfinder, as here, the court alone determines 

the credibility of witnesses and the weight to give their testimony. Bell, 649 S.W.3d 

at 896; In re A.B., No. 02-18-00274-CV, 2019 WL 983751, at *3 (Tex. App.—Fort 
15

Worth Feb. 28, 2019, no pet.) (mem. op.). The factfinder may “believe or disbelieve 

a witness’s testimony, in whole or in part, and [is] tasked with weighing the evidence 

and resolving any inconsistencies.” Bell, 649 S.W.3d at 896; accord Anderson v. 

Durant, 550 S.W.3d 605, 616 (Tex. 2018) (stating that factfinder’s role is to evaluate 

credibility of witnesses and reconcile any inconsistencies, and factfinder generally 

may “believe all or any part of the testimony of any witness and disregard all or any 

part of the testimony of any witness”) (quoting Golden Eagle Archery, Inc. v. 

Jackson, 116 S.W.3d 757, 774–75 (Tex. 2003)).

If we conclude that the challenged findings are supported by legally and 

factually sufficient evidence, we proceed to the second step in our review: 

determining whether the juvenile court abused its discretion in ultimately waiving 

its jurisdiction and transferring the case. Bell, 649 S.W.3d at 887. A court abuses its 

discretion when it acts arbitrarily or without reference to any guiding rules and 

principles. Id. A juvenile court does not abuse its discretion just because it bases its 

decision on conflicting evidence. Id.; see also In re A.M., 577 S.W.3d at 659 (“As 

with any decision that lies within the trial court’s discretion, the question is not 

whether we might have decided the issue differently.”). Rather, it abuses its 

discretion “when its decision to transfer is essentially arbitrary, given the evidence 

upon which it was based.” In re M.S., Nos. 01-21-00374-CV & 01-21-00375-CV, 

2022 WL 17981563, at *4 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, no pet.) 
16

(mem. op.) (quoting In re C.M.M., 503 S.W.3d 692, 701 (Tex. App.—Houston [14th 

Dist.] 2016, pet. denied)). “By contrast, a waiver decision representing a reasonably 

principled application of the legislative criteria generally will pass muster under this 

standard of review.” Id. (quoting In re C.M.M., 503 S.W.3d at 701) (internal 

quotation omitted).

II. Governing law

Once a child in delinquency proceedings has turned 18, Family Code section 

54.02(j) governs the juvenile court’s waiver of its jurisdiction and transfer to 

criminal district court. See Ex parte Thomas, 623 S.W.3d 370, 377–78 (Tex. Crim. 

App. 2021); In re A.M., 577 S.W.3d at 657–58. This section “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 v. State, 532 

S.W.3d 400, 401 (Tex. Crim. App. 2017). Section 54.02(j) permits the juvenile court

to waive its exclusive original jurisdiction and transfer the person to a criminal 

district court if: 

(1) the person is 18 years of age or older;

(2) the person was:

(A) 10 years of age or older and under 17 years of age at the time the 

person is alleged to have committed a capital felony or an offense under 

Section 19.02, Penal Code;

. . . .
17

(3) no adjudication concerning the alleged offense has been made or no 

adjudication hearing concerning the offense has been conducted;

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

(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:

(i) the state did not have probable cause to proceed in juvenile 

court and new evidence has been found since the 18th 

birthday of the person;

(ii) the person could not be found; or

(iii) a previous transfer order was reversed by an appellate 

court or set aside by a district court; and

(5) the juvenile court determines that there is probable cause to believe that 

the child before the court committed the offense alleged.

TEX. FAM. CODE § 54.02(j).

III. The juvenile court abused its discretion by transferring Jacob’s case to 

criminal district court.

A. The trial court’s findings

For juvenile transfer proceedings, the statutory scheme requires “the juvenile 

court to state the reasons for the waiver set out in the statute.” Ex parte Thomas, 623 

S.W.3d 370, 379 (Tex. Crim. App. 2021). There are two potential waiver grounds at 

issue.
18

Jacob argues that the trial court “convoluted the legal analysis” of subsections

54.02(j)(4)(A) and (B). Subsection (A) requires the State to establish that the delay 

was attributable to “a reason beyond the control of the state,” while subsection (B) 

requires the State to show “due diligence.” Jacob also argues that because the trial 

court did not find that the State acted with due diligence, section 54.02(j)(4)(B) is 

not a valid reason to support transfer of jurisdiction. The State did not respond to 

Jacob’s argument about the adequacy of the trial court’s practicability findings.

The trial court’s practicability finding appears to have spliced the beginning 

of subsection (A) (“for a reason beyond the control of the state”) with the end of 

subsection (B)(i) (“the state did not have probable cause . . .”):

The Court finds 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 Respondent the State did 

not have probable cause to proceed in juvenile court and new evidence 

has been found since the 18th birthday of Respondent. 

TEX. FAM. CODE § 54.02(j)(4) (emphasis added) What is missing from two complete 

practicability findings is a finding of due diligence. See id. § 54.02(j)(4)(B). 

When findings of fact and conclusions of law are filed by the trial court, these 

findings “shall form the basis of the judgment upon all grounds of recovery and of 

defense embraced therein.” TEX. R. CIV. P. 299. We cannot add to the trial court’s 

findings by inserting words or assuming the trial court found that the State acted 

with due diligence. See Nguyen v. Nguyen, 355 S.W.3d 82, 93 (Tex. App.—Houston 
19

[1st Dist.] 2011, pet. denied) (express findings by trial court on one ground do not 

permit presumption of other findings on separate ground). Thus, although the trial 

court included findings for (A), the omission of a due diligence finding constrains 

us from presuming that the trial court intended to include findings under (B). See id.

We now consider whether the evidence was sufficient to support the trial court’s 

finding that “for a reason beyond the control of the State it was not practicable to 

proceed in juvenile court” before Jacob’s 18th birthday.

B. The evidence is legally insufficient to support the court’s finding.

On appeal, Jacob argues that the evidence is legally insufficient to support a 

conclusion that “for reasons beyond the State’s control it was not practicable to 

proceed in the juvenile court” before he turned 18. Jacob argues that the State 

controlled evidence linking him to the murder at three discrete times: (1) after 

interviewing him and Tovar in fall 2020; (2) after arresting Tovar and obtaining his 

custodial statement incriminating Jacob in November 2020; and (3) after Tovar 

provided his cell phone passcode at the proffer meeting in December 2021. Jacob 

argues that the State had probable cause after Tovar implicated Jacob. He argues that 

the State then waited another seven months before obtaining a search warrant for 

information related to Tovar’s proffer meeting statements. 

Deputy Crain was the only witness to testify at the transfer hearing. The trial 

court had the authority to determine his credibility and whether to believe all, some, 
20

or none of his testimony. See Bell, 649 S.W.3d at 896. Deputy Crain testified that he 

did not have probable cause after Tovar implicated Jacob in his custodial interview,

so he wanted to gather more evidence.

Law enforcement has probable cause to believe that a child engaged in 

delinquent conduct if “sufficient facts and circumstances [exist] to warrant” a 

prudent person to believe the suspect committed the offense. In re C.M.M., 503 

S.W.3d at 702 (citing In re D.L.N., 930 S.W.2d 253, 256 (Tex. App.—Houston [14th 

Dist.] 1996, no pet.)). Probable cause requires a practical, common-sense approach 

rather than the more technical standards of reasonable doubt or a preponderance of 

the evidence. Id.

As statements against interest, accomplice statements can provide probable 

cause.4 See Clement v. State, 64 S.W.3d 588, 593 (Tex. App.—Texarkana 2001, pet. 

ref’d) (holding that information in law enforcement search-warrant affidavit 

attributed to accomplice provided probable cause to support search warrant); 

Cornealius v. State, 870 S.W.2d 169, 172 (Tex. App.—Houston [14th Dist.] 1994) 

(holding that warrantless arrest was supported by probable cause based partly on 

4 The evaluation of accomplice statements for purposes of probable cause is different 

than at trial, where the accomplice may have agreed to testify against someone in 

exchange for the possibility of a lesser charge or sentence. See Holladay v. State, 

709 S.W.2d 194, 200 (Tex. Crim. App. 1986) (where state relies on an accomplice 

witness’s testimony, it must be corroborated by independent evidence connecting 

the accused to the offense).
21

accomplice statement against penal interest) aff’d, 900 S.W.2d 731 (Tex. Crim. App. 

1995); Chavez v. State, No. 01-07-00563-CR, 2008 WL 5263404, *2–3 (Tex. 

App.—Houston [1st Dist.] Dec. 18, 2008, no pet.) (mem. op., not designated for 

publication) (holding that accomplice statement against self-interest that implicated 

defendant supported warrantless arrest). Implicating Jacob was against Tovar’s 

interest because he admitted he was present with Jacob during the shooting.

Our legal sufficiency standard of review requires us to view the evidence in 

the light most favorable to the challenged finding, disregarding contrary evidence 

unless a reasonable factfinder could not. See Bell, 649 S.W.3d at 887; In re A.M., 

577 S.W.3d at 659. But even crediting Deputy Crain’s testimony in its entirety, the 

evidence does not support the court’s finding that the case did not proceed in juvenile 

court before Jacob’s 18th birthday “for a reason beyond the control of the state.” 

Here, a reasonable factfinder could not have disregarded Deputy Crain’s testimony 

about Tovar implicating Jacob in 2020. “‘Want[ing] more’ evidence” against a 

suspect is not a reason beyond the control of the state where probable cause exists 

to proceed. In re A.M., 577 S.W.3d at 670. Even if it were, Deputy Crain testified 

that he did not return to Jacob to confront him with Tovar’s statement because of his 

personal preference:

Honestly, it’s not something that I’m real comfortable with. And, so, I 

try and avoid contacting juveniles as much as possible until we get to a 

point where we can get the order to apprehend and get them in.
22

Not moving forward when probable cause existed to proceed in juvenile court based 

on preferences for more evidence or not to re-interview juveniles are not “reasons 

beyond the control of the state.” Id. Deputy Crain had an accomplice’s statement 

against interest and video that he chose not to use to confront Jacob. To the extent 

that the prosecutor declined to proceed without more evidence, that decision is not a 

reason beyond the state’s control. See id. When analyzing whether a case could not 

proceed in juvenile court before the child’s 18th birthday for reasons “beyond the 

control of the state,” both law enforcement and the prosecution are the state. Moore, 

532 S.W.3d at 404. Put differently, investigative delay and prosecutorial delay are 

both charged to the State’s account. See id. Deputy Crain had probable cause and the 

means to confront Jacob with new evidence. There is legally insufficient evidence 

that the case did not proceed before Jacob’s 18th birthday for reasons beyond the 

State’s control.

We hold that the evidence is legally insufficient to support the trial court’s 

practicability finding. See Bell, 649 S.W.3d at 887; In re A.M., 577 S.W.3d at 659.5

5 Because we hold that the evidence was legally insufficient to support the juvenile 

court’s sole practicability finding, we need not reach whether the evidence was 

factually insufficient. See TEX. R. APP. P. 47.1 (appellate court’s written opinion 

need not address issues unnecessary to disposition of appeal).
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C. The juvenile court abused its discretion.

Having concluded that the juvenile court’s finding is not supported by legally 

sufficient evidence, we further hold that the court abused its discretion. See Bell, 649 

S.W.3d at 887. Because the State did not carry its burden under section 54.02(j) at 

the transfer hearing, the court’s decision to transfer jurisdiction over Jacob to 

criminal district court was not a reasonably principled application of the legislative 

criteria. See In re M.S., 2022 WL 17981563, at *4. 

Because there was insufficient 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.

C. 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 must dismiss the case for lack of 

jurisdiction. See In re A.M., 577 S.W.3d at 672.
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Conclusion

We reverse and dismiss the case for lack of jurisdiction. 

Sarah Beth Landau

Justice

Panel consists of Justices Kelly, Landau, and Farris.

Justice Farris, dissenting. Dissent to follow.