                                                                                    ACCEPTED
                                                                                05-19-00190-CV
                                                                      FIFTH COURT OF APPEALS
                                                                                DALLAS, TEXAS
                                                                              6/20/2019 8:40 AM
                                                                                     LISA MATZ
                                                                                         CLERK

                    IN THE COURT OF APPEALS FOR THE
                   FIFTH APPELLATE DISTRICT OF TEXAS
                                                                FILED IN
IN THE MATTER OF                   *                     5th COURT OF APPEALS
                                   *                         DALLAS, TEXAS
Z.J.                               *             NO.   05-19-00190-CV
                                                         6/20/2019 8:40:29 AM
                                                               LISA MATZ
                                   *                             Clerk
                                   *
JUVENILE                           *


APPEALED FROM CAUSE NUMBER JD-18-00958-X IN THE 305TH DISTRICT COURT
OF DALLAS COUNTY, TEXAS; THE HONORABLE CHERYL LEE-SHANNON, JUDGE
PRESIDING.


              ________________________________________

                          BRIEF OF APPELLANT

              ________________________________________



                      ORAL ARGUMENT NOT REQUESTED




                                       FRANK ADLER
                                       ATTORNEY AT LAW
                                       SBN: 24056787
                                       2701 Avenue J, Suite 100
                                       PHONE: (682) 702-0506
                                       E-MAIL: frankadlerlaw@gmail.com
            IDENTITY OF TRIAL COUNSEL AND APPELLATE COUNSEL

Honorable Stephanie L. Harmon
Assistant District Attorney
2600 Lone Star Drive
Dallas, Texas 75212
Trial Counsel for Petitioner

Melissa H. Read
Assistant Public Defender
SBN: 00787497
2600 Lone Star Drive, LB-2
Dallas, Texas 75212
Phone: (214) 698-4400
Trial Counsel for Respondent Juvenile

Honorable Faith Johnson
Dallas County District Attorney
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB19
Dallas, Texas 75207
Appellate Counsel for Petitioner

Frank Adler
Attorney at Law
SBN: 24056787
2701 Avenue J, Suite 100
PHONE: (682) 702-0506
E-MAIL: frankadlerlaw@gmail.com
Appellate Counsel for Respondent Juvenile
                                                TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................................. ii

STATEMENT OF THE CASE ............................................................................................. 1

STATEMENT OF FACTS ................................................................................................ 1-3

ARGUMENT AND AUTHORITIES .................................................................................. 3-5

RELEVANT STATUTE .................................................................................................... 5-8

ARGUMENT .................................................................................................................... 8-9

CONCLUSION ................................................................................................................... 9

PRAYER ............................................................................................................................ 9

CERTIFICATE OF SERVICE ........................................................................................ 9-10

CERTIFICATE OF COMPLIANCE ................................................................................... 10

WAIVER OF JURISDICTION AND ORDER OF TRANSFER TO A CRIMINAL DISTRICT
COURT .......................................................................................................... APPENDIX A
                     TABLE OF AUTHORITIES

Moon v. The State of Texas,
     No. PD-1215-13, December, 2014……………….…………………………......….4,8

Hidalgo v. State,
      983 S.W.2d 746 (Tex. Crim. App. 1999)……………………………………………..5


                           STATUTES

Texas Penal Code Section 54.02………………………………………………………..…4,5




                               ii
                                STATEMENT OF THE CASE

NATURE OF THE APPEAL…………………………………CERTIFICATION--JUVENILE

TRIER OF FACT…..……………………...…….HONORABLE CHERYL LEE SHANNON

DISTRICT JUDGE………………………………HONORABLE CHERYL LEE SHANNON

THE DISTRICT COURT’S ORDER…………..…..…TRANSFER TO CRIMINAL COURT

                                  STATEMENT OF FACTS

       This appeal concerns the court’s decision to transfer Appellant Z.J. to Dallas

County Criminal District Court. (Clerk’s Record “CR” at 100-103). On January 31, 2019,

the trial court held the discretionary transfer hearing and at the conclusion of the hearing,

the trial court waived its jurisdiction and transferred Z.J. to the appropriate Criminal District

Court of Dallas County, Texas for criminal proceedings. Id.

       On August 1, 2018, Chief Juvenile ADA Stephanie Harmon filed a Petition seeking

to transfer Z.J. to the adult criminal district court alleging that Z.J. violated a penal law of

the State of Texas of the grade of felony, namely, Aggravated Robbery [4 counts]. (CR at

12-13).

            DALLAS DETECTIVE ADAM THAYER RELEVENT TESTIMONY

       Detective Thayer testified he was the detective regarding the investigation of a

series of robberies involving several youths. (Reporter’s Record “RR” Volume “Vol” 2 at

10). Detective Thayer further testified that during the course of his investigation, he

arrived at the following conclusions:

              1) That Z.J. was one of the juvenile suspects regarding the robberies that

                  occurred on July 22, 2018. (RR Vol 2 at 10).

              1) Regarding count 2, the victim was standing outside of his residence

                  talking on the phone when he described what was a black Chevy Impala

                                               1
   pulled up to him. He described six black male suspects jumped out of

   the car and punched him in the face…And then he described a black

   male 15 to 17 year old, 5'10'', 140 pounds, which matched the

   description of Z.J., and the complainant stated that suspect Z.J. kept

   saying, "come on man, give me your wallet". And he was holding a black

   semiautomatic pistol and then struck the complainant over the head with

   the pistol two or three times. (RR Vol 2 at 12-13).

2) That the victim in Count 2 identified Z.J. as the individual with the pistol.

   (RR Vol 2 at 14).

3) Regarding Count 3 and Count 4, the victims were out walking their dog

   and this was captured on surveillance video. When the suspects arrived

   in the stolen suspect vehicle, they parked in a parking spot and five

   juvenile suspects got out of the vehicle, in which three of them robbed

   the complainants at gunpoint. One of them had shotgun, one of them

   had a pistol, and one of them was up there with the other two. They

   kicked and pushed the complainants to the ground and threatened them

   with the guns and stole one the complainant's cell phone. (RR Vol 2 at

   18).

4) That In the video, you can see suspect D.T. with a shotgun and suspect

   Z.J. with a pistol. (RR Vol 2 at 20).

5) That in the video, you can clearly see the weapons being exhibited or

   used. (RR Vol 2 at 20).




                                2
              6) That in the plea hearing for another suspect, the other suspect described

                  Z.J. to be the leader and to be in possession of the pistol during the

                  entire crime spree. (RR Vol 2 at 26).

   DALLAS COUNTY JUVENILE PROBATION DEPARTMENT ASSISTANT CHIEF
        PSYCHOLOGIST DR. LEILANI HINTON RELEVANT TESTIMONY

       Dr. Hinton testified she was not surprised to hear that Z.J. was in the leader in the

offense because he did not show any empathy or sympathy for the victims during her

interview with him. (RR Vol 2 at 38).

      DALLAS COUNTY JUVENILE PROBATION OFFICERE KEDRICK SMITH
                       RELEVANT TESTIMONY

       Officer Smith testified Z.J. had quite a number of juvenile offenses prior to the

current offenses he was alleged to have committed. (RR Vol 2 at 44). Officer Smith further

added that Z.J. had a criminal trespass; theft of property; possession of marijuana;

unauthorized use of a motor vehicle; robbery and aggravated sexual assault. (RR Vol 2

at 44). Officer Smith continued that Z.J. had been placed outside of the home in a

residential treatment facility and also been on formal probation. (RR Vol 2 at 47).

       Lastly, Officer Smith testified that the prospects of adequate protection of the public

and the likelihood of rehabilitation of Z.J. by the use and services and facilities that is

available to the court is remote and the probation department just did not have anything

that is available to him. (RR Vol 2 at 52).

                            ARGUMENT AND AUTHORITIES

       The appellate courts should conduct appellate review of the juvenile court's

discretionary decision to waive jurisdiction in essentially the same way that the El Paso




                                              3
Court of Appeals has said that the juvenile court's discretion in determining juvenile

dispositions should be scrutinized on appeal, to wit:

       We apply a two-pronged analysis to determine an abuse of discretion: (1) did the

[juvenile] court have sufficient information upon which to exercise its discretion; and (2)

did the [juvenile] court err in its application of discretion?   A traditional sufficiency of the

evidence review helps answer the first question, and we look to whether the [juvenile]

court acted without reference to any guiding rules or principles to answer the second.

Moon v. The State of Texas, No. PD-1215-13, December, 2014.

       Similarly, we hold that, in 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.”   But it should then review the juvenile court's ultimate waiver decision under an

abuse of discretion standard.     That is to say, 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. Id.

       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?   And, of course, reviewing courts should bear in mind that not every

Section 54.02(f) factor must weigh in favor of transfer to justify the juvenile court's

discretionary decision to waive its jurisdiction. Id.



                                                4
       In Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App. 1999), this court recognized

that “transfer to criminal district court for adult prosecution is ‘the single most serious act

the juvenile court can perform . . .because once waiver of jurisdiction occurs, the child

loses all protective and rehabilitative possibilities available.’” Id. at 755.

                                   RELEVANT STATUTE

       Texas Penal Code Section 54.02 states: WAIVER OF JURISDICTION AND

DISCRETIONARY TRANSFER TO CRIMINAL COURT

(a) 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: (1) the

child is alleged to have violated a penal law of the grade of felony; (2) the child was: (A)

14 years of age or older at the time he is alleged to have committed the offense, if the

offense is a capital felony, an aggravated controlled substance felony, or a felony of the

first degree, and no adjudication hearing has been conducted concerning that offense; or

(B) 15 years of age or older at the time the child is alleged to have committed the offense,

if the offense is a felony of the second or third degree or a state jail felony, and no

adjudication hearing has been conducted concerning that offense; and

(3) after a full investigation and a hearing, the juvenile court determines that there is

probable cause to believe that the child before the court committed the offense alleged

and that because of the seriousness of the offense alleged or the background of the child

the welfare of the community requires criminal proceedings.

(b) The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of

this code must be satisfied, and the summons must state that the hearing is for the

purpose of considering discretionary transfer to criminal court.



                                                5
(c) The juvenile court shall conduct a hearing without a jury to consider transfer of the

child for criminal proceedings.

(d) 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.

(e) At the transfer hearing the court may consider written reports from probation officers,

professional court employees, or professional consultants in addition to the testimony of

witnesses. At least five days prior to the transfer 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.

The court may order counsel not to reveal items to the child or the child's parent, guardian,

or guardian ad litem if such disclosure would materially harm the treatment and

rehabilitation of the child or would substantially decrease the likelihood of receiving

information from the same or similar sources in the future.

(f) In making the determination required by Subsection (a) of this section, the court shall

consider, among other matters:

       (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.



                                              6
       (g) If the petition alleges multiple offenses that constitute more than one criminal

transaction, the juvenile court shall either retain or transfer all offenses relating to a single

transaction. Except as provided by Subsection (g-1), a child is not subject to criminal

prosecution at any time for any offense arising out of a criminal transaction for which the

juvenile court retains jurisdiction.

       (g-1) A child may be subject to criminal prosecution for an offense committed

under Chapter 19 or Section 49.08, Penal Code, if: (1) the offense arises out of a criminal

transaction for which the juvenile court retained jurisdiction over other offenses relating

to the criminal transaction; and (2) on or before the date the juvenile court retained

jurisdiction, one or more of the elements of the offense under Chapter 19 or Section 49.08,

Penal Code, had not occurred.

       (h) If the juvenile court waives jurisdiction, it shall 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 results of the diagnostic study of the person ordered under Subsection (d),

including psychological information, to be transferred to the appropriate criminal

prosecutor.

       On transfer of the person for criminal proceedings, the person shall be dealt with

as an adult and in accordance with the Code of Criminal Procedure, except that if

detention in a certified juvenile detention facility is authorized under Section 152.0015,

Human Resources Code, the juvenile court may order the person to be detained in the

facility pending trial or until the criminal court enters an order under Article 4.19, Code of

Criminal Procedure. A transfer of custody made under this subsection is an arrest. (h-1)



                                                7
If the juvenile court orders a person detained in a certified juvenile detention facility under

Subsection (h), the juvenile court shall set or deny bond for the person as required by the

Code of Criminal Procedure and other law applicable to the pretrial detention of adults

accused of criminal offenses. (i) A waiver under this section is a waiver of jurisdiction

over the child and the criminal court may not remand the child to the jurisdiction of the

juvenile court.

                                        ARGUMENT

       1) The trial abused its discretion because it acted without reference to any

           guiding rules or principles.

       The trial court abused its discretion by waiving its original jurisdiction over Z.J. and

transferring the case to the adult criminal district court.

       Here, Z.J. concedes that the trial court made the proper findings in the order as

required in the Moon holding and the Texas Family Code. Furthermore, Z.J. does not

dispute the State met its burden of proof that probable cause existed to issue an arrest

affidavit for Z.J. The Texas Family Code then mandates that the trial court balance the

probable cause findings with the other factors listed in the Family Code to determine

whether the trial court should waive its original jurisdiction.

       There was not any testimony about the services available to Z.J. regarding a

commitment to the Texas Juvenile Justice Department (TJJD). Absent any testimony

regarding the juvenile prison and the services available to the court, it was not possible

for the court to conclude no services were available for Z.J.

       Accordingly, the trial court’s decision to transfer Z.J. to the adult criminal court was

essentially arbitrary, given the evidence upon which it was based. The overwhelming



                                               8
weight of the evidence supported a finding of the juvenile court retaining jurisdiction and

denying the State’s Petition.

                                       CONCLUSION

       The trial court abused its discretion in waiving its juvenile jurisdiction and

transferring Z.J. to the adult criminal court.

                                          PRAYER

       Appellant suffered fundamental legal harm. Therefore, the Appellant prays that

the case be reversed or in the alternative that the Appellant receive a new trial.




                                            Respectfully Submitted,



                                            /s/
                                            ______________________
                                            Frank Adler
                                            Appellant Attorney
                                            SBN: 24056787
                                            2501 Avenue J. Suite 100
                                            Arlington, Texas 76006
                                            Tel: (682) 702-0506
                                            Fax: (888) 605-7225




                                CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the above and foregoing Brief for Appellant

has been forwarded the 19 of June 2019, to the following attorneys:




                                                 9
Honorable Faith Johnson
Dallas County District Attorney
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB19
Dallas, Texas 75207
Appellate Counsel for Petitioner


/s/
____________________
Frank Adler

                          CERTIFICATE OF COMPLIANCE

The word count for the portions of the document covered by TEX. R. APP. P. 9.4(e)(1) is

2,346.



/s/
____________________
Frank Adler
Attorney at Law




                                          10
                                                                  Appendix A

                                                             NO. JD-18-958-X

 IN   THE MATTER OF                                                                              IN   THE 305m DISTRICT

                                                                                                         COURT OF
 Z            J              AKA Z                 J                                         DALLAS COUNTY, TEXAS
                              WAIVER OF JURISDICTION AND ORDER OF
                             TRANSFER TO A CRIMINAL DISTRICT COURT
              ON    THIS THE 315T                  DAY OF JANUARY,                       2019, personally appeared the

 Respondent, Z                  J        AKA           Z            J        ,    who was    duly and properly served by a

 suitable person            under the direction of the Court; Respondent’s attorney, Melissa Read;

M         J             the father of the Respondent; and Stephanie                             Harmon, Assistant            District


Attorney, for a hearing on the State’s Motion for Discretionary Transfer to a Criminal


Court of Respondent, Z                        J             AKA Z                 J      The Court ﬁnds the Respondent

t0   be a male child, born on the                                                      , and being sixteen (16) years of

age     at the     time of the acts upon Which the Motion                                    founded and alleged
                                                                                        is                                  t0    have

occurred.         The Court ﬁnds no adjudication hearing has been conducted concerning such

acts.    At the present time the Respondent                             is   sixteen (16) years old.     The parent 0f               the

Respondent         is   M       J


          The Court ﬁnds            that said offenses are felonies                   under the penal law 0f the State of

Texas. The Court ﬁnds that the alleged offenses were against a person and
                                                                          property; and

the Court      ﬁnds         that there   is   probable cause t0 believe that the Respondent committed

each 0f the offenses alleged in the State’s Petition for Discretionary Transfer.


          The Court ﬁnds                 the       Respondent                is   0f sufﬁcient    sophistication          and       the


Respondent’s level 0f maturity                    is   sufﬁcient to be tried as an adult and to aid an attorney


in his defense.             After considering              all   the testimony, diagnostic study, social evaluation,


                                                                                                          J   D — 1B - 00958
                                                                                                          JDWAVR
                                                                                                           WAIVER
                                                                                                           2024748




                                                                                                                  |    ||||N||||l|l|||||l||l|l|||I‘I

                                                                                                                  ,,
                                                                                                                                                       Page 100
 and   full investigation,   the Court     ﬁnds   it is   contrary t0 the best interest of the public to


 retain jurisdiction.


          The Court ﬁnds      for the welfare of the         community, the seriousness 0f the alleged

 offenses and the background 0f the Respondent, that criminal proceedings are required.


          The reasons    for this disposition are that:                  The Respondent       is    charged with

 Violating penal laws of the grade of felony; the            Respondent was fourteen (14) years old or

older at the time he    is   alleged t0 have committed the offenses; no adjudication hearing


has been conducted concerning these alleged offenses; the Respondent’s conduct
                                                                               was

willful   and Violent; a deadly weapon,       to Wit:      a ﬁrearm, was used during the course of the

offenses; personal injury resulted to the Victims, Ga                     Sc         and Ca             Ku

AKA Ca           S            the offenses were so serious that transfer to a District Court with


criminal jurisdiction must be granted; the Respondent has not accepted
                                                                       0r responded to

supervision; the Respondent has a pattern of refusing to remain at                    home; the Respondent

refuses to remain    away from    associates in the         community Who         habitually Violate the law;

the sophistication 0f the child       is    sufﬁcient for his age; and his level 0f maturity                    is


sufﬁcient; the background of the Respondent indicates that the welfare of the
                                                                                                      community

requires criminal prosecution; the previous history 0f the                 Respondent indicates a present

need for placement of the child in a controlled, structured                       facility; the     public needs

protection from the Respondent; the prospects 0f adequate protection of the public
                                                                                   and

the likelihood 0f rehabilitation of the child             by use 0f procedures, services and            facilities


currently available t0 the Juvenile Court         is   remote; and   it is   desirable that   all   parties to the


offenses be tried in one court since the accomplice            is   an   adult.




                                                                                                                     Page 101
           The    specific factual findings            made      t0   support the transfer decision are that:

 the probable cause         is   supported by the video 0f the Sc                        robberies and the property

 and food taken from Victims, Ma                         H                AKA       Ma         R       and Ge

 Ro            -M       were recovered          at    Respondent’s        arrest;    the Respondent had a prior


 adjudication of aggravated assault; the Respondent personally threatened the
                                                                              Victims and

 is   the probable leader in the            commission of the offenses; the Respondent personally

 displayed a ﬁrearm in           all   offenses charged and           demanded      property; the S          Victims

received minor injuries; Respondent unsuccessfully completed juvenile
                                                                      probation and                                       ﬂkw‘1?
assaultive conduct while in juvenile placement                         and    in detention;   Respondent was on

runaway        status   while      0n probation; the accomplices have criminal backgrounds;

Respondent has previous adjudications for two                     (2) felony offenses; a       deadly weapon was

used in prior felony aggravated assault; prior placement
                                                         by the Juvenile Department in an

attempt t0 rehabilitate; at legst one! ccomplice to be tried in adult
                 (wk        Ma             a     ,r


were plannec%n rapid succession and several Victims were involved.
                                                                      court; and the offenses


                                                                                                           Cf 1%J
           THEREFORE, by               reasons 0f the foregoing,         I,   as the Judge 0f the 305th Judicial


District   Court 0f Dallas County, Texas, a Juvenile Court, hereby waive jurisdiction
                                                                                      0f this

cause and transfer said Respondent, Z                        J         AKA    Z          J      to the appropriate


Criminal District Court 0r District Court of Dallas County, Texas, for
                                                                       proper criminal

proceedings and d0 hereby certify said action.


         Included herein and             made    a part of the waiver 0f jurisdiction, transfer and


certiﬁcation     is this   written Order, the         same being the ﬁndings of the Judge of the                  305th


Judicial District Court          0f Dallas County, Texas, and said certiﬁcation,                      transfer,    and

waiver   is   accompanied by complaints against the Respondent accusing him 0f three
                                                                                                                   (3)




                                                                                                                             Page 102
felony offenses, to Wit         AGGRA VA TED ROBBERY, occurring on 0r about the 22":                  day of

J_ull,   M,        in Dallas   County, Texas, said complainant being Ma                  He            AKA
Ma            Ro       AGGRA VA TED ROBBERY,          occurring 0n 0r about the ;2_"d day of
                                                                                             My,
M,       in Dallas    County, Texas, said complainant being C               Ku            AKA C
S         ;   AGGRA VA TED ROBBERY,           occurring on or about the 1211 day of
                                                                                               M, m,
in Dallas     County, Texas, said complainant being Ga                  S          ; and      all   criminal

offenses occurring in said criminal episodes of Which said offenses
                                                                    the said Court has


jurisdiction.       Further, the Respondent has been advised of his right t0 appeal
                                                                                    pursuant t0

the requirements of the         Texas Family Code.

         IT IS     FURTHER ORDERED AND DECREED                    by the said 305th      Judicial District

Court 0f Dallas County, Texas, that the clerk of said Court transmit
                                                                     forthwith t0 the

proper Criminal District Court or District Court          of‘
                                                                Dallas County, Texas, this written

Order and ﬁndings of the said 305th Judicial District Court of Dallas
                                                                      County, Texas, and

said complaints attached hereto.


         SIGNED ON THIS THE                    Z
                                                   {DAY OF FEBRUARY,             2012.




                                                     JUDGEédSTH DISTRICT COURT 0F
                                                     DALLAS COUNTY, TEXAS




                                                                                                               Page 103
