             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1215-13



                                CAMERON MOON, Appellant

                                                  v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                             HARRIS COUNTY

               K ELLER, P.J., filed a dissenting opinion in which H ERVEY, J., joined.

       For almost forty years, the tendency among the courts of appeals has been to hold that a

juvenile transfer order need not specify in detail the facts supporting the order. The court of appeals

in this case broke rank with the weight of that authority, and this Court now goes along with the

court of appeals’s unconventional holding. I would, instead, stick with the conventional path

followed by most of the courts of appeals. In the present case, the transfer order complied with the

statute by listing the reason for the transfer. Moreover, the order was effective if the reason given

for transfer—seriousness of the offense—was supported by sufficient evidence. The evidence clearly

supports the reason given.
                                                                             MOON DISSENT — 2

                                      A. What the Statute Requires

                                               1. The Text

        The Family Code provides that, for a child above a certain age who commits one of the types

of offenses listed, a juvenile court may waive its jurisdiction if,

        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.1

In making this determination, the juvenile court must 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.2

A juvenile court order waiving jurisdiction must “state specifically . . . its reasons for waiver and

certify its action.”3

                              2. The Transfer Order Need not Detail the Facts

        In construing a statute, we give effect to the plain meaning of its text unless the language of

the statute is ambiguous or the plain meaning leads to absurd results that the legislature could not




        1
            TEX . FAMILY CODE § 54.02(a)(3).
        2
            Id. § 54.02(f).
        3
            Id. § 54.02(h).
                                                                                MOON DISSENT — 3

have possibly intended.4 None of the provisions quoted above require the juvenile court to recite the

facts upon which its transfer holding is based. Rather, the statutory scheme merely directs the

juvenile court to state the reasons for the waiver. And as the Court’s opinion makes clear, the

weight of authority in the courts of appeals suggests that the reasons in support of transfer may be

conclusory, and transfer orders may simply recite the statutory language.5 The legislature’s failure

to change the statutory wording in light of this authority is some indication that the legislature

approves of the construction given.6 Moreover, if the legislature had wanted to require the juvenile

court to recite the facts that support its decision to transfer, the legislature could have easily drafted

language to that effect.7

        And even assuming the Supreme Court’s pronouncements in Kent v. United States8

influenced the statutory scheme before us, that case did not hold that a juvenile court was required

to set forth in its order the facts that supported its transfer decision. Rather, the Supreme Court

simply held that the federal statute before it required the juvenile court “to accompany its waiver

order with a statement of the reasons or considerations therefor.”9 The Supreme Court expressly

stated that it did not read the federal statute to require that the statement of reasons “be formal or that


        4
            Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
        5
            See Court’s op. at n.54.
        6
            State v. Colyandro, 233 S.W.3d 870, 878 (Tex. Crim. App. 2007).
        7
         See e.g. TEX . CODE CRIM . PROC. art. 11.07, § 4(a) (requiring a subsequent application to
contain sufficient “specific facts” establishing circumstances that would constitute an exception to
the general rule prohibiting subsequent habeas applications).
        8
            383 U.S. 541 (1966).
        9
            Id. at 561.
                                                                              MOON DISSENT — 4

it should necessarily include conventional findings of fact.”10 The Supreme Court did suggest that

a “statement of relevant facts” was necessary for appellate review, but that suggestion was made in

the context of a case in which no hearing was held,11 and, so, no evidence would have been heard

on the matter. In the present case, there was a hearing, the record of which can be reviewed on

appeal to determine whether the facts elicited at the hearing support the juvenile court’s stated reason

for the transfer.

      3. The Four Statutory Factors are not Individually Subject to a Sufficiency Review

         The court of appeals treated the four statutory factors outlined above as individually subject

to a sufficiency review,12 and the Court upholds this approach as legitimate. But this approach

artificially constrains a court’s analysis beyond what the statute requires. If the legislature had

wanted the factors listed to be supported by sufficient evidence and subject to a sufficiency review,

it could have made them special issues, imposed a burden of proof with respect to the individual

factors, or required that a finding be made on a particular factor or factors.13 But the statute does not

require the juvenile court to find any particular factor true, and the factors are not exclusive. The

juvenile transfer statute’s closest analogues to a special issue are the “seriousness of the offense” and

“background of the child” reasons for transfer. The four statutory factors appear to be mere non-

exclusive guides in deciding whether one of those two reasons for a transfer exists. In that respect,


        10
             Id.
        11
             Id.
        12
             See Moon v. State, 410 S.W.3d 366, 372-78 (Tex. App.–Houston [1st Dist.] 2013, pet.
granted).
        13
          See TEX . CODE CRIM . PROC. arts. 37.071, § 2(b) (special issues in a death penalty case),
42.12, § 3g(a)(2) (deadly-weapon finding).
                                                                               MOON DISSENT — 5

the four statutory factors appear to play a role similar to that of the Keeton factors with respect to the

future-dangerousness special issue in capital murder cases.14

        Attempting to conduct a sufficiency review on the four factors individually creates myriad

problems, especially when a factual sufficiency review is involved. If one conducts a factual

sufficiency review of each factor individually, how does one account for the possible cumulative

effect of multiple factors? That is, if two or more factors are supported by legally sufficient but

factually insufficient evidence, must all of the factors be disregarded as insufficient, or can multiple

factors that are individually supported by factually insufficient evidence nevertheless add up to

sufficient evidence as a whole?

        And conducting a sufficiency review of individual factors is not enough to resolve the

transfer question because, at least in the Court’s estimation, proof of an individual factor is not

necessarily enough to support a transfer. If it were, appellant’s transfer would clearly be supported

because the first factor, whether the alleged offense is against a person or property, has been

definitively established in the State’s favor. Under the Court’s reasoning, because proof of an

individual factor is not necessarily enough, the appellate court must still decide whether the factors

as a whole, and any other relevant factors, are sufficient to justify either the “seriousness of the

offense” or “background of the child” reasons for transfer (or both). This results in a two-tiered

approach to sufficiency: first analyzing the sufficiency of the individual factors, and then assessing

the sufficiency of the factors as a whole. The closest analogue to this two-tiered approach is the test

for constitutional speedy-trial violations, in which the individual factors are subject to a bifurcated



        14
           See Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987) (setting forth a list of
factors that may be considered in assessing a defendant’s future dangerousness).
                                                                              MOON DISSENT — 6

standard of review and the balancing of those factors is subject to de novo review.15 But in that

context, the factors are exclusive and, once a threshold showing is made, they must all be balanced

against each other16—neither of which is true of the statutory factors in the juvenile transfer context.

        Moreover, the nature of at least two of the four statutory factors suggests that a sufficiency

review of the individual factors is inappropriate. The first statutory factor—whether the alleged

offense was against person or property—is just a question of law. The question is simply whether

the offense alleged is a crime against a person, a crime against property, or a crime that falls within

neither of those categories. The answer to that question can be resolved by looking solely to the

State’s charges. The fourth statutory factor—the prospects of protecting the public and rehabilitating

the child—calls for predictions, and as such, would not seem to be the sort of issue that would be

subject to a factual sufficiency review.17

        Finally, the non-exclusivity of the four statutory factors also raises the issue of the juvenile

court importing its own factors and how we would conduct a sufficiency review in that context. This

is not a mere hypothetical question because, in the present case, the transfer order included two

factual conclusions that are not covered by the four statutory factors: (1) that appellant was charged

with murder and (2) that there was probable cause to believe the offense had been committed. The



        15
         See Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008); Johnson v. State, 954
S.W.2d 770, 771 (Tex. Crim. App. 1997).
        16
             See Gonzales v. State, 435 S.W.3d 801, 808-15 (Tex. Crim. App. 2014).
       17
          See McGinn v. State, 961 S.W.2d 161, 168 (Tex. Crim. App. 1998) (“But, predictions are
not right or wrong at the time of trial—they may be shown as accurate or inaccurate only by
subsequent events . . . . [O]nce the rationality of the prediction is established, attempting to
determine whether a jury’s prediction of the probability of future dangerousness is nevertheless
wrong or unjust because of countervailing evidence is an impossible task.”).
                                                                            MOON DISSENT — 7

first is undeniably true as a legal matter and the second is supported by legally and factually

sufficient evidence. The fact that a trial court can import its own factors suggests that conducting

a sufficiency review of an individual factor is myopic at best. The real, relevant question is whether

the matters considered by the trial court are sufficient to justify a transfer on the basis of the

seriousness of the offense or of the background of the child.

                          4. Factors Two and Four are Relevant to the
                         Seriousness-of-the-Offense Reason for Transfer

       The Court also errs when it concludes that the second and fourth statutory factors are relevant

only to the “background of child” reason for transfer. The statutory language does not limit the

purpose for which the four statutory factors may be considered, and the second and fourth factors

in particular may well be relevant to the “seriousness of the offense” reason for transfer. The second

factor—the sophistication and maturity of the child—relates to the seriousness-of-the-offense reason

for transfer in two ways. First, the more sophisticated and mature the child, the more blameworthy

his conduct is likely to be.18 Blameworthiness is a legitimate factor in determining the seriousness

of an offense.19 Second, the circumstances of the offense can be used to assess the sophistication and

maturity of the child, at least in some respects.20


       18
           See Roper v. Simmons, 543 U.S. 551, 571 (2005) (“Retribution is not proportional if the
law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished,
to a substantial degree, by reason of youth and immaturity.”).
       19
           See Penry v. Lynaugh, 492 U.S. 302, 322-28 (1989) (defendant’s moral culpability
constitutionally relevant to whether he should receive the death penalty and jury must be given a
vehicle to give effect to evidence of facts that would reduce the defendant’s blameworthiness).
       20
           See Ex parte Sosa, 364 S.W.3d 889, 894 (Tex. Crim. App. 2012) (“We cannot agree
that the facts of the offense are categorically irrelevant to the determination of mental retardation
for Eighth Amendment purposes. The capital offense for which an Atkins claimant was
convicted will generally be one of the best documented events in his life, and certain facts will
                                                                            MOON DISSENT — 8

       With respect to the fourth factor, the circumstances of the crime and the background of the

child are both relevant to determining whether society can be protected and the child can be

rehabilitated. As we have explained in the capital murder context, the circumstances of the offense

are highly relevant to determining whether a defendant poses a future danger to society, and

sometimes are sufficient by themselves to do so.21 The protection-of-public/rehabilitation issue in

the juvenile context is much like the inquiry into the future-dangerousness special issue.

                                   B. The Statute Was Satisfied

       The juvenile court’s transfer order states that “because of the seriousness of the offense, the

welfare of the community requires criminal proceeding.”22 Under § 54.02(a)(3), this by itself was



have been proven to a jury beyond a reasonable doubt. In some cases—and we believe this is one
of them—the complexity of the offense and the applicant’s role in the offense need to be squared
with a finding of mental retardation.”); Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex. Crim. App.
2004) (circumstances of offense may show forethought, planning, and complex execution of
purpose).
       21
           Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011) (“The circumstances of the
offense and the events surrounding it may be sufficient in some instances to sustain a ‘yes’ answer
to the future dangerousness special issue.”); Druery v. State, 225 S.W.3d 491, 507 (Tex. Crim. App.
2007) (“But the circumstances of the offense itself can be among the most revealing evidence of
future dangerousness.”) (internal quotation marks omitted).
       22
            The exact wording of this portion of the juvenile court’s order is as follows:

       After full investigation and hearing at which hearing, the said CAMERON
       MOON, FATHER, MICHAEL MOON were present; the court finds that the said
       CAMERON MOON, is charged with a violation of a penal law of the grade of
       felony, if committed by an adult, to wit: MURDER committed on or about the
       18TH day of JULY, 2008; that there has been no adjudication of THIS
       OFFENSE; that he was 14 years of age or older at the time of the commission of
       the alleged OFFENSE having been born on the 26TH day of FEBRUARY, 1992;
       that there is probable cause to believe that the child committed the OFFENSE
       alleged and that because of the seriousness of the OFFENSE, the welfare of the
       community requires criminal proceeding.
                                                                               MOON DISSENT — 9

a sufficient reason to justify a transfer, if it is adequately supported by the record.

        Moreover, the transfer order stated that the juvenile court had considered the four statutory

factors, and the transfer order found three of those factors in the State’s favor. With regard to the

first factor, the court found and that this offense was one against the person. With regard to the

second statutory factor, the juvenile court found that appellant was “of sufficient sophistication and

maturity to have intelligently, knowingly and voluntarily waived all constitutional rights heretofore

waived[,] . . . to have aided in the preparation of his defense and to be responsible for his conduct.”23

And with regard to fourth statutory factor, the juvenile court stated that, based on the evidence and

reports presented, “there is little if any, prospect of adequate protection of the public and likelihood

of reasonable rehabilitation of [appellant] by use of procedures, services, and facilities currently

available to the Juvenile Court.” The transfer order also pointed out that appellant was charged with

murder and concluded that there was probable cause to believe that the offense had been committed.

        The evidence presented at the hearing demonstrates the seriousness of appellant’s offense.

Appellant pretended to be a drug seller and set up a fake drug deal in order to accomplish a robbery.

He pursued and shot the victim as the victim fled. Appellant sent instructions by text message to a

co-conspirator both before and after the offense. Text messages sent before the crime asked a co-

conspirator if he was ready to begin and to bring a gun. In text messages after the crime, appellant

attempted to cover up his involvement, saying: “Don’t say a word.” “Tell them my name is Crazy,

and you don’t know where I live.”

        The offense appellant was charged with—murder—is one of the most serious crimes in the

Penal Code, but under the evidence presented, appellant’s conduct—a murder in the course of a


        23
             Emphasis added.
                                                                             MOON DISSENT — 10

robbery—could have been charged as capital murder, the offense that carries the most serious

punishment in this state.24 Appellant showed forethought in planning a robbery by setting up a fake

drug deal and giving instructions to his accomplice. He showed aggressiveness in pursuing the

fleeing victim. And he attempted to cover up his involvement in the crime by admonishing his

accomplice to refer to appellant only by a nickname and say he was unaware of where appellant

lived. This evidence showed a crime that was serious, not only because of its effect, but also because

of how it was conducted—with aggression and forethought and without apparent remorse.

        This Court and the court of appeals not only arrive at the wrong result by applying the wrong

standards; there are other flaws in those courts’ analyses. In analyzing the sophistication-and-

maturity factor, the court of appeals and this Court focus on appellant’s ability to waive his

constitutional rights and assist in his defense. But that was not the only aspect of sophistication and

maturity described in the juvenile court’s order. Overlooked by the court of appeals and this Court

is the fact that the juvenile court also found appellant to have sufficient sophistication and maturity

to be responsible for his conduct. That latter conclusion is amply supported by the evidence in the

record. And in connection with the fourth statutory factor, the court of appeals gave short shrift to

the State’s legitimate arguments regarding the circumstances of the offense and inaccurately accused

the State of conflating various subsections of the statute.25 Given the flaws in the court of appeals’s


        24
             See TEX . PENAL CODE § 19.03(a)(2).
        25
           See Moon, 410 S.W.3d at 375 (acknowledging that the State pointed to the offense itself,
to evidence showing that it was committed during a drug transaction, and to the fact that appellant
repeatedly shot the victim while he fled and acknowledging the State’s contention that “based on the
seriousness of the offense alone, the evidence sufficiently demonstrated that appellant’s transfer was
consistent with the public’s need for protection” but concluding that the State conflated subsections
(a)(3) and (f) of the statute); id. at 376-78 (only discussion of the circumstances of the offense or the
State’s arguments was a passing reference to “the nature of the charged offense” as helping to
                                                                           MOON DISSENT — 11

opinion and its clearly erroneous conclusions, we should not be affirming its decision today.

                                           C. Conclusion

       I would hold that the court of appeals improperly overturned the juvenile court’s decision and

that the juvenile court did not err in transferring appellant to adult criminal court. I respectfully

dissent.

Filed: December 10, 2014
Publish




establish the legal sufficiency (but not factual sufficiency) of the evidence to show the fourth
statutory factor). Even if a factual sufficiency review could apply to the fourth statutory factor, the
court of appeals’s analysis would be inadequate for failing to “detail all the relevant evidence and
. . . explain in exactly what manner the evidence is factually insufficient.” Steadman v. State, 280
S.W.3d 242, 247 (Tex. Crim. App. 2009).
