Opinion filed June 20, 2019




                                      In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-19-00011-CV
                                  __________

              IN THE MATTER OF R.S. IV, A JUVENILE


                        On Appeal from the Juvenile Court
                              Taylor County, Texas
                          Trial Court Cause No. 5180-J


                      MEMORANDUM OPINION
      This is an accelerated appeal from an order in which the juvenile court waived
its jurisdiction over R.S. IV (Appellant) and transferred the cause to a criminal
district court. See TEX. FAM. CODE ANN. § 54.02(j) (West 2014), § 56.01(c)(1)(A),
(h), (h-1) (West Supp. 2018). In four issues on appeal, Appellant challenges the
juvenile court’s transfer order. We affirm.
      The juvenile court held a hearing on December 7, 2018, to address the State’s
request for discretionary transfer. Appellant was nineteen years old when the State
filed its request for discretionary transfer, and he was twenty years old at the time of
the hearing. The record from the hearing indicates that the child complainant made
her first outcry in early 2018, around the time of her fourteenth birthday, at which
time Appellant had already turned nineteen years old.             Appellant allegedly
committed the first-degree felony offense of aggravated sexual assault when he was
fourteen to sixteen years old. See TEX. PENAL CODE ANN. § 22.021(a)(1), (a)(2)(B),
(e) (West 2019) (aggravated sexual assault); see also FAM. § 54.02(j)(2)(B). The
record reflects that the charges at issue had not been adjudicated at the time of the
transfer hearing.
      The complainant’s pastor testified that, while at a youth retreat in early 2018,
the complainant stated that she had been sexually assaulted. The pastor then talked
to the complainant, and she told him that she had been sexually assaulted for several
years by Appellant. The complainant told her pastor that she had never told anyone
else about the abuse. The pastor notified Waco police.
      Sergeant Jason Lundquist of the Waco Police Department testified about the
child’s outcry against Appellant. According to Sergeant Lundquist, the complainant
indicated that Appellant, who is the complainant’s cousin, had sexually assaulted her
multiple times during a period of approximately three years, beginning when she
was six or seven years old and Appellant was eleven or twelve years old. The
allegations were that Appellant had touched the complainant’s vagina and had also
penetrated her vagina with his penis. The complainant indicated that the abuse
stopped when she was “around” ten years old.
      Shawn Hicks, assistant chief of the Tye Police Department, testified that,
when this case was referred to Tye, he reviewed the information that came from the
Waco Police Department. According to Officer Hicks, the sexual assaults allegedly




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began when the complainant was about six years old and ended when she was about
ten years old, at which time Appellant would have been approximately sixteen years
old. Appellant was born in November 1998, and the complainant was born in early
2004. Thus, Appellant is more than five years older than the complainant. At the
time of the alleged abuse, Appellant and his mother lived at the Tye address given
by the complainant. Officer Hicks, whose children were friends with Appellant and
Appellant’s sister, had seen the complainant at that address in the past.
      Appellant presented one witness. That witness was a friend of Appellant’s
who testified that Appellant had moved to Merkel when he was twelve years old.
      Appellant specifically argues in his first issue that the evidence was legally
and factually insufficient to prove by a preponderance of the evidence that he was
fourteen years of age or older at the time of the alleged offense. In his second issue,
Appellant challenges the legal and factual sufficiency of the evidence with respect
to a finding under Section 54.02(f)(4), regarding the prospects of rehabilitation and
protection of the public. In his third issue, Appellant asserts that the evidence is
legally and factually insufficient to prove by a preponderance of the evidence that
he committed the alleged offense. In his fourth issue, Appellant argues that the
juvenile court abused its discretion by certifying Appellant as an adult and waiving
its exclusive jurisdiction in this matter.
      In an appeal from an order in which a juvenile court waives its jurisdiction
and enters a discretionary transfer order, an appellate court applies an abuse-of-
discretion standard of review to the juvenile court’s decision to transfer. In re S.G.R.,
496 S.W.3d 235, 239 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing Moon v.
State, 451 S.W.3d 28, 47 (Tex. Crim. App. 2014)). The juvenile court’s findings
may be reviewed under the traditional civil standards for sufficiency of the evidence.




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Moon, 451 S.W.3d at 47; S.G.R., 496 S.W.3d at 239. To review the legal sufficiency
of the evidence in support of a finding, we review the record—crediting evidence
favorable to the finding and disregarding contrary evidence unless a reasonable
factfinder could not reject the evidence. In re J.G., 495 S.W.3d 354, 370 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied); see City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005). To review the factual sufficiency of the evidence in
support of a finding, we consider and weigh all the evidence in a neutral light and
will set aside the finding only if the evidence is so weak or the finding is so against
the great weight and preponderance of the evidence that it is clearly wrong and
unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); J.G., 495
S.W.3d at 370.
      Here, the State moved for transfer pursuant to Section 54.02(j).
Section 54.02(j) sets out the requirements for the discretionary transfer of a person
who was a juvenile at the time of the alleged offense but has turned eighteen prior
to being adjudicated as a juvenile. Section 54.02(j) provides in relevant part that a
juvenile court may waive its jurisdiction and transfer a person to a 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 an
             aggravated controlled substance felony or a felony of the
             first degree other than an offense under Section 19.02,
             Penal Code;
                    ....




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              (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
                      (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 [person] before the court committed the offense alleged.
FAM. § 54.02(j).
       The juvenile court made the requisite findings under Section 54.02(j). It also
made some findings that track other portions of Section 54.02 that do not apply if
the accused person has already turned eighteen. See id. § 54.02(a), (f). We note
that, although a diagnostic study was performed prior to the hearing, a diagnostic
study was not necessary because Appellant was over the age of eighteen. See id.
§ 54.02(j), (l).
       In this regard, Section 54.02 establishes two procedures for the discretionary
transfer of juvenile proceedings to district court and one procedure for mandatory
transfer. Id. § 54.02(a), (j), (m). Subsection (m) relates to mandatory transfer and
is not applicable to this case. Section 54.02(a) relates to the discretionary transfer




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of an accused who is less than eighteen years of age at the time of the transfer
hearing. Section 54.02(j) applies where the accused is eighteen years of age or older
at the time of the transfer hearing. The factors listed in Section 54.02(f) are
applicable to a discretionary transfer under Section 54.02(a), not to a discretionary
transfer under Section 54.02(j). In re D.L.C., No. 06-16-00058-CV, 2017 WL
1055680, at *4 (Tex. App.—Texarkana Mar. 21, 2017, no pet.); see also Moore v.
State, 532 S.W.3d 400, 405 (Tex. Crim. App. 2017); In re H.Y., 512 S.W.3d 467,
476–77, 480 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).               Because
Appellant’s second issue relates to a finding made pursuant to Section 54.02(f), we
need not address that issue as that finding is not necessary or relevant to a transfer
under Section 54.02(j).
      With respect to Appellant’s first issue, the record contains legally and
factually sufficient evidence from which the juvenile court could reasonably have
concluded that Appellant was fourteen years of age or older, but under the age of
seventeen, during the time that some of the alleged aggravated sexual assaults
occurred. See FAM. § 54.02(j)(2)(B). With respect to Appellant’s third issue, the
record contains legally and factually sufficient evidence from which the juvenile
court could reasonably have concluded that probable cause exists to believe that
Appellant committed the alleged offense. See id. § 54.02(j)(5). Furthermore, with
respect to the other requirements of Section 54.02(j), Appellant was shown to be
over the age of eighteen at the time of the hearing, see id. § 54.02(j)(1); there had
been no adjudication regarding the alleged offense, see id. § 54.02(j)(3); and the
evidence showed that, because of the complainant’s delayed outcry, it was not
practicable to proceed in the juvenile court prior to Appellant’s eighteenth birthday,
see id. § 54.02(j)(4).




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        Based upon our review of the record in this appeal, we hold that the juvenile
court’s findings under Section 54.02(j) are supported by the evidence presented at
the transfer hearing and that the juvenile court did not abuse its discretion when it
entered the transfer order. Appellant’s first, third, and fourth issues on appeal are
overruled.
        We affirm the order of the juvenile court.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


June 20, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.




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