in the Matter of T.H.

ACCEPTED
14-15-00927-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
12/31/2015 4:51:49 PM
CHRISTOPHER PRINE
CLERK

NO. 14-15-00926-CV
NO. 14-15-00927-CV
______________________________________________________________
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 12/31/2015 4:51:49 PM
FOR THE FOURTEENTH JUDICIAL DISTRICT
CHRISTOPHER A. PRINE
OF TEXAS AT HOUSTON Clerk

________________________________________________________________

IN THE MATTER OF T.H.
_________________________________________________________________

T.H., Appellant

v.

THE STATE OF TEXAS, Appellee
_________________________________________________________

APPEALED FROM THE 315TH
DISTRICT COURT OF HARRIS COUNTY, TEXAS

Trial Cause Nos. 2015-02522J & 2014-02523J
_________________________________________________________

ANDERS BRIEF OF APPELLANT T.H.
____________________________________________________________

WILLIAM M. THURSLAND
TBN 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
713-655-0200 x 105; Fax: (713) 655-9035
Email: wmthursland@hotmail.com

ATTORNEY FOR APPELLANT, T.H.

ORAL ARGUMENT IS REQUESTED
 IDENTIFICATION OF PARTIES AND COUNSEL

The names of all parties and counsel to this appeal are:

M.C., Appellant:

At Trial: On Appeal:

Ann Campbell William M. Thursland
Attorney At Law Attorney At Law
TBN 20016200 TBN: 00787193
440 Louisiana St., Ste. 1130 10924 Grant Rd., Ste. 517
Houston, TX 77002 Houston, TX 77070
Tel: 713-655-0200; x 105 Tel: 713-655-0200 x 105
Fax: 713-655-9530 Fax: 713-655-9035

The State of Texas, Appellee:

At Trial: On Appeal:

Sarah Bruckmiller Alan Curry
Assistant District Attorney Assistant District Attorney
TBN: 24051359 TBN: Unknown
1200 Congress, 2nd Fl. 1201 Franklin,
Houston, TX 77002 Houston, TX 77002
Tel: 713-755-5800 Tel: 713-755-5800
Fax: 713-713-5809 Fax: 713-755-5809

REQUEST FOR ORAL ARGUMENT

Appellant does not request oral argument.

RECORD REFERENCES

Clerk’s Record:

The Clerk’s Record in each case consists of one (1) volume. It is referred to
herein as CR followed by the volume and page number(s).

i
Reporter’s Record:

The court reporter’s trial record consists of three (3) volumes. The hearing
testimony is found in the second volume and is referred to as (RR) followed by the
page and line number(s). The exhibits are found in the third volume and are
identified by the offering party and exhibit number.

Statutory Citation References:

Unless otherwise indicated, all statutory references made herein refer to the
Texas Family Code.

TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL i

REQUEST FOR ORAL ARGUMENT i

RECORD REFERENCES i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iii

STATEMENT OF THE CASE 1

ISSUE PRESENTED: 2

ARE THERE ANY NON-FRIVOLOUS GROUNDS TO
ASSERT ON APPEAL

STATEMENT OF FACTS 2

SUMMARY OF ARGUMENT 14

ARGUMENT 15

I. Anders Procedures & requirements 15

ii
II. Waiver of Juvenile Jurisdiction 16

III. Conclusion & Prayer 23

CERTIFICTE OF COMPLIANCE 24

CERTIFICATE OF SERVICE 24

TABLE OF AUTHORITIES

Federal Cases

Anders v. California, 386 U.S. 738 (1967) 14, 15, 16

State Cases
Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) 16

Guerrero v. State, No. 14-13-00101-CR, 2014 WL 7345987 23
(Tex. App. – Houston [14th Dist.] Dec. 23, 2014, no pet.)(memo.op.)

In re D.A.S., 973 S.W.2d 296 (Tex. 1998) 14

Moon v. State., 451 S.W.3d 28 (Tex. Crim. App. 2014) 14, 15, 22

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App, 1991) 16

Statutes
Tex. Family Code Ann. § 51.02(2)(a) 19

Tex. Family Code Ann. § 54.02(a)(3) 16

Tex. Family Code Ann. § 54.02(f) 17, 18, 22

Tex. Family Code Ann. § 54.02(h) 17

Tex. Family Code Ann. § 54.04(1) 21

Tex. Family Code Ann. § 54.04(d)(2) 22

Tex. Human resources Code § 245.1151 22

iii
 No. 14-15-00926-CV
No. 14-15-00927-CV
__________________________________________________________

IN THE COURT OF APPEALS
FOR THE FOURTEENTH JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
___________________________________________________________

IN THE MATTER OF T.H.
____________________________________________________________

T.H., Appellant

v.

THE STATE OF TEXAS, Appellee
_____________________________________________________________

On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause Nos. 2015-02522J & 2015-02523J
____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellant, T.H., respectfully submits his original brief in the above styled
and number appeal.
STATEMENT OF THE CASE

On April 22, 2015, the State of Texas filed the Original Petition in cause

numbers 2015-02522J and 2015-02523J wherein it alleged that on April 4, 2015

appellant committed the first-degree felony offense of aggravated robbery against

1
Clarence Hayes and Ghulam Ali, respectively. (CR 3-4)

On or about June 1, 2015, the State filed its motion requesting that the

juvenile district court waive its jurisdiction and transfer the cases to the criminal

district court. (CR 5-6)

At the conclusion of the certification hearing, the trial court granted the

State’s motion. The “Order to Waive Jurisdiction” in both cases was signed on

October 13, 2015. (CR 8-12)

Appellant filed his notice of appeal on October 30, 2015. (CR 16)

ISSUE PRESENTED

ARE THERE ANY NON-FRIVOLOUS GROUNDS TO
ASSERT ON APPEAL

STATEMENT OF FACTS

The certification hearing was heard on September 11, 2015. The State

called six witnesses and the appellant one. Prior to calling its first witness, the

State offered the following six exhibits that were admitted into evidence without

objection:

1. A Stipulation of Date of Birth establishing that T.H. was born on June 2,
1998.

2 & 3. The returns of service regarding the State’s certification motions in
both cause numbers reflecting that T.H. was served with citation on June 4, 2015.

4 & 5. The returns of service regarding the State’s certification motions in
2
both cause numbers reflecting that T.H.’s mother was served with citation on June
9, 2015.

6. The Court Report Information Summary (“CRIS”).

(RR p. 5-6)

Psychologist Tellez:

Alexandra Tellez is a psychologist with the Harris County Juvenile Probation

Department who was requested to do an evaluation on appellant in preparation for

the certification hearing. On July 2, 2015, she met with T.H., and his attorney. At

some point, psychiatrist Linda Wittig, was also present. Appellant refused to “do

the interview after [Tellez] went over the limits of confidentiality.” Tellez

estimates she met with T,H, for about 15 minutes. She attempted to make him

more comfortable by asking questions about his childhood but he “just refused

from the onset of the interview.” She does not recall him saying anything and

there was no indication that he did not understand her questions. (RR p. 7-8 & p. 9;

L. 1-12)

In addition to Tellez, appellant’s attorney and Wittig made separate attempts

to engage T.H. but they were also unsuccessful. (RR, p. 9-10)

Officer Arolfo:

Wendell Arolfo is a Houston Police Department (“HPD”) officer who is

3
assigned to the Southwest station. He investigates crimes against persons such as

aggravated robberies. He was assigned to investigate a robbery that occurred

around 10:30 on April 4, 2015 at a convenience store called A&K Food Store

(“store”). There were two complainants; the store clerk, Gulam Ali (“Ali”) and

Clarence Hayes (“Hayes”). The store has video cameras “inside and out” which

captured the robbery from “two different perspectives.” (RR, p. 11-14)

Arolfo obtained copies of the videos that were admitted into evidence

without objection as State’s exhibit #7. The investigation revealed that T.H.

entered the store wearing a red hoodie, with a black bag over his chest and black

sweatpants. He jumps through the hole at the counter “where the clerk passes you

money.” As he jumps he pulls out a black revolver. Once he lands on the other

side “he puts his face out” and aims the gun at Ali’ head and demands money. As

Ali complies with the demand, Hayes enters the store; appellant shoots twice and

strikes Hayes in the leg. He then grabs the money and exits the store. (RR p. 15-

16)

The second video shows T.H. firing two shoots at Hayes who entered the

store “like he usually does” unaware that an armed robbery was occurring. State’s

exhibit # 8, a photo depicting the injury to Hayes’ left thigh was admitted into

evidence without objection. Arolfo explained that the bullet hit a quarter, which

4
generated enough heat to burn Hayes’ skin. If the quarter weren’t there, the bullet

would have penetrated the leg and caused a worse injury. It appears T.H. at first

was aiming for the chest but the bullet could have gone “anywhere.” Arolfo found

a fragment of the bullet in Hayes’ boot. No casings were found because appellant

used a revolver. (RR, p.19-21)

The patrol officers got a “good ID of the suspect” and a neighbor, Amanda

Young, walked into the store and recognized T.H. in the surveillance video.

Earlier in the day she saw him wearing the same clothing in the apartment

complex. His face was unobstructed in the video. So HPD knew appellant’s name

but the patrol officers were unable to find him. At this point, Arolfo’s team took

over the investigation. On April 9, 2015, they showed a photo array to Ali who

“immediately pointed to No. 5, [T.H.], and said that was him.” The photo array

was admitted into evidence without objection as State exhibit #9. (RR, p. 22- 26)

On April 10, 2015, Arolfo interviewed appellant’s 19 year old sister,

Ironisha, at the apartment complex where they both live across the street from the

store. She remembered T.H. sitting on the couch wearing a red hoodie, black pants

and twirling a gun before the robbery happened. She reported he is a member of

the Early Boys gang and might be staying with an aunt “off 610 and Long Drive.”

She appeared nervous and frightened of her brother. She voluntarily spoke to the

5
police. When shown the video, she immediately identified her brother and noted

he was wearing the same clothing. (RR p. 27-29)

Arolfo also interviewed Hayes who stated as he entered the store he saw a

black male wearing a red hoodie behind the counter; pointing a pistol at him. He

knew he was shot because “he felt the burn in his leg and immediately ran out of

the store.” (RR p. 30)

One of appellant’s booking photos was admitted into evidence without

objection as State’s exhibit #10. It depicts a crown tattoo on his lower left arm that

is associated with the Early Boys gang. Red is also the gang’s color. (RR p. 32-33)

Arolfo explained the discrepancy between the police report that states the

robbery took place at 10:25 am and video which indicates it occurred at 9:28 am to

the fact that often videos are “off due to daylight savings times,” The gun was

never found and he does not know if “forensic” attempted to match the bullet

fragment to Hayes’ wound or the imprint on the quarter. According to officer

Sneed, Young walked into the store when Ali was showing the video on the “big

TV right when you walk” into the store. She looked up and said, “That’s [T.H.],

my neighbor.” (RR p. 34-35)

After learning where appellant lived from Young, Sneed went to his

residence and spoke with his mother and sister Ironesha. Arolfo did not know if

6
Sneed tried to lift fingerprints from the counter.1 Ali was able to readily identify

T.H. because a few days earlier because “a few days prior” he and his mother were

at the store buying items. He could see appellant’s eyes and face. Ionesha told the

police on the day of the robbery T.H. grabbed all of his belongings and left the

apartment. (RR p. 36-38)

Appellant is 5’9” and is taller than Ali or Hayes. He stole around $300 and

Ali told Sneed “I think I know the kid.” Ironisha told him she saw T.H. with the

gun the morning of the robbery. Appellant’s mother said he did not have a red

hoodie. The gang division determined that this was a gang related crime. (RR p.

39-40)

Ghulam Ali:

Ali has worked at the store for five years as a cashier. This was the first he

was robbed. On April 4, at around 10, 10:30 he was making coffee suddenly

someone jumped from the window inside and immediately said twice, “give me the

money.” The assailant put a gun to Ali’ head and instructed him to put the money

on the floor then put it into a bag. While he was putting the money in the bag he

heard “a big shot with the gun.” When all the money was in the bag, the robber

took it and fled. (RR, p. 42-44)

1
Sneed’s report noted, “I checked the counter looking for prints but found it to be wood. No
fingerprints were recovered.” (RR p. 40; L. 15-20)
7
 At the time, Ali was confused and not thinking but he saw the robber’s face.

Part of the eye was covered with red cloth but he saw “the eye and little part below

the eye.” When he first heard the shot Ali thought he was shot but then he realized

somebody was coming inside so he shouted, “go out the door.” Then he heard the

shot. (RR p. 45 & p. 46; L. 1-7)

Around $450 to $500 was stolen. A week before the incident a lady went to

the ATM and a boy was behind her. A young teenage girl was also there. The boy

said, “give me the money, Mom, give me the money.” The robber said the same

thing in “almost” the same voice. Ali gave the video to the police. The day after

the robbery, appellant’s mother came to the store and told him the police were

looking for her son. She did not say anything about what happened but asked for

the video. (RR p. 46-48)

Ali recognized appellant’s voice and saw his face when he was jumping in.

Sometimes before the robbery T.H.’s mother would enter the store. After the

robbery she identified herself as his mother. (RR p. 49)

Clarence Hayes:

Hayes lives behind the store and is there everyday. On the morning of April

4th he bought a “Pick 3.” Around 10:20 he returned to the store to see if he won.

When he walked into the store he could not tell what was happening and he did see

8
Ali. Then he saw a red hoodie rising and was shot. There was only one shot. The

bullet struck him in the right thigh area. Fortunately, it hit a quarter in his pocket.

When Hayes was hit, he felt traumatized and scared. He backed out of the store

and ran on Bellfort where he tried to “flag some help down.” State exhibit #9

depicts the injury he sustained to his leg. He sought medical treatment for the

injury. (RR p. 52-55)

While Hayes was flagging down help, the robber ran out of the store. He did

not have an opportunity to see the guy that shot” him “maybe just his eyes.”

However, he saw him run through his yard and up the street. Hayes did not see

him after that but “they said” he ran into the apartments across from the store. (RR

p. 56-57)

Officer Hines:

Andre Hines is an investigator with the Metro Police Department. He

investigated a robbery that occurred on April 11, 2013. One of the two suspects

was T.H. (RR p. 59-61)

According to the offense report, while riding a metro bus, appellant asked the

complainant to use his cell phone. He refused because the battery was low. After

he exited the bus, T.H. and another male followed him. Eventually, they assaulted

him and stole his phone. The complainant sustained injuries and reported the

9
robbery to the police. (RR p. 62-63 & p. 64; L. 1-12)

The complainant called his phone and received a message that identified the

owner as “Early Boy T.H.” He also investigated T.H. on social media and was

able obtain six photographs that he provided to Hines. On some of them, T.H. is

making hand gestures that identify him as a member of the Early Boys gang. As a

result of the investigation, appellant was charged with robbery. (RR p. 64; L. 15-

25 & p. 65-66)

Probation Officer Gabriel:

Angela Gabriel has been a juvenile probation officer with Harris County

since 2007 and works with the gang unit. T.H. placed on probation after being

adjudicated for the robbery offense. Gabriel supervised him from March 16, 2015

until his probation terminated the end of May and she met with him several times.

(RR p. 68-70)

T.H. is a “high-ranking officer” in the Early Boys gang. There is a safety

alert in his probation file because of his violent tendencies. On March 20th Gabriel

went to a scheduled visit 8:00 am visit at appellant’s home. His mother said he

was not there because she allowed him to spend the night at a friend’s house. He

was supposed to return by 7:00 am. Gabriel reminded her that his curfew is from

7:00 pm to 6:00 am and that he must be residing with her. The mother did not

10
have a telephone number to contact T.H. Shortly afterwards, he called Gabriel and

confirmed his mother allowed him to spend the night at his girlfriend’s home. (RR

p. 71-73)

On April 6th Gabriel met T.H. at the Greater Grace Outreach Church. She

previously spoke to him and his mother about making payments towards the $960

restitution. She informed him that if the restitution was not taken care of he would

go before the Judge and he would not get off probation in May. On this day he

pulled out a wad of money that “looked like hundreds of bills” and tried to give it

to her for restitution. She explained it had to be paid with money order or cashier’s

check. (RR p. 74-75)

Neither T.H. nor his mother explained where the money came from. Gabriel

was not “aware” that he had a job and the meeting occurred just two days after the

store robbery. As far as Gabriel knows, the restitution was never paid. (RR p. 75;

L. 22-25 & p. 76)

T.H.’s prior probation office, Anthony Chambers, had to go to his school

because of an incident that occurred on March 3, 2015. Appellant was jumped by

a rival gang member and “was defending himself.” The school was placed on

lockdown because they feared there would be “gang retaliation at the school.”

Chambers allowed T.H. to call “someone.” He told that person “they were not

11
going to handle this at school. Let’s just leave it alone.” It is Gabriel’s

understanding that because T.H. is a high-ranking officer he had the “authority of

what the gang would plan out.” (RR p. 77-79)

Gabriel does not know who makes the “high-ranking designations” or what

criteria are used. In fact, she only knows about it because it “shows up on JIMS.”

Gabriel drug tested T.H. and he was always negative. Drugs do not appear to be a

problem. (RR p. 80-81)

Respondent’s Mother:

Nakitta Burrell is appellant’s mother. She prefers that her son stay in the

juvenile system because he is “still a child, and I don’t feel that he’s ready for [an

adult facility].” Burrell believes T.H.’s placement at several different juvenile

facilities “were of benefit to him.” She would like him to be sent to a new juvenile

placement. (RR p. 82-83)

T.H. stayed in “maybe two or three” placements where he received different

kinds of services. He would also go from one placement to another without

necessarily being sent home. Burrell is very close to her son and she reported that

he is easily angered. However, his anger was not so extreme that it couldn’t be

controlled. Appellant attended school all the time but mother recalls speaking with

Chambers on February 17, 2014 “about [T.H.] not being enrolled in school.” He

12
missed several weeks due to the “enrollment process.” In March he left that school

and mother began the process of enrolling him into a different school. (RR p. 84-

85)

Mother tried to get him an education; keep him away from trouble and teach

him right from wrong. In addition to Ironesha who is now 20, she has an 18-year-

old daughter Andrea. (RR p. 86; L. 1-15)

On March 27, 2015 T.H. asked Burrell to pick him up so he could arrive

home before curfew. She had no transportation so he caught a ride “with a couple

of guys.” Between 10 or 11 pm she received a call informing her T.H. was

arrested for being in a stolen vehicle.” They said he had nothing to do with it and

was just a passenger. Appellant was aware the vehicle was stolen “once he was

told.” (RR p. 86; L. 16-25 & p. 87)

After hearing closing arguments, the trial court stated it would not hold it

against appellant because he exercised his right to decline participating in the

evaluation. It then went on to find the State met its burden as to probable cause.

It further noted that criminal proceedings were required due to the serious and life-

threatening nature of the offense; four years of escalating criminal behavior even

with T.H. being in various placements for over half that time; highly sophisticated

high-level gang involvement; lack of response to years of intervention; inadequate

13
parental supervision and his age.

SUMMARY OF ARGUMENT

After thoroughly reviewing the appellate record, the undersigned court-

appointed counsel (“counsel”) has determined, in his professional opinion, that

there are no non-frivolous grounds to assert on appeal. Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967) The Anders procedures are applicable to juvenile

delinquency appeals. In re D.A.S., 973 S.W.2d 296 (Tex. 1998)

Last year the Court of Criminal Appeals enunciated a two-prong analysis to

determine if the juvenile court abused its discretion in waiving its jurisdiction and

transferring a case to the criminal district court:

(1) did the [juvenile] court have sufficient information upon which to
exercise its discretion; and (2) did the [juvenile] court err in its application of
discretion? A traditional sufficiency of the evidence review helps answer the first
question, and we look to whether the [juvenile] court acted without reference to
any guiding rules or principles to answer the second.

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

The record in this appeal contains sufficient evidence upon which the court

could exercise its discretion. At the certification hearing, both complainants

testified and the store video depicting the actual commission of the aggravated

robbery was admitted into evidence. The CRIS enumerated appellant’s criminal

history beginning with a referral for a class B misdemeanor in 2013 and ending

14
with his referral for the first-degree felony offense of aggravated robbery. The

seriousness of his criminal behavior escalated despite the Juvenile Probation

Department’s attempts to rehabilitate him. These attempts included placement at

four different facilities and enrollment in specialized programs such as the gang

program.

Finally, as required by Moon, Id. at 51, the juvenile court made “case-

specific finding of fact” that are substantiated by the record.

In conclusion, counsel is unable to raise any non-frivolous points to argue on

appeal.

I. Anders Procedures & Requirements

When appointed counsel determines, in their professional opinion, that an

appeal is without merit and there are no arguable grounds for reversal, counsel is

required to file a brief that meets the requirements of Anders v. California, 386

U.S. 738, 87 S. Ct. 1386 (1967) The Anders procedures are applicable to juvenile

delinquency appeals. In re D.A.S., 973 S.W. 2d at 296

The court of appeals is required to fully examine the record to determine

whether there are any non-frivolous issues to assert on appeal. If it determines,

after conducting its independent review of the record, that an appeal is wholly

frivolous, it issues an opinion explaining that it has thoroughly reviewed the record

15
and finds no arguable issue. However, if the court determines that there are

arguable appellate issues, it remands the case to the trial court with instructions to

appoint new counsel to argue those issues on appeal. Bledsoe v, State, 178 S.W.3d

824, 826-827 (Tex. Crim. App. 2005)

Appellate counsel is required to send a copy of his brief and the record to

appellant. In addition, counsel must advise the client of their right to file a pro se

brief and of the applicable appellate deadlines. Stafford v. State, 813 S.W.2d 503,

510 (Tex. Crim. App. 1991) Finally, appointed counsel must actively advocate for

their client by referring to anything in the record that might arguably support the

appeal. Anders v. California, 386 U.S. at 744; 87 S. Ct. at 1400

II. Waiver of Juvenile Jurisdiction

A. Applicable Legal Standard:

§54.02(a)(3) provides that prior to transferring a juvenile to criminal court

for prosecution, the juvenile court must find (1) probable cause to believe the

juvenile committed the offense alleged in the petition; and (2) the seriousness of

the offense alleged, the background of the child, and the welfare of the community

require criminal prosecution.

In making its determination the juvenile court must consider the following

16
factors set forth in §54.02(f):

1) whether the alleged offense was against person or property, with greater

weight in favor of transfer given to offenses against persons;

2) the sophistication and maturity of the child;

3) the record and previous history of the child, and

4) the prospects of adequate protection of the public and the likelihood of
the rehabilitation of the child by use of procedures, services, and facilities currently
available to the juvenile court.

At the juvenile court, the State bears the burden of proving by a

preponderance of the evidence that waiver is appropriate. Moon v. State, 451

S.W.3d at 40-41 (Tex. Crim. App. 2014) If the juvenile court waives jurisdiction,

it is required to “state specifically in the order its reasons for waiver and certify its

action, including the written order and findings of the court.” §54.02(h) The order

must also show that the §54.02(f) factors were taken into account in making its

determination. Id. at 40-42

In Moon, Id. at 47, the Court of Criminal Appeals explained:

In evaluating a juvenile court’s decision to waive its jurisdiction, an
appellate court should first review a juvenile court’s specific findings of fact
regarding the Section 54.02(f) factors under “traditional sufficiency o the evidence
review.” But it should then review the juvenile court’s ultimate waiver decision
under an abuse of discretion standard.

The Moon court further explain that as long as “the appellate court can

17
determine that the juvenile court’s judgment was based upon facts that are

supported by the record, it should refrain from interfering with that judgment.” Id.

at 46

B. Analysis Under §54.02(f)

Whether Alleged Offense Against Person or Property:

Here the juvenile court found there was probable cause to believe appellant

committed multiple offense against the person of another. Specifically, it found he

pointed a firearm at Ali’ head placing him in imminent fear of death or serious

bodily injury and while in the course of committing the offense shot Hayes in the

leg causing him injury. (CR 9)

The record contains ample evidence to support these finding. To cite just

the most damaging facts; Ali recognized appellant’s face and his voice; his

neighbor Young recognized him in the video that shows him committing the

offense; Young saw him earlier that morning in the same clothes; and, Ironesha

saw him earlier at their home wearing the same clothes twirling a gun.

Sophistication and Maturity of the Child:

In support of this factor, the court found appellant was acting alone when he

committed the aggravated robbery and “making his own decisions.” He is “highly

sophisticated, high-level gang involvement in the Early Boys gang” and as such he

18
makes decisions on what’s going to happen and what’s not going to happen.” He

is 17 years old.2 (CR 9)

All the evidence reflects that T.H. committed the offense alone. The

evidence regarding his gang involvement came from Gabriel and the CRIS (State #

6) prepared by the Juvenile Probation Dept. Yet Gabriel’s understanding of

appellant’s rank and authority in the gang was for the most part based how he is

described in “JIMS.” She was not even his probation officer when a rival gang

member at school attacked him. In contrast to Gabriel’s sketchy, second hand

account of the incident, Chambers wrote in the CRIS that T.H. made two phone

calls lasting “about seven minutes collectively then stated, “OK Mr. Chambers, it

won’t happen at the school.” This incident reveals that even if T.H. were not a

high-ranking officer in the Early Boys gang, he wielded sufficient influence to

convince those that did not to retaliate at school. It also reveals he was

sophisticated enough to realized that he would be blamed if it did occur on school

grounds.

In sum, a preponderance of the evidence supports the juvenile court’s

finding on these factors.

2
A child is defined in the Juvenile Justice Code as “any person . . . ten years of age or older and
under 17 years of age.” §51.02(2)(a) Thus, when the alleged offenses occurred the juvenile court
would retain jurisdiction over T.H. for only two months longer, placing him at the older end of
the juvenile spectrum.
19
Record and Previous History of the Child:

The third factor to consider is “the record and previous history of the child.”

On January 22, 2013 T.H. was adjudicated for the misdemeanor offenses of theft

and assault-bodily injury. He received a one-year probation. On May 16, 2013 he

was adjudicated for the felony offense of robbery; received an 18-month probation;

and was placed in the custody of the Chief Juvenile Probation Officer (“CJPO”).

During his first CJPO stay he was placed at Harris County Leadership

Academy from May 21, 2013 to August 5, 2013 and subsequently at the Hector

Garza Center from August 16, 2013 to December 16, 2013. On December 9, 2013

custody was changed to Burrell. However, due to violations of the rules of

probation, T.H. was again placed in CJPO custody on May 29, 2014. During this

stay he was placed at Gulf Coast Trade Center from June 12, 2014 to July 1, 2014

and then at Hays County Juvenile Center from July 17, 2014. CRIS (State # 6)

In its findings under this factor the court also noted that appellant was placed

“on two specialized supervision programs, including, the Intensive Supervision

Program from January 22, 2013 to May 1, 2013, and the Gang Supervision

Program from December 16, 2014 to May 29, 2014 and again February 9, 2015 to

present.” Finally, it was noted that T.H. had five disciplinary write-ups while

detained at the Harris County Juvenile Detention Center. (CR 10)

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 The court’s findings are well grounded in the record. T.H.’s history shows

that he continued to commit ever more serious offenses even while on probation.

The juvenile system made serious attempts to rehabilitate him by placement at four

specialized units, including three that were out of county, and enrolling him in

specialized programs such as the Gang Supervision Program.

Adequate Protection of the Public and Likelihood of Rehabilitation:

The fourth factor to consider is “the prospect of adequate protection of the

public and the likelihood of the rehabilitation of the child by use of procedures,

services, and facilities currently available to the juvenile court.”

The court found the evidence supported discretionary transfer after

considering the likelihood that T.H. could be rehabilitated by “use of the

procedures, services, and facilities currently available to the Juvenile Court;” the

rehabilitative services provided under Title III of the Texas Family Code; and the

age restrictions mandated by the Texas Human Resources Code.

The court then proceeded to make case-specific findings in support of the

discretionary transfer. T.H. is currently 17 years old leaving insufficient time to

rehabilitate him because with an indeterminate sentence he can only placed on

probation until his 18th birthday (see §54.04(1)) and he could only be incarcerated

in the Texas Department of Juvenile Justice until his 19th birthday. (see

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§54.04(d)(2) & §245.151 Tex. Hum. Resources Code)3

The court further found that all prior attempts to rehabilitate appellant were

unsuccessful and his “criminal behavior escalated to the more serious offense of

aggravated robbery.” Finally, the crimes that T.H. is alleged to have committed

are so egregious and aggravated combined with his prior criminal history

establishes he is not amenable “to this Court’s additional efforts to rehabilitate

him.” (CR 11)

Again there is ample evidence in the record to support the court’s findings

under this factor.

C. Sufficiency of the Evidence to Support the Findings:

Not only must the record substantiate the juvenile court’s findings, but also

the juvenile court must make “case-specific findings of fact” with respect to the

54.02(f) factors. Moon, 451 S.W.3d at 51 In the instant case the court made such

findings under each 54.02(f) factor. Moreover, the evidence to support each

finding is found in the record.

Based on counsel’s review of the record, including the juvenile court’s

findings of fact, he concludes that the juvenile court provided “a sure-footed and

definite basis from which an appellate court can determine that its decision was in

3
The court also noted that the prosecutor chose not to file a determinate petition and seek grand
jury approval. §53.045(a)
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fact appropriately guided by statutory criteria, principled, and reasonable.” Id. at

49; cf. Guerrero v. State, No. 14-13-00101-CR, 2014 WL 7345987, at *3 (Tex.

App. – Houston [14th Dist.] Dec. 23, 2014, no pet.)(memo.op.)(concluding the trial

court’s order was deficient under Moon)

III. Conclusion & Prayer

Based on counsel’s professional evaluation of the record there are no

arguable grounds for appeal and T.H’s appeal is wholly frivolous. Counsel

certifies to the Court that contemporaneously with filing this brief, he is filing a

motion to withdraw. He is also forwarding to appellant and his mother, by

certified and first class mail, at their last known addresses, a copy of this brief,

motion to withdraw and a letter informing them that T.H. has a right to file a pro se

response with this Court within 30 days. Counsel also informed them that if this

Court concludes after independently reviewing the record that an appeal is wholly

frivolous then he may challenge that holding by filing a petition for review in the

Texas Supreme Court.

Counsel prays that he be permitted to withdraw.

Respectfully submitted,

/s/ William M. Thursland
___________________________
William M. Thursland
TBN: 20016200
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 440 Louisiana St., Ste. 1130
Houston, Texas 77002
(713) 655-0200; Fax: (713) 655-9035
Email: wmthursland@hotmail.com

Attorney for Appellant, T.H.

CERTIFICATE OF COMPLIANCE

I certify that the foregoing computer generated brief complies with word
limit requirements of TRAP 9.4 (3). Relying on the word count of the computer
program used to prepare this document, the number of words, is 5,019 excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural history,
signature, proof of service, certificate of compliance and appendix.

/s/ william m thursland
_______________________
William M. Thursland

CERTIFICATE OF SERVICE

I certify that a true and correct copy of appellant’s brief was served in
accordance with TRAP on December 31, 2015 on:
(1) Alan Curry, assistant district attorney, 1201 Franklin, Houston, TX
77002, by electronic delivery;
(2) T.M., appellant, Juvenile Justice Center, 1200 Congress, Houston, TX
77002 by certified and U.S. First Class mail;
(3) Appellant’s mother, Ms. Nakitta Burrell, at her last known address, 7035

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Bellfort, #201, Houston, TX 77083 by certified and First Class mail.

/s/ william m. thursland
_________________________
William M. Thursland

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