                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00393-CR

JAMES MICHAEL GRANT,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                          From the 52nd District Court
                              Coryell County, Texas
                          Trial Court No. FAM-08-19310


                                     OPINION


      James Michael Grant, II, pled guilty to the offense of Murder. TEX. PENAL CODE

ANN. § 19.02 (Vernon 2003). He was sentenced by the court to 45 years in prison. He

now appeals. Because the juvenile court did not abuse its discretion in waiving its

jurisdiction and transferring Grant to criminal court, because the trial court did not err

in denying his motion to suppress his statement, and because Grant’s constitutional

challenge was not preserved, we affirm the trial court’s judgment.
                               JUVENILE TRANSFER HEARING

        In his first and third issues on appeal, Grant challenges the juvenile court’s

decision to waive its jurisdiction and transfer Grant to criminal court. We review those

issues first.

        When the State requests a transfer, the juvenile court is required to conduct a

hearing without a jury to consider the transfer of a juvenile for criminal proceedings.

TEX. FAM. CODE ANN. § 54.02 (b), (c) (Vernon Supp. 2009). Before the hearing, the court

is required to order and obtain a complete diagnostic study, social evaluation, and full

investigation of the juvenile, his circumstances, and the circumstances of the alleged

offense. Id. § 54.02(d). A juvenile court may then waive its jurisdiction and transfer the

juvenile to criminal court if, after a full investigation and a hearing, the court

determines there is probable cause to believe that the juvenile committed the offense

alleged and that because of the seriousness of the offense or the background of the

child, the welfare of the community requires criminal proceedings. Id. § 54.02(a)(3).

        The juvenile court can determine probable cause in a nonadversary preliminary

hearing through the use of hearsay besides written and oral testimony. In re D.W.L., 828

S.W.2d 520, 524 (Tex. App.—Houston [14th Dist.] 1992, no writ). The court does not

determine the juvenile’s innocence or guilt at the hearing, but merely evaluates whether

he should be tried as a juvenile or adult in subsequent proceedings. Id. at 524-525. The

trial court is the sole factfinder in a transfer hearing and may choose to believe or

disbelieve any or all of the witnesses' testimony. Id. at 525.




Grant v. State                                                                      Page 2
        Under Article 44.47 of the Texas Code of Criminal Procedure, an appeal from a

juvenile court's decision to certify a juvenile as an adult and to transfer the case to

criminal court under section 54.02 of the Texas Family Code is a criminal matter. TEX.

CODE CRIM. PROC. ANN. art. 44.47(a), (c) (Vernon 2006). A challenge to the certification

and transfer order can be made only in conjunction with the appeal of a conviction of or

an order of deferred adjudication for the offense for which the defendant was

transferred to criminal court. Id. at art. 44.47(b). The juvenile court's decision to transfer

a case to district court is reviewed for abuse of discretion. McKaine v. State, 170 S.W.3d

285, 289 (Tex. App.—Corpus Christi 2005, no pet.); Faisst v. State, 105 S.W.3d 8, 12 (Tex.

App.—Tyler 2003, no pet.).

Probable Cause

        Grant first challenges the juvenile court’s finding of probable cause to believe

Grant committed the offense of murder. Specifically, Grant challenges the sufficiency of

probable cause to believe Grant committed murder as a party.1

        Probable cause consists of sufficient facts and circumstances to warrant a

prudent person to believe that the suspect committed the offense. In re K.B.H., 913

S.W.2d 684, 689 (Tex. App.—Texarkana 1995, no pet.); In re D.W.L., 828 S.W.2d 520, 524

(Tex. App.—Houston [14th Dist.] 1992, no writ). A person commits an offense as a



1 Grant actually challenges the factual sufficiency of the evidence citing to case law which used the civil
standard for factual sufficiency of the evidence as a review for a probable cause determination and was
decided prior to the change in the Family Code and Code of Criminal Procedure which made the appeal
of a transfer hearing a criminal matter. Because we believe the review of the probable cause
determination necessarily encompasses a review of all the evidence presented at the transfer hearing, as
in any other probable cause analysis, we will utilize the same standard of review for probable cause in
this circumstance that we would to determine probable cause for any other purpose. See In re D.W.L., 828
S.W.2d 520, 524 (Tex. App.—Houston [14th Dist.] 1992, no writ).

Grant v. State                                                                                      Page 3
party if acting with intent to promote or assist the commission of an offense; he solicits,

encourages, directs, aids, or attempts to aid another person to commit an offense. See

TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2003).

Facts developed at the hearing

         In the early morning of September 15, 2007, the body of James Michael Grant

(Michael), the father of appellant Grant, was found lying in a bar ditch a few feet from

his pickup. Michael was wrapped in bed linens and tied with coax cables and yellow

nylon ropes. His body had been stabbed multiple times in the chest and stomach area.

Michael was wearing only boxer shorts and was covered in blood. The tailgate of his

pickup was down. Because it appeared to investigators that Michael had been killed

somewhere else and dumped in the bar ditch, the investigation was moved to Michael’s

house.

         Michael’s master bedroom looked like it had been ransacked. All of the drawers

had been pulled out of the dresser. The bed sheets had been taken off of the bed. Blood

was splattered on the wall, the bed, and the carpet. The garage door was open and

there were no signs of a forced entry. A large comforter soaked in blood was on top of

either the washer or the dryer. Blood was on the doorway leading out into the garage,

on the garage floor, and on the driveway.

         Jesus Ramos, a Texas Ranger investigating the murder, was told by Michael’s

father, Garnett, that the relationship between Grant and Michael was bad.

         Ramos and Ricky Helms, an investigator with the Coryell County Sheriff’s

Department, initially spoke with Grant during the evening of September 15th. Grant


Grant v. State                                                                       Page 4
told Ramos he was at home asleep at the time of the murder. He stated he went to bed

at about 11:30 p.m. and slept through the night. Although Grant’s room was across the

house from Michael’s room, it was a very small house. Grant stated to Ramos that

Michael sold drugs and that Grant believed someone had killed Michael. Grant denied

hearing any commotion in the house.

        Ramos noticed during the interview that there was “a lot of hate” in Grant and

that Grant was not emotional or distraught that his father had been killed. Ramos also

thought Grant had a cocky attitude. While Ramos was questioning Grant, Grant would

not answer a question until the next question was asked, as if Grant was stalling. When

Ramos continued with his questions, Grant became upset. He pointed his finger at

Ramos and told Ramos not to interrupt him. Grant affirmed that he and Michael had a

physical altercation in the past. When asked if he could “take” his father, Grant was

very confident and cocky, stating he could hold his own. During the interview, Ramos

got the impression that Grant was intentionally attempting to be manipulative or

deceitful. When Grant left the room to go to the bathroom during the interview, he

grabbed the door handle using his t-shirt. Ramos thought Grant was trying to prevent

him from acquiring Grant’s fingerprints.

        After the interview with Grant, Ramos searched Megan Lewis’s house with her

consent. Megan was Grant’s mother and Michael’s ex-wife. Grant was present at the

time of the search. Both Megan and Grant acted strange. They were not distraught

about Michael’s death. They were laughing and having a good time, making strange




Grant v. State                                                                   Page 5
comments. Grant commented that if all he lost that day was his boots, because they had

been taken to be compared to bloody footprints, then it was a good day.

        John Hopkins, Megan’s boyfriend, was the first person arrested for Michael’s

murder. 2 One day, after the murder and after drinking, Hopkins put a gun to his head.

At one point, Hopkins pointed the gun at Grant to get him to “back off.” Megan and

Grant called 911. On the recording, Megan and Grant were both trying to talk Hopkins

out of committing suicide. Grant was pleading with Hopkins not to kill himself. Grant

was crying, and toward the end of the recording, Grant told Hopkins that he loved him.

Ramos found Grant’s reaction to Hopkins’s suicide attempt strange because Grant had

not given that same emotion about Michael’s death.

        By the time police arrived, Hopkins had left the house. Megan directed the

police to a suicide note left by Hopkins. The note implicated only Hopkins in Michael’s

murder. But when interviewed after his arrest, Hopkins confessed to his involvement

in the murder and implicated both Grant and Megan.

        Hopkins stated in his confession that Megan wanted Hopkins to kill Michael so

that she could gain custody of her children. He initially thought Megan was crazy but

became so romantically involved with her that he wanted to please her. Hopkins stated

that he asked Grant what he would think if Hopkins killed Michael. Grant replied that

Hopkins would be a king in their eyes, referring to Grant and Megan. After that,

Hopkins decided to kill Michael and told Megan of his decision. Hopkins said he

placed a call to Grant and told Grant he was going to kill Michael and needed the back


2Hopkins had at some point prior to the murder been in prison in either New Jersey or Pennsylvania for
a sex offense with a minor female.

Grant v. State                                                                                 Page 6
door unlocked so that Hopkins could enter the house. Grant was to call Hopkins when

Michael fell asleep. Grant complied and let Hopkins into Michael’s bedroom. Hopkins

told Grant to leave the room. Grant stood in the living room and watched while

Hopkins began stabbing Michael. Afterwards, Grant came in the room, and Hopkins

handed him the knife.     Hopkins walked out of the room and heard Grant make

statements such as, “You deserved that, you son of a bitch.” Hopkins walked back to

the room and found that Michael’s body had been removed from the bed and saw

Grant stomping on Michael’s chest. Hopkins also stated that once the body was loaded

into the pickup, he and Grant went back in the house and ransacked it. Then they

dumped the body in a bar ditch.

        Cellular telephone records showed that a call was made from Hopkins’s phone

to Grant’s phone at 7:31 p.m. on September 14th.         Another call was made from

Hopkins’s phone to Grant’s phone at 11:35 p.m. Calls from Grant’s phone to Hopkins’s

phone were made at 11:45 p.m. and 11:58 p.m. on the 14th, and then at 12:39 a.m., 1:21

a.m., 1:50 a.m., 2:13 a.m., 2:15 a.m., and 2:25 a.m. on the 15th of September. There is a

call from Michael’s phone to Grant’s phone at 1:13 a.m. on the 15th as well.

        After Hopkins’ confession, warrants were obtained for Grant’s and Megan’s

arrest. When Ramos arrived to arrest Grant, Grant was wearing a loose t-shirt. Ramos

asked him to raise his arms so Ramos could see if anything was hidden under the shirt.

Grant refused. When Ramos grabbed the bottom of the t-shirt, Grant slapped Ramos’s

arm away and told Ramos to get his “fucking” hands off of him. Grant was then

arrested and re-interviewed.


Grant v. State                                                                     Page 7
        At the second interview, Grant confirmed that he spoke to Hopkins at about one

or two o’clock in the morning. Hopkins told him he was coming over to the house and

he needed the door opened. Grant said he waited and when Hopkins arrived, Grant

opened the back door to the patio. When Grant asked Hopkins what he wanted,

Hopkins stated, “You know what I’m here for,” and displayed a knife strapped to his

waist. Grant said he thought Hopkins was there to kill him. Hopkins told Grant to

leave the room and Grant walked into the living room. Grant stated that Hopkins then

proceeded to stab Michael. Grant stated that at various times he was held at knifepoint

or gunpoint and was forced to help Hopkins. Neither Ramos nor Helms thought Grant

was afraid of Hopkins.

        During the investigation, Ramos spoke to E.M., a classmate of Grant. When, in

E.M.’s view, Grant was acting strange one day, E.M. asked Grant if Grant had killed

Michael. Grant nodded his head and made stabbing motions. E.M. was afraid of

revealing this information because when he, Grant, and Hopkins, were on their way to

buy marijuana on day after the murder, Hopkins told E.M. that if anyone was

informing the police about the murder, that person would be in trouble.

        Also during the investigation, Investigator Helms took a statement from Megan’s

father. He stated that during Megan and Michael’s divorce, Megan made the statement

that she wished Michael was dead or that someone would kill him. Megan’s father said

that Grant volunteered to do it for his mother.

        Helms also took a statement from R.H., a juvenile who was housed in a detention

facility in Dennison, Texas. R.H. stated that in August of 2007, prior to R.H.’s detention,


Grant v. State                                                                       Page 8
Grant approached him a couple of times and said that he wanted to kill Michael. They

then plotted to kill Michael. The plan devised was to stab Michael, load him up in a

vehicle, and get rid of the body. R.H. was recruited to help clean up the mess.

        Cari Starritt-Burnett, an attorney who assisted Michael with his divorce, testified

that when she heard that Michael had been killed, she immediately knew there was foul

play and that the family was involved in it. A few months after the divorce, Michael

relayed an event to Cari that caused her concern. Michael told her that he woke up one

night to see Grant holding a knife over him. John Lee, a local attorney and friend of

Michael’s, relayed the same incident as told to him by Michael. Lee also said that Grant

showed no emotion at Michael’s funeral and that he looked bored. When Lee heard of

Michael’s death, he immediately suspected Grant.

        Cheryl Tull, Michael’s girlfriend at the time of his death, also testified. She stated

that she was around Michael’s children on every other weekend and that it was typical

for there to be an uncomfortable exchange between Michael and Grant at least once or

twice a weekend. By the summer of 2007, Tull had become afraid of Grant. At the end

of June, there was an incident where Grant and Michael had yelled at each other. When

Grant went to his room, he was heard throwing objects. He also punched holes in his

wall. When Grant came out of his room, he said something to the effect, “You’re going

to die.” Tull testified about another episode with Grant during the summer of 2007.

They had been to Schlitterbahn and stopped to spend the night at Michael’s sister’s

house. There was an “ugly scene” about where the kids were going to sleep. The next

day on the way home, Grant leaned up in between the front seats, tapped Michael on


Grant v. State                                                                          Page 9
his arm and said something to the effect that there was a place where someone can be

stabbed and that the person will die instantly.

The Determination

        After reviewing the record, we find the juvenile court did not abuse its discretion

in finding sufficient facts and circumstances to warrant a prudent person to believe that

the suspect committed the offense of murder as a party acting with intent to promote or

assist the commission of the offense. Grant’s first issue is overruled.

Seriousness of the Offense

        In this third issue, Grant contends that the juvenile court abused its discretion in

waiving its jurisdiction based solely on the seriousness of the offense and in failing to

consider the actual facts regarding what occurred. Grant argues that there was nothing

to suggest the court engaged in an analysis of the facts of the offense. Contrary to

Grant’s argument, it is clear from the record that the juvenile court took the facts of the

offense into consideration and did not base its decision solely on the seriousness of the

offense. This consideration is most evident when the trial court made its probable cause

determination. After the hearing on the State’s petition for discretionary transfer, the

trial court stated on the record,

        …there is ample evidence from which to determine that there is probable
        cause to believe that the defendant committed the offense of murder as a
        party with two other charged individuals. And without going into any
        specificity of which evidence that is, but simply that the physical facts of
        the investigation, the investigation and testimony concerning the two
        crime scenes, the juvenile respondent’s present (sic) at the primary crime
        scene where the offense would have had to have been committed, the
        unlikelihood that that could have happened without someone in that
        residence having been aware of it, and then with everything else, the


Grant v. State                                                                         Page 10
         phone calls, the statement of the juvenile respondent, all of those matters
         conspire to establish the probable cause.

Accordingly, the juvenile court did not abuse its discretion in waiving its jurisdiction.

Grant’s third issue is overruled.

                                CRIMINAL COURT PROCEEDINGS

         Grant’s second and fourth issues on appeal concern his proceedings in criminal

court.

Motion to Suppress

         His second issue is two fold: the trial court erred in denying his motion to

suppress his written statement3 because Grant’s mother was not notified that he was

taken into custody in violation of Texas Family Code Section 52.02(b) and because his

mother was denied access to him before he gave his statement. See TEX. FAM. CODE

ANN. § 52.02(b) (Vernon 2008). Grant specifically argued at the motion to suppress

hearing that pursuant to section 52.02(b), the law enforcement officers who arrested

Grant did not give the required notice to anyone. He argued that the reason for the

notice is so statements are not taken in such a way that juveniles do not have the benefit

of advice from someone looking out for them.

         Even if a violation of section 52.02(b) has occurred, a holding which we are

expressly not making, Grant’s statement is not automatically excluded. To suppress a

juvenile’s statement because of a violation of section 52.02(b), there must be some

exclusionary mechanism. Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim. App. 2002).


3At trial, Grant argued for the suppression of a statement given on September 15, 2007 and a statement
given on October 29, 2007. On appeal, he contests the denial of the motion as to the second statement
only.

Grant v. State                                                                                Page 11
Section 52.02(b) is not an independent exclusionary statute. Id. If evidence is to be

excluded because of a section 52.02(b) violation, it must be excluded through the

operation of Article 38.23(a). Id. In light of Article 38.23(a), before a juvenile's written

statement can be excluded due to a violation of section 52.02(b), there must be a causal

connection between the Family Code violation and the making of the statement. Id.

The burden of proving this causal connection rests with the party attempting to exclude

the statement, in this case, Grant. Pham v. State, 175 S.W.3d 767, 774 (Tex. Crim. App.

2005). Once a causal connection is established, the burden then shifts to the State to

either disprove the evidence the defendant has produced, or bring an attenuation-of-

taint argument to demonstrate that the causal chain asserted by the defendant was in

fact broken. Id.

        Grant had the burden of proving a causal connection between the alleged

violation of section 52.02(b) and his statement. No evidence of a causal connection was

presented at the motion for new trial hearing. Accordingly, the trial court was not

required to exclude Grant’s statement.

        To the extent that Grant actually made the argument to the trial court that

Grant’s mother was denied access to him, that part of the issue is overruled. Generally,

section 61.103 of the Texas Family Code provides that parents have a right of access to

their child. TEX. FAM. CODE ANN. § 61.103(a) (Vernon 2008). However, if the parent is

denied the right of access, the child may not raise that complaint on appeal. Id. § 61.106.

        Accordingly, the trial court did not err in denying Grant’s motion to suppress.

Grant’s second issue is overruled.


Grant v. State                                                                       Page 12
Constitutionality of Statute

        In his fourth issue, Grant argues that “the Texas Statute prohibiting community

supervision for a person convicted of murder” is unconstitutional as applied to him,

because it violates the protection against cruel and unusual punishment. An appellant

must preserve an "as applied" constitutional challenge by raising it at trial. See Flores v.

State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008); Curry v. State, 910 S.W.2d 490, 496

(Tex. Crim. App. 1995); Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994).

Grant raised his “as applied” challenge in a pre-trial motion to quash. However, a

motion to quash does not preserve the “as applied” challenge for appeal. Flores, 245

S.W.3d at 437, 442 (Cochran, J., concurring); Sheldon v. State, 100 S.W.3d 497, 505 (Tex.

App.—Austin 2003, pet. ref'd) (op. on reh'g). Grant has not preserved this issue for our

review. Accordingly, his fourth issue is overruled.

                                       CONCLUSION

        Having overruled each of Grant’s issues on appeal, we affirm the trial court’s

judgment.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed January 27, 2010
Publish
[CRPM]



Grant v. State                                                                       Page 13
