             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-19-00323-CV
      ___________________________

        IN THE MATTER OF K.W.



  On Appeal from the 415th District Court
         Parker County, Texas
       Trial Court No. JV19-0052


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                            MEMORANDUM OPINION

                                     I. Introduction

       Appellant K.W., who was ten days shy of turning eighteen at the time of the

hearing from which this appeal arises, contends that the juvenile court1 abused its

discretion by waiving its jurisdiction and ordering him transferred to “the appropriate

criminal district court” to be prosecuted as an adult for four offenses—three counts

of aggravated sexual assault of a child and one count of indecency with a child by

contact—that he allegedly committed when he was fourteen and fifteen. See generally

Tex. Fam. Code Ann. § 54.02. Under the statute governing waivers of jurisdiction

and discretionary transfers, a juvenile court may transfer a child to the appropriate

district court or criminal district court for criminal proceedings if the child was at least

14 years of age at the time he is alleged to have committed a first-degree felony or at

least 15 years of age at the time he is alleged to have committed a second-degree

felony. See id. § 54.02(a). In four points, Appellant challenges the legal and factual

sufficiency of the evidence to support the findings that he was statutorily eligible by

minimum age to be tried as an adult for each of his four offenses. Because the record

contains legally and factually sufficient evidence from which the juvenile court could

have calculated Appellant’s age on the dates alleged for the four offenses and could




       The “Petition Alleging Delinquent Conduct” states that the 415th District
       1

Court of Parker County was sitting as a juvenile court.

                                             2
have determined that Appellant met the statutory minimum age to be tried as an adult

for all four offenses, we affirm the juvenile court’s waiver and transfer order.

                                   II. Background2

      At the outset of the hearing on the State’s petition for discretionary transfer,

the State offered two exhibits: Appellant’s psychological evaluation and the “Case

History” prepared by assistant chief juvenile probation officer Scott Gieger. The

psychological evaluation states that in June 2019, during the administration of a

polygraph examination, Appellant “admitted to having sexually abused [a relative]

since age 12, when she was age 9.” The case history specifically states that Appellant

was born in August 2001 and that the relative was born in January 2004. The case

history also contains a notice of unsuccessful discharge from the Parker County

Juvenile Offender Treatment Program.            The discharge notice states that “[i]n

preparation for a sexual history polygraph in April 2019, [Appellant] disclosed that he

had sexually abused [a relative], who is approximately 22[ ]months younger . . . when

she was aged nine to 12.” The discharge notice also states that during the sexual-

history polygraph in June 2019, Appellant stated that he had sexually abused a relative

until she was 12 but that he had continued to expose himself to her after that in an

attempt to get her to go along with sexual contact.



      2
       Because Appellant challenges only the sufficiency of the evidence regarding his
age at the time of the four offenses, we focus the background section on evidence
regarding his age.

                                            3
      One witness testified during the hearing.      Tara Ross, who serves as the

therapist for juveniles in the Parker County Juvenile Probation Department and who

had prepared the notice of unsuccessful discharge that is summarized above, testified

that Appellant was adjudicated in 2018 for “a sexting offense.” As a component of

his plea agreement in that case, Appellant was placed in the sex-offender treatment

program. While Appellant was in sex-offender counseling, Ross learned about the

circumstances surrounding the four offenses that Appellant is charged with in this

case.3 Appellant told Ross that he began sexually abusing a relative “when she was

around 9 and ended around when she was 12.” Ross believed that Appellant was

approximately twenty-two months older than the relative. Based on that belief, Ross

calculated that Appellant was “around 11 to 14” when he abused his relative. Ross

testified that Appellant showed a level of sophistication and maturity commensurate

with a “normal 17-year-old.”

      At the conclusion of the hearing, the juvenile court granted the State’s petition

for discretionary transfer. The waiver and transfer order includes the following

findings:

      After careful consideration of all the evidence presented, the Court finds
      the following:


      3
       While preparing for the sexual-history polygraph, Appellant disclosed new
offenses of sexually abusing the same relative mentioned above; he committed those
offenses while he was on probation. At the time of the hearing, Appellant was
incarcerated for the indecent-exposure offense that he had committed while on
probation at age seventeen.

                                          4
       1.     [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated
Sexual Assault of a Child, in violation of Section []22.021 of the Texas
Penal Code, in that the said [Appellant], on or about May 1, 2016, in
Parker County, Texas, did then and there intentionally and knowingly
cause the penetration of the mouth of JaneDoe201902144,[4] a child who
was then and there younger than 14 years of age, by the said
[Appellant’s] sexual organ.

       2.    [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated
Sexual Assault of a Child, in violation of Section []22.021 of the Texas
Penal Code, in that the said [Appellant], on or about May 1, 2016, in
Parker County, Texas, did then and there intentionally and knowingly
cause the sexual organ of JaneDoe201902144, a child who was then and
there younger than 14 years of age, to contact the sexual organ of the
said [Appellant].

       3.    [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a first[-]degree felony, to-wit: Aggravated
Sexual Assault of a Child, in violation of Section []22.021 of the Texas
Penal Code, in that the said [Appellant], on or about September 15,
2016, in Parker County, Texas, did then and there intentionally and
knowingly cause the anus of JaneDoe201902144, a child who was then
and there younger than 14 years of age, to contact the sexual organ of
the said [Appellant].

       4.    [Appellant] is alleged to have violated a penal law of the
State of Texas of the grade of a second[-]degree felony, to-wit:
Indecency with a Child by Sexual Contact, in violation of Section []21.11
of the Texas Penal Code, in that the said [Appellant], on or about
December 1, 2016, in Parker County, Texas, did then and there, with the
intent to arouse or gratify the sexual desire of the said [Appellant],
engage in sexual contact with JaneDoe201902144, hereafter styled the
complainant, by touching the genitals of the complainant, a child
younger than 17 years of age.




The juvenile court referred to the victim using this pseudonym.
4



                                    5
             5.   [Appellant] is a male child who was born August [XX],[5]
      2001, and who is seventeen (17) years of age at the present time . . . .

             6.    [Appellant] was fourteen (14) years of age at the time of the
      alleged offense[s] on May 1, 2016. [Appellant] was fifteen (15) years of
      age at the time of the alleged offense on September 15, 2016.
      [Appellant] was fifteen (15) years of age at the time of the alleged offense
      on December 1, 2016. . . .

             ....

             13. The Court considered the sophistication and maturity of
      the child and finds that [Appellant] is sophisticated and mature under the
      Code.

              14. The Court considered the record and previous history of
      the child and the prospects of adequate protection of the public and the
      likelihood of rehabilitation of the child by use of procedures, services[,]
      and facilities currently available to the juvenile court and the Court finds
      that the procedures, services, and facilities currently available to the
      juvenile court will not likely rehabilitate [Appellant].

             15. A full investigation and hearing of the child, his
      circumstances and the circumstances of the offense(s) was conducted by
      this Court[,] and the Court finds that there is probable cause to believe
      that the child committed the offense(s) as alleged.

             16. The Court has considered the seriousness of the offense(s)
      and the background of the child and finds that because of the
      seriousness of the offense(s), the welfare of the community requires that
      criminal proceedings proceed in criminal court concerning the
      aforementioned felony offense(s) and all criminal conduct occurring in
      said criminal episode(s).




      We omit the day of Appellant’s birth to protect his identity. See generally Tex.
      5

R. App. P. 9.9(a)(3).

                                           6
        III. Sufficient Evidence Supports the Juvenile Court’s Findings
                              on Appellant’s Age

      Each of Appellant’s four points challenges the evidence supporting the

minimum-age requirement for the four offenses to be transferred to district court.

We address all four points together as Appellant did in the analysis in his brief.

      A. Standards for Waiver of Juvenile Jurisdiction

      As briefly mentioned above in the introduction, a juvenile court may waive its

exclusive original jurisdiction and transfer a child who is 10 years of age or older and

under 17 to the appropriate district court or criminal district court for criminal

proceedings if the following statutory requirements are met:

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

      (2) the child was:

            (A) 14 years of age or older at the time he is alleged to have
      committed the offense, if the offense is . . . a felony of the first degree,
      and no adjudication hearing has been conducted concerning that
      offense; or

            (B) 15 years of age or older at the time the child is alleged to have
      committed the offense, if the offense is a felony of the second or third
      degree or a state jail felony, and no adjudication hearing has been
      conducted concerning that offense; and

      (3) after a full investigation and a hearing, the juvenile court determines
      that there is probable cause to believe that the child before the court
      committed the offense alleged and that because of the seriousness of the
      offense alleged or the background of the child the welfare of the
      community requires criminal proceedings.




                                            7
Id. § 54.02(a); see id. § 51.02(2) (defining “child” as “a person who is . . . ten years of

age or older and under 17 years of age”). The State has the burden to persuade the

juvenile court by a preponderance of the evidence that “the welfare of the community

requires transfer of jurisdiction for criminal proceedings, either because of the

seriousness of the offense or the background of the child (or both).” In re P.A.B.,

No. 14-18-00290-CV, 2018 WL 4354679, at *6 (Tex. App.—Houston [14th Dist.]

Sept. 13, 2018, pet. denied) (mem. op.) (quoting Moon v. State, 451 S.W.3d 28, 40–41

(Tex. Crim. App. 2014)).

       In making the determination required by Section 54.02(a), the juvenile court

shall consider, among other matters, the following 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.

Tex. Fam. Code Ann. § 54.02(f). Any combination of these criteria may suffice to

support a waiver of jurisdiction; not every criterion need weigh in favor of transfer.

P.A.B., 2018 WL 4354679, at *7 (citing Moon, 451 S.W.3d at 47 & n.78). “The trial

court is bound only to consider these . . . factors in deciding whether to waive

jurisdiction. The court need not find that each factor is established by the evidence.”


                                            8
In re C.M.M., 503 S.W.3d 692, 701 (Tex. App.—Houston [14th Dist.] 2016, pet.

denied) (quoting In re D.L.N., 930 S.W.2d 253, 258 (Tex. App.—Houston [14th Dist.]

1996, no writ)).

      B. Standard of Review

      We have recently set out the standard of review to be applied when reviewing 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.” See Moon, 451 S.W.3d at 47. In this context,
      our sufficiency review is limited to the facts that the juvenile court
      expressly relied upon in its transfer order. Id. at 50.

             We then review the juvenile court’s ultimate waiver decision for
      an abuse of discretion. Id. at 47. 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. Id.
      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? Id. 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. Id.

In re T.L., No. 02-19-00200-CV, 2019 WL 4678565, at *3–4 (Tex. App.—Fort Worth

Sept. 26, 2019, no pet.) (mem. op.) (footnote omitted).




                                          9
        C. Analysis

        Here, Appellant does not challenge any of the Section 54.02(f) factors, nor

does he challenge the requirements in Section 54.02(a)(1) or (3). We therefore focus

on the only findings that Appellant disputes—the minimum-age-requirement findings

under Section 54.02(a)(2)(A) and (B).

        The case history admitted during the transfer hearing reflects that Appellant

was born in August 2001 and that his relative was born in January 2004. The

difference between their ages is 29 months, not 22 months as Ross estimated.

Moreover, using Appellant’s date of birth and the dates alleged for the four offenses,

we can calculate how old he was at the time each of the offenses was alleged to have

been committed:

Count       Offense alleged         Degree of         Date alleged      Appellant’s age
                                    offense                             at time of
                                                                        offense
Count 1     Aggravated sexual       First-degree      5/1/16            14
            assault of a child      felony
Count 2     Aggravated sexual       First-degree      5/1/16            14
            assault of a child      felony
Count 3     Aggravated sexual       First-degree      9/15/16           15
            assault of a child      felony
Count 4     Indecency with a        Second-degree     12/1/16           15
            child by contact        felony


        Under the governing statute set forth above, the juvenile court had discretion

to transfer Appellant to criminal district court if he was 14 years or older at the time

he was alleged to have committed a first-degree felony. See Tex. Fam. Code Ann.


                                          10
§ 54.02(a)(2)(A). As set forth in the chart above, Appellant met this criteria for the

first-degree felonies alleged in Counts 1, 2, and 3.

       Under the governing statute, the juvenile court had discretion to transfer

Appellant to criminal district court if he was 15 years or older at the time he was

alleged to have committed a second-degree felony. See id. § 54.02(a)(2)(B). As set

forth in the chart above, Appellant met this criteria for the second-degree felony

alleged in Count 4.

       Appellant, relying solely on Ross’s testimony that Appellant was 22 months

older than his relative, argues that “at his very oldest the Appellant was two months

younger than 14 years of age and 14 months younger than 15 years of age,” that

“[t]here is not more than a scintilla of evidence that Appellant had reached 14 years of

age,” and that “[t]here is zero evidence in this record that Appellant had reached 15

years of age[] as to the allegation in Count 4.”       But as explained above, Ross

miscalculated the age difference between Appellant and his relative by seven months.

The correct calculation shows that Appellant was 29 months older than his relative.

Even ignoring the offense dates alleged in the indictment, the trial court could have

relied on Ross’s testimony that Appellant had admitted that he had sexually abused his

relative from the time she was “around 9 and ended around when she was 12” and thus

calculated that Appellant would have been 14 when his relative was 11 years and 7

months and that he would have been 15 when she was 12 years and 7 months.

[Emphasis added.] These calculations, which rely on testimony regarding the victim’s

                                            11
approximate age range, also support the trial court’s findings that Appellant had met

the statutory minimum age for both the second-degree felony and the three first-

degree felony offenses.

      This court recently decided an opinion in which the minimum statutory age

was challenged under the subsection of Section 54.02 that deals with whether a

juvenile court may waive its jurisdiction and transfer a respondent who has turned 18

years old but was at least 14 years old on the date of the offense. See In re A.B.,

No. 02-18-00274-CV, 2019 WL 983751, at *1 (Tex. App.—Fort Worth Feb. 28, 2019,

no pet.) (mem. op.) (focusing on Section 54.02(j)(2)(B)). Because the age analysis in

that opinion is analogous to the age analysis we conduct here, we set forth the

pertinent portion of the opinion’s discussion of the appellant’s age:

      Despite the uncertainty surrounding [the appellant’s] age at the time of
      the alleged offense and the possibility that he was under 14, and despite
      [the victim’s] incomplete and contradictory recollections, the record
      contains some evidence . . . that the alleged incident occurred after
      August 2010 and therefore after [the appellant] turned 14. We hold that
      there is more than a scintilla of evidence supporting the trial court’s
      finding and thus that the evidence is legally sufficient.

             Although [the appellant] correctly asserts that the evidence is
      contradictory and inexact, the trial court as the factfinder was free to
      accept or reject any or all of any witness’s testimony. As the factfinder,
      the trial court was also free to reconcile any apparent inconsistencies in
      the testimony. . . .

             Moreover, the trial court was free to rely on [the detective’s]
      testimony that she was able to determine that the offense most likely
      happened around January 1, 2011[,] “[f]rom the outcries” and because
      [the victim] was “pretty sure it happened around 2011.” That 2011
      timeframe, coupled with [the detective’s] explanation that [the victim]

                                           12
       “remembered that she was on winter break from school,” provides some
       evidence that the offense likely occurred in the winter of 2011. Because
       [the appellant] turned 14 in the summer of 2010, the trial court’s finding
       is supported by sufficient evidence. Thus, we hold that the evidence was
       not so against the great weight and preponderance of the evidence as to
       be clearly wrong and unjust and was thus factually sufficient.

Id. at *6 (citations omitted).

       Appellant argues that A.B. is distinguishable because “there was at least

testimony in that case from a detective and the victim that provided more cover to the

age range.” Although the juvenile court here did not have testimony from a detective

or a victim, the juvenile court did have before it Appellant’s date of birth and the

alleged dates of the offenses, which constituted some evidence to support the juvenile

court’s findings regarding Appellant’s age on the alleged dates of the offenses.

Accordingly, we hold that there is more than a scintilla of evidence supporting the

juvenile court’s age findings for each of the four offenses and thus that the evidence is

legally sufficient. See id. (holding evidence legally sufficient to support juvenile court’s

finding regarding appellant’s age on the date of the alleged offense).

       Moreover, the juvenile court, as the factfinder, was free to reject any apparent

inconsistencies between Ross’s testimony about the age difference between Appellant

and the victim and the actual age difference as calculated based on the case history.

See id. at *3. Because the calculations based on Appellant’s birthdate show that he had

met the statutory minimum age for each of the four offenses, the juvenile court’s age

findings are supported by sufficient evidence. Thus, we hold that the evidence was


                                            13
not so against the great weight and preponderance of the evidence as to be clearly

wrong and unjust and was thus factually sufficient. See id. at *6 (holding evidence

factually sufficient to support juvenile court’s finding regarding appellant’s age on the

date of the alleged offense).

      Having concluded that the juvenile court’s age findings under Section

54.02(a)(2)(A) and (B) are supported by legally and factually sufficient evidence, we

overrule Appellant’s four points.6



      6
        Appellant’s sole basis for his contention that the juvenile court abused its
discretion is that the juvenile court’s age findings under Section 54.02(a)(2) for each of
the four offenses are not supported by legally and factually sufficient evidence.
Although Appellant’s brief does not include a separate argument challenging any of
the Section 54.02(f) factors on which the juvenile court based its waiver decision, for
the sake of completeness, we will consider whether the juvenile court acted without
reference to guiding rules or principles in waiving its jurisdiction. See Moon, 451
S.W.3d at 47; P.A.B., 2018 WL 4354679, at *10. The juvenile court’s waiver and
transfer order includes findings based on the Section 54.02(f) factors, as set forth
above. After reviewing the record, we conclude that there is sufficient evidence
supporting the Section 54.02(f) findings—all of the offenses were against a person,
not property; Appellant possessed a level of sophistication and maturity
commensurate with a “normal 17-year-old”; he had committed the offense of sexting
and then committed additional offenses while on probation and was currently
incarcerated for an offense committed while he was 17; and the procedures, services,
and facilities currently available to the juvenile court would not likely rehabilitate
Appellant. Such evidence weighs in favor of the juvenile court’s decision to transfer
Appellant’s four offenses to criminal court. Given the evidence in the record and the
juvenile court’s Section 54.02(f) findings, we cannot say that the juvenile court’s
decision was arbitrary or made without reference to guiding rules. Rather, the juvenile
court’s decision resulted from a principled application of legislative criteria. See Moon,
451 S.W.3d at 47. Accordingly, we hold that the juvenile court did not abuse its
discretion by waiving its jurisdiction and transferring Appellant’s four offenses. See
T.L., 2019 WL 4678565 at *10 (concluding that juvenile court’s decision to waive its
jurisdiction and transfer case was not an abuse of discretion).

                                           14
                                 IV. Conclusion

      Having overruled Appellant’s four points, we affirm the juvenile court’s waiver

and transfer order.

                                                    /s/ Dabney Bassel

                                                    Dabney Bassel
                                                    Justice

Delivered: January 9, 2020




                                        15
