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



                              CAMERON MOON, Appellant

                                               v.

                                 THE STATE OF TEXAS



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

      P RICE, J., delivered the opinion of the Court in which W OMACK, J OHNSON,
K EASLER, C OCHRAN and A LCALA, JJ., joined. K ELLER, P.J., filed a dissenting opinion
in which H ERVEY, J., joined. M EYERS, J., dissented.

                                        OPINION

       We granted the State’s petition for discretionary review in this case in order to address

several questions related to the appellate review of a juvenile court’s waiver of its otherwise-

exclusive jurisdiction over a person alleged to have committed a murder at the age of sixteen.

What, exactly, is the appellate court’s appropriate role in reviewing the adequacy of the
                                                                                      MOON — 2

juvenile court’s statutorily required written order transferring the child to a criminal district

court for prosecution as an adult? Ultimately, we hold that the court of appeals conducted

an appropriate review of the juvenile court’s transfer order, and we affirm its judgment.

                       I. FACTS AND PROCEDURAL POSTURE

                    A. State’s Motion to Waive Jurisdiction and Trial

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

County alleging that the appellant engaged in delinquent conduct by committing an

intentional or knowing murder. On the same date, the State also filed a motion for the

juvenile court to waive its exclusive jurisdiction and transfer the appellant to criminal district

court for prosecution as an adult, alleging as grounds for the transfer that, because of the

seriousness of the offense alleged, ensuring the welfare of the community required waiver

of juvenile jurisdiction. The juvenile court granted the State’s request for a hearing on the

motion and, pursuant to Section 54.02(d) of the Juvenile Justice Code in the Texas Family

Code,1 ordered that the Chief Juvenile Probation Officer obtain a complete diagnostic study,

social evaluation, and full investigation of the appellant’s background and the circumstances

of the alleged offenses.2 The juvenile court also ordered the Mental Health and Mental


       1

        TEX . FAM . CODE title 3, Juvenile Justice Code (hereinafter, “the Juvenile Justice Code”).
       2

         TEX . FAM . CODE § 54.02(d). The appellant complains that “[p]rior to the hearing, the State
failed to conduct the statutorily mandated diagnostic or social evaluation[.]” Appellant’s Response
to the State’s Brief on Discretionary Review at 1. But the appellant did not raise this issue as
grounds for reversal on direct appeal, and we have no occasion to speak to it. See Appellant’s Brief
on Direct Appeal at 16.
                                                                                MOON — 3

Retardation Authority of Harris County to conduct an examination and file its report.

       At the hearing, the State called a single witness to testify: Detective Jason Meredith,

the Deer Park Police officer who investigated the crime scene and interviewed a number of

potential suspects, including the appellant. Meredith’s testimony on direct examination took

the form of a non-chronological account of his investigation of the murder, up to and

including his interrogation of the appellant. At the end of his testimony, over no objection

from the appellant, the State introduced the following documents: (1) a juvenile offense

report revealing the appellant’s “Previous Referral” for “MISCHIEF-$500/$1499.99,” which,

subsequent testimony would show, resulted from the appellant’s alleged “keying” of another

student’s vehicle; (2) a “Juvenile Probation Certification Report” detailing the positive and

negative behaviors, as well as the academic history, of the appellant while he was under the

observation of the juvenile-justice system; and (3) a “Physician’s Medical Assessment”

prepared by the Harris County Juvenile Probation Health Services Division, which listed the

findings of the appellant’s physical—but not any psychological or behavioral—examination.

       For his part, the appellant elicited testimony from seven witnesses. Various family

members, friends, and acquaintances testified both generally and specifically about the

appellant’s disadvantaged upbringing, fractured family life, and positive personal qualities,

including politeness and pliability to adult supervision. Various actors within the juvenile-

justice system testified both generally and specifically about the appellant’s constructive

conduct within, and positive progression through, the juvenile-justice system, characterizing
                                                                                 MOON — 4

him as “one of the best kids [to] come through as far as his intelligence and obedience and

the way he carries himself in the facility.” The appellant also introduced into evidence,

among other things, forensic psychiatrist Dr. Seth W. Silverman’s detailed and thorough

       recommendation as to whether [the] facilities currently available to the
       juvenile court will provide adequate protection to the public, and . . . the
       likelihood that the respondent will be rehabilitated should the court decide to
       use the facilities available to the juvenile court as well as the sophistication,
       maturity, and aggressiveness [of the appellant].

It was Dr. Silverman’s ultimate opinion that the appellant, as a “dependent, easily influenced

individual” whose “thought process lacks sophistication” (a characteristic Silverman

considered “indicative of immaturity”) “would probably benefit from placement in a

therapeutic environment specifically designed for adolescent offenders[.]”          Silverman

contrasted this environment to the “adult criminal justice programs[,]” which he deemed to

have “few constructive, and possibly many destructive, influences to offer” the appellant.

Silverman also noted that the appellant had, during his stint within the juvenile-justice

system, already “responded to therapy.”

       At the close of evidence, and after both parties delivered closing arguments, the

juvenile court granted the State’s motion to waive jurisdiction. At the behest of the

appellant’s counsel, the court also made the following oral findings: (1) “that there is

insufficient time to work with the juvenile in the juvenile system”; (2) “that the seriousness

of the offense, murder, makes it inappropriate to deal with in this system”; (3) that “the

respondent did have a prior criminal mischief probation”; (4) that the instant offense
                                                                                 MOON — 5

“actually occurr[ed] at the time respondent was on probation which . . . makes the services

and resources of the juvenile system look to be inadequate”; (5) “that because there is a co-

respondent [certified to stand trial in the adult criminal courts], there is a logic in putting

respondents, where they are a year apart or two years apart, together”; and (6) that “judicial

economy, although not the driving factor, is an issue” because “sometimes it’s more

convenient to hear the same matter, even though there are different people involved, in the

same court for the convenience of the witnesses, the attorneys, and the system in general.”

       The following day, the juvenile court signed and entered a written order waiving its

jurisdiction. Closely following the language of the juvenile transfer statute, the order

affirmed 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.”3 The juvenile court

again simply recited from the statute when it stated that:

       [i]n making that determination, the Court . . . 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

       3

       TEX . FAM . CODE § 54.02(a).
                                                                                    MOON — 6

               of reasonable rehabilitation of the child by use of procedures, services
               and facilities currently available to the Juvenile Court.4

The juvenile court also specifically found in its written order: (1) that the appellant “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 HIS

defense and to be responsible for HIS conduct;” (2) that the alleged offense “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” the appellant “by use of procedures,

services, and facilities currently available to the Juvenile Court.”

       Per the trial court’s order, the appellant’s case was transferred to the jurisdiction of

the 178th District Court in Harris County, where he stood trial, certified as an adult, against

the first-degree felony charge of murder. The jury convicted the appellant and sentenced him

to thirty years’ confinement in the penitentiary.

                                        B. The Appeal

       Before the First Court of Appeals, the appellant complained that the juvenile court’s

stated “reasons for waiver” were supported by insufficient evidence and that the juvenile

court therefore abused its discretion by waiving jurisdiction over the appellant.5 Specifically,

the appellant contended that, by focusing on the appellant’s ability to “intelligently,

       4

        Id. § 54.02(f).
       5

        See TEX . FAM . CODE § 54.02(h) (“If the juvenile court waives jurisdiction, it shall state
specifically in the order its reasons for waiver[.]”).
                                                                                    MOON — 7

knowingly, and voluntarily waive[] all constitutional rights heretofore waived,” the juvenile

court “misunderstood and misapplied the ‘sophistication and maturity’ element” of Section

54.02(f)—and that, even if it did not, there was still “no evidence to support the [juvenile]

court’s sophistication and maturity finding” as expressed.6 Indeed, given that this Court

opined in Hidalgo that the purpose of the Section 54.02(d) “psychological examination” is

to “provide[] insight on the juvenile’s sophistication, maturity, potential for rehabilitation,

decision-making ability, metacognitive skills, psychological development, and other

sociological and cultural factors[,]” the appellant found it troubling that “the State presented

no evidence of this type whatsoever.”7 The appellant also maintained that there was “no

evidence supporting the juvenile court’s findings relating to adequate protection [of] the

public and likelihood of rehabilitation,”8 since “the only evidence was that” the appellant “is

amenable to rehabilitation” and the “State presented no contrary evidence.” 9

          In a published opinion, the court of appeals agreed with the appellant that the evidence

supported neither the juvenile court’s “sophistication-and-maturity” finding nor its




          6

          Appellant’s Brief on Direct Appeal at 27.
          7

              Id. (emphasis added) (quoting Hidalgo v. State, 983 S.W.2d 746, 754 (Tex. Crim. App.
1999)).
          8

          Id. at 30.
          9

          Id. at 34.
                                                                                     MOON — 8

“adequate-protection-of-the-public-and-likelihood-of-rehabilitation” finding.10 The court

noted that an “appellate court reviews a juvenile court’s decision to certify a juvenile

defendant as an adult . . . under an abuse of discretion standard” and cited another of its own

opinions for the proposition that “if an appellate court finds the evidence factually or legally

insufficient to support the juvenile court’s order . . . it will necessarily find the juvenile judge

has abused his discretion.”11 At the same time, the court of appeals recognized that “the

juvenile court may order a transfer on the strength of any of the criteria listed in” Section

54.02(f).

       Regarding the juvenile court’s sophistication-and-maturity finding, while the State

argued that “[the appellant]’s efforts to conceal the crime and avoid apprehension

demonstrate that he knew the difference between right and wrong and that his conduct was

wrong,” the court of appeals pointed out that the “finding of the juvenile court . . . was based

on [the appellant]’s ability to waive his rights and assist counsel in preparing his defense, not

an appreciation of the nature of his actions[.]”12 And since the State’s evidence of the

appellant’s “efforts to conceal the crime” consisted primarily of the appellant’s “text

messages instructing [a compatriot] to not ‘say a word,’ [and to] ‘[t]ell them . . . you don’t


       10

        Moon v. State, 410 S.W.3d 366 (Tex. App.—Houston [1st Dist.] 2013).
       11

       Id. at 370-71 (citing In re G.F.O., 874 S.W.2d 729, 731-32 (Tex. App.—Houston [1st Dist.]
1994, no writ)).
       12

        Id. at 374.
                                                                                   MOON — 9

know where I live,’” the court of appeals determined that there was “no evidence supporting

the juvenile court’s finding that [the appellant] was sufficiently sophisticated and mature to

waive his rights and assist in his defense.” 13

       With respect to the juvenile court’s finding that “there is little, if any, prospect of

adequate protection of the public and likelihood of rehabilitation . . . by use of procedures,

services, and facilities currently available to the Juvenile Court[,]” the court of appeals found

it significant that the appellant “had a sole misdemeanor conviction for ‘keying’ a car, and

while locked up in the juvenile facility was accused of four infractions.” 14 The court of

appeals took this to be “more than a scintilla of evidence” to “support the court’s finding”

in this regard, and thus found the evidence to be at least “legally sufficient to support the

court’s determination” that the lack of “adequate protection of the public and likelihood of

reasonable rehabilitation” weighed in favor of waiver.15 “However,” the court of appeals

continued, “careful consideration of all of the evidence[,]” including Dr. Silverman’s report,

led to the “further . . . conclusion that the evidence is factually insufficient to support the

juvenile court’s finding.”16 Responding to the State’s argument to the contrary, the court of



       13

        Id.
       14

        Id. at 376.
       15

        Id. at 377.
       16

        Id.
                                                                                    MOON — 10

appeals described the appellant’s act of “keying a car” as “an undeniably low level

misdemeanor mischief offense” and “hardly the sort of offense for which ‘there is little, if

any, prospect of adequate protection of the public.’”17 The court of appeals was also

influenced by the fact that the appellant’s juvenile custodial officers testified that “he

followed orders, attended classes, and was not aggressive or mean-spirited.” 18 Finally, the

court of appeals was clearly influenced by Dr. Silverman’s assessment that the appellant

“would probably benefit from placement in a therapeutic environment specifically designed

for adolescent offenders[.]” 19

       Thus, of the three “reasons for waiver” that the juvenile court specifically gave in its

written order, the court of appeals determined that one reason, sophistication and maturity,

was supported by legally insufficient evidence. It determined that another reason, the

protection of the public and likelihood of rehabilitation, was supported by factually

insufficient evidence.     With respect to the juvenile court’s third reason for waiving

jurisdiction—that the appellant’s offense constituted a crime against the person of another,

and not a mere property crime—the court of appeals regarded this as an inadequate

justification, by itself, for waiver. To transfer jurisdiction to the criminal court for this reason



       17

        Id.
       18

        Id.
       19

        Id. at 376-77.
                                                                                        MOON — 11

alone was, the court of appeals ultimately concluded, an abuse of discretion.20 The court of

appeals reasoned that, “[i]f, as the State argues, the nature of the offense alone justified

waiver, transfer would automatically be authorized in certain classes of ‘serious’ crimes such

as murder, and the subsection (f) factors would be rendered superfluous.” 21 Concluding that

the juvenile court abused its discretion to waive jurisdiction, the court of appeals vacated the

district court’s judgment of conviction, dismissed the criminal proceedings, and declared the

case to be still “pending in the juvenile court.” 22

                          C. The Petition for Discretionary Review

        The State now challenges the court of appeals’s ruling on four fronts. It argues that

the court of appeals erred:

        !       to apply factual-sufficiency review to any aspect of its analysis of the
                question whether the juvenile court abused its discretion to waive
                jurisdiction.

        !       in failing to consider whether the seriousness of the offense could, by
                itself, justify the juvenile court’s discretionary decision to waive
                jurisdiction.

        !       in limiting its abuse-of-discretion analysis to the reasons for waiver set
                forth in the juvenile court’s written order, and failing to consider the

        20

        Id. at 378.
        21

         Id. at 375 (citing R.E.M. v. State, 541 S.W.2d 841, 846 (Tex. Civ. App.—San Antonio 1976,
writ ref’d n.r.e.), for the proposition that there is “nothing in the statute which suggests that a child
may be deprived of the benefits of our juvenile court system merely because the crime with which
he is charged is a ‘serious’ crime.”).
        22

        Id. at 378.
                                                                                 MOON — 12

               reasons that the juvenile court proclaimed orally from the bench at the
               conclusion of the hearing.

       !       in limiting its abuse-of-discretion analysis to a review of the specific
               reasons the juvenile court gave (whether written or oral), rather than to
               assay the entire record for any evidence that would support a valid
               reason to waive jurisdiction, regardless of whether the juvenile court
               purported to rely on that evidence/reason.

Review of these various assertions necessitates a fairly global exegesis of the statutory

scheme for the waiver of juvenile-court jurisdiction in Texas, as well as the abundant case

law that has been generated in the courts of appeals over the past half a century.

            II. THE LAW AND THE STANDARD OF APPELLATE REVIEW

                                  A. Kent v. United States

       The transfer of a juvenile offender from juvenile court to criminal court for

prosecution as an adult should be regarded as the exception, not the rule; the operative

principle is that, whenever feasible, children and adolescents below a certain age should be

“protected and rehabilitated rather than subjected to the harshness of the criminal system[.]”23

Because the waiver of juvenile-court jurisdiction means the loss of that protected status, in

Kent v. United States, the United States Supreme Court characterized the statutory transfer

proceedings in the District of Columbia as “critically important,” and held that any statutory

mechanism for waiving juvenile-court jurisdiction must at least “measure up to the essentials


       23

        Hidalgo, 983 S.W.2d at 754. See TEX . FAM . CODE § 51.01(2) (Juvenile Justice Code is to
be construed to balance “the concept of punishment for criminal acts” with the ideal “to remove,
where appropriate, the taint of criminality from children committing certain unlawful acts”—all
“consistent with the protection of the public and public safety”).
                                                                                 MOON — 13

of due process and fair treatment.”24 Among the requisites of a minimally fair transfer

process, the Supreme Court tacitly assumed in Kent, is the opportunity for meaningful

appellate review.25 The appellate court

       must have before it a statement of the reasons motivating the waiver including,
       of course, a statement of the relevant facts. It may not assume that there are
       adequate reasons, nor may it merely assume that full investigation has been
       made. Accordingly, we hold that it is incumbent upon the Juvenile Court to
       accompany its waiver order with a statement of the reasons or considerations
       therefor. We do not read the [relevant District of Columbia] statute as
       requiring that this statement must be formal or that it should necessarily
       include conventional findings of fact. But the statement should be sufficient
       to demonstrate that the statutory requirement of full investigation has been
       met; and that the question has received the careful consideration of the
       Juvenile Court; and it must set forth the basis for the order with sufficient
       specificity to permit meaningful review.26

In an appendix to its opinion in Kent, the Supreme Court included a policy memorandum

promulgated by the District of Columbia Juvenile Court that describes “determinative

factors” for guiding the juvenile court’s discretion in deciding whether waiver of its

jurisdiction over a particular juvenile offender is appropriate.27 The Texas Legislature soon

incorporated those factors, albeit non-exclusively, into our own statutory scheme.28 Missing

       24

       383 U.S. 541, 560-62 (1966).
       25

       See id. at 561 (“Meaningful review requires that the reviewing court should review.”).
       26

       Id. (internal quotation marks omitted).
       27

       Id. at 565-67.
       28

       Acts 1967, 60th Leg., ch. 475, § 4, p. 1083-84, eff. Aug. 28, 1967 (currently codified at
                                                                                     MOON — 14

from the Supreme Court’s Kent opinion, however, is any detailed description of a standard

for appellate review of the juvenile court’s transfer decision.

                                   B. The Statutory Scheme

       The Juvenile Justice Code of the Texas Family Code specifically provides that the

designated juvenile court of each county has “exclusive original jurisdiction over proceedings

in all cases involving . . . delinquent conduct . . . engaged in by a person who was a child

within the meaning of this title at the time the person engaged in the conduct.” 29 “Delinquent

conduct” includes “conduct . . . that violates a penal law of this state . . . punishable by

imprisonment or by confinement in jail;”30 and a “child,” as defined by the Juvenile Justice

Code, is any “person . . . ten years of age or older and under 17 years of age[.]”31 Thus, any

person accused of committing a felony offense between his tenth and seventeenth birthdays

is subject to the exclusive original jurisdiction of a juvenile court, meaning that the juvenile

court has the “power to hear and decide” matters pertaining to the juvenile offender’s case



TEX . FAM . CODE § 54.02(f)). See Robert O. Dawson, Delinquent Children and Children in Need
of Supervision: Draftsman’s Comments to Title 3 of the Texas Family Code, 5 TEX . TECH . L. REV .
509, 562 (1974) (“Most of the procedural safeguards incorporated in [§ 54.02] are probably required
as a matter of federal constitutional law by the Supreme Court’s decision in Kent v. United States,
383 U.S. 541 (1966).”). But see, contra: Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App.
1979) (“Kent did not purport to do more than construe the District of Columbia juvenile statutes, and
it is not clear that it sets constitutional requirements.”).
       29

        TEX . FAM . CODE § 51.04(a).
       30

        Id. § 51.03(a)(1).
       31

        Id. § 51.02(2)(a).
                                                                                      MOON — 15

“before any other court[,]” including the criminal district court, can review them.32

       The right of the juvenile offender to remain outside the jurisdiction of the criminal

district court, however, is not absolute. Section 54.02 of the Juvenile Justice Code provides

that, if certain conditions are met, the “juvenile court may waive its exclusive original

jurisdiction and transfer a child to the appropriate district court . . . for criminal

proceedings[.]”33 Before it may exercise its discretion to waive jurisdiction over an alleged

child offender, the juvenile court must find that

       (1) the child is alleged to have violated a penal law of the grade of felony; (2)
       the child was . . . 14 years of age or older at the time [of the alleged] offense,
       if the offense is . . . a felony of the first degree[;] 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

in the proper adult criminal court.34 “In making the determination required by Subsection

[54.02](a)”—that is, whether the “welfare of the community” indeed requires adult criminal

proceedings to be instituted against the juvenile,

       the [juvenile] court shall consider, among other matters: (1) whether the
       alleged offense was against person or property, with greater weight in favor of

       32

         BLACK’S LAW DICTIONARY 982 (10th ed. 2014) (defining “original jurisdiction” as “[a]
court’s power to hear and decide a matter before any other court can review the matter”). See also
id. at 981 (defining “exclusive jurisdiction” as “[a] court’s power to adjudicate an action or class of
actions to the exclusion of all other courts”).
       33

        TEX . FAM . CODE § 54.02(a).
       34

        Id.
                                                                                      MOON — 16

       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.35

These non-exclusive factors serve, we have said, to facilitate the juvenile court’s balancing

of “the potential danger to the public” posed by the particular juvenile offender “with the

juvenile offender’s amenability to treatment.”36 Finally, should the juvenile court choose to

exercise its discretion to waive jurisdiction over the child, then the Juvenile Justice Code

directs it to “state specifically” in a written order “its reasons for waiver and [to] certify its

action, including the written order and findings of the court.” 37

       For the juvenile, there are a number of advantages to remaining outside of the

jurisdiction of the adult criminal courts. Not the least of these advantages is that, with but

a few exceptions, a “child may not be committed or transferred to a penal institution or other

facility used primarily for the execution of sentences of persons convicted of crime, except




       35

         Id. § 54.02(f). These are the factors that derive from the Kent appendix. See note 27, ante.
They are “intended to guide the [juvenile] court’s discretion in making the determination to transfer.”
Dawson, 5 TEX . TECH . L. REV . at 564. Initially, Section 54.02(f) embraced all six of the Kent
factors, but the statute was amended in 1996 to remove two of them. Acts 1995, 74th Leg., ch. 262,
§ 34, p. 2533, eff. Jan. 1, 1996.
       36

        Hidalgo, 983 S.W.2d at 754.
       37

        TEX . FAM . CODE § 54.02(h)
                                                                                        MOON — 17

. . . after transfer for prosecution in criminal court under Section 54.02[.]” 38 Indeed, a

juvenile offender may not even be handed a sentence—“no disposition may be made”—upon

his being “found to have engaged in delinquent conduct” unless and until the juvenile court

or a jury determines that “the child is in need of rehabilitation or the protection of the public

or the child requires that disposition be made.”39 And we ourselves have acknowledged the

goals of the criminal justice system and the juvenile-justice system to be fundamentally

different, describing the former as more “retributive” than its “rehabilitative” juvenile

counterpart.40

        Prior to January 1, 1996, Section 56.01 of the Juvenile Justice Code provided, in one

phrasing or another, that an appeal “from an order entered under . . . Section 54.02 of this


        38

          There are other exceptions to this general rule not implicated in this case, including an
exception for “temporary detention in a jail or lockup pending juvenile court hearing,” id. §
51.13(c)(1), as well as one for “transfer . . . under Section 245.151(c), Human Resources Code.” Id.
§ 51.13(c)(3); see also TEX . HUM . RES. CODE § 245.151(c) (the Texas Juvenile Justice Department
“shall transfer” an adjudicated juvenile offender “to the custody of the Texas Department of Criminal
Justice for the completion of the person's sentence” when, pursuant to court order under TEX . FAM .
CODE § 54.11(i)(2) and TEX . HUM . RES. CODE § 244.014(a), the juvenile court determines that “the
child’s conduct” while under State supervision “indicates that the welfare of the community requires
the transfer”).
        39

         See TEX . FAM . CODE § 54.04(c) (“If the court or jury does not so find, the court shall dismiss
the child and enter a final judgment without any disposition.”). In keeping with the Juvenile Justice
Code’s stated purpose to “remove, where appropriate, the taint of criminality from children
committing certain unlawful acts[,]” TEX . FAM . CODE § 51.01(2)(B), the juvenile-justice equivalent
of a “conviction” for delinquent conduct is referred to instead as an “adjudication,” TEX . FAM . CODE
§ 54.03, and the juvenile-justice equivalent of a “sentence” for an adjudication is instead referred to
as a “disposition.” TEX . FAM . CODE § 54.04.
        40

        Hidalgo, 983 S.W.2d at 755.
                                                                               MOON — 18

code respecting transfer of the child to criminal court for prosecution as an adult” could be

taken “by or on behalf of a child” directly from the juvenile court to the proper court of

appeals.41 What this meant in practical terms was that an alleged juvenile offender could

complain immediately of the juvenile court’s order waiving its jurisdiction, and, if

appropriate, seek discretionary review from the Texas Supreme Court “as in civil cases

generally.”42 In 1995, however, the Legislature approved an amendment to the Juvenile

Justice Code, effective January 1, 1996, in which the portion of Section 56.01(c) that

provides for the direct, civil appealability of Section 54.02 waivers was struck.43

Contemporaneous with this amendment, the Legislature added Article 44.47 to the Texas

Code of Criminal Procedure, providing in Section (b) thereof that a “defendant may appeal

a transfer under [Section 54.02, Family Code] only in conjunction with the appeal of a

conviction of . . . the offense for which the defendant was transferred to criminal court.” 44

What this means in practical terms is that an alleged juvenile offender may no longer

immediately appeal from the juvenile court’s waiver of jurisdiction; instead, he must wait

until such time as he may be convicted in an adult criminal court to complain, on appeal, of



       41

       See Acts 1973, 63d Leg., ch. 544, § 1. p. 1483, eff. Sept. 1, 1973.
       42

       Id.
       43

       Acts 1995, 74th Leg., ch. 262, § 48, p. 2546, eff. Jan. 1, 1996.
       44

       Id. at § 85, p. 2584 (emphasis added).
                                                                                 MOON — 19

some error in the juvenile court’s transfer ruling. Although the Legislature designated an

appeal from a juvenile court’s Section 54.02 order to be a “criminal matter . . . governed by

[the Code of Criminal Procedure] and the Texas Rules of Appellate Procedure that apply to

a criminal case[,]” it nevertheless expressly provided, in Article 44.47(d), that an appeal

under Article 44.47(b) “may include any claims under the law that existed before January 1,

1996, that could have been raised on direct appeal in a transfer under Section 54.02, Family

Code.” 45

       What is lacking in our statutory scheme—as is lacking in Kent—is any express

statement of the applicable standard of appellate review of the juvenile court’s transfer order.

In the absence of an explicit statutory standard of appellate review, the courts of appeals have

filled the void with decisional law spelling out how they will go about providing the

“meaningful review” contemplated by Kent.

                       C. The Consensus in the Courts of Appeals

       In the absence of explicit provisions in the Juvenile Justice Code that define a standard

for appellate review of juvenile transfer orders, the general consensus of the various courts

of appeals has been as follows. The burden is on the petitioning party, the State, to produce

evidence to inform the juvenile court’s discretion as to whether waiving its otherwise-

exclusive jurisdiction is appropriate in the particular case.46 Transfer of a juvenile offender

       45

        Id.
       46

        Matter of Honsaker, 539 S.W.2d 198, 201 (Tex. Civ. App. —Dallas 1976, ref’d n.r.e.);
                                                                                   MOON — 20

to criminal court is appropriate only when the State can persuade the juvenile court, by a

preponderance of the evidence,47 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).48 In exercising its discretion, the juvenile court must

consider all of the Kent factors as currently codified in Section 54.02(f) of the Juvenile

Justice Code;49 “it is from the evidence concerning [the Section 54.02(f)] factors that a

[juvenile] court makes its final determination.”50 But it need not find that each and every one

of those factors favors transfer before it may exercise its discretion to waive jurisdiction.51

It may transfer the juvenile so long as it is satisfied by a preponderance of the evidence that


B.R.D. v. State, 575 S.W.2d 126, 131 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.);
Matter of M.I.L., 601 S.W.2d 175, 177 (Tex. Civ. App.—Corpus Christi 1980, no writ); Matter of
E.D.N., 635 S.W.2d 798, 800 (Tex. App.—Corpus Christi 1982, no writ); Moore v. State, 713
S.W.2d 766, 768 (Tex. App.—Houston [14th Dist.] 1986, no writ).
       47

        Matter of P.B.C., 538 S.W.2d.448, 453 (Tex. Civ. App.—El Paso 1976, no writ).
       48

        Faisst v. State, 105 S.W.3d 8, 11 (Tex. App.—Tyler 2003, no pet.).
       49

         See In re J.R.C., 522 S.W.2d 579, 584 (Tex. Civ. App.—Texarkana 1975, ref’d n.r.e.)
(juvenile court’s “findings should show an investigation in every material field [listed in Section
54.02(f)] was undertaken and the result thereof”).
       50

        Matter of M.I.L., 601 S.W.2d at 177.
       51

        E.g., Matter of J.R.C., 551 S.W.2d 748, 753 (Tex. Civ. App.—Texarkana 1977, ref’d n.r.e.);
D.J.R. v. State, 565 S.W.2d 392, 395 (Tex. Civ. App.—Fort Worth 1978, no writ); Matter of G.B.B.,
572 S.W.2d 751, 756 (Tex. Civ. App.—El Paso 1978, ref’d n.r.e.); Casiano v. State, 687 S.W.2d
447, 449 (Tex. App.—Houston [14th Dist.] 1985, no writ); Matter of K.D.S., 808 S.W.2d 299, 302
(Tex. App.—Houston [1st Dist.] 1991, no writ); C.M. v. State, 884 S.W.2d 562, 564 (Tex.
App.—San Antonio 1994, no writ).
                                                                                           MOON — 21

the seriousness of the offense or the background of the child (or both) indicates that the

welfare of the community requires criminal proceedings.52

        With respect to the adequacy of the written order mandated by Section 54.02(h), the

courts of appeals have generally agreed, first of all, that the written order must reflect the

juvenile court’s “reasons” for waiving jurisdiction.53 Despite the express edict of the statute

(i.e., the written order “shall state specifically [the juvenile court’s] reasons for waiver”), the

courts of appeals have sometimes sanctioned orders that recited the reasons for transfer in

terms no more specific than the bare statutory language, namely, that because of the



        52

         See, e.g., Matter of J.R.C., 551 S.W.2d at 753 (“Section 54.02 does not require that, in order
for the juvenile court to waive its jurisdiction, all of the matters listed in Subsection (f) must be
established. * * * The statute only directs that the juvenile court consider the matters listed under
Subsection (f) in making its determination. * * * They are the criteria by which it may be
determined if the juvenile court properly concluded that the seriousness of the offense or the
background of the child required a transfer to criminal court.”); In re Q.D., 600 S.W.2d 392, 395
(Tex. Civ. App.—Fort Worth 1980, no writ) (“[T]he [juvenile] court is bound only to consider all
[of the Subsection (f)] factors. It need not find that each factor is established by the evidence.”);
P.G. v. State, 616 S.W.2d 635, 639 (Tex. Civ. App.—San Antonio 1981, ref’d n.r.e.) (“The
[juvenile] court need not find that all the factors in subdivision (f) have been established, but it must
consider all these factors and state the reasons for its transfer so that the appellate court may review
the basis on which the conclusion was made and can determine whether the evidence so considered
does in fact justify that conclusion.”); Matter of E.D.N., 635 S.W.2d at 800 (“If the evidence
establishes enough of the factors in subdivision (f) to convince the [juvenile] court that a transfer is
in the best interest of the child and community, we will not disturb that order.”); McKaine v. State,
170 S.W.3d 285, 291 (Tex. App.—Corpus Christi 2005, no pet.) (While the juvenile court must
consider all of these factors before transferring the case to district court, it is not required to find that
each factor is established by the evidence. * * * The court is also not required to give each factor
equal weight as long as each is considered.”).
        53

        See e.g., In re J.R.C., 522 S.W.2d at 584 (“The reasons motivating the Juvenile Court’s
waiver of jurisdiction must expressly appear.”); P.G., 616 S.W.2d at 639 (juvenile court must “state
the reasons for its transfer”).
                                                                                      MOON — 22

seriousness of the offense or the background of the child, transfer is required to ensure the

welfare of the community.54 In addition to specifying “reasons,” the order should also

expressly recite that the juvenile court actually took the Section 54.02(f) factors into account

in making this determination.55 But it need make no particular findings of fact with respect

to those factors,56 notwithstanding Section 54.02(h)’s pointed requirement that the juvenile


       54

         Matter of Honsaker, 539 S.W.2d at 200, 201-02 (construing In re J.R.C. and holding that
a transfer order that recited the statutory criteria for waiver of juvenile jurisdiction and found them
to be satisfied provided “sufficient specificity . . . to allow an appellate court to review and
understand the reason for the juvenile court’s determination”); D.L.C. v. State, 533 S.W.2d 157, 159
(Tex. Civ. App.—Austin 1976, no writ) (order stating in conclusory terms that the Subsection (f)
factors were satisfied, without going into detail, was nevertheless sufficient to comply with the
requirement of written “reasons” in Subsection (h)); In re W.R.M., 534 S.W.2d 178, 181 (Tex. Civ.
App.—Eastland 1976, no writ) (“In the instant case, the order discloses that the matters listed in
Subsection (f) were considered, and the order states specific reasons for waiver. The fact that some
of the recitations constitute conclusions does not require a reversal of the court’s order.”); Q.V. v.
State, 564 S.W.2d 781, 784 (Tex. Civ. App.—San Antonio 1978, ref’d n.r.e.) (written transfer order
that merely stated conclusorily that Subsection (f) factors were satisfied, sans any detailed
description of the evidence, was nevertheless “sufficiently specific as to the ‘reasons’ for” the
juvenile court’s decision to waive jurisdiction); In re C.L.Y., 570 S.W.2d 238, 239, 241 (Tex. Civ.
App.—Houston [1st Dist.] 1978, no writ) (same); Appeal of B.Y., 585 S.W.2d 349, 351 (Tex. Civ.
App.—El Paso 1979, no writ) (“Reversible error is not present here by the fact that the [juvenile
court’s] order seems to parrot the Section 54.02 list of factors the [juvenile court] should consider
in making a transfer; the enumerated reasons are supported by evidence. The order is sufficient.”);
In re I.B., 619 S.W.2d 584, 587 (Tex. Civ. App.—Amarillo 1981, no writ) (same); Matter of T.D.,
817 S.W.2d 771, 775-77 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (same).
       55

        In re W.R.M., 534 S.W.2d at 182 (order is sufficient if it “discloses that the matters listed
in Subsection (f) were considered”); In re C.L.Y., 570 S.W.2d at 239 (transfer order stated that the
juvenile court “has considered” the Subsection 54.02(f) factors); P.G., 616 S.W.2d at 638-39
(juvenile court’s order “listed the . . . factors of section 54.02(f) and stated that each had been
considered in making a determination” that waiver of jurisdiction was appropriate); Casiano, 687
S.W.2d at 449 (“An order is sufficient which states [inter alia] that all factors listed in § 54.02(f)
were considered by the [juvenile] court[.]”).
       56

        See note 54, ante. Early case law seemed to contemplate that greater specificity might be
                                                                                       MOON — 23

court “certify its action, including the . . . findings of the court[.]”

       The courts of appeals have also uniformly agreed that, absent an abuse of discretion,

a reviewing court should not set aside the juvenile court’s order transferring jurisdiction.57

What they mean by “abuse of discretion” in this context is not altogether clear. Some courts

of appeals have declared that the juvenile court’s decision must simply be a guided one, not

arbitrary or capricious.58 Even so, the courts of appeals have entertained various challenges


necessary to satisfy Kent’s emphasis on meaningful appellate review. See In re J.R.C., 522 S.W.2d
at 583-84 (“To sum up, besides giving reasons for waiver in its order the Juvenile Court has a
mandatory duty to file findings covering matters actually considered, including all matters mentioned
in Subsection (f), and to certify such order and findings to the appropriate district court.”). This
insistence on “rigid adherence to the governing statutes . . . in proceedings of this nature[,]” id. at
584, however, soon gave way to a laxer attitude that, so long as the juvenile court’s order identified
the relevant factors (however conclusorily) and the evidence would support a transfer based on those
factors, the order would be regarded as sufficient. See Douglas A. Hager, Does the Texas Juvenile
Waiver Statute Comport with the Requirements of Due Process?, 26 TEX . TECH . L. REV . 813, 838-45
(1995) (tracing the retreat of the courts of appeals from “the procedural safeguards inherent in the
J.R.C. holding”); Robert O. Dawson, Delinquent Children and Children in Need of Supervision:
Draftsman’s Comments to Title 3 of the Texas Family Code, 5 TEX . TECH . L. REV . 509, 564-65
(1974) (“The committee’s draft [of Section 54.02(h)] stated that if the juvenile court waives
jurisdiction ‘it shall briefly state in the order its reasons for waiver.’ The fact that the Legislature
changed ‘briefly state’ to ‘state specifically’ indicates that it contemplated more than merely an
adherence to printed forms and, indeed, contemplated a true relevation [sic] of reasons for making
this discretionary decision.”).
       57

        E.g., Matter of Honsaker, 539 S.W.2d at 201; C.M., 884 S.W.2d at 563; Matter of J.P.O.,
904 S.W.2d 695, 698 (Tex. App.—Corpus Christi 1995, writ denied); Matter of K.B.H., 913 S.W.2d
684, 687-88 (Tex. App.—Texarkana 1995, no pet.); In re J.J., 916 S.W.2d 532, 535 (Tex.
App.—Dallas 1995, no writ); State v. Lopez, 196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet.
ref’d); Faisst, 105 S.W.3d at 12. Cf. T.P.S. v. State, 590 S.W.2d 946, 953-54 (Tex. Civ.
App.—Dallas 1979, ref’d n.r.e.) (observing that Kent “recognizes that the statute of the District of
Columbia there in question gave the juvenile court a substantial degree of discretion as to the factual
considerations to be evaluated, the weight to be given them and the conclusion to be reached”)
(internal quotation marks omitted).
       58

        See, e.g., Matter of M.D.B., 757 S.W.2d 415, 417 (Tex. App.—Houston [14th Dist.] 1988,
                                                                                      MOON — 24

to the legal and/or factual sufficiency of the evidence presented at the transfer hearing to

support the juvenile court’s decision to waive its jurisdiction.59 Some courts of appeals (like

the court of appeals in this case) have examined the evidence to determine its sufficiency to

support specific findings of fact with respect to the Section 54.02(f) factors,60 while mindful


no writ) (“In reviewing the [juvenile] court’s action for an abuse of discretion, this court must
determine if the [juvenile] court acted without reference to any guiding rules and principles.”);
Matter of T.D., 817 S.W.2d at 773 (“The [juvenile] court must act with reference to guiding rules
and principles, reasonably, not arbitrarily, and in accordance with the law.”).
       59

         See, e.g., Matter of I.J., Jr., 546 S.W.2d 110, 111 (Tex. Civ. App.—Eastland 1977, no writ)
(finding the evidence to support “the findings in the transfer order” to be both legally and factually
sufficient); Matter of T.D., 817 S.W.2d at 777 (“The [juvenile] court’s findings of fact are
reviewable for legal and factual sufficiency of the evidence to support them by the same standards
applied in reviewing the legal or factual sufficiency of the evidence supporting the jury’s answers
to special issues.”); Matter of G.F.O., 874 S.W.2d 729, 731-32 (Tex. App.—Houston [1st Dist.]
1994, no writ) (“If an appellate court finds the evidence factually or legally insufficient to support
the juvenile court’s order transferring jurisdiction of a youth to the criminal district court, it will
necessarily find the juvenile court has abused its discretion.”); Matter of J.P.O, 904 S.W.2d at 699-
700 (“The juvenile court’s findings of fact are reviewable for legal and factual sufficiency of the
evidence to support them by the same standards as are applied in reviewing the legal or factual
sufficiency of the evidence supporting a jury’s answers to a charge.”); Matter of K.B.H., 913 S.W.2d
at 688 (“Under an abuse of discretion standard, the legal sufficiency of the evidence is not an
independent ground of error, but is a relevant factor in assessing whether the [juvenile] court abused
its discretion.”); Faisst, 105 S.W.3d at 12 (“Relevant factors to be considered when determining if
the [juvenile] court abused its discretion include legal and factual sufficiency of the evidence.”);
Bleys v. State, 319 S.W.3d 857, 861 (Tex. App.—San Antonio 2010, no pet.) (same).
       60

           See, e.g., Matter of P.A.C., 562 S.W.2d at 916-17 (finding that the evidence was factually
sufficient to support the juvenile court’s findings with respect to several of the subsection (f)
factors); Moore, 713 S.W.2d at 768-70 (reviewing both the legal and factual sufficiency of the
evidence to support the juvenile court’s findings with respect to various subsection (f) factors);
Matter of T.D., 817 S.W.2d at 777-79 (conducting legal and factual sufficiency analysis of the last
subsection (f) factor); In re J.J., 916 S.W.2d at 537 (“Additionally, there was legally and factually
sufficient evidence before the [juvenile] court supporting affirmative findings regarding each of the
. . . factors set forth in section 54.02(f) of the family code.”); Matter of D.D., 938 S.W.2d 172, 174-
76 (Tex. App.—Fort Worth 1996, no writ) (reviewing the factual sufficiency of the evidence to
support the juvenile court’s finding regarding two of the subsection (f) factors); Bleys, 319 S.W.3d
                                                                                          MOON — 25

that not every factor must support transfer before the juvenile court may exercise its

discretion to waive jurisdiction.61        Other courts of appeals have accepted the juvenile

offender’s invitation to measure the sufficiency of the evidence to support the juvenile

court’s ultimate conclusion, pursuant to Section 54.02(a), that the seriousness of the offense

or background of the child indicated the need for transfer in order to ensure the welfare of

the community.62 No court of last resort in Texas, insofar as our research reveals, has yet


at 862-63 (reviewing the factual sufficiency of the evidence to support the juvenile court’s finding
under Section 54.02(f)(4)).
        61

             See, e.g., L.M. v. State, 618 S.W.2d 808, 813 (Tex. Civ. App.—Houston [1st Dist.] 1981,
ref’d n.r.e.) (“Although all of the factors enumerated in section 54.02(f) must be considered by the
[juvenile] judge, each one need not be present in a specific case.”); Matter of E.D.N., 635 S.W.2d
at 800 (“While the court must consider all of these factors, it need not find that they have all been
established.”); C.W. v. State, 738 S.W.2d 72, 75 (Tex. App.—Dallas 1987, no writ) (“The [juvenile]
court is bound to consider, as it did in this case, all [of the] statutory factors, among other matters.
It need not find that each of the . . . factors is established by the evidence.”); Matter of M.D.B., 757
S.W.2d at 417 (“[W]hile the juvenile court is required to consider all [of the] factors of § 54.02(f)
. . ., it is not required to find that each factor is established by the evidence.”); Matter of C.C.G., 805
S.W.2d 10, 15 (Tex. App.—Tyler 1991, writ denied) (same); In re J.J., 916 S.W.2d at 535 (same);
Matter of D.D., 938 S.W.2d at 176 (same); Bleys, 319 S.W.3d at 862 (same).
        62

         See, e.g., Moore, 713 S.W.2d at 767-68, 770 (reviewing the legal and factual sufficiency
of the evidence to support the juvenile court’s determination that the seriousness of the offense and
the child’s background justified transfer); Matter of T.D., 817 S.W.2d at 777 (at least nominally
reviewing legal and factual sufficiency of the ultimate question of whether there is “probative
evidence that the welfare of the community required a waiver of jurisdiction of the juvenile court and
criminal proceedings against appellant”); Matter of J.P.O., 904 S.W.2d at 700-02 (Reviewing both
the legal and factual sufficiency of the evidence to support the juvenile court’s bottom-line
conclusion that transfer was appropriate); In re J.J., 916 S.W.2d at 536-37 (finding the evidence
sufficient to support the juvenile court’s determination that both the seriousness of the offense and
the child’s background merited waiving jurisdiction); Matter of D.D., 938 S.W.2d at 176-77
(reviewing the factual sufficiency of the evidence to support the juvenile court’s subsection (a)
determination whether the seriousness of the offense or the child’s background warranted transfer);
Bleys, 319 S.W.3d at 862-63 (reviewing the factual sufficiency of the evidence to support the
juvenile court’s conclusion under Section 54.02(a)(3)).
                                                                                 MOON — 26

spoken on these matters.

       The State argues that the court of appeals in this case erred in four respects. First, the

court of appeals erred to conduct a factual-sufficiency review, since appeal from a juvenile

transfer order is now “a criminal matter” that is “governed” by the Texas Code of Criminal

Procedure and the rules of appellate procedure that apply to criminal cases.63 After all, this

Court, in Brooks v. State, rejected factual sufficiency for purposes of criminal appeals.64

Second, the court of appeals erred to conclude that the seriousness of the offense could not,

by itself, justify the juvenile court’s transfer order. Third and fourth, the court of appeals

erred by failing to take into account the reasons for waiver of jurisdiction that the juvenile

court gave orally on the record, and, for that matter, any other justifications for transfer that

may appear in the record, regardless of whether the juvenile court purported to rely on them,

either orally on the record or in its written order. These are questions that the courts of

appeals have never explicitly addressed.

                                       III. ANALYSIS

                       A. Factual Sufficiency Under Section 54.02

       The State argues that the court of appeals erred to apply a factual-sufficiency standard

to the Section 54.02(f)(4) factor, regarding “the prospects of adequate protection of the

public and the likelihood of rehabilitation of the child by use of procedures, services, and

       63

        TEX . CODE CRIM . PROC. art. 44.47(c).
       64

        Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
                                                                                      MOON — 27

facilities currently available to the juvenile court.”65 Indeed, in a supplemental brief filed

after oral argument in this Court, the State argues that the appropriate standard of appellate

review ought to be a bare abuse-of-discretion standard, unencumbered by any inquiry into

the sufficiency of the evidence, either legal or factual, to support the juvenile court’s transfer

order. We disagree.

       That the appeal of a transfer order is now regarded as a “criminal matter,” under

Article 44.47(c), does not in itself control the question of whether factual-sufficiency review

is available on direct appeal.66 The juvenile transfer proceeding remains civil in character,

governed by the Juvenile Justice Code; the proceedings do not become criminal unless and

until the juvenile court waives its exclusive jurisdiction and transfers the child to a criminal

court for prosecution as an adult. More to the point, the availability of factual-sufficiency

review is, in any event, not so much a function of the character of the proceeding—civil

versus criminal—as it is a function of the applicable burden of proof. As we have already

pointed out, in a juvenile transfer proceeding, the burden is on the State to produce evidence

that persuades the juvenile court, by a preponderance of the evidence, that waiver of its



       65

         TEX . FAM . CODE § 54.02(f)(4). See Moon, 410 S.W.3d at 377 (holding that the evidence was
legally sufficient to establish this factor, but factually insufficient).
       66

         Indeed, in light of Article 44.47(d), it is arguable that factual sufficiency remains a viable
claim on appeal from a transfer order, notwithstanding that it is now a “criminal matter.” After all,
factual sufficiency was a “claim[] under the law that existed before January 1, 1996, that could have
been raised on direct appeal of a transfer under Section 54.02, Family Code.” TEX . CODE CRIM .
PROC. art. 44.47(d).
                                                                                     MOON — 28

exclusive jurisdiction is appropriate. Facts which must be proven by a preponderance of the

evidence are ordinarily susceptible to appellate review for factual sufficiency.67 In arguing

that factual-sufficiency review is unavailable, the State analogizes to the juvenile-

adjudication proceedings.68 In that context, the courts of appeals have declined to conduct

factual-sufficiency review, noting that adjudication proceedings are “quasi-criminal” in

nature.69   But the burden of proof in a juvenile-adjudication proceeding is beyond a

reasonable doubt,70 not a preponderance of the evidence. In that context, it is certainly

arguable that our holding in Brooks applies.71 In the review of any issue that is subject to a

burden of proof less than beyond a reasonable doubt, however, the Texas Supreme Court has

       67

        Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
       68

        State’s Brief on the Merits at 12-13.
       69

        See In re R.R., 373 S.W.3d 730, 734 (Tex. App.—Houston [14th Dist.] 2012, writ denied)
(“Although juvenile [adjudication] proceedings are civil matters, the standard applicable in criminal
matters [i.e., proof beyond a reasonable doubt] is used to assess the sufficiency of the evidence a
finding the juvenile has engaged in delinquent conduct.”); In re A.O., 342 S.W.3d 236, 239 (Tex.
App.—Amarillo 2011, writ denied) (same). Cf., In re B.L.D., 113 S.W.3d 340, 351 (Tex. 2003)
(juvenile delinquency cases are considered to be “quasi-criminal”). The State cites only one case
which suggests, and then only in obvious dicta, that factual-sufficiency review may likewise be
inappropriate for appellate review of juvenile transfer proceedings after the enactment of Article
44.47. See In re M.A.V., 88 S.W.3d 327, 331 n.2 (Tex. App.—Amarillo 2002, no pet.).
       70

         See TEX . FAM . CODE § 54.03(f) (“The child shall be presumed to be innocent of the charges
against the child and no finding that a child has engaged in delinquent conduct or conduct indicating
a need for supervision may be returned unless the state has proved such beyond a reasonable
doubt.”).
       71

        In re R.R., 373 S.W.3d at 734; In re A.O., 342 S.W.3d at 239; In re C.E.S., 400 S.W.3d
187, 194 (Tex. App.—El Paso 2013, no writ).
                                                                                      MOON — 29

authorized the courts of appeals to conduct a factual-sufficiency review.72 The particular

appellate standard for factual sufficiency depends upon the level of confidence applicable

to the burden of proof—whether preponderance of the evidence or clear and convincing

evidence—in the trial court.73 But the courts of appeals have continued to address issues of

factual sufficiency when they are raised on appeal in all but the juvenile-adjudication context.

Indeed, even in criminal cases, we have said that the courts of appeals may conduct factual-

sufficiency reviews when confronted with fact issues for which the burden of proof is by a

preponderance of the evidence.74 The court of appeals did not err to address the appellant’s

contention that the evidence was factually insufficient to support the juvenile court’s finding




       72

        See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (announcing the appropriate appellate standard
for review of factual-sufficiency claims in cases of termination of parental rights, in which the State
must satisfy a clear and convincing evidence burden of proof); In re J.F.C., 96 S.W.3d 256, 266-67
(Tex. 2002) (same). And, indeed, in In re A.O., the Amarillo Court of Appeals, having refused to
subject the juvenile-adjudication proceeding to factual-sufficiency review, in the next breath did
conduct a factual-sufficiency review of the evidence proffered at the juvenile disposition hearing.
342 S.W.3d at 240.
       73

         See In re C.H., 89 S.W.3d at 25 (distinguishing appropriate appellate standard for factual
sufficiency depending upon whether the trial-level burden of proof is preponderance of the evidence
or clear and convincing evidence); In re J.F.C., 96 S.W.3d at 267 (same). See also Southwestern
Bell Telephone Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004) (“In sum, we think that whenever
the standard of proof at trial is elevated, the standard of appellate review must likewise be
elevated.”).
       74

        See Matlock, 392 S.W.3d at 667, 670 (“Prior to Brooks, we used the traditional Texas civil
burdens of proof and standards of review in the context of affirmative defenses where the rejection
of an affirmative defense is established by a ‘preponderance of the evidence.’ Our decision in
Brooks did not affect that line of cases. * * * A criminal defendant might also raise a factual-
sufficiency challenge to the jury’s adverse finding on his affirmative defense.”) (footnotes omitted).
                                                                                     MOON — 30

with respect to Section 52.04(f)(4).75

       Having said that, we do agree with the State’s contention to the limited extent that it

may argue that sufficiency review should not apply to appellate review of the ultimate

question under Section 54.02(a)(3), that is, whether “because of the seriousness of the

offense alleged or the background of the child the welfare of the community requires

criminal proceedings.” The discretion of the juvenile court is at its apex when it makes this

largely normative judgment.76 As long as the appellate court can determine that the juvenile

court’s judgment was based upon facts that are supported by the record, it should refrain

from interfering with that judgment absent a scenario in which the facts identified in the



       75

        The State does not take issue with the court of appeals’s formulation of the difference, under
current law, between legal- and factual-sufficiency analyses:

               Under a legal sufficiency challenge, we credit evidence favorable to the
       challenged finding and disregard contrary evidence unless a reasonable fact finder
       could not reject the evidence. * * * Under a factual sufficiency challenge, we
       consider all of the evidence presented to determine if the [juvenile] court’s finding
       is so against the great weight and preponderance of the evidence as to be clearly
       wrong or unjust.”

Moon, 410 S.W.3d at 370-71 (citations omitted).
       76

        Whether the offense is serious enough, and/or the juvenile’s background demonstrates, that
waiver of the juvenile court’s jurisdiction is warranted to ensure the welfare of the community is,
in many respects, similar to the question of whether the non-exclusive Keeton factors warrant a
jury’s prediction, at the punishment phase of a capital-murder trial, that the accused will probably
commit criminal acts of violence that would constitute a continuing threat to society. Even before
Brooks was decided, we insisted that this special issue, while not “wholly normative in nature,” is
nevertheless too “value-laden” to be amenable to a factual-sufficiency review. McGinn v. State, 961
S.W.2d 161, 169 (Tex. Crim. App. 1998); Keeton v. State, 724 S.W.2d 58, 61-64 (Tex. Crim. App.
1987); TEX . CODE CRIM . PROC. art. 37.071 §2(b)(1).
                                                                                 MOON — 31

transfer order, based on evidence produced at the transfer hearing as it relates to the non-

exclusive Subsection (f) factors and beyond, bear no rational relation to the specific reasons

the order gives to justify the conclusion that the seriousness of the offense and/or the

juvenile’s background warrant transfer. The appellate courts should conduct appellate

review of the juvenile court’s discretionary decision to waive jurisdiction in essentially the

same way that the El Paso Court of Appeals has said that the juvenile court’s discretion in

determining juvenile dispositions should be scrutinized on appeal, to wit:

       We apply a two-pronged analysis to determine an abuse of discretion: (1) did
       the [juvenile] court have sufficient information upon which to exercise its
       discretion; and (2) did the [juvenile] court err in its application of discretion?
       A traditional sufficiency of the evidence review helps answer the first
       question, and we look to whether the [juvenile] court acted without reference
       to any guiding rules or principles to answer the second.77

Similarly, we hold that, in evaluating a juvenile court’s decision to waive its jurisdiction, an

appellate court should first review the juvenile court’s specific findings of fact regarding the

Section 54.02(f) factors under “traditional sufficiency of the evidence review.” But it should

then review the juvenile court’s ultimate waiver decision under an abuse of discretion

standard. That is to say, in deciding whether the juvenile court erred to conclude that the

seriousness of the offense alleged and/or the background of the juvenile called for criminal

proceedings for the welfare of the community, the appellate court should simply ask, in light

of its own analysis of the sufficiency of the evidence to support the Section 54.02(f) factors


       77

        In re J.R.C.S., 393 S.W.3d 903, 914 (Tex. App.—El Paso 2012, no writ). See also In re
M.A.C., 999 S.W.2d 442, 446 (Tex. App.—El Paso 1999, no writ).
                                                                                        MOON — 32

and any other relevant evidence, whether the juvenile court acted without reference to

guiding rules or principles. In other words, was its transfer decision essentially arbitrary,

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

application of the legislative criteria? And, of course, reviewing courts should 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.78

                               B. The Seriousness of the Offense

        The State complains that the court of appeals should not have concluded that the

juvenile court abused its discretion for waiving jurisdiction based upon the seriousness of the

offense. The State points out that the juvenile court made an explicit finding of fact in its

transfer order that the appellant’s alleged offense was committed against the person of

another, under Section 54.02(f)(1). This finding of fact was amply supported by the record,

the State contends, and was sufficient by itself to provide a legitimate basis for the trial

court’s discretionary decision to waive jurisdiction. The court of appeals rejected this

contention because “[i]f, as the State argues, the nature of the offense alone justified waiver,

transfer would automatically be authorized in certain classes of ‘serious’ crimes such as

murder, and the subsection (f) factors would be rendered superfluous.” 79 In support of the

        78

         See Hidalgo, 983 S.W.3d at 754 n.16 (“The juvenile court is not required to find each
criterion before it can transfer a case to district court. The court may order a transfer on the strength
of any combination of the criteria.”).
        79

        Moon, 410 S.W.3d at 375.
                                                                                     MOON — 33

court of appeals’s observation, the appellant reminds us that the Supreme Court in Kent

seems to have disfavored the “routine waiver [of juvenile-court jurisdiction] in certain classes

of alleged crime.” 80

       The courts of appeals have long held that the offense that the juvenile is alleged to

have committed, so long as it is substantiated by evidence at the transfer hearing and of a

sufficiently egregious character, will justify the juvenile court’s waiver of jurisdiction

regardless of what the evidence may show with respect to the child’s background and other

Section 54.02(f) factors.81 This is different from holding that the mere category of offense

the juvenile is alleged to have committed, without more, will serve to justify transfer. If that


       80

        Appellant’s Response to the State’s Brief at 13 (citing Kent, 383 U.S. at 553 n.15).
       81

         The earliest case to so hold was In re Buchanan, 433 S.W.2d 787, 789 (Tex. Civ.
App.—Fort Worth 1968, ref’d n.r.e.). Almost eight years later, another court of appeals reversed a
juvenile transfer order, inter alia, because of a lack of evidence substantiating a bare recitation in
the transfer order that “the offense was murder, committed against the person of another[.]” R.E.M.,
541 S.W.2d at 846-47. The San Antonio Court of Appeals distinguished Buchanan, observing that
there, “the ‘evidence introduced at the hearing show[ed] without dispute that appellant shot and
killed a man without provocation or cause.’ 433 S.W.2d at 789. Here there is no admissible
evidence to that effect.” R.E.M., supra, at 847. Later cases have likewise found the evidence
sufficient to support waiver of juvenile jurisdiction based on the seriousness of the offense alone,
as established by evidence presented at the transfer hearing. See e.g., Matter of C.C.G., 805 S.W.2d
at 14-15 (“[A]ssuming, arguendo that there is insufficient evidence concerning the background of
appellant, the juvenile court’s determination that the seriousness of the offense, as substantiated by
the evidence, is alone sufficient.”); C.M., 884 S.W.2d at 564 (“The [juvenile court] is free to decide
to transfer the case due to the seriousness of the crime, even if the background of the child suggests
the opposite.”); Matter of D.D., 938 S.W.2d at 177 (“The seriousness of the offenses D.D. is
charged with [capital murder, murder, aggravated kidnapping, among others] is sufficient to support
his transfer despite his background.”); Faisst, 105 S.W.3d at 11 (“[C]ourt does not abuse its
discretion by finding the community’s welfare requires transfer due to the seriousness of the crime
[intoxication manslaughter] alone, despite the child’s background.”); McKaine, 170 S.W.3d at 291
(same).
                                                                                    MOON — 34

is the only consideration informing the juvenile court’s decision to waive jurisdiction—the

category of crime alleged, rather than the specifics of the particular offense—then we agree

with the Supreme Court’s intimation in Kent that the transfer decision would almost certainly

be too ill-informed to constitute anything but an arbitrary decision.

       The transfer order in this case made no findings about the specifics of the capital

murder, finding no more than probable cause to believe that the appellant committed “the

OFFENSE alleged.” It gave as the juvenile court’s sole reason for waiving jurisdiction that,

“because of the seriousness of the OFFENSE, the welfare of the community requires criminal

proceedings[,]” and then it simply recited “that the OFFENSE allege [sic] to have been

committed WAS against the person of another[.]”82 The evidence at the hearing, of course,

painted a much more graphic picture of the appellant’s charged offense. Whether the court

of appeals should have taken that evidence into account in evaluating the juvenile court’s

exercise of discretion depends upon whether the abuse-of-discretion evaluation must be

limited to a review of the “specific reasons” and facts in support thereof that are expressly

set out in the juvenile court’s written transfer order as per Section 54.02(h), or whether the

court of appeals may take into account other reasons and other facts not explicitly set out in


       82

         The other two Subsection (f) findings of fact, stated equally conclusorily in the juvenile
court’s transfer order, corresponded to the sophistication-and-maturity factor (Section 54.02(f)(2))
and the prospects-for-adequate-public-protection-and-rehabilitation-of-the-juvenile factor (Section
54.02(f)(4)). Both of these factors seem far more relevant to the background-of-the-child reason for
concluding that the welfare of the community requires criminal proceedings than to the seriousness-
of-the-offense reason—the latter of which was the only Section 54.02(a)(3) reason that the juvenile
court actually provided in its transfer order to justify the waiver of jurisdiction.
                                                                                 MOON — 35

the transfer order. We turn to that question next.

        C. Appellate Review of the Reasons/Facts Cited in the Transfer Order

       There is an inherent tension between the broad discretion that the juvenile court is

afforded in making the normative judgment of whether to waive jurisdiction, on the one

hand, and Kent’s insistence upon the primacy of appellate review in order to assure that the

juvenile court’s broad discretion is not abused, on the other. The legislative response to this

inherent tension was to mandate, in Section 54.02(h), that the juvenile court “shall state

specifically in its order its reasons for waiver and certify its action, including the written

order and findings of the court[.]”83 Although the committee that drafted the Juvenile Justice

Code had recommended a version of this provision that would have required no more than

a “brief” statement of the reasons justifying transfer, the Legislature deemed this insufficient:

“The fact that the Legislature changed ‘briefly state’ to ‘state specifically’ indicates that it

contemplated more than merely an adherence to printed forms and, indeed, contemplated a

true relevation [sic] of reasons for making this discretionary decision.”84 Moreover, Section

54.02(h) obviously contemplates that both the juvenile court’s reasons for waiving its

jurisdiction and the findings of fact that undergird those reasons should appear in the transfer




       83

        TEX . FAM . CODE § 54.02(h).
       84

        Dawson, 5 TEX . TECH . L. REV . at 564-65.
                                                                                     MOON — 36

order.85 In this way the Legislature has required that, in order to justify the broad discretion

invested in the juvenile court, that court should take pains to “show its work,” as it were, by

spreading its deliberative process on the record, thereby providing a sure-footed and definite

basis from which an appellate court can determine that its decision was in fact appropriately

guided by the statutory criteria, principled, and reasonable—in short, that it is a decision

demonstrably deserving of appellate imprimatur even if the appellate court might have

reached a different result. This legislative purpose is not well served by a transfer order so

lacking in specifics that the appellate court is forced to speculate as to the juvenile court’s

reasons for finding transfer to be appropriate or the facts the juvenile court found to

substantiate those reasons.86 Section 54.02(h) requires the juvenile court to do the heavy

lifting in this process if it expects its discretionary judgment to be ratified on appeal. By the

same token, the juvenile court that shows its work should rarely be reversed.

       Given this legislative regime, we think it only fitting that a reviewing court should

measure sufficiency of the evidence to support the juvenile court’s stated reasons for transfer

by considering the sufficiency of the evidence to support the facts as they are expressly found

by the juvenile court in its certified order. The appellate court should not be made to


       85

        In re J.R.C., 522 S.W.2d at 583-84.
       86

        Cf. State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006) (requiring trial courts to
enter explicit findings of fact in the pre-trial motion to suppress context because “courts of appeals
should not be forced to make assumptions (or outright guesses) about a trial court’s ruling on a
motion to suppress”; thus ensuring “a resolution [on appeal] that is based on the reality of what
happened rather than on assumptions that may be entirely fictitious”).
                                                                                  MOON — 37

rummage through the record for facts that the juvenile court might have found, given the

evidence developed at the transfer hearing, but did not include in its written transfer order.

We therefore hold that, in conducting a review of the sufficiency of the evidence to establish

the facts relevant to the Section 54.02(f) factors and any other relevant historical facts, which

are meant to inform the juvenile court’s discretion whether the seriousness of the offense

alleged or the background of the juvenile warrants transfer for the welfare of the community,

the appellate court must limit its sufficiency review to the facts that the juvenile court

expressly relied upon, as required to be explicitly set out in the juvenile transfer order under

Section 54.02(h).

                               D. Application of Law to Fact

       The juvenile court did not “show its work” in the transfer order in this case. The only

reason specifically stated on the face of the transfer order to justify waiver of juvenile

jurisdiction is that the offense alleged is a serious one. The only fact specified in the written

transfer order in support of this reason is that the offense that the appellant is alleged to have

committed is an offense against the person of another. We agree with the court of appeals’s

conclusion that a waiver of juvenile jurisdiction based on this particular reason, fortified only

by this fact, constitutes an abuse of discretion.

       It is true that the juvenile court found other facts that would have been relevant to

support transfer for the alternative reason that the appellant’s background was such as to

render waiver of juvenile jurisdiction appropriate. First, without going into any relevant
                                                                                       MOON — 38

detail, the juvenile court’s order found that the appellant was sophisticated and mature

enough to have been able to waive his constitutional rights effectively and assist in the

preparation of his defense at trial, just as an adult would.87              Second, again without

elaboration, the juvenile court found “little, if any” prospect of protecting the public and

rehabilitating the appellant given its available resources. But, because the juvenile court did


       87

          In any event, it is doubtful that the Legislature meant for the sophistication-and-maturity
factor to embrace the juvenile’s ability to waive his constitutional rights and assist in his defense.
It is true that a great many of the courts of appeals seem to think that it does. The juvenile court’s
transfer order in the early case of In re Buchanan included such a finding. 433 S.W.2d at 788. So
did the juvenile courts’s orders in In re W.R.M., 534 S.W.2d at 181-82, Matter of Honsaker, 539
S.W.2d at 200, P.G., 616 S.W.2d at 639, Casiano, 687 S.W.2d at 449, and Matter of D.D., 938
S.W.2d at 175. Another relatively early case, however, found this emphasis on the juvenile’s ability
to waive his rights and assist in his defense “somewhat difficult to understand.” R.E.M., 541 S.W.2d
at 846. The San Antonio Court of Appeals “believe[d] that the requirement that the juvenile court
consider the maturity and sophistication of the child refers to the question of culpability and
responsibility for his conduct, and is not restricted to a consideration of whether he can intelligently
waive rights and assist in the preparation of his defense.” Id. Later, the Houston 1st Court of
Appeals observed that “[o]ur courts have held that the requirement that the [juvenile] court consider
the child’s sophistication and maturity refers to the question of culpability and responsibility of the
child for his conduct, as well as the consideration of whether he can intelligently waive his rights
and assist in his defense.” Matter of S.E.C., 605 S.W.2d at 958 (emphasis added). Thus did the
latter view of the relevance of a juvenile’s ability to waive his rights and assist in his defense as an
adult creep into our jurisprudence. No case has ever undertaken to explain, however, exactly how
the juvenile’s capacity (or lack thereof) to waive his constitutional rights and assist in his defense
is relevant to whether the welfare of the community requires transfer, and we fail to see that it is.
Other courts of appeals have rightly declared “the purpose of an inquiry into the mental ability and
maturity of the juvenile [to be] to determine whether he appreciates the nature and effect of his
voluntary actions and whether they were right or wrong.” Matter of E.D.N., 635 S.W.2d at 801
(citing L.W.F. v. State, 559 S.W.2d 428, 431 (Tex. Civ. App.—Fort Worth 1977, ref’d n.r.e.)). In
our view, the juvenile’s capacity to waive his constitutional rights and help a lawyer to effectively
represent him is almost as misguided as the juvenile court’s logic in the present case when it orally
pronounced that the appellant should be transferred, inter alia, merely for the sake of judicial
economy, so that his case could be consolidated with that of his already-certified-as-an-adult co-
defendant. Such a notion is the very antithesis of the kind of individualized assessment of the
propriety of waiver of juvenile jurisdiction that both Kent and our statutory scheme expect of the
juvenile court in the exercise of its transfer discretion.
                                                                                       MOON — 39

not cite the appellant’s background as a reason for his transfer in its written order, these

findings of fact are superfluous.

       Moreover, even were we to regard the recitation of these conclusory facts in the

written transfer order to constitute an acceptably implicit indication that the juvenile court

also considered the appellant’s background as a reason for the transfer, we would nonetheless

uphold the court of appeals’s judgment. First, with respect to the appellant’s sophistication

and maturity, we agree with the court of appeals that the evidence was legally insufficient

to support such a finding, since the State offered no evidence at the juvenile hearing to

inform the juvenile court’s consideration of that Section 54.02(f) factor.88 Second, with

respect to the prospects for protecting the public and rehabilitating the appellant, we are not

at liberty to second-guess the court of appeals’s conclusion that the juvenile court’s finding

regarding this Section 54.02(f) factor was supported by factually insufficient evidence in that

it was so against the great weight and preponderance of the evidence as to be manifestly

unjust.89


       88

         See Moon, 410 S.W.3d at 375 (“[T]here must be some evidence to support the juvenile
court’s finding that [the appellant] was sufficiently sophisticated and mature for the reasons specified
by the court in order to uphold its waiver determination. Our review finds no evidence supportive
of the court’s finding that [the appellant] was ‘of sufficient sophistication and maturity to have
intelligently, knowingly and voluntarily waived all constitutional rights heretofore waived . . . [and]
to have aided in the preparation of [his] defense.’”). We find no such evidence in the record either.
       89

         Id. at 377-78. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997) (“Our
inability to decide questions of fact precludes de novo review of courts of appeals’[s] factual
decisions.”); Laster v. State, 275 S.W.3d 512, 519 (Tex. Crim. App. 2009) (“We do not conduct a
de novo factual sufficiency review.”); Villarreal v. State, 286 S.W.3d 321, 328 (Tex. Crim. App.
                                                                                       MOON — 40

                                       IV. CONCLUSION

       The court of appeals did not err to undertake a factual-sufficiency review of the

evidence underlying the juvenile court’s waiver of jurisdiction over the appellant. Because

the juvenile court made no case-specific findings of fact with respect to the seriousness of

the offense, we agree with the court of appeals that the evidence fails to support this as a

valid reason for waiving juvenile-court jurisdiction. Even had the juvenile court cited the

appellant’s background as an alternative basis to justify his transfer, the court of appeals was

correct to measure the sufficiency of the evidence to support this reason against the findings

of fact made in the transfer order itself and to conclude that the evidence was insufficient to

support those findings. We affirm the judgment of the court of appeals.90


2009) (“Once a court of appeals has determined such a claim of ‘factual’ insufficiency, this Court
may not conduct a de novo review of the lower court’s determination.”).
       90

          Neither the State nor the appellant has contested the propriety of the court of appeals’s
ultimate disposition; neither party argues that the court of appeals erred, even in light of its holding
that the juvenile court abused its discretion to waive jurisdiction, to declare that the cause remains
“pending in the juvenile court.” Moon, 410 S.W.3d at 378. The question nevertheless ineluctably
presents itself: Pending for what? We leave that question for the juvenile court, but we do note that
at least one legislatively provided alternative would seem to be for the juvenile court to conduct a
new transfer hearing and enter another order transferring the appellant to the jurisdiction of the
criminal court, assuming that the State can satisfy the criteria under Section 54.02(j) of the Juvenile
Justice Code. See TEX . FAM . CODE § 54.02(j) (“(j) The juvenile court may waive its exclusive
original jurisdiction and transfer a person to the appropriate district court or criminal district court
for criminal proceedings if: (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
. . . an offense under Section 19.02, Penal Code; . . . (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: . . . (B) after due diligence of the
state it was not practicable to proceed in juvenile court before the 18th birthday of the person
because: . . . (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
                                                                                          MOON — 41

DELIVERED:              December 10, 2014
PUBLISH




child before the court committed the offense alleged.” (emphasis supplied)).

         It has been suggested that, rather than affirm the court of appeals’s reversal of the juvenile
court’s transfer order, we should first remand the cause to the court of appeals with an order that the
court of appeals remand the cause to the juvenile court for additional specific findings of fact to
determine retroactively whether its original transfer order was valid. In State v. Elias, 339 S.W.3d
667, 675-77 (Tex. Crim. App. 2011), for example, we held that the court of appeals should not have
affirmed the trial court’s grant of a motion to suppress without first remanding the case to the trial
court to supply missing but critical findings of fact to inform appellate review of the ruling on that
motion, under the aegis of Rule 44.4 of the Texas Rules of Appellate Procedure. Subsection (a) of
this rule provides that “[a] court of appeals must not affirm or reverse a judgment or dismiss an
appeal if: (1) the trial court’s erroneous action or failure or refusal to act prevents the proper
presentation of a case to the court of appeals; and (2) the trial court can correct its action or failure
to act.” TEX . R. APP . P. 44.4 (a). Subsection (b) requires the appellate court to “direct the trial court
to correct the error.” TEX . R. APP . P. 44.4(b). There are at least two problems with such a remand
here. First of all, it is far from clear that Rule 44.4 can be read to authorize an appellate court to
direct a juvenile court (not “the trial court”) to supply a missing finding of fact. Secondly, and more
fundamentally, there is a jurisdictional impediment to applying Rule 44.4 in the present context—a
kind of chicken-and-egg paradox. The juvenile court has either validly waived its exclusive
jurisdiction, thereby conferring jurisdiction on the criminal courts, or it has not. We cannot order
the court of appeals to remand the cause to the juvenile court unless and until we affirm its judgment
that the juvenile court’s transfer order was invalid and that the criminal courts therefore never
acquired jurisdiction. Unless and until the transfer order is declared invalid, the criminal courts
retain jurisdiction, and the juvenile court lacks jurisdiction to retroactively supply critical findings
of fact to establish whether or not it has validly waived its jurisdiction.
