Opinion issued February 20, 2020




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-18-01014-CR
                            ———————————
                  EX PARTE CAMERON MICHAEL MOON



                   On Appeal from the 182nd District Court
                            Harris County, Texas
                       Trial Court Case No. 1467534A



                                 OPINION

      On December 18, 2008, a juvenile court waived jurisdiction over sixteen-year

old Cameron Michael Moon and certified him to stand trial as an adult in criminal

district court for the charged offense of murder. After a jury convicted him and

assessed his punishment at thirty years’ imprisonment, Moon appealed. This Court

held that the juvenile court abused its discretion in waiving jurisdiction over Moon,
vacated the district court’s judgment, and dismissed the case. See Moon v. State,

410 S.W.3d 366, 378 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d 28

(Tex. Crim. App. 2014). On the State’s petition for discretionary review, the Court

of Criminal Appeals affirmed this Court’s judgment. See Moon v. State, 451 S.W.3d

28 (Tex. Crim. App. 2014).

      On remand, the juvenile court again waived jurisdiction over Moon, who was

then over the age of eighteen, and recertified him to stand trial as an adult. Moon

filed a motion to dismiss and an application for writ of habeas corpus in district

court, both of which the trial court denied.

      Moon now appeals the trial court’s denial of pretrial habeas corpus relief. In

eight points of error, he contends that (1) the State presented legally and factually

insufficient evidence to prove the elements required under section 54.02(j) of the

Family Code; (2) the juvenile court’s findings under section 54.02(j) were

insufficient to allow it to waive jurisdiction; (3) the criminal district court had

jurisdiction at the time it originally adjudicated the charged offense; (4) the State

introduced legally and factually insufficient evidence, and did not obtain the

necessary findings, to establish that reversal of the previous transfer order made it

impracticable for the State to proceed in juvenile court before Moon turned eighteen;

(5) the State introduced legally and factually insufficient evidence, and did not

obtain the necessary findings, to establish that it exercised due diligence; (6) the

                                          2
application of section 54.02(j) to recertify Moon deprived him of the process to

which he was originally due under section 54.02(a), (d), and (f) in violation of the

United States and Texas Constitutions; (7) the application of the standards for

certification under section 54.02(j) violated the ex post facto doctrine; and (8) the

recertification of Moon under section 54.02(j) violated the equal protection and

double jeopardy doctrines.

       We affirm the trial court’s denial of the pretrial writ of habeas corpus.

                                       Background

    A. Original Certification1

       On November 19, 2008, the State filed a petition in the 313th Juvenile Court

alleging that Moon engaged in delinquent conduct by committing murder. Moon

was sixteen years old at the time the State filed its petition. On the same date, the

State also filed a motion under sections 54.02(a) and (f) of the Family Code, asking

the juvenile court to waive its exclusive original jurisdiction and to transfer Moon to

criminal district court to be tried as an adult. The State alleged as grounds for the

transfer that because of the seriousness of the offense alleged, the welfare of the




1
       A detailed recitation of the factual and procedural background of this case through
       Moon’s original certification and subsequent conviction in the criminal district court
       can be found in the opinions of this Court and the Court of Criminal Appeals. See
       Moon v. State, 410 S.W.3d 366 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451
       S.W.3d 28 (Tex. Crim. App. 2014).
                                             3
community required waiver of juvenile jurisdiction. The juvenile court granted the

State’s request for a hearing on the motion.

      On December 17, 2008, the juvenile court held a certification hearing. At the

conclusion of the hearing, the juvenile court granted the State’s motion to waive

jurisdiction. On December 18, 2008, the juvenile court signed and entered a written

order waiving its jurisdiction and transferring the case to the 178th District Court.

The order waiving jurisdiction stated that the juvenile court had determined “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.” The order further stated that “[i]n making that

determination, the Court has considered among other matters:

      1. Whether the alleged OFFENSE WAS against person or property,
         with the greater weight in favor of waiver 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 reasonable rehabilitation of the child by use of procedures,
         services and facilities currently available to the Juvenile Court.

      The juvenile court also specifically found that (1) Moon “is of sufficient

sophistication and maturity to have intelligently, knowingly and voluntarily waived

all constitutional rights heretofore waived[,] . . . to have aided in the preparation of

                                           4
HIS defense and to be responsible for HIS conduct”; (2) that the offense alleged

“WAS against the person of another”; and that (3) “there is little, if any, prospect of

adequate protection of the public and likelihood of reasonable rehabilitation of”

Moon “by use of procedures, services, and facilities currently available to the

Juvenile Court.”

      Following his transfer to the criminal district court, Moon stood trial for the

first-degree felony charge of murder. On April 19, 2010, the jury convicted Moon

and assessed his punishment at thirty years’ imprisonment.

      On direct appeal, when Moon was twenty-one years old, this Court held that

the juvenile court abused its discretion in waiving jurisdiction and certifying Moon

to stand trial as an adult, vacated the district court’s judgment, and dismissed the

criminal proceedings. Moon, 410 S.W.3d at 378. On the State’s petition for

discretionary review, the Court of Criminal Appeals affirmed this Court’s judgment,

holding that the juvenile court, in an order waiving its original jurisdiction, must

state both the reasons for waiving its jurisdiction and expressly set out the findings

of fact that support those reasons. Moon, 451 S.W.3d at 50. Failure to do so may

result in a finding that there is insufficient evidence to support the juvenile court’s

waiver of jurisdiction. See id. at 51–52. The Court found that the only reason

specifically stated in the juvenile court’s order to justify the waiver of jurisdiction

was that the offense alleged was a serious one, and that the only fact specified in the

                                          5
written transfer order in support of the reason was that the offense that Moon was

alleged to have committed was an offense against the person of another. See id. at

50. The Court concluded that “a waiver of juvenile jurisdiction based on this

particular reason, fortified only by this fact, constitutes an abuse of discretion.” Id.

   B. Recertification

      Upon remand to the juvenile court, the State filed a second motion to waive

jurisdiction, this time pursuant to section 54.02(j) of the Family Code, which applies

to those who are eighteen years of age or older at the time of the certification hearing.

Moon filed a response to the State’s motion and a brief in support of his motion to

dismiss juvenile proceeding and opposition to the State’s motion to certify.

      On April 9, 2015, the juvenile court held a certification hearing. At the

hearing, Moon argued that the State could not prove the mandatory elements of

section 54.02(j) and that section 54.02(j) violated his constitutional rights to due

process and equal protection as well as the prohibition against double jeopardy.

Following a certification hearing, the juvenile court granted the State’s second

motion, recertified Moon, and denied Moon’s motion to dismiss. On May 7, 2015,

the juvenile court signed an order waiving jurisdiction and transferring the case to

the criminal district court. In its order, the juvenile court found that:

      (1) Moon is 18 years of age or older;




                                           6
      (2) Moon was 10 years of age or older and under 17 years of age at the
          time he is alleged to have committed an offense under Penal Code
          section 19.02;

      (3) that no adjudication concerning the offense has been made and no
          adjudication hearing concerning the offense has been conducted;

      (4) that by a preponderance of the evidence after due diligence of the
          State it was not practicable to proceed in juvenile court before
          Moon’s 18th birthday because a previous transfer order was
          reversed by an appellate court; and

      (5) that there is probable cause to believe that Moon committed the
         offense alleged.

The order also incorporated the State’s proposed findings of fact and conclusions of

law which “specifically state the reasons for this waiver and decision to transfer the

matter to criminal district court and are likewise certified by this Court.”

      On September 23, 2015, a grand jury indicted Moon for murder.2 On June 7,

2018, Moon filed an application for a pretrial writ of habeas corpus challenging the

constitutionality of Family Code section 54.02(j) and Code of Criminal Procedure

article 44.47. Following a hearing, the criminal district court entered an order on

October 24, 2018, denying Moon’s pretrial habeas application and adopting the

State’s proposed findings of fact and conclusions of law. Moon timely filed his

notice of appeal of the trial court’s denial of pretrial habeas corpus relief.




2
      On August 18, 2015, Moon filed a petition for writ of mandamus which was denied
      by this Court.
                                           7
                               Juvenile Certification

       Juvenile courts have exclusive original jurisdiction over cases involving

delinquent conduct by children between ten and seventeen years old. TEX. FAM.

CODE §§ 51.02(2)(A), 51.04(a). Delinquency proceedings against minors proceed

in juvenile court under the Juvenile Justice Code. See id. §§ 51.01–61.107. A

juvenile court may waive its exclusive original jurisdiction under certain conditions

and allow transfer of the proceeding to a district court for criminal prosecution. Id.

§ 54.02(a), (j).

       What the State must prove to obtain transfer depends on whether the minor

has reached the age of eighteen by the date of the transfer hearing. Under section

54.02(a), the juvenile court may waive jurisdiction over a child under the age of

eighteen if it finds:

       (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 capital felony, an
          aggravated controlled substance felony, or 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

                                          8
      (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.

Id. § 54.02(a). In determining whether the welfare of the community requires

criminal proceedings, the juvenile court “shall 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.

Id. § 54.02(f).

      The process for waiver is different if the defendant has passed his eighteenth

birthday. The juvenile court may waive jurisdiction when the person before the

juvenile court has reached the age of eighteen if it finds:

   (1) the person is 18 years of age or older;

   (2) the person was:

          (A) 10 years of age or older and under 17 years of age at the time
          the person is alleged to have committed a capital felony or an
          offense under Section 19.02, Penal Code;

          (B) 14 years of age or older and under 17 years of age at the time
          the person is alleged to have committed an aggravated controlled
                                           9
          substance felony or a felony of the first degree other than an
          offense under Section 19.02, Penal Code; or

          (C) 15 years of age or older and under 17 years of age at the time
          the person is alleged to have committed a felony of the second or
          third degree or a state jail felony;

   (3) no adjudication concerning the alleged offense has been made or no
       adjudication hearing concerning the offense has been conducted;

   (4) the juvenile court finds from a preponderance of the evidence that:

          (A) for a reason beyond the control of the state it was not practicable
          to proceed in juvenile court before the 18th birthday of the person;
          or

          (B) after due diligence of the state it was not practicable to proceed
          in juvenile court before the 18th birthday of the person because:

                  (i) the state did not have probable cause to proceed in
                  juvenile court and new evidence has been found since the
                  18th birthday of the person;

                  (ii) the person could not be found; or

                  (iii) a previous transfer order was reversed by an appellate
                   court or set aside by a district court; and

   (5) the juvenile court determines that there is probable cause to believe that the
       child before the court committed the offense alleged.

Id. § 54.02(j).

      Before January 1, 1996, the Juvenile Justice Code provided for interlocutory

appeal from a juvenile court’s transfer order. Moon, 451 S.W.3d at 39. In 1995, the

Legislature amended the Juvenile Justice Code, striking a provision that permitted

interlocutory appeal of a transfer order, and revising the Code to allow appeal of a
                                           10
transfer order only in conjunction with the appeal of a conviction of the offense for

which the defendant was transferred. Id. In 2015, the Legislature again amended

the Juvenile Justice Code to reintroduce interlocutory appeal from a juvenile court’s

transfer order for orders issued on or after September 1, 2015. See Act of May 12,

2015, 84th Leg., R.S., ch. 74, § 3, 2015 Tex. Gen. Laws 1065, 1065. Because

Moon’s second transfer order was entered after January 1, 1996, but before

September 1, 2015, article 44.47 applies to him.

                    Juvenile Court’s Waiver of Jurisdiction

      In his first through fifth points of error, Moon challenges the sufficiency of

the evidence presented by the State, and its failure to obtain necessary findings, to

prove each of the elements under Family Code section 54.02(j) as well as the

sufficiency of the juvenile court’s findings on each element. Specifically, Moon

contends that:

      (1) the State presented legally and factually insufficient evidence to
          prove the elements required under section 54.02(j) of the Family
          Code;

      (2) the juvenile court’s findings under section 54.02(j) were
          insufficient to allow it to waive jurisdiction;

      (3) the criminal district court had jurisdiction at the time it originally
          adjudicated the charged offense;

      (4) the State introduced legally and factually insufficient evidence, and
          did not obtain the necessary findings, to establish that reversal of
          the previous transfer order made it impracticable for the State to
          proceed in juvenile court before Moon turned eighteen; and
                                         11
      (5) the State introduced legally and factually insufficient evidence, and
         did not obtain the necessary findings, to establish that it exercised
         due diligence.

      In response, the State argues that none of Moon’s first five points is cognizable

on pretrial writ of habeas corpus and that Moon is instead attempting to mount a

premature appeal and circumvent the statutory requirements of Code of Criminal

Procedure 44.47. The State further argues that, even if Moon could prematurely

attack the factual findings contained in the juvenile court’s transfer order, his

contentions fail on the merits.

   A. Pretrial Habeas

      “Pretrial habeas, followed by an interlocutory appeal, is an extraordinary

remedy.” Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). Thus,

“appellate courts have been careful to ensure that a pretrial writ is not misused to

secure pretrial appellate review of matters that in actual fact should not be put before

appellate courts at the pretrial stage.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim.

App. 2010) (quoting Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010));

Ex parte Estrada, 573 S.W.3d 884, 891 (Tex. App.—Houston [1st Dist.] 2019, no

pet.). “Neither a trial court nor an appellate court should entertain an application for

writ of habeas corpus when there is an adequate remedy by appeal.” Ex parte Weise,

55 S.W.3d 617, 619 (Tex. Crim. App. 2001); see also Ex parte Smith, 178 S.W.3d

797, 801 n.13 (Tex. Crim. App. 2005) (“[A] writ of habeas corpus cannot be used as
                                          12
a substitute for an appeal or to serve the office of an appeal.”). “Consequently,

whether a claim is even cognizable on pretrial habeas is a threshold issue that should

be addressed before the merits of the claim may be resolved.” Ex parte Ellis, 309

S.W.3d at 79.

      “A defendant may use a pretrial writ of habeas corpus only in very limited

circumstances.” Ex parte Smith, 178 S.W.3d at 801. “[A] pretrial writ application

is not appropriate when resolution of the question presented, even if resolved in favor

of the applicant, would not result in immediate release.” Ex parte Weise, 55 S.W.3d

at 619. The Court of Criminal Appeals has limited the use of pretrial habeas

applications to issues that would result in immediate release and “ha[s] held that an

applicant may use pretrial writs to assert his or her constitutional protections with

respect to double jeopardy and bail,” to challenge the facial constitutionality of the

statute under which he or she is prosecuted, or to allege that the offense charged is

barred by limitations. Id. at 619–621 (holding that as-applied constitutionality

challenge to illegal dumping statute was not cognizable via pretrial habeas

application); see also Ex parte Arango, 518 S.W.3d 916, 923–25 (Tex. App.—

Houston [1st Dist.] 2017, pet. ref’d) (reversing denial of pretrial habeas application

challenging order transferring juvenile defendant to criminal district court because

order did not vest that court with jurisdiction pursuant to holding in Moon). “Pretrial

habeas should be reserved for situations in which the protection of the applicant’s

                                          13
substantive rights or the conservation of judicial resources would be better served

by interlocutory review.” Ex parte Weise, 55 S.W.3d at 620.

      We review a trial court’s ruling on a pretrial writ of habeas corpus for an abuse

of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte

Arango, 518 S.W.3d at 923. In conducting this review, we view the facts in the light

most favorable to the trial court’s ruling. See Kniatt, 206 S.W.3d at 664; Ex parte

Arango, 518 S.W.3d at 924. We must therefore determine which, if any, of Moon’s

claims are cognizable via pretrial habeas before we may address the merits. See Ex

parte Ellis, 309 S.W.3d at 79.

   B. Analysis

      In support of his argument that pretrial habeas relief is appropriate, Moon

relies on this Court’s decision in Ex parte Arango. There, when Arango was sixteen

years old, a juvenile court concluded that, because of the seriousness of the offense

with which he had been charged, the welfare of the community required criminal

proceedings and it transferred the case to criminal district court. See Ex parte

Arango, 518 S.W.3d at 918. Nine years later, Arango, still having not been tried,

filed a pretrial habeas application in the criminal district court contending that the

juvenile court’s transfer order was facially deficient under Moon and, therefore,

failed to vest the criminal court with jurisdiction. See id. The trial court denied

habeas relief. See id.

                                         14
      On appeal, Arango argued that the trial court erred in denying pretrial habeas

relief because if he were to be tried and convicted, the deficient transfer order would

be vacated by an appellate court, making an intervening trial an unnecessary waste

of judicial resources. See id. This Court agreed and determined that “[t]he juvenile

court’s order waiving jurisdiction in this case suffers from the same flaw as the order

in Moon.” Id. at 921. We concluded that “the juvenile court’s transfer order does

not pass muster under Moon, and that denying habeas relief and proceeding to trial

on the basis of an invalid transfer order that failed to vest jurisdiction in the district

court would be a waste of judicial resources.” Id. at 918.

      The State contends that Moon’s reliance on Ex parte Arango is misplaced

because we reached our conclusion in Ex parte Arango without reviewing the

sufficiency of the evidence to support the transfer decision. In Ex parte Arango, as

in Moon, the transfer order itself was reviewed to determine if it contained in writing

sufficient evidence to meet the standards for transfer under section 54.02(a), (d), and

(f). That is not what is before us today. Moon’s attack on the sufficiency of the

evidence to support transfer under section 54.02(j) is not cognizable on pretrial writ

of habeas corpus.

      “Generally, pretrial habeas is not available to test the sufficiency of the

charging instrument or to construe the meaning and application of the statute

defining the offense charged.” Ex parte Ellis, 309 S.W.3d at 79; see also Ex parte

                                           15
Doster, 303 S.W.3d at 727 (dismissing appeal because pretrial habeas application

not appropriate vehicle to raise alleged violation of Interstate Agreement on

Detainers Act); Ex parte Smith, 185 S.W.3d 887, 892–93 (Tex. Crim. App. 2006)

(affirming denial of pretrial habeas relief because in pari materia claim was not

cognizable in pretrial writ of habeas). We agree with the State’s contention that

Moon’s challenge to the sufficiency of the transfer order is analogous to challenging

a charging instrument because it is the order by which the criminal court has

authority to criminally charge the defendant.

      Further, Moon’s challenge to the transfer order would require us to analyze

and define terms and construe the meaning of the statute permitting the waiver of

jurisdiction, something we are not permitted to do at this stage. See Ex parte Ellis,

309 S.W.3d at 79. For example, Moon argues that the statutory “no adjudication”

requirement under section 54.02(j)(3) is not limited to “juvenile adjudication” and,

therefore, his previous adjudication in criminal district court means that the State

failed to prove this requirement. Moon’s challenge also asks us to construe section

54.02(j)(4)(B)(iii) (“[A]fter due diligence of the state it was not practicable to

proceed in juvenile court before the 18th birthday of the person because . . . a

previous transfer order was reversed by an appellate court[.]”). He argues that “[a]s

written, subsection (B)(iii) can only be satisfied when the reversal of the previous

transfer order takes place before the juvenile’s 18th birthday but too late for it to be

                                          16
practicable to proceed in juvenile court.”3 Thus, he concludes, “given the undisputed

fact that the reversal of the original transfer order had not happened before Moon’s

18th birthday, that reversal could not have impeded the State’s ability to proceed in

juvenile court before Moon’s 18th birthday.” Moon argues that the State’s choice

to seek certification rather than proceed in juvenile court when it could have done so

precludes recertification under section 54.02(j).4

      Moreover, pretrial habeas relief does not lie when there is an adequate remedy

by appeal. See Ex parte Weise, 55 S.W.3d at 619. Moon’s second transfer order

was entered after January 1, 1996, but before September 1, 2015, and, therefore,

Code of Criminal Procedure article 44.47 applies, which requires the discretionary

transfer decision to be reviewed on direct appeal. See Ex parte Powell, 558 S.W.2d

480, 482 (Tex. Crim. App. 1977) (holding that statutory procedure for challenging

juvenile court’s transfer order on direct appeal was proper procedure for seeking



3
      Moon emphasizes that the statute is written in the past tense, clearly referring to
      something that occurs before the juvenile’s 18th birthday, and that the use of
      “because” requires a causal link between the reversal of the previous transfer order
      and the inability to proceed in juvenile court before Moon turned eighteen.
4
      Notably, this Court rejected Moon’s argument in In re J.G., 495 S.W.3d 354, 371
      (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“We therefore cannot agree
      with appellant that because the State initially chose to seek certification, which it
      had a statutory right to do, it now, after an appellate court has reversed the transfer
      order and appellant has passed his eighteenth birthday—two events that are outside
      the control of the State—can no longer seek recertification of appellant as an
      adult.”).

                                            17
review rather than writ of habeas corpus). Because Moon has an adequate remedy

by direct appeal of the discretionary transfer decision under article 44.47, he may

not use a pretrial writ of habeas corpus to appeal prematurely his subsection (j)

sufficiency challenges in his first, fourth, and fifth points of error. Ex parte Smith,

178 S.W.3d at 801 n.13.

      Similarly, we conclude that Moon’s second and third points of error are not

cognizable on pretrial writ. In his second point of error, Moon contends that the

juvenile court’s findings under section 54.02(j) were insufficient to allow it to waive

its jurisdiction. “[W]hen there is a valid statute or ordinance under which a

prosecution may be brought, habeas corpus is generally not available before trial to

test the sufficiency of the complaint, information, or indictment.” Ex parte Weise,

55 S.W.3d at 620. Moon’s challenge to the sufficiency of the juvenile court’s

findings, incorporated into the juvenile court’s order waiving jurisdiction and

supporting its transfer order, is not cognizable on pretrial writ. See id.

      In his third point of error, Moon asserts that the district court had jurisdiction

at the time it originally adjudicated the charged offense. Specifically, Moon argues

that “[i]n a second attempt to avoid the fact that there was an adjudication hearing

and an adjudication concerning the alleged offense, the juvenile court made a

Conclusion of Law that:

      Because the Texas Court of Criminal Appeals determined that original,
      exclusive jurisdiction remained in the 313th District Court [juvenile
                                          18
      court] rather than properly transferring to the 178th District Court
      [criminal court], no adjudication concerning this offense has been made
      and no adjudication hearing concerning the offense has been conducted.

      In his briefing and at oral argument, Moon’s counsel invites us to disregard

our finding in Moon’s original appeal that the criminal district court lacked

jurisdiction and the case remained pending in the juvenile court. He does this by

arguing that the juvenile court had jurisdiction to transfer the case and that, therefore,

the district court acquired jurisdiction such that a prior adjudication had occurred

when Moon was tried and sentenced to thirty years. Moon uses quotes from a

number of cases for the proposition that an erroneous order may still convey

jurisdiction but, in these cases, the question was not the jurisdiction of the district

court but the jurisdiction of the juvenile court. These cases hold that, if the juvenile

court has jurisdiction over the child, it has the power to waive that jurisdiction and,

thus, a transfer of the case to district court is valid, even if it is subject to some

procedural error.

      Moon cites State v. Rinehart, 333 S.W.3d 154 (Tex. Crim. App. 2011) for the

proposition that a transfer which can be challenged on procedural grounds does not

divest the district court of jurisdiction. Id. at 158–59. However, in Rinehart, the

transfer order was not challenged. An attempt was made to quash the indictment.

See id. at 158. There was no question that the juvenile court had jurisdiction over

the juvenile, so it had the power to waive that jurisdiction. Similarly, in Adams v.

                                           19
State, 827 S.W.2d 31 (Tex. App.—Dallas 1992, no writ), the court of appeals held

that a transfer was valid because the juvenile court had jurisdiction over the case

when the order was entered. See id. at 33–34. In Melendez v. State, 4 S.W.3d 437

(Tex. App.—Houston [1st Dist.] 1999, no pet.), overruled on other grounds by Small

v. State, 23 S.W.3d 549 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d), the court

of appeals held that the failure of the juvenile court to follow the notice provisions

of the Vienna Convention on Consular Relations did not deprive it of jurisdiction

over the juvenile and a transfer order was proper. See id. at 442. These cases concern

the jurisdiction of the juvenile courts, ab initio, to enter orders transferring the cases

to district court and are primarily concerned with the propriety of challenging

procedural error for the first time on appeal. This is usually not permitted, whereas

jurisdictional error can always be raised. Moon invites us to compare this line of

cases with Grayless v. State, 567 S.W.2d 216 (Tex. Crim. App. 1978). In Grayless,

the juvenile court never acquired jurisdiction over the juvenile and so the district

court also failed to acquire jurisdiction based on a transfer order from that court. See

id. at 220. In the case before us, no one challenges the jurisdiction of the juvenile

court. The cases cited by Moon do not make a convincing argument that our holding

that the district court lacked jurisdiction is “merely imprecise dictum,” as Moon

states on page twenty of his brief.




                                           20
      Moon next argues that the Court of Criminal Appeals did not really mean it

when the Court said “We affirm the judgment of the court of appeals.” Moon, 451

S.W.3d at 52. He does this through an extended exegesis of footnote 90 from the

Court’s opinion. The Court began the lengthy footnote by noting that neither party

contested the propriety of the court of appeals holding that the case remained

pending in juvenile court, but asked “Pending for what?” Id. n.90. The Court then

suggested that one alternative was for the juvenile court to hold a new transfer

hearing under section 54.02(j), which is exactly what happened. In dictum in the

second paragraph of the footnote, the Court muses about the possibility of remanding

the case to the court of appeals. The Court says that the problem is that the juvenile

court has “either validly waived its exclusive jurisdiction . . . or it has not,” and

“[u]nless the transfer order is declared invalid, the criminal court retains jurisdiction

and the juvenile court [does not].” Id. Moon makes the argument that the absence

of the words “invalid order” in the court of appeals’s opinion means that the order

was valid and sufficient to transfer jurisdiction to the district court. However, our

finding that the juvenile court abused its discretion when it transferred the case, that

the district court lacked jurisdiction, and that the case remained pending in juvenile

court carries with it, at the very least, the clear implication that the transfer order was

invalid and failed to transfer jurisdiction. The Court of Criminal Appeals answered

its own question about whether or not the juvenile court had validly waived its

                                            21
jurisdiction when it, without qualification, affirmed our holding that the juvenile

court had not. Further, the Court’s suggestion that one course of action is a new

certification hearing in juvenile court under subsection (j) clearly indicates that the

Court considered jurisdiction to be in the juvenile court, and not in the district court.

      Moon advances this argument to support his challenge to the juvenile court’s

finding that section 54.03(j)(3) was satisfied, a challenge that we previously

determined is not cognizable on pretrial writ. And, as the State points out, Moon’s

disagreement with the juvenile court’s findings and conclusions does not negate the

fact that they were made and included in the written order as required by Section

54.02.5

      Accordingly, we overrule Moon’s first through fifth points of error.

                               Due Process Challenge

      In his sixth point of error, Moon contends that the application of section

54.02(j) to recertify him deprived him of the process to which he was originally due

under section 54.02(a), (d), and (f) in violation of the United States and Texas

Constitutions. The State argues that Moon’s claim is an improper “as applied”

challenge that is not cognizable in pretrial writ of habeas corpus and, even if it were

cognizable, it fails on the merits.



5
      Further, Moon’s argument serves to disregard the finding that, lacking jurisdiction
      in the criminal court, the case remained pending in the juvenile court.
                                           22
      A. Applicable Law

        In Kent v. United States, 383 U.S. 541 (1966), the United States Supreme

Court stated that “[i]t is clear beyond dispute that the waiver of jurisdiction is a

‘critically important’ action determining vitally important statutory rights of the

juvenile.”   Id. at 556. The Court characterized the “decision as to waiver of

jurisdiction and transfer of the matter to the District Court [] potentially as important

to petitioner as the difference between five years’ confinement and a death

sentence[.]” Id. at 557. In Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App. 1999),

the Court of Criminal Appeals likewise recognized that “transfer to criminal district

court for adult prosecution is ‘the single most serious act the juvenile court can

perform . . . because once waiver of jurisdiction occurs, the child loses all protective

and rehabilitative possibilities available.’” Id. at 755.

        Due process requires, as a condition to a valid waiver order, “a hearing,

including access by [the juvenile’s] counsel to the social records and probation or

similar reports which presumably are considered by the court, and to a statement of

reasons for the Juvenile Court’s [transfer] decision.” Kent, 383 U.S. at 557. The

Supreme Court in Kent held that a juvenile court must “accompany its waiver order

with a statement of the reasons or considerations therefor” and that transfer hearings

must “measure up to the essentials of due process and fair treatment.” Id. at 561–

62.

                                           23
   B. Is Moon’s Due Process Claim Cognizable?

      We must first determine whether Moon’s due process complaint is cognizable

on pretrial habeas review.

      There are two types of challenges to the constitutionality of a statute: the

statute is unconstitutional as applied to the defendant, or the statute is

unconstitutional on its face. In re J.G., 495 S.W.3d 354, 364 (Tex. App.—Houston

[1st Dist.] 2016, pet. ref’d). “A facial challenge is an attack on a statute itself as

opposed to a particular application.” City of Los Angeles v. Patel, — U.S. —, 135

S. Ct. 2443, 2449 (2015). In order to successfully mount a facial challenge, a party

must establish that no set of circumstances exists under which that statute would be

valid. See United States v. Salerno, 481 U.S. 739, 745 (1987); State v. Rosseau, 396

S.W.3d 550, 557 (Tex. Crim. App. 2013) (“[T]o prevail on a facial challenge, a party

must establish that the statute always operates unconstitutionally in all possible

circumstances.”). When a party makes an “as applied” challenge to a statute, the

essence of the challenge asserts that the statute, although generally constitutional, is

unconstitutional when applied to the challenging party’s particular circumstances.

See State ex. rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011); In re

Commitment of Fisher, 164 S.W.3d 637, 656 n.17 (Tex. 2005).

      In Ex parte Perry, the Texas Supreme Court stated:

            Although we have said that as-applied challenges are not
      cognizable before trial, we allow certain types of claims to be raised by
                                          24
      pretrial habeas because the rights underlying those claims would be
      effectively undermined if not vindicated before trial. Within this
      category of rights that would be effectively undermined if not
      vindicated pretrial, we have, so far, recognized the constitutional
      protections involving double jeopardy and bail. Facial constitutional
      challenges, however, are cognizable on pretrial habeas regardless of
      whether the particular constitutional right at issue would be effectively
      undermined if not vindicated prior to trial.

483 S.W.3d at 895.

      The State contends that Moon’s due process complaint is an as-applied

challenge that is not cognizable on pretrial writ of habeas corpus but that, even if it

was, it fails on the merits because Moon cites to no right that would be lost if not

vindicated before trial.

      Moon contends that section 54.02(j) “is facially unconstitutional by virtue of

the fact that the deprivation of due process required by Kent and Hidalgo cannot be

corrected on remand as to any juveniles who have aged out after a post-conviction

appeal.” He argues that “[t]he result of this flawed process is that a child who was

erroneously certified, but 18 years or older when the case is remanded, will never

receive the benefit of the § 54.02(a) and (f) standards to which he or she was

originally entitled. Stated differently, the individual will have been permanently

deprived of the process that was originally due to protect the child’s liberty interest

in access to the juvenile justice system.” We construe Moon’s due process claim as

a facial challenge to section 54.02.



                                          25
   C. Is Section 54.02 Facially Unconstitutional?

      To prevail on a facial challenge, a party must establish that the statute always

operates unconstitutionally in all possible circumstances. Rosseau, 396 S.W.3d at

557 (citing Lykos, 330 S.W.3d at 908–09); see also Santikos v. State, 836 S.W.2d

631, 633 (Tex. Crim. App. 1992) (“A facial challenge to a statute is the most difficult

challenge to mount successfully because the challenger must establish that no set of

circumstances exists under which the statute will be valid.”). “In a facial challenge

to a statute’s constitutionality, we examine the statute as it is written, rather than how

it is applied in a particular case.” Rosseau, 396 S.W.3d at 558 n.9; Lykos, 330

S.W.3d at 908. Analysis of a statute’s constitutionality begins with the presumption

that the statute is valid and that the Legislature did not act arbitrarily or unreasonably

in enacting it. Rosseau, 396 S.W.3d at 557; Rodriguez v. State, 93 S.W.3d 60, 69

(Tex. Crim. App. 2002). The individual challenging the statute has the burden of

rebutting the presumption of constitutionality. See Lykos, 330 S.W.3d at 911;

Rodriguez, 93 S.W.3d at 69. “In the absence of contrary evidence, we presume that

the legislature acted in a constitutionally sound fashion, and we uphold the statute if

we can ascertain a reasonable construction that will render the statute constitutional

and will carry out the legislative intent.” In re J.G., 495 S.W.3d at 365.

      Moon contends that section 54.02 is structurally flawed because it

systematically denies the procedural due process protections of section 54.02(a), (d),

                                           26
and (f) to all persons who, like him, are improperly certified and are over eighteen

when the transfer order is reversed and he is transferred back to juvenile court.

According to Moon, section 54.02 is unconstitutional because “it contains no

exception to the applicability of § 54.02(j) for those who were originally entitled to

the protections of § 54.02(a), (d), and (f) but were wrongly certified under those

sections.” He asserts that “[b]ecause Moon error can never be corrected as to any

person who has reached the age of 18 before being remanded to the juvenile court,

a re-transfer under § 54.02(j) is facially unconstitutional as to all of those persons.”

      Moon’s broad facial challenge, to be successful, must demonstrate that the

statute is unconstitutional when applied not only to those individuals, such as Moon,

who were erroneously certified under (a) and (f) and who are eighteen or older when

their transfers are reversed but also to those individuals entering the juvenile system

for the first time who are over the age of eighteen; in other words, it must also be

unconstitutional when applied to those individuals who never had the protection of

section 54.02(a) and (f) in the first place. However, subsection (j) does not apply

only to those whose transfer orders were set aside by an appellate court. It also

applies to juveniles who could not be found, see § 54.02(j)(4)(B)(ii), and those who

could not be charged until after their eighteenth birthday because only then was new

evidence found to establish probable cause, see id. (j)(4)(B)(i) (contemplating

lengthier investigation process). None of these juveniles would be entitled to the

                                           27
protections of subsections (a), (d) and (f).     Thus, the statute is not facially

unconstitutional under all possible circumstances because it validly applies to

individuals who initially enter the juvenile system when they are over eighteen years

of age. See Lykos, 330 S.W.3d at 909 (noting that to prevail on facial challenge,

party must prove that no factual circumstances exist under which statute would be

constitutional).

      In support of his argument, Moon relies on In re J.G. in which this Court,

reviewing a very similar fact situation, declined a due process challenge to a second

certification order under section 54.02(j) after the defendant’s prior certification

under section 54.02(a) and (f) had been reversed. 495 S.W.3d at 367–69. Moon

contends that we only overruled the challenge because when the defendant was

recertified the juvenile court also made findings under the subsection (a) and (f)

factors. See id. at 368 (“In this case, therefore, the juvenile court essentially

considered all of the relevant statutory factors for waiver of jurisdiction that the

Legislature has specifically enumerated in section 54.02, despite the age-based

distinction between subsections (a) and (f) and subsection (j).”) (emphasis in

original). Moon argues that here, unlike in In re J.G., the juvenile court made no

findings under subsections (a) and (f) and, thus, In re J.G. compels a ruling that

Moon’s due process rights were violated. However, unlike here, In re J.G. was an

as-applied challenge on direct appeal and not a facial challenge raised in a pretrial

                                         28
writ of habeas corpus. See id. at 368–69 (“We therefore conclude that section

54.02(j), as applied to appellant in this case, did not deprive appellant of due process

and equal protection.”).

      Because Moon has failed to show that section 54.02(j) is unconstitutional in

every possible respect, the statute is not facially unconstitutional. See Rosseau, 396

S.W.3d at 557. We therefore overrule his sixth point of error.

                                Ex Post Facto Laws

      In his seventh point of error, Moon contends that his certification under

section 54.02(j) violated the prohibition against ex post facto laws in two ways.

First, he asserts that his recertification changed the rules on remand and required

application of different standards to subject him to adult criminal penalties than the

standards that originally applied. Second, he argues that substitution of subsection

(j) for (a) and (f) deprived him of a defense available at the time the alleged act was

committed. The State argues that Moon’s ex post facto challenge is an as-applied

challenge that is not cognizable on pretrial writ and that, even if it was, section

54.02(j) is not an unconstitutional ex post facto law.

   A. Applicable Law

      The United States and Texas Constitutions contain prohibitions against

enacting ex post facto laws. U.S. CONST. art. I, § 10, cl. 1; TEX. CONST. art. I, § 16.

An ex post facto law is one that “(1) punishes as a crime an act previously committed

                                          29
which was innocent when done; (2) changes the punishment and inflicts a greater

punishment than the law attached to the criminal offense when committed; or (3)

deprives a person charged with a crime of any defense available at the time the act

was committed.” Rodriguez, 93 S.W.3d at 66 (citing Collins v. Youngblood, 497

U.S. 37, 42–44 (1990); In re J.G., 495 S.W.3d at 366. A law is also an impermissible

ex post facto law if it “alters the legal rules of evidence, and receives less, or

different, testimony, than the law required at the time of the commission of the

offence, in order to convict the offender.” Carmell v. Texas, 529 U.S. 513, 530

(2000).

   B. Analysis

      Moon argues that application of subsection (j) to recertify him changed the

rules for transfer on remand and, in doing so, made his transfer easier than it would

have been originally as well as making it easier for the State to obtain an adult

conviction after remand than before remand. We addressed a similar argument in In

re J.G. There, the defendant argued that section 54.02(j) “changes the rules after the

fact in a way that materially changes the state’s substantive burden to certify and

then convict the child, and subjects the child to adult criminal penalties to which he

would not have been subject under the applicable law when the alleged crime was

committed.” In re J.G., 495 S.W.3d at 366. We rejected the defendant’s claim,

noting that “while section 54.02(j) does involve the consideration of different

                                         30
statutory factors from section 54.02(a), and thus requires the consideration of

different evidence when making the transfer decision, the decision to transfer [the

defendant] to the district court is not an adjudication or a ‘conviction’ of the alleged

offense.” Id. We concluded that “section 54.02(j) is not itself an unconstitutional

ex post facto law. Nor is it applied unconstitutionally in this case.” Id. at 366–67.

      Moon also contends that application of subsection (j), when he was originally

protected by (a) and (f), deprives him of that defense available at the time the alleged

act was committed, and therefore violates the prohibition against ex post facto laws.

Addressing that argument in In re J.G., we concluded that section 54.02 “does not

fit within any of the enumerated categories of ex post facto laws” and, in particular,

does not deprive [the defendant] of a defense that was available at the time he

committed the alleged criminal act[.]” Id. at 366. Moon has not directed us to any

authority to the contrary. We therefore overrule Moon’s seventh point of error.

                 Equal Protection and Double Jeopardy Claims

      In his eighth point of error, Moon asserts that his recertification under section

54.02(j) violated the equal protection and double jeopardy clauses.

   A. Equal Protection

      1. Applicable Law

      An equal protection challenge to a statute involves a two-step analysis. We

first determine the level of scrutiny required, and then apply that level of scrutiny to

                                          31
the statute. Cannady v. State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000). “A

statute is evaluated under ‘strict scrutiny’ if it interferes with a ‘fundamental right’

or discriminates against a ‘suspect class.’” Id.; Walker v. State, 222 S.W.3d 707,

711 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Otherwise, the challenged

statute need only be “rationally related to a legitimate governmental purpose” to

survive the equal protection challenge. Cannady, 11 S.W.3d at 215; Walker, 222

S.W.3d at 711; see also Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law

neither burdens a fundamental right nor targets a suspect class, we will uphold the

legislative classification so long as it bears a rational relation to some legitimate

end.”). When the rational basis test applies, the challenging party has the burden to

negate “any reasonably conceivable state of facts that could provide a rational basis

for the classification.” Alobaidi v. Univ. of Tex. Health Sci. Ctr. at Hous., 243

S.W.3d 741, 747 (Tex. App.–Houston [14th Dist.] 2007, pet. denied) (quoting Bd.

of Trustees v. Garrett, 531 U.S. 356, 367 (2001) (internal citations omitted)).

      2. Analysis

      We previously considered an equal protection challenge to section 54.02 in In

re H.Y., 512 S.W.3d 467 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). There,

after we reversed the juvenile court’s original transfer order pursuant to Moon, the

juvenile court again waived its jurisdiction and recertified the defendant, who was

then over the age of eighteen, to stand trial as an adult. See id. at 470. On appeal

                                          32
from the second certification, the defendant argued, among other things, that section

54.02(j) violated the equal protection clause of the Texas and United States

Constitutions because it enabled the State to transfer a person who has reached the

age of eighteen more easily than a person under the age of eighteen. See id. at 477.

He asserted that juveniles are a suspect class and that section 54.02 unlawfully

penalized him for prevailing in his first appeal by making it easier for the State to

transfer him on remand since he had reached the age of eighteen. See id.

      After noting that “[a]ge has never been held to be a suspect classification

requiring strict scrutiny under an equal protection analysis,” we rejected the

defendant’s argument that 54.02(j) could not survive a rational basis review because

“[t]he government has no legitimate interest in punishing children who successfully

enforce their statutorily created rights under section 54.02(a) by prevailing on

appeal.” Id. at 476, 478. We noted that the text of the statute negated the defendant’s

argument, and that “there are many reasons to have non-juveniles transferred out of

the juvenile court, including the fact that the resources of the juvenile court are

designed to assist and rehabilitate juveniles, not adults.” Id. at 478. We held that

the defendant had failed to negate “any reasonably conceivable state of facts that

could provide a rational basis for the statute’s dissimilar treatment of those 17 and

under versus those 18 and over.” Id.




                                          33
       Moon acknowledges that age is not considered a suspect class. Instead, he

argues that the right of a child to be treated as a juvenile and not subjected to the

adult prison system should be considered a fundamental right warranting strict

scrutiny review. He asserts that the application of section 54.02(j) to juveniles who

are wrongly certified under subsections (a) and (f) and remanded to juvenile court

after they turn eighteen are subjected to a different standard as a result of being

deprived of that fundamental right than those who are properly afforded the

protections of subsections (a) and (f) as well as those whose certifications under

section 54.02 (a) and (f) are reversed and returned to juvenile court before they turn

eighteen. Moon states that, under a strict scrutiny standard, the different treatment

of these individuals constitutes a denial of equal protection.

       However, Moon is not actually complaining about the statute’s treatment of

children; rather, he is complaining about the statute’s treatment of those who have

reached the age of eighteen and are no longer minors. As we noted in In re H.Y.,

“[t]he statute itself recognizes that one of the reasons for transferring a person18

years or older to the criminal district court [is] if the person is returned to the juvenile

court after a transfer order is reversed and the juvenile has reached the age of 18.”

Id. And, as the State points out, there are other reasons for the different standard,

including the direction of juvenile resources toward juveniles, not adults.




                                            34
       Because Moon has not shown that no rational basis exists under any

reasonably conceivable state of facts to support the classification, his equal

protection claim fails. See id.

   B. Double Jeopardy

      1. Applicable Law

      The Double Jeopardy Clause of the Fifth Amendment, made applicable to the

states through the Due Process Clause of the Fourteenth Amendment, protects an

accused from being placed twice in jeopardy for the same offense. U.S. CONST.

amend. V, cl. 2; see Ex parte Milner, 394 S.W.3d 502, 506 (Tex. Crim. App. 2013).

The Texas Constitution provides substantially identical protections.           See TEX.

CONST. art. 1, § 14 (“No person, for the same offense, shall be twice put in jeopardy

of life or liberty; nor shall a person be again put upon trial for the same offense, after

a verdict of not guilty in a court of competent jurisdiction.”). “The Double Jeopardy

Clause protects criminal defendants from three things: (1) a second prosecution for

the same offense after acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense.” Milner, 394 S.W.3d

at 506 (citing Brown v. Ohio, 432 U.S. 161, 165 (1977)). Although the Double

Jeopardy Clause precludes retrial of a defendant whose conviction is reversed on

appeal on the basis of insufficient evidence, it does not preclude retrial when the




                                           35
defendant’s conviction is reversed on appeal for trial error. See Lockhart v. Nelson,

488 U.S. 33, 40–41 (1988).

      2. Analysis

      Moon argues that double jeopardy bars recertification in this case because the

original certification order was reversed due to a lack of evidence.

      We considered this same argument in In re J.G. There, the defendant argued

that double jeopardy barred recertification because, on appeal from his original

certification, the Fourteenth Court of Appeals had determined that insufficient

evidence supported the juvenile court’s decision to waive jurisdiction and transfer

his case to the district court. See In re J.G., 495 S.W.3d at 365. We noted that

although it was true that the Fourteenth Court of Appeals determined that the

juvenile court had erroneously certified him as an adult, it did not reach the question

of whether insufficient evidence supported the juvenile court’s decision. See id.

Rather, the Fourteenth Court of Appeals based its opinion on the fact that, under

Moon, the transfer order itself was facially defective because it did not make any

specific findings about the seriousness of the defendant’s alleged offense and did not

support its ultimate conclusion that transfer was warranted by the facts found in the

record. See id. We emphasized that the Fourteenth Court of Appeals held that the

transfer order itself was defective and not that the trial court’s decision to waive

jurisdiction and transfer the defendant’s case was not supported by sufficient

                                          36
evidence. See id. We concluded that “because [the defendant’s] prior conviction

for the charged offense in this case was reversed due to trial error, and not due to

insufficient evidence, double jeopardy does not preclude the juvenile court from

waiving its jurisdiction, certifying [the defendant] as an adult, and transferring the

case to district court a second time.” Id. (citing Lockhart, 488 U.S. at 39).

      Double jeopardy precludes retrial when an appellate court reverses a

defendant’s case for insufficient evidence of guilt, but it does not preclude retrial

when it reverses the judgment based on trial court error. See Lockhart, 488 U.S. at

38 (“[T]he Double Jeopardy Clause’s general prohibition against successive

prosecutions does not prevent the government from retrying a defendant who

succeeds in getting his first conviction set aside, through direct appeal or collateral

attack, because of some error in the proceedings leading to conviction.”). Here,

contrary to Moon’s assertion, the first order certifying him was reversed because the

transfer order itself was defective and not because the evidence against him was

insufficient.

      Because Moon’s prior conviction for the charged offense in this case was

reversed due to trial error, and not due to insufficient evidence, double jeopardy does

not preclude the juvenile court from waiving its jurisdiction and recertifying him as

an adult. See id.

      Accordingly, we overrule Moon’s eighth point of error.

                                          37
                                    Conclusion

      We affirm the trial court’s denial of Moon’s pretrial writ of habeas corpus.




                                             Russell Lloyd
                                             Justice

Panel consists of Justices Lloyd, Goodman, and Hightower.

Justice Goodman, concurring.

Justice Hightower, concurring.

Publish. TEX. R. APP. P. 47.2(b).




                                        38
