Opinion issued December 4, 2018




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00778-CV
                            ———————————
                          IN THE MATTER OF K.T.S.



                    On Appeal from the 315th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-02717J


                          MEMORANDUM OPINION

      In May 2017, the State filed a petition against 18-year-old Appellant in

juvenile court, alleging that he engaged in delinquent conduct by committing

capital murder in June 2015 when he was 16 years old. Because Appellant was

over the age of 18 when charged, the State petitioned the juvenile court to waive its

jurisdiction and transfer the case to district court for criminal proceedings.
Following a certification hearing, the juvenile court signed an order granting the

State’s motion to transfer.

      Appellant brings this accelerated appeal to challenge the juvenile court’s

order.1   In one issue, Appellant contends that the juvenile court abused its

discretion by waiving its jurisdiction and transferring him to criminal court because

“the State failed to prove by a preponderance of the evidence that it was beyond

[its] control . . . to proceed to certification before Appellant’s 18th birthday.” He

also generally contends that the State did not exercise due diligence in filing the

petition in juvenile court before Appellant turned 18.

      Because we conclude that the juvenile court did not abuse its discretion, we

affirm the order.

                                       Background

      On June 17, 2015, A.V. and his friend, Aaron Wilson, went to a Houston

apartment complex to sell seven grams of marijuana to someone they knew as

“Jay.” A.V. had sold marijuana to Jay two or three other times in face-to-face

transactions.   To set up the drug deal, A.V. communicated with Jay on the

telephone. Jay selected the apartment complex as the location for the transaction.

      Entrance into the complex required a gate code, which Jay provided to A.V.

over the telephone.    Using the code, A.V. and Wilson entered the apartment


1
      See TEX. FAM. CODE § 56.01(c)(1)(A).
                                          2
complex. Wilson was driving and A.V. was in the passenger’s seat. Jay instructed

A.V. to go to the back of the apartment complex and wait for him near a dumpster.

A.V. and Wilson followed Jay’s instructions, parking next to the dumpster and

waiting in the car.

       A.V. then saw Jay, whom he recognized from past drug transactions,

walking toward the car. Wilson was sitting on the driver’s side sending messages

on his phone to his girlfriend. When Jay got to the car, A.V. showed him the seven

grams of marijuana. The price of the marijuana was $90, and Jay asked A.V. if he

had change for a $100 bill. As A.V. looked to see if he had change, Jay grabbed

the marijuana, and two men came out from behind the dumpster; one of them had a

gun. A.V. then realized that it was a setup for a robbery. Wilson pressed the car’s

accelerator to get away. As the car sped away, A.V. heard a gunshot, and the car

crashed. Wilson had been hit in the head by a bullet and died from the injury.

       Fearing for his life, A.V. ran from the scene. He then realized that the police

would soon arrive, and he returned. A.V. waited at the scene and told the police

what had happened. A.V. provided police with Jay’s cell phone number, which

had an 832 area code. A.V. also provided police with the gate code Jay had given

him.

       Detective Sergeant H. Garcia and Detective Sergeant S. Murdock of the

Houston Police Department’s Homicide Division were assigned to investigate the


                                          3
case. They researched the name “Jay” and developed a suspect, J.G. The day after

Wilson was killed, the detectives showed A.V. a photo spread with J.G.’s picture

in it. A.V. said that the person he knew as Jay was not in the pictures.

      The detectives learned that the gate code given to A.V. by Jay was the code

used by residents who live in Building 14. They also learned that the 832-phone

number used by Jay belonged to a woman whose brother, C.H., lived in Building

14.

      The detectives spoke with C.H. He permitted police to enter the 832 number

into his phone. The phone showed that the contact associated with the number was

Appellant, who is C.H.’s brother. C.H. told police that Appellant had not been to

his apartment on the night of the shooting.

      With his mother present, 16-year-old Appellant voluntarily gave a statement

to the police. He admitted that he was at his brother’s apartment complex when

the shooting occurred. He said that he had played basketball with someone named

Jay that day. Appellant claimed that Jay had asked him for a ride to the apartment

complex where Appellant’s brother lives.

      Appellant claimed that Jay had borrowed his cell phone for about two hours

and used it to text. Appellant also said that Jay had then erased all the text

messages from the phone. Appellant said that, when they arrived at the complex,

Jay already knew the gate code used for Building 14. Appellant told the police that


                                          4
he had dropped Jay off inside the apartment complex and, then, a short time later,

he heard gunshots. Appellant said he went to his brother’s apartment and came out

to see the police and fire department when they arrived. Appellant denied that he

was “Jay” and told the detectives that he had nothing to do with the shooting.

      Appellant’s mother signed a consent form, allowing police to search

Appellant’s cell phone. The search revealed only two text messages between

Appellant’s phone and A.V.’s phone. The subject matter of the texts appeared to

relate to a drug transaction.

      After Appellant spoke with police, Appellant’s brother, C.H., admitted that

Appellant had been at his apartment on the night of the shooting, saying that he

had forgotten that Appellant was there. Detective Murdock also spoke with C.H.’s

roommate. The roommate recalled that he had heard gunshots, tires squealing, and

a car crash. Then, Appellant and his cousin had come running up the stairs to the

apartment.    They were upset and wanted to get inside the apartment.            The

roommate told Detective Murdock that Appellant had said that “somebody had just

been shot.”

      To identify Jay, Detective Murdock showed A.V. another photo spread on

July 1, 2015. The photo spread included Appellant’s picture along with pictures of

five other similar-looking males. Appellant’s photo was in the first position.

Detective Murdock noticed that A.V. stared at Appellant’s picture for over one


                                         5
minute. However, A.V. did not choose Appellant’s picture; instead, A.V. said that

the person in the second photo “kind of” looked like Jay and indicated that the

person in the fourth photo “really look[ed]” like Jay. Detective Murdock later

testified that he could not question A.V. about his negative identification of

Appellant, even though the detective believed that A.V. recognized Appellant,

because that could taint the identification process.

      The police also obtained a warrant to search the phone records for

Appellant’s and A.V.’s cell phones. The police received the phone records on

September 1, 2015. The records showed that from 11:10 p.m. until 11:53 p.m.

there were 32 contacts between the phones, including five phone calls and 27 text

messages.2

      The police learned of no additional evidence in 2015 or 2016. Appellant

turned 18 on November 9, 2016.

      On January 5, 2017, Wilson’s mother, C. Baird, contacted Detective Garcia

to inform him that she had spoken with A.V. A.V. told her that he had recognized

the person he knew as Jay in a photo spread shown to him by police. He said that

he had not identified Jay in the photo spread because he feared retaliation. Baird




2
      Detective Murdock testified at the certification hearing that the contacts occurred
      over an hour-and-one-half period but the phone records, admitted into evidence,
      show that the first call was at “23:10” and the last was at “23:53.”
                                           6
said that she had implored A.V. to be honest with the police about the

identification, and he had agreed to be truthful about Jay’s identity.

      Between January and May 2017, Detective Murdock attempted to contact

A.V. numerous times and left messages for him. On May 8, 2017, the detectives

met with A.V. and showed him the photo spread with Appellant’s picture and five

others. A.V. looked at the photos and immediately identified Appellant as being

the person he knew as Jay. He circled Appellant’s photo and initialed it. A.V. told

the detectives that he had not identified Appellant when shown the photo spread in

2015 because he was scared and feared retaliation. He said, “I didn’t want to get

shot like my friend.”

      Once A.V. positively identified Appellant as Jay, the detectives presented

the facts to the juvenile division chief of the district attorney’s office. On May 15,

2017, the juvenile division chief filed a petition in Harris County juvenile court,

alleging that Appellant, at age 16, engaged in delinquent conduct by committing

capital murder in June 2015. The State requested the juvenile court to “consider

discretionary transfer to Criminal Court, and [to] waive[] its exclusive original

jurisdiction and transfer [Appellant] to the appropriate . . . Criminal District Court

for criminal proceedings.”

      Appellant moved to dismiss the State’s petition on the basis that the State

had not used due diligence in proceeding against Appellant in juvenile court before


                                          7
he turned 18. The juvenile court conducted an evidentiary hearing in January 2018

to consider (1) Appellant’s motion to dismiss and (2) concomitantly the State’s

request that the juvenile court waive its jurisdiction and transfer Appellant to

criminal district court for prosecution.

      At the hearing, the State offered the testimony of Detectives Garcia and

Murdock. They testified about their investigation of Wilson’s murder to show the

State had exercised due diligence in the manner they handled the investigation

before Appellant turned 18. Their testimony described the steps taken in the

investigation, what information the detectives learned during the investigation, and

when they learned it.

      The detectives’ testimony indicated that, while the circumstantial evidence

discovered before Appellant turned 18 supported their belief that Appellant was

Jay, A.V.’s negative identification of Appellant in July 2015 undermined their case

against Appellant. A.V. told them that he knew Jay by sight because he had

engaged in previous face-to-face drug transactions with him. A.V.’s negative

identification of Appellant served to support Appellant’s story that he had loaned

his phone to someone named Jay on the night of the shooting. The detectives

indicated that, under the circumstances of this case, they did not have probable

cause to proceed against Appellant because of A.V.’s negative identification of

Appellant as Jay.


                                           8
      When asked “[h]ow harmful is it to a case of circumstantial evidence when

you have an eyewitness that’s not willing to identify a suspect,” Detective

Murdoch answered, “Kills it.” Detective Garcia testified, “Once the surviving

complainant [A.V.] said, ‘No, I don’t recognize him,’ it put our investigation in

jeopardy. If he would’ve recognized him as Jay, then I would’ve presented the

case to the ADA.” He testified that the case was not presented to the district

attorney’s office to pursue charges against Appellant until A.V. had positively

identified Appellant as Jay.

      To show that the State had not acted with due diligence in proceeding

against Appellant before he turned 18, Appellant offered the testimony of D.

Webber, a private investigator and retired police officer. Webber testified that,

before retirement, he had worked 11 years for the Cut-N-Shoot Police Department

as a patrol officer and had worked 20 years for the Houston Police Department as a

patrol officer, an officer in the narcotics unit, and “for a brief time worked with the

Vice Division on several projects.” To prepare for testifying, Webber said that he

reviewed the reports regarding the police’s investigation of the case.

      Webber suggested that, besides the steps taken in the investigation, the

homicide detectives should have taken additional steps to link Appellant to the

crime scene.    He indicated that the police should have tested the outside of

Wilson’s car for fingerprints. Webber said, “In my experience with a hand-to-hand


                                          9
drug transaction from someone outside the car to inside the car, 99 percent of the

time they lean into the car or they touch the car in some way.” When asked by

defense counsel whether the homicide detectives should have checked Appellant’s

clothes for gunshot residue, Webber stated, “[I]n my opinion it would have been

something that would have been reasonable to check into.”

      Defense counsel elicited testimony from Webber about the circumstantial

evidence discovered by the police, before Appellant turned 18, that linked

Appellant to the murder. According to Webber, this included evidence that (1)

Appellant and another person were seen immediately after the shooting with a gun

and heard to say “someone was shot”;3 (2) cell phone records showing that A.V.

communicated with a cell phone used by Appellant on the night of the murder; (3)

the gate code given by Jay to A.V. was the code used by residents of Building 14

where Appellant’s brother lived; and (4) A.V. stared at Appellant’s photo in the

2015 photo spread before claiming that Jay was not there. The defense asked

Webber, “Based on your review of this case do you believe in your opinion that the

officers should have taken the case to the Harris County District Attorneys’ Office

Juvenile Division in September of 2015 after they got the phone records?” Webber

3
      Other than the testimony of Webber, who did not have first-hand knowledge of the
      investigation, no other evidence was presented indicating that, after the shooting,
      Appellant and the person with him were seen with a gun. Detective Murdock
      testified that Appellant and his cousin were seen after the shooting in the
      apartment complex and appeared upset, but he did not testify that Appellant or his
      cousin had a gun.
                                          10
responded affirmatively.        However, Webber also testified that he had no

experience with long-term investigations, had never met with a prosecutor to

discuss probable cause in a murder case, and had “never investigated a homicide

case.”

         The juvenile court denied Appellant’s motion to dismiss the State’s petition.

In support of the denial, the trial court filed findings of fact and conclusions of law.

Among the findings, the juvenile court found Detectives Garcia and Murdock to be

“credible and reliable” witnesses. The court detailed the steps the detectives had

taken in investigating the case and ultimately pursuing charges against Appellant.

In its last finding of fact, the juvenile court found: “The State sought discretionary

transfer in a timely fashion as soon as probable cause existed to believe [Appellant]

committed the above capital murder, but that such probable cause did not develop

until after [Appellant] turned 18 with the new evidence provided by [A.V.].”

         Based on its findings, the juvenile court concluded:

         2.     Because probable cause did not exist in this case before
         [Appellant] turned 18 years of age on November 9, 2016; and,
         because any indications or suspicion that [Appellant] committed the
         capital murder which police knew existed before that [Appellant]
         turned 18 was defeated by [A.V.’s] negative identification of
         [Appellant] in the photo spread, this Court concludes that the State did
         not possess probable cause to charge [Appellant] by petition with this
         capital murder any time before May 8, 2017, when police learned in
         newly developed evidence that [Appellant] was in fact the person
         [A.V.] knew as “Jay.” [citation omitted.]



                                           11
      3.     Because the investigation proceeded in a timely fashion before
      [Appellant’s] 18th birthday; and because, but for the fact that probable
      cause did not develop until May 8, 2017 (a date after [Appellant’s]
      18th birthday), the court finds by a preponderance of the evidence that
      the State exercised due diligence to pursue the certification petition
      under Tex. Fam. Code Ann. §54.02(j), but that for a reason beyond
      the control of the State, it was not practicable to proceed in juvenile
      court by petition before [Appellant’s] 18th birthday.

      4.     The Court concludes that until police obtained the new
      evidence after [Appellant’s] 18th birthday that resulted from [A.V.’s]
      positive identification of [Appellant] as the person he knew as Jay”
      and as the person that met with [A.V.] and the complainant on the
      night of the shooting, the police had no direct evidence that connected
      [Appellant] as the person who set up the drug deal and met in the
      parking lot with [A.V.] or as the person who set up the robbery.

      On March 20, 2018, the juvenile court conducted a certification hearing on

the State’s request to waive its jurisdiction and to transfer Appellant to criminal

district court. The State reoffered all the evidence from the January 2018 hearing

on Appellant’s motion to dismiss the petition, and the juvenile court took judicial

notice of its file, including its findings of fact and conclusions of law supporting its

denial of Appellant’s motion to dismiss.

      On March 27, 2018, the juvenile court signed an order waiving jurisdiction

and transferring Appellant to criminal district court for prosecution. In its order,

the juvenile court made findings to support of waiver and transfer. See TEX. FAM.

CODE § 54.02(h). Relevant to the issue raised on appeal, the court found as

follows:



                                           12
The Court finds the following facts support waiver of exclusive
original jurisdiction and transfer of [Appellant] to criminal district
court for criminal proceedings:

....

(5) That by a preponderance of the evidence after due diligence of the
State it was not practicable to proceed in juvenile court before the
18th birthday of [Appellant] because the State did not have probable
cause to proceed on the capital murder charge in 2015 or 2016.
Instead, new evidence developed after [Appellant]’s 18th birthday.
The following facts demonstrate when and how the new evidence
developed that led to probable cause:

a. The Court incorporates by reference the Findings of Fact and
   Conclusions of Law issued on March 19, 2018 in response to
   [Appellant]’s Motion to Dismiss as factual and legal support for
   this Court’s decision to waive jurisdiction and transfer the matter
   to criminal district court. . . .

b. The Court finds that after due diligence of the State it was not
   practicable to proceed in juvenile court before [Appellant’s] 18th
   birthday because:

i.     On July 1, 2015, [Detective] Murdock showed [A.V.] a photo
       spread of [Appellant] and five other males with similar physical
       characteristics. [Detective] Murdock testified that [Appellant]
       was located in position number one of the photo spread shown
       to [A.V.]. [Detective] Murdock stated that [A.V.] stared at
       picture number 1 for a minute and then stated it could be
       number 2 or number 4. [A.V.] made a negative identification of
       [Appellant].

ii.    [Detective] Murdock testified that it would have been
       impermissibly suggestive to challenge [A.V.] on the fact that he
       did not make an identification on the first picture, or to suggest
       that picture number one was a person present at the complex
       that night, even though [Detective] Murdock believed [A.V.]
       recognized the person in position number one.


                                   13
iii.   [Detective] Murdock could not suggest to a witness which
       photograph he should have identified without tainting any
       further investigation.

iv.    [A.V.] was the only eyewitness to the capital murder, and the
       only direct evidence of Jay’s involvement and of Jay’s identity.

v.     [A.V.’s] identification of the three men involved in the capital
       murder was the only evidence known or available to police that
       could have refuted [Appellant’s] claims to being present at the
       complex, but uninvolved in the shooting.

vi.    The cell phone records alone linking [Appellant] and [A.V.] to
       communications near the time of the murder did not overcome
       [Appellant]’s statement to police. [Appellant] told police that
       he allowed Jay [to] use his phone. [A.V.] told police he had
       met Jay multiple times and he would recognize Jay if he saw
       him again. [A.V.]’s negative identification of [Appellant]’s
       photograph as the person he recognized and knew as Jay
       confirmed [Appellant]’s statement that someone else was Jay,
       not [Appellant].

vii.   [Detective] Murdock testified that after September 1, 2015, the
       case remained open pending new information because the
       negative identification from witness [A.V.] defeated any
       circumstantial evidence that might have shown contact between
       [Appellant] and the complainant near the time of the
       complainant’s death.

viii. On November 9, 2016, [Appellant] turned eighteen years old.

ix.    Probable cause linking [Appellant] to the murder did not
       develop until police learned that [A.V.] had lied to police
       during the photospread identification based on his fears of
       retaliation.

x.     On January 5, 2017, police first learned from [C.] Baird, the
       complainant’s      mother,       about    [A.V.’s] deliberate
       misidentification of Jay in the photo spread.


                                  14
xi.    During the conversation with Mrs. Baird, [A.V.] told her that he
       was now willing to be honest with investigators regarding Jay’s
       identity.

xii.   On May 8, 2017, [Detective] Murdock met with [A.V.] and
       again presented him with the photo spread of [Appellant] and
       five other males with similar physical characteristics originally
       shown to [A.V.] on July 1, 2015. Neither [Detective] Murdock
       nor [Detective] Garcia had told [A.V.] that he had or had not
       picked the correct person from the photospread in the past.
       [Detective] Murdock stated that [A.V.] looked at the photo
       spread and immediately identified [Appellant] in position
       number one as Jay.

xiii. [A.V.] admitted to [Detective] Murdock that he did not
      originally identify [Appellant] in 2015 because he felt scared.

xiv.   Probable cause did not exist in this case before [Appellant]
       turned 18 years of age on November 9, 2016 because any
       indications or suspicion that [Appellant] participated in the
       capital murder, about which police knew before that
       [Appellant] turned 18, was defeated by [A.V.’s] negative
       identification of [Appellant] in the photo spread.

xv.    This Court finds that the State did not possess probable cause to
       charge [Appellant] by petition with this capital murder any time
       before May 8, 2017, when police learned in newly developed
       evidence that [Appellant] was in fact the person [A.V.] knew as
       Jay, present during the murder, who lured [A.V.] to bring drugs
       to the scene, and who then took those drugs from him after one
       of his co-actors displayed a gun.

The juvenile court concluded its order as follows:

Based on the above [findings], as well as the totality of the evidence
presented in the clerk’s record, at the hearing, in the written reports,
studies, and investigations, this Court ORDERS and CERTIFIES that
its jurisdiction sitting as a Juvenile Court, be WAIVED, and that
[Appellant] be transferred to the Criminal District Court of Harris


                                   15
      County, Texas, for criminal proceedings to be dealt with as an adult in
      accordance with the Code of Criminal Procedure.

      This interlocutory appeal followed.4 See TEX. FAM. CODE § 56.01(c)(1)(A).

                  Order Waiving Jurisdiction and Transferring Case

      In his sole issue, Appellant questions the sufficiency of the evidence to

support the juvenile court’s finding that it was beyond the State’s control to

proceed to certification before his 18th birthday and its finding that the State

exercised due diligence in pursuing charges against him before he turned 18.

A.    Applicable Legal Principles

      A juvenile court has exclusive original jurisdiction over all proceedings

involving a person who has engaged in delinquent conduct based on acts

committed before age 17. See TEX. FAM. CODE §§ 51.02(2)(A), 51.04(a). Family

Code Section 54.02 governs the waiver of a juvenile court’s exclusive original

jurisdiction and transfer to criminal district court. See id. § 54.02.

      Here, the State did not initiate proceedings in juvenile court against

Appellant until after his 18th birthday. Thus, the juvenile court had two options

under its limited jurisdiction: it could dismiss the case or transfer it to criminal

district court. See Moore v. State, 532 S.W.3d 400, 405 (Tex. Crim. App. 2017)


4
      Appellant filed his notice of appeal on March 27, 2018; however, the Clerk of this
      Court did not receive the notice of appeal from the district clerk’s office until
      August 28, 2018, five months after the notice of appeal was filed.

                                           16
(citing In re N.J.A., 997 S.W.2d 554, 556 (Tex. 1999)).5 As applicable here, the

State had to prove, by a preponderance of the evidence, the following criteria listed

in Family Code Section 54.02(j) to be entitled to transfer:

      (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 a capital
                  felony or 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:

                 (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




5
      In Moore, the Court of Criminal Appeals noted an exception to the rule that, after
      an accused reaches the age of 18, a juvenile court must dismiss or transfer the
      case. That exception is found in Family Code Section 51.0412, which applies to
      incomplete proceedings. Moore v. State, 532 S.W.3d 400, 404 n.4 (Tex. Crim.
      App. 2017) (citing TEX. FAM. CODE § 51.0412). This case does not involve an
      incomplete proceeding.

                                          17
                 (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.

TEX. FAM. CODE § 54.02(j); see also Moon v. State, 451 S.W.3d 28, 45 (Tex. Crim.

App. 2014) (“[T]he 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.”).

      The dispute in this case centers on whether the State showed by a

preponderance of the evidence that either (1) for a reason beyond the control of the

State, it was not practicable to proceed in juvenile court before Appellant’s 18th

birthday, or (2) after due diligence of the State, it was not practicable to proceed

because the State did not have probable cause, and new evidence was found after

Appellant’s 18th birthday. See TEX. FAM. CODE § 54.02(j)(4)(A), (B)(i). The

juvenile court made findings with respect to each of these two criteria. The court

found, for reasons beyond the State’s control, it was not practicable for the State to

proceed in juvenile court before Appellant’s 18th birthday. The juvenile court also


                                         18
found the State had exercised due diligence to pursue the certification petition, but

it had not been practicable to proceed in juvenile court because the State did not

have probable cause, and new evidence was found after Appellant’s 18th birthday,

namely, A.V.’s positive identification of Appellant as Jay. On appeal, Appellant

challenges the sufficiency of the evidence regarding certain elements of these

findings.

      We review a challenge to the sufficiency of the evidence supporting a

juvenile court’s findings of fact regarding a waiver and transfer determination

under traditional evidentiary-sufficiency principles. Moon, 451 S.W.3d at 47; In re

H.Y., 512 S.W.3d 467, 478–79 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

To determine whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a reasonable

factfinder could not. H.Y., 512 S.W.3d at 479. If more than a scintilla of evidence

supports the finding, then there is legally sufficient evidence to support it, and a

legal-sufficiency challenge fails. Id. Under a factual sufficiency challenge, we

consider all 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 and

unjust. Id.




                                         19
      After conducting a “traditional sufficiency of the evidence review” of the

juvenile court’s specific findings, the appellate court “should then review the

juvenile court’s ultimate waiver decision under an abuse of discretion standard.”

Moon, 451 S.W.3d at 47. In applying the abuse-of-discretion standard, we conduct

our own analysis of the evidence, and determine whether the juvenile court acted

without reference to the guiding rules or principles such that its decision to transfer

the case was “essentially arbitrary, given the evidence upon which it was based.”

Id.

B.    Analysis

      1.     Reason Beyond the Control of the State

      With foregoing standards in mind, we turn to Appellant’s claim that the

evidence, admitted during the hearing on the State’s request to transfer his case,

“did not support” the juvenile court’s finding that “for a reason beyond the control

of the State, it was not practicable to proceed in juvenile court by petition before

[Appellant’s] 18th birthday.” See TEX. FAM. CODE § 54.02(j)(4)(A). In his brief,

Appellant focuses on the phrase “beyond the control of the State,” asserting that

the evidence did not show that it was beyond the State’s control to proceed in the

juvenile court before Appellant turned 18.

      In making his argument, Appellant relies on Moore v. State, claiming that

the facts there are like those presented here. 446 S.W.3d 47 (Tex. App.—Houston


                                          20
[1st Dist.] 2014), aff’d, 532 S.W.3d 400, 402 (Tex. Crim. App. 2017). In that case,

Moore committed sexual assault when he was 16 years old. Id. at 49. The

complainant identified Moore, and the police began their investigation when

Moore was still 16. Id. Almost two years later, the police forwarded Moore’s case

to the district attorney’s office, believing Moore to be only 17 years old. Id.

Moore, however, had turned 18 eleven days earlier. Id. In delaying forwarding the

charges, the police had relied on a faulty internal police report listing an incorrect

birthdate for Moore, making it appear he was one year younger than his actual age.

Id.   Other records in the police’s file, however, had listed Moore’s correct

birthdate. Id. The detective handling the case also testified that she had a heavy

caseload at the time. Id.

      Moore was taken into custody, and one year later, the State filed a petition

for a discretionary transfer of the case from juvenile court to a criminal district

court. Id. The juvenile court transferred the case, concluding that, for a reason

beyond the State’s control, it was not practicable to proceed in juvenile court

before Moore’s 18th birthday. Id.

      On appeal, the State asserted that an investigative delay, stemming from the

detective’s large caseload and a mistake as to Moore’s age were reasons beyond its

control. Id. at 51. We noted that the State had conceded, however, “that the

offense was promptly reported and that Moore had been identified as the


                                         21
perpetrator within days after the offense was committed while he was still a

juvenile and well short of his seventeenth birthday.” Id. We further noted that

“[t]he correct birthdate was evident in other police records,” and “[t]he State did

not trace its error in the internal offense report to any outside source.” Id. Instead,

the record demonstrated “that it was the State’s clerical error, coupled with its

lengthy delay—unaided by any outside event—which caused the case to fall

outside the juvenile court’s jurisdiction.” Id. We held that the juvenile court had

erred in transferring the case to criminal district court because the police’s heavy

caseload and their mistake as to Moore’s age were not reasons beyond the State’s

control. See id. at 52; see also TEX. FAM. CODE § 54.02(j)(4)(A).

      In his brief, Appellant contends, “Just as in Moore, law enforcement’s

failure to present the case it had to the District Attorney’s office regarding the

appellant’s age was something that was ‘knowable.’” Appellant’s age was a pre-

known fact that could have been discovered with a simple visit with the Juvenile

Division Chief.”

      We agree with the State that the facts of this case are not like those in

Moore. Here, unlike in Moore, the State never disputed that it was aware of

Appellant’s correct age. A misunderstanding regarding Appellant’s age was not

the reason proffered by the State for not proceeding in juvenile court until after

Appellant turned 18. Instead, the State offered evidence demonstrating that the


                                          22
reason it did not proceed in juvenile court before Appellant turned 18 was because

the sole eyewitness, A.V., who said that he knew Jay by sight, made a negative

identification of Appellant until after Appellant turned 18. This also stands in

contrast to the facts in Moore because, there, the complainant positively identified

Moore as the perpetrator soon after the offense while he was still 16, and Moore’s

identity as the perpetrator, unlike here, was not the subject of a continuing

investigation. See Moore, 446 S.W.3d at 49.

      In support of his position, Appellant’s brief details evidence showing that

the police knew, before Appellant turned 18, that his cell phone was used to

communicate with A.V. on the night of the shooting to set up the drug transaction.

The police also learned that Appellant was seen immediately after the shooting at

his brother’s apartment. He appeared upset and said that someone had just been

shot. And the police knew that the gate code given to A.V. by Jay was the code

used by residents in Building 14 where Appellant’s brother lived.          However,

Appellant told police that he had given Jay a ride to the apartment complex. He

said that Jay had borrowed his cell phone, and Jay knew the gate code. A.V.’s

negative identification of Appellant as Jay bolstered Appellant’s story.

      In its findings of fact, the juvenile court not only found Detectives Garcia

and Murdock to be credible witnesses, it also made the following unchallenged

findings:


                                         23
      iv.    [A.V.] was the only eyewitness to the capital murder, and the
             only direct evidence of Jay’s involvement and of Jay’s identity.

      v.     [A.V.’s] identification of the three men involved in the capital
             murder was the only evidence known or available to police that
             could have refuted [Appellant’s] claims to being present at the
             complex, but uninvolved in the shooting.

      vi.    The cell phone records alone linking [Appellant] and [A.V.] to
             communications near the time of the murder did not overcome
             [Appellant]’s statement to police. [Appellant] told police that
             he allowed Jay [to] use his phone. [A.V.] told police he had
             met Jay multiple times and he would recognize Jay if he saw
             him again. [A.V.]’s negative identification of [Appellant]’s
             photograph as the person he recognized and knew as Jay
             confirmed [Appellant]’s statement that someone else was Jay,
             not [Appellant].

      vii.   [Detective] Murdock testified that after September 1, 2015, the
             case remained open pending new information because the
             negative identification from witness [A.V.] defeated any
             circumstantial evidence that might have shown contact between
             [Appellant] and the complainant near the time of the
             complainant’s death.

      The evidence showed that A.V. initially lied about Appellant’s identity out

of fear that he would be killed like Wilson. And the evidence showed that A.V.’s

dishonesty was an outside force beyond the control of the police.        Appellant

suggests that the police should have questioned A.V. about his negative

identification because they suspected that A.V. recognized Appellant when he first

viewed that photo spread and negatively identified Appellant. However, Detective

Murdock testified that it would have been inappropriate for him to question A.V.



                                        24
about the identification because it would have been suggestive and could have

tainted the process.

      Appellant further cites evidence indicating that the police should have tested

the car driven by Wilson for Appellant’s fingerprints.          However, Detective

Murdock testified that the police had no information that Jay touched the car.

Detective Murdock also testified, “[F]ingerprints on the outside of a car don’t

mean a whole lot. Anybody can walk by a car and touch it.”

      Appellant also suggests that the police should have tested Appellant’s

clothes for gunshot residue. However, the evidence showed that Jay was not the

shooter.

      We conclude that the evidence offered by the State was more than a scintilla

of evidence supporting the trial court’s finding that, for a reason beyond the control

of the State, it was not practicable to proceed in juvenile court by petition before

Appellant’s 18th birthday.     See TEX. FAM. CODE § 54.02(j)(4)(A).         We also

conclude that the finding was not against the great weight of the evidence. Thus,

the evidence was legally and factually sufficient to support the finding.

      2.     Due Diligence of the State

      Without tying it to a specific finding of the juvenile court, Appellant also

generally alludes that the State did not exercise due diligence in filing the transfer

petition in juvenile court before he turned 18. In support of its transfer order, the


                                          25
trial court found that, “after due diligence of the State it was not practicable to

proceed in juvenile court before the 18th birthday of [Appellant] because the State

did not have probable cause to proceed on the capital murder charge in 2015 or

2016. Instead, new evidence developed after [Appellant]’s 18th birthday.”

      “Due diligence requires the State to ‘move ahead’ or ‘reasonably explain

delays.’” In re B.R.H., 426 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.]

2012, orig. proceeding) (quoting In re N.M.P., 969 S.W.2d 95, 100 (Tex. App.—

Amarillo 1998, no pet.)). Diligence is usually a fact question that the trial court

determines considering the circumstances of each case. Id.

      Here, the evidence showed that the police began immediately investigating

Wilson’s murder by interviewing witnesses, including A.V., Appellant,

Appellant’s brother, and Appellant’s brother’s roommate. The police also soon

determined who owned the phone on which Jay had communicated with A.V.

      About two weeks after the murder, A.V. viewed the photospread containing

Appellant’s photograph. However, A.V. negatively identified Appellant as Jay

because he feared retaliation. The police obtained a search warrant for A.V.’s and

Appellant’s cell phone data, but the phone records confirmed only that A.V.’s and

Appellant’s cell phones communicated before the shooting. The phone records did

not necessarily refute Appellant’s claim that he had loaned his phone to someone

named Jay, a claim bolstered by A.V.’s negative identification of Appellant. The


                                        26
evidence showed that police did not obtain any new leads until A.V., convinced by

Wilson’s mother to be honest, made a positive identification of Appellant after he

turned 18.

      In sum, the testimony of Detectives Garcia and Murdock addressed (1) the

State’s efforts to investigate Wilson’s murder, (2) what the State learned in the

investigation and when it learned it, and (3) why the State viewed the evidence it

had developed as being too weak to prove that Appellant was Jay until A.V.

positively identified him. Appellant criticizes the State for not doing more, as

discussed above, to identify Appellant as Jay before Appellant turned 18.

However, the officials charged with investigating a juvenile case are not required

“to ‘do everything perceivable and conceivable to avoid delay.’” Id. Instead,

Section 54.02(j)(4)(B)(i) requires the State to exercise due diligence, a term that

suggests the investigation must be reasonable given the information that was

gathered during the investigation. See Collins v. State, 516 S.W.3d 504, 525 (Tex.

App.—Beaumont 2017, pet. denied) (citing TEX. FAM. CODE § 54.02(j)(4)(B)). In

determining whether the State exercised due diligence in proceeding against

Appellant, the trial court was entitled to consider the evidence showing that A.V.’s

intentional misidentification of Appellant delayed the State’s investigation. See id.

(stating that juvenile court was entitled to consider evidence showing that members




                                         27
of the appellant’s family had hindered the investigation into role the appellant

played in the offense).

      We conclude that the evidence offered by the State was more than a scintilla

of evidence supporting the juvenile court’s finding that, “after due diligence of the

State it was not practicable to proceed in juvenile court before the 18th birthday of

[Appellant] because the State did not have probable cause to proceed on the capital

murder charge in 2015 or 2016.             Instead, new evidence developed after

[Appellant]’s 18th birthday.”6 See TEX. FAM. CODE § 54.02(j)(4)(B)(i). We also


6
      Although he did so in the trial court, Appellant does not specifically challenge the
      probable cause element on appeal. We note that when “evaluating a determination
      of probable cause, we consider whether there are sufficient facts and
      circumstances to support a prudent person’s belief that the accused child
      committed the offense.” In re C.R., Nos. 01-18-00185-CV, 01-18-00186-CV, 01-
      18-00187-CV, 01-18-00188, 2018 WL 4190051, *5 (Tex. App.—Houston [1st
      Dist.] Aug. 31, 2018, no pet.) (citing In re J.G., 495 S.W.3d 354, 374 (Tex.
      App.—Houston [1st Dist.] 2016, pet. denied)). “The probable-cause standard
      ‘requires more than mere suspicion but less evidence than needed to support a
      conviction or support a finding by a preponderance of the evidence.’” Id. (quoting
      In re C.M.M., 503 S.W.3d 692, 702 (Tex. App.—Houston [14th Dist.] 2016, pet.
      denied) (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997)).
      Courts apply a totality-of-the-circumstances analysis to determine probable cause.
      Id. (citing Manuel v. State, 481 S.W.3d 278, 283 (Tex. App.—Houston [1st Dist.]
      2015, pet. ref’d)). Here, the juvenile court also found, “Probable cause did not
      exist in this case before [Appellant] turned 18 years of age on November 9, 2016
      because any indications or suspicion that [Appellant] participated in the capital
      murder, about which police knew before that [Appellant] turned 18, was defeated
      by [A.V.’s] negative identification of [Appellant] in the photo spread.” Given the
      record, the juvenile court, as the factfinder, could have reasonably inferred from
      the evidence, particularly the testimony of Detectives Garcia and Murdock, that,
      under the totality of the circumstances, including A.V.’s negative identification of
      Appellant, that the State did not have probable cause to proceed against Appellant
      until after he turned 18 when A.V. made a positive identification. See Collins v.
      State, 516 S.W.3d 504, 524 (Tex. App.—Beaumont 2017, pet. denied) (holding
                                           28
conclude that the finding was not against the great weight of the evidence. Thus,

the evidence was legally and factually sufficient to support the finding.

      Having determined that the juvenile court’s challenged findings are

supported by sufficient evidence, we now review the ultimate waiver decision to

determine whether the juvenile court abused its discretion. See Moon, 451 S.W.3d

at 47. Given the evidence in the record and the trial court’s findings, we conclude

that the juvenile court’s decision to transfer Appellant to criminal district court for

prosecution as an adult was not arbitrary, but instead represented a reasonably

principled application of the legislative criteria found in Section 54.02(j). Thus,

we hold that the juvenile court did not abuse its discretion in waiving its exclusive

jurisdiction and transferring Appellant to criminal district court.




      that, if juvenile court could have reasonably inferred that State acted diligently to
      investigate case before accused turned 18 and could have also reasonably inferred
      that investigation that occurred before accused turned 18 failed to develop
      sufficient reliable evidence to allow State to develop probable cause to proceed in
      juvenile court, then appeals court is not permitted to impose its own opinions even
      if they might differ).
                                           29
                                        Conclusion

      We affirm the order of the juvenile court waiving jurisdiction and

transferring Appellant to district court for criminal prosecution.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Higley, Lloyd, and Caughey.




                                          30
