                                                                                ACCEPTED
                                                                           04-14-00352-CR
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                      1/15/2015 3:29:54 PM
                                                                             KEITH HOTTLE
                                                                                    CLERK

                    NO. 04-14-00352-CR

                IN THE COURT OF APPEALS                FILED IN
                                                4th COURT OF APPEALS
                                                 SAN ANTONIO, TEXAS
                        FOR THE                 1/15/2015 3:29:54 PM
                                                  KEITH E. HOTTLE
         FOURTH COURT OF APPEALS          DISTRICT      Clerk


                        OF TEXAS

                  SAN ANTONIO, TEXAS


                  JOHN GONZALES, III,
                       Appellant

                            VS.

                  THE STATE OF TEXAS,
                        Appellee

              Trial Cause No. 2013-CR-7917
            Appeal from the 386th District Court
                   Bexar County, Texas
              Hon. Laura Parker, Presiding

                APPELLANT’S REPLY BRIEF

                                  MICHAEL D. ROBBINS
                                  Assistant Public Defender
                                  Paul Elizondo Tower
                                  101 W. Nueva St., Suite 310
                                  San Antonio, Texas 78205
ORAL ARGUMENT                     (210) 335-0701
NOT REQUESTED                     FAX (210) 335-0707
                                  mrobbins@bexar.org
                                  Bar No. 16984600

                                  ATTORNEY FOR
                                  APPELLANT

                             i
                              Table of Contents


                                                                      Page

Table of Contents .       .   .     .         .   .   .   .   .   .      ii

Table of Authorities      .   .      .        .   .   .   .   .   .     iii

Word Count .        .     .   .     .         .   .   .   .   .   .     iv

Reformulation of Argument In Light of Moon v. State   .   .   .   .      1

Opening Brief Re-Urged If Necessary .         .   .   .   .   .   .      8

Conclusion and Prayer     .   .     .         .   .   .   .   .   .      8

Certificate of Service.   .   .     .         .   .   .   .   .   .      9




                                         ii
                               Table of Authorities

                                                                               Page

                                     Statutes

TEX. FAM. CODE § 54.02 (West 2008) .            .   .   .     .      .    passim

                                      Rules

TEX. R. APP. P. 9.4 (West 2015) .     .         .   .   .     .      .     .     iv

TEX. R. APP. P. 25.2 (West 2015)      .         .   .   .     .      .     .      4

TEX. R. APP. P. 38.3 (West 2014)      .         .   .   .     .      .     .      1

                                      Cases

Guerrero v. State, No. 14-13-00101-CR, 2014 Tex. App. LEXIS 13773 (Tex.
     App. – Houston [14th Dist.] Dec. 23, 2014, no pet.)(mem. op., not
     designated for publication)    .      .     .      .    .      .  . 6,7

Moon v. State, 410 S.W.3d 366 (Tex. App. – Houston [1st Dist.] 2013), aff’d,
     2014 Tex. Crim. App. LEXIS 1918 (Tex. Crim. App. Dec. 10, 2104) .            7

Moon v. State, No. PD-1215-13, 2014 Tex. Crim. App. LEXIS 1918 (Tex. Crim.
     App. Dec, 10, 2104)(designated for publication) .     .     .    passim

Rankin v. State, 46 S.W.3d 899 (Tex. Crim. App. 2001) .       .      .     .      4




                                          iii
                                 Word Count

      Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(C) (West 2015), the word

count, from the beginning of the Reformulation of Argument section to, but

excluding, the signature block, is 1,671. The total word count is 2,218. The

Appellate Public Defender’s Office uses Microsoft Word 2010.




                                      iv
TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
DISTRICT OF TEXAS:

      This reply brief is filed on behalf of Appellant, John Gonzales, III, by

Michael D. Robbins, Assistant Public Defender, in response to the brief filed by

the State on January 7, 2015. It is filed by virtue of TEX. R. APP. P. 38.3 (West

2015).


             Reformulation of Argument In Light of Moon v. State

Introduction.

      On December 10, 2014, the Texas Court of Criminal Appeals issued its

opinion in Moon v. State, No. PD-1215-13, 2014 Tex. Crim. App. LEXIS 1918

(Tex. Crim. App. Dec. 10, 2014)(designated for publication). In that case, the

Court of Criminal Appeals for the first time addressed the standards of appellate

review of juvenile waiver and transfer hearings pursuant to TEX. FAM. CODE §

54.02 (West 2008). These standards had previously been addressed only by the

intermediate courts of appeals, with mixed and conflicting results. The First Point

of Error in Appellant’s opening brief addressed this issue, without the benefit of

the Moon opinion, which was issued after Appellant filed his brief, but prior to the

State filing its brief. Accordingly, this Reply Brief will reformulate Appellant’s

argument, in light of Moon, in addition to addressing the preservation of error

argument made by the State.


                                         1
      This Reply Brief does not address Appellant’s Second Point of Error,

regarding Appellant’s motion to suppress heard in adult criminal court. That point

would be moot if this Honorable Court dismisses this case because of the Moon

standard of review. However, if that does not occur, Appellant re-urges the

argument made in the Second Point of Error.

Appellate Review under Moon v. State.

      The statutory scheme for waiving juvenile jurisdiction and transferring a

juvenile case into adult court is contained in TEX. FAM. CODE § 54.02 (West 2008),

and specifically in Subsections (a)(3) and (f). It was summarized in both

previously-filed briefs (Appellant’s Brief, 13-14; State’s Brief, 6-7) and will not be

repeated here. “What is lacking in our statutory scheme … is any express statement

of the applicable standard of appellate review of the juvenile court’s transfer

order.” Moon, 2014 Tex. Crim. App. LEXIS 1918 at *24. The Court of Criminal

Appeals supplied the proper standard in Moon.

      “[I]n evaluating a juvenile court’s decision to waive its jurisdiction, the

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.’” Id. at *44. This may include both legal and factual sufficiency review. Id.

at *40. The appellate court should then review the juvenile court’s ultimate waiver

of jurisdiction under an abuse of discretion standard. “That is to say, in deciding


                                          2
whether the juvenile court erred to conclude that 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 and principles. In other words, was its transfer decision essentially

arbitrary, given the evidence upon which it was based, or did it represent a

reasonably principled application of the legislative criteria?” Id. at *44-*45.

      The Court of Criminal Appeals disapproved of the tendency of trial courts to

use boilerplate undetailed findings of fact. The trial court “should take pains to

‘show its work,’ as it were, 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 ….” Id. at 51. The statutory process is poorly served by a transfer order “so

lacking in specifics that the appellate court is forced to speculate” about the trial

court’s reasons for transfer. Id. at 52. The reviewing court must therefore limit its

sufficiency review to the facts the juvenile court expressly relied on, as required to

be expressively set out in its transfer order under Section 54.02(h). Id. at *53.




                                           3
Preservation of Error.

       The State urges this Honorable Court to find that Appellant waived his

complaint on appeal, by not objecting to the boilerplate, non-specific language in

the trial court’s order waiving juvenile jurisdiction and transferring the case to

criminal court. (State’s Brief, 7-8). The State’s argument in this particular ignores

the fact that, prior to Moon, the trial court’s order of waiver and transfer would

have been considered to be in proper form. Trial counsel had no reason to object to

the language of the order in anticipation of a ruling by the Court of Criminal

Appeals more than two years in the future. 1

       The granting of the State’s motion to transfer constituted a pretrial ruling

raised by a written motion and ruled on before trial. TEX. R. APP. P. 25.2(a)(2)(A)

(West 2015), and Mr. Gonzales obviously had the right to appeal. 2 The trial court’s

certification of right to appeal reflects this. (CR, 101). Appellant’s First Point of

Error is that the trial court abused its discretion in waving juvenile jurisdiction,

because the evidence was insufficient to support the juvenile court’s findings.

(Appellant’s Brief, 22). Sufficiency of the evidence issues need not be preserved at

the trial level, and may be raised for the first time on appeal. Rankin v. State, 46



1
  The transfer hearing was held on October 19, 2012. (CR, 19). Moon v. State was decided on
December 10, 2014.
2
  If the juvenile court improperly waived its jurisdiction, the criminal court did not gain
jurisdiction, and this case is also appealable on grounds of a jurisdiction defect under Rule
25.2(a)(2)(A)..

                                             4
S.W.3d 899, 901 (Tex. Crim. App. 2001). The State’s allegation of procedural

default is without merit.

The Order of Waiver and Transfer Was Unspecific Boilerplate.

      The juvenile court’s order of waiver and transfer makes 12 findings (1A –

11) and then states 12 reasons for transfer (1A – 11). The sets of findings and

reasons are identical. (CR, 19-22). In light of the holding in Moon, these

constituted an insufficient basis for appellate review.

      The first two reasons state that Mr. Gonzales was alleged to have committed

the offense of murder, merely repeat the allegations contained in the State’s

original petition for waiver of jurisdiction. Compare (CR, 6) with (CR, 21).

Reasons 2 and 3 state facts regarding Mr. Gonzales’s age and address, and Reason

4 states the name and address of his mother. Reasons 5, 6, and 7 state that there has

been no adjudication hearing and the procedural requirements were met. These

parrot, in part, the statutory requirements of TEX. FAM. CODE § 54.02(a), (b), and

(d) (West 2008).

      Reasons 8 through 10 state that the court considered whether the alleged

offense was against a person or property and that the alleged offense was

committed against a person, that the court considered the sophistication and

maturity of the child, the record and previous history of the child, and the prospects

for adequate protection of the public and the likelihood of rehabilitation of the


                                           5
child in the juvenile system. See TEX. FAM. CODE §§ 54.02(f)(1) – (f)(4) (West

2008). Reason 11 parrots the language of Family Code Section. 54.02(a)(3) and

waives juvenile jurisdiction. None of these reasons allude to the court’s specific

reasoning apart from the statutory language. Clearly, the juvenile court did not

“show its work.” The juvenile court stated what it found, but why it made those

findings.

The Juvenile Court Abused Its Discretion.

      The juvenile court’s order of waiver of jurisdiction in the present case is

much like the orders in Moon and in Guerrero v. State, No. 14-13-00101-CR, 2014

Tex. App. LEXIS 13773 (Tex. App. – Houston [14th Dist.] Dec. 23, 2014, no pet.)

(mem. op., not designated for publication). The order stated only conclusory facts

rather than specific facts underlying the court’s discretionary order. Although the

juvenile court did make reference to considering “the record and previous history

of the child” (CR, 22 [Reason 10]), it did not state what in the child’s record and

previous history caused it to exercise its discretion as it did. The juvenile court

found that that was an offense against the person (CR, 22 [Reason 8]), and that the

welfare of the community required transfer. (CR, 22 [Reason 11]).

      As in Moon, the juvenile court in the present case did not “show it work.”

“The only reason specifically stated on the face of the transfer order to justify the

waiver of juvenile jurisdiction is that the offense alleged is a serious one. The only


                                          6
fact specified in the written transfer order to support this reason was that the

offense … is an offense against the person of another ... [A] waiver of jurisdiction

based on this particular reason, fortified only by this fact, constitutes an abuse of

discretion.” Moon, 2014 Tex. Crim. App. LEXIS 1918 at *53-*54.

The Remedy.

      Moon was ultimately decided by the Court of Criminal Appeals, rather that

the intermediate appellate court. The Court of Criminal Appeals affirmed the court

of appeals, id. at *59, and included a long footnote about possible further

proceedings at the juvenile court level. Id. at *59-*62 n. 90. The proper remedy is

therefore found in the court of appeals’ opinion, which was affirmed. That court

found that the juvenile court abused its discretion when it waived jurisdiction, and

that the criminal district court lacked jurisdiction over the case. Moon v. State, 410

S.W.3d 366, 378 (Tex. App. – Houston [1st Dist.] 2013), aff’d, 2014 Tex. Crim.

App. LEXIS 1918 (Tex. Crim. App. Dec. 10, 2014). This Honorable Court should

dismiss the district court’s judgment and dismiss the case. It should further hold

that the case remains pending in the juvenile court. Id.; Guerrero, 2014 Tex. App.

LEXIS 13773 at *9.




                                          7
                       Opening Brief Re-Urged If Necessary

       The undersigned counsel believes that Moon v. State is controlling, and that

this case must be dismissed. If this Honorable Court disagrees, Appellant does not

waive his opening brief, and re-submits that brief for consideration of this

Honorable Court, requesting that the juvenile court’s order also be evaluated for

factual sufficiency of the evidence. Moon, 2014 Tex. Crim. App. LEXIS 1918 at

*40.

                             Conclusion and Prayer

       WHEREFORE, PREMISES CONSIDERED, the Appellant prays the Court

of Appeals dismiss this appeal and remand this case to the juvenile court for

further proceedings.

                                      Respectfully submitted,

                                      /s/ Michael D. Robbins
                                      MICHAEL D. ROBBINS
                                      Assistant Public Defender
                                      Paul Elizondo Tower
                                      101 W. Nueva Sr., Suite 310
                                      San Antonio, Texas 78205
                                      (210) 335-0701
                                      FAX (210) 335-0707
                                      mrobbins@bexar.org
                                      Bar No. 16984600
                                      ATTORNEY FOR APPELLANT




                                         8
                            Certificate of Service

      I HEREBY CERTIFY that a true and correct copy of the above and
foregoing Reply Brief has been emailed to Mr. Nathan Morey, Assistant District
Attorne, Paul Elizondo Tower, 101 W. Nueva St., Suite 370, San Antonio, Texas
78205, on January 15, 2015.


                                   /s/ Michael D. Robbins
                                   MICHAEL D. ROBBINS
                                   Assistant Public Defender




                                      9
