             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-19-00385-CV
     ___________________________

        IN THE MATTER OF A.K.



  On Appeal from the 323rd District Court
          Tarrant County, Texas
      Trial Court No. 323-107606-18


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

      Appellant A.K. appeals the juvenile court’s order waiving its jurisdiction and

ordering him transferred to an appropriate district court or criminal district court

(criminal court) to be prosecuted as an adult for capital murder and aggravated

robbery. In three points, Appellant contends that (1) the transfer to a criminal court

violated the constitutional provision against cruel and unusual punishment and that

Family Code Section 54.02(c) is unconstitutional because it (2) violates the federal and

state prohibitions against cruel and unusual punishment and the Fourteenth

Amendment’s Due Process Clause and (3) denies him the right to a jury determination

of a fact issue affecting the upper limits of a possible sentence. Within his first point,

Appellant complains that the transfer order was not based on factually sufficient

evidence because nothing in the order shows that the juvenile court considered the

fact that he is intellectually disabled. Because we hold that the evidence is factually

insufficient to support the juvenile court’s finding that A.K. is sufficiently

sophisticated and mature to be tried as an adult and therefore, in turn, the evidence is

factually insufficient to support the juvenile court’s determination that A.K.’s

background justifies the transfer, we reverse the juvenile court’s transfer order and

remand this case to that court for further proceedings.

                      I. Factual and Procedural Background

      The evidence presented at the transfer hearing included (1) a prediagnostic

evaluation with the report of Appellant’s latest psychological evaluation attached;

                                            2
(2) his police interview; (3) photographs depicting the crime scene, other evidence of

the crime, and the decedent’s family; and (4) testimony of Appellant’s probation

officer and the Fort Worth Police Department detective in charge of the investigation.

      Appellant was a fourteen-year-old seventh-grader when the offenses occurred.

Despite his youth, Appellant, an alleged member of the 300 Mafia Crips gang, had

already had several legal scrapes. He was on juvenile probation for burglary after

having had three prior referrals to the juvenile court. After being on probation for

burglary for less than a month, he received another referral for criminal trespass and

was suspended from school for marijuana possession. On May 18, 2018, the day of

his scheduled detention hearing for those two new referrals, Appellant did not appear

at the 10:30 a.m. hearing.

      A woman was killed by a gunshot to the head around noon that day in a west

Fort Worth apartment complex. A nine-millimeter shell casing found by the woman’s

body had an “RP” headstamp. Viewing a nearby store’s surveillance footage, cohorts

identified Appellant and another boy as the two teenagers filmed running from that

apartment complex that day.

      On the night of May 18, 2018, police detained Appellant and three other young

men for unrelated gang activity. Appellant carried a loaded magazine of Winchester

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

gun that ballistics later showed fired the casing found by the woman’s body. The

gun’s magazine contained shells with RP headstamps. The man told police the gun

                                          3
was Appellant’s. The police learned that Appellant had tried to sell that gun after the

murder.

      Appellant admitted to the police that he had kicked in the woman’s apartment

door and had taken her phone, but he denied shooting her and claimed that he was

outside the apartment when he heard gunshots inside. His accomplice told the police

that Appellant brought the gun, kicked in the door, demanded items from the woman,

including her phone, and shot her even after she had given him her phone. Police

arrested Appellant two days after the murder, and he remained in custody at the

juvenile detention center from the day of his arrest until his transfer hearing almost

seventeen months later.     Another youth confined in the detention center with

Appellant reported that Appellant bragged about shooting the woman and showed no

remorse for the murder.

      The State filed its petition for discretionary transfer to a criminal court soon

after Appellant’s arrest. Appellant’s latest psychological evaluation was completed in

August 2019. It referred to his previously diagnosed ADD/ADHD disorder as well

as his documented “physical or mental impairment” that “affected one or more major

life activities,” including communication, concentration, learning, and thinking. In the

evaluation, Appellant was given the Kaufman Brief Intelligence Test. His composite

IQ was 68. On the Wide Range Achievement Test, he performed under a second-

grade level. The psychologist noted in the evaluation that he did not try to answer any

questions that he thought were too hard. She opined, “Subsequently, his intellectual

                                           4
and academic functioning appear to be an underestimate of his ability.”            The

psychologist concluded that he would benefit from juvenile services “such as a high

level of structure and supervision.” However, she also found that he was not mentally

retarded, understood the legal implications of a discretionary transfer motion, and

could assist his lawyer.

       In the hearing, the probation officer spoke of Appellant’s background. Before

Appellant was involved with the juvenile department, he had lived at All Church

Home for a time and had also been in foster care. While he was in foster care, he

received counseling for behavioral issues at school. He also received an MHMR

evaluation in which he was diagnosed with disruptive behavior disorder and ADHD.

He was prescribed medication and had taken it “maybe a year or so.” However,

Appellant had not been on medication since the probation officer had been working

with him despite the absence of evidence that he was “taken off of it.” Also, the

probation officer was not sure whether Appellant was receiving the accommodations

in the detention center that his 504 plan 1 would have required in a normal school

setting.


       1
        “A 504 plan is mandated in public schools and federally funded private
schools by Section 504 of the Rehabilitation Act of 1973 for children with a physical
or mental condition that substantially impacts a major life activity. See 29 U.S.C.
§ 701 (2012); 34 C.F.R. § 104.33 (2015).” L. Kate Mitchell, “We Can’t Tolerate That
Behavior in This School!”: The Consequences of Excluding Children with Behavioral Health
Conditions and the Limits of the Law, 41 N.Y.U. Rev. L. & Soc. Change 407,
413 n.27 (2017).


                                           5
      The probation officer also testified that Appellant had behavioral issues at

school in the 2017–18 school year, resulting in “manifestation determination”2

meetings to determine whether his misbehavior resulted from his diagnosed disorders

or his choices. The probation officer testified that the school records indicated that

Appellant’s behavior was more of a choice than a sign of his disability. In that single

school year, he held a female classmate in a headlock and pushed her; hit another

female student in what he characterized as “a playful way”; brought an air pistol to

school; threatened a teacher; and made gang signs toward her.

      The probation officer additionally testified about Appellant’s time in detention.

Even though he was on Level One—the best level—at the time of the hearing, for

months at a time, and for a majority of the time, he had been written up during his

first several months for making gang signs, not following instructions, not doing his

school work, threatening staff members, being disruptive and disrespectful, and

fighting. Nevertheless, his probation officer testified that for the most part, Appellant

tried to follow the rules and tried to stay on Level One.


      2
       “When a school seeks to discipline a child with a disability, [the Individuals
with Disabilities Education Act] requires that the child’s ‘individualized education
program team’ (IEP Team), including the child’s parents and educators, conduct a
‘manifestation determination review.’ An IEP Team is also referred to as an
‘admission, review, and dismissal’ (ARD) committee. The purpose of the ARD
committee’s manifestation determination review is to determine whether the child’s
behavior was a manifestation of the child’s disability.” Hollingsworth v. Hackler,
303 S.W.3d 884, 889 (Tex. App.—Fort Worth 2009, pet. denied) (footnotes omitted).



                                           6
      Appellant did not testify at the transfer hearing and his counsel did not call any

witnesses. However, his counsel did cross-examine the State’s witnesses. Regarding

Appellant’s not attempting to answer certain questions of the tests evaluating his

intellectual ability, the probation officer testified that it “would seem logical[] that

someone who struggles academically would be hesitant to try something [he does not]

fully understand” because of risks of embarrassment or getting teased and that

Appellant’s refusal to try to answer the questions did not necessarily indicate

misbehavior. The probation officer also admitted that a fourteen- or fifteen-year-old

child who acts more like an eleven- or twelve-year-old child could be a child who

struggles with interpreting social cues. The probation officer further testified that in

his experience, “the adult system is not as equipped to deal with juveniles in the same

way [as the juvenile system] because [the adult system] would treat everyone on the

same level.” The probation officer believed “that the juvenile system would be more

successful in rehabilitating [Appellant] at this stage than sending him to the adult

system.”

      The juvenile court decided to waive its jurisdiction and transfer the case to a

criminal court, explaining its reasoning from the bench:

             So the Court having reviewed the complete diagnostic study, the
      social evaluation and full investigation of the child and circumstances of
      the child and circumstances of the offense ha[s] come to a conclusion.
      The Court in coming to this conclusion, having heard the competent
      evidence provided to the Court, is considering various factors. The
      Court is considering whether this offense was against a person or
      property. The Court is considering the sophistication and the maturity

                                           7
of the child. The Court is considering the record and previous history of
the child, and the Court is also considering the protection of the public
and the likelihood of rehabilitation of the child within the juvenile
system.
        Court finds that the child was 14 years old at the time of the
offense, a first-degree felony and capital offense, that there has not been
an adjudication hearing yet, and that after a full investigation hearing, the
juvenile court will find probable cause that the offense of capital murder
and . . . aggravated robbery has occurred and because of the seriousness
of the offense as well as the background of the child, the welfare of the
community requires criminal proceedings.
       Specifically, the reason for this transfer, [Appellant], is I am
genuinely concerned about all four factors that are presented to the
Court. I’ve considered all four and all four are very significant to me in
your particular case. I am particularly concerned about the safety of the
public.
       [Appellant], you had a history with the school system with
behavior problems and criminal acts. You had a problem—a history
with the law. You were supervisory cautioned out of this Court. You
were on probation out of this Court. In fact, while you were supposed
be in court on May 18th, you skipped court and it resulted in a death of
a woman. There’s probable cause to determine that it resulted in the
death of a woman. Had you come to court, this would not have been an
issue. That would have been the ultimate alibi for you had you just done
what you were supposed to do. It’s apparent to me that you planned the
crime. You had a history of burglarizing buildings and homes. I also
look at the testimony today and it seems apparent that you never really
admitted to your involvement. Seems like you’re passing the blame to
[your accomplice] and you’re creating space for yourself about your
engagement in all these matters. It seems like after the offense that you
attempt[ed] to hide and conceal your involvement whether it’s by
discarding your clothing or trying to get rid of the firearm that was used
in this offense, and it seems like you were trying to blame someone else
this entire time.
       And I think what hits the hardest is even in the detention this
whole time you were here . . . you had the opportunity to show me that
you’re rehabilitated, that you’re doing well, that you don’t need to go to
the adult system because everything that the juvenile system can offer,

                                     8
      you’re taking advantage of. Yet, . . . your time here . . . really indicates to
      me that the likelihood of rehabilitation in the juvenile system just isn’t—
      there’s nothing that we can do for you and this is a matter that simply
      the adult system needs to handle.
              So I am waiving my jurisdiction as the judge of the 323rd District
      Court, and I’m going to transfer this to an appropriate adult criminal
      district court here in Tarrant County, Texas.
The juvenile court also issued a written order granting the transfer:

             The Court finds that the acts alleged in Paragraphs III and IV of
      the First Amended Petition on file in this cause are felonies under the
      penal laws of the State of Texas if committed by an adult. The Court
      finds that the offenses were against the person of another. The Court
      finds there is probable cause to believe that the Respondent committed
      the offenses alleged in Paragraphs III and IV of the First Amended
      Petition on file in this cause.

             The Court finds that the Respondent is of sufficient
      sophistication and maturity to be tried as an adult. A psychologist who
      examined the Respondent concluded that he appears capable of
      understanding the legal implications surrounding a discretionary transfer
      motion and assisting his attorney in his defense. The facts of the
      offenses themselves weigh towards the sophistication and maturity of
      the Respondent to carry out a collaborative scheme. The Respondent
      obtained and carried a loaded handgun. After the Respondent and his
      companion saw a video game system in the apartment window, the
      Respondent kicked in the apartment door. Both the Respondent and his
      companion entered the apartment, but the Respondent pointed the
      loaded handgun at the victim, and demanded her property. The
      Respondent himself not only wielded a firearm during this home
      invasion, but also shot and killed the victim, who was a mother of three
      children and cooperated with his demands. After the offenses, the
      Respondent disposed of the stolen cell phone[] and the clothing he wore
      during the commission of the offense[] and attempted to dispose of the
      handgun.

             The Court finds that the prospects of adequate protection of the
      public and the likelihood of the rehabilitation of the Respondent by the
      use of procedures, services, and facilities currently available to the


                                            9
Juvenile Court is low. The Court finds that the Respondent had prior
referrals to the juvenile system for Terroristic Threat, Burglary of a
Habitation, Criminal Trespass, and Burglary of a Building, and that the
Respondent has received supervision and services from the Tarrant
County Juvenile Probation Department (a local Juvenile Probation
Department) prior to these offenses. The Court finds that the
Respondent has been documented as a member of the 300 Mafia, a
criminal street gang. Further, the Court finds that the Respondent was
on felony juvenile probation and had both a Motion to Modify that
probation and new misdemeanor law violations pending in the Tarrant
County Juvenile Court at the time that he is alleged to have committed
these offenses. The Court finds that while under the supervision of the
Tarrant County Juvenile Probation Department, the Respondent was
often truant from school, regularly broke curfew, and committed new
law violations. The Respondent had a court appearance to address
probation violations scheduled for the same day as the offense. A
psychologist who examined the Respondent stated[,] “[T]he community
would be at a moderate to high level of risk were he to remain in it.”
His danger to the community is further demonstrated by the violent
nature of the offenses he is accused of, including the fact that he used
deadly force without hesitation against a victim in her own home.
Finally, because of his present age of 15 years, 11 months, the
Respondent could only receive services from the Juvenile Probation
Department or the Texas Juvenile Justice Department for a maximum
period of time of 37 months.

       The Court, after considering all the testimony, diagnostic study,
social evaluation, and full investigation, finds that it is contrary to the
best interests of the public to retain jurisdiction.

      The Court finds that because of the seriousness of the alleged
offenses and the background of the Respondent, the welfare of the
community requires criminal proceedings.

       In making that determination, the Court has considered, as
detailed above, and among other matters:

      1.     Whether the alleged offenses were against person or
             property, with the greater weight in favor given to the
             offenses against person;
      2.     The sophistication and maturity of the child;

                                    10
             3.     The record and previous history of the child; and
             4.     The prospects of adequate protection of the public and the
                    likelihood of reasonable rehabilitation of the child by use of
                    procedures, services, and facilities currently available to the
                    Juvenile Court.
             THEREFORE, by reasons of the foregoing, I . . . hereby waive
      jurisdiction of this cause and transfer [Appellant] to the appropriate
      District Court or Criminal District Court of Tarrant County, Texas for
      criminal proceedings and do hereby certify said action.

                                   II. Discussion

      We first address Appellant’s second and third points challenging the

constitutionality of Family Code Section 54.02(c) because if successful, they would

afford the greatest relief—a remand to the juvenile court for proceedings without the

application of the challenged transfer provision. See, e.g., In re B.G., 317 S.W.3d 250,

258 (Tex. 2010). We then address his first point challenging the transfer decision.

                           A. Constitutional Challenges

                  1. Mandatory Sentencing Scheme for Juveniles

      Appellant’s constitutional challenges to the transfer provision mirror challenges

made to the mandatory sentencing scheme for juveniles, so we begin with a brief

discussion of that law. Section 12.31(a) of the Texas Penal Code is the punishment

provision governing capital felonies, and it provides that life with the possibility of

parole is the mandatory punishment for a person found guilty of committing a capital

felony under the age of eighteen. Tex. Penal Code Ann. § 12.31(a)(1). In Miller v.

Alabama, the United States Supreme Court held that automatic life sentences without


                                           11
the possibility of parole for juveniles violated the Eighth Amendment prohibitions

against cruel and unusual punishment. 567 U.S. 460, 470, 479, 132 S. Ct. 2455, 2464,

2469 (2012). However, the Texas Court of Criminal Appeals has declined to broaden

Miller’s scope. In Lewis v. State, that court held that automatic life sentences with the

possibility of parole for juveniles do not violate the Eighth Amendment because they

offer juveniles rehabilitation:

       Miller does not forbid mandatory sentencing schemes. The mandatory
       nature of a sentencing scheme is not the aspect that precludes
       rehabilitation; rather, the sentencing scheme in Miller was
       unconstitutional because it denied juveniles convicted of murder all
       possibility of parole, leaving them no opportunity or incentive for
       rehabilitation. Life in prison with the possibility of parole leaves a route
       for juvenile offenders to prove that they have changed while also
       assessing a punishment that the Legislature has deemed appropriate in
       light of the fact that the juvenile took someone’s life under specified
       circumstances.

              ....

             . . . . Miller does not entitle all juvenile offenders to individualized
       sentencing. It requires an individualized hearing only when a juvenile
       can be sentenced to life without the possibility of parole.

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

269 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). In Turner v. State, the Texas

Court of Criminal Appeals relied on Lewis to reject an Eighth Amendment challenge

to Section 12.31(a)(1) as applied. 443 S.W.3d 128, 129 (2014); see also Matthews v. State,

513 S.W.3d 45, 61 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).




                                            12
                       2. Constitutionality of Section 54.02(c)

      In his second and third points, Appellant complains that Family Code Section

54.02(c) is unconstitutional on its face and as applied to him because it violates the

“cruel and unusual punishment” provisions of the Eighth Amendment to the United

States Constitution and Article One, Section 13 of the Texas Constitution, the

Fourteenth Amendment’s Due Process Clause, and the right under Apprendi to have a

jury determine any issue of fact affecting the upper range of punishment in a criminal

case. Statutes are presumed to be constitutional. Sax v. Votteler, 648 S.W.2d 661,

664 (Tex. 1983); In re J.G., 495 S.W.3d 354, 364 (Tex. App.—Houston [1st Dist.]

2016, pet. denied); see also Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).

A party challenging the constitutionality of a statute bears the burden of rebutting the

presumption. Peraza, 467 S.W.3d at 514; J.G., 495 S.W.3d at 364–65. We endeavor to

uphold the statute, “mak[ing] every reasonable presumption in favor of the statute’s

constitutionality, unless the contrary is clearly shown.” Peraza, 467 S.W.3d at 514; see

J.G., 495 S.W.3d at 365.

      When a party challenges the constitutionality of a statute on its face, it attacks

the statute, not just a particular application of it, and must show that “no set of

circumstances exists under which [the] statute would be valid.” Peraza, 467 S.W.3d at

514. If the statute could be valid in any circumstance, the facial challenge fails. Id. at

515–16. Because of this high burden, a facial challenge rarely succeeds. United States



                                           13
v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987); Allen v. State, No. PD-1042-

18, 2019 WL 6139077, at *3 (Tex. Crim. App. Nov. 20, 2019).

      When a party brings an as-applied challenge to a statute’s constitutionality, the

party claims that the statute, “although generally constitutional, operates

unconstitutionally as to the claimant because of his particular circumstances.” Faust v.

State, 491 S.W.3d 733, 743–44 (Tex. Crim. App. 2015) (footnote omitted); see In re

A.J.F., 588 S.W.3d 322, 339 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

      In his second point, Appellant contends that Family Code Section 54.02 is

unconstitutional on its face and as applied because it violates the federal and state

constitutions’ prohibitions against cruel and unusual punishment and the Fourteenth

Amendment’s Due Process Clause by “fail[ing] to require the juvenile court to

consider the mandatory sentencing scheme for a child convicted of capital murder”

and “to take into account whether a juvenile’s particularized family history, character,

mental capacity, education, background and personal moral culpability . . . require a

mandatory sentence of 40 calendar years.” Before reaching the merits of this point,

we first dispose of claims forfeited by inadequate briefing and by design in oral

argument.

      First, Appellant has not discussed the “cruel and unusual punishment”

provision of the Texas Constitution in his brief, nor has he argued that it provides

greater protections than the Eighth Amendment. We therefore overrule his claims

based on the Texas provision as inadequately briefed. See Tex. R. App. P. 38.1(h);

                                           14
Murphy v. State, 112 S.W.3d 592, 607 (Tex. Crim. App. 2003); In re J.B.L., 318 S.W.3d

544, 546 n.1 (Tex. App.—Beaumont 2010, pet. denied); In re R.J.R., 281 S.W.3d 43,

50 (Tex. App.—El Paso 2005, no pet.). Second, during oral argument, Appellant

clarified that he does not argue in this point that the statute is unconstitutional on its

face but only that it is unconstitutional as applied to intellectually disabled juveniles.

See Tex. R. App. P. 39.2. We therefore do not address his briefed arguments in this

point that Section 54.02 is unconstitutional on its face. See Tex. R. App. P. 47.1.

 a. Appellant’s Eighth Amendment “Cruel and Unusual Punishment” Claims

      Turning to the merits of Appellant’s remaining claims, we overrule his as-

applied challenge grounded in the Eighth Amendment for the following five reasons.

See U.S. Const. amend. VIII. First, at the time of the transfer hearing, Appellant was

still within the juvenile court’s jurisdiction and had not been indicted, tried, charged,

or convicted. He had not yet been and may never be subject to the mandatory

sentencing scheme. In State ex rel. Lykos v. Fine, the Texas Court of Criminal Appeals

held that the trial court erred by granting the defendant’s pretrial motion to hold the

death-penalty sentencing statute unconstitutional as applied, partly because the

defendant was “asking Texas trial and appellate courts to entertain a purely

hypothetical claim and make an advisory ruling in a case that ha[d] not been litigated

to any final resolution.” 330 S.W.3d 904, 911–12 (Tex. Crim. App. 2011). Similarly,

in Ex parte Cross, the El Paso Court of Appeals dismissed the defendant’s appeal

challenging the constitutionality of the statute he was charged with violating because

                                           15
he had not yet been tried and “[a]ny injury that [he] might suffer [was] therefore still

sufficiently contingent or remote such that the issue [was] not ripe for adjudication.”

69 S.W.3d 810, 814 (Tex. App.—El Paso 2002, no pet.). Appellant’s challenge is to

the transfer statute, which was implemented. However, that challenge is based on the

mandatory sentencing scheme.         Any complaint regarding Appellant’s facing a

mandatory sentence of life with parole is not ripe for review, however it is couched.

      Second, Section 54.02 is not a punishment provision but a transfer provision.

Tex. Fam. Code Ann. § 54.02. Section 12.31 of the Penal Code is the punishment

provision. Tex. Penal Code Ann. § 12.31(a). A transfer hearing is a “nonadversarial

preliminary hearing” in which the juvenile court determines whether there is probable

cause to believe the respondent committed the alleged crime.            Navarro v. State,

Nos. 01-11-00139-CR, 01-11-00140-CR, 2012 WL 3776372, at *5 (Tex. App.—

Houston [1st Dist.] Aug. 30, 2012, pet. ref’d) (mem. op., not designated for

publication); In re D.W.L., 828 S.W.2d 520, 524 (Tex. App.—Houston [14th Dist.]

1992, no pet.). It is not a trial on the merits. State v. Lopez, 196 S.W.3d 872, 874 (Tex.

App.—Dallas 2006, pet. ref’d).

      Third, the Texas Court of Criminal Appeals has upheld the mandatory life-with-

parole sentencing scheme in response to mitigation-consideration arguments. Turner,

443 S.W.3d at 129; Lewis, 428 S.W.3d at 863. Those holdings signal that constitutional

challenges to the transfer statute grounded in the necessity of sentence-focused

consideration of mitigation evidence should likewise fail.

                                           16
       Fourth, Appellant argues in this point that under Moon, a “court need not

consider or make a finding on the mitigation evidence that encompasses the

sophistication and maturity issues,” implying that the juvenile court did not consider

the mitigation evidence here. While it is true that the juvenile court is not required to

find that every Section 54.02(f) factor supports transferring the case, Moon v. State,

451 S.W.3d 28, 47 & n.78 (Tex. Crim. App. 2014) (citing Hidalgo v. State, 983 S.W.2d

746, 754 (Tex. Crim. App. 1999)), Moon and section 54.02 require the juvenile court to

consider, at a minimum,

       (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.

Id. at 38 (quoting Section 54.02(f)). The juvenile court must also “make specific

findings of fact regarding each of the section 54.02(f) factors.” J.G., 495 S.W.3d at

367; see Moon, 451 S.W.3d at 47. Mitigation evidence falls within those factors; the

juvenile court is therefore required to consider it.

       In J.G., the respondent argued that Section 54.02(j), the transfer provision

which applies to respondents over the age of eighteen, did “not allow the juvenile

court to consider [his] greater need for rehabilitation and the lesser weight placed on

retribution when making [the] transfer decision” and therefore violated the Eighth

Amendment prohibition against cruel and unusual punishment as applied to him.

                                            17
495 S.W.3d at 369. The appellate court noted that when making the transfer decision,

the juvenile court did consider respondent’s “prior history with the juvenile justice

system, the rehabilitative placements that were made, his lack of cooperation with

those rehabilitative goals, and the escalation of his criminal conduct.” Id. The

appellate court therefore held that Section 54.02(j) did not violate the Eighth

Amendment as applied to the respondent. Id. In Appellant’s case, although we hold

below that the evidence is factually insufficient to support the transfer, we cannot

conclude from the juvenile court’s oral rendition and written order that it did not

consider any mitigation evidence. For example, the oral rendition and written order

both indicate that the juvenile court considered the diagnostic report and the

psychologist’s evaluation. For all these reasons, we hold that Section 54.02 as applied

to Appellant did not violate the Eighth Amendment.

          b. Appellant’s Fourteenth Amendment Due Process Claims

      We also overrule Appellant’s as-applied challenge grounded in the Due Process

Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV. In Kent v. United

States, the Supreme Court held that the transfer “hearing must measure up to the

essentials of due process and fair treatment.” 383 U.S. 541, 562, 86 S. Ct. 1045,

1057 (1966). Due process mandates “a hearing, including access to the social records

and probation or similar reports which presumably are considered by the court,

and . . . a statement of reasons for the Juvenile Court’s decision.” Id. at 557, 86 S. Ct.

at 1055; J.G., 495 S.W.3d at 367 (quoting same in Section 54.02(j) case). A transfer

                                           18
hearing was held in this case, Appellant does not argue that he lacked access to the

documentary evidence considered by the court, and the order states some reasons for

the decision. We therefore hold that Appellant received due process under the

statute. We overrule Appellant’s second point.

                          c. Appellant’s Apprendi Claims

      In his third point, Appellant complains that Section 54.02(c) is unconstitutional

on its face and as applied because it violates his right under Apprendi to have a jury

determine facts that impact the upper range of punishment in a criminal case.

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). The United States

Supreme Court held in Apprendi that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,

120 S. Ct. at 2362–63. The prescribed statutory maximum punishment for capital

murder committed by a juvenile is confinement for life with the possibility of parole.

Tex. Penal Code Ann. § 12.31(a). The transfer from juvenile court to criminal court

does not “increase th[at] penalty beyond the prescribed statutory maximum.” Lopez,

196 S.W.3d at 875. Apprendi therefore does not require that a jury find facts allowing

the transfer of a juvenile from the juvenile court to a criminal court.              Id.

Consequently, we hold that Section 54.02(c)’s failure to require that a jury determine

whether to transfer a juvenile to a criminal court does not make it unconstitutional on

its face. See id. We further hold, for the same reason, that Section 54.02 as applied to

                                          19
Appellant did not violate his rights to a jury trial guaranteed by the Sixth and

Fourteenth Amendments. See Rivera v. State, Nos. 05-06-00026-CR, 05-06-00027-CR,

2007 WL 3245610, at *4 (Tex. App.—Dallas Nov. 5, 2007, no pet.) (not designated

for publication). We overrule Appellant’s third point.

        B. Factually Insufficient Evidence to Support the Transfer Order

       In his first point, Appellant contends that the juvenile court’s transferring him

to a criminal court violated the constitutional prohibition against cruel and unusual

punishment. Within his first point, Appellant argues that the juvenile court’s decision

was based on factually insufficient evidence, contending that “nothing in the transfer

order . . . indicates that the [juvenile] court considered or weigh[]ed A.K.’s intellectual

disability.”   We agree that the juvenile court’s decision was based on factually

insufficient evidence.

                                   1. Applicable Law

       Transferring a juvenile from juvenile court to criminal court should be “the

exception not the rule; . . . whenever feasible, children and adolescents below a certain

age should be ‘protected and rehabilitated rather than subjected to the harshness of

the criminal system.’” Moon, 451 S.W.3d at 36 (quoting Hidalgo, 983 S.W.2d at 754).

In Texas and as applicable to the case before us, juvenile courts may exercise their

discretion to waive their jurisdiction and transfer juveniles to a criminal court if

       (1) the child is alleged to have violated a penal law of the grade of felony;

       (2) the child was:

                                            20
        (A) 14 years of age or older at the time [of the alleged offense], if the
        offense is a capital 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 [or both] the welfare of
       the community requires criminal proceedings.

Tex. Fam. Code Ann. § 54.02(a); Moon, 451 S.W.3d at 38.                 In making these

determinations, the juvenile court must consider the following nonexclusive factors:

       (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.
See Tex. Fam. Code Ann. § 54.02(f); Moon, 451 S.W.3d at 38. These factors enable the

juvenile court to balance the juvenile’s potential danger to the public against his

amenability to treatment. Moon, 451 S.W.3d at 38. The State has the burden to

produce evidence that persuades the juvenile court, by a preponderance of the

evidence, that waiving its jurisdiction and transferring the case to the criminal court is

the best course of action. Id. at 45.

       When the juvenile court waives its jurisdiction, “it shall state specifically in the

order its reasons for waiver and certify its action, including the written order and


                                            21
findings of the court, and shall transfer the person to the appropriate court for

criminal proceedings.” Tex. Fam. Code Ann. § 54.02(h). That is, the juvenile court

should “‘show its work’ . . . by spreading 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.” Moon, 451 S.W.3d at 49.

                               2. Standard of Review

      This court recently explained how we review a waiver and transfer order:

               In evaluating a juvenile court’s decision to waive its jurisdiction
      under Section 54.02(a), we first review the juvenile court’s specific
      findings of fact regarding the Section 54.02(f) factors under “traditional
      sufficiency of the evidence review.” In this context, our sufficiency
      review is limited to the facts that the juvenile court expressly relied upon
      in its transfer order.

              We then review the juvenile court’s ultimate waiver decision for
      an abuse of discretion. That is to say, in deciding whether the juvenile
      court erred to conclude that the seriousness of the offense alleged or the
      background of the juvenile or both called for criminal proceedings for
      the welfare of the community, we simply ask, in light of our 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 the
      juvenile court’s transfer decision essentially arbitrary, given the evidence
      upon which it was based, or did it represent a reasonably principled
      application of the legislative criteria? In conducting our review, we 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.

In re K.W., No. 02-19-00323-CV, 2020 WL 98144, at *4 (Tex. App.—Fort Worth Jan.

9, 2020, no pet.) (citations and internal quotation marks omitted) (quoting In re T.L.,


                                          22
No. 02-19-00200-CV, 2019 WL 4678565, at *3–4 (Tex. App.—Fort Worth Sept. 26,

2019, no pet.) (mem. op.)).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing all

the pertinent record evidence, we determine that the credible evidence supporting the

finding is so weak, or so contrary to the overwhelming weight of all the evidence, that

the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co.,

715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175,

176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). When reversing for

factual insufficiency, we detail the evidence relevant to the point in consideration and

clearly state why the finding is factually insufficient—that is, why the evidence

supporting the finding is so weak or is so against the great weight and preponderance

of the evidence that the finding is manifestly unjust, shocks the conscience, or clearly

demonstrates bias. Pool, 715 S.W.2d at 635.

                                     3. Analysis

      The transfer order states that the juvenile court determined that the welfare of

the community required criminal proceedings because of both Appellant’s

background and the seriousness of the alleged offenses and that the juvenile court

considered the four Section 54.02(f) factors listed above. The transfer order also

details the facts the juvenile court found regarding each factor. With his sufficiency

complaint that there is no evidence that the juvenile court considered his intellectual

                                          23
disability, Appellant challenges the factual sufficiency of the evidence supporting the

juvenile court’s finding that he is sufficiently sophisticated and mature to be tried as

an adult and supporting the juvenile court’s related determination that his background

justifies the transfer. The order provides the following regarding the sophistication-

and-maturity factor,

             The Court finds that [Appellant] is of sufficient sophistication and
      maturity to be tried as an adult. A psychologist who examined [him]
      concluded that he appears capable of understanding the legal
      implications surrounding a discretionary transfer motion and assisting
      his attorney in his defense. The facts of the offenses themselves weigh
      towards the sophistication and maturity of [Appellant] to carry out a
      collaborative scheme. [He] obtained and carried a loaded handgun.
      After [Appellant] and his companion saw a video game system in the
      apartment window, [Appellant] kicked in the apartment door. Both [he]
      and his companion entered the apartment, but [Appellant] pointed the
      loaded handgun at the victim[] and demanded her property. [Appellant]
      himself not only wielded a firearm during this home invasion, but also
      shot and killed the victim, who was a mother of three children and
      cooperated with his demands. After the offenses, [Appellant] disposed
      of the stolen cell phone[] and the clothing he wore during the
      commission of the offense[] and attempted to dispose of the handgun.

Thus, the facts the juvenile court expressly relied on in finding that Appellant is

sufficiently sophisticated and mature are the psychologist’s conclusion that he appears

capable of understanding the legal ramifications of being transferred to criminal court

and of helping his attorney with his defense and the facts of the offenses themselves.

In light of all the evidence pertaining to Appellant’s sophistication and maturity, we

hold that these facts are not enough to support the finding.




                                          24
       First, the contents of the psychological evaluation provide prima facie evidence

that Appellant meets the United States Supreme Court’s test for intellectual disability,

but the juvenile court does not address this fact. The Supreme Court’s test for

intellectual disability is

       (1) intellectual-functioning deficits (indicated by an IQ score
       approximately two standard deviations below the mean—i.e., a score of
       roughly 70—adjusted for the standard error of measurement);
       (2) adaptive deficits (the inability to learn basic skills and adjust behavior
       to changing circumstances); and (3) the onset of these deficits while still
       a minor.

Moore v. Tex., 137 S. Ct. 1039, 1045 (2017) (citations and internal quotation marks

omitted). Appellant satisfies all three elements. The psychologist did not testify. The

juvenile court only had the psychologist’s written evaluation. That evaluation shows

that in August 2019, Appellant’s composite IQ on the Kaufman Brief Intelligence

Test was 68. He therefore meets the first element of the test. See id. Adaptive

deficits, the subject of the second element of the Supreme Court’s test, must be

shown in one of the three adaptive areas: social, conceptual, or practical. Id. at 1050;

see American Psychiatric Association, Diagnostic and Statistical Manual of Disorders 33 (5th

ed. 2013) (“DSM-5”). The psychological evaluation references information from

Appellant’s school records recognizing that he “[h]as a physical or mental impairment

that significantly impacts a major life activity and meets eligibility standards to be

identified as having a Section 504 Disability.” His impacted life activities listed were

communication, concentration, learning, and thinking.           Appellant therefore has



                                            25
adaptive deficits satisfying the second element of the Supreme Court’s test. See Moore,

137 S. Ct. at 1045; DSM-5 at 33; see also 19 Tex. Admin. Code § 89.1040(c)(5)(B).

Appellant was and is still a minor; the third and final element of the Supreme Court’s

test is therefore met. See Moore, 137 S. Ct. at 1045. We agree with Appellant that this

evidence is a prima facie showing of intellectual disability.

       Despite Appellant’s meeting the Supreme Court’s test for intellectual disability,

the psychologist concluded in the evaluation that Appellant is not mentally retarded.

Intellectual disability is another term for mental retardation. Brumfield v. Cain, 576 U.S.

305, 135 S. Ct. 2269, 2274 n.1 (2015). Neither the juvenile court’s order nor the

rendition addresses this conflict in the evaluation, nor does either mention intellectual

disability.

              The evaluation does not explicitly base the psychologist’s conclusion that

Appellant has no intellectual disability on any evidence, but presumably she reached

that conclusion based on her unsupported opinion in the evaluation that Appellant’s

low IQ test scores “are likely an underestimate of his intellectual and academic ability

due [to] his approach[] (i.e. lack of effort toward answering items that he perceived as

difficult).” Just as the evaluation contains no explanation for that opinion, the State

did not offer evidence supporting it at the hearing, although we note that in a similar

case, it has explored the issue extensively with both documentary evidence and live

witnesses. See In re E.O., No. 02-18-00411-CV, 2019 WL 2293181, at *4–5 (Tex.

App.—Fort Worth May 30, 2019, no pet.) (mem. op.). There is no indication in the

                                            26
record that the psychologist tested Appellant for malingering his intellectual disability,

although such tests do exist. See, e.g., Ex parte Wood, 568 S.W.3d 678, 680 (Tex. Crim.

App. 2018), cert. denied, Wood v. Tex., 140 S. Ct. 213 (2019); Petetan v. State, No. AP-

77,038, 2017 WL 915530, at *20 (Tex. Crim. App. Mar. 8, 2017), reh’g granted,

2017 WL 4678670 (Tex. Crim. App. Oct. 18, 2017) (order, not designated for

publication). Thus, an “analytical gap” exists between the data relied on and the

psychologist’s opinion that Appellant could have done better on the test. See Gammill

v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726–27 (Tex. 1998). This gap renders

her opinion unreliable and no evidence.         See Volkswagen of Am., Inc. v. Ramirez,

159 S.W.3d 897, 906 (Tex. 2004) (relying in part on Gammill, 972 S.W.2d at 726).

Significantly, because the psychologist’s opinion that Appellant could have done

better on the IQ tests is the only basis in the record that we see for her conclusion

that he is not intellectually disabled, that conclusion is likewise unreliable and no

evidence because of an impermissibly wide analytical gap. See Ramirez, 159 S.W.3d at

906; Gammill, 972 S.W.2d at 726–27.

      Second, although the psychological evaluation concludes that Appellant “appears

capable of understanding the legal implications surrounding a discretionary transfer

motion and of assisting his attorney in his defense,” that conclusion is not tied to any

evidence in the record. The juvenile court’s like finding is therefore based on nothing

but an unsupported conclusion.        See Moon, 451 S.W.3d at 51 n.88.        Again, the

analytical gaps between the psychologist’s conclusions and the facts she relied on

                                           27
render her conclusions unreliable and no evidence. See Ramirez, 159 S.W.3d at 906;

Gammill, 972 S.W.2d at 726–27.

      Third, even if the psychologist’s unsupported opinion that Appellant

understands the legal significance of a transfer hearing and can help his attorney with

his defense had evidentiary support in the record, the Texas Court of Criminal

Appeals has stated in persuasive dicta that whether a juvenile can assist in his defense

is irrelevant to whether he should be transferred to adult court:

      No case has ever undertaken to explain . . . exactly how the juvenile’s
      capacity (or lack thereof) to . . . assist in his defense is relevant to
      whether the welfare of the community requires transfer, and we fail to
      see that it is. Other courts of appeals have rightly declared the purpose
      of an inquiry into the mental ability and maturity of the juvenile to be to
      determine whether he appreciates the nature and effect of his voluntary
      actions and whether they were right or wrong. In our view, [relying on]
      the juvenile’s capacity to . . . help a lawyer to effectively represent him is
      almost as misguided as the juvenile court’s logic in the present case when
      it orally pronounced that the appellant should be transferred, inter
      alia, merely for the sake of judicial economy, so that his case could be
      consolidated with that of his already-certified-as-an-adult co-defendant.
      Such a notion is the very antithesis of the kind of individualized
      assessment of the propriety of waiver of juvenile jurisdiction that both
      Kent and our statutory scheme expect of the juvenile court in the exercise
      of its transfer discretion.

Moon, 451 S.W.3d at 51 n.87 (citations and internal quotation marks omitted); see also

In re J.G.S., No. 03-16-00556-CV, 2017 WL 672460, at *4 (Tex. App.—Austin Feb.

17, 2017, no pet.) (mem. op. on reh’g). We note that the psychologist stated in the

report that Appellant “is no more sophisticated or mature than his same aged peers.”

Fourteen-year-olds typically are neither sophisticated nor mature. How then could



                                           28
Appellant’s transfer be “the exception not the rule”? Moon, 451 S.W.3d at 36 (quoting

Hidalgo, 983 S.W.2d at 754).

      Fourth, in light of the prima facie evidence of Appellant’s intellectual disability

in the record, the facts of the crime the juvenile court relied on in its order are an

insufficient basis for the finding that Appellant has sufficient sophistication and

maturity for transfer. We recognize that capital murder is among the most serious of

crimes; however we also recognize that nothing in the execution of this murder

demanded maturity or sophistication. That is, it is not clear to this court how the

evidence that Appellant, accompanied by a thirteen-year-old, was able to carry a

loaded gun, kick an apartment door open, convince an unarmed person to give him

her cell phone, shoot her when her back was turned, and dispose of the cell phone

and his clothes shows that he had sufficient sophistication and maturity to be

transferred to criminal court. Significantly, the detective in charge of the investigation

testified that during the investigation he “had a pretty good feel that th[ese

offenses] . . . probably involved juveniles” because

      it’s not real common that you see someone of the adults do something
      like this in just broad daylight in such a densely populated area where the
      chances of being seen are very high. Most of your adult burglars, by the
      time they get to that point, they’re a lot more careful about it, where they
      go and how they approach things and . . . to me it just seemed very
      juvenile.

The record also shows that Appellant was essentially caught red-handed by proxy

when, on the night of the murder, police found the adult of his small group was



                                           29
carrying the murder weapon loaded with shells matching the casing found by the

body. For all four reasons, we sustain this portion of Appellant’s first point, and,

because of this disposition, do not reach the rest of this point. See Tex. R. App. P.

47.1.

                                         *****

        This court recognizes that Appellant does not challenge the juvenile court’s

findings on all the Section 54.02 factors. But in this case, the juvenile court relied on

all four factors and based its decision on both Appellant’s background and the

seriousness of the offenses, and we do not know how much weight the juvenile court

accorded to each factor or to each of the two reasons for the transfer decision. We

do know that evidence of intellectual disability means the difference between life and

death in death-penalty cases. Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242,

2252 (2002). At minimum, the evidence of Appellant’s intellectual disability should

have been explicitly addressed in the juvenile court’s transfer order.              The

psychological evaluation does not sufficiently support the psychologist’s conclusions

that Appellant is not intellectually disabled. It offers no evidence to support her

conclusion that his IQ test scores would have been better if he had tried to answer

questions he found difficult, and it offers no evidence of how much better those

scores would have been.        Thus, the juvenile court’s finding that Appellant is

sufficiently sophisticated and mature to transfer to criminal court rests on insufficient

evidence. Because intellectual disability may very well permeate Appellant’s personal

                                           30
history, his criminal history, and the likelihood of his rehabilitation, the trial court

abused its discretion by basing its order on Appellant’s background. Because we

cannot determine how much weight the trial court accorded Appellant’s background

versus how much weight it accorded the seriousness of the crimes in deciding to

transfer him to criminal court, we must remand this case to the juvenile court.

                                   III. Conclusion

      Having overruled Appellant’s constitutional complaints but having also held

factually insufficient evidence supports the transfer order, we reverse the juvenile

court’s transfer order and remand this case to that court for proceedings consistent

with this opinion.




                                                      /s/ Mike Wallach
                                                      Mike Wallach
                                                      Justice

Delivered: April 2, 2020




                                          31
