Concurring Opinion issued February 20, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01014-CR
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EX PARTE CAMERON MICHAEL MOON
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1467534A
CONCURRING OPINION
I join the panel opinion and judgment because I agree that, under the law as it
now stands, this intermediate court of appeals must conclude that Moon’s due-
process challenge is not cognizable by pretrial habeas review. I write separately to
address the need for the Court of Criminal Appeals to provide further instruction
regarding the framework for analyzing pretrial cognizability questions, especially
when, as here, the question implicates a deprivation of significant liberty interests.
In 2008, at age 16, Moon was arrested and charged with murder. Five months
later, the juvenile court waived its jurisdiction over Moon and certified him as an
adult. His case was transferred to criminal district court where he was tried as an
adult, convicted, and assessed a 30-year prison sentence. After serving seven years
of his sentence, the Court of Criminal Appeals affirmed the decision of this Court
that the juvenile court had abused its discretion in waiving its jurisdiction because
Moon was not provided protective rights afforded juveniles by Texas Family Code
subsections 54.02(a), (d), and (f).1 See Moon v. State, 410 S.W.3d 366 (Tex. App.—
Houston [1st Dist.] 2013), aff’d, 451 S.W.3d 28 (Tex. Crim App. 2014). The
judgment of the criminal district court was vacated, and Moon’s case dismissed.
1
Section 54.02(d) requires that “[p]rior to the [transfer] hearing, the juvenile court
shall order and obtain a complete diagnostic study, social evaluation, and full
investigation of the child, his circumstances, and the circumstances of the alleged
offense.” TEX. FAM. CODE § 54.02(d). The State failed to obtain any such study or
evaluation in his first certification hearing. Subsection (f) requires that “[i]n making
the [transfer] decision the court shall consider, among other matters: (1) whether the
alleged offense was against person or property; (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). The Court of Criminal Appeals held that Moon had been
wrongly certified based on three of the four 54.02(f) factors. See Moon v. State, 451
S.W.3d 28, 50–51 (Tex. Crim. App. 2014).
2
In 2015, the juvenile court, for the second time, waived jurisdiction over
Moon, this time pursuant to Family Code section 54.02(j), which applies only to
those who are 18 or older at the time of certification. The certification requirements
of 54.02(j) are significantly different, and less onerous for the State, than those under
subsections 54.02(a) and (f). Under 54.02(j) there is no diagnostic study, and no
inquiry into the sophistication and maturity of the child, all of which are relevant to
whether the welfare of the community requires criminal proceedings. Thus, the State
subjected Moon to a different, and lower, certification standard on remand than the
one to which he was originally entitled in 2008. After his second certification, Moon
was again indicted and now faces a second criminal trial for his offense. Moon filed
an application for a pretrial writ of habeas corpus that was denied by the criminal
district court.2 He has now appealed to this Court, contending among other things,
that his second certification under 54.02(j) is an unconstitutional deprivation of his
right to due process because he was deprived of the juvenile protections that he was
entitled pursuant to 54.02(a), (d), and (f) in his initial certification determination.
In our panel opinion, following current legal precedent, we address
cognizability by construing Moon’s due-process complaints as a facial challenge to
section 53.02(j). His complaints could also be considered an as-applied challenge,
2
On June 24, 2018, the criminal district court denied Moon’s pretrial habeas
application and adopted the State’s proposed findings of fact and conclusions of
law.
3
but as-applied challenges are generally not cognizable by pretrial habeas review. As
a result, Moon will be forced to wait until he is potentially convicted and incarcerated
for a second time before he can challenge the deprivation of his juvenile protections.
This result contradicts the protective intent of our juvenile system.
Nevertheless, the Court of Criminal Appeals suggested in Moon’s prior appeal
from this court, Moon v. State, 451 S.W.3d 28 (Tex. Crim App. 2014), that the case
properly “remained pending in the juvenile court” because section 54.02(j) was a
“legislatively provided alternative” for certifying Moon to stand trial as an adult. Id.
at 52 n.90. And Moon’s particular circumstances leave him without a more
immediate remedy. His second transfer order was entered after January 1, 1996, but
before September 1, 2015; therefore, Code of Criminal Procedure article 44.47
applies,3 requiring his transfer decision to be reviewed only in conjunction with the
appeal of a conviction for the offense for which he was transferred.4 Despite these
unique circumstances, the Court of Criminal Appeal’s lack of clarity in Ex parte
Perry, 483 S.W.3d 884 (Tex. Crim App. 2016), and its failure to articulate a clear
3
See Acts 1995, 74th Leg., ch. 262, § 48, p. 2546, § 85, p. 2584, eff. Jan 1, 1996
(codifying Code of Criminal Procedure article 44.47, permitting appeal of transfer
order only in conjunction with appeal of conviction), repealed by Act of May 12,
2015, 84th Leg., R.S., ch. 74, §§ 3–4, sec. 56.01(c)(1)(A), 2015 Tex. Sess. Law
Serv. 1065, 1065.
4
Moon was certified as an adult for the second time by order dated May 7. 2015.
Had he been certified after September 1, 2015, he would have had an interlocutory
right to appeal his transfer order.
4
analytical framework for determining under what circumstances a constitutional
challenge is cognizable pursuant to pretrial writ of habeas corpus leave this
intermediate appellate court without any clear path forward to address the question
of whether Moon’s certification under section 54.02(j) satisfies the constitutional
due-process protections. For these reasons, I join the panel opinion and judgment.
But, as we acknowledge in our panel opinion, a juvenile’s right to remain in
the juvenile system is a significant right and implicates the juvenile’s liberty
interests. The United States Supreme Court in Kent v. United States, 383 U.S. 541
(1966), stated, “It is clear[ly] beyond dispute that the waiver of jurisdiction is a
‘critically important’ action determining vitally important statutory rights of the
juvenile.” Id. at 556. The Supreme Court characterized the “decision as to waiver of
jurisdiction and transfer of the matter to the District Court [as] potentially important
to petitioner as the difference between five years imprisonment and a death
sentence.” Id. at 557. Likewise, in Hidalgo v. State, the Court of Criminal Appeals
recognized that transfer to criminal district court for adult prosecution is “the single
most serious act the juvenile court can perform . . . because once waiver of
jurisdiction occurs, the child loses all protective and rehabilitative possibilities
available.” 983 S.W.2d 746, 755 (Tex. Crim App. 1999).
Here, Moon’s deprivation of the protective rights intended to be afforded
juveniles prior to being transferred into the adult system, appears to be the type of
5
deprivation identified by Judge Alcala in her concurring opinion in Ex parte Perry,
as warranting a pretrial challenge. 483 S.W.3d 884, 918–22 (Tex. Crim App. 2016)
(Alcala, J., concurring).5 As suggested by Judge Alcala in promoting the
establishment of a pretrial cognizability standard, courts
must conduct an objective legal inquiry into whether pretrial review is
necessary in order to protect “the applicants substantive rights,” or,
stated differently whether “the nature of the constitutional right at issue
entitles [the defendant] to raise [his] claims by pretrial habeas corpus.”
By indicating that it is the nature of the constitutional right at stake that
drives the pretrial cognizability inquiry, this principle-based approach
adheres to the underlying purpose of the writ of habeas corpus.
Id. at 918–19 (citing Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002)).
Moon’s right as a juvenile to be provided the protections afforded by subsections
54.02(a), (d), and (f) before being transferred to the criminal district court and
potentially incarcerated are substantive rights that he has not been provided, nor can
he be provided.6 His substantive rights to the protections afforded by the juvenile
5
In Ex parte Perry, Governor Perry’s claim that the “abuse of official capacity
statute” violated the Texas separation of powers clause as it applied to him because
it infringed on his veto power was held cognizable in pretrial habeas. 483 S.W.3d
884, 895 (Tex. Crim. App. 2016). Previously, only constitutional challenges to bail
and double jeopardy had been recognized as exceptions to the general rule that a
defendant cannot litigate as-applied constitutional challenges before trial. Id. at
895–96.
6
It would have been illogical for the juvenile court at Moon’s second certification
hearing, after he has already been certified, convicted, and served time in prison, to
consider “the likelihood of the rehabilitation of the child by use of procedures,
services, and facilities currently available in the juvenile court,” as required by
54.02(f), when Moon was not provided with these rights at his initial transfer
hearing. Once his initial waiver of jurisdiction occurred, Moon effectively lost “all
6
system are effectively undermined if he is not allowed the right to vindicate them by
appeal prior to his transfer from the juvenile to the criminal system.
Through no fault of his own, Moon has been deprived of the protective rights
afforded juveniles by subsections 54.02(a), (d), and (f) prior to being certified to
stand trial as an adult and transferred to the criminal district court. The facts will not
change. However, without clarity from the Court of Criminal Appeals as to the
circumstances under which a pretrial as-applied constitutional challenge of this
nature may be considered, this Court cannot consider that aspect of his pretrial
habeas action.
protective and rehabilitative possibilities available to the juvenile court.” Hidalgo v.
State, 983 S.W.2d 746, 755 (Tex. Crim App. 1999).
7
I concur that Moon’s challenge to the constitutionality of section 54.02(j) as
applied to him is not cognizable. However, I write separately to address the lack of
clarity in the law that would allow this Court to more completely analyze whether
Moon’s as-applied challenge under the unique facts of this case could properly be a
cognizable pretrial habeas claim.
Richard Hightower
Justice
Panel consists of Justices Lloyd, Goodman, and Hightower.
Justice Goodman, concurring.
Justice Hightower, concurring.
Publish. TEX. R. APP. P. 47.2(b).
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