A juvenile court was forced to waive its jurisdiction and transfer a juvenile to criminal district court because the juvenile system failed him. The majority has approved this transfer. I respectfully dissent.
The juvenile court found that the welfare of the community and the seriousness of the offense require waiver of its jurisdiction and transfer of the case for criminal proceedings.1 In concluding that waiver of jurisdiction was necessary, the court made the following statement at the conclusion of the hearing: "I believe burglary is listed under Title 7, Offenses against Property. So, I have to go ahead and waive the jurisdiction in this matter. There's some findings I need to make." (emphasis added). This is an incorrect statement.
Section 54.02(a) governing waiver of jurisdiction and transfer to criminal court provides that "[t]he juvenile courtmay waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings" if three conditions, one being that the child is alleged to have committed a felony, are met. See TEX.FAM.CODE ANN. § 54.02(a) (Vernon Supp. 1994). Thus, even if all three conditions are satisfied, the provision does not mandate that the juvenile court waives its jurisdiction. However, § 54.02 does mandate that the court considers the six factors enumerated in subsection (f) before deciding whether to waive jurisdiction. The court's statement, quoted above, indicates that it had already decided to waive jurisdiction, based primarily on the burglary charge, before it *Page 705 had even considered the § 54.02(f) factors. In doing so, the court acted beyond its scope of discretion.
Nevertheless, in its Order Waiving Jurisdiction, the court stated that it had considered all six factors and made the following findings:
1. There is evidence in which a grand jury may be expected to return an indictment.
2. The child is sophisticated and mature enough to understand right from wrong and the consequences of his actions.
3. The prospects of adequate protection of the public and the likelihood of rehabilitation of the child by use of procedures, services, and facilities are currently not available to the juvenile court. The child did not comply with a term in an informal probation/adjustment.
4. The alleged offense occurred at approximately 2 AM in the victim's home when the victim was at home and indicating a premeditated manner.
A. Seriousness of the offense
The offense was burglary of a habitation. InA.T.S., the court was presented with the same issue as here. The juvenile was charged with burglary of a habitation. The burglarized home was ransacked and items were thrown about or turned over. Entry was obtained by kicking and breaking a window in order to open a door.The court held that A.T.S. committed a crime of a juvenile nature with no aggression or harm directed to the person of any individual. A.T.S. v. State, 694 S.W.2d 252, 256 (Tex.App. — Fort Worth 1985).
Here, J.P.O. was also charged with burglary of a habitation. Douglas Kalmus, the owner of the house, found J.P.O. and another youth in his kitchen with appliances in their hands. When confronted, the two fled from the house. Kalmus chased after them, tackled one, and a struggle ensued. There was no evidence of forced entry or that the two youths had weapons. Compared to A.T.S., the charged offense qualifies as one of a juvenile nature. No aggression or harm was directed at an individual during the commission of the burglary; harm occurred afterwards when Kalmus attempted to detain J.P.O. and his companion as they fled from the house. The offense was not of such a serious nature as to require criminal proceedings.
B. Grand jury indictment
A person commits burglary of a habitation if, without the effective consent of the owner, he enters a habitation with intent to commit a felony or theft or enters a habitation and commits or attempts to commit a felony or theft. TEX.PENAL CODE ANN. § 30.02(a) (Vernon 1989). Kalmus testified that he confronted the two youths holding appliances in his kitchen. They were there without his permission. Kalmus identified J.P.O. as one of the two. The evidence supports the trial court's finding that a grand jury may be expected to return an indictment.C. Sophistication and maturity
J.P.O. was sixteen years old at the time of the offense and dropped out of school after the ninth grade. The psychological evaluation reported J.P.O.'s intelligence as low average with an IQ of 82-85. The psychologist found that his academic achievement was equivalent to that of a fourth to sixth grade level, and that the data implicate possible cerebral dysfunction. Academic indicators show that he has had very little benefit from his educational experiences and practical intelligence is poor. J.P.O.'s self-expression was good, indicating adequate use of language for communicating thoughts. There was no evidence of impairment in reasoning or judgment. The report further found that J.P.O. acted impulsively, exercised poor judgment, and tested low in social adjustment. Moreover, the report did not state that J.P.O. knows right from wrong or that he knew that burglarizing a home was wrong. However, Tom Hough, a juvenile probation officer, testified that J.P.O. does know right from wrong and that his actions were not the result of his failure to understand the rules of society and the consequences of violating those rules. *Page 706D. Adequate protection of public and likelihood of rehabilitation in juvenile system
The juvenile court found that the prospects of adequate protection of the public and the likelihood of rehabilitation of the child by use of procedures, services, and facilities are not available to the juvenile court. The offense occurred in April 1993. Petition to transfer for criminal proceedings was filed in July 1994, and a hearing was held in October 1994. During this fifteen to eighteen month period, J.P.O. was living in the community, apparently without juvenile court supervision. Yet, four months before his eighteenth birthday, and without provocation, why is there now a concern that the public needs to be protected from J.P.O.? After J.P.O. was arraigned, the court allowed him to be released on a $5,000 personal bond. Evidently, the court did not believe that there was a great risk of flight or that J.P.O. posed a threat or danger to the public.What was J.P.O.'s likelihood of rehabilitation through the juvenile court system? At the hearing, Hough testified that since J.P.O. would turn eighteen in four months, Juvenile Services had only four months to work with J.P.O., which he felt was insufficient time to "address any of his needs or to get him any type of treatment or help for those needs." Hough further stated, "I don't believe there is a lot we can do with him in four months."2 However, Juvenile Services had eighteen months prior to the hearing during which time they could have attempted to address his needs but failed to do so. The procedures, services, and facilities of Juvenile Services were certainly available at that time; yet, there is no evidence in the record to indicate that these resources were offered to J.P.O. for his rehabilitation.
The court also noted that J.P.O. did not comply with a term of his informal probation. Hough stated that during the time J.P.O. was on informal probation, he satisfactorily completed that probation. On two occasions, J.P.O. received treatment for his alcohol problem. Nevertheless, the court's finding was based on Hough's testimony that J.P.O. refused to voluntarily attend a drug counselling program. The decision to attend is an optional one and not a "term" of informal probation that requires compliance as would be required under formal probation. J.P.O. has never been adjudicated and placed on formal probation which would have imposed restrictive terms upon J.P.O. and provided him with the supervision that Hough believes he needs but cannot obtain through the Texas Youth Commission.
E. Premeditation
The court found that the burglary was committed in a premeditated manner because it occurred at approximately 2:00 a.m. in the victim's home when the victim was in the house. This is insufficient evidence to establish premeditation. An entry that is made without the consent of the owner and in the nighttime is presumed to have been made with the intent to commit theft. Shelby v. State, 479 S.W.2d 31, 41 (Tex.Crim.App. 1972); Guerra v. State, 657 S.W.2d 511, 513 (Tex.App. — Corpus Christi 1983, pet. ref'd). However, such a presumption does not extend to the establishment of premeditation. Hence, the fact that the two youths were present in Kalmus' home without his consent at 2:00 a.m. is insufficient to support a finding of premeditation. Additionally, the psychological report indicated that J.P.O. tended to act impulsively. He and the other youth could have been out and about and decided to take items from the house they were passing by at that time. There is no evidence that a weapon or tool was used to gain entrance into the residence.Based upon our review of the evidence, we find that there is some evidence to support the court's findings as to some of the enumerated factors. Overall, however, the finding that J.P.O. should be transferred to the criminal district court is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust, and thus, an abuse of discretion. The evidence establishes that the public would be adequately protected, and that J.P.O. could be rehabilitated by retaining him within the jurisdiction of the juvenile system. Accordingly, *Page 707 I would reverse the juvenile court's decision.
FEDERICO G. HINOJOSA, Jr. and YANEZ, JJ., join in the dissenting opinion.