Opinion issued June 28, 2018




                                        In The

                                Court of Appeals
                                       For The

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



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


                           MEMORANDUM OPINION

      This case involves the interpretation and application of a since-amended

statute concerning the transfer of minors to criminal district court to be tried as

adults. The statute has been amended in a manner that may have avoided the result

we are bound to reach here, but the disposition of this appeal must be resolved

under the earlier version of the statute.
      When Antonnyer Morrison was a minor, he was indicted for murder. In June

2012, after Morrison had turned 18, the juvenile court heard and granted the State’s

petition for discretionary transfer from juvenile court to criminal district court. The

case was transferred, and Morrison was tried as an adult, convicted of murder, and

sentenced to 45 years’ confinement.

      Our sister court subsequently vacated the criminal district court’s judgment

because the juvenile court did not make the requisite findings under Section

54.02(j) of the Family Code. Morrison v. State, 503 S.W.3d 724, 725, 728 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d). Relying on a recently-issued opinion

by the Court of Criminal Appeals, our sister court explained that when a transfer

occurs after a juvenile’s 18th birthday, Section 54.02(j)(4) requires the State to

prove that it was not practicable to proceed to certification before the juvenile’s

18th birthday. Id. at 727 (citing Moore v. State, No. PD-1634-14, 2016 WL

6091386 (Tex. Crim. App. Oct. 19, 2016)).1 At the June 2012 transfer hearing, the

State presented no evidence that it was not practicable to proceed before Morrison

turned 18. The State instead argued that Section 54.02(j) required only that the

transfer petition be filed—but not ruled on—before Morrison turned 18. Our sister

court rejected this argument, remanded the case to the juvenile court to afford the

1
      The Court of Criminal Appeals withdrew the opinion cited by our sister court and
      issued a new opinion in its stead. Moore v. State, 532 S.W.3d 400, 401 (Tex.
      Crim. App. 2017) (per curiam). The new opinion, however, did not change the rule
      on which our sister court relied. Id. at 405.
                                          2
State an opportunity to satisfy its burden of proof, and ordered that the juvenile

court file findings of fact in support of its ruling. Morrison, 503 S.W.3d at 728.

      On remand, the State filed an amended petition, and the juvenile court held a

hearing at which the State presented testimony from the lead investigator, firearms

examiner, and probation officer, among others. However, none of the district

attorneys involved in the investigation or prosecution testified. The juvenile court

found that the State proved by a preponderance of the evidence that, for reasons

beyond its control, it was not practicable to proceed in the juvenile court before

Morrison’s 18th birthday. The juvenile court entered 50 fact findings detailing the

murder investigation’s chronology, Morrison’s arrest, and the transfer proceedings.

None of the fact findings addressed whether it was practicable for the State to take

certain actions during various stages of its investigation to expedite the transfer

hearing or whether the State’s failure to take such actions was caused by the

prosecutor’s erroneous interpretation of Section 54.02(j). Instead, the juvenile

court simply stated in a conclusion of law that it was not practicable for the State to

have proceeded before Morrison’s 18th birthday.

      In a single issue, Morrison argues that the juvenile court erred in waiving its

jurisdiction because the State failed to prove by a preponderance of the evidence

that, for a reason beyond the State’s control, it was not practicable to proceed to




                                          3
certification before Morrison turned 18. See TEX. FAM. CODE §§ 54.02(j)(4)(A),

56.01(c)(1)(A); TEX. PENAL CODE § 19.02(b).

      After Morrison’s 18th birthday, the Legislature amended the statute

governing a juvenile court’s jurisdiction over incomplete proceedings. Acts 2013,

83rd Leg., ch. 1299 (H.B. 2862), § 7, eff. Sept. 1, 2013. Under the current statutory

scheme, when the State files a petition to transfer before the juvenile turns 18, the

juvenile court retains jurisdiction to rule on the petition after the juvenile turns 18

so long as the juvenile court finds that the prosecutor exercised due diligence in an

attempt to complete the transfer proceeding before the juvenile’s 18th birthday.

TEX. FAM. CODE § 51.0412. But under the scheme in effect at the time of June

2012 transfer hearing—which is the version that continues to apply to this

appeal—the juvenile court had to find that it was not practicable to proceed before

Morrison’s 18th birthday for a reason beyond the control of the State for the

juvenile court to retain jurisdiction. Id. § 54.02(j)(4)(A).2 The former scheme

imposes a higher burden on the State because impracticability is more difficult to

prove than due diligence and because “the State” includes not only the prosecution

but law enforcement as well.




2
      It is undisputed that Section 54.02(j)(4)(B) of the Family Code does not apply
      here. See TEX. FAM. CODE § 54.02(j)(4)(B).

                                          4
      Bound by the earlier version of the statute, we consider the evidence of

impracticability for reasons beyond the State’s control. The evidence demonstrates

a lack of urgency at several points during the criminal investigation and while the

State petitioned for transfer. To begin, no one expedited the firearms analysis, and

the State waited for that analysis before proceeding against Morrison. While

Morrison was charged and apprehended approximately 8 weeks before his 18th

birthday, there is no evidence that the prosecutor attempted to expedite the transfer

hearing after his arrest. Nor is there any evidence that the juvenile court was unable

to hear the petition before Morrison’s 18th birthday. Morrison’s psychological

evaluation and social home study report, both of which were needed for the

transfer hearing, were not completed until after Morrison turned 18—but the

evidence shows that both reports could have been completed earlier had the State

not delayed in providing the psychiatrist and juvenile probation officer the

necessary information for the reports. In other words, the evidence shows that it

was practicable to proceed before Morrison’s 18th birthday. But, as shown by the

prosecutor’s statements during the June 2012 transfer hearing, before Moore was

decided, the prosecutor believed it was necessary only to file—but not resolve—

the transfer motion before the defendant turned 18. Moore held otherwise, and we

are bound by that ruling.




                                          5
      We hold that the State failed to prove that it was not practicable to proceed

before Morrison’s 18th birthday for a reason beyond the State’s control and that

the juvenile court erred in transferring the case. Accordingly, we must vacate the

juvenile court’s order and dismiss the case.

                                   Background

      On August 26, 2010, the complainant, seventeen-year-old Kristian Sullivan,

who was a member of the gang “Forever About Bread,” was shot and killed

outside his home in a gang-related shooting. No weapons were found at the scene,

and no eye-witnesses came forward. Two different brands of casings were found,

but they were of the same caliber. The police suspected, but were not sure, that

there were two gunmen. At the time of Sullivan’s murder, Morrison was sixteen

years and five months old.

      Before Sullivan’s death, there had been “numerous, numerous crimes,

shooting, fights, that were going on” between feuding gang members. While police

were still on the scene of Sullivan’s murder, another shooting occurred at the home

of a rival “100 Clikk” gang member. The shooting appeared to be in retaliation for

Sullivan’s murder.

      The lack of evidence and the reticence of gang members to speak with the

police made the investigation difficult. Sullivan, known as “K-Su,” was “very

involved” in the leadership of FAB. Sullivan’s residence was typically where FAB


                                          6
gang members would “hang out.” Sullivan’s friends were not cooperative with the

police; there was testimony that “traditionally gang members don’t just come to

police with information.” Police had multiple names, but researching those names,

and generating and corroborating information, took substantial time. Missouri City

Police Sgt. K. Tullos testified that any member of 100 Clikk “would be a possible

suspect at the time.” Around the time of Sullivan’s murder, 100 Clikk had about

300 members.

      Morrison’s name was first mentioned on December 6, 2010 by a senior

member of 100 Clikk, Michael Wilbourn, who was then in federal custody for

aggravated robbery. Wilbourn identified “Tony T” as a person who wanted to sell

him “a gun used to kill ole boy.” Missouri City Police Lt. R. Terry testified that

Wilbourn did not implicate himself in the murder and was not credible. At that

point, there was nothing to corroborate Wilbourn’s statement, but Lt. Terry “still

[had] to follow up on his statement just to verify.”

      Lt. Terry testified that he learned that Tony T’s real name was Antonnyer

Morrison. Morrison was a student at Marshall High School, and he lived just

outside Missouri City. Lt. Terry went to Morrison’s address, but he found a vacant

house. Lt. Terry later learned that Morrison was in juvenile detention in Fort Bend

County, but he did not speak with Morrison. Lt. Terry then learned that Morrison

had been released from juvenile detention on December 8, 2010. Lt. Terry


                                          7
admitted that he did not attempt to locate Morrison, in part, because he did not

believe he could get information about a juvenile on probation.

      Lt. Terry testified that, as of December 7, 2010, he did not have an identified

suspect. Rather, he had street names for multiple individuals, nothing to

corroborate their involvement, and a lack of cooperation from their associates. Lt.

Terry looked to the Special Crimes Unit, who were “more involved in dealing with

gang members and street activity” and who were talking to gang members during

“gang sweeps.”

      From December 2010 to June 2011, the SCU worked to document gang

members and generate leads in Sullivan’s murder. The SCU was “busy”—over 100

gang members were documented and entered into the DPS database during this

time, and a lot of information was coming in.

      On June 3, 2011, Lt. Terry was promoted, and the Missouri City Police

Chief turned the investigation over to SCU Sgt. R. Ramirez. Around that same

time, Sgt. Ramirez spoke to 100 Clikk member Darius Pye, “a respected high

ranking gang member,” who implicated a fellow gang member, Sterlyn Edwards,

in the murder. Pye said that he was in a car driven by Edwards, who was talking on

the phone to a rival FAB gang member. According to Pye, Edwards told the rival

gang member, “I’ll bang, bang you like I bang, bang K-Su.” This was the first

break in the case, but the information still needed to be corroborated.


                                          8
      Sgt. Ramirez testified that on August 18, 2011, he met with Donald Reed, a

member of 100 Clikk, who said that Darius Downer, another member of 100 Clikk,

told him that Edwards had shot Sullivan. Sgt. Ramirez spoke with Downer, who

said that Edwards had tried to sell him a gun after Sullivan’s murder. Downer was

the second 100 Clikk member to implicate Edwards, a fellow 100 Clikk member,

and Sgt. Ramirez thought this information was credible.

      Sgt. Ramirez learned that a week before Sullivan’s murder, someone named

“Rene” was shot at Downer’s house by FAB gang members. Sgt. Ramirez met

with Rene, who was still recovering from his gunshot wound. Rene said that he

was not a gang member but that he liked to play basketball with 100 Clikk

members and that one of his best friends was Morrison. This information that one

of Morrison’s best friends had been shot by FAB gang members provided the

officers with a possible motive for Sullivan’s murder.

      Sgt. Ramirez testified that on August 23, 2011, he went to speak with

Wilbourn. Since his December 2010 interview, Wilbourn had been convicted of

bank robbery and was currently serving a 15-year prison sentence. Wilbourn

implicated 100 Clikk in Sullivan’s murder. Wilbourn told Sgt. Ramirez that

Edwards had implicated himself in the murder of Sullivan and that Morrison had

tried to sell him a gun. Wilbourn said that Edwards and Morrison had “borrowed a

Ford Taurus from some girls” and that they drove that car to commit the murder.


                                         9
      The next week, Sgt. Ramirez interviewed FAB gang member Allen

Henderson. Henderson said that, during a “heated phone conversation” with

Edwards, Edwards threatened to “bang, bang” him “just like he bang, bang K-Su.”

Sgt. Ramirez testified that this matched the conversation that Pye told him in June

that he had overheard. Henderson gave no information about Morrison.

      On October 11, 2011, Sgt. Ramirez interviewed Edwards for the first time.

During the interview, Edwards implicated himself and two other gang member—

Morrison and Joshua Patterson—in Sullivan’s murder. Edwards said that he had

become friendly with Sullivan, even though they were rival gang members.

Edwards arranged for Patterson and Morrison to buy marijuana from Sullivan.

According to Sgt. Ramirez, Edwards said that Morrison, Patterson, and he were

hanging out with two girls, Samone Williams and Kandice Hall, and that after

Edwards set up the marijuana deal, Hall drove Patterson and Morrison to

Sullivan’s house, where they committed the murder. Sgt. Ramirez testified that this

was the first time that he actually considered Morrison to be a suspect in Sullivan’s

murder.

      On October 14, 2011, Sgt. Ramirez spoke with Samone Williams. Williams

stated that she used to own a tan or pewter Ford Taurus, which matched the

description provided by Wilbourn in the August 2011 interview. On the night that

Sullivan was killed, Williams was hanging out at Morrison’s house with Morrison,


                                         10
Patterson, and Hall, among others. Williams said that Hall, Patterson, and

Morrison left the house in her car but that she knew something was going on so she

stayed back and went to her boyfriend’s house down the street. When Hall,

Patterson, and Morrison returned, Edwards was with them. Later that night,

Williams and Hall dropped off Morrison, then they dropped off Edwards, and

finally they dropped off Patterson. When they arrived at Patterson’s house,

Patterson put a gun in the hood of the car, and Hall told Williams that the gun was

used to “kill that boy.”

      On October 15, 2011, Sgt. Ramirez interviewed Kandice Hall, who

corroborated Williams’s statement. Hall said that, on the night of the shooting, they

were at Morrison’s house, and Morrison and the other gang members were talking

about something in gang language or jail code, which she did not understand. Hall

went on the marijuana run with the three men, with Patterson driving the car and

Edwards and Morrison riding as passengers. When they arrived at Sullivan’s house

to buy the marijuana, Edwards and Morrison got out of the car. Then she heard

several gunshots, and Edwards and Morrison came running back to the car.

Edwards told them to “go, go, go” and indicated that he had shot someone.

      Sgt. Ramirez considered the information given by Williams and Hall

credible. However, neither of them saw Morrison shoot Sullivan or saw him hold a




                                         11
gun. The use of two different brands of ammunition to shoot Sullivan indicated

there may have been two shooters.

      After speaking with Williams and Hall, Sgt. Ramirez believed all three men

were involved in the murder, at least as parties to the offense. But Sgt. Ramirez did

not believe the police were ready to request warrants for arrests. He testified that

he still needed to speak with Patterson, who he believed acted as the getaway

driver.

      On October 25, 2011, Sgt. Ramirez met with Patterson at the police

department. Patterson gave a statement that corroborated the statements of

Williams and Hall. Two Fort Bend County Assistant District Attorneys were

present when Patterson gave his statement. Patterson admitted to driving the car to

buy some marijuana and to concealing a gun in the car’s battery compartment after

Edwards handed him the gun following the shooting. Patterson stated that, when

they arrived at their destination, Edwards and Morrison got out of the car, shots

were fired, and then Edwards and Morrison came running back. Edwards told

Patterson to “go, go, go” while Morrison “was just real quiet and mellow.”

Patterson’s statements were consistent with there being two shooters.

      That same day, Sgt. Ramirez obtained an arrest warrant for Patterson.

Sgt. Ramirez explained that because both Edwards and Morrison were already

imprisoned, he was not concerned with getting warrants for their arrest in this case.


                                         12
Patterson was the only person who participated in the murder and had access to

potentially hurt the girls. Also, at that point, Sgt. Ramirez was concerned that he

had no physical evidence to corroborate Morrison’s involvement. Sgt. Ramirez

was waiting on laboratory results regarding DNA testing on the shell casings and

firearms examinations. Sgt. Ramirez did not request that the evidence be analyzed

on an expedited basis, and there is no evidence that anyone else did either. Sgt.

Ramirez admitted that he did not see the need to rush the examination. At this time,

Ramirez did not know that a timeline existed to prosecute Morrison based on his

status as a juvenile.

      On October 26, 2011, officers located Williams’s Taurus that 4 witnesses—

Wilbourn, Williams, Hall, and Patterson—said was used in the murder. The Taurus

had been repossessed and resold, but it was recovered and processed for blood

evidence and anything related to the murder. Nothing was found in the Taurus.

      On October 31, 2011, five months before Morrison’s 18th birthday,

Sgt. Ramirez sent the whole case to the District Attorney’s Office and included a

request for Morrison’s arrest.

      On November 3, the firearms examiner, Jennifer Turner, began a firearms

analysis of the casings evidence. The next day, Turner completed her analysis and

reached a preliminary opinion that two guns had been used in the murder. A

required “technical review” of Turner’s preliminary opinion was completed on


                                        13
November 17, 2011. At that point, Turner could have released the verbal results.

Sgt. Ramirez was unaware that the firearms testing was completed and that he

could obtain an oral report of the results.

      On January 27, Turner’s report underwent a required final, “administrative

review” for “grammatical errors and completeness.” That same day, Sgt. Ramirez

received a verbal confirmation from the firearms lab that two guns were used in the

murder. Sgt. Ramirez testified that this was the first physical evidence to indicate

that there were two shooters. Sgt. Ramirez then obtained a directive to apprehend

Morrison. See TEX. FAM. CODE § 52.015(a) (“On the request of a law-enforcement

or probation officer, a juvenile court may issue a directive to apprehend a child if

the court finds there is probable cause to take the child into custody under the

provisions of this title.”). Three days later, and two months before Morrison’s 18th

birthday, the directive to apprehend was executed, and Morrison was taken to Fort

Bend County Juvenile Detention. The next day, the juvenile court held an initial

detention hearing and made a finding of probable cause.

      On February 13, 2012, six weeks before Murray’s 18th birthday, the State

filed its petition for a discretionary transfer to criminal district court under Section

54.02 of the Family Code.

      On February 22, 2012, the juvenile court ordered a psychological evaluation

of Morrison. See id. § 54.02(d) (“Prior to the hearing [on the petition for transfer],


                                              14
the juvenile court shall order and obtain a complete diagnostic study, social

evaluation, and full investigation of the child, his circumstances, and the

circumstances of the alleged offense.”). The juvenile court appointed Dr. Karen

Gollaher to conduct the evaluation, but information she needed for her evaluation

was not sent to her by the Fort Bend County Juvenile Probation Department for

more than a month.

       Due to Morrison’s impending 18th birthday, on March 26, 2012, the State

requested and the juvenile court signed an order that Morrison be transferred from

Fort Bend County Juvenile Detention to Fort Bend County Jail, as the former does

not house adults. The next day, the Probation Department’s Psychology Division

forwarded Gollaher the information she needed for her psychological evaluation.

       On March 30, 2012, Morrison turned 18.

       On April 5, 2012, Dr. Gollaher performed her psychological evaluation of

Morrison. She completed her report later that month, and the juvenile court

released the report to all parties.

       On June 8, 2012, Morrison’s assigned juvenile probation officer, Heather

Boswell, completed her social home study report, which could not be completed

before receipt of the psychological evaluation.

       On June 12, 2012, the juvenile court held a hearing on the State’s petition to

transfer. The prosecutor described the hearing as “a traditional discretionary


                                         15
transfer hearing.” The prosecutor observed that Morrison had turned 18 on March

30 but the State filed its petition for discretionary transfer when Morrison was 17

years old. The prosecutor argued (without knowledge of what the later Moore v.

State opinion would hold) that the juvenile court’s decision whether to transfer the

case was governed by Section 54.02(a), not Section 54.02(j), because Section

54.02(j) only applies when the State files its petition to transfer after the

defendant’s 18th birthday. See Morrison, 503 S.W.3d at 728 (citing Moore and

explaining that Section 54.02(j) applies when transfer occurs after defendants turns

18). According to the prosecutor, because the petition was filed “well before”

Morrison’s 18th birthday, Section 54.02(j) was “never triggered.”

      On June 13, 2012, the juvenile court granted the State’s petition, waived its

jurisdiction, and transferred the case to the criminal district court. The case

proceeded to trial by jury in criminal district court. The jury found Morrison guilty

of Sullivan’s murder, and the criminal district court sentenced him to 45 years’

confinement.

      Morrison appealed, and the case was assigned to our sister court, which

vacated the criminal district court’s judgment and remanded the case to the

juvenile court, holding that the juvenile court did not make the requisite statutory

findings to waive its jurisdiction and transfer the case. Id. at 725, 728. Our sister

court held that, because the juvenile court heard and ruled on the State’s petition


                                         16
for discretionary transfer after Morrison had turned 18, the State was required to

prove, and the juvenile court was required to find, that the factors under Section

54.02(j) had been satisfied. Id. at 727–28. And because the State and juvenile court

failed to do so, transfer was improper. Id. at 728. The State filed a petition for

discretionary review, which the Court of Criminal Appeals denied, and the case

was remanded to the juvenile court.

      On December 12, 2017, the State filed a second amended petition for

discretionary transfer. Shortly thereafter, the juvenile court signed and entered an

order that waived its jurisdiction over Morrison and transferred the case to criminal

district court under Section 54.02(j). In its order, the juvenile court found that, for

reasons beyond the State’s control, it was not practicable to proceed in juvenile

court before Morrison’s 18th birthday. Morrison appeals.

                     Juvenile Court’s Waiver of Jurisdiction

      Morrison argues that the juvenile court erred in waiving its jurisdiction and

transferring the case to criminal district court because the State failed to show that,

for a reason beyond its control, it was not practicable to proceed in juvenile court

before Morrison’s 18th birthday.

A.    Standard of review and applicable law

      We review a juvenile court’s decision to transfer a case to a criminal district

court for an abuse of discretion. Moore v. State, 446 S.W.3d 47, 50 (Tex. App.—


                                          17
Houston [1st Dist.] 2014), aff’d, 532 S.W.3d 400 (Tex. Crim. App. 2017). In

applying this standard, we defer to the juvenile court’s factual determinations

while reviewing its legal determinations de novo. Id.

      A juvenile court has exclusive original jurisdiction over all proceedings

involving a person who has engaged in delinquent conduct as a result of acts

committed before age 17. Id.; see TEX. FAM. CODE §§ 51.02(2), 51.04. Section

54.02 of the Family Code governs the waiver of a juvenile court’s exclusive

original jurisdiction and transfer to the appropriate criminal district court. TEX.

FAM. CODE § 54.02. Before conducting the transfer hearing, the juvenile court

must order and obtain a complete diagnostic study, social evaluation, and full

investigation of the minor, his circumstances, and the circumstances of the alleged

offense. Id. § 54.02(d); see In re D.L.N., 930 S.W.2d 253, 255 (Tex. App.—

Houston [14th Dist.] 1996, no pet.). The hearing’s purpose is not to determine guilt

or innocence but to establish whether the best interests of the minor and society are

furthered by maintaining jurisdiction in the juvenile court or by transferring the

minor to district court for adult proceedings. In re D.L.N., 930 S.W.2d at 255. The

juvenile court then determines whether there is probable cause to believe that the

minor committed the offense alleged, and whether, because of the seriousness of

the offense or the minor’s background, the welfare of the community requires

criminal proceedings. Id.


                                         18
      When a juvenile turns 18, a juvenile court does not lose jurisdiction, but its

jurisdiction becomes limited. Moore, 532 S.W.3d at 404–05. The juvenile court

retains limited jurisdiction to either transfer the case to an appropriate court or

dismiss the case. Id. Under the statutory scheme then in effect, which we are bound

to apply here, these were the only two choices available to the juvenile court when

it heard the State’s petition 10 weeks after Morrison’s 18th birthday: dismiss the

case or conclude that the State proved that it was not practicable for the State to

proceed—that is, to have obtained a ruling on its petition to transfer—before

Morrison’s birthday. The statutory limitations were intended “to limit the

prosecution of an adult for an act he committed as a juvenile if his case could

reasonably have been dealt with when he was still a juvenile.” Id. at 405.

      Under that statutory scheme, the juvenile court could transfer a case after a

juvenile turned 18 only if the State satisfied the requirements listed in Section

54.02(j) of the Family Code. TEX. FAM. CODE § 54.02(j). Under Section

54.02(j)(4)(A), the juvenile court could transfer the case to criminal district court

if, in addition to the other statutory requirements, the State proved by a

preponderance of the evidence that “for a reason beyond the control of the state it

was not practicable to proceed in juvenile court before the [defendant’s] 18th




                                         19
birthday.”3 Id. § 54.02(j)(4)(A); see Moore, 446 S.W.3d at 51 (burden is on State to

show that proceeding in juvenile court was not practicable).

      Because the statute did not define “practicable,” we construe the term

according to its plain meaning as commonly understood at the time of enactment.

Thompson v. Tex. Dep’t of Licensing & Regulation, 455 S.W.3d 569, 570 (Tex.

2014) (per curiam). Thus, as used here, the term “practicable” means “that which

may be done, practiced, or accomplished; that which is performable, feasible,

possible.” Practicable, BLACK’S LAW DICTIONARY 1172 (6th ed. 1990).

B.    Whether the juvenile court abused its discretion in finding that the
      State satisfied its burden under Section 54.02(j)(4)(A)

      1.    August 26, 2010–October 25, 2011

      The State presented evidence that, for reasons beyond its control, Morrison

was not developed as a suspect until he was seventeen years and seven months old.

Although the murder occurred when Morrison was sixteen years and five months

old, numerous difficulties beyond the State’s control delayed developing Morrison

as a suspect. For example, there were no eye-witnesses and no physical evidence at

the crime scene. The principal witnesses, most of whom were gang members and

their associates, were generally reticent to speak with the police and often

uncooperative. The State contends that the lack of evidence and the reticence of

3
      The State argued and the juvenile court found that transfer was proper under
      subsection (A) of Section 54.02(j)(4); the State made no argument and the juvenile
      court made no finding based on subsection (B).
                                          20
gang members to talk to law enforcement are reasons beyond its control. We agree;

the State presented sufficient evidence for the juvenile court to find by a

preponderance of the evidence that the investigative delay in developing Morrison

as a suspect was caused by reasons beyond the State’s control.

       However, once the police not only identified Morrison as a suspect but also

determined that there was sufficient evidence to arrest him, there were additional

delays in both the investigation and the prosecution. The State failed to present

evidence showing that these delays were beyond its control so that it was not

practicable—i.e., feasible—to proceed to certification until after Morrison turned

18 on March 30, 2012.

       2.       October 26, 2011–January 30, 2012

       There was a delay in the issuance and execution of the directive to

apprehend Morrison. The juvenile court’s factual findings do not address the cause

of this delay. Nor did the State present any evidence to satisfy its burden to show

that this delay was for reasons beyond its control. To the contrary, the testimony of

the State’s own witnesses showed that this delay was caused by the State and that it

would have been practicable to issue and execute the directive to apprehend at an

earlier date.

       Sgt. Ramirez provided the District Attorney’s Office with a police report

requesting a warrant for Morrison’s arrest on October 31, 2011—five months


                                         21
before Morrison’s birthday. But Sgt. Ramirez did not sign a probable cause

affidavit for a directive to apprehend until January 27, 2012, when he received the

results of the firearms analysis confirming that two different guns were used in the

murder.

      The State had the burden to explain this delay. The only explanation the

State offered was Sgt. Ramirez’s testimony that the firearms’ analysis was the first

physical evidence to indicate that there were two shooters and that, before

receiving the results of the firearms analysis, he did not believe he had probable

cause to arrest Morrison in the absence of any eye-witness who had seen Morrison

with a gun.4

      As factfinder, the juvenile court could have accepted Sgt. Ramirez’s

explanation—despite his police report requesting Morrison’s arrest on October 31.

But that explanation does not show that the delay in arresting Morrison was for a

reason beyond the State’s control or that it would not have been practicable to

arrest him earlier than January 30. Ramirez did not ask for the firearms analysis to

be expedited, nor did he follow-up to obtain an oral report on the results. The

firearms examiner, Jennifer Turner, testified that she could have verbally released

the results of the analysis as early as November 17—over four months before

Morrison’s 18th birthday and over two months before Morrison’s arrest. Turner


4
      The only suspect who had been observed with a gun was Edwards.
                                        22
completed her analysis on November 4, and her department completed a “technical

review” of her report on November 17. Later, on January 27, her report underwent

a limited “administrative review” for “grammatical errors and completeness”

before its official release. The State did not offer evidence that anything prevented

Turner from releasing the results after the technical review; on this record, the

investigators and prosecutors simply failed to request that she do so. Nor did the

State offer any evidence that the prosecutors requested an expedited firearms

analysis. And there is no evidence that the investigators or prosecutors requested

that the results of the analysis be orally released after the technical review.

      In sum, the uncontradicted evidence shows that the State could have

prepared the probable cause affidavit as early as November 17. The delay in

waiting until January 27 to arrest Morrison and begin taking the necessary steps for

the transfer hearing was not beyond the State’s control.

      3.     January 31, 2012–March 30, 2012

      Once Morrison was arrested, the State needed to take the steps necessary for

a transfer hearing, including completing a diagnostic study, social evaluation, and

investigation of Morrison’s background. See TEX. FAM. CODE § 54.02(d). Even

with the delays during the final stages of the criminal investigation, the State still

had two months to complete these tasks after Morrison was arrested but before he




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turned 18 on March 30. But the State did not set the transfer hearing until June

12—over two months after Morrison’s birthday.

      The State had the burden of proving that, for a reason beyond its control, it

was not practicable to proceed in juvenile court after Morrison’s arrest and before

March 30. The State failed to meet this burden. The State offered no evidence that

it attempted to complete the necessary steps during the two months before

Morrison’s birthday. Nor did it offer any evidence to explain the delay during this

time. Morrison was apprehended on January 30; the juvenile court held an initial

detention hearing on February 1; and the State filed its petition for discretionary

transfer on February 13—roughly six weeks before Morrison’s 18th birthday. After

the State filed its petition, it did not request or otherwise attempt to expedite the

diagnostic study, social evaluation, or investigation of Morrison’s background.

Kyle Dobbs, head of the Fort Bend County Juvenile Probation Department, said

the social home study report is “not a long process typically” and “not hard to

complete” once you have the required information. Dr. Gollaher completed her

psychological evaluation and report in about a month once the information was

provided to her. At the June 12 transfer hearing, the prosecutor did not show—or

even argue—that the requirements of Section 54.02(j)(4) had been satisfied.

Instead, the prosecutor argued that the State was not required to satisfy that

section’s requirements because the petition had been filed before Morrison’s 18th


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birthday. The prosecutor’s mistaken belief that the State was not required to satisfy

the requirements of Section 54.02(j) indicates that the State did not proceed to

certification before Morrison’s 18th birthday because the prosecutors did not think

they had to do so.

      The State failed to prove by a preponderance of the evidence that for reasons

beyond its control it was not practicable—i.e., feasible—to proceed in juvenile

court on this case before Morrison’s 18th birthday. See Moore, 446 S.W.3d at 52

(holding that investigative delay caused by detective’s large caseload and mistake

as to defendant’s age were not reasons beyond State’s control when offense was

promptly reported, defendant was identified as perpetrator well short of his 17th

birthday, and correct birthdate was evident in other police records, and, therefore,

dismissing aggravated-sexual-assault charge); Webb v. State, No. 08-00-00161-CR,

2001 WL 1326894, at *6–7 (Tex. App.—El Paso, Oct. 25, 2001, pet. ref’d) (mem.

op., not designated for publication) (holding that State’s failure to notify juvenile

court of defendant’s upcoming 18th birthday was not reason for delay beyond

State’s control and therefore dismissing murder charge). The State presented, and

the juvenile court made findings based on, a chronology of events, but the State

failed to explain the cause of delays for a number of those events. We sustain

Morrison’s single issue.




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                                   Conclusion

      Because the State did not meet its burden of proof under Section 54.02, the

juvenile court had only one option: to dismiss the case. See Moore, 532 S.W.3d at

405 (holding that State’s failure to meet burden left juvenile court with no option

other than to dismiss case). The statute’s amendment reduces the risk that this

scenario will recur. But under binding precedent and the earlier version of the

statute applicable here, we must vacate the juvenile court’s order and dismiss the

case for lack of jurisdiction.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Higley, Brown, and Caughey.




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