in the Matter of A.J.F., a Child v. State

Affirmed and Opinion filed October 31, 2019.

In The

Fourteenth Court of Appeals

NO. 14-19-00414-CV
NO. 14-19-00415-CV
NO. 14-19-00416-CV

IN THE MATTER OF A.J.F., A CHILD

On Appeal from County Court at Law No. 2
Galveston County, Texas
Trial Court Cause Nos. 19-JV-0022, 19-JV-0023, and 19-JV-0102

OPINION

The State filed three petitions alleging appellant A.J.F., a juvenile, engaged in
delinquent conduct. The first petition alleged he committed aggravated robbery of a
Galveston restaurant (“the Robbery Case”).1 The second and third petitions
concerned appellant’s alleged possession of methamphetamine (“the Drug Case”)2
and harassment of a public servant (“the Harassment Case”),3 respectively

1
Trial court number 19-JV-0022; appeal number 14-19-00414-CV.
2
Trial court number 19-JV-0023; appeal number 14-19-00415-CV.
3
Trial court number 19-JV-0102, appeal number 14-19-00416-CV.
(collectively “the Subsequent Cases”).

The State later filed a petition in the Robbery Case asking the juvenile court
to exercise its discretion to waive its jurisdiction and transfer appellant to district
court under section 54.02(a) of the Family Code. The court granted the State’s
request by order signed May 6, 2019 (“the Discretionary Transfer Order”). Later that
day, the State filed petitions in the Subsequent Cases contending the existence of the
Discretionary Transfer Order required the court to waive its jurisdiction and transfer
appellant to district court under section 54.02(m). The juvenile court agreed and
signed transfer orders on May 8, 2019 (“the Mandatory Transfer Orders”).

Appellant appealed each order. He contends the trial court (1) abused its
discretion by signing the Discretionary Transfer Order because the court failed to
properly apply the statutory factors for transfer, and (2) erred as a matter of law by
signing the Mandatory Transfer Orders because section 54.02(m) does not apply in
this case. We affirm each order.

THE ROBBERY CASE AND THE DISCRETIONARY TRANSFER ORDER

I. Hearing on petition for discretionary waiver and transfer

A. Armed robbery and investigation
Two African American young men walked into La Cazuela Cocina a few days
after Christmas in 2018. The first man walked into the kitchen, where he quickly
took the purse of 77-year-old employee Efigenia Martinez. The second man, the
shorter of the two, stopped at the cashier’s counter just inside the door and pointed
a small, silver handgun at 57-year-old employee Amada Martinez. The first man
walked out of the kitchen; Efigenia followed quickly, carrying a large kitchen knife.
By this time, the second man was behind the counter with Amada. Efigenia handed
the knife to Amada, who waved it at the second man. The second man shot Amada,

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then both men ran out of the restaurant. Amada survived the shooting.

Amada told the police she believed the two men who committed the robbery
had been in her restaurant earlier that day and ordered burritos to go. She said one
of them tried to steal a dollar from the tip bowl but put it back when confronted.

Some children told the officers they saw two African American males running
from the restaurant before the police arrived to investigate. A man said he saw
appellant fire a .22 caliber, silver revolver the previous day and heard him express a
desire to “rob someone.” That gun matched the description of the weapon fired at
Amada. Officers discovered Efigenia’s purse about two blocks from the restaurant
and near appellant’s apartment complex. One of her credit cards was missing.

The police located appellant and another juvenile, Paul (both African
American), about thirty minutes after the robbery. Paul’s clothes appeared identical
to those worn by the first man on the video, but appellant’s clothes did not match
those worn by the second man on the video. The officers detained both Paul and
appellant. During a consensual search, officers found Efigenia’s missing credit card
in Paul’s pocket. Both young men were transported to a juvenile facility.

After a magistrate informed appellant of his rights, Sergeant Derek Gaspard
of the Galveston Police Department interviewed appellant. Appellant denied
involvement in the robbery and eventually told Sgt. Gaspard the robbery was
committed by Paul and a third person, Jason. In his own interview, Paul admitted he
robbed the restaurant with someone he referred to as “A.J.” When shown a photo
array containing both appellant’s and Jason’s photos, Paul identified Jason as the
person who committed the robbery with him. Based on appellant’s and Paul’s
statements, the police released appellant and detained Jason.

Appellant’s mother consented to two searches of the apartment she shared

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with appellant. In appellant’s bedroom, officers found a half-eaten burrito, shoes that
matched the shoes of the second man on the restaurant video, and a .22 caliber shell
casing. Clothing found in appellant’s apartment matched that worn by a person seen
with Paul on surveillance video of the apartment complex. That clothing also
matched that worn by the second man on the restaurant video.

From the clothing and the timeline, Sgt. Gaspard was able to determine it was
appellant who robbed the restaurant with Paul, not Jason. Paul subsequently changed
his statement, confirming appellant, not Jason, committed the robbery with him.
Jason was released, and appellant was again detained for the robbery. The police
searched him in conjunction with his detention and discovered he had pills
containing methamphetamine in his possession. The State filed both the Robbery
Case and the Drug Case. While in a juvenile detention facility for those cases,
appellant allegedly spit on a guard, which resulted in the Harassment Case.

B. Record and history

Appellant has extensive history with the juvenile justice department (JJD).
Before the robbery, appellant had been detained by the JJD 16 times in just over four
years. His first detention came at age 11 for burglary of a vehicle. The other offenses
for which he was detained include more burglaries, theft, criminal mischief,
unlawful carrying of a weapon, and numerous violations of the terms of his
probation. The State dismissed one of the charges and declined to prosecute seven
others. The remaining charges were disposed of in various ways in line with JJD’s
7-level progressive sanctions system, ranging from judicial probation (sanction level
3) to placement in a secure residential facility (sanction level 5).

Appellant stayed in a level 5 facility for most of 2018. He did “well,”
according to his probation officer. He earned a green shirt, signifying leadership
among his peers. He helped staff members as well. Appellant successfully completed

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the program and was discharged in October 2018.

A month later, he was detained for unlawful carrying of a weapon. The court
adjudicated him delinquent but, at the JJD’s recommendation, did not make a
disposition, which means the court did not impose punishment. A month after that,
appellant allegedly robbed La Cazuela Cocina.

In the three and a half months he was detained before the transfer hearing in
the Robbery Case, appellant was written up at least 28 times for what the detention
facility deemed “serious incidents.” Examples of those incidents include: threatening
to kill staff, threatening to assault and assaulting staff, threatening to assault and
assaulting other juveniles, talking about shooting people, repeatedly refusing to
follow instructions, disrupting the program, flooding his room, verbally abusing
others, and using profanity. While visiting appellant, his probation officer heard him
say, “I’m going to do my time; and when I get to the streets, I will kill all of y’all,
on my mama.” Appellant also reportedly said he did not care what he did or what
happened to him because he had “nothing to lose.”

The probation officer testified appellant is indeed the “rough and tough kid”
he presents himself to be, though she never felt personally threatened by him. She
recounted his outburst at a previous court appearance. During testimony about one
of appellant’s threats, he had exclaimed, “Bro, that’s not a threat. That’s a promise.”
The probation officer also testified appellant is “very scared.” She said he does well
in structured environments. Appellant’s caseworker from another program has had
“no problems” with him. She said he is pleasant, polite, and never disrespectful. Like
the probation officer, the caseworker never felt threatened or intimidated by
appellant. She testified he has “bloomed” in the theater arts and creative expression
programs. In her opinion, appellant is scared of the unknown.

According to the certification report prepared by the probation officer,

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appellant’s overall risk to reoffend is high, as is his criminal history score. His social
history score is moderate. The report does not explain the methodology used to
determine those scores. The report concludes with a recommendation that appellant
be transferred for adult proceedings, because the JJD had provided him “ample
opportunities” and “all the necessary services” to correct his behavior but had
“exhausted all efforts to help with [appellant’s] rehabilitation.” The caseworker, by
contrast, believed appellant should continue in the JJD’s sanctions system instead of
being punished as an adult.

C. Psychological and psychiatric evaluations

Psychologist Jenine Boyd, Ph.D. evaluated appellant three times for the JJD:
when he was 12, almost 14, and almost 16. Each time, he presented in a “respectful
and cooperative manner.” He showed no overt signs of delusions, hallucinations, or
a thought disorder and denied any history of such. He had no notable medical or
mental health problems. Appellant was prescribed medication for attention deficit
hyperactivity disorder (ADHD) but took it only sporadically. He offered inconsistent
accounts of substance abuse, originally denying ever having used drugs, then
admitting to smoking marijuana, at times heavily. He said one of the marijuana
cigarettes may have been, unbeknownst to him, laced with benzodiazepines.

Appellant told Boyd he had good relationships with his parents and siblings.
His mother has been bedbound since appellant was seven years old. The Department
of Family and Protective Services was involved earlier in appellant’s life due to
inadequate supervision at home and excessive school absences. He regularly skipped
school and performed poorly in his classes. Boyd’s report notes appellant “follows
anti-social peers” and has a “negative peer group.”

Boyd tested appellant to assess his intellectual functioning, academic skills,
and personality. He was shown to have an IQ of roughly 85, which puts him in the

6
16th percentile for intelligence. He was considerably below grade-level in reading
and math; his spelling skills were much better. Appellant’s responses on the
behavioral test were considered invalid due to inconsistency, most likely due to his
rushing through the questions. Previous responses on the same test revealed his poor
attitude toward school and sense of inadequacy. They also showed him to be at risk
in the areas of inattention, hyperactivity, and anxiety.

Boyd’s report includes these statements:

[Appellant] is not adhering to the rules and social standards in the
community. His behavior and the behavior of his peers he chooses for
affiliation is dangerous. He has accessed all levels of juvenile probation
supervision within the community to no avail.

...
[Appellant] is at least similar or more mature than 15-year-old
adolescents. He has been adjudicated on other juvenile delinquent
charges. He was charged in 2018 with a weapons charge that is not
typical of other adolescents even in the juvenile delinquent system. He
does not meet the criteria for an intellectual disability or naiveté
compared to other 15-year-old adolescents.

She saw “no contraindications to admission to a secure facility within the [juvenile]
system.”

Psychiatrist Michael Fuller, M.D. evaluated appellant about a week after
Boyd’s final evaluation. Fuller characterized appellant as polite, appropriate, and
cooperative throughout the interview. Appellant’s thought processes were “logical,
coherent, and goal directed and devoid of the stigmata of persistent psychosis.”

Appellant’s cognitive functioning was largely unremarkable. His orientation,
attention, concentration, memory, judgment, abstract reasoning, and insight were all
normal. He displayed difficulty in some arithmetic tasks. Fuller said appellant has
“low average innate intelligence.” Still, Fuller found “no marked impairment overall

7
in his ability to make or use sound judgment.”

Fuller concluded appellant has “probable conduct disorder,” ADHD, and
features of post-traumatic stress disorder due to being in a car accident at age 14 in
which his friend died. However, Fuller found no symptoms of psychiatric illness.
Despite admitting heavy marijuana usage to Boyd, appellant told Fuller he had
smoked it only once. He also said he had ingested benzodiazepines recently.

Fuller offered several observations regarding appellant’s understanding of his
legal situation: Appellant adequately detailed the charges and allegations against
him. He understood he could be tried as an adult and sent to prison. He showed
awareness of the adversarial nature of criminal proceedings; guilty and not guilty
pleas; and the roles of the judge, prosecutor, and defense attorney. Appellant knew
his lawyer’s name and expressed willingness to work with her and consider her
advice. Fuller believed appellant could testify rationally and conduct himself
appropriately at trial. In conclusion, Fuller wrote, appellant is reasonably mature and
“could be certified for trial as an adult given his age and the serious nature of the
criminal charges.”

D. Juvenile court’s findings
The Discretionary Transfer Order is five pages long and includes the court’s
detailed findings regarding the offense, appellant’s sophistication and maturity, his
record and history, and the prospects of adequate protection of the public and the
likelihood of appellant’s rehabilitation through the juvenile system. The court also
found probable cause to believe appellant committed the offense alleged in the
Robbery Case. The findings are discussed in detail in section III.

II. Waiver of juvenile jurisdiction
Texas juvenile courts have exclusive, original jurisdiction over cases

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involving what otherwise would be criminal conduct by children 10 or older but
younger than 17. Tex. Fam. Code Ann. §§ 51.02(2)(a), 51.03(a)(1), 51.04(a). If a
juvenile court determines after an evidentiary hearing that certain requirements are
satisfied, it may waive its jurisdiction and transfer a child to the district court for
criminal proceedings. Id. § 54.02(a), (c). Transfer of a juvenile for prosecution as an
adult “should be regarded as the exception, not the rule.” Moon v. State, 451 S.W.3d
28, 36 (Tex. Crim. App. 2014). Transfer proceedings are “critically important,” and
any statutory mechanism for waiving juvenile-court jurisdiction must at least
“measure up to the essentials of due process and fair treatment.” Id. (quoting Kent v.
United States, 383 U.S. 541, 560–62 (1966)).

The State bears the burden to persuade the juvenile court by a preponderance
of the evidence that “the welfare of the community requires transfer of jurisdiction
for criminal proceedings, either because of the seriousness of the offense or the
background of the child (or both).” Moon, at 40–41; accord Taylor v. State, 553
S.W.3d 94, 98 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (op. on reh’g).
The statutory requirements for waiver of jurisdiction and transfer are:

(1) the child is alleged to have [committed a] felony;
(2) the child was:

(A) 14 years of age or older at the time he is alleged to have
committed the offense, if the offense is a capital felony, an
aggravated controlled substance felony, or a felony of the
first degree, and no adjudication hearing has been
conducted concerning that offense; or

(B) 15 years of age or older at the time the child is alleged to
have committed the offense, if the offense is a felony of
the second or third degree or a state jail felony, and no
adjudication hearing has been conducted concerning that
offense; and

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 (3) after a full investigation and a hearing, the juvenile court
determines that there is probable cause to believe that the child
before the court committed the offense alleged and that because
of the seriousness of the offense alleged or the background of the
child the welfare of the community requires criminal
proceedings.

Tex. Fam. Code Ann. § 54.02(a).

In making this determination, the juvenile court must consider, among other
matters, the following factors:

(1) whether the alleged offense was against person or property, with
greater weight in favor of transfer given to offenses against the
person;
(2) the sophistication and maturity of the child;

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

Id. § 54.02(f). Any combination of these criteria may suffice to support a waiver of
jurisdiction; not every criterion need weigh in favor of transfer. Moon, 451 S.W.3d
at 47 & n.78. “The trial court is bound only to consider these . . . factors in deciding
whether to waive jurisdiction. The court need not find that each factor is established
by the evidence.” In re C.M.M., 503 S.W.3d 692, 701 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied) (quoting In re D.L.N., 930 S.W.2d 253, 258 (Tex. App.—
Houston [14th Dist.] 1996, no writ)).

If the juvenile court waives its jurisdiction, it is required to “state specifically
in the order its reasons for waiver and certify its action, including the written order
and findings of the court . . . .” Tex. Fam. Code Ann. § 54.02(h). Section 54.02(h)
requires the juvenile court to include its reasons for waiver and specific findings of

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fact that undergird those reasons in its transfer order. In other words, the Moon court
wrote, “the court should take pains to ‘show its work,’ as it were, by spreading its
deliberative process on the record. . . .” Moon, 451 S.W.3d at 49.

Our review of a transfer order is two-pronged. First, we review the specific
findings of fact concerning the section 54.02(f) factors under a “traditional
sufficiency of the evidence review.” Id. at 47. Under a legal sufficiency challenge,
we credit evidence favorable to the challenged finding and disregard contrary
evidence unless a reasonable fact finder could not reject the evidence. C.M.M., 503
S.W.3d at 701. If more than a scintilla of evidence supports the finding, the no-
evidence challenge fails. Id. Under a factual sufficiency challenge, we consider all
the evidence presented to determine if the court’s findings are against the great
weight and preponderance of the evidence so as to be clearly wrong or unjust. Id.

Second, we review the waiver decision for an abuse of discretion. Moon, 451
S.W.3d at 47. That is, in reviewing the juvenile court’s conclusion that the
seriousness of the offense alleged and/or the background of the juvenile calls for
criminal proceedings for the welfare of the community, we ask, in light of our own
analysis of the sufficiency of the evidence to support the section 54.02(f) factors and
any other relevant evidence, whether the juvenile court acted without reference to
guiding rules or principles. Id. A juvenile court abuses its discretion when its
decision to transfer is essentially arbitrary, given the evidence upon which it was
based. Id. By contrast, a waiver decision representing “a reasonably principled
application of the legislative criteria” generally will pass muster under this standard
of review. Id. at 49. “[A] juvenile court that shows its work should rarely be
reversed.” Id.

III. Application
We begin with what is not in dispute. Appellant is alleged to have committed

11
a third-degree felony when he was 15 years old, and he does not dispute the juvenile
court’s finding of probable cause to believe he committed that offense. Section
54.02(a)(1), (a)(2), and the probable-cause part of (a)(3) are satisfied.

Appellant’s challenge concerns the remainder of subsection (a)(3): the court’s
finding that due to the seriousness of the offense alleged or the background of the
child, the welfare of the community requires criminal proceedings. He alleges the
court failed to properly apply the section 54.02(f) factors in making that finding.

A. 54.02(f) factors

1. Seriousness of the offense
Appellant concedes the alleged offense was against a person. The juvenile
judge noted several aspects of the offense she found “particularly egregious and
aggravating”:

• After appellant bought food from the restaurant, he went home and changed
his clothes before returning to rob the restaurant.

• According to Paul, appellant suggested robbing the restaurant and said he
planned to fire a gun.

• Appellant shot 57-year-old Amada, and the bullet lodged in her breast.

• Appellant and Paul fled the scene and went home so appellant could change
clothes again.

• Appellant gave the police false information, which led them to release him
and detain Jason for the robbery.

• Appellant possessed methamphetamine when he was detained for the robbery.
Appellant does not challenge any of these findings.

2. Sophistication and maturity
The judge relied heavily on both Boyd’s and Fuller’s reports. She endorsed

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Boyd’s observations that appellant was equally or more mature than other 15-year-
old adolescents and did not meet the criteria for an intellectual disability or naiveté
compared with his peers. The judge also quoted Boyd’s statement that appellant’s
alleged unlawful possession of a weapon in November 2018 was atypical for other
adolescents, “even in the juvenile delinquent system.” From Fuller’s report, the
judge cited appellant’s average intelligence and his normal cognitive functioning, in
particular his logical, coherent, and goal-directed thought processes. She recognized
appellant displayed symptoms of ADHD and PTSD but noted he did not display
symptoms of psychiatric illness. The judge also relied on Fuller’s assessment that
appellant was fit to proceed for trial and could be certified as an adult due to his age
and the serious nature of the offense.

As evidence of his unsophistication and immaturity, appellant points to his
16th-percentile, below-average intelligence and his “trouble processing
information.” Fuller’s report describes appellant’s intelligence as both “average” and
“low average,” but the court’s findings do not mention “low average.” We cannot
say that the trial court’s use of “average” instead of “low average” undermines her
findings regarding appellant’s sophistication and maturity, particularly in light of the
other evidence she cited. Appellant also asserts the trial court’s findings “ignore[]
major psychological issues that severely impact a person’s ability to evaluate and
process information.” We disagree. There is no evidence that appellant’s
“psychological issues,” major or not, impact his ability to evaluate and process
information. The court acknowledged both appellant’s diminished intelligence and
Boyd’s opinion that it did not meet the criteria for an intellectual disability.
Similarly, the court recognized appellant’s ADHD and history of nightmares while
also recognizing Fuller’s opinion that appellant lacked symptoms of psychiatric
illness.

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 3. Record and history

The court cited appellant’s long history of delinquency, noting in particular
five burglaries of vehicles, one burglary of a habitation, one burglary of a building,
evading arrest or detention, and unlawful carrying of a weapon, as well as the alleged
offenses in the Subsequent Cases. In addition, the court found, appellant pleaded
true to numerous probation violations. Appellant’s admitted use of illegal substances
is also noted in the court’s findings.

Appellant contends some of his previous detentions were “due to the fact that
no parent or guardian was present to whom the court could release [him].” He cites
no evidence to support that contention, and none appears in the record. He also
minimizes the 11 offenses listed in the court’s findings, noting only two were for
felonies (burglary of a habitation is a second-degree felony; of a building, a state jail
felony). The rest, he says, concerned misdemeanors, resulted in dismissal, or have
not been adjudicated. One charge—evading arrest or detention—was voluntarily
dismissed by the State because appellant was going to be punished for the offenses
he committed for which he was evading arrest. Nothing in the record suggests that
charge lacked merit. Two of the listed offenses are those at issue in the Subsequent
Cases, and appellant is correct that he has not been adjudicated or otherwise found
to have committed those offenses. But he does not dispute that he committed seven
burglaries in less than three and a half years, even if five of them were “just” Class
A misdemeanors. Nor does he dispute the weapon charge, which also happens to be
a Class A misdemeanor.

4. Prospects for rehabilitation

The judge noted that 16-year-old appellant would have less than three years
in the juvenile system, because its maximum age for services is 19. She referred to
the multiple services already offered to appellant to no avail, including placements

14
in two residential facilities. Appellant threatened to murder someone, the judge
wrote, and his risk to reoffend is high. For those reasons, the court found “little, if
any” likelihood that the facilities and services available in the juvenile system could
reasonably be expected to rehabilitate appellant. The low prospect of rehabilitation,
coupled with the seriousness of the offense and appellant’s background, led her to
find that the welfare of the community requires criminal proceedings.

Appellant faults the trial court for ignoring Boyd’s statement that “there are
no contraindications to admission to a secure facility within the [juvenile] system”
and for not explaining why sanction level 6 in the juvenile system would be
inadequate to address both the public’s and appellant’s needs. We agree that the
court did not quote Boyd’s statement, but we disagree that she ignored it. Sanction
level 6 means confinement in a JJD facility. See Tex. Fam. Code Ann. § 59.009(a).
That level does not appear to allow for a longer sentence than the amount of time the
child can remain in the juvenile system. See id. § 59.009(c). Boyd stated, and the
trial court cited her statement, that appellant would have less than three years in the
juvenile system. The certification report stated the JJD had provided ample
opportunities and services to appellant but had “exhausted all efforts” to rehabilitate
appellant adequately. The probation officer testified that she believed appellant
should be transferred for adult proceedings.

Appellant also complains that no evidence or argument was presented as to
why a determinate sentence would not be sufficient. Certain offenses, including
aggravated robbery, are eligible for referral to the grand jury for approval of
prosecution. Tex. Fam. Code Ann. § 53.035. If the grand jury approves the
prosecution and the child is adjudicated delinquent for that offense, the child faces a
“determinate sentence” of up to 10, 20, or 40 years, depending on the nature of the
offense. Id. § 54.04(d)(3). The decision whether to seek a determinate sentence lies

15
with the prosecutor, not the court. Id. § 53.035(a) (“The prosecuting attorney may,
before filing a petition [for adjudication as delinquent] under Section 53.04, refer an
offense to a grand jury in the county in which the offense is alleged to have been
committed.”). Appellant offers no authority to suggest the juvenile court must
explain why a determinate sentence would be inadequate when the prosecutor has
not elected to seek a determinate sentence.

B. Evidentiary sufficiency

Our task is to determine whether the evidence laid out above is legally and
factually sufficient to support the juvenile court’s finding in the Discretionary
Transfer Order that due to the seriousness of the offense alleged or the background
of the child, the welfare of the community requires criminal proceedings. Moon, 451
S.W.3d at 49. To determine legal sufficiency, we credit evidence favorable to the
challenged finding and disregard contrary evidence unless a reasonable fact finder
could not reject the evidence. C.M.M., 503 S.W.3d at 701. If more than a scintilla of
evidence supports the finding, the no-evidence challenge fails. Id. Under a factual
sufficiency challenge, we consider all the evidence presented to determine if the
court’s findings are against the great weight and preponderance of the evidence so
as to be clearly wrong or unjust. Id.

Here, ample evidence supports the court’s finding that the welfare of the
community requires criminal proceedings. The judge identified certain aspects of
the offense she found “particularly egregious and aggravating,” including
appellant’s use of a firearm and his false statements to police that led to the wrongful
detention of Jason. Following evaluation by two mental health professionals,
appellant was found to have normal cognitive functioning, logical and coherent
thought processes, and the ability to make and use sound judgment. He displayed no
symptoms of any psychiatric illness. Appellant’s juvenile record is extensive and

16
unabating. He committed at least eight offenses in less than three and a half years
and admitted to multiple probation violations. His probation officer believed the JJD
had done all it can do for appellant. Though his caseworker disagreed and Boyd
stated there are no contraindications to placement in a secure JJD facility, we cannot
say that the trial court’s finding is against the great weight and preponderance of the
evidence so as to be clearly wrong or unjust. We conclude the juvenile court’s
finding is supported by legally and factually sufficient evidence.

C. No abuse of discretion

Next, we review the waiver decision for an abuse of discretion. Moon, 451
S.W.3d at 47. We ask, in light of our own analysis of the sufficiency of the evidence,
whether the juvenile court acted without reference to guiding rules or principles. See
id. A juvenile court abuses its discretion when its decision to transfer is essentially
arbitrary. See id.

At the end of the transfer hearing, the juvenile judge expressed her need for
more time to review the files as she made her decision:

I’m going to do something that I — I don’t like to do. I’m going to —
I’m going to take 24 hours and I’m going to read these. . . . I’m going
to keep these files. I want to go over them and read a couple more things
in a little more detail. This is a very difficult decision to make and I
don’t want to make it lightly.
In fact, the court waited five days before reconvening the parties to deliver her
decision. Before she announced her ruling, she addressed appellant directly:

Mr. [F.], this right here (indicating) — this is what I spent my time
reviewing, and I want you to know that the decision I reached in . . .
this case was a very difficult one; and I really agonized and struggled
over this decision.
I did hear your attorney say that you did very well whenever you had a
structured environment. I heard that very clearly. What I could not get

17
 past was your criminal history and the fact that the criminal history
appeared to be escalating. It appears to be getting more serious with
time.

The juvenile court “showed its work” in the Discretionary Transfer Order, and
the waiver decision represents “a reasonably principled application of the legislative
criteria.” Moon, 451 S.W.3d at 49. The court’s decision to transfer was not
“essentially arbitrary,” nor was it make “without reference to guiding rules or
principles.” Id. at 47. We conclude the juvenile court did not abuse its discretion in
signing the Discretionary Transfer Order.

D. Conclusion

We overrule appellant’s sole issue and affirm the Discretionary Transfer
Order.

THE SUBSEQUENT CASES AND THE MANDATORY TRANSFER ORDERS

Section 54.02(m) is Texas’ codification of the “once an adult, always an adult”
doctrine of juvenile certification law. As relevant here, section 54.02(m) mandates a
juvenile court to waive jurisdiction and transfer a child to the appropriate adult court
if the child has “previously been transferred.” The question we must answer is one
of first impression: must the “previous transfer” precede only the section 54.02(m)
transfer, or must it also precede the conduct at issue in the section 54.02(m) transfer?

The answer to the question depends on the relative chronology of three events:
the child’s first delinquent act, the juvenile court’s waiver of jurisdiction and transfer
to adult court regarding the child’s first delinquent act, and the child’s second
delinquent act. Appellant contends section 54.02(m) applies only if the first transfer
precedes—is previous to—the second delinquent act. The State contends section
54.02(m) makes no such requirement, and that the first transfer need precede only
the 54.02(m) transfer, regardless of when the conduct at issue in the 54.02(m)

18
transfer occurred.

The relevant time in this case is as follows:

December 28, 2018 Appellant allegedly robbed restaurant

January 11, 2019 Appellant allegedly possessed methamphetamine

January 14, 2019 Robbery Case filed

January 14, 2019 Drug Case filed

February 21, 2019 Appellant allegedly spit on detention facility guard

February 28, 2019 Harassment Case filed

March 19, 2019 Petition for discretionary transfer filed in Robbery Case

May 6, 2019 3:05 pm Discretionary Transfer Order signed

May 6, 2019 4:30 pm Petitions for mandatory transfer filed in Subsequent Cases

May 8, 2019 Mandatory Transfer Orders signed

IV. Legal standards

A. Statutory construction
We review issues of statutory construction de novo. Silguero v. CSL Plasma,
Inc., 579 S.W.3d 53, 59 (Tex. 2019). Our primary objective in construing a statute
is to give effect to the Legislature’s intent. Id. We ascertain intent from the plain
meaning of the words used in the statute, because “[t]he plain language of a statute
is the surest guide to the Legislature’s intent.” Prairie View A&M Univ. v. Chatha,
381 S.W.3d 500, 507 (Tex. 2012). We may not “judicially amend a statute by adding
words not contained in the language of the statute.” Lippincott v. Whisenhunt, 462
S.W.3d 507, 508 (Tex. 2015) (per curiam). Rather, a court must apply the statute as
written. Id. We presume the Legislature selected statutory words, phrases, and

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expressions deliberately and purposefully, “accepting that lawmaker-authors chose
their words carefully, both in what they included and in what they excluded.”
Sommers v. Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017). We do not
consider those words and phrases in isolation; rather, “we consider the statute as a
whole, giving effect to each provision so that none is rendered meaningless or mere
surplusage.” TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).

B. “Once an adult, always an adult” laws in other states

Many states have some version of the “once an adult, always an adult”
doctrine. Most explicitly apply only to transfers regarding conduct committed by the
juvenile after the first transfer. Those statutes generally provide that once a juvenile
is transferred for adult proceedings or, in some cases, convicted as an adult, the court
must also transfer him with respect to any delinquent act he is alleged to have
committed after the first transfer (or conviction). Two events are required: the first
transfer (or conviction), and a delinquent act after that transfer (or conviction). For
example, in the District of Columbia, “[t]ransfer of a child for criminal prosecution
terminates the jurisdiction of the [Family] Division over the child with respect to
any subsequent delinquent act . . . .” D.C. Code § 16-2307(h) (boldface added).
Alabama follows that concept but enlarges the scope of conduct covered; its transfer
statute applies to both future acts and pending allegations of delinquency. Ala. Code
§ 12-15-203(i) (“A conviction . . . of a child of a criminal offense . . . shall terminate
the jurisdiction of the juvenile court over that child with respect to any future
delinquent acts and with respect to any pending allegations of delinquency which
have not been disposed of by the juvenile court . . . .”) (boldface added).4

4
Other states with statutes that limit their application to acts committed after a certain point in
time include Florida (“Once a child has been transferred for criminal prosecution pursuant to an
information and has been found to have committed the presenting offense or a lesser included
offense, the child shall be handled thereafter in every respect as if an adult for any subsequent
20
 Other transfer statutes do not mention the child’s conduct. Instead, the only
required event is the first transfer (or conviction). The Michigan statute states, “[T]he
[juvenile] court shall waive jurisdiction of the juvenile if the court finds that the
juvenile has previously been subject to the jurisdiction of the circuit court under this
section . . . .” Mich. Comp. Laws § 712A.4(5). In Indiana, the juvenile court shall
waive jurisdiction over a child upon motion by the prosecutor if, among other things,
“the child has previously been convicted of a felony or nontraffic misdemeanor.”
Ind. Code § 31-30-3-6(2).5 An Indiana appellate court construed that statute in State

violation of state law . . . .” Fla. Stat. § 985.557(2)(a)); Idaho (“[O]nce a juvenile offender has
been found to have committed the offense for which the juvenile offender was charged, indicted
or transferred pursuant to this section . . . , the juvenile offender shall thereafter be handled in every
respect as an adult. For any subsequent violation of Idaho law, the juvenile offender shall be
handled in every respect as an adult.” Idaho Code § 20-509(3)); Iowa (“Once a child sixteen years
of age or older has been waived by the juvenile court to the district court, all subsequent criminal
proceedings against the child for any delinquent act committed after the date of the waiver by the
juvenile court shall begin in district court . . . .” Iowa Code § 232.45A(2)); North Dakota (“Any
transfer operates to terminate the juvenile court’s jurisdiction over the child with respect to any
future offense . . . .” N.D. Cent. Code § 27-20-34(4)); Rhode Island (“A waiver of jurisdiction
over a child pursuant to this section shall constitute a waiver of jurisdiction over that child for the
offense upon which the motion is based as well as for all pending and subsequent offenses of
whatever nature . . . .” R.I. Gen. Laws § 14-1-7.1(c)); Utah (“When a minor has been certified to
the district court under this section, . . . the jurisdiction of the juvenile court over the minor is
terminated regarding that offense, any other offenses arising from the same criminal episode, and
any subsequent misdemeanors or felonies charged against the minor . . . .” Utah Code Ann. § 78A-
6-703(19)); and Virginia (“Conviction of a juvenile as an adult pursuant to the [certification]
provisions of this chapter shall preclude the juvenile court from taking jurisdiction of such juvenile
for subsequent offenses committed by that juvenile.” Va. Code Ann. § 16.1-271).
5
Other states with transfer statutes that do not depend on the timing of juvenile’s acts include
Maryland (“If the court has once waived its jurisdiction with respect to a child in accordance with
this section, and that child is subsequently brought before the court on another charge of
delinquency, the court may waive its jurisdiction in the subsequent proceeding after summary
review.” Md. Code Ann., Cts. & Jud. Proc., § 3-8A-06(h)); Minnesota (“[T]he court shall order a
certification in any felony case if the prosecutor shows that the child has previously been
prosecuted on a felony charge by an order of certification . . . .” Minn. Stat. § 260B.125(5));
Nevada (“Any minor who has been tried and convicted as an adult shall henceforth be treated as
an adult for all purposes in connection with any criminal offense with which said minor may be
charged.” N.H. Rev. Stat. § 169-B:27); and Wisconsin (Criminal courts have exclusive
jurisdiction over “[a] juvenile who is alleged to have violated any state criminal law if the juvenile
has been convicted of a previous violation following waiver of jurisdiction” by the juvenile court.
Wis. Stat. § 938.183(1)(b)).
21
v. C.K., 70 N.E.2d 900 (Ind. Ct. App. 2017). C.K. asserted the only conviction that
invoked the transfer statute was one was imposed before the juvenile committed the
act that led to the filing of the delinquency petition. Id. at 903. The State contended
the statute was satisfied by any conviction imposed before the motion to transfer was
filed. Id. The court of appeals agreed with the State, writing, “The plain language of
the statute does not place any limits on when the prior . . . conviction must have
occurred. [It was sufficient that] C.K.’s felony conviction was imposed before the
State filed its motion for waiver of juvenile court jurisdiction.” Id.

V. Application

Texas’ mandatory transfer statute states:

(m) Not withstanding any other provision of this section, the juvenile
court shall waive its exclusive original jurisdiction and transfer a child
to the appropriate district court or criminal court for criminal
proceedings if:

(1) the child has previously been transferred to a district court
or criminal district court for criminal proceedings under
this section, unless:

(A) the child was not indicted in the matter transferred
by the grand jury;

(B) the child was found not guilty in the matter
transferred:
(C) the matter transferred was dismissed with prejudice;
or

(D) the child was convicted in the matter transferred, the
conviction was reversed on appeal, and the appeal
is final; and

(2) the child is alleged to have violated a penal law of the
grade of felony.

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Tex. Fam. Code Ann. § 54.02(m).6

Appellant asserts, “[T]he relevant time frame for ‘previous’ is the date the
separate offense [the offense at issue in the request for mandatory transfer] is alleged
to have been committed.” He cites In re J.W.W., 507 S.W.3d 408 (Tex. App.—
Houston [1st Dist.] 2016, no pet), a case in which the first transfer happened to occur
before the delinquent acts that were the subject of the 54.02(m) motion to transfer,
though nothing in the opinion suggests section 54.02(m) requires such a chronology.
See id. at 415–16. Appellant effectively suggests section 54.02(m)(1) falls into the
first category of transfer statutes discussed above—those that explicitly require the
first transfer to precede the delinquent acts in question.

But section 54.02(m)(1) falls into the second category of transfer statutes, not
the first. It does not mention the child’s conduct. The only requirement is that child
has previously been transferred for criminal proceedings. Just as in C.K., appellant’s
position could not be correct unless we were to “judicially amend [section
54.02(m)(1)] by adding words not contained in the language of the statute.”
Lippincott, 462 S.W.3d at 508.

Appellant relies on a statement in a learned treatise on juvenile justice
regarding the Legislature’s intent for section 54.02(m)(1):

Although the statutory language [of section 54.02(m)(1)] is somewhat
unclear, the legislature’s intent is that the transfer order must have been
made by the juvenile court before the new felony was committed by the
child.

ROBERT O. DAWSON, TEXAS JUVENILE LAW 199–200 (Tex. Juvenile Justice Dep’t
ed., 9th ed. 2018). No support is offered for this assertion.

6
Appellant’s sole argument concerns the meaning of “previously been transferred.” He does not
suggest any of the four exceptions apply, nor does he dispute that the offenses at issue in the
Subsequent Cases are felonies.
23
 Binding precedent requires us to ascertain intent from the plain meaning of
the words used in the statute, because “[t]he plain language of a statute is the surest
guide to the Legislature’s intent.” Prairie View A&M, 381 S.W.3d at 507. Many
mandatory transfer statutes across the country explicitly apply only to “subsequent
delinquent acts”—acts committed after the first transfer. Section 54.02(m)(1) does
not. “The wisdom or expediency of the law is the Legislature’s prerogative, not
ours.” Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968); accord City of Laredo v.
Laredo Merchants Ass’n, 550 S.W.3d 586, 589–90 (Tex. 2018). “We are not
empowered to substitute what we believe is right or fair for what the Legislature has
written, even if the statute seems unwise or unfair.” Vandyke v. State, 538 S.W.3d
561, 569 (Tex. Crim. App. 2017).

Appellant urges us to characterize section 54.02(m) as being akin to an ex post
facto law as it was applied to him. Ex post facto laws are prohibited by the U.S. and
Texas Constitutions. U.S. Const. art. 1, § 10; Tex. Const. art. 1, § 16. An ex post
facto law is one that (1) criminalizes an act previously committed that was innocent
when done; (2) aggravates a crime, or makes it greater than it was when committed;
(3) inflicts greater punishment than the law attached to the criminal offense when
committed; or (4) deprives a person charged with a crime to any defense available
at the time the act was committed. See Peugh v. United States, 569 U.S. 530, 538
(2013); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002). Appellant
points out that the relevant point in time in an ex post facto analysis is the time the
offense was committed, because that is the time that defines the offender’s rights.

We need not decide as a general matter whether section 54.02(m) functions as
an ex post facto law, because it does not so function in this case. The offenses alleged
in the Subsequent Cases are third-degree felonies,7 and appellant was 15 years old

7
See Tex. Health & Safety Code Ann. §§ 481.102(6) (methamphetamine is controlled substance
24
when he allegedly committed each offense. As a result, the juvenile court could have
transferred appellant under section 54.02(a), the discretionary transfer statute. See
Tex. Fam. Code Ann. § 54.02(a)(2)(B) (permitting transfer for third-degree felony
if child was 15 years of age or older at time of offense). At the time of the alleged
offenses, appellant was subject to being treated as an adult charged with third-degree
felonies, so there is no ex post facto violation. The vehicle used to effect his transfer
to district court does not change that fact.

Finally, appellant contends that this construction of section 54.02(m)(1)
would lead to absurd results. First, he says, section 54.02(g) would be rendered
meaningless. Subsection (g) states:

(g) If the petition alleges multiple offenses that constitute more than
one criminal transaction, the juvenile court shall either retain or transfer
all offenses relating to a single transaction. Except as provided by
Subsection (g-1), a child is not subject to criminal prosecution at any
time for any offense arising out of a criminal transaction for which the
juvenile court retains jurisdiction.

Tex. Fam. Code Ann. § 54.02(g). Appellant argues that by waiting to seek to transfer
the Subsequent Cases, the State has wrested away the trial court’s discretion to
transfer some but not all of his cases. We disagree under the facts of this case. The
State did not file a “petition [that] alleges multiple offenses.” It filed three petitions,
each alleging one offense. Appellant does not suggest that the alleged robbery,
possession, and spitting on the guard constituted a single criminal transaction or that
those offenses should have been charged in one petition.

Second, he hypothesizes that previously untransferable juveniles would
become transferable due solely to section 54.02(m). He conjures a 13-year-old child

in Penalty Group 1); 481.115(c) (possession of one to four grams of controlled substance in Penalty
Group 1 is third-degree felony); Tex. Penal Code Ann. § 22.11(b) (harassment of public servant is
third-degree felony).
25
charged with an offense that would be a felony if committed by an adult. A child of
that age may not be transferred under the discretionary transfer statute, section
54.02(a). But, if that child is discretionarily transferred at age 15 for another offense,
appellant supposes, the State could subsequently seek mandatory transfer for the
offense he committed at age 13, and the court would have no choice but to grant the
request.

Appellant is effectively asserting the statute would be unconstitutional as
applied to the hypothetical 13-year-old juvenile. An as-applied challenge concedes
a statute is generally constitutional but claims it operates unconstitutionally as to the
challenger because of his circumstances. Johnson v. State, 562 S.W.3d 168, 175
(Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (op. on reh’g). We must evaluate
the statute as it has been applied against the challenger. See State ex rel. Lykos v.
Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). We do not entertain hypothetical
claims or consider the potential impact of the statute on anyone other than the
challenger. Lykos, 330 S.W.3d at 910. Appellant’s hypothetical situation is not
presented in this case, and therefore we do not consider it.

We overrule appellant’s sole issue and affirm each the Mandatory Transfer
Orders.

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Jewell, and Hassan.

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