AFFIRMED and Opinion Filed March 26, 2020




                                    S   In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-01429-CV

                   IN THE MATTER OF G.O., A JUVENILE

               On Appeal from the 417th Judicial District Court
                            Collin County, Texas
                   Trial Court Cause No. 417-70001-2019

                         MEMORANDUM OPINION
            Before Justices Osborne, Partida-Kipness, and Pedersen, III
                            Opinion by Justice Osborne
      The trial court, sitting as a juvenile court, waived jurisdiction and transferred

G.O. to criminal district court for criminal proceedings. See TEX. FAM. CODE

§ 54.02(j). In two issues, G.O. contends (1) the juvenile court failed to make case-

specific fact findings in support of its decision and (2) the evidence is legally and

factually insufficient to establish that G.O. was more than fourteen years of age at

the time of the offense. Concluding that the juvenile court’s fact findings and the

evidence are sufficient to support its order, we affirm.
                                  BACKGROUND

      At the time of the hearing from which this appeal arises, G.O. was 26 years

old. The juvenile court waived its jurisdiction and ordered G.O. to be transferred to

the district court to be prosecuted as an adult for offenses he allegedly committed

when a juvenile.

      The offense alleged was sexual assault of B.O., a relative living in G.O.’s

home, who was eight years and nine months younger than G.O. The issue at the

hearing was G.O.’s age at the time of the offenses.

      Fernando Robledo, a certified peace officer with the Collin County Sheriff’s

Department, was the first witness at the hearing. He is assigned to the Collin County

Child Abuse Task Force. He observed the forensic interview of B.O. at the Collin

County Child Advocacy Center in late 2018. He explained that G.O.’s parents are

B.O.’s great-aunt and great-uncle, and B.O. was living in their home. In the forensic

interview, B.O. explained that G.O. sexually abused her multiple times when she

was approximately six or seven years old. Robledo testified that B.O.’s 2018

forensic interview was the first report law enforcement received about G.O.’s

alleged sexual abuse of B.O.

      Robledo also testified that after B.O.’s interview, G.O. came to the Child

Advocacy Center and spoke with Robledo. Robledo testified that G.O.’s story

“evolved” as the interview proceeded. He first admitted tickling B.O. and touching

her vaginal area. When confronted with B.O.’s outcry of additional sexual abuse,
                                        –2–
G.O. admitted to putting on a condom and rubbing B.O.’s sexual organ over his erect

penis and ejaculating when neither B.O. nor G.O. was wearing any clothes. G.O.

told Robledo that B.O. was probably in the first or second grade when the abuse

occurred, and G.O. was 13 or 14. Robledo testified that in his opinion, there was

probable cause to believe that G.O. committed the offense of aggravated sexual

assault of B.O.

      B.O., age 17 at the time of the hearing, testified that CPS placed her with

G.O.’s parents just before her third birthday. B.O. considered them to be her parents

although they did not formally adopt her. She explained that when their parents

would go grocery shopping, G.O. would remove B.O.’s clothes, put on what B.O.

now knows was a condom, and penetrate her sexual organ with his. G.O. referred to

his conduct as “tickling” her, so when she complained of the “tickling” to her

parents, they considered it to be normal conduct between siblings.

      B.O. testified that the assaults occurred over a period of about a year, before

and after her seventh birthday. She recalled that her mother had been out shopping

for her birthday dinner and cake when one of the assaults occurred. B.O. also

testified that the assaults occurred before G.O. was able to drive. She said that G.O.

“wasn’t even able to drive yet because they happened up until he got his first

girlfriend, and I still remember our family having to take her home some nights

because [G.O.] wasn’t able to drive her home.”



                                         –3–
      B.O. did not make any outcry at the time of the offenses. She told G.O.’s

parents only after G.O. was no longer living in the home but was returning to the

home for overnight visits. She then told a nurse at school, and the school notified

law enforcement.

      On cross-examination, B.O. confirmed that she had told the forensic

interviewer that G.O. played “All Star Baseball” around the time the assaults

occurred, and that the assaults stopped after G.O. had started dating his first

girlfriend Courtney and he got a flat-screen TV in his room.

      G.O.’s mother (“Mother”) testified that B.O. came to live with them in 2005,

when B.O. was three years old and G.O. was twelve. She confirmed that B.O. did

not make any outcry of abuse by G.O. until many years later. She testified that B.O.

told her “everything stopped when [G.O.] got his first girlfriend Courtney.” She is

“a hundred percent sure” that G.O. began dating Courtney when G.O. was in the

seventh grade, because there is school yearbook picture of them attending a dance

together in 2006. G.O. was thirteen years old at the time of the dance. Mother

brought the yearbook and photograph to trial, and the photograph was admitted into

evidence.

      Mother also testified that the summer after G.O. completed seventh grade,

Courtney accompanied the family on a swimming trip to Oklahoma. Mother testified

that Courtney and G.O. stopped dating the following school year. Like B.O., Mother

recalled that G.O. did not have his driver’s license when he dated Courtney, because
                                        –4–
she and her husband would drive G.O. and Courtney back and forth between their

homes.

      Mother also testified that G.O. was in All Star Baseball in 2005, and the age

limitation for that league was 14. She identified a newspaper article dated July 15,

2005, with a picture of the team including G.O., and testified that G.O. did not

participate in All Star Baseball in high school. Mother also contradicted B.O.’s

testimony about the flat-screen TV in G.O.’s room, saying that G.O. paid for the TV

with his own money when he was a senior in high school.

      After the hearing, the juvenile court made findings of fact, including a finding

that “there is probable cause to believe that [G.O.] was 14 years of age or older and

under 17 years of age at the time he is alleged to have committed the 1st degree

felony offense of Aggravated Sexual Assault of a Child.” The court waived

jurisdiction and ordered transfer of G.O. to the district court “for proper criminal

proceedings.” This appeal followed.

                 APPLICABLE LAW AND STANDARDS OF REVIEW

      Title 3 of the Texas Family Code governs proceedings in all cases involving

delinquent conduct engaged in by a person who was a child at the time the alleged

conduct occurred. See TEX. FAM. CODE §§ 51.04(a). The juvenile court has exclusive

original jurisdiction over these proceedings. Id. The juvenile court, however, has no

jurisdiction to adjudicate or conduct a disposition hearing regarding a person who is

18 years old or older. In re N.J.A., 997 S.W.2d 554, 555 (Tex. 1999). Instead, the
                                        –5–
family code allows the juvenile court to waive its exclusive, original jurisdiction and

transfer a person who is 18 years old or older to an appropriate district court for

criminal proceedings if certain criteria are met. Id. at 555–56.

      To waive its jurisdiction and transfer the case, the juvenile court must find

that (1) the respondent is currently 18 years of age or older; (2) the respondent was

14 years of age or older and under 17 years old at the time he allegedly committed

the offense; (3) the alleged offense had not been adjudicated or no adjudication

hearing concerning the offense had been conducted; (4) by a preponderance of the

evidence, that for a reason beyond the State’s control, it was not practicable to

proceed in juvenile court before the respondent’s 18th birthday; and (5) there was

probable cause to believe that the respondent committed the offense. TEX. FAM.

CODE ANN. § 54.02(j); In re N.J.A., 997 S.W.2d at 556.

      “Our review of a transfer order is two-pronged.” Matter of L.W., No. 05-19-

00966-CV, 2020 WL 728431, at *9 (Tex. App.—Dallas Feb. 13, 2020, no pet. h.)

(mem. op.). First, we review the juvenile court’s specific findings of fact concerning

the section 54.02(j) factors under a traditional sufficiency of the evidence review.

See id. (citing Moon v. State, 451 S.W.3d 28, 47 (Tex. Crim. App. 2014)). In

determining whether legally sufficient evidence supports a finding under review, we

consider evidence favorable to the finding if a reasonable factfinder could and

disregard evidence contrary to the finding unless a reasonable factfinder could not.

Matter of A.B., No. 02-18-00274-CV, 2019 WL 983751, at *2 (Tex. App.—Fort
                                         –6–
Worth Feb. 28, 2019, no pet.) (mem. op.). If more than a scintilla of evidence

supports the finding, 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. at *3.

      Second, we review the juvenile court’s ultimate waiver decision for abuse of

discretion. Matter of L.W., 2020 WL 728431, at *9. A juvenile court abuses its

discretion if it acts without reference to guiding rules and principles. Matter of A.B.,

2019 WL 983751, at *3. The factfinder is the sole judge of the witnesses’ credibility

and the weight to be given their testimony. Id.

                                     DISCUSSION

A. Specificity of findings

      In his first issue, G.O. complains that the juvenile court abused its discretion

by transferring the case to district court without making the necessary case-specific

findings of fact. Because G.O. was over the age of 18 at the time of the transfer

hearing, subsection (j) of family code section 54.02 applied to the proceeding. See

TEX. FAM. CODE § 54.02(j)(1) (waiver of jurisdiction for person 18 years of age or

older at time of transfer hearing). G.O. argues that the juvenile court’s findings

numbered two, four, and five lack the specificity required under subsection (h) of

section 54.02. See TEX. FAM. CODE § 54.02(h) (juvenile court “shall state

specifically in the order its reasons for waiver”); Moon, 451 S.W.3d at 49–50
                                          –7–
(appellate court must limit its sufficiency review to facts that juvenile court expressly

relied upon as required to be explicitly set out in transfer order under § 54.02(h)). In

Moon, the court explained that the purpose of section 54.02(h) “is not well served

by a transfer order so lacking in specifics that the appellate court is forced to

speculate as to the juvenile court’s reasons for finding transfer to be appropriate or

the facts the juvenile court found to substantiate those reasons.” Moon, 451 S.W.3d

at 49.

         The State argues that Moon addressed orders under subsection (h) of section

54.02, not subsection (j), and in any event, the juvenile court’s order in this case

included case-specific findings from which a reviewing court may determine that

the ruling was appropriately guided by statutory criteria.

         The juvenile court found that G.O. is “a person 18 years of age or older,” a

fact that G.O. does not dispute, although the juvenile court’s first finding of fact also

misstates G.O.’s birth date as November 15, 1995, instead of the correct date of

September 21, 1992. Even under the incorrect date, G.O. was older than 18 at the

time of the hearing on June 27, 2019. The juvenile court also found:

         2. That there is probable cause to believe that [G.O.] was 14 years of
         age or older and under 17 years of age at the time he is alleged to have
         committed the 1st degree felony offense of Aggravated Sexual Assault
         of a Child.

         ...

         4. The [C]ourt finds from a preponderance of the evidence that after
         due diligence of the [S]tate it was not practicable to proceed in juvenile

                                            –8–
        court before the 18th birthday of [G.O.] because the State did not have
        probable cause to proceed in juvenile court and new evidence has been
        found since the 18[th] birthday of the person.

        5. The Court finds there is probable cause to believe that the
        Respondent committed the alleged offense.

        The evidence supporting the juvenile court’s fourth and fifth findings is

undisputed. As to the fourth finding, the only evidence in the record is that B.O.

made no outcry until November 2018, after G.O.’s 26th birthday. As to the fifth

finding, B.O. testified to G.O.’s sexual assaults, and Robledo testified that G.O.

admitted his own conduct constituting the offenses.1 There was no evidence to the

contrary. See Matter of D.L.C., No. 06-16-00058-CV, 2017 WL 1055680, at *6

(Tex. App.—Texarkana Mar. 21, 2017, no pet.) (mem. op.) (“In fact, there may be

no reversible error even when the juvenile court’s order seemingly restates the

factors contained in Section 54.02, as long as the enumerated reasons were supported

by the evidence.”).

        The only disputed fact was G.O.’s age at the time of the offenses. In Matter

of D.L.C., a finding that “D.L.C. was sixteen years of age at the time the alleged

offense(s) occurred” was sufficiently specific to provide a definite basis for the

appellate court to determine that the juvenile court’s decision was “‘appropriately

guided by the statutory criteria, principled, and reason[able].’” Id. at *7 (quoting


    1
      See TEX. PENAL CODE § 22.021(a)(1)(B) (defining aggravated sexual assault of a child to include
intentionally or knowingly causing the sexual organ of a child to contact or penetrate the sexual organ of
another person, including the actor, if the victim is younger than 14 years of age). The juvenile court’s order
included a specific finding tracking the statutory language.
                                                     –9–
Moon, 451 S.W.3d at 49). Here, the juvenile court found that G.O. was “was 14

years of age or older and under 17 years of age” at the time of the offense, a finding

that tracks the applicable statutory language. See TEX. FAM. CODE § 54.02(j)(2)(B).

      G.O. also argues that the juvenile court’s findings do not include the findings

required under subsections (a) and (f) of section 54.02. But because G.O. was “18

years of age or older” at the time of the hearing, subsection (j) applied to establish

the required findings. Compare TEX. FAM. CODE §§ 54.02(a) (applying to transfer of

“child”) and 54.02(f) (factors to consider “in making the determination required by

Subsection (a)”) with TEX. FAM. CODE § 54.02(j) (required findings for transfer of

person 18 years of age or older). Findings under subsection (a) and (f) were not

required. See Matter of D.L.C., 2017 WL 1055680, at *5 (because D.L.C. was 18

years of age at time of hearing on State’s petition for discretionary transfer, factors

in subsection (j) of § 54.02 applied, not factors in subsections (a) and (f)).

      We conclude that the juvenile court’s order contained sufficiently specific

findings on subsection 54.02(j)’s factors. See id. at 6–7. We decide G.O.’s first issue

against him.

B. Sufficiency of the evidence

      In his second issue, G.O. argues that the evidence is legally and factually

insufficient to establish that G.O. was 14 years of age or older at the time of the

alleged offenses. See TEX. FAM. CODE § 54.02(j)(2)(B). Although there was

conflicting evidence regarding G.O.’s age at the time of the offense, the record
                                         –10–
contains some evidence that the incidents occurred around B.O.’s seventh birthday

in July 2008, when G.O. was 15 years old. Consequently, there is more than a

scintilla of evidence to support the juvenile court’s finding that G.O. was 14 years

of age or older and under 17 years of age at the time of the alleged offense. See

Matter of A.B., 2019 WL 983751, at *6. We conclude the evidence is legally

sufficient to support the juvenile court’s finding. See id.

      As G.O. argues, there is also evidence to support a contrary finding. B.O.

testified that the abuse “happened up until [G.O.] got his first girlfriend,” and Mother

testified that G.O. took Courtney to a dance in February 2006 and on a trip in the

summer of that year, when G.O. was thirteen years old and B.O. was four or five.

But B.O. also testified unequivocally about the abuse before and after her seventh

birthday. G.O. also cites B.O.’s testimony that G.O. was playing baseball at the time

of the abuse, and relies on Mother’s testimony that he played All Star Baseball in

2005. The State replies that B.O. clarified on cross-examination that she meant G.O.

“was a really good baseball player” and did not make a specific reference to an exact

date when G.O. was playing on the All Star Baseball team. These factual

discrepancies were for the juvenile court to resolve. Matter of A.B., 2019 WL

983751, at *6. The juvenile court was free to accept or reject any or all of any

witness’s testimony, and to reconcile any apparent inconsistencies in the testimony.

See id. B.O. testified that G.O. assaulted her on at least 20 occasions before and after

her seventh birthday. She had specific recollection of the date because she
                                         –11–
remembered decorating her cake and her mother going to the store to buy things for

the party. On B.O.’s seventh birthday, G.O. was fifteen. We conclude the juvenile

court’s findings are not so against the great weight and preponderance of the

evidence as to be clearly wrong and unjust. Id. at *3.

      Next, we consider whether the juvenile court abused its discretion by waiving

its jurisdiction and transferring G.O.’s case. See Moon, 451 S.W.2d at 47. The

court’s order reflects its findings that all of section 54.02(j)’s criteria were met. See

TEX. FAM. CODE ANN. § 54.02(j)(1)–(5); Matter of D.S., No. 02-17-00050-CV, 2017

WL 3187021, at *4 (Tex. App.—Fort Worth July 27, 2017, pet. denied) (mem. op.).

G.O. argues that the great weight and preponderance of the evidence shows

otherwise, but we have concluded there is factually sufficient evidence to support

the juvenile court’s findings. We conclude the juvenile court did not abuse its

discretion by waiving its jurisdiction and transferring G.O.’s case to criminal district

court on the ground that all five of section 54.02(j)’s criteria were met. See id. We

decide G.O.’s second issue against him.




                                         –12–
                                    CONCLUSION

      We affirm the juvenile court’s order waiving its jurisdiction and transferring

G.O.’s case to criminal district court.




                                            /Leslie Osborne/
                                            LESLIE OSBORNE
                                            JUSTICE

191429F.P05




                                          –13–
                                     S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                    JUDGMENT

 IN THE MATTER OF G.O., A                        On Appeal from the 417th Judicial
 JUVENILE                                        District Court, sitting as Juvenile
                                                 Court, Collin County, Texas
 No. 05-19-01429-CV                              Trial Court Cause No. 417-70001-
                                                 2019.
                                                 Opinion delivered by Justice
                                                 Osborne. Justices Partida-Kipness
                                                 and Pedersen, III participating.

      In accordance with this Court’s opinion of this date, the November 8, 2019
order of the trial court, sitting as juvenile court, waiving jurisdiction and transferring
respondent to district court is AFFIRMED.


Judgment entered March 26, 2020




                                          –14–
