Opinion filed April 15, 2021
In The
Eleventh Court of Appeals
__________
No. 11-20-00238-CV
__________
IN THE MATTER OF B.W.K., A JUVENILE
On Appeal from the Juvenile Court
Taylor County, Texas
Trial Court Cause No. 5557-J
MEMORANDUM OPINION
This is an accelerated appeal from an order in which the juvenile court waived
its jurisdiction over B.W.K., Appellant, and transferred the cause to a criminal
district court. See TEX. FAM. CODE ANN. § 54.02(j) (West 2014), § 56.01(c)(1)(A),
(h), (h-1) (West Supp. 2020). In his first two issues on appeal, Appellant asserts that
the evidence was legally and factually insufficient to support the juvenile court’s
finding that, despite the State’s use of due diligence, it was not practicable to proceed
in juvenile court before Appellant’s eighteenth birthday because the State did not
have probable cause to proceed in juvenile court at that time and because new
evidence has been found since Appellant’s eighteenth birthday. See id.
§ 54.02(j)(4)(B)(i). In his third issue, Appellant asserts that the juvenile court’s
decision was arbitrary and constituted an abuse of discretion. We affirm.
I. Factual Background
The State alleges that Appellant committed the offenses of aggravated sexual
assault of a child and indecency with a child by contact in 2013 when Appellant was
fifteen years old. See TEX. PENAL CODE ANN. §§ 22.021, 21.11 (West 2019).
Because Appellant was fifteen years old when the offenses were allegedly
committed, this proceeding was filed in juvenile court. However, because Appellant
was no longer a juvenile at the time this proceeding was filed, the State filed a
petition for discretionary transfer to a criminal district court. The State alleged in its
petition that, despite the State’s due diligence, it was not practicable to proceed in
juvenile court before Appellant’s eighteenth birthday because the State did not have
probable cause to proceed in juvenile court at that time and because new evidence
had been discovered after Appellant’s eighteenth birthday.
The juvenile court held a hearing on the State’s petition for discretionary
transfer. Testimony presented at the hearing revealed that the first allegation against
Appellant arose in 2011, when the victim, D.M., was four years old. D.M.’s mother
overheard him talking in his sleep; D.M. said in his sleep: “[Appellant], no, don’t
touch my butt, that hurts.” The second allegation occurred in 2013, when D.M. was
six years old and was undergoing a psychiatric evaluation at a behavioral health
facility in Abilene. The notes from the facility indicated that D.M. had informed his
case manager at the facility of “possible sexual abuse” by D.M.’s uncle (Appellant
is D.M.’s uncle) and that the case manager had made a “CPS report.” D.M.’s mother,
after talking to the case manager, informed the police that D.M. had made an outcry
to the psychiatrist and the case manager “in reference to [Appellant] pulling his
private parts out and grabbing [D.M.’s] hand and placing it on his penis to jack him
off.” According to the mother’s report to the police, D.M. had “outcried to [the
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doctor] that the uncle then was trying to get [D.M.] to give him oral sex but [D.M.’s]
father walked into the room interrupting them.” Although the police investigated
the 2011 and 2013 allegations, D.M. made no outcry of sexual abuse during his
forensic interviews that were conducted as a result of those allegations.
Subsequently, in 2018, D.M. wrote a letter to his mother. This letter
precipitated another report to the police. In the letter, D.M. stated that Appellant
“used to force [D.M.] to suck on his private as much as [D.M. could], so he took out
his private and made [D.M.] suck it [while] he was playing on his game and used to
push [D.M.’s] head down on it.” In his 2018 forensic interview, D.M. “gave a good
outcry of sexual abuse” against Appellant. Appellant was subsequently interviewed
by Detective John Wilson about the allegations made by D.M. Appellant admitted
during this interview that, on two or three occasions, Appellant had put D.M.’s hand
on Appellant’s penis, “masturbating him,” and that D.M. had performed oral sex on
Appellant one time when Appellant was fifteen years old.
II. Applicable Statute
After filing the case against Appellant in juvenile court, the State later moved
for transfer pursuant to Section 54.02(j) of the Family Code. Section 54.02(j) sets
out the requirements for the discretionary transfer of a person who was a juvenile at
the time of the alleged offense but has since turned eighteen prior to being
adjudicated as a juvenile. See In re N.J.A., 997 S.W.2d 554, 556–57 (Tex. 1999)
(holding that, if the person is over age eighteen and if the criteria of Section 54.02(j)
are not satisfied, the juvenile court’s only option is to dismiss the case1). To transfer
the case to a criminal district court after a person’s eighteenth birthday, the juvenile
1
We note that, after the supreme court issued its opinion in N.J.A., the legislature revised the Family
Code to add an exception that permits a juvenile court to retain jurisdiction over incomplete proceedings
after the respondent has turned eighteen if the petition or motion was filed before the respondent turned
eighteen. See FAM. § 51.0412; Moore v. State, 532 S.W.3d 400, 404 n.4 (Tex. Crim. App. 2017). That
exception does not apply here because the petition was not filed until after Appellant turned eighteen.
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court must find, by a preponderance of the evidence, that the State has satisfied the
requirements of Section 54.02(j), which provides essentially that the delay in
proceeding to adjudication occurred because of reasons outside the control of the
State. Moore v. State, 446 S.W.3d 47, 52 (Tex. App.—Houston [1st Dist.] 2014),
aff’d, 532 S.W.3d 400 (Tex. Crim. App. 2017). Section 54.02(j) provides in relevant
part that a juvenile court may waive its jurisdiction and transfer a person to a district
court for criminal proceedings if:
(1) the person is 18 years of age or older;
(2) the person was:
....
(B) 14 years of age or older and under 17 years of
age at the time the person is alleged to have committed an
aggravated controlled substance felony or a felony of the
first degree other than an offense under Section 19.02,
Penal Code; or
(C) 15 years of age or older and under 17 years of
age at the time the person is alleged to have committed a
felony of the second or third degree or a state jail felony;
(3) no adjudication concerning the alleged offense has been made
or no adjudication hearing concerning the offense has been conducted;
(4) the juvenile court finds from a preponderance of the evidence
that:
....
(B) after due diligence of the state it was not
practicable to proceed in juvenile court before the 18th
birthday of the person because:
(i) the state did not have probable
cause to proceed in juvenile court and new
evidence has been found since the 18th
birthday of the person;
. . . . and
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(5) the juvenile court determines that there is probable cause to
believe that the [person] before the court committed the offense alleged.
FAM. § 54.02(j). Here, the juvenile court made the requisite findings under
Section 54.02(j).
III. Standard of Review
In an appeal from an order in which a juvenile court waives its jurisdiction
and enters a discretionary transfer order, an appellate court applies an abuse-of-
discretion standard of review to the juvenile court’s decision to transfer. 2 In re
S.G.R., 496 S.W.3d 235, 239 (Tex. App.—Houston [1st Dist.] 2016, no pet.);
Bleys v. State, 319 S.W.3d 857, 861 (Tex. App.—San Antonio 2010, no pet.);
State v. Lopez, 196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet. ref’d); Faisst v.
State, 105 S.W.3d 8, 12 (Tex. App.—Tyler 2003, no pet.). Absent an abuse of
discretion, an appellate court will not disturb a juvenile court’s transfer and
certification order. Bleys, 319 S.W.3d at 861; Faisst, 105 S.W.3d at 12. On appeal,
the reviewing court considers the sufficiency of the evidence when addressing
whether the juvenile court abused its discretion by entering a transfer order. Bleys,
319 S.W.3d at 861; Faisst, 105 S.W.3d at 12. A trial court’s findings of fact are
reviewed by the generally applicable standards of review for legal and factual
sufficiency. Bleys, 319 S.W.3d at 861; Faisst, 105 S.W.3d at 12.
Here, Appellant challenges both the legal and factual sufficiency of the
evidence. To review the legal sufficiency of the evidence in support of a trial court’s
finding, we review the record—crediting evidence favorable to the finding and
disregarding contrary evidence unless a reasonable factfinder could not reject the
2
We note that Appellant relies upon the standard of review set forth in Moon v. State, 451 S.W.3d
28 (Tex. Crim. App. 2014). However, in Ex parte Thomas, No. WR-89,128-01, 2021 WL 1204352, at *7,
9 (Tex. Crim. App. Mar. 31, 2021), the Court of Criminal Appeals recently disavowed and overruled its
previous holding in Moon, an opinion in which the court not only required juvenile courts to enter case-
specific findings of fact under Section 54.02(f) but also set forth an appellate standard of review based on
such findings. See Moon, 451 S.W.3d at 38, 46–47. We further note that Section 54.02(f) is not applicable
to this case.
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evidence—and will uphold the finding if it is supported by more than a scintilla of
evidence. In re J.G., 495 S.W.3d 354, 370 (Tex. App.—Houston [1st Dist.] 2016,
pet. denied); see City of Keller v. Wilson, 168 S.W.3d 802, 813, 827 (Tex. 2005).
To review the factual sufficiency of the evidence in support of a trial court’s finding,
we consider and weigh all the evidence in a neutral light and will set aside the finding
only if the evidence is so weak or the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); J.G., 495 S.W.3d at 370. Because the
judge of the juvenile court acted as the factfinder during the hearing, it was the
juvenile court’s role to decide what inferences to draw from the testimony, what
weight specific testimony deserved, and which witnesses were credible. See City of
Keller, 168 S.W.3d at 819.
IV. Analysis
A. Sufficiency of the Evidence
The only finding challenged by Appellant on appeal is the finding made
pursuant to Section 54.02(j)(4)(B)(i). Appellant challenges the factual sufficiency
of the evidence in his first issue on appeal and the legal sufficiency of the evidence
in his second issue.
Section 54.02(j)(4)(B)(i) requires the State to exercise due diligence in
proceeding in juvenile court—a term that suggests the investigation must be
reasonable given the information that was gathered during the investigation. See
Collins v. State, 516 S.W.3d 504, 525 (Tex. App.—Beaumont 2017, pet. denied).
The Texas Family Code does not define due diligence as it is used in Section 54.02.
However, due diligence in this context has been defined by our sister courts as
requiring the State to “move ahead” or to “reasonably explain delays.” In re B.R.H.,
426 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding)
(quoting In re N.M.P., 969 S.W.2d 95, 100 (Tex. App.—Amarillo 1998, no pet.)).
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Diligence is usually a fact question that the trial court determines considering the
circumstances of each case. Id. Nevertheless, officials charged with investigating a
juvenile case are not required to “do everything perceivable and conceivable to avoid
delay.” In re K.T.S., No. 01-18-00778-CV, 2018 WL 6318515, at *11 (Tex. App.—
Houston [1st Dist.] Dec. 4, 2018, no pet.) (mem. op.) (quoting B.R.H., 426 S.W.3d
at 168).
Here, the evidence shows that, in 2011 and again in 2013, the police began
investigating an allegation of sexual abuse committed by Appellant against D.M. In
2011, D.M. was interviewed, but no allegation of abuse was made. When the police
attempted to follow through with the 2013 investigation, they were unable to reach
D.M.’s mother; she and her children had evidently moved away from Abilene. The
police located the family a few months later in Midland and scheduled a courtesy
forensic interview there at the Children’s Advocacy Center. However, D.M., again,
made no outcry during this forensic interview. According to the police report, the
“General Inquiry case” regarding possible sexual abuse of D.M. by Appellant was
therefore closed at that time. In light of the reasonableness of the investigation and
the reasonable explanation for the delay in moving forward with the case that had
been filed against Appellant, we hold that the evidence is legally and factually
sufficient to support the juvenile court’s finding of due diligence by the State.
Next, we must address the juvenile court’s finding that the State did not have
probable cause to proceed in juvenile court before Appellant’s eighteenth birthday
and that new evidence was discovered after Appellant’s eighteenth birthday. The
letter written by D.M., the substance of his 2018 forensic interview, and Appellant’s
admissions during his interview with Detective Wilson all constituted new evidence
that was discovered after Appellant’s eighteenth birthday.
Thus, the remaining question is whether the State had probable cause to
proceed in juvenile court prior to Appellant’s eighteenth birthday. Probable cause
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has been defined as “sufficient facts and circumstances to warrant a prudent person
to believe that the suspect had committed or was committing the offense.” N.M.P.,
969 S.W.2d at 100. The probable cause standard embraces a practical, common
sense approach. Id. Based on the detective’s testimony regarding the conduct and
diligence of the police in investigating the 2011 and 2013 allegations; the detective’s
testimony that the police did not possess enough evidence to proceed against
Appellant until 2018, well after Appellant’s eighteenth birthday; the lack of a
detailed outcry from D.M. in 2011 or 2013; and D.M.’s failure to make any outcry
during his 2014 forensic interview, we conclude that the juvenile court did not abuse
its discretion by finding that, because of the lack of probable cause, it was not
practicable to proceed with this case in juvenile court before Appellant’s eighteenth
birthday.
Because the juvenile court could have reasonably inferred that the State acted
diligently in investigating the case before Appellant turned eighteen and that, despite
the exercise of diligence, the investigation that occurred before Appellant turned
eighteen failed to develop sufficiently reliable evidence to allow the State to develop
probable cause to proceed with a case proving that Appellant had engaged in
delinquent conduct, this court may not substitute its own opinion even if this court’s
opinion might differ. See Collins, 516 S.W.3d at 524. We hold that the juvenile
court could have reasonably made the necessary inferences to justify its transfer
order based upon the evidence presented at the transfer hearing. Accordingly, we
overrule Appellant’s first and second issues.
B. Discretionary Transfer
To address Appellant’s final issue, we must determine whether the juvenile
court abused its discretion when it ultimately waived its jurisdiction and transferred
Appellant to the district court for criminal proceedings. A court abuses its discretion
if it acts without reference to guiding rules or principles. In re Nat’l Lloyds Ins. Co.,
8
507 S.W.3d 219, 226 (Tex. 2016); Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985). The record here shows that the juvenile court
considered the applicable statutory requirements of Section 54.02(j) and that, as set
forth above, the juvenile court’s findings were based on those statutory requirements
and were reasonable given the evidence that was admitted at the transfer hearing.
Accordingly, we hold that the juvenile court did not abuse its discretion when it
transferred Appellant to the district court for criminal proceedings. See Collins, 516
S.W.2d at 526. We overrule Appellant’s third issue on appeal.
V. This Court’s Ruling
We affirm the order of the juvenile court.
W. STACY TROTTER
JUSTICE
April 15, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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