Opinion issued June 28, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00017-CV
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IN THE MATTER OF A. M.
On Appeal from the County Court at Law No 1
Fort Bend County, Texas
Trial Court Case No. 12-CJV-017003
MEMORANDUM OPINION
This case involves the interpretation and application of a since-amended
statute concerning the transfer of minors to criminal district court to be tried as
adults. The statute has been amended in a manner that may have avoided the result
we are bound to reach here, but the disposition of this appeal must be resolved
under the earlier version of the statute.
When Antonnyer Morrison was a minor, he was indicted for murder. In June
2012, after Morrison had turned 18, the juvenile court heard and granted the State’s
petition for discretionary transfer from juvenile court to criminal district court. The
case was transferred, and Morrison was tried as an adult, convicted of murder, and
sentenced to 45 years’ confinement.
Our sister court subsequently vacated the criminal district court’s judgment
because the juvenile court did not make the requisite findings under Section
54.02(j) of the Family Code. Morrison v. State, 503 S.W.3d 724, 725, 728 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d). Relying on a recently-issued opinion
by the Court of Criminal Appeals, our sister court explained that when a transfer
occurs after a juvenile’s 18th birthday, Section 54.02(j)(4) requires the State to
prove that it was not practicable to proceed to certification before the juvenile’s
18th birthday. Id. at 727 (citing Moore v. State, No. PD-1634-14, 2016 WL
6091386 (Tex. Crim. App. Oct. 19, 2016)).1 At the June 2012 transfer hearing, the
State presented no evidence that it was not practicable to proceed before Morrison
turned 18. The State instead argued that Section 54.02(j) required only that the
transfer petition be filed—but not ruled on—before Morrison turned 18. Our sister
court rejected this argument, remanded the case to the juvenile court to afford the
1
The Court of Criminal Appeals withdrew the opinion cited by our sister court and
issued a new opinion in its stead. Moore v. State, 532 S.W.3d 400, 401 (Tex.
Crim. App. 2017) (per curiam). The new opinion, however, did not change the rule
on which our sister court relied. Id. at 405.
2
State an opportunity to satisfy its burden of proof, and ordered that the juvenile
court file findings of fact in support of its ruling. Morrison, 503 S.W.3d at 728.
On remand, the State filed an amended petition, and the juvenile court held a
hearing at which the State presented testimony from the lead investigator, firearms
examiner, and probation officer, among others. However, none of the district
attorneys involved in the investigation or prosecution testified. The juvenile court
found that the State proved by a preponderance of the evidence that, for reasons
beyond its control, it was not practicable to proceed in the juvenile court before
Morrison’s 18th birthday. The juvenile court entered 50 fact findings detailing the
murder investigation’s chronology, Morrison’s arrest, and the transfer proceedings.
None of the fact findings addressed whether it was practicable for the State to take
certain actions during various stages of its investigation to expedite the transfer
hearing or whether the State’s failure to take such actions was caused by the
prosecutor’s erroneous interpretation of Section 54.02(j). Instead, the juvenile
court simply stated in a conclusion of law that it was not practicable for the State to
have proceeded before Morrison’s 18th birthday.
In a single issue, Morrison argues that the juvenile court erred in waiving its
jurisdiction because the State failed to prove by a preponderance of the evidence
that, for a reason beyond the State’s control, it was not practicable to proceed to
3
certification before Morrison turned 18. See TEX. FAM. CODE §§ 54.02(j)(4)(A),
56.01(c)(1)(A); TEX. PENAL CODE § 19.02(b).
After Morrison’s 18th birthday, the Legislature amended the statute
governing a juvenile court’s jurisdiction over incomplete proceedings. Acts 2013,
83rd Leg., ch. 1299 (H.B. 2862), § 7, eff. Sept. 1, 2013. Under the current statutory
scheme, when the State files a petition to transfer before the juvenile turns 18, the
juvenile court retains jurisdiction to rule on the petition after the juvenile turns 18
so long as the juvenile court finds that the prosecutor exercised due diligence in an
attempt to complete the transfer proceeding before the juvenile’s 18th birthday.
TEX. FAM. CODE § 51.0412. But under the scheme in effect at the time of June
2012 transfer hearing—which is the version that continues to apply to this
appeal—the juvenile court had to find that it was not practicable to proceed before
Morrison’s 18th birthday for a reason beyond the control of the State for the
juvenile court to retain jurisdiction. Id. § 54.02(j)(4)(A).2 The former scheme
imposes a higher burden on the State because impracticability is more difficult to
prove than due diligence and because “the State” includes not only the prosecution
but law enforcement as well.
2
It is undisputed that Section 54.02(j)(4)(B) of the Family Code does not apply
here. See TEX. FAM. CODE § 54.02(j)(4)(B).
4
Bound by the earlier version of the statute, we consider the evidence of
impracticability for reasons beyond the State’s control. The evidence demonstrates
a lack of urgency at several points during the criminal investigation and while the
State petitioned for transfer. To begin, no one expedited the firearms analysis, and
the State waited for that analysis before proceeding against Morrison. While
Morrison was charged and apprehended approximately 8 weeks before his 18th
birthday, there is no evidence that the prosecutor attempted to expedite the transfer
hearing after his arrest. Nor is there any evidence that the juvenile court was unable
to hear the petition before Morrison’s 18th birthday. Morrison’s psychological
evaluation and social home study report, both of which were needed for the
transfer hearing, were not completed until after Morrison turned 18—but the
evidence shows that both reports could have been completed earlier had the State
not delayed in providing the psychiatrist and juvenile probation officer the
necessary information for the reports. In other words, the evidence shows that it
was practicable to proceed before Morrison’s 18th birthday. But, as shown by the
prosecutor’s statements during the June 2012 transfer hearing, before Moore was
decided, the prosecutor believed it was necessary only to file—but not resolve—
the transfer motion before the defendant turned 18. Moore held otherwise, and we
are bound by that ruling.
5
We hold that the State failed to prove that it was not practicable to proceed
before Morrison’s 18th birthday for a reason beyond the State’s control and that
the juvenile court erred in transferring the case. Accordingly, we must vacate the
juvenile court’s order and dismiss the case.
Background
On August 26, 2010, the complainant, seventeen-year-old Kristian Sullivan,
who was a member of the gang “Forever About Bread,” was shot and killed
outside his home in a gang-related shooting. No weapons were found at the scene,
and no eye-witnesses came forward. Two different brands of casings were found,
but they were of the same caliber. The police suspected, but were not sure, that
there were two gunmen. At the time of Sullivan’s murder, Morrison was sixteen
years and five months old.
Before Sullivan’s death, there had been “numerous, numerous crimes,
shooting, fights, that were going on” between feuding gang members. While police
were still on the scene of Sullivan’s murder, another shooting occurred at the home
of a rival “100 Clikk” gang member. The shooting appeared to be in retaliation for
Sullivan’s murder.
The lack of evidence and the reticence of gang members to speak with the
police made the investigation difficult. Sullivan, known as “K-Su,” was “very
involved” in the leadership of FAB. Sullivan’s residence was typically where FAB
6
gang members would “hang out.” Sullivan’s friends were not cooperative with the
police; there was testimony that “traditionally gang members don’t just come to
police with information.” Police had multiple names, but researching those names,
and generating and corroborating information, took substantial time. Missouri City
Police Sgt. K. Tullos testified that any member of 100 Clikk “would be a possible
suspect at the time.” Around the time of Sullivan’s murder, 100 Clikk had about
300 members.
Morrison’s name was first mentioned on December 6, 2010 by a senior
member of 100 Clikk, Michael Wilbourn, who was then in federal custody for
aggravated robbery. Wilbourn identified “Tony T” as a person who wanted to sell
him “a gun used to kill ole boy.” Missouri City Police Lt. R. Terry testified that
Wilbourn did not implicate himself in the murder and was not credible. At that
point, there was nothing to corroborate Wilbourn’s statement, but Lt. Terry “still
[had] to follow up on his statement just to verify.”
Lt. Terry testified that he learned that Tony T’s real name was Antonnyer
Morrison. Morrison was a student at Marshall High School, and he lived just
outside Missouri City. Lt. Terry went to Morrison’s address, but he found a vacant
house. Lt. Terry later learned that Morrison was in juvenile detention in Fort Bend
County, but he did not speak with Morrison. Lt. Terry then learned that Morrison
had been released from juvenile detention on December 8, 2010. Lt. Terry
7
admitted that he did not attempt to locate Morrison, in part, because he did not
believe he could get information about a juvenile on probation.
Lt. Terry testified that, as of December 7, 2010, he did not have an identified
suspect. Rather, he had street names for multiple individuals, nothing to
corroborate their involvement, and a lack of cooperation from their associates. Lt.
Terry looked to the Special Crimes Unit, who were “more involved in dealing with
gang members and street activity” and who were talking to gang members during
“gang sweeps.”
From December 2010 to June 2011, the SCU worked to document gang
members and generate leads in Sullivan’s murder. The SCU was “busy”—over 100
gang members were documented and entered into the DPS database during this
time, and a lot of information was coming in.
On June 3, 2011, Lt. Terry was promoted, and the Missouri City Police
Chief turned the investigation over to SCU Sgt. R. Ramirez. Around that same
time, Sgt. Ramirez spoke to 100 Clikk member Darius Pye, “a respected high
ranking gang member,” who implicated a fellow gang member, Sterlyn Edwards,
in the murder. Pye said that he was in a car driven by Edwards, who was talking on
the phone to a rival FAB gang member. According to Pye, Edwards told the rival
gang member, “I’ll bang, bang you like I bang, bang K-Su.” This was the first
break in the case, but the information still needed to be corroborated.
8
Sgt. Ramirez testified that on August 18, 2011, he met with Donald Reed, a
member of 100 Clikk, who said that Darius Downer, another member of 100 Clikk,
told him that Edwards had shot Sullivan. Sgt. Ramirez spoke with Downer, who
said that Edwards had tried to sell him a gun after Sullivan’s murder. Downer was
the second 100 Clikk member to implicate Edwards, a fellow 100 Clikk member,
and Sgt. Ramirez thought this information was credible.
Sgt. Ramirez learned that a week before Sullivan’s murder, someone named
“Rene” was shot at Downer’s house by FAB gang members. Sgt. Ramirez met
with Rene, who was still recovering from his gunshot wound. Rene said that he
was not a gang member but that he liked to play basketball with 100 Clikk
members and that one of his best friends was Morrison. This information that one
of Morrison’s best friends had been shot by FAB gang members provided the
officers with a possible motive for Sullivan’s murder.
Sgt. Ramirez testified that on August 23, 2011, he went to speak with
Wilbourn. Since his December 2010 interview, Wilbourn had been convicted of
bank robbery and was currently serving a 15-year prison sentence. Wilbourn
implicated 100 Clikk in Sullivan’s murder. Wilbourn told Sgt. Ramirez that
Edwards had implicated himself in the murder of Sullivan and that Morrison had
tried to sell him a gun. Wilbourn said that Edwards and Morrison had “borrowed a
Ford Taurus from some girls” and that they drove that car to commit the murder.
9
The next week, Sgt. Ramirez interviewed FAB gang member Allen
Henderson. Henderson said that, during a “heated phone conversation” with
Edwards, Edwards threatened to “bang, bang” him “just like he bang, bang K-Su.”
Sgt. Ramirez testified that this matched the conversation that Pye told him in June
that he had overheard. Henderson gave no information about Morrison.
On October 11, 2011, Sgt. Ramirez interviewed Edwards for the first time.
During the interview, Edwards implicated himself and two other gang member—
Morrison and Joshua Patterson—in Sullivan’s murder. Edwards said that he had
become friendly with Sullivan, even though they were rival gang members.
Edwards arranged for Patterson and Morrison to buy marijuana from Sullivan.
According to Sgt. Ramirez, Edwards said that Morrison, Patterson, and he were
hanging out with two girls, Samone Williams and Kandice Hall, and that after
Edwards set up the marijuana deal, Hall drove Patterson and Morrison to
Sullivan’s house, where they committed the murder. Sgt. Ramirez testified that this
was the first time that he actually considered Morrison to be a suspect in Sullivan’s
murder.
On October 14, 2011, Sgt. Ramirez spoke with Samone Williams. Williams
stated that she used to own a tan or pewter Ford Taurus, which matched the
description provided by Wilbourn in the August 2011 interview. On the night that
Sullivan was killed, Williams was hanging out at Morrison’s house with Morrison,
10
Patterson, and Hall, among others. Williams said that Hall, Patterson, and
Morrison left the house in her car but that she knew something was going on so she
stayed back and went to her boyfriend’s house down the street. When Hall,
Patterson, and Morrison returned, Edwards was with them. Later that night,
Williams and Hall dropped off Morrison, then they dropped off Edwards, and
finally they dropped off Patterson. When they arrived at Patterson’s house,
Patterson put a gun in the hood of the car, and Hall told Williams that the gun was
used to “kill that boy.”
On October 15, 2011, Sgt. Ramirez interviewed Kandice Hall, who
corroborated Williams’s statement. Hall said that, on the night of the shooting, they
were at Morrison’s house, and Morrison and the other gang members were talking
about something in gang language or jail code, which she did not understand. Hall
went on the marijuana run with the three men, with Patterson driving the car and
Edwards and Morrison riding as passengers. When they arrived at Sullivan’s house
to buy the marijuana, Edwards and Morrison got out of the car. Then she heard
several gunshots, and Edwards and Morrison came running back to the car.
Edwards told them to “go, go, go” and indicated that he had shot someone.
Sgt. Ramirez considered the information given by Williams and Hall
credible. However, neither of them saw Morrison shoot Sullivan or saw him hold a
11
gun. The use of two different brands of ammunition to shoot Sullivan indicated
there may have been two shooters.
After speaking with Williams and Hall, Sgt. Ramirez believed all three men
were involved in the murder, at least as parties to the offense. But Sgt. Ramirez did
not believe the police were ready to request warrants for arrests. He testified that
he still needed to speak with Patterson, who he believed acted as the getaway
driver.
On October 25, 2011, Sgt. Ramirez met with Patterson at the police
department. Patterson gave a statement that corroborated the statements of
Williams and Hall. Two Fort Bend County Assistant District Attorneys were
present when Patterson gave his statement. Patterson admitted to driving the car to
buy some marijuana and to concealing a gun in the car’s battery compartment after
Edwards handed him the gun following the shooting. Patterson stated that, when
they arrived at their destination, Edwards and Morrison got out of the car, shots
were fired, and then Edwards and Morrison came running back. Edwards told
Patterson to “go, go, go” while Morrison “was just real quiet and mellow.”
Patterson’s statements were consistent with there being two shooters.
That same day, Sgt. Ramirez obtained an arrest warrant for Patterson.
Sgt. Ramirez explained that because both Edwards and Morrison were already
imprisoned, he was not concerned with getting warrants for their arrest in this case.
12
Patterson was the only person who participated in the murder and had access to
potentially hurt the girls. Also, at that point, Sgt. Ramirez was concerned that he
had no physical evidence to corroborate Morrison’s involvement. Sgt. Ramirez
was waiting on laboratory results regarding DNA testing on the shell casings and
firearms examinations. Sgt. Ramirez did not request that the evidence be analyzed
on an expedited basis, and there is no evidence that anyone else did either. Sgt.
Ramirez admitted that he did not see the need to rush the examination. At this time,
Ramirez did not know that a timeline existed to prosecute Morrison based on his
status as a juvenile.
On October 26, 2011, officers located Williams’s Taurus that 4 witnesses—
Wilbourn, Williams, Hall, and Patterson—said was used in the murder. The Taurus
had been repossessed and resold, but it was recovered and processed for blood
evidence and anything related to the murder. Nothing was found in the Taurus.
On October 31, 2011, five months before Morrison’s 18th birthday,
Sgt. Ramirez sent the whole case to the District Attorney’s Office and included a
request for Morrison’s arrest.
On November 3, the firearms examiner, Jennifer Turner, began a firearms
analysis of the casings evidence. The next day, Turner completed her analysis and
reached a preliminary opinion that two guns had been used in the murder. A
required “technical review” of Turner’s preliminary opinion was completed on
13
November 17, 2011. At that point, Turner could have released the verbal results.
Sgt. Ramirez was unaware that the firearms testing was completed and that he
could obtain an oral report of the results.
On January 27, Turner’s report underwent a required final, “administrative
review” for “grammatical errors and completeness.” That same day, Sgt. Ramirez
received a verbal confirmation from the firearms lab that two guns were used in the
murder. Sgt. Ramirez testified that this was the first physical evidence to indicate
that there were two shooters. Sgt. Ramirez then obtained a directive to apprehend
Morrison. See TEX. FAM. CODE § 52.015(a) (“On the request of a law-enforcement
or probation officer, a juvenile court may issue a directive to apprehend a child if
the court finds there is probable cause to take the child into custody under the
provisions of this title.”). Three days later, and two months before Morrison’s 18th
birthday, the directive to apprehend was executed, and Morrison was taken to Fort
Bend County Juvenile Detention. The next day, the juvenile court held an initial
detention hearing and made a finding of probable cause.
On February 13, 2012, six weeks before Murray’s 18th birthday, the State
filed its petition for a discretionary transfer to criminal district court under Section
54.02 of the Family Code.
On February 22, 2012, the juvenile court ordered a psychological evaluation
of Morrison. See id. § 54.02(d) (“Prior to the hearing [on the petition for transfer],
14
the juvenile court shall order and obtain a complete diagnostic study, social
evaluation, and full investigation of the child, his circumstances, and the
circumstances of the alleged offense.”). The juvenile court appointed Dr. Karen
Gollaher to conduct the evaluation, but information she needed for her evaluation
was not sent to her by the Fort Bend County Juvenile Probation Department for
more than a month.
Due to Morrison’s impending 18th birthday, on March 26, 2012, the State
requested and the juvenile court signed an order that Morrison be transferred from
Fort Bend County Juvenile Detention to Fort Bend County Jail, as the former does
not house adults. The next day, the Probation Department’s Psychology Division
forwarded Gollaher the information she needed for her psychological evaluation.
On March 30, 2012, Morrison turned 18.
On April 5, 2012, Dr. Gollaher performed her psychological evaluation of
Morrison. She completed her report later that month, and the juvenile court
released the report to all parties.
On June 8, 2012, Morrison’s assigned juvenile probation officer, Heather
Boswell, completed her social home study report, which could not be completed
before receipt of the psychological evaluation.
On June 12, 2012, the juvenile court held a hearing on the State’s petition to
transfer. The prosecutor described the hearing as “a traditional discretionary
15
transfer hearing.” The prosecutor observed that Morrison had turned 18 on March
30 but the State filed its petition for discretionary transfer when Morrison was 17
years old. The prosecutor argued (without knowledge of what the later Moore v.
State opinion would hold) that the juvenile court’s decision whether to transfer the
case was governed by Section 54.02(a), not Section 54.02(j), because Section
54.02(j) only applies when the State files its petition to transfer after the
defendant’s 18th birthday. See Morrison, 503 S.W.3d at 728 (citing Moore and
explaining that Section 54.02(j) applies when transfer occurs after defendants turns
18). According to the prosecutor, because the petition was filed “well before”
Morrison’s 18th birthday, Section 54.02(j) was “never triggered.”
On June 13, 2012, the juvenile court granted the State’s petition, waived its
jurisdiction, and transferred the case to the criminal district court. The case
proceeded to trial by jury in criminal district court. The jury found Morrison guilty
of Sullivan’s murder, and the criminal district court sentenced him to 45 years’
confinement.
Morrison appealed, and the case was assigned to our sister court, which
vacated the criminal district court’s judgment and remanded the case to the
juvenile court, holding that the juvenile court did not make the requisite statutory
findings to waive its jurisdiction and transfer the case. Id. at 725, 728. Our sister
court held that, because the juvenile court heard and ruled on the State’s petition
16
for discretionary transfer after Morrison had turned 18, the State was required to
prove, and the juvenile court was required to find, that the factors under Section
54.02(j) had been satisfied. Id. at 727–28. And because the State and juvenile court
failed to do so, transfer was improper. Id. at 728. The State filed a petition for
discretionary review, which the Court of Criminal Appeals denied, and the case
was remanded to the juvenile court.
On December 12, 2017, the State filed a second amended petition for
discretionary transfer. Shortly thereafter, the juvenile court signed and entered an
order that waived its jurisdiction over Morrison and transferred the case to criminal
district court under Section 54.02(j). In its order, the juvenile court found that, for
reasons beyond the State’s control, it was not practicable to proceed in juvenile
court before Morrison’s 18th birthday. Morrison appeals.
Juvenile Court’s Waiver of Jurisdiction
Morrison argues that the juvenile court erred in waiving its jurisdiction and
transferring the case to criminal district court because the State failed to show that,
for a reason beyond its control, it was not practicable to proceed in juvenile court
before Morrison’s 18th birthday.
A. Standard of review and applicable law
We review a juvenile court’s decision to transfer a case to a criminal district
court for an abuse of discretion. Moore v. State, 446 S.W.3d 47, 50 (Tex. App.—
17
Houston [1st Dist.] 2014), aff’d, 532 S.W.3d 400 (Tex. Crim. App. 2017). In
applying this standard, we defer to the juvenile court’s factual determinations
while reviewing its legal determinations de novo. Id.
A juvenile court has exclusive original jurisdiction over all proceedings
involving a person who has engaged in delinquent conduct as a result of acts
committed before age 17. Id.; see TEX. FAM. CODE §§ 51.02(2), 51.04. Section
54.02 of the Family Code governs the waiver of a juvenile court’s exclusive
original jurisdiction and transfer to the appropriate criminal district court. TEX.
FAM. CODE § 54.02. Before conducting the transfer hearing, the juvenile court
must order and obtain a complete diagnostic study, social evaluation, and full
investigation of the minor, his circumstances, and the circumstances of the alleged
offense. Id. § 54.02(d); see In re D.L.N., 930 S.W.2d 253, 255 (Tex. App.—
Houston [14th Dist.] 1996, no pet.). The hearing’s purpose is not to determine guilt
or innocence but to establish whether the best interests of the minor and society are
furthered by maintaining jurisdiction in the juvenile court or by transferring the
minor to district court for adult proceedings. In re D.L.N., 930 S.W.2d at 255. The
juvenile court then determines whether there is probable cause to believe that the
minor committed the offense alleged, and whether, because of the seriousness of
the offense or the minor’s background, the welfare of the community requires
criminal proceedings. Id.
18
When a juvenile turns 18, a juvenile court does not lose jurisdiction, but its
jurisdiction becomes limited. Moore, 532 S.W.3d at 404–05. The juvenile court
retains limited jurisdiction to either transfer the case to an appropriate court or
dismiss the case. Id. Under the statutory scheme then in effect, which we are bound
to apply here, these were the only two choices available to the juvenile court when
it heard the State’s petition 10 weeks after Morrison’s 18th birthday: dismiss the
case or conclude that the State proved that it was not practicable for the State to
proceed—that is, to have obtained a ruling on its petition to transfer—before
Morrison’s birthday. The statutory limitations were intended “to limit the
prosecution of an adult for an act he committed as a juvenile if his case could
reasonably have been dealt with when he was still a juvenile.” Id. at 405.
Under that statutory scheme, the juvenile court could transfer a case after a
juvenile turned 18 only if the State satisfied the requirements listed in Section
54.02(j) of the Family Code. TEX. FAM. CODE § 54.02(j). Under Section
54.02(j)(4)(A), the juvenile court could transfer the case to criminal district court
if, in addition to the other statutory requirements, the State proved by a
preponderance of the evidence that “for a reason beyond the control of the state it
was not practicable to proceed in juvenile court before the [defendant’s] 18th
19
birthday.”3 Id. § 54.02(j)(4)(A); see Moore, 446 S.W.3d at 51 (burden is on State to
show that proceeding in juvenile court was not practicable).
Because the statute did not define “practicable,” we construe the term
according to its plain meaning as commonly understood at the time of enactment.
Thompson v. Tex. Dep’t of Licensing & Regulation, 455 S.W.3d 569, 570 (Tex.
2014) (per curiam). Thus, as used here, the term “practicable” means “that which
may be done, practiced, or accomplished; that which is performable, feasible,
possible.” Practicable, BLACK’S LAW DICTIONARY 1172 (6th ed. 1990).
B. Whether the juvenile court abused its discretion in finding that the
State satisfied its burden under Section 54.02(j)(4)(A)
1. August 26, 2010–October 25, 2011
The State presented evidence that, for reasons beyond its control, Morrison
was not developed as a suspect until he was seventeen years and seven months old.
Although the murder occurred when Morrison was sixteen years and five months
old, numerous difficulties beyond the State’s control delayed developing Morrison
as a suspect. For example, there were no eye-witnesses and no physical evidence at
the crime scene. The principal witnesses, most of whom were gang members and
their associates, were generally reticent to speak with the police and often
uncooperative. The State contends that the lack of evidence and the reticence of
3
The State argued and the juvenile court found that transfer was proper under
subsection (A) of Section 54.02(j)(4); the State made no argument and the juvenile
court made no finding based on subsection (B).
20
gang members to talk to law enforcement are reasons beyond its control. We agree;
the State presented sufficient evidence for the juvenile court to find by a
preponderance of the evidence that the investigative delay in developing Morrison
as a suspect was caused by reasons beyond the State’s control.
However, once the police not only identified Morrison as a suspect but also
determined that there was sufficient evidence to arrest him, there were additional
delays in both the investigation and the prosecution. The State failed to present
evidence showing that these delays were beyond its control so that it was not
practicable—i.e., feasible—to proceed to certification until after Morrison turned
18 on March 30, 2012.
2. October 26, 2011–January 30, 2012
There was a delay in the issuance and execution of the directive to
apprehend Morrison. The juvenile court’s factual findings do not address the cause
of this delay. Nor did the State present any evidence to satisfy its burden to show
that this delay was for reasons beyond its control. To the contrary, the testimony of
the State’s own witnesses showed that this delay was caused by the State and that it
would have been practicable to issue and execute the directive to apprehend at an
earlier date.
Sgt. Ramirez provided the District Attorney’s Office with a police report
requesting a warrant for Morrison’s arrest on October 31, 2011—five months
21
before Morrison’s birthday. But Sgt. Ramirez did not sign a probable cause
affidavit for a directive to apprehend until January 27, 2012, when he received the
results of the firearms analysis confirming that two different guns were used in the
murder.
The State had the burden to explain this delay. The only explanation the
State offered was Sgt. Ramirez’s testimony that the firearms’ analysis was the first
physical evidence to indicate that there were two shooters and that, before
receiving the results of the firearms analysis, he did not believe he had probable
cause to arrest Morrison in the absence of any eye-witness who had seen Morrison
with a gun.4
As factfinder, the juvenile court could have accepted Sgt. Ramirez’s
explanation—despite his police report requesting Morrison’s arrest on October 31.
But that explanation does not show that the delay in arresting Morrison was for a
reason beyond the State’s control or that it would not have been practicable to
arrest him earlier than January 30. Ramirez did not ask for the firearms analysis to
be expedited, nor did he follow-up to obtain an oral report on the results. The
firearms examiner, Jennifer Turner, testified that she could have verbally released
the results of the analysis as early as November 17—over four months before
Morrison’s 18th birthday and over two months before Morrison’s arrest. Turner
4
The only suspect who had been observed with a gun was Edwards.
22
completed her analysis on November 4, and her department completed a “technical
review” of her report on November 17. Later, on January 27, her report underwent
a limited “administrative review” for “grammatical errors and completeness”
before its official release. The State did not offer evidence that anything prevented
Turner from releasing the results after the technical review; on this record, the
investigators and prosecutors simply failed to request that she do so. Nor did the
State offer any evidence that the prosecutors requested an expedited firearms
analysis. And there is no evidence that the investigators or prosecutors requested
that the results of the analysis be orally released after the technical review.
In sum, the uncontradicted evidence shows that the State could have
prepared the probable cause affidavit as early as November 17. The delay in
waiting until January 27 to arrest Morrison and begin taking the necessary steps for
the transfer hearing was not beyond the State’s control.
3. January 31, 2012–March 30, 2012
Once Morrison was arrested, the State needed to take the steps necessary for
a transfer hearing, including completing a diagnostic study, social evaluation, and
investigation of Morrison’s background. See TEX. FAM. CODE § 54.02(d). Even
with the delays during the final stages of the criminal investigation, the State still
had two months to complete these tasks after Morrison was arrested but before he
23
turned 18 on March 30. But the State did not set the transfer hearing until June
12—over two months after Morrison’s birthday.
The State had the burden of proving that, for a reason beyond its control, it
was not practicable to proceed in juvenile court after Morrison’s arrest and before
March 30. The State failed to meet this burden. The State offered no evidence that
it attempted to complete the necessary steps during the two months before
Morrison’s birthday. Nor did it offer any evidence to explain the delay during this
time. Morrison was apprehended on January 30; the juvenile court held an initial
detention hearing on February 1; and the State filed its petition for discretionary
transfer on February 13—roughly six weeks before Morrison’s 18th birthday. After
the State filed its petition, it did not request or otherwise attempt to expedite the
diagnostic study, social evaluation, or investigation of Morrison’s background.
Kyle Dobbs, head of the Fort Bend County Juvenile Probation Department, said
the social home study report is “not a long process typically” and “not hard to
complete” once you have the required information. Dr. Gollaher completed her
psychological evaluation and report in about a month once the information was
provided to her. At the June 12 transfer hearing, the prosecutor did not show—or
even argue—that the requirements of Section 54.02(j)(4) had been satisfied.
Instead, the prosecutor argued that the State was not required to satisfy that
section’s requirements because the petition had been filed before Morrison’s 18th
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birthday. The prosecutor’s mistaken belief that the State was not required to satisfy
the requirements of Section 54.02(j) indicates that the State did not proceed to
certification before Morrison’s 18th birthday because the prosecutors did not think
they had to do so.
The State failed to prove by a preponderance of the evidence that for reasons
beyond its control it was not practicable—i.e., feasible—to proceed in juvenile
court on this case before Morrison’s 18th birthday. See Moore, 446 S.W.3d at 52
(holding that investigative delay caused by detective’s large caseload and mistake
as to defendant’s age were not reasons beyond State’s control when offense was
promptly reported, defendant was identified as perpetrator well short of his 17th
birthday, and correct birthdate was evident in other police records, and, therefore,
dismissing aggravated-sexual-assault charge); Webb v. State, No. 08-00-00161-CR,
2001 WL 1326894, at *6–7 (Tex. App.—El Paso, Oct. 25, 2001, pet. ref’d) (mem.
op., not designated for publication) (holding that State’s failure to notify juvenile
court of defendant’s upcoming 18th birthday was not reason for delay beyond
State’s control and therefore dismissing murder charge). The State presented, and
the juvenile court made findings based on, a chronology of events, but the State
failed to explain the cause of delays for a number of those events. We sustain
Morrison’s single issue.
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Conclusion
Because the State did not meet its burden of proof under Section 54.02, the
juvenile court had only one option: to dismiss the case. See Moore, 532 S.W.3d at
405 (holding that State’s failure to meet burden left juvenile court with no option
other than to dismiss case). The statute’s amendment reduces the risk that this
scenario will recur. But under binding precedent and the earlier version of the
statute applicable here, we must vacate the juvenile court’s order and dismiss the
case for lack of jurisdiction.
Harvey Brown
Justice
Panel consists of Justices Higley, Brown, and Caughey.
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in the Matter of A. M.
Combined Opinion