                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-17-00126-CR

GAVIN DANIAR SNOW,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                          From the 21st District Court
                            Burleson County, Texas
                             Trial Court No. 14,898


                         MEMORANDUM OPINION


      The jury convicted Gavin Snow of the offense of capital murder and assessed his

punishment at confinement for life. We affirm.

                                  Background Facts

      Steven Bryant was found dead in his home from a gunshot wound.            Law

enforcement soon began to focus on Snow and two other individuals as being involved

in the murder. Manuel Ramon and Snow were both indicted for capital murder. Ramon
agreed to testify in Snow’s trial in exchange for pleading guilty to burglary of a habitation.

Ramon testified that he previously bought marijuana from Bryant and that on the night

of the murder, he and Snow, and Shanice Jefferson discussed stealing Bryant’s drugs.

Ramon testified that they drove by Bryant’s residence, but he appeared to be at home.

Ramon stated that he eventually went home and that Snow admitted to him the following

day that he returned to Bryant’s house for the drugs. Snow told Ramon that he had shot

Bryant.

                                     Juvenile Transfer

       In the first issue, Snow argues that the juvenile court erred in waiving its exclusive

jurisdiction and transferring the cause to the district court. Pursuant to Section 54.02(a)

of the Texas Family Code, in order to waive jurisdiction and transfer a child who is

alleged to have committed a first-degree felony to the criminal district court, a juvenile

court must find: (1) the child was 14 years old or older at the time of the alleged offense;

(2) there is probable cause to believe the child committed the offense; and (3) 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 ANN. § 54.02 (a) (West 2014).

In deciding whether the welfare of the community requires criminal proceedings, the

juvenile court must consider four non-exclusive factors:

                (1) whether the alleged offense was against person or property, with
                greater weight in favor of transfer given to offenses against the
                person;
                (2) the sophistication and maturity of the child;
Snow v. State                                                                           Page 2
                (3) the record and previous history of the child; and
                (4) the prospects of adequate protection of the public and the
                likelihood of the rehabilitation of the child by use of procedures,
                services, and facilities currently available to the juvenile court.

TEX. FAM. CODE ANN. § 54.02 (f) (West 2014); see Moon v. State, 451 S.W.3d 28, 45 (Tex.

Crim. App. 2014).

       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 Texas Family

Code Section 54.02(f) factors under "traditional sufficiency of the evidence review." Moon

v. State, 451 S.W.3d at 47. Not every Section 54.02(f) factor must weigh in favor of transfer

to justify the juvenile court's discretionary decision to waive its jurisdiction. Id. The

reviewing court should then review the juvenile court's ultimate waiver decision under

an abuse of discretion standard. Id.

       When reviewing the legal sufficiency of the evidence, we credit the proof favorable

to the findings and disregard contrary proof unless a reasonable factfinder could not

reject it. Moon v. State, 410 S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.]

2013), aff'd, 451 S.W.3d 28 (Tex. Crim. App. 2014). If there is more than a scintilla of

evidence supporting a finding, then the proof is legally sufficient. Id. When reviewing

the factual sufficiency of the evidence, we consider all of the proof presented to determine

if the juvenile court's findings are so against the great weight and preponderance of the

evidence as to be clearly wrong and unjust. Id. Our review of the sufficiency of the



Snow v. State                                                                           Page 3
evidence supporting waiver is limited to the facts the juvenile court expressly relied on

in its transfer order. Moon v. State, 451 S.W.3d at 50.

       The juvenile court found that there was probable cause to believe that Snow

committed an offense against a person, capital murder. The order describes that Snow

caused the death of Steven Bryant by shooting him while in the course of committing or

attempting to commit the offense of robbery of Steven Bryant. The juvenile court found

there was probable cause to believe Snow committed the offense based upon a full

investigation of his circumstances and the circumstances of the offense. The juvenile

court found that Snow was sophisticated and mature. The juvenile court stated in the

order that it “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.” The

juvenile court found that the procedures, services, and facilities currently available to the

juvenile court will not likely rehabilitate Snow. The juvenile court further stated in the

order that it had considered the seriousness of the offense and the background of Snow

and found that because of the seriousness of the offense, the welfare of the community

requires that the criminal proceedings proceed in criminal court.

       In contrast to these case-specific findings, the only reason specifically stated in the

Moon juvenile court's order to justify the waiver of jurisdiction was that the offense

alleged was a serious one, and the only fact specified in support of this reason was that


Snow v. State                                                                           Page 4
the offense alleged was committed against the person of another. See Matthews v. State,

513 S.W.3d 45, 58 (Tex. App.—Houston [14 Dist.] 2016, pet. ref’d). In this case, the transfer

order specifically references Snow’s previous history and the seriousness of the offense

of capital murder rather than the just the statement that Snow committed a serious

offense against a person as in Moon. Id.

       During the certification hearing, Snow’s juvenile probation officer, Pam

Kothmann, stated that Snow is very mature and makes his own decisions. Snow was

almost seventeen years-old at the time of the certification hearing, and he was already on

juvenile probation for another offense. Kothmann stated that Snow failed to comply with

most of the conditions of his probation and that he was suspended from school, tested

positive for marijuana twice, did not attend counseling, refused to attend chemical

dependency group meetings, and got into an altercation with his dad.

       Kothmann stated that Snow’s parents are afraid of him. The record shows that

Snow’s dad, Bruce Snow, is a juvenile correction officer at the Giddings State School,

Texas Juvenile Justice Department. Bruce Snow testified at the hearing that both he and

his son used marijuana. The record shows that Bruce Snow pulled a gun on his son

during an argument. Gavin Snow’s family carried pepper spray to protect themselves

from Gavin.




Snow v. State                                                                          Page 5
       Kothmann testified that the juvenile facilities are not able to meet Snow’s needs

and that rehabilitation would be a very lengthy process for him.                 Kothmann

recommended that Snow be transferred to the adult court system.

       In orally announcing its findings, the juvenile court stated that in its personal

experience in dealing with Snow, he is mature and understands the proceedings against

him and is able to assist in his defense. The juvenile court had no doubt that Snow was

sophisticated and mature as required to be considered by Section 54.02 (f). The juvenile

court further stated that it considered Snow’s history and noted Snow’s escalating

severity of violent behavior toward his family and also the general public. The juvenile

court further stated that Snow has not taken advantage of rehabilitation services and that

there is a low likelihood of rehabilitation in the juvenile system. The record shows that

the juvenile court considered the factors set out in Section 54.02 (f).

       Based on a review of the entire record, we conclude the transfer order is factually

and legally sufficient to uphold the juvenile court's finding that the case should be

transferred to criminal court. See Rodriguez v. State, 478 S.W.3d 783, 789 (Tex. App. —San

Antonio 2015, pet. ref’d). After a hearing, with extensive cross-examination by defense

counsel, the juvenile court's order clearly substantiates that the 54.02(f) factors were

considered in the juvenile court's determination. Id. Given the evidence in the record

and the specific factual findings of the juvenile court, we cannot conclude that the juvenile




Snow v. State                                                                          Page 6
court's determination to move the proceedings to criminal court was arbitrary or

unreasonable. Id. We overrule the first issue.

                                Suppression of Statement

       In the second issue, Snow complains that the trial court erred in admitting the

statement he made to his juvenile probation officer. We review a trial court's ruling on a

motion to suppress the statement of a juvenile in an adjudication proceeding under the

same abuse of discretion standard as a motion to suppress the statement of an adult in a

criminal proceeding. See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); In

re M.A.C., 339 S.W.3d 781, 784 (Tex. App. —Eastland 2011, no pet.). When reviewing the

trial court's ruling on a motion to suppress, we view the evidence in the light most

favorable to the trial court's ruling. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App.

2008); In re M.A.C., 339 S.W.3d at 784. We uphold the trial court's ruling if it is supported

by the record and correct under any theory of law applicable to the case. State v. Iduarte,

268 S.W.3d at 548; In re M.A.C., 339 S.W.3d at 784. We give almost total deference to the

trial court's rulings on questions of historical fact and application-of-law-to-fact questions

that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644,

652-53 (Tex. Crim. App. 2002); In re M.A.C., 339 S.W.3d at 784. However, we review de

novo a trial court's rulings on application-of-law-to-fact questions that do not turn on the

credibility and demeanor of witnesses. Johnson v. State, 68 S.W.3d at 652-53; In re M.A.C.,

339 S.W.3d at 784.


Snow v. State                                                                           Page 7
       On the night he was taken into custody, Snow indicated he wanted to talk to his

juvenile probation officer, Pam Kothmann. She told Snow she could not talk to him at

that time and that she would have to read him his warnings before speaking to him.

Following his detention hearing, Snow again indicated that he wanted to talk to

Kothmann. She testified at the hearing on the motion to suppress that she read Snow his

rights, but she was not expecting him to tell her the whole story. Snow did, however,

give Kothmann a full statement about the offense. Kothmann testified that she did not

ask Snow any questions to get him to tell her about the offense. Kothmann stated that

she did ask Snow some clarifying questions, but she did not ask any interrogation type

questions.

       Snow told Kothmann that Shanice Jefferson bought marijuana from Bryant at his

home and that she scoped out Bryant’s home for drugs. Snow, Jefferson, and Ramon then

waited for Bryant to leave for work so that they could steal his drugs. Bryant did not

leave for work so the three decided to go in and take the drugs. Snow stated that they

entered the house and demanded the drugs from Bryant, but Bryant denied having any

drugs. Snow was pointing a gun at Bryant while demanding the drugs. Snow told

Kothmann that the bandana on his face slipped down and that he panicked because he

knew Bryant could identify him. Snow then shot Bryant. Snow stated that he then left

the house with Jefferson and Ramon.




Snow v. State                                                                    Page 8
          Kothmann testified at the hearing that she only asked Snow clarifying questions

such as the last names of Shanice and Manuel. Kothmann also asked what motivated

Snow to do it when he was supposed to enter treatment the following week. Kothmann

stated that she only asked three or four questions and that the rest of the time Snow was

talking.

          Section 51.095 of the Texas Family Code incorporates the warnings required by

Miranda1, with additional safeguards in place to protect juveniles. See TEX. FAM. CODE

ANN. § 51.095 (West 2014). Section 51.095 does not preclude admission of a juvenile's

statement if the statement does not stem from custodial interrogation. See TEX. FAM. CODE

ANN. § 51.095 (b) (West 2014). Custodial interrogation is questioning that is initiated by

law enforcement after a person has been taken into custody or otherwise deprived of his

freedom in any significant way. Matthews v. State, 513 S.W.3d 45, 62 (Tex. App.—Houston

[14 Dist.] 2016, pet. ref’d); Delacerda v. State, 425 S.W.3d 367, 386 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref'd). A custodial interrogation occurs when a defendant is in custody

and is exposed "to any words or actions on the part of the police ... that [the police] should

know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446

U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Roquemore v. State, 60 S.W.3d 862,

868 (Tex. Crim. App. 2001).




1   Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Snow v. State                                                                           Page 9
       The parties agree that Snow was in custody at the time he made the statement to

Kothmann. Snow indicated that he wished to talk to Kothmann, and she read him the

Miranda warnings. Snow’s statements were not the result of any questions or conduct by

Kothmann. See Roquemore v. State, 60 S.W.3d at 868. The record shows that Snow made

the statement voluntarily and that it was not the result of custodial interrogation. The

trial court did not abuse its discretion in denying the motion to suppress the statement.

We overrule the second issue.

                                Lesser Included Offense

       In the third issue Snow argues that the trial court erred in failing to include an

instruction on felony murder in the charge as a lesser included offense of capital murder.

Courts apply a two-step analysis to determine whether an instruction on a lesser-

included offense should be given to the jury. State v. Meru, 414 S.W.3d 159, 162 (Tex.

Crim. App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). The first

step of the analysis is a question of law that does not depend on the evidence presented

at trial. State v. Meru, 414 S.W.3d at 162. This step compares the elements of the offense

as alleged in the indictment with the elements of the requested lesser offense. Id. An

offense will be a lesser-included offense where "it is established by proof of the same or

less than all the facts required to establish the commission of the offense charged." TEX.

CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); State v. Meru, 414 S.W.3d at 162.




Snow v. State                                                                        Page 10
       Felony murder is a lesser included offense of capital murder. See Smith v. State,

297 S.W.3d 260, 275 (Tex. Crim. App. 2009). We therefore must determine whether a

rational jury could find that, if the Snow is guilty, he is guilty only of the lesser offense.

This is a fact determination and is based on the evidence presented at trial. State v. Meru,

414 S.W.3d at 163. If there is evidence that raises a fact issue of whether the defendant is

guilty only of the lesser offense, an instruction on the lesser-included offense is

warranted, regardless of whether the evidence is weak, impeached, or contradicted. State

v. Meru, 414 S.W.3d at 163; Cavazos v. State, 382 S.W.3d at 383.

       A person commits felony murder if he commits or attempts to commit a felony

(other than manslaughter), and in the course of and in furtherance of the felony commits

or attempts to commit an act clearly dangerous to human life that causes the death of an

individual. TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). Under the statute, a

culpable mental state is required for the underlying felony, but there is no culpable

mental state for the murder itself. See Lomax v. State, 233 S.W.3d 302, 304 (Tex. Crim. App.

2007). The distinguishing element between felony murder and capital murder is the

intent to kill. Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999).

       Snow argues that the jury could have found that he acted recklessly rather than

intentionally in shooting Bryant. Snow contends that there is no direct evidence of his

intent when he pulled the trigger. Both Kothmann and Ramon testified that Snow said

he was pointing the gun at Bryant and the bandana covering his face slipped down. Snow


Snow v. State                                                                          Page 11
knew that Bryant could identify him so he shot Bryant. The evidence shows that Snow

pulled out the gun and pointed it at Bryant and that he shot him at close range. The

evidence would not support an inference that Snow did not intend to kill Bryant, and it

would not allow a rational jury to find that if he was guilty, he was guilty only of felony

murder. See Shepherd v. State, 489 S.W.3d 559, 577 (Tex. App. —Texarkana 2016, pet ref’d).

We overrule the third issue.

                                        Conclusion

       We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
        Justice Davis, and
        Justice Scoggins
(Chief Justice Gray concurring with a note)*
(Justice Davis joins Chief Justice Gray in the concurring note only as to the first issue
concerning the juvenile court’s waiver of jurisdiction.)
Affirmed
Opinion delivered and filed November 7, 2018
Do not publish
[CRPM]

*(I concur in the judgment of the Court to the extent that it affirms the trial court’s
judgment of conviction. However, I cannot join the Court’s memorandum opinion. In
particular I disagree with the manner in which the first and second issues are analyzed.
In the first issue, the Court mashes together the analysis of the reasons given in the
juvenile court’s order waiving jurisdiction and the fact findings supporting that ground.
The order suffers the same problem as did the order in the Moon case. Moon v. State, 451
S.W.3d 28, 41 (Tex. Crim. App. 2014). The order contains many fact findings that would
support a waiver of juvenile jurisdiction for the reason that because of the "background
Snow v. State                                                                         Page 12
of the child the welfare of the community requires that criminal proceedings proceed in
criminal court." See TEX. FAM. CODE ANN. § 54.02(a)(3). However, the juvenile court did
not include that as one of the reasons for the waiver in its written order. The only reason
for waiver of its juvenile court jurisdiction contained in the order was the seriousness of
the offense, which is very similar to the order held insufficient in Moon. The difference
here is that the findings contained in the written order in support of the reason that
because of the seriousness of the offense the welfare of the community requires that
criminal proceedings proceed in criminal court are sufficient. The offense is a charge of
capital murder. The findings include a finding that there is probable cause to believe the
juvenile committed the crime as alleged, which was to intentionally cause the victim's
death by shooting the victim in the course of committing or attempting to commit a
robbery of the victim. Section 54.02(a)(3) states that, after considering all of the evidence
and the factors, the juvenile court must determine 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 ANN. § 52.04(a)(3) (emphasis added). If the
seriousness of the offense, alone, would never be sufficient to support a waiver of juvenile
jurisdiction, the reasons would not be listed in the statute with an “or” as the conjunction,
rather than “and.” Certainly, capital murder is the most serious offense and carries with
it the highest punishment available in our justice system. Thus, I concur in overruling
the first issue. As to the second issue, it is crucial to note that the motion to suppress was
as to the entire “statement” of the juvenile. There were, however, clearly portions of the
statement that were not merely part of the statement but were in fact the result of
questions by the juvenile probation officer. There is no question that the juvenile was in
custody; the State concedes this. And there really should be no question that the juvenile
probation officer asked questions designed to illicit incriminating statements, such as
why the juvenile committed the murder. But the statement in its entirety was not the
result of questioning by the juvenile probation officer. The problem, from an analytical
standpoint, is that because the statement was attacked in an all-or-nothing fashion at the
hearing on the motion to suppress, the trial court did not err in determining that it was
admissible because clearly some parts of it were admissible. I do not join any inference
however, that merely because the juvenile initiated the interaction, that the juvenile’s
responses to specific questions and the statements made once the juvenile probation
officer started asking questions, would have been admissible if properly segregated and
separately challenged. With these comments I join only the judgment of the court as
herein limited.)




Snow v. State                                                                          Page 13
