in the Matter of D.S.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-17-00050-CV

IN THE MATTER OF D.S.

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-103611-16

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MEMORANDUM OPINION1

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On August 8, 2016, the State initiated in juvenile court a jurisdiction waiver

and transfer proceeding against twenty-three-year-old D.S. under section 54.02(j)

of the family code, alleging that when he was fifteen years old, he committed the

offenses of aggravated sexual assault of a child and indecency with a child by

contact. Following an evidentiary hearing, the juvenile court signed an order

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See Tex. R. App. P. 47.4.
waiving its jurisdiction over D.S.’s case and transferring it to criminal district

court. In two issues, D.S. appeals from that order. We affirm.

I. THE STATUTORY SCHEME

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

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

time the person engaged in the conduct. Tex. Fam. Code Ann. § 51.04(a) (West

Supp. 2016). In such cases, the juvenile courts have exclusive original

jurisdiction. Id. Relevant to this case, “delinquent conduct” includes “conduct,

other than a traffic offense, that violates a penal law of this state . . . punishable

by imprisonment or by confinement in jail.” Id. § 51.03(a)(1) (West Supp. 2016).

And the term “child” means a person who is

(A) ten years of age or older and under 17 years of age; or

(B) seventeen years of age or older and under 18 years of age who
is alleged or found to have engaged in delinquent conduct or
conduct indicating a need for supervision as a result of acts
committed before becoming 17 years of age.

Id. § 51.02(2) (West Supp. 2016). Aggravated sexual assault of a child and

indecency with a child by contact are both violations of a state penal law that is

punishable by imprisonment. See Tex. Penal Code Ann. § 12.32(a) (West 2011)

(providing that a first-degree felony is punishable by imprisonment), § 12.33

(West 2011) (providing that a second-degree felony is punishable by

imprisonment), § 21.11(d) (West 2011) (providing that indecency with a child by

contact is a second-degree felony), 22.021(e) (West Supp. 2016) (providing that

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aggravated sexual assault of a child is a first-degree felony). Thus, the juvenile

courts have exclusive original jurisdiction over all proceedings in which a

defendant allegedly committed the offense of aggravated sexual assault of a

child or indecency with a child by contact when he was fifteen years of age. Tex.

Fam. Code Ann. §§ 51.02(2), .03(a)(1), .04(a); see In re N.J.A., 997 S.W.2d 554,

555 (Tex. 1999) (stating that the juvenile court has exclusive, original jurisdiction

over all proceedings involving a defendant who is a child when the alleged

offense occurred).

But while Title 3 vests the juvenile courts with exclusive original jurisdiction

over all proceedings in such cases, it also provides that they generally have no

jurisdiction to conduct a disposition hearing involving, or to adjudicate, a person

who is eighteen years of age or older. See N.J.A., 997 S.W.2d at 555. Rather,

after a person has turned eighteen, the authority of the juvenile courts is

generally limited to doing one of two things: they can waive their exclusive

original jurisdiction and transfer the person to the appropriate district court or

criminal district court in accordance with the requirements of Texas Family Code

section 54.02(j), or they can dismiss the case. Tex. Fam. Code Ann. § 54.02(j)

(West 2014); see N.J.A., 997 S.W.2d at 556 (holding that juvenile court maintains

jurisdiction over a person who is eighteen years of age or older and allegedly

engaged in delinquent conduct when a child, but that “such jurisdiction is limited

to transferring the case under section 54.02(j) if all criteria are satisfied or to

dismissing the case”).

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Section 54.02(j) provides as follows:

(j) The juvenile court may waive its exclusive original jurisdiction and
transfer a person to the appropriate district court or criminal district
court for criminal proceedings if:

(1) the person is 18 years of age or older;

(2) the person was:

(A) 10 years of age or older and under 17 years of age
at the time the person is alleged to have committed a
capital felony or an offense under Section 19.02, Penal
Code;

(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; or

(C) 15 years of age or older and under 17 years of age
at the time the person is alleged to have committed a
felony of the second or third degree or a state jail felony;

(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;

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 (ii) the person could not be found; or

(iii) a previous transfer order was reversed by an
appellate court or set aside by a district court; and

(5) the juvenile court determines that there is probable cause
to believe that the child before the court committed the offense
alleged.

Tex. Fam. Code Ann. § 54.02(j). All five parts of section 54.02(j) must be met

before a juvenile court can waive its exclusive original jurisdiction and transfer a

person to criminal district court under that provision. N.J.A., 997 S.W.2d at 556–

57.

II. PROBABLE CAUSE

In his first issue, D.S. argues that the juvenile court abused its discretion

by waiving its exclusive jurisdiction and transferring his case to criminal district

court because the evidence presented at the hearing was insufficient to support

its finding that there was probable cause to believe he committed the offenses

alleged in the State’s waiver and transfer petition. See Tex. Fam. Code Ann.

§ 54.02(j)(5). Probable cause exists when there are sufficient facts and

circumstances to warrant a prudent person to believe that the suspect committed

or was committing the offense. See In re C.M.M., 503 S.W.3d 692, 702 (Tex.

App.—Houston [14th Dist.] 2016, pet. denied).

A. STANDARD OF REVIEW

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

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

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under traditional evidentiary-sufficiency principles. See Moon v. State,

451 S.W.3d 28, 47 (Tex. Crim. App. 2014); In re H.Y., 512 S.W.3d 467, 478–79

(Tex. App.—Houston [1st Dist.] 2016, pet. denied); see also In re G.B., No. 02-

17-00055-CV, 2017 WL 2871619, at *7–8 (Tex. App.—Fort Worth July 6, 2017,

no pet. h.). In determining whether there is legally sufficient evidence to support

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

reasonable factfinder could and disregard evidence contrary to the finding unless

a reasonable factfinder could not. H.Y., 512 S.W.3d at 479 (citing Moon v. State,

410 S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d

28). If more than a scintilla of evidence supports the finding, then there is legally

sufficient evidence to support it, and a legal-sufficiency challenge fails. Id.

Under a factual sufficiency challenge, we consider all of 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.

If the juvenile court’s findings are supported by legally and factually

sufficient evidence, then we review the ultimate waiver decision under an abuse

of discretion standard. See Moon, 451 S.W.3d at 47; H.Y., 512 S.W.3d at 479.

To determine whether the juvenile court abused its discretion by waiving its

jurisdiction and transferring a juvenile defendant to criminal district court, we ask

whether it acted without reference to guiding rules or principles in reaching its

decision. See Moon, 451 S.W.3d at 47.

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 B. ALLEGED OFFENSES

In its waiver and transfer petition, the State alleged that on or about May 1,

2009, D.S. committed three counts of aggravated sexual assault of a child by

intentionally or knowingly (1) causing the anus of D.R., a child younger than

fourteen years of age, to contact the sexual organ of D.S.; (2) causing the

penetration of the mouth of D.R., a child younger than fourteen years of age, by

D.S.’s sexual organ; and (3) causing the sexual organ of D.R., a child younger

than fourteen years of age, to contact the mouth of D.S. See Tex. Penal Code

Ann. § 22.021(a)(1)(B), (a)(2)(B) (West Supp. 2016). It also alleged that on or

about May 1, 2009, D.S. committed two counts of indecency with a child by

contact by (1) engaging in sexual contact with D.R., a child younger than

seventeen years of age, by touching D.R.’s sexual organ with intent to arouse or

gratify the sexual desire of D.S.; and (2) causing D.R., a child younger than

seventeen years of age, to engage in sexual contact by causing, with intent to

arouse or gratify D.S.’s sexual desire, D.R. to touch the sexual organ of D.S.

See id. § 21.11(a)(1), (c) (West 2011).

C. EVIDENCE

The only evidence presented at D.S.’s waiver and transfer hearing was the

testimony of two witnesses: Corporal Benjamin Banes, who, during the time

relevant to this appeal, was a detective with the Fort Worth Police Department

assigned to the Crimes Against Children Unit, and Patsy Paxton, a Tarrant

County Juvenile Services court officer. Corporal Banes testified that he had

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been assigned a case of sexual assault of a child involving D.S. after D.R.’s

father, A.R., phoned police on January 4, 2015, to report that D.R. had been

sexually assaulted. He testified that during the course of his investigation, he

interviewed D.R. about the alleged sexual assault. D.R. told Corporal Banes that

during the spring of his fifth grade year, D.R. and D.S. were at D.R.’s residence

in Fort Worth when D.S. caused D.S.’s sexual organ to contact D.R.’s anus; that

D.S. caused D.S.’s sexual organ to penetrate D.R.’s mouth; that D.S.’s mouth

contacted D.R.’s sexual organ; that D.S. touched D.R.’s sexual organ or genitals;

and that D.R. touched D.S.’s sexual organ or genitals. Corporal Banes testified

that his investigation revealed that at the time this alleged conduct occurred, D.R.

would have been eleven years old, and D.S. would have been fifteen. Corporal

Banes stated that during his investigation, he did not receive any information that

D.R. was being untruthful or that he had made up the allegations against D.S.

On cross-examination, D.S.’s counsel attempted to develop a line of

questioning intended to establish that D.M., another person who shared D.S.’s

first name, was the person who had sexually assaulted D.R. and that D.R. had

misidentified D.S. as the person who had allegedly sexually assaulted him. To

establish that theory, D.S.’s counsel referred to a video of an interview Corporal

Banes conducted of A.R. The video, however, was not introduced into evidence

at D.S.’s waiver and transfer hearing and is not a part of our record. And

Corporal Banes testified that he did not remember there having been two

persons mentioned with D.S.’s first name during the course of his investigation.

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Corporal Banes did, however, acknowledge that although D.S. had been a

childhood friend of D.R.’s older brother for many years, D.R. was not able to

provide D.S.’s last name when Corporal Banes interviewed him. However,

Corporal Banes also testified that he was able to identify D.S. as the person who

had committed the alleged sexual assault against D.R. because A.R. had

provided him with a Facebook-type photograph with D.S.’s face circled and told

him that the person indicated in that photograph was the person who D.R. said

had committed the alleged sexual assault.

Paxton testified that part of her duties as a Tarrant County Juvenile

Services court officer included performing psychological or prediagnostic

evaluations of respondents before the juvenile adjudication process. She

testified that although the juvenile court had ordered that a psychological

evaluation be performed on D.S., one had not been obtained because D.S.’s

counsel never consented. She also testified that D.S.’s counsel had met with her

and stated that D.S. had passed a polygraph examination and was declining to

submit to the psychological evaluation. On cross-examination, Paxton testified

that she had read the polygraph results, that D.S. had been asked the same

questions that were before the juvenile court, and that the results stated there

was no deception indicated.

D. ANALYSIS

Considering the evidence favorable to the juvenile court’s probable-cause

finding and disregarding all contrary evidence unless a reasonable factfinder

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could not, we conclude that more than a scintilla of evidence supports the trial

court’s finding that there was probable cause to believe that D.S. committed the

offenses alleged in the State’s waiver and transfer petition. See Moon,

451 S.W.3d at 47; H.Y., 512 S.W.3d at 479. Further, considering all of the

evidence presented at the waiver and transfer hearing, we conclude that the

juvenile court’s probable-cause finding is not so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust. See Moon,

451 S.W.3d at 47; H.Y., 512 S.W.3d at 479. Accordingly, we conclude that the

juvenile court’s probable-cause finding is supported by legally and factually

sufficient evidence.

Having concluded that the trial court’s probable-cause finding is supported

by sufficient evidence, we now consider whether the juvenile court’s ultimate

waiver and transfer decision was an abuse of discretion. See Moon, 451 S.W.3d

at 47; H.Y., 512 S.W.3d at 479. The juvenile court’s waiver and transfer order

shows that the juvenile court based its decision to waive its jurisdiction and

transfer D.S.’s case to criminal district court on its conclusion that all five of family

code section 54.02(j)’s criteria were met. See Tex. Fam. Code Ann. § 54.02(j);

see also N.J.A., 997 S.W.2d at 556–57 (stating that all five parts of section

54.02(j) must be satisfied before a juvenile court can waive its exclusive original

jurisdiction and transfer a person to district court). The only reason D.S.

advances for his contention that the juvenile court’s waiver and transfer order

was an abuse of discretion is that the trial court’s probable-cause finding is not

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supported by sufficient evidence. We have concluded otherwise. And we also

conclude that the trial court did not abuse its discretion by waiving its jurisdiction

and transferring D.S.’s case to criminal district court on the ground that all five of

section 54.02(j)’s criteria were met. See H.Y., 512 S.W.3d at 483 (holding

similarly).

We overrule D.S.’s first issue.

III. HEARSAY

In his second issue, D.S. argues that the trial court reversibly erred by

admitting hearsay at the waiver and transfer hearing. He complains specifically

about certain testimony from Corporal Banes.

A. THE CHALLENGED TESTIMONY

Corporal Banes testified that he had been assigned to investigate an

alleged sexual-assault-of-a-child case involving D.S. after the alleged victim’s

father, A.R., called the police to report that D.S. had sexually assaulted his child,

D.R. Corporal Banes testified that he interviewed D.R. as part of his

investigation and that D.R. told him what D.S. had done. When the State asked

Corporal Banes to tell the court what D.R. said D.S. had done, D.S. raised a

hearsay objection, which the trial court overruled.2 Corporal Banes answered

that D.R. told him that when he was eleven years old and D.S. was fifteen, “[D.S.]

2
With the sole exception of his objection during closing arguments that the
State’s failure to call D.R. as a witness violated his right to confrontation, this
hearsay objection is the only objection D.S. raised at the waiver and transfer
hearing.

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touched [D.R.’s] penis with his hand, had [D.R.] touch [D.S.’s] penis with [D.R.’s]

hand” and that D.R. “also described oral sex both ways and that [D.S.]

penetrated [D.R.’s] anus with [D.S.’s] penis[,] and then after that had happened,

[D.S.] again put his penis in [D.R.’s] mouth.” D.S. argues that the trial court

reversibly erred by admitting this testimony.

B. STANDARD OF REVIEW

We review a trial court’s decision to admit evidence for an abuse of

discretion. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011);

In re M.R., No. 02-15-00221-CV, 2015 WL 6759249, at *6 (Tex. App.—Fort

Worth Nov. 3, 2015, no pet.) (mem. op.). But even if a trial court’s decision to

admit evidence was erroneous, we nevertheless will not reverse the trial court’s

judgment unless the complaining party shows that such error was harmful—that

is, unless the complaining party shows that the error in admitting the evidence

probably caused the rendition of an improper judgment. See Tex. R. App. P.

44.1; Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

C. ANALYSIS

The crux of D.S.’s argument is his contention that the rules of evidence

apply to a waiver and transfer proceeding under family code section 54.02(j).

D.S. argues that family code section 51.17(c) makes the rules of evidence

applicable to such proceedings. Section 51.17(c) provides, “Except as otherwise

provided by this title, the Texas Rules of Evidence applicable to criminal cases

and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply

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in a judicial proceeding under this title.” Tex. Fam. Code Ann. § 51.17(c) (West

2014).

We need not and do not reach the question of whether family code section

51.17(c) makes the rules of evidence applicable to a waiver and transfer

proceeding conducted under family code section 54.02(j) because we conclude

that even assuming it does and that the trial court erred by admitting the

complained-of testimony, D.S. cannot show that any such error probably caused

the rendition of an improper judgment. Tex. R. App. P. 44.1; see H.Y.,

512 S.W.3d at 473–75, (declining to decide whether family code section 51.17(c)

makes the rules of evidence applicable to a juvenile waiver and transfer

proceeding because appellant could not show harm from the allegedly erroneous

admission of hearsay testimony). Error in the admission of objected-to evidence

is generally harmless if the complaining party later allows the same or similar

evidence to be introduced without objection. See Bay Area Healthcare Grp., Ltd.

v. McShane, 239 S.W.3d 231, 235–36 (Tex. 2007). The record here shows that

the same evidence to which D.S. objected came in without objection shortly

thereafter. Specifically, just a little while after the State asked Corporal Banes to

relate what D.R. had said to him during his interview and D.S. objected, the State

covered that very same ground with him again, this time without objection:

[State]: You described all the contacts that [D.R.] told you [D.S.] had
with him, but I want to make sure I’m clear for the record.

[Corporal Banes]: Okay.

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 [State]: You described that [D.S.] caused [D.S.’s] sexual organ to
contact [D.R.’s] anus?

[Corporal Banes]: Correct.

[State]: You described that [D.S.] caused [D.S.’s] sexual organ to
penetrate [D.R.’s] mouth?

[Corporal Banes]: Correct.

[State]: You described that [D.S.’s] mouth contacted [D.R.’s] sexual
organ?

[Corporal Banes]: Correct.

[State]: You described that [D.S.] touched [D.R.’s] sexual organ or
genitals?

[Corporal Banes]: Correct.

[State]: And you described that [D.R.] touched [D.S.’s] sexual organ
or genitals?

[Corporal Banes]: That’s correct.

[State]: Okay. Did he describe anything else?

[Corporal Banes]: Not that I recall.

Thus, even assuming the rules of evidence applied to D.S.’s section-54.02(j)

waiver and transfer hearing and the trial court erred by admitting the testimony

that D.S. objected to, any such error was harmless because Corporal Banes

subsequently provided the very same testimony without objection. Tex. R. App.

P. 44.1; see Bay Area, 239 S.W.3d at 235–36 (Tex. 2007) (holding that appellant

failed to preserve complaint that trial court erred in admitting testimony over his

objection because the same evidence was later admitted without objection); see

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also H.Y., 512 S.W.3d at 473–75 (holding that any error in admission of objected-

to evidence in juvenile transfer proceeding was harmless because virtually all of

the complained-of evidence was contained in a probation report, which was

admitted without objection). We overrule D.S.’s second issue.

IV. CONCLUSION

Having overruled both of D.S.’s issues, we affirm the juvenile court’s order

waiving its jurisdiction and transferring D.S.’s case to criminal district court.

/s/ Lee Gabriel

LEE GABRIEL
JUSTICE

PANEL: GABRIEL, SUDDERTH, and KERR, JJ

DELIVERED: July 27, 2017

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