      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        ON REHEARING



                                       NO. 03-16-00556-CV



                                     In the Matter of J. G. S.


             FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
            NO. 4915, HONORABLE ROBERT UPDEGROVE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               We withdraw our opinion and judgment issued on February 10, 2017, and substitute

the following opinion and judgment in their place.

               The State filed a motion for discretionary transfer in the juvenile court requesting that

the court waive its exclusive jurisdiction over J.G.S., a minor, and transfer him to criminal district

court to be tried as an adult for the offense of murder. The juvenile court ordered the statutorily

required social evaluation and investigation and set the motion for a hearing. Following the hearing,

the court granted the motion, waived its exclusive jurisdiction, and transferred the case to district

court. This accelerated appeal followed. We will vacate the juvenile court’s order and remand this

case to the juvenile court for proceedings consistent with this opinion.
                                           DISCUSSION

               In three issues, J.G.S. challenges the juvenile court’s waiver of jurisdiction.

Specifically, he contends that the transfer order did not state, with adequate specificity, the factual

underpinnings of the court’s conclusions and grounds for transfer and that the evidence from the

transfer hearing is legally and factually insufficient to support the court’s decision to

waive jurisdiction.


I.     Applicable law and standard of review

       Section 54.02(a) of the Juvenile Justice Code provides that the juvenile court may waive its

exclusive original jurisdiction and transfer a child to the criminal district court for criminal

proceedings if the following is determined:


       (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 capital felony, an aggravated controlled substance felony, or 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.


Tex. Fam. Code § 54.02(a). When determining the seriousness of the offense alleged or the

background of the child pursuant to the third requirement, section 52.04(f) requires the juvenile court

to consider the following non-exclusive factors:




                                                   2
        (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).

                  As the petitioner seeking waiver of the juvenile court’s jurisdiction, the State has the

burden “to produce evidence to inform the juvenile court’s discretion as to whether waiving its

otherwise-exclusive jurisdiction is appropriate in the particular case.” Moon v. State, 451 S.W.3d 28,

40 (Tex. Crim. App. 2014). The State must “persuade the juvenile court, by a preponderance of the

evidence, that the welfare of the community requires transfer of jurisdiction for criminal proceedings,

either because of the seriousness of the offense or the background of the child (or both).” Id. at

40-41. When exercising its discretion to waive jurisdiction, the juvenile court must consider all four

of the factors listed in section 54.02(f). Id. at 40. Although it makes its final determination from the

evidence concerning the section 54.02(f) factors, the juvenile court “need not find that each and

every one of those factors favors transfer before it may exercise its discretion to waive

jurisdiction.” Id.

                  In Moon v. State, the court of criminal appeals recently elaborated upon the statutory

requirement that, if the juvenile court waives jurisdiction, it must “state specifically” in its order its

reasons for waiver:



                                                     3
        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 order. 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 . . . .


Id. at 49. The court emphasized that a reviewing court “should not be made to 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.” Id. at 50.

                The court also clarified the standard of review when a juvenile court waives its

exclusive jurisdiction pursuant to section 54.02: “[I]n 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.’” Id. at

47. 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. Moon

v. State, 410 S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d 28. If there

is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. Under

a factual sufficiency challenge, we consider all of the evidence presented to determine if the court’s

finding is so against the great weight and preponderance of the evidence as to be clearly wrong or

unjust. Id. Our review of the sufficiency of the evidence supporting waiver is limited to the facts

the juvenile court expressly relied on in its transfer order. Moon, 451 S.W.3d at 50.




                                                   4
                 We must also review the juvenile court’s ultimate waiver decision under an abuse of

discretion standard. Id. at 47. We must consider, in light of our analysis of the sufficiency of the

evidence to support the statutory factors—and as limited by the express fact findings contained in

the transfer order—whether the juvenile court acted without reference to guiding rules or principles.

Id. at 47, 50.


II.     The order waiving jurisdiction in the present case lacked the case-specific findings of
        fact required under Moon

                 In his third issue, J.G.S. argues that the juvenile court’s order waiving jurisdiction

lacks the case-specific fact findings necessary to support transfer to the criminal district court.

We agree.

                 In its transfer order, the juvenile court noted that it was considering the factors

mandated by section 54.02(f) and made the following determinations relevant to this appeal:


        1. [J.G.S.] is alleged to have violated a penal law of the State of Texas of the grade
        of a First Degree felony, to wit: that on or about the 2nd day of April, 2016, the said
        child violated a penal law of this State punishable by imprisonment or confinement
        in jail, to-wit: Murder § 19.02 of the Texas Penal Code.

        2. The alleged offense was committed against . . . the decedent.

        3. [J.G.S.] is a male child who was born on the 12th day of August, 1999, and who
        is seventeen (17) years of age at the time of this hearing but sixteen (16) years at the
        time of the offense.

        ***

        8. Prior to the hearing . . . the Court ordered the Hays County Juvenile Probation
        Department complete a Social Evaluation and full investigation of the child, his
        circumstances, and the circumstances of the alleged offense. The Court ordered a
        study concerning [J.G.S.] as required in Texas Family Code § 54.02(d), and said

                                                   5
study was performed by Dr. David Landers. The entire study is credible, along with
all the oral testimony offered by Dr. David Landers. Additionally, Dr. Eric Frey
testified as an expert witness for [J.G.S.]. Dr. Frey’s oral testimony and written
report are found credible.

9. The Court has considered written reports from the probation officer, professional
court employees, and professional consultants in addition to the testimony of
witnesses and finds that the Court has complied with the five day requirement prior
to hearing [sic] in making available to Jeremiah Williams, attorney of record, all
written materials to be considered by the Court in making this transfer decision.

10. The Court considered the sophistication and maturity of the child and finds the
Respondent is sophisticated and mature under the code. [J.G.S.’s] sophistication and
maturity is normal as compared to other juveniles of this age. [J.G.S.] posess[es] the
cognitive abilities and academic skills to understand court proceedings and to
participate in his own defense.

11. Notwithstanding the current charge of murder and possession of marijuana in
this cause,[1] [J.G.S.’s] juvenile history is limited to one charge of Unlawful Carry of
a Weapon (Class A misdemeanor) alleged to be committed on November 23, 2015.
[J.G.S.] received no services through Hays County Juvenile Probation, or any other
Juvenile Department, before the current charge and detention of Murder. The
Unlawful Carry of a Weapon is currently pending in the Hays County Court at Law.

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

***

14. The Court has considered the seriousness of the offense and the background of
the child and finds that because of the seriousness of the offense, the sophistication
and maturity of the child which is sufficient to assist in his own defense, among other
things, and because the offense was committed against an individual . . . the welfare
of the community requires that criminal proceedings proceed in criminal court
concerning the aforementioned felony offense and all criminal conduct occurring in
said criminal episode.




1
    The State sought waiver of the juvenile court’s jurisdiction only over the murder charge.

                                           6
               The juvenile court’s order indicated two reasons for waiver: (1) the seriousness of

the offense and (2) J.G.S.’s background. In support of the former, the order cites the fact that the

offense was committed against a person. In support of the latter, the order cites the sophistication

and maturity of appellant and that rehabilitation is unlikely. As instructed by Moon, before reaching

the question of whether sufficient evidence supports transfer, we conclude that the order lacks the

case-specific findings of fact necessary to support the court’s reasons for waiving jurisdiction under

Moon. See Moon, 451 S.W.3d at 48-51.


       A.      The offense was committed against a person

               The first reason for transfer cited in the order was the seriousness of the offense. But

the only finding in support of that reason contained in the order was the fact that the offense was

committed against a person. Although that finding is relevant to a transfer determination, it alone

does not justify transfer. See id. at 48 (transfer order that cites category of case without providing

specifics of offense will not support transfer). Absent from the order are case-specific facts

regarding the charged offense or J.G.S.’s role in it that would provide a reviewing court a basis for

deference regarding the juvenile court’s conclusion that the welfare of the community required

criminal proceedings because of the seriousness of the offense. See id.; see also Bell v. State,

___ S.W.3d ____, No. 01-15-00510-CR, 2016 WL 7369204, at *4-5 (Tex. App.—Houston [1st

Dist.] Dec. 15, 2016, no pet. h.) (order deficient because lacked case-specific findings regarding

seriousness of offense, and child’s background not cited as reason for transfer); cf. In re S.G.R.,

496 S.W.3d 235, 240 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (court found that juvenile

participated in gang-related murder in which 14-year-old child sustained 46 injuries from machete);

                                                  7
In re K.J., 493 S.W.3d 140, 143-33 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (order detailed

“egregious and aggravating” facts of multiple offenses).


       B.      J.G.S.’s background

               Turning then to the second cited reason supporting transfer—J.G.S.’s

background—we conclude that the order again fails to provide case-specific findings of fact that

support transfer on that basis. See Moon, 451 S.W.3d at 49.


               i. Sophistication and maturity

               The order states that J.G.S. is “sophisticated and mature under the code,” explaining

(1) his “sophistication and maturity is normal as compared to other juveniles of his age,” and (2) he

“posess[es] the cognitive abilities and academic skills to understand court proceedings and

participate in his own defense.” First, it is unclear how a finding that J.G.S.’s sophistication and

maturity is normal for his age, without more, justifies transfer from a system designed to adjudicate

individuals his age absent additional fact findings favoring transfer.2

               Second, the Moon court indicated that a determination as to whether a juvenile is able

to assist in his own defense is an improper application of that statutory factor.3 Id. at 50, n.87. The


       2
           A determination that such a finding supports transfer would also seem to impermissibly
shift the burden to the defense to demonstrate below-average sophistication and maturity to avoid
transfer to the adult criminal-justice system. See Moon v. State, 451 S.W.3d 28, 40 (Tex. Crim. App.
2014) (State has burden to demonstrate propriety of transfer).
       3
           We note that the Moon court observed that a sophistication-and-maturity finding “would
have been relevant to support transfer,” but concluded that, because the order did not cite Moon’s
background as a reason for transfer, that finding was “superfluous.” Id. at 50-51. Therefore, the
court’s comments regarding proper application of that factor are not binding, but the court’s analysis
is instructive of that issue.

                                                  8
court observed that “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.”

Id. Rather, the court opined, the purpose of that consideration is to determine whether the juvenile

“appreciates the nature and effect of his voluntary actions and whether they were right or wrong.”

Id. (quoting In re E.D.N., 635 S.W.2d 798, 800 (Tex. App.—Corpus Christi 1982, no writ); see also

Matthews v. State, ___ S.W.3d ___, Nos. 14-15-00452-CR, 14-15-00577-CV, 14-15-00616-CV,

2016 WL 6561467, at *7, n.4 (Tex. App.—Houston [14th Dist.] Nov. 6, 2016, no pet. h.) (noting

that juvenile court may have misapplied that factor in finding that juvenile possessed sufficient

sophistication and maturity to aid in his defense but concluding that other findings were sufficient

to support waiver). It is thus unclear from the order that the court properly applied that statutory

criterion. Moon, 451 S.W.3d at 49 (findings must provide “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”).


               ii. Record and previous history

               The order indicates that J.G.S.’s criminal history is limited to one unlawful-carry

charge that was then pending and that he had received no services from any juvenile department

before the current charges. The State does not contend, and we do not find, that one pending

misdemeanor charge would support transfer.




                                                    9
                iii. Protection of the public and rehabilitation of the child

                Finally, the order states that rehabilitation of J.G.S. is not likely.4 Again, however,

the order provides no case-specific information underpinning that conclusion. Cf. K.J., 493 S.W.3d

at 145 (order cited numerous case-specific facts supporting conclusion that defendant posed risk to

public and was unlikely to be rehabilitated).

                In sum, the order in this case essentially recites the statutory language setting forth

the criteria applicable to a transfer determination, but it fails to provide the case-specific findings of

fact necessary to permit a reviewing court to determine whether the court properly applied that

criteria as required under Moon. Moon, 451 S.W.3d at 49 (concluding that statute requires more than

“merely an adherence to printed forms” and instead requires a true delineation of reasons supporting

the court’s decision). Although the order indicates that the court heard extensive evidence regarding

the propriety of transfer and that the court found such evidence credible, the order contains no

case-specific findings or recitation of that evidence that would provide “a sure-footed and definite

basis from which” we can determine that its decision was properly reached. See id.

                The State cites evidence in the record that it contends supports the court’s transfer

determination, including evidence regarding the specifics of the offense and of J.G.S.’s background.

        4
         Although the wording of the order is unclear, it appears that the only finding the court made
with respect to those statutory factors concerned the likelihood of rehabilitation and not J.G.S.’s
record and previous history or protection of the public:

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

See Tex. Fam. Code § 54.02(f)(3), (4).

                                                   10
But none of the details of that evidence were incorporated into the order, and the Moon court

expressly rejected the State’s argument that the appellate court could simply review the

record—irrespective of the fact findings set forth in the order—to determine whether evidence

introduced at the transfer hearing supported the court’s transfer determination. See id. at 48, 50

(despite that evidence in record “painted a much more graphic picture of the appellant’s charged

offense,” appellate court is not required “to rummage through the record for facts that the

juvenile court might have found . . . but did not include in its written transfer order”); see also Bell,

2016 WL 7369204, at *6 (declining to review record to find facts supporting waiver when written

order did not provide adequate fact findings).

                The Moon court observed that “the juvenile court that shows its work should rarely

be reversed” because that court’s discretion “is at its apex when it makes this largely normative

judgment” as to whether a child should be transferred to the criminal court. Moon, 451 S.W.3d at

46, 49. When, however, the juvenile court enters an order that is devoid of case-specific findings

of fact supporting the statutory criteria for transfer, as in Moon, the juvenile court is not entitled to

such deference. Id. at 51. Given the absence of case-specific fact findings supporting transfer from

the juvenile court’s transfer order in this case, Moon compels us to conclude that the court abused

its discretion in waiving its jurisdiction and sustain J.G.S.’s third issue. Accordingly, we need not

reach J.G.S.’s first and second issues challenging the sufficiency of the evidence produced at the

transfer hearing to support the reasons for transfer cited in the order and take no position as to those

issues. See id. at 51.




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                                          CONCLUSION

               We vacate the juvenile court’s transfer order and remand this case to the juvenile

court for further proceedings consistent with this opinion.5



                                               _________________________________________
                                               Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Vacated and Remanded on Rehearing

Filed: February 17, 2017




       5
           The case remains “pending in the juvenile court” where “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,” if applicable. See
Moon, 451 S.W.3d at 52 n.90 (citing Tex. Fam. Code § 54.02(j)); Bell v. State, ___ S.W.3d ____,
No. 01-15-00510-CR, 2016 WL 7369204, at *6 (Tex. App.—Houston [1st Dist.] Dec. 15, 2016, no
pet. h.) (noting same); see also In re J.G., 495 S.W.3d 354, 365-66 (Tex. App.—Houston [1st Dist.]
2016, pet. filed) (holding that, because conviction reversed for trial error and not insufficient
evidence, double jeopardy did not preclude recertification proceedings).

                                                  12
