                                         NO. 12-19-00165-CV

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

                                                             §       APPEAL FROM THE
 IN THE MATTER OF J.C.D.,
                                                             §       COUNTY COURT AT LAW NO. 1
 A JUVENILE
                                                             §       HENDERSON COUNTY, TEXAS

                                         MEMORANDUM OPINION
         J.C.D. appeals the juvenile court’s order of discretionary transfer of his case to adult
criminal court. In his sole issue, Appellant challenges the legal and factual sufficiency of the
evidence of his age at the time of the offense and the timeliness of the prosecution. We affirm.


                                                  BACKGROUND
         The State filed a petition for discretionary transfer in the juvenile court alleging that
Appellant committed two felony offenses when he was more than fourteen but less than seventeen
years of age. First, it alleged that Appellant engaged in sexual contact with H.M., a child under
the age of fourteen, by touching his genitals. Second, it alleged that Appellant caused H.M.’s
sexual organ to contact Appellant’s mouth. 1 The State further alleged that Appellant was currently
twenty-one years of age and it was not practicable to proceed in juvenile court before his eighteenth
birthday because the State was not then aware of the allegations.
         After a hearing on the matter, the juvenile court found probable cause to believe that
Appellant committed the offenses. The court further found that he was over fourteen years of age
at the time of the offenses and over eighteen years of age when they were initially reported. Thus,
the court found that it was not practicable to proceed before Appellant’s eighteenth birthday.


         1
            Respectively, the acts as alleged constitute indecency with a child by contact and aggravated sexual assault
of a child. See TEX. PENAL CODE ANN. §§ 21.11(a)(1) (West 2019); 22.021(a)(1)(B)(iii), (a)(2)(B) (West 2019).
Finally, the court found that the welfare of the community requires criminal proceedings in the
matter, waived its exclusive original jurisdiction, and ordered the case transferred to district court.
This appeal followed.


                                         EVIDENTIARY SUFFICIENCY
        In his sole issue, Appellant argues that the evidence regarding his age at the time of the
offenses and the timeliness of the prosecution is legally and factually insufficient to support the
transfer order.
Standard of Review and Applicable Law
        Texas juvenile courts have exclusive original jurisdiction over proceedings in cases
involving the delinquent conduct of an adult who was a child at the time of the conduct. TEX.
FAM. CODE ANN. § 51.04(a) (West Supp. 2018). Delinquent conduct includes conduct other than
a traffic offense that violates a penal law and is punishable by imprisonment or confinement in
jail. Id. § 51.03(a) (West Supp. 2018). “Child” includes a person who is ten years of age or older
and under seventeen years of age. Id. § 51.02(2)(A) (West Supp. 2018).
        Regarding the transfer of such cases, family code Section 54.02(j) provides, in pertinent
part, that


        [t]he 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:

             ....

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

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

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

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

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



                                                         2
           (B) after due diligence of the state it was not practicable to proceed in juvenile court before the
               18th birthday of the person because:

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

                ....     and


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


Id. § 54.02(j) (West 2014).
       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 exclusive
jurisdiction is appropriate. Moon v. State, 451 S.W.3d 28, 45 (Tex. Crim. App. 2014). Facts that
must be proven by a preponderance of the evidence are ordinarily susceptible to appellate review
for factual sufficiency. Id. The facts supporting a juvenile court’s transfer order are subject to a
sufficiency review on appeal. See id. at 47.
       We review a juvenile court’s findings of fact concerning a transfer decision under
traditional sufficiency principles. In re J.G., 495 S.W.3d 354, 369 (Tex. App.—Houston [1st
Dist.] 2016, pet. denied). 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. Id. at 370. If more than a scintilla of evidence supports the finding, the legal
sufficiency challenge fails. Id. Under a factual sufficiency challenge, we consider all the evidence
presented to determine if the court’s findings are so contrary to the great weight and preponderance
of the evidence as to be clearly wrong or unjust. Id.
Analysis
       On appeal, Appellant first argues that the evidence is insufficient to support the juvenile
court’s finding that he was fourteen years of age or older at the time of the acts. He contends that
no credible evidence was adduced at the hearing regarding the time of the acts or his age at the
time. Second, Appellant argues that the evidence is insufficient to support the juvenile court’s
finding that it was not practicable to proceed in the matter before his eighteenth birthday. He
contends that the evidence shows the State knew about the allegations before Appellant turned
eighteen years of age. We disagree that the evidence is insufficient in these respects.



                                                         3
        Detective Taylor Rice of the Athens Police Department testified that on December 11,
2017, she attended a forensic interview of H.M.’s sister, R.M. After R.M. made an outcry during
the interview, the children’s mother was concerned that H.M. was also abused. H.M. was
interviewed and made an outcry of sexual abuse by Appellant. He gave only approximate ages for
himself and Appellant at that time. As far as Rice was aware, this was the first report of the
allegations that the Athens Police Department received. Appellant was twenty years old at the
time.
        Henderson County Chief Juvenile Probation Officer Bonny Turnage testified that the
police sent her the case on January 19, 2018. She said that Appellant’s date of birth is December
13, 1996, and he was twenty-one years of age at that time. Turnage reviewed her records and
found that there were no prior referrals regarding Appellant.
        H.M. testified that when he was seven or eight years of age, he and his family lived on
South Wofford Street in Athens. He shared a bedroom with Appellant. On one occasion at that
house, Appellant put his mouth on H.M.’s penis. This happened a couple of months before they
moved from the house, when the weather was “[k]inda coldish, a little bit cold.” The month was
April or May 2011. H.M. knew that the year was 2011 because his brother was born shortly
thereafter. He did not tell anyone that year because he “didn’t know how to feel about it” or “how
to respond to it” and was “kind of scared of it.” The first time H.M. told anyone what happened
was on December 11, 2017 after R.M. made her outcry against Appellant.
        H.M.’s mother, E.T., testified that the family lived on Wofford Street from the end of 2009
until mid-April 2011. She was certain of the moving date because her younger son was born in
July 2011. E.T. first heard of H.M.’s allegations against Appellant in December 2017.
        Appellant’s mother, H.D., testified that in 2009 or 2010, she participated in some meetings
with the Texas Department of Family and Protective Services (the Department) regarding an
allegation of physical abuse of H.M. by Appellant. In one of these meetings, H.D. brought up the
fact that her children, their father, and E.T. told her there was a claim that Appellant sexually
assaulted H.M. She understood that the allegation was subsequently found to be false.
        Based on the foregoing evidence, we conclude that the evidence is sufficient to support the
juvenile court’s findings that Appellant was fourteen years of age or older at the time of the acts
and it was not practicable to proceed before his eighteenth birthday. First, regarding Appellant’s
age at the time of the acts, H.M. testified that the acts occurred in April or May 2011. Based on



                                                 4
Appellant’s birthdate of December 13, 1996, we deduce that he was fourteen years of age at the
time of the alleged acts. We find no contrary evidence in the record. Although Appellant contends
that there is “no credible evidence” that he was fourteen, the juvenile court was the sole judge of
the witness’s credibility. See Powell v. State, 479 S.W.2d 685, 687 (Tex. Crim. App. 1972).
Because more than a scintilla of evidence supports the juvenile court’s age finding and the finding
is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or
unjust, Appellant’s legal and factual sufficiency challenges regarding this finding fail. See J.G.,
495 S.W.3d at 370.
       Second, regarding the juvenile court’s finding that is was not practicable to proceed before
Appellant’s eighteenth birthday, the evidence shows that the State was not aware of the allegations
until December 11, 2017. Appellant argues that the State was aware because “[t]he only witness
who testified at the hearing with specific recollection of the events clearly remembers a CPS [sic]
involving the same allegations.” Presuming Appellant is referring to H.D.’s testimony, we
disagree that it shows the State knew about the allegations in this case. H.D. testified that sexual
abuse allegations were discussed during a Department meeting in 2009 or 2010. The acts in this
case are alleged to have occurred in 2011. Therefore, H.D.’s testimony could not support a finding
that the State knew about the allegations in this case before Appellant’s eighteenth birthday.
       Furthermore, we reviewed the family’s entire Department record and found no evidence
that the State knew about the 2011 allegation before Appellant’s eighteenth birthday. Thus, the
only relevant evidence shows that the State was not aware of the 2011 allegations before
Appellant’s eighteenth birthday. We conclude that more than a scintilla of evidence supports the
juvenile court’s finding that it was not practicable to proceed before Appellant’s eighteenth
birthday and the finding is not so contrary to the great weight and preponderance of the evidence
as to be clearly wrong or unjust. Therefore, Appellant’s legal and factual sufficiency challenges
regarding this finding fail. See id. Because we reject Appellant’s sufficiency challenges, we
overrule his sole issue.


                                           DISPOSITION
       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                 GREG NEELEY
                                                                    Justice


                                                 5
Opinion delivered October 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 31, 2019


                                         NO. 12-19-00165-CV


                          IN THE MATTER OF J.C.D., A JUVENILE


                            Appeal from the County Court at Law No. 1
                   of Henderson County, Texas (Tr.Ct.No. JUV18-0012-CC1)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, J.C.D., for which execution may issue, and that this decision be certified to
the court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
