Opinion issued May 21, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00017-CV
———————————
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
O P I N I O N1
1
On December 28, 2018, a panel of this Court issued an order withdrawing its August
28 opinion and judgment and reinstating the appeal to be resubmitted at a later date.
See TEX. R. APP. P. 19.1 (court of appeals holds plenary power over its judgment
until 30 days after court overrules all timely filed motions for rehearing or en banc
reconsideration); 19.2 (“In a civil case, the court of appeals retains plenary power
to vacate or modify its judgment during the periods prescribed in 19.1 . . . .”). The
case was resubmitted on January 29, 2019 to a new panel.
A police investigation determined that A.M. was involved in a retaliatory gang
shooting that resulted in the death of a rival gang’s leader. Legal proceedings were
initiated in juvenile court because A.M. was sixteen years old at the time of the
shooting and juvenile courts hold exclusive jurisdiction over minors. On the State’s
motion to certify A.M. as an adult to face criminal charges in district court, the
juvenile court issued an order finding that the State met its burden under Family
Code section 54.02(a) for waiver of jurisdiction and transfer to district court.
After A.M. was convicted, an appellate court vacated his conviction and
remanded the matter to the juvenile court, having concluded that (1) although the
State had argued that Section 54.02(a) was the correct standard for waiver and
transfer, Section 54.02(j) was the applicable standard because A.M. turned eighteen
before the waiver and transfer hearing occurred and (2) the State had not presented
any evidence directed to the Subsection (j) statutory requirements. Morrison v. State,
503 S.W.3d 724, 727–28 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)
(remanding for review of evidence in support of waiver and transfer under Section
54.02(j)).
On remand, the juvenile court heard evidence from law-enforcement
witnesses and others. The juvenile court ruled that the State met its burden under
2
Subsection (j),2 and the court waived its jurisdiction to allow transfer for criminal
proceedings against A.M. as an adult.
In a single issue, A.M. argues that the trial court abused its discretion in
waiving its jurisdiction because the State “failed to prove by a preponderance of the
evidence that it was beyond the control of the State to proceed to certification before
[A.M.’s] 18th birthday.” A.M. seeks a reversal of the trial court’s waiver order and
dismissal of the case against him for lack of jurisdiction.
A.M. is now an adult and all parties agree that the Family Code statutory
scheme that was in place at the time the State petitioned for certification applies to
our review.3 Under that scheme, A.M. can no longer be adjudicated in juvenile court.
The disposition of this appeal can take only one of two forms. If we were to
2
See TEX. FAM. CODE § 54.02(j)(4)(A) (permitting waiver of jurisdiction and transfer
if, among other things, “the juvenile court finds from 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 18th birthday of the person” subject to
transfer); see also Moore v. State, 446 S.W.3d 47, 51–52 (Tex. App.—Houston [1st
Dist.] 2014) (holding that “the State” within Section 54.02(j) encompasses more
than just prosecutors and includes members of law enforcement involved in case
investigation and prosecution), aff’d, 532 S.W.3d 400 (Tex. Crim. App. 2017).
3
No party argues that Section 51.0412 of the Family Code, which became effective
on September 1, 2013—before the December 2017 transfer hearing on remand—
applies. See TEX. FAM. CODE § 51.0412, Acts 2013, 83rd Leg., ch. 1299 (H.B.
2862), § 7, eff. Sept. 1, 2013 (permitting juvenile court to retain jurisdiction over
person if, among other things, person is respondent in adjudication proceeding and
proceeding is not complete before respondent turns eighteen, so long as court enters
finding that prosecuting attorney exercised due diligence in attempt to complete
proceeding before respondent became eighteen years of age).
3
determine that the trial court did not abuse its discretion in waiving jurisdiction, we
would affirm the trial court’s order and A.M. would be retried as an adult for the
murder. If, on the other hand, we were to conclude that the trial court abused its
discretion in waiving jurisdiction, our only option would be to reverse and render a
judgment of dismissal.
Because the trial court abused its discretion in concluding that the State met
its burden under Section 54.02(j)(4)(A), we reverse the trial court’s order and render
a judgment of dismissal.
Waiver of Exclusive Jurisdiction
and Transfer for Criminal Prosecution
A.M. contends that the juvenile court abused its discretion in waiving its
exclusive jurisdiction and transferring his proceeding to criminal district court for
prosecution as an adult. Specifically, A.M. argues that the State failed to meet its
burden, under Section 54.02(j)(4)(A) of the Family Code, to establish “by a
preponderance of the evidence that it was beyond the control of the state to proceed
to certification before [A.M.]’s 18th birthday.”4 Before turning to the lengthy factual
background of this case, we first set forth the statutory criteria for discretionary
waiver and transfer that must guide the evidentiary review.
4
Subsection (j)(4) contains alternative grounds for waiver and transfer that all parties
agree are not relevant to this appeal. See TEX. FAM. CODE § 54.02(j)(4)(B).
4
A. Law on waiver of exclusive jurisdiction over minors and standard of
review on appeal
“Children ordinarily are not subject to criminal proceedings like adults.” In re
S.G.R., 496 S.W.3d 235, 238 (Tex. App.—Houston [1st Dist.] 2016, no pet.). When
a child engages in conduct that would be considered criminal if committed by an
adult, it is called “delinquent conduct.” See TEX. FAM. CODE § 51.03(a)(1). Murder,
when committed by a minor, constitutes delinquent conduct. See id.; see also TEX.
PENAL CODE § 19.02.
Juvenile courts have exclusive original jurisdiction over cases involving
delinquent conduct by children between ten and seventeen years old. TEX. FAM.
CODE §§ 51.02(2)(A), 51.04(a). Delinquency proceedings against minors proceed in
juvenile court under the Juvenile Justice Code. See id. §§ 51.01–61.107. A juvenile
court may waive its exclusive original jurisdiction under certain conditions and
allow transfer of the proceeding to a district court for criminal prosecution. Id.
§ 54.02(a), (j). “Generally, the transfer of a juvenile offender from a juvenile court
to a criminal district court for prosecution as an adult should be regarded as the
exception, not the rule.” In re J.W.W., 507 S.W.3d 408, 414 (Tex. App.—Houston
[1st Dist.] 2016, no pet.) (citing Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App.
2014)).
In a juvenile transfer proceeding, the State must produce evidence that
persuades the juvenile court, by a preponderance of the evidence, that waiver of its
5
exclusive original jurisdiction is appropriate. Moon, 451 S.W.3d at 40–41, 45. What
the State must prove to obtain transfer depends on whether the minor has reached
the age of eighteen by the date of the transfer hearing. “Section 54.02(a) applies
where the juvenile is less than eighteen years of age at the time of the transfer
hearing,” while “Section 54.02(j) applies where the juvenile is eighteen years old at
the time of the transfer hearing.” In re D.L.C., No. 06-16-00058-CV, 2017 WL
1055680, at *4 (Tex. App.—Texarkana Mar. 21, 2017, no pet.) (mem. op.); see
Morrison, 503 S.W.3d at 727–28.
A.M. was sixteen years old when the rival gang leader was shot and killed. He
was seventeen years old when he was arrested and the State filed its motion for
waiver and transfer. But he was eighteen years old when the juvenile court held the
transfer hearing and later issued its ruling.
Once A.M. turned eighteen, the juvenile court’s jurisdiction was limited to
either dismissing the case or transferring the case to criminal district court.5 Moore
5
Effective September 1, 2013, a legislative exception to this rule of limited
jurisdiction became available. See TEX. FAM. CODE § 51.0412, Acts 2013, 83rd
Leg., ch. 1299 (H.B. 2862), § 7, eff. Sept. 1, 2013. Under this exception, a juvenile
court may retain jurisdiction over a person, without regard to the person’s age, if,
among other things, the person is a respondent in an adjudication proceeding and
the proceeding is not complete before the respondent turns eighteen, so long as the
court enters a finding in the proceeding that the prosecuting attorney exercised due
diligence in attempting to complete the proceeding before the respondent’s
eighteenth birthday. See In re B.R.H., 426 S.W.3d 163, 166 (Tex. App.—Houston
[1st Dist.] 2012, no pet.); In re V.A., 140 S.W.3d 858, 859–60 (Tex. App.—Fort
Worth 2004, no pet.). As stated, neither party argues that the transfer hearing in this
case is subject to the Section 51.0412 legislative exception.
6
v. State, 532 S.W.3d 400, 404–05 (Tex. Crim. App. 2017); In re N.J.A., 997 S.W.2d
554, 555–56 (Tex. 1999). If the State did not meet its burden under Section 54.02(j),
the juvenile court’s only option was to dismiss the case against A.M. Morrison, 503
S.W.3d at 727–28; see Moore, 532 S.W.3d at 405; N.J.A., 997 S.W.2d at 557.
The only subpart of Section 54.02(j) that was at issue on remand and now on
appeal is whether the State met its burden, under Section 54.02(j)(4)(A) to establish
“from 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 18th birthday
of the person . . . .” TEX. FAM. CODE § 54.02(j)(4)(A); see Morrison, 503 S.W.3d at
727–28. Subsection (j)(4)(A) “is meant 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.” Moore, 532 S.W.3d at 405 (concluding that State’s “failure
to get around to this case in time did not meet [its] burden” under Section
54.02(j)(4)(A)).
In reviewing a discretionary transfer, we evaluate the trial court’s findings of
fact under traditional sufficiency-of-the-evidence principles. In re J.G., 495 S.W.3d
354, 369 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (citing Moon, 451
S.W.3d at 47). Under a legal-sufficiency challenge, we credit evidence favorable to
the challenged finding and disregard contrary evidence unless a reasonable
factfinder could not reject the evidence. Id. at 369–70 (citing Moon v. State, 410
7
S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 451 S.W.3d 28 (Tex.
Crim. App. 2014)). If there is more than a scintilla of evidence to support the finding,
the no-evidence challenge fails. Id. at 370. Under a factual-sufficiency challenge, we
consider all the evidence presented to determine if the court’s finding is so against
the great weight and preponderance of the evidence as to be clearly wrong or unjust.
Id. (citing Moon, 410 S.W.3d at 371).
If the findings of the juvenile court are supported by legally and factually
sufficient proof, then we review the ultimate waiver decision under an abuse-of-
discretion standard. Moon, 451 S.W.3d at 47; In re H.Y., 512 S.W.3d 467, 478–79
(Tex. App.—Houston [1st Dist.] 2016, pet. denied). As with any decision that lies
within the trial court’s discretion, the question is not whether we might have decided
the issue differently. Moon, 451 S.W.3d at 49. Instead, we ask whether the juvenile
court’s transfer decision was “essentially arbitrary, given the evidence upon which
it was based, or [whether] it represent[ed] a reasonably principled application of the
legislative criteria.” In re J.G., 495 S.W.3d at 370 (quoting Moon, 451 S.W.3d at
47). “A trial court has no ‘discretion’ in determining what the law is or applying the
law to the facts. Thus, a clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992).
8
With that standard in mind, on remand four years later, the State presented
evidence to satisfy its burden to establish by a preponderance of the evidence that,
due to a reason back then that was beyond its control, it was “not practicable to
proceed” in juvenile court before A.M.’s eighteenth birthday. See TEX. FAM. CODE
§ 54.02(j)(4)(A); Morrison, 503 S.W.3d at 727–28.
B. Testimony regarding law enforcement’s initial view of the case
The original lead investigator assigned to this gang murder was Lieutenant R.
Terry of the Missouri City Police Department. The matter was later assigned to
Sergeant R. Ramirez, a member of the Sugar Land Police Department who was also
the supervisor of a tri-city Special Crimes Unit that had recently been formed to
support gang-related and other specialized criminal investigations in Sugar Land,
Stafford, and Missouri City. Both officers testified.
Lieutenant Terry received a report of a homicide in Missouri City the evening
of August 26, 2010. Terry went to the home of Kristian Sullivan, who had been shot
multiple times and killed in his front yard. Sullivan was a known leader of a high-
school-affiliated gang known as FAB. At the scene, Terry found spent shell casings
that were all the same caliber but were two different brands or manufacturers. This
meant there was either one shooter who used mismatched ammunition or two
shooters—at this point it was unclear. Terry’s initial view of the case, formed while
9
at the crime scene that evening, was that it was likely a gang-related shooting
involving either one or two shooters.
During their testimony, both Terry and Ramirez discussed the inherent
difficulties in investigating gang crimes: gang members generally are reluctant to
implicate fellow gang members; when they do, their statements are often self-serving
and not credible; when a gang member provides a lead, the name given is often a
street name or gang name that the officers have trouble linking to a particular
individual; and, finally, even when the officers suspect that the person who
committed the crime has a particular gang affiliation, the officers still have a
relatively large list of possible suspects because some local gangs have hundreds of
members. These gang-specific concerns were expected to make the case
development more difficult.
C. Testimony detailing the criminal investigation between August 2010 and
October 2011
August 2010 to November 2010: Beginning of criminal investigation
While Terry was at the murder scene, one of Sullivan’s friends, Curtis Taylor,
suggested to Terry that Rickel Baker might have been the shooter. Baker was a
member of a rival gang known as 100 Clikk. Before Terry completed his on-site
investigation, he received a call that Baker had been shot at his house in a drive-by
shooting. Terry suspected the shooting was retaliatory. According to Terry, the
10
shootings appeared to be part of the on-going gang violence between FAB and 100
Clikk.
Two days later, another 100 Clikk gang member, Darius Pye, was arrested in
Pearland and claimed to have information related to Sullivan’s murder. Terry met
with Pye, who alleged that another person known as “Black Mike” had been
involved in the murder. Terry determined that “Black Mike” was a 100 Clikk gang
member named Michael Wilbourn and met with him on September 1, 2010, less than
one week after the murder. Wilbourn denied involvement.
Over the next month, the police pursued leads and excluded a couple people
as suspects.
In October 2010, Wilbourn reached out to police to provide additional
information. At the time, Wilbourn was in a federal detention facility on charges of
aggravated robbery. The FBI assisted in arranging the interview, which occurred in
December 2010.
December 2010: First allegation that A.M. is connected to murder weapon
During his interview, Wilbourn told Terry that a person referred to as “Tony
T” had tried to sell Wilbourn the gun “that was used to kill ole boy.” Terry
understood at the time that Wilbourn was referring to Sullivan’s death. Terry
testified that he did not find Wilbourn’s statement to be credible, but he intended to
follow up on the lead.
11
By the next day, Terry had figured out that “Tony T” was A.M.’s 100 Clikk
gang name. Terry went to a house that had been linked to A.M., intending to
interview him, but the house was vacant. Terry left a business card on the door. A
week later, Terry learned that A.M. had recently been released from a juvenile
detention center and, as a condition of his release, A.M. was required to wear an
ankle device that would monitor his location. Terry did not ask the juvenile probation
department to give him the address linked to the ankle monitor. When asked why he
did not ask for the linked address to go interview A.M., Terry responded, “Because
I didn’t.” Terry did not otherwise attempt to interview A.M.
Terry summarized the investigation status as of December 2010 as follows:
I really don’t have a suspect identified at this time because I have
multiple individuals who are providing with street names who we’ve
identified some, but we don’t have anything to corroborate what each
of those individuals said or to provide that each individual may be
involved in this homicide. . . . You really can’t move forward without
tangible evidence that you can link a person or a named person to the
crime or to the criminal offense.
There were no additional direct leads for several months.
June 2011: New leads focus on another 100 Clikk gang member, Sterlyn
Edwards, with no mention of A.M.
In June 2011, the murder investigation was assigned to the Special Crimes
Unit led by Sergeant R. Ramirez. The Special Crimes Unit was focused on
maintaining frequent, direct contact with gang members in a tri-city area that
included Sugar Land, Stafford, and Missouri City. These targeted contacts were
12
known as “gang sweeps.” During weekly gang sweeps, the Special Crimes Unit
officers would find and document gang members and, during the interactions, ask
the gang members for information about Sullivan’s murder.
Both Terry and Ramirez described the gang members as uncooperative. When
the gang members provided possible leads, they appeared to be self-serving
statements that the officers were unable to corroborate. Ramirez described it as “kind
of just names that were bouncing around” without corroboration.
Once Ramirez took over the investigation, he sought to re-interview Pye and
Wilbourn. Both 100 Clikk members provided additional information during their
second interviews. Pye was interviewed in June 2011. He indicated that fellow 100
Clikk gang member, Sterlyn Edwards, had been involved in Sullivan’s murder. Pye
told Ramirez that he had overheard Edwards threaten to shoot a FAB gang member
like he shot the FAB leader, Sullivan. According to Ramirez, “this was the first
actual break in the case” because “one gang member . . . was implicating someone
else within his gang.”
Over the next few months, four additional people—100 Clikk and FAB
members—further implicated Edwards.
October 2011: Edwards implicates A.M., and two non-gang members
connect A.M. to Sullivan’s shooting
In October 2011, Sergeant Ramirez interviewed Edwards. Edwards said that
he had become friends with rival gang member Sullivan. One day, Edwards called
13
Sullivan to set up a meeting at which two fellow 100 Clikk gang members—A.M.
and Joshua Patterson—would buy marijuana from Sullivan. According to Edwards,
the only purpose of the visit was to buy marijuana. Edwards told Ramirez that he,
A.M., and Patterson drove to Sullivan’s house in a borrowed car, A.M. and Patterson
got out of the car, and he stayed in the car. During the interview, Edwards minimized
his role and, according to Ramirez, “placed all the responsibility” on A.M. and
Patterson.
Edwards also told Ramirez about two young women who could provide
additional information. Ramirez interviewed the women and determined that they
had loaned their Taurus to the 100 Clikk gang members that night. The two stated
that they were with Edwards, Patterson, and A.M. at A.M.’s house. Edwards,
Patterson, and A.M. were “plotting something” using “gang code” that the women
did not understand. When they prepared to go out, one of the women decided not to
go because she did not want to be involved; the other agreed to go along. The woman
who went out with the gang members told Ramirez that they left A.M.’s house in
the Taurus with Patterson driving, they drove to Sullivan’s house, A.M. and Edwards
got out of the car, she heard gun shots, A.M. and Edwards returned to the car,
Edwards recounted how Sullivan looked when he shot him, and A.M. was
comparatively quiet. After they dropped A.M. at his house, she saw Patterson hide
a gun in the hood of the Taurus.
14
That same month, a non-gang member, R. Moreno, told Ramirez that he was
A.M.’s best friend and that he had been shot while hanging out at a 100 Clikk house
a year earlier. Ramirez found that information significant because it provided a
possible motive for Sullivan’s shooting in that gang violence is often retaliatory.
At that point—October 2011—based on his investigation, and particularly
based on the information he received from Edwards and the two young women,
Ramirez considered both Edwards and A.M. to be suspects in Sullivan’s murder.
D. Law on holding a person criminally responsible for another’s acts,
Sergeant Ramirez’s testimony on timing of meeting the probable-cause
threshold to arrest A.M., and additional testimony on seeking and
obtaining corroborating evidence before arresting A.M.
1. Law of parties: criminal responsibility for person who is not the
primary actor
The Penal Code authorizes criminal responsibility for a person who is a “party
to an offense” if the offense “is committed by his own conduct, by the conduct of
another for which he is criminally responsible, or by both.” TEX. PENAL CODE §
7.01(a). “A person is criminally responsible for an offense committed by the conduct
of another if . . . acting with intent to promote or assist the commission of the offense,
he solicits, encourages, directs, aids, or attempts to aid the other person to commit
the offense.” Id. § 7.02(a)(2).
When a party is charged for an offense in which he was not the “primary
actor,” the State must prove, first, the conduct constituting the offense, and, second,
15
an act by the defendant done with the intent to promote or assist the criminal conduct.
Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). The law of parties
establishes a party’s responsibility for the conduct of another based on the party’s
“level of participation in the offense, even if he was not the proverbial triggerman.”
McIntosh v. State, 52 S.W.3d 196, 200–01 (Tex. Crim. App. 2001).
Evidence is sufficient to sustain a conviction under the law of parties if it
shows that the defendant was physically present at the offense and encouraged the
commission of the offense either by words or other agreement. Cordova v. State,
698 S.W.2d 107, 111 (Tex. Crim. App. 1985). An agreement among parties to act
together in common design is seldom proven by words. Often, the State must rely
on the actions of the parties, shown through direct or circumstantial evidence, to
establish the understanding or common design to commit the criminal offense.
Marable v. State, 85 S.W.3d 287, 293 (Tex. Crim. App. 2002); In re J.S., No. 03-
17-00344-CV, 2018 WL 4100785, at *2 (Tex. App.—Austin Aug. 29, 2018, no pet.)
(mem. op.); Miller v. State, 83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet.
ref’d). Any agreement must have been made before or contemporaneous with the
criminal event, but in determining whether one has participated in an offense, the
court may examine the events occurring before, during, and after the commission of
the offense. Miller, 83 S.W.3d at 314.
16
“Mere presence at the scene of a crime does not implicate an individual as a
party. However, participation in a criminal offense may be inferred from the
circumstances.” In re J.S., 2018 WL 4100785, at *2 (citing Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987)).
There are numerous cases analyzing criminal liability for gang-related and
other drive-by shootings. In one gang-related drive-by shooting case, an appellate
court held that there was legally sufficient evidence to affirm a murder conviction
tried under a law-of-parties theory on evidence that a man was gunned down outside
his home, two cars drove past his house with occupants shooting at the man, one
bullet killed the man, and the defendant drove one of the two cars. Leal v. State, No.
13-04-00287-CR, 2005 WL 2476260 (Tex. App.—Corpus Christi Oct. 6, 2005, no
pet.) (mem. op., not designated for publication). The defendant’s conviction under a
law-of-parties theory did not require evidence that the defendant fired the bullet that
killed the man, that he fired a gun at all, or even that he drove the particular car from
which the fatal shot was fired. See id. at *3 (“We believe appellant’s actions in
driving a vehicle used in the drive-by shooting aided or attempted to aid the person
who murdered Medina, even if that person was not in appellant’s vehicle. From this
circumstantial evidence, the jury could have concluded that appellant intended to
promote or assist the commission of Medina’s murder.”); see Anguiano v. State, No.
05-92-01065-CR, 1993 WL 438181 (Tex. App.—Dallas Oct. 26, 1993, no pet.)
17
(mem. op., not designated for publication) (appellate court affirmed murder
conviction under law-of-parties theory in gang-related drive-by shooting in which
defendant knew of plan to fight, drove vehicle to fight location, shot his gun “into
the air,” drove from scene, and helped dispose of weapons, holding that “evidence is
sufficient to establish that [the defendant] was aware that his actions were reasonably
certain to aid in causing the shooting death” of individual killed); Esparza v. State,
No. 14-95-01257-CR, 1998 WL 724364 (Tex. App.—Houston [14th Dist.] Oct. 8,
1998, no pet.) (not designated for publication) (appellate court affirmed murder
conviction under law-of-parties theory on evidence that defendant and person killed
were in rival gangs, they had history of gang altercations, defendant was driver of
vehicle used in drive-by shooting and leaned out of his vehicle holding gun,
concluding that factfinder reasonably could have determined that defendant had
requisite intent to aid passenger-shooter in act of shooting person who was killed
even though there was no evidence that defendant fired his gun).
2. Sergeant Ramirez’s testimony that the police had probable cause
to arrest A.M. by mid-October 2011 under a law-of-parties theory
of criminal responsibility
Sergeant Ramirez was specifically asked whether he was familiar with the law
of parties and whether he believed in mid-October 2011—based on the information
he had after interviewing Edwards and the two young women—that A.M. could be
held criminally responsible for Sullivan’s murder as a party to the offense. Ramirez
18
replied, “Absolutely, yes.” He was asked the same question about Patterson and
again replied, “Absolutely.”
Ramirez was asked why, then, he did not request an arrest warrant for
Edwards, Patterson, or A.M. in mid-October 2011. He responded, “We weren’t there
yet. There’s one other person we needed to talk to.” Ramirez explained that he was
referring to Patterson. He later added that he also wanted to talk to A.M.
3. Sergeant Ramirez’s testimony on further criminal investigation
after probable-cause threshold had been met for A.M.
Ramirez interviewed Patterson in late-October 2011. During the interview,
Patterson admitted that he drove the Taurus to Sullivan’s house. Patterson told
Ramirez that Edwards and A.M. got out of the car just before Patterson heard the
gunshots. Patterson said that, later that night, Edwards gave him a gun to conceal in
the hood of the Taurus.
Ramirez testified that he requested an arrest warrant for Patterson the same
day he interviewed him in late-October 2011. Ramirez’s explained that his primary
focus, at that time, was on securing Patterson’s immediate arrest because he was the
only of the three 100 Clikk gang members in the Taurus that night who was not
already in custody somewhere for some offense. Ramirez was concerned about the
safety of the two young women who had provided information in the criminal
investigation. A.M. and Edwards were already confined and posed no threat to the
women’s safety. Patterson, though, was still free.
19
While Ramirez testified that he was focused only on securing Patterson’s
arrest, he also testified that he requested A.M.’s arrest at the same time as
Patterson’s. It is undisputed that Ramirez presented information on October 31, 2011
to obtain an arrest warrant for Patterson, Edwards, and A.M. Consistent with
requesting an arrest warrant for these three gang members, Ramirez testified that he
believed he had probable cause to arrest Patterson, Edwards, and A.M. on October
31, 2011.
Despite having requested A.M.’s arrest, Ramirez testified that his intention,
at that time, was to wait for physical evidence to corroborate a two-shooter theory
before moving forward against A.M. He testified, “I think I was ready to move
forward with the warrant like on Tony T,” referring to A.M.’s gang name, but he
also noted that he “didn’t have any physical evidence . . . as to his involvement” or
to “corroborate he was there.” Ramirez explained that he still “wanted some more”
evidence—physical evidence.
At that point, when Ramirez moved forward with the arrest of Patterson based
on probable cause but did not move forward with the arrest of A.M. despite probable
cause, A.M. was seventeen years and 7 months old. He was only five months from
his eighteenth birthday. Ramirez was asked about his decision to wait to pursue
A.M.’s arrest, given that A.M. was almost eighteen years old. Ramirez explained
that it was never conveyed to him that A.M. was about to turn eighteen or that his
20
age created any prosecutorial deadlines. Ramirez stated that he was not aware of any
reason for urgency in the case against A.M.
The police investigation continued. In December 2011, Ramirez re-
interviewed Wilbourn, who told Ramirez about an earlier conversation he had had
with A.M. and Edwards. The two had given Wilbourn a ride because Wilbourn’s car
had broken down. They picked Wilbourn up in a borrowed Taurus. During the car
ride, Edwards told Wilbourn that he had been involved in Sullivan’s shooting, A.M.
attempted to sell Wilbourn a gun, and Edwards and A.M. told Wilbourn that the
Taurus was the same car they had used to “do the murder.” A.M. was not arrested
on this new information.
4. Sergeant Ramirez’s testimony about waiting to obtain physical
evidence before arresting A.M.
Ramirez waited to arrest A.M. until after he received confirmation from a
firearms lab, in January 2012, that two weapons were used in the Sullivan murder.6
When it was pointed out to him that he did not likewise wait for the lab report to
arrest Patterson, Ramirez agreed that both men already were subject to prosecution
even if the firearms analysis failed to provide incriminating physical evidence.
6
The circumstances around the issuance of the firearms lab’s finding is discussed
below.
21
Probable cause was established in mid-October 2011. Ramirez explained why he,
nonetheless, waited on the lab report before arresting A.M.:
Yeah, I think what—it’s been a while but I think what I wanted is when
I got to the point where I could interview [A.M.], like I could have
physical evidence to bring to that interview. It’s better to have that
information with you so that way if a suspect starts lying to you, that
you can pull something out and say, no, actually I do have proof that
this happened. That would be one reason that I was waiting on physical
evidence.
Ramirez’s explanation fails to take into account A.M.’s impending birthday.
5. Firearms examiner’s testimony about findings and issuance of lab
report
One of the witnesses at the Section 54.02(j) transfer hearing was J. Turner,
the firearms examiner at the Harris County Institute of Forensic Sciences. She
explained the timeline for testing the casings, reaching the conclusion that two
weapons were used in Sullivan’s murder, and conveying that information to
investigators:
22
Year Date Event
2010
Sept. 9 First portion of the items were received for analysis
Oct. 12 Additional items received from medical examiner
2011
June 10 Items removed from the lab so that DNA testing
could be performed before the firearms analysis
Oct. 27 Items returned to lab and placed back in line for
analysis
“Somebody” requested that the analysis be “given
some priority,” but Turner does not know who made
the request
Nov. 3 Turner began analysis
Nov. 4 Turner completed analysis
Nov. 17 Technical review completed
2012
Jan. 27 Administrative review completed
May 30 Written lab report forwarded to law enforcement
Thus, according to Turner, the process lasted more than one and one-half years.
Turner explained that the form used to request an analysis from the lab did not
have a section to mark the work request as a priority or rush assignment. Turner
stated that the lab nonetheless was willing to accommodate rush requests and that
such requests were “not an uncommon thing.” Rush requests typically were made
by phone or email. In 2011, the lab did not use a tracking method to memorialize
23
phoned requests to expedite. If anyone called to request a rush in this case, there
would be no record of it.
Ramirez testified about requests for expedited lab analyses as well. He stated
that the Harris County Ballistics Firearms Lab is not a part of his police department
and that the lab assists police departments from surrounding areas as a “favor”:
Harris County isn’t part of Fort Bend County. . . And they’re basically
doing us a favor by conducting the firearms examination; and though
Fort Bend, we don’t have a lot of murders involving guns, Harris
County, they do. So, I know that they’re backlogged. I know that it does
take a while to get firearms labs back.
But Ramirez also testified that he knew he was able to request a rush and had done
so in earlier cases. He did not request a rush in this case because he was unaware
there was any need for a rush: “I didn’t see the rush in this case . . .”
Turner completed her examination on November 4, 2011 and concluded that
two weapons had been used to shoot Sullivan. But her written report could not be
immediately released because the lab’s procedures required a mandatory, internal
review. The first step of the mandatory review was a “technical review” of the
physical evidence to confirm Turner’s conclusions. The lab completed the technical
review on November 17, 2011. Under the labs procedures, lab results normally
would not be released after the technical review; instead, the release followed the
completion of an administrative review. However, according to Turner, she would
24
have been permitted to verbally release her findings to law enforcement after the
technical review if she had received a request to do so. No such request was made.
Turner’s draft written report was forwarded for the “administrative review”
on November 17, 2011. The purpose of that review is to analyze the report for
completeness and grammatical errors. The lab completed the administrative review
more than two months later, on January 27, 2012. The lab results were forwarded to
law enforcement the same month.
According to Turner, the lab would have permitted release of its conclusions
to law enforcement once the technical review was completed in November 2011,
even though the administrative review had not been done. Turner testified that she
“wouldn’t say that it’s a known fact” that the lab was willing to release findings
early. She further testified that “it’s not done that often.”
On the topic of early release of findings, Sergeant Ramirez testified that he
did not know findings could be released early or that they would have been released
in mid-November 2011 if he had requested that they be.
6. Sergeant Ramirez’s testimony about receiving lab results and
arresting A.M.
Ramirez testified that he received a call on January 26, 2012 letting him know
that the firearms lab had confirmed that two guns were used in the murder of
Sullivan. According to Ramirez, this provided the physical-evidence corroboration
he was seeking. He explained, “[T]hat was the first date that I finally had something
25
physical—some physical evidence. I knew two people got out of the car. Now I
know two separate guns were used.”
The same day he received the lab results confirming that there had been two
shooters, Ramirez filed new documents to obtain A.M.’s arrest.7 But these new
documents did not include the newly received information from the firearms lab.
Instead, Ramirez relied on the same information he had included in the affidavit to
support Patterson’s arrest in late-October 2011.
Three days later, on January 29, 2012, officers removed A.M. from a juvenile
detention center where he was being held on unrelated charges and transported him
to a juvenile holding center in Fort Bend County. At that point, A.M. was seventeen
years and ten months old, and the juvenile court would lose jurisdiction in two
months.
7. Summary of Sergeant Ramirez’s testimony on timing of
establishing probable cause to arrest A.M. and subsequent events
Ramirez testified that probable cause existed to arrest A.M. in mid-October
2011 following the interviews of Edwards and the two young women. He testified
that probable cause still existed in late-October 2011, after he interviewed Patterson.
7
Because A.M. was a minor at the time of the offense, the arrest warrant was referred
to as a “directive to apprehend.” 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.”). There is no meaningful distinction
between an arrest warrant and a directive to apprehend in the witnesses’ testimony.
26
Relatedly, Ramirez requested A.M.’s arrest on October 31, 2011, when he also
requested Patterson’s arrest. Yet he arrested Patterson and not A.M.
Ramirez confirmed that he was aware that criminal defendants could be
prosecuted as a party to the offense. And he thought, in October 2011, that A.M.
could be prosecuted under a law-of-parties theory.
Instead of pursuing A.M.’s arrest at either of these junctures, Ramirez
preferred to wait for physical evidence that would support direct liability against
A.M. as a triggerman. Ramirez was unaware of any rush in the case that would
counsel against waiting on physical evidence in a murder case against a minor
offender who was approaching his eighteenth birthday. In the end, Ramirez agreed
that he had probable cause to arrest A.M. in mid-October 2011 and would have still
had probable cause if the lab results did not further implicate Ramirez as a
triggerman.
E. Evidence of prosecutorial activity between the date of A.M.’s arrest and
the date of the first waiver and transfer hearing
On February 13, 2012—about two weeks after A.M. was arrested—the State
filed its petition for a discretionary transfer to criminal district court under Section
54.02(a) of the Family Code. This is the provision that applies to transfers of minor-
offenders who are still minors on the date of the transfer hearing. TEX. FAM. CODE §
54.02(a). Section 54.02(d) establishes certain required steps for transfer under
Section 54.02(a), including that “the juvenile court shall order and obtain a complete
27
diagnostic study, social evaluation, and full investigation of the child, his
circumstances, and the circumstances of the alleged offense” before the hearing on
the transfer motion. Id. § 54.02(d). To comply with Section 54.02(d), the juvenile
court appointed Dr. K. Gollaher to evaluate A.M. But the Fort Bend County Juvenile
Probation Department did not send the information she needed for her evaluation
until one month later. The State did not call Dr. Gollaher to testify or present any
evidence explaining why a month passed between her appointment and the necessary
information being provided to her.
On March 26—four days before A.M.’s eighteenth birthday—the State
requested and the juvenile court signed an order transferring A.M. from Fort Bend
County Juvenile Detention to Fort Bend County Jail, where adults are housed.
On March 27, the Probation Department’s Psychology Division forwarded to
Dr. Gollaher the information she needed to conduct her psychological evaluation.
On March 30, A.M. turned eighteen.
On April 5, Dr. Gollaher performed her psychological evaluation of A.M. She
completed her report later that month, and the juvenile court released the report to
all parties.
On June 8, A.M.’s juvenile probation officer completed her social home study
report, which could not be completed before receipt of Dr. Gollaher’s psychological
evaluation.
28
On June 12, the juvenile court held a hearing on the State’s petition to transfer.
The prosecutor described the hearing as “a traditional discretionary transfer hearing”
filed under Section 54.02(a). The prosecutor noted that A.M. had turned eighteen on
March 30 but that the State had filed its petition for discretionary transfer while A.M.
was still seventeen years old. The prosecutor argued that transfer was governed by
Section 54.02(a), not Section 54.02(j), because the petition to transfer was already
on file when A.M. turned eighteen. According to the prosecutor, because the petition
was filed “well before” A.M.’s eighteenth birthday, Section 54.02(j) was “never
triggered.” Accordingly, the State did not put on any evidence in support of transfer
under Section 54.02(j).
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 transfer and
subsequent conviction were reversed on appeal, which led to the hearing and
testimony discussed above in the State’s efforts to meet the requirements of transfer
under Section 54.02(j). See Morrison, 503 S.W.3d at 728.
F. The juvenile court’s findings following the second waiver and transfer
hearing on remand analyzed under Section 54.02(j)
The juvenile court held the second waiver and transfer hearing, on remand, in
December 2017. As discussed, Lieutenant Terry, Sergeant Ramirez, and firearms
examiner J. Turner testified, among others. Following the hearing, the trial court
made 50 factual findings that laid out the chronology of events during the two-year
29
criminal investigation. These findings note when the police interviewed various
gang members, when the lab took certain actions, when Dr. Gollaher received and
released information, and when filings were made in support of transfer.
The trial court did not make any specific findings on witness credibility. Nor
did the trial court make any findings about whether a particular event could or could
not have occurred at a given time. Instead, the first 50 findings are strictly a
chronological recitation.
The trial court then made five additional findings “in favor of discretionary
transfer” under Section 54.02(j), the first of which stated:
[A.M.] is 18 years or older. On the date of the initial discretionary
transfer hearing [A.M.] was eighteen (18) years of age, having been
born on March 30, 1994. On the date of the remanded discretionary
transfer hearing [A.M.] was twenty-three (23) years of age. For reasons
beyond the control of the state, it was not practicable to proceed in
juvenile court before the eighteenth (18th) birthday of [A.M.]
The fourth additional finding stated:
The juvenile court finds from a PREPONDERANCE OF THE
EVIDENCE that pursuant to Texas Family Code section 54.02(j) for
reasons beyond the control of the state it was not practicable to proceed
in juvenile court before the eighteenth (18th) birthday of [A.M.], based
on the previous factual findings of this Court.
The other three findings dealt with A.M.’s age and probable cause in general terms.
Nowhere in these findings did the juvenile court make a factual determination
that identified a condition or event as a Section 54.02(j) “reason beyond the control
30
of the state” or that linked any identified “reason” to a sense of not being practicable
to proceed.
G. The trial court abused its discretion in waiving its exclusive jurisdiction
and granting transfer of A.M. to criminal district court for prosecution
as an adult
The trial court’s factual findings set forth a timeline of events during the
development of the murder case against A.M. The State’s witnesses discussed the
progression of the case as these events unfolded. The State’s witnesses identified at
least three periods of time in which, according to the State’s own witnesses, the case
was ready to proceed to the next stage but did not.
The first period was the three months between October 2011 and January
2012. Ramirez testified that he understood the law-of-parties theory permitted
criminal charges against those who aid or assist in a crime. In October 2011, Ramirez
thought the requirements of probable cause were met for Patterson and A.M., under
a theory of law of parties, because of their involvement in driving to Sullivan’s house
and killing him with multiple gunshots. Ramirez even filed papers requesting A.M.’s
arrest in October 2011. But the State did not pursue the arrest. The State—whether
at the behest of Ramirez or the prosecutors—preferred to wait for physical evidence,
which would support a theory of direct liability for actually shooting a gun at
Sullivan.
31
Even if the State had been in the position to wait for evidence that would
support a theory of direct liability, there was a second three-month period identified
by the State’s own witnesses in which the case was ready to proceed but did not. The
lab technician’s report was disclosable on November 17, 2011. The State’s witnesses
all testified that they did not realize there was any reason to rush the lab review
process or the case generally, and so they never called or otherwise asked for an
expedited release of the lab’s results. The lab’s results were available for release on
November 17, 2011, but the State was satisfied to wait until their release through
routine procedures three months later in late-January 2012.
The third period identified by the State’s own witnesses was in connection
with Dr. Gollaher’s required evaluation. The timeline established by the State’s
witnesses, and accepted by the trial court in its findings of fact, shows that the
juvenile court ordered a psychological evaluation of A.M. on February 22, 2012—
just over one month before A.M.’s eighteenth birthday—but the information Dr.
Gollaher needed to conduct her evaluation was not provided by the Fort Bend
County Juvenile Probation Department until March 27—which was more than one
month later and only three days before A.M.’s birthday. Dr. Gollaher completed her
report about one month after receiving the information from the probation
department, even though there was no evidence she was asked to expedite the report.
32
Testimony provided by the State’s witnesses identified these three periods:
two three-month periods and one one-month period.8 No witness identified any
“reason” the case did not move forward during these seven months. They did the
opposite. Without exception, the State’s witnesses testified that there were no
impediments: probable cause existed in October 2011, yet A.M. was not arrested;
the lab results were ready November 17, 2011, yet no one requested expedited
release much less expedited analysis; and Dr. Gollaher demonstrated that she could
produce a report in about one month, yet no one sent her the needed materials for
more than a month.
Ramirez did offer that the State waited to proceed with arresting A.M. because
Ramirez “wanted more” evidence against him, even though Ramirez understood that
the State already met the threshold of probable cause. Ramirez’s testimony provides
some explanation why the State waited. But it does not provide what is required: a
reason beyond the control of the State that influenced the available progression of
the case. Ramirez conceded that he was aware there was probable cause to move
forward in the case on the allegation of murder in October 2011 under the law of
8
There is arguably a fourth period of delay between December 2010 and October
2011. In December 2010, Wilbourn told Terry that A.M. had tried to sell him the
gun used to kill Sullivan, yet no officer pursued A.M.’s interview despite knowing
A.M. was wearing an ankle monitor. In October 2011, those interviewed by law
enforcement again signaled A.M.’s involvement, and the investigative focus
returned to A.M.
33
parties. The “more” that Ramirez wanted could have been used in an interrogation
to establish A.M. was being untruthful, but there is no suggestion in this record that
the State needed “more” to shore up its investigative conclusion that A.M. was
responsible for this crime.
Not only was there no “reason” identified in the State’s evidence, the State
also failed to establish through its evidence that any reason would qualify as “beyond
the control of the State.” TEX. FAM. CODE § 54.02(j)(4)(A). Not one witness testified
that, for any of these three periods, there was an outside factor that influenced the
progression of the case.
The juvenile court’s factual findings in this case distinguish it from another
waiver and transfer case, In re B.C.B., No. 05-16-00207-CV, 2016 WL 3165595
(Tex. App.—Dallas June 7, 2016, pet. denied). There, a teenager disclosed to a
neighbor on April 11 that she had been sexually assaulted two years earlier by a
classmate who had since moved away. Id. at *5. The investigating police officer
learned of the allegation the next day, on April 12, and thought it provided probable
cause to arrest the accused. Id. The police officer waited to make an arrest until the
following month, however, because the officer “did not have an official outcry from
complainant,” the accused’s “location was unknown,” “additional gathering of
information could cause [the officer] to change his mind” about the accusation, and
waiting would “protect the accused” from an unfounded allegation that had not yet
34
been investigated. Id. The appellate court held that the State met the requirement of
Section 54.02(j) on that evidence. The probable cause threshold was reached the day
after the complainant first disclosed the earlier assault, but, at that point, the police
had not interviewed the complainant or otherwise investigated the alleged crime.
Moreover, the arrest was only one month after the initial outcry.
The progression leading to a probable cause determination was very different
here. The first witness to implicate A.M. was Wilbourn in December 2010. He told
the officers that “Tony T” had tried to sell him a gun used to kill Sullivan. By the
next day, the investigating officers understood that “Tony T” was A.M.’s gang name.
A.M. was in the mix of potential suspects for almost a full year when, in mid-October
2011, Edwards and the two young women implicated him through their statements
that were consistent with each other, with earlier statements by others, and with the
physical evidence collected at the crime scene. Then, by late-October 2011, after
Patterson was interviewed, law enforcement had four individuals placing A.M. at
the scene of the shooting, another individual indicating A.M. was in possession of
the murder weapon, and a statement that A.M. had discussed the murder in a way
that implicated himself. Probable cause against A.M. was the result of a lengthy
criminal investigation with ample corroboration. And the State’s own witness stated
that probable cause existed in October 2011—three months before the State pursued
the arrest of A.M.
35
The State argues that its actions were within the bounds of appropriate case
advancement. It argues that it should not be required to “drop everything and do
everything perceivable and conceivable to avoid delay” or establish that it was
wholly “prevented” from proceeding. We agree. Section 54.02(j) does not set such
a high standard. Instead, it places a burden on the State to establish, by a
preponderance of the evidence, given that the waiver and transfer hearing did not
occur until after A.M.’s eighteenth birthday, that it was not practicable for it to have
proceeded before his eighteenth birthday because of a reason beyond the State’s
control. See TEX. FAM. CODE § 54.02(j)(4)(A); Moore, 446 S.W.3d at 52. We do not
locate any evidence in this record of a “reason” that was “beyond the control of the
State” on which the State could rely. Cf. Moore, 446 S.W.3d at 52 (concluding that
detective’s heavy caseload and mistake as to defendant’s age were not “reasons
beyond the State’s control” to satisfy Section 54.02(j) burden and vacating
conviction). Simply put, failing to realize that a deadline existed is not outside the
State’s control.
Looking at the record in its entirety, the absence of supporting evidence is
consistent with the State’s position at the first waiver and transfer hearing: the State
had been proceeding under a theory that the Subsection (j) requirements would not
apply, meaning that the State would not be put to the burden of establishing a reason
36
it had not been practicable to proceed before A.M.’s eighteenth birthday, and the
State simply “didn’t see the rush in this case.”9
A.M. contends that the State failed to carry its burden under Subsection (j) at
the second waiver and transfer hearing and that the juvenile court abused its
discretion in granting the motion on insufficient evidence. We must agree. The State
did not present any evidence of a reason beyond its control that it linked to a
practicability analysis. The State investigated this murder under the impression there
was “no rush,” found out only after A.M. turned eighteen that the heightened
standard of Subsection (j) applied, and then looked to the record for a fortuitous
reason beyond its control that influenced the case progression to meet the standard
of being not practicable to proceed. The record simply does not provide such proof.
Instead, it affirmatively establishes the opposite.
The dissent would permit the State to investigate a case at its own pace without
regard to the statutory deadline of the juvenile’s eighteenth birthday. The plain
language of the relevant statute does not permit this approach. In the event that it is
impracticable for the State, for reasons beyond its control,10 to file a petition and
9
The State does not argue that there is a good-faith exception to adherence to
Subsection (j)’s requirements in the event the State has failed to operate under the
correct subsection. Cf. TEX. CODE CRIM. PROC. art. 38.23(b) (providing good-faith
exception to exclusionary rule when law enforcement, acting in objective good faith,
rely on warrant issued by neutral magistrate based on probable cause).
10
Failure to mitigate investigative or procedural delay is not something outside the
State’s control. See, e.g., Moore, 532 S.W.3d at 404–05 (law enforcement’s heavy
37
obtain a transfer ruling from the juvenile court before the child’s eighteenth birthday,
the State need only make a showing of the reason by a preponderance of the
evidence. Statutory compliance with a deadline when probable cause was
established months earlier is neither “heroic” nor extraordinary. It is, however,
difficult where the State did not realize the deadline existed and must rationalize,
post hoc, a failure to comply with it.
This case is only about whether the juvenile court had jurisdiction to authorize
transfer pursuant to Texas Family Code section 54.02(j). The dissent’s sojourn into
the merits of the juvenile court’s waiver of jurisdiction under Section 54.02(f)
transcends the question before the Court. Accordingly, Section 54.02(f), Moon v.
State, 451 S.W.3d 47–56, and Matthews v. State, 513 S.W.3d 45, 55–56 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref’d), have no relevance to the jurisdictional
inquiry. For that reason, discussion of the Subsection (f) factors, such as the record
and previous history of the child and the nature of the offense, distracts from the
resolution of the narrow jurisdictional question presented.
case load was not beyond State’s control); Webb v. State, No. 08-00-00161-CR,
2001 WL 1326894, at *6 (Tex. App.—El Paso Oct. 25, 2001, pet. ref’d) (not
designated for publication) (failure to ask the court to expedite the transfer hearing,
causing a six-week delay, was not outside State’s control).
38
Because there was no evidence to support the trial court’s ultimate
determination that the requirements of Section 54.02(j)(4)(A) were met, we must
reverse the trial court’s order waiving jurisdiction and transferring to district court.
H. Mandatory disposition
Because the State did not meet its burden, its non-compliance with Section
54.02 deprived the juvenile court of jurisdiction. We therefore hold that the juvenile
court lacked jurisdiction to transfer the case to a criminal district court and, as a
result, the criminal district court may not acquire jurisdiction. Moore, 446 at 52. The
trial court abused its discretion. We proceed with the only available disposition:
dismissal of the case for lack of jurisdiction.
Conclusion
We reverse and dismiss the case for lack of jurisdiction.
Sarah Beth Landau
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Justice Keyes, dissenting.
39