Opinion issued May 21, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00017-CV
                           ———————————
                          IN THE MATTER OF A.M.



               On Appeal from the County Court at Law No. 1
                         Fort Bend County, Texas
                   Trial Court Case No. 12-CJV-017003


                 DISSENTING OPINION ON REHEARING

      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 juvenile 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


                                         2
54.02(j) did not apply. Id. at 727–28 (citing Moore1 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



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
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 court 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.2d 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).




                                         4
      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


                                           5
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 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


                                          6
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,”




                                           7
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:



                                               8
      (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:

             (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).



3
      It is undisputed by the parties that subsection (j)(4)(B) is inapplicable.
                                             9
      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).


                                         10
      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

adult 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.




                                         11
      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 272–28. 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


                                           12
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.


                                         13
      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 hold 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



                                        14
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, 512 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).

                                         15
      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 by 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).
                                            16
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).




                                          17
      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, this “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


                                         18
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


                                          19
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


                                           20
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 court 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


                                          21
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




                                          22
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 child 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


                                         23
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.


                                         24
      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.




                                           25
      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.

      On 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




                                         26
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


                                        27
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.”

      Police 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


                                           28
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.


                                        29
      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.




                                          30
      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 Edwards 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




                                       31
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


                                          32
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 speak 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.




                                         33
      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


4
      At the time, A.M. was still detained by TJJD.
                                          34
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


                                          35
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

       On 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


                                         36
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


                                         37
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.

      A.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


                                           38
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.




                                        39
      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


                                           40
both reasonable in that its 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.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Higley, and Landau.

Justice Keyes, dissenting.




                                         41
