In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00235-CV
___________________________
IN THE MATTER OF C.O., A JUVENILE
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-115526-21
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
I. Introduction
On August 1, 2020, two seventeen-year-olds, M.F.-B. (Marisa) and E.T. (Ellen),
arranged via Snapchat to rendezvous in the parking lot of a Bedford pharmacy to sell
THC 1 cartridges to a stranger. The drug sale went awry when the buyer, sitting in the
back seat of Marisa’s car, pistol-whipped Marisa in the head and then shot her and
fled with some of the THC cartridges. Marisa died from her wounds. Appellant
C.O.’s DNA was found on the rear door handle of Marisa’s car and an iPhone
connected to him was found on the car’s back seat floorboard.
In its petition to transfer jurisdiction from the juvenile court to the district
court so that C.O. could be tried as an adult,2 the State alleged (1) that C.O. had
engaged in delinquent conduct by committing capital murder (intentionally shooting
and killing Marisa during the course of committing or attempting to commit a
robbery), see Tex. Penal Code Ann. § 19.03, and (2) that C.O. had engaged in
delinquent conduct by committing aggravated robbery on the same facts, see id.
§ 29.03. After a hearing, the juvenile court transferred C.O.’s case.3 See Tex. Fam.
1
THC is an abbreviation for tetrahydrocannabinol, which is the active
ingredient in marijuana. Harper v. State, 508 S.W.3d 461, 466 n.7 (Tex. App.—Fort
Worth 2015, pet. ref’d).
2
C.O. stipulated that he was sixteen at the time of the alleged offenses.
3
A juvenile court may waive its exclusive original jurisdiction and transfer a
juvenile case to the appropriate district court for criminal proceedings if certain
2
Code Ann. § 54.02 (setting out the circumstances under which a juvenile court may
waive its jurisdiction and transfer a case); see also id. § 56.01(h) (stating that an appeal
from an order that waives jurisdiction under Section 54.02 and transfers a child to
criminal court for prosecution “has precedence over all other cases”).
In two points, C.O. complains that there were defects in the State’s pleadings
and notice because the State did not plead an “on or about” date for the capital
murder and that the juvenile court’s misunderstanding of the four factors set out in
Family Code Section 54.02(f), which the juvenile court must consider to waive its
jurisdiction, caused an erroneous judgment. We affirm.
II. Due Process
In Paragraph 1 of the State’s petition, the State alleged that
Respondent has been brought within the jurisdiction of this juvenile
court in that there is probable cause to believe that Respondent has
committed a felony violation, namely Section 19.03 of the Texas Penal
Code punishable by imprisonment, namely that in the County of Tarrant
and State of Texas, did intentionally cause the death of [Marisa], by
shooting [Marisa] with a deadly weapon, to-wit: A firearm, and the said
Respondent was in the course of committing or attempting to commit
the offense of robbery[.]
Unlike Paragraph 1, Paragraph 2 of the State’s petition contained an “on or about”
date:
Respondent has been brought within the jurisdiction of this juvenile
court in that there is probable cause to believe that Respondent has
committed a felony violation, punishable by imprisonment, namely
statutory and constitutional requirements are met. Ex parte Thomas, 623 S.W.3d 370,
372 (Tex. Crim. App. 2021).
3
Section 29.03 of the Texas Penal Code when on or about the 1st day of
August, 2020, in the County of Tarrant and State of Texas, did
intentionally or knowingly, while in the course of committing theft of
property and with intent to obtain or maintain control of said property,
cause bodily injury to another, [Marisa], by shooting [Marisa] with a
firearm and/or by striking [Marisa] with a firearm, and the respondent
used or exhibited a deadly weapon, namely a firearm. [Emphasis added.]
At the beginning of the transfer hearing, the juvenile court noted “there’s no
‘on or about’ on the first paragraph.” The prosecutor and defense counsel then held a
brief off-the-record discussion. The prosecutor informed the juvenile court that “we
just did a trial supplement, both sides have signed, just adding the date before that
first paragraph.” The supplement, filed that morning with the juvenile court and
signed by the prosecutor and defense counsel, but not C.O., added an “on or about”
date of August 1, 2020. That is, it reflected the same date as the second offense
paragraph, and both offenses were based on the same facts. C.O. then stipulated to
the following facts: his legal name, his age at the time of the hearing (17 years old),
his birthdate, the alleged offense date (August 1, 2020), his age on the date of the
alleged offense (16 years old), and the name of his guardian and her address.
In his first point, C.O. complains that the capital-murder charge was
improperly before the juvenile court when the failure of the State to allege an “on or
about date” in the first paragraph constituted a fatal variance. 4 Specifically, he argues
4
In criminal law, the “on or about” language of an indictment allows the State
to prove a date other than the one alleged in the indictment as long as the date proved
is anterior to the indictment’s presentment and within the statutory limitations period.
See Tex. Code Crim. Proc. Ann. art. 21.02(6). When an indictment alleges that a
4
that the failure to include the “on or about date” prevented a determination that “the
date of the alleged offense is anterior to the presentment and filing of the Petition to
Waive Jurisdiction” and that C.O. was at least ten years old when the offense was
committed. C.O. relies on Family Code Sections 51.095 and 53.04(d)(1)6 to argue that
the State’s petition had to state “with reasonable particularity the time, place and
manner of acts alleged,” that filing the trial supplement after the case had been called
functioned to reset the trial timetable, and that there is nothing in the record to reflect
that C.O., knowing that he faced a “supplemental” capital-murder charge, was ready
to continue an already-in-progress transfer hearing. C.O. further argues that a trial
supplement alleging a capital murder must be classified as “written matter to be
considered” under Family Code Section 54.02(e) that should have been provided to
him five days before the hearing. See id. § 51.10(h) (stating that the defense attorney is
relevant event transpired on or about a particular date, the accused is put on notice to
prepare for proof that the event happened at any time within the statutory limitations
period. See Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014).
5
Section 51.09 provides that unless a contrary intent clearly appears elsewhere
in Title 3 (Juvenile Justice Code), any right granted to a child by Title 3 or by the state
or federal constitution or laws may be waived in proceedings under Title 3 if: (1) the
waiver is made by the child and the child’s attorney; (2) the child and attorney waiving
the right are informed of and understand the right and the possible consequences of
waiving it; (3) the waiver is voluntary; and (4) the waiver is made in writing or in court
proceedings that are recorded. Tex. Fam. Code Ann. § 51.09.
Section 53.04(d)(1) requires a petition for a transfer hearing to state “with
6
reasonable particularity the time, place, and manner of the acts alleged and the penal
law or standard of conduct allegedly violated by the acts.” Tex. Fam. Code Ann.
§ 53.04(d)(1).
5
entitled to ten days to prepare for any transfer hearing), § 54.02(e) (stating that five
days prior to a transfer hearing, the trial court must provide defense counsel and the
prosecutor with access to all written matter to be considered by the court).
The State responds that C.O.’s stipulation established the missing jurisdictional
fact—namely, the date of the offense—and that the State adequately amended its
petition. The State alternatively responds that C.O.’s stipulation “acted as an effective
waiver, regardless of the State’s trial supplement.”
A child in a juvenile delinquency proceeding is entitled to due process because
the proceedings may result in the child’s being deprived of liberty. In re C.H., 412
S.W.3d 67, 75 (Tex. App.—Fort Worth 2013, pet. denied). Like in other civil cases,
though, juvenile pleadings may be amended if they do not surprise or prejudice the
opposing party. State v. Santana, 444 S.W.2d 614, 622 (Tex. 1969), vacated on other
grounds, 397 U.S. 596 (1970) (remanding for reconsideration in light of In re Winship,
397 U.S. 358 (1970), in which the U.S. Supreme Court held that the juvenile
adjudication-stage burden of proof is beyond a reasonable doubt); see Carrillo v. State,
480 S.W.2d 612, 615 (Tex. 1972).
Put differently, amending a petition near the end of a proceeding may be
unfair, constituting a due process violation. See Carrillo, 480 S.W.2d at 615. In Carrillo,
a juvenile theft case, the pleading amendment occurred after trial had begun and
toward the trial’s end; the tendered amendment set out a different owner of the
property; and the juvenile’s counsel insisted that surprise and prejudice had occurred.
6
Id. The court noted that “the strict prohibition against amendment of pleadings
applicable in criminal cases is not applicable in juvenile proceedings” but concluded
that the amendment had occurred “at such a time and under such circumstances as to
be prohibited, as a matter of due process.” Id. at 615.
In contrast, in Santana, the State filed a petition alleging that the juvenile had
committed an assault with intent to rape, and then two months later, on the day of the
hearing, the State amended its petition to change the allegation to rape. 444 S.W.2d at
622. The trial court offered the juvenile a postponement if he was surprised or
needed additional time to prepare his case, but his counsel did not request a
postponement. Id. Accordingly, the supreme court held that the juvenile was not
deprived of due process, i.e., an essentially fair trial. Id.
We note initially that, here, in addition to the two offense paragraphs, the
State’s petition stated that C.O. was seventeen years old when the petition was filed in
March 2021, set out his September 2003 birthdate, and alleged that C.O. had been “15
years of age or older at the time [he] is alleged to have committed the offense(s).”
Further, both offenses listed the same victim, the same place, and the use of a firearm.
Accordingly, none of the procedural errors that C.O. complains about violated his due
process rights because the petition identified, with reasonable particularity, the timing
of the offenses for which the State sought transfer: the petition alleged that sometime
between his fifteenth and seventeenth birthday (i.e., between 2018 and 2020), C.O.
shot and killed Marisa while committing a robbery (the capital murder) in Tarrant
7
County and that he committed an aggravated robbery, while using or exhibiting a
deadly weapon (firearm), of Marisa on or about August 1, 2020, in Tarrant County.
Cf. In re T.L.K., 316 S.W.3d 701, 703 (Tex. App.—Fort Worth 2010, no pet.) (holding
petition was fatally defective for failing to state with reasonable particularity the
“place” where the alleged delinquent conduct occurred, in violation of Section 53.04).
Additionally, there is no indication in the record that C.O. was surprised or
prejudiced by the omission of the August 1, 2020 date in the capital-murder paragraph
or that he sought a continuance in response to the petition’s amendment. See Tex.
Fam. Code Ann. § 51.17(a) (stating that, apart from exceptions not applicable here,
“the Texas Rules of Civil Procedure govern proceedings under this title”); Tex. R. Civ.
P. 63 (stating that amendments filed within seven days of trial shall be filed only after
leave of the judge is obtained, and that such leave shall be granted unless there is a
showing that such filing will operate as a surprise to the opposite party), 66 (requiring
objecting party to show that the allowance of a trial amendment would prejudice him
and providing that the trial court may grant a postponement); Greenhalgh v. Serv. Lloyds
Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (“The burden of showing prejudice or
surprise rests on the party resisting the amendment.”).
To the contrary, after the juvenile court judge pointed out the omission, C.O.’s
counsel signed a “supplement” that inserted the omitted date—the same on-or-about
date as the aggravated-robbery paragraph—into the capital-murder paragraph. See
Hardin v. Hardin, 597 S.W.2d 347, 349–50 (Tex. 1980) (stating that a trial court’s ruling
8
under Rule 63 will not be disturbed without a clear showing of an abuse of
discretion); see also Carrillo, 480 S.W.2d at 615 (requiring basic fairness for a juvenile-
proceeding amendment to satisfy due process); In re R.C., No. 13-08-00334-CV, 2010
WL 411873, at *8 (Tex. App.—Corpus Christi–Edinburg Feb. 4, 2010, no pet.) (mem.
op.) (“We find no abuse of discretion here, where appellant did not even claim
surprise, declined more time to respond, and in fact reiterated to the trial court he was
ready to proceed with the trial.”). Finally, to the extent there may have been a
statutory error by the trial court, it was harmless under these circumstances, see In re
C.O.S., 988 S.W.2d 760, 767–68 (Tex. 1999),7 in light of C.O.’s stipulations to facts
that established the juvenile court’s jurisdiction, and we overrule C.O.’s first point. Cf.
T.L.K., 316 S.W.3d at 703 (fatally defective petition deprived juvenile court of
jurisdiction).
7
In C.O.S., the juvenile was adjudicated delinquent (aggravated sexual assault of
two minors), given a determinate sentence, and remanded to the custody of the Texas
Youth Commission. 988 S.W.2d at 762. The court of appeals affirmed, and on
appeal to the supreme court, C.O.S. argued that the trial court had failed to explain
under Family Code Section 54.03(b) that his juvenile court adjudication record could
be admissible in future adult criminal proceedings and that he had the right to
confront witnesses. Id. The court held that he was not required to preserve these
errors in the trial court before raising them on appeal because they were waivable-only
under Court of Criminal Appeals jurisprudence but that the errors were harmless
when there was no indication that if he had been told how the record in the case
might be used in the future, he could have avoided an adjudication of delinquency and
there was no indication that he had the opportunity to plead to a lesser offense as the
basis for adjudication. Id. at 762, 766–68.
9
III. Family Code Section 54.02(f) Factors
Section 54.02(f) sets out four factors that the juvenile court “shall consider,
among other matters” in its transfer decision, and the Court of Criminal Appeals has
recently overruled Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), under which
the juvenile court was previously required to set forth case-specific findings as to
those factors. See Thomas, 623 S.W.3d at 372.8 The factors are: (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 child’s sophistication and maturity; (3) the
child’s record and previous history; and (4) the prospects of adequate protection of
the public and the likelihood of the child’s rehabilitation through procedures, services,
and facilities currently available to the juvenile court. Tex. Fam. Code Ann. § 54.02(f).
In his second point, C.O. complains that because Section 54.02(f) is in legal
“flux” thanks to Thomas, the juvenile court’s explanation of its duties under that
subsection “was a gross misstatement of its duties under this statute.” Specifically, he
complains about the juvenile court’s opening remarks: “Now, I can put all the weight
in one factor. I can equally divide between the four factors or I can put no weight in
the four factors but simply consider them before I make my decision.”
8
In Thomas, the Court of Criminal Appeals stated that while detailed findings
are preferable and helpful on appeal, “it’s the hearing itself that prevents the transfer
process from being arbitrary; the case-specific fact-findings are not necessary to
protect a fundamental constitutional right.” 623 S.W.3d at 381. The court noted that
“[t]he statute does not mandate that any particular factor be true, state that the factors
are exclusive, or limit the purpose for which the statutory factors may be considered.”
Id. at 382.
10
A juvenile court abuses its discretion when its transfer decision is arbitrary,
given the evidence upon which it was based. In re A.K., No. 02-20-00410-CV, 2021
WL 1803774, at *18 (Tex. App.—Fort Worth May 6, 2021, pet. denied) (mem. op.).
By contrast, a transfer decision representing “a reasonably principled application of
the legislative criteria” generally will pass muster under this standard of review. Id.
The factors in Section 54.02(f) are nonexclusive factors that facilitate the juvenile
court’s balancing of the potential danger to the public posed by the juvenile offender
with his “amenability to treatment,” and any combination of these criteria may suffice
to support a waiver of jurisdiction and transfer. Id. at *19. The State has the burden
to persuade the juvenile court to transfer the case by a preponderance of the evidence.
Id. (citing In re K.W., No. 02-19-00323-CV, 2020 WL 98144, at *3 (Tex. App.—Fort
Worth Jan. 9, 2020, no pet.) (mem. op.)).9
The State responds that C.O. has failed to preserve his complaint, that he failed
to adequately brief his complaint on appeal by identifying which part—if any—of the
9
C.O. complains that in A.K., we cited to In re J.R., No. 05-20-00920-CV, 2021
WL 777090, at *10 n.5 (Tex. App.—Dallas Mar. 1, 2021, pet. denied) (mem. op.), for
the proposition that “there need not be evidence in support of every section 54.02(f)
factor[] weighing in favor of transfer[,] so long as there is sufficient overall evidence to
justify the juvenile court’s decision.” But we cited our own precedent in A.K. for that
proposition. 2021 WL 1803774, at *19 (quoting K.W., 2020 WL 98144, at *4); see also
K.W., 2020 WL 98144, at *4 (citing In re C.M.M., 503 S.W.3d 692, 701 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied), for the proposition that the court need not
find that each factor is established by the evidence). Further, although C.O. argues
that J.R. “is currently before the Texas Supreme Court,” the supreme court denied the
petition for review on October 15, 2021, the same day that C.O. filed his brief in this
court.
11
juvenile court’s statement was a misstatement of law, that the complained-of
statement was not a misstatement of law, and that, in any event, the complained-of
statement was harmless.
Contrary to C.O.’s argument that the criteria set out by the juvenile court at the
beginning of the hearing “fatally taints any decision rendered in this case,” the
evidence presented at the hearing, set out below, demonstrates that the statement was
harmless. Because we conclude that the complained-of statement was harmless, we
do not address the State’s remaining arguments. See Tex. R. App. P. 47.1.
A. Evidence
The juvenile court ordered a diagnostic study, social evaluation, and full
investigation of the child, the child’s circumstances, and the circumstances of the
alleged offenses, including a social study and psychological evaluation, before hearing
the State’s petition. The diagnostic study was admitted into evidence at the July 9,
2021 transfer hearing and included C.O.’s April 6, 2021 psychological evaluation.
Bedford Police Detective Nathan Noble, the lead investigator on the August 1, 2020
homicide, and C.O.’s juvenile probation officer, Elizabeth Huie, 10 testified at the
hearing. Huie completed C.O.’s prediagnostic report.
10
Huie did not meet C.O. in person until July 2, 2021, because he was part of
her caseload of youth on probation “who reside outside of [Tarrant] [C]ounty,” but
she had spoken with him by phone. Out-of-county juveniles were supervised by a
courtesy supervisor in another county, and Huie usually received case information
through progress reports unless an issue arose requiring direct contact with the child
and his family.
12
1. The offense
C.O.’s diagnostic study contained background information on the offenses,
including Ellen’s description of the shooter as a black male wearing a black “do-rag,”
a blue medical mask, and Nike slides, and her account of the events leading to the
shooting. According to the study, a little after 6 p.m. on August 1, 2020, 11 the shooter
arrived as a passenger in a silver vehicle. He walked up to Marisa’s car window and
asked for the THC cartridges. Marisa refused to turn them over until he paid for
them. He walked back to the silver car and then returned, got into the back seat of
Marisa’s car with a gun and a phone, demanded to see the cartridges, and stated,
“Give me the f-cking sh-t.” Marisa again refused, at which point he threatened to “f-
cking shoot” Marisa and then pistol-whipped her across her right brow before firing
one shot, which entered the back of the right side of her neck and exited the front
bottom left side of the neck before entering her arm. A photograph of Marisa’s head
injury was admitted into evidence. Marisa was later pronounced dead.
During cross-examination, Detective Noble agreed that when Ellen was first
interviewed, she stated that she did not think the buyer had intended to shoot Marisa
and that he had seemed surprised when the gun fired. Later, however, Ellen told
detectives that she believed the buyer had intended to shoot Marisa. Ellen was unable
to identify C.O. in a photo lineup.
11
Detective Noble arrived at the pharmacy at 6:32 p.m., seventeen minutes after
the shooting.
13
2. C.O.’s record and previous history
C.O. was seventeen years old at the time of his psychological evaluation. He
was born in Las Vegas and moved to Texas with his mother before he started
elementary school; his father had been incarcerated in Nevada for most of C.O.’s life.
C.O. had attended school in Fort Worth, Arlington, Euless, and Groesbeck (where his
grandparents lived), and he had numerous suspensions, including for truancy, fighting,
possession of drug paraphernalia, and breaking into a car on campus. C.O. had
received in-school suspensions five times since third grade and was sent to an
alternative school four times.
From 2014 to 2018, C.O. ran away from home and lived “off and on” with his
grandparents in Groesbeck because he did not get along with his stepfather, who he
said had used a belt to whip him until C.O. was in sixth grade. C.O. reported that his
substance abuse history began in the eighth grade and had included marijuana and
alcohol. At one point during probation, C.O. had lived with a classmate’s family until
it was discovered that his classmate was also on probation.
C.O.’s first referral in the Tarrant County Juvenile System was on December 6,
2018, for theft of property $2,500 to $30,000. C.O. had stolen a key fob from a
teacher, had gone into the school’s parking lot, and had stolen a car. C.O. also earned
a referral on December 31, 2018, because he had been seen walking through the
parking lot pushing a key fob and attempting to open doors of several cars. When he
found a car with an open door, he entered the vehicle, opened the trunk, and stole $4.
14
C.O. received deferred prosecution for these offenses and was sent to a drug and
family counseling program.
C.O. received referrals in September 2019 for two counts of credit card abuse
and burglary of a motor vehicle. C.O. had broken into a woman’s car in the
apartment complex where he lived and stole her iPhone, which he then used to make
some purchases—food from Uber Eats and headphones from Amazon—under his
own name.
C.O. received referrals in October 2019 for unauthorized use of a motor
vehicle and evading arrest with that vehicle. Officers had found a stolen vehicle that
was unoccupied but parked in an apartment complex and they conducted surveillance
on it until a male individual got into the car and left. They followed, and at one point,
the vehicle rolled through a stop sign, so they initiated a traffic stop. The car’s driver
sped up instead of stopping. A high-speed chase ensued until the stolen car turned
onto a dead-end street. At that point, the driver leapt from the still-running car,
which crashed into a tree. The driver, C.O., was apprehended as he tried to flee on
foot.
C.O. was adjudicated delinquent and received a year’s consolidated probation
for the prior four felonies and single misdemeanor. He was referred to a family
counseling program and to the probation department’s mentoring program. C.O.
“had just started [the mentoring program] when he went into [residential drug
treatment].” C.O. had completed a drug and family counseling program, as well as 30
15
hours of community service, in his first probation and 80 hours of community service
in his second probation. C.O. had also completed six weeks on an electronic monitor.
C.O. began outpatient drug treatment through the probation department in January
2019 but due to his continued drug use,12 he was placed in a residential drug-
treatment program in February 2020.
C.O. never started the family counseling program because after he was released
from residential treatment in April 2020, he “began running away from home” and
moved back and forth between his grandparents and his uncle “quite a bit.” C.O. told
his probation officer that his mother had kicked him out of their Euless apartment in
May 2020 and that he had begun living with his grandparents in Groesbeck again,
while his mother reported that he had run away.
In May 2020, C.O. was found in a stolen vehicle while he was still on
probation, and later that month, he was officially reported as a runaway and a
directive to apprehend him (a juvenile warrant) was issued. On June 23, 2020, C.O.
contacted his mother and asked her to pick him up at a truck stop. His mother did so
and turned him in on the juvenile warrant. On the day of the murder, August 1, 2020,
C.O. was around a month shy of turning seventeen and was supposed to be living
with his grandparents.
During probation, C.O. took ten drug tests between July 19, 2019 and
12
February 24, 2021, and he tested positive for marijuana on all but two of his tests.
16
3. C.O.’s sophistication and maturity
The police found four phones in Marisa’s vehicle. Two of the phones
belonged to Marisa, and one of the phones belonged to Ellen. The remaining phone,
a white iPhone, was found on the back-seat floorboard on the driver’s side of the
vehicle. Police extracted the iPhone’s SIM card and traced its phone number and
purchase information to a T-Mobile store where it had been activated the day before
the shooting.13 The shooter’s phone was registered to C.O.’s grandmother’s
company, and C.O.’s mother had purchased the phone. Video footage from the T-
Mobile store from the July 31, 2020 purchase showed C.O., his mother, and his uncle.
When the group exited, C.O. appeared to be holding the newly purchased white
Apple iPhone; he was wearing Nike slides, identified by Ellen as the shooter’s
footwear. The iPhone’s GPS tracker showed that it was near C.O.’s uncle’s residence
until 5:50 p.m. on August 1, 2020, when it began traveling north until it reached the
Bedford pharmacy at 6:10 p.m.
The iPhone’s contents could not be downloaded because “[i]t appeared to be
remotely wiped or in some sort of start-up sequence wiped to a factory reset.”14
However, one of Marisa’s phones revealed a Snapchat conversation between Marisa
13
Pursuant to a warrant, T-Mobile provided Detective Noble with security
video of the purchase, the transaction receipts, the service agreement, and a copy of
C.O.’s mother’s driver’s license.
14
Detective Noble testified that he believed C.O. had taken steps to remotely
wipe the phone.
17
and an individual with the username “lilbittywhore” and display name “Yari” that
took place before the shooting. “Yari” is a shortened version of C.O.’s middle name.
A search of the Snapchat account for “lilbittywhore” led to a photo of C.O.15
Detective Noble used the Snapchat conversation and pharmacy surveillance video to
build a timeline of events.
Detective Noble said that Marisa had gone into the pharmacy to use the
restroom before the transaction and that she had messaged, “nah you gotta hop in
mines,” indicating in which vehicle the transaction would occur, and that she
messaged “walking out” at 6:13 p.m. C.O.’s DNA was found on the exterior door
handle of the driver’s-side rear door of Marisa’s vehicle.
Detective Noble spoke with C.O. and his mother. They both told him that
C.O. had lost his phone on August 1 and that they had contacted T-Mobile and
Assurance, a third-party insurance company, about the loss at around 6:30 p.m. that
day. C.O.’s mother told Detective Noble that they had tried to find the phone but
that the phone had appeared to be locked—i.e., not searchable by “Find My
Phone”—so they had the phone cancelled instead. C.O. said that some friends had
picked him up at 6 p.m. that day at his uncle’s apartment in Arlington, that they went
to a nearby McDonald’s in east Arlington, that he went inside the restaurant and
ordered food, and that they then returned him to his uncle’s apartment. After they
The Snapchat profile picture of “lilbittywhore” is a cartoon avatar of a black
15
male with dollar signs over his eyes, with the display name “Yari,” and a Virgo
symbol, indicating a September birthdate. C.O. was born in September.
18
dropped him off, he realized his phone was missing, and he borrowed his cousin’s
phone to contact his friends to get them to return so he could retrieve his phone.
They returned, but they were unable to find the phone in the car.
Detective Noble said that C.O. provided no identifying information other than
first names for his alibi friends, with whom C.O. connected on social media, and that
C.O. had refused to provide social-media information. Detective Noble obtained
August 1, 2020 surveillance video of the inside counter and drive-thru window from
the alibi McDonald’s and watched the recording made from 5 p.m. to 8 p.m. that day
but did not see C.O. Detective Noble obtained the contact information for C.O.’s
uncle from C.O.’s probation officer after C.O.’s mother refused to provide that
information; C.O.’s uncle was unwilling to cooperate with the investigation.
On December 24, 2020, Grand Prairie Detective Montanya contacted
Detective Noble to let him know that C.O. was in a stolen vehicle. He was initially
arrested but then quickly released. The car had been full of individuals of similar age,
and Detective Montanya had released C.O. because she did not believe that he was
the vehicle’s driver. She gave Detective Noble information about C.O.’s new
Instagram profile and told him that she recognized some members of the Bankroll
gang in photos on the profile. A photograph of C.O.’s Instagram profile was
admitted into evidence. The profile name was “playyboiikenn,” and under an image
of the Playboy bunny logo and “$KEN$,” it listed tag lines, “Search for greater” and
“Stay dangerous.”
19
Huie stated that C.O. seemed to understand the allegations against him and
that he could control his emotions when they spoke. She noted in the report that
C.O.’s overall intellectual abilities fell “in the average range,” he had no learning
disorders, and he had no mental disease or defect that would substantially impair his
capacity to understand the allegations against him, to understand the juvenile court
proceedings, or to assist in his own defense.
4. Prospects for the public’s protection and child’s rehabilitation
Detective Noble said that C.O. was arrested for the August 1, 2020 shooting at
his grandparents’ home in Groesbeck on February 10, 2021.16 When C.O. was
arrested, there was a strong smell of marijuana in his room.
C.O. had a phone on him when he was arrested, and Detective Noble procured
a search warrant for it and used the information from that phone to identify C.O.’s
Instagram profile. Detective Noble also saw text-message conversations between
C.O. and his mother that were admitted into evidence and demonstrated how C.O.
failed to comply with his probation’s conditions.
In a September 4, 2020 text-message exchange, C.O.’s Mother stated, “Ok we
at the dispensary.” C.O. asked her, “See if they have purple punch . . . or runtz . . .
[o]r cookies.” His mother replied, “Gotta buy cookies on la . . . . The ones here
fake.” When C.O. asked which dispensary, his mother replied, “Jardin,” and then
At the time of his arrest, C.O. was over six feet tall and weighed over 230
16
pounds; by July 2021, he had dropped 60 pounds.
20
added, “Eighth is $55,” and “Purple punch.” C.O. responded, “Ok I need tht.” His
mother stated, “Ok,” and then added, “Have my money ready,” and “Runtz are in
Cali she said.” Detective Noble said that this conversation was about C.O.’s mother’s
buying drugs for C.O.
A week after the above text-message exchange, in a September 11, 2020 virtual
meeting between C.O.’s then-probation officer Cynthia Gonzales, C.O., and his
mother, C.O. denied any substance use, and his mother reported that she thought he
was staying drug-free and that she had not identified any suspicious behavior. Huie
opined that neither of the statements were consistent with the text messages that
indicated that C.O.’s mother had gone to a dispensary to buy THC for him.
C.O.’s mother was not on the September 16, 2020 virtual probation meeting.
In a text earlier that day, C.O.’s mother told him, “I’m not gonna be on the call today.
Don’t answer any questions” and directed him to “[o]nly talk about school or your
trip.” C.O. did not give his address during the meeting and stated that they were
staying at a hotel and that he did not know for how long. Huie stated that the
probation department required probationers to give their addresses, even temporary
addresses.
C.O. reported having suicidal thoughts while in juvenile detention but denied
planning to harm himself. He also acknowledged having thoughts of harming others,
stating, “Sometimes—I think—I feel like beating people up.” He indicated that he
had no “dreams” about what he would like his life to be and told his psychological
21
examiner that he had no clue about what he might want to do someday as far as work
or a profession. The psychological examiner stated, “[C.O.] has no cognitive,
developmental, or mental health problems which would raise concerns about him
being adjudicated as an adult,” and noted that apart from C.O.’s age at the time of the
alleged offenses, there was “little to suggest [C.O.] would benefit from remaining in
the juvenile system or would be too immature to handle adult court.” C.O.’s last
completed grade was ninth grade.
C.O. was detained on February 10, 2021, on the aggravated-robbery and
capital-murder charges. He was sent to the Tarrant County Jail on February 17, 2021,
because of the winter storm, and returned to juvenile detention on February 22. He
was returned to the Tarrant County Jail on March 9 “because there was a drop in his
supervision level in detention.”
Between April 5 and June 1, 2021, C.O. incurred several infractions. In the
first infraction, on April 7, C.O. threatened a detention officer by telling the detention
officer that he was going to “[f]ind his whole family and kill them” and that he was
going to “butt-f-ck his kids first and then kill them.” The next infraction occurred on
April 9, when C.O. tried to fight one of his peers. On April 11, a verbal altercation
occurred after C.O. failed to follow instructions, and on April 14, C.O. was confined
for major contraband (he had hidden a pen in the bathroom).
On May 28, when C.O. had just returned to the classroom after being confined,
he refused to obey and tried to intimidate juvenile detention staff after he was
22
assigned to a different section. When they began giving him “physical prompts” to
get him to walk where he needed to go, he became aggressive, “throwing his elbows
toward the staff,” which led to his physical restraint, first against the wall and then
against the floor. The encounter was described as follows:
And as they were securing his arm, he continued being combative and
made multiple attempts to break free of the restraints.
At that point, they were trying to put handcuffs on him and they
were finally able to secure him and assisted him to his feet. And at that
point, [C.O.] began spitting on them and made multiple threats to attack
them and he was saying, “I’ll find out where y’all live.” He was then
escorted to his room without further incident.
As a result of his infractions, he was transferred back to the Tarrant County Jail.
Huie opined that based on her review of C.O.’s records, he appeared to have
become more aggressive and violent. C.O. had received several services through the
probation department but was unable to start new ones because he would turn
eighteen before he could complete them. She noted that C.O. had successfully
completed some of the services but “that was some time ago.” He did not
successfully complete the most recent services he had been offered.
Huie noted that C.O.’s psychological evaluation stated that C.O. was “unlikely
to benefit from treatment opportunities should he remain in the juvenile system,” and
that he “does not appear particularly immature or unsophisticated for his age,” and
that “he does not have a significant history of aggressive behavior prior to the alleged
offenses.” However, she agreed that the report was generated before C.O. made his
23
threats of violence against the detention center staff. C.O. had a total of ten referrals
to the juvenile department and, of those, five were felonies.
While in the Tarrant County Jail, C.O. had been put on Prozac, and Huie
agreed that Prozac’s side effects could sometimes cause aggression and violence. He
had been on another medication until February, “when his mother wanted him to
stop taking it because she felt it was agitating him and causing a lot of aggressive
behavior.”
5. Arguments and order
At the conclusion of the transfer hearing, the State argued that there was
sufficient cause to transfer C.O. to the district court because
• the alleged offenses were offenses against the person;
• C.O. had been one month and ten days shy of turning seventeen years old at the
time of the offense and thus had the sophistication and maturity to be tried as an
adult;
• C.O. had no cognitive, developmental, or mental health problems that would raise
concerns about his being adjudicated as an adult;
• C.O.’s actions after the offenses—remotely wiping his phone and trying to create
an alibi—and his previous felony-offense history made trying him as an adult
appropriate; and
24
• C.O.’s prospects for rehabilitation—if he remained in the juvenile system for
another year and two months—were low based on his receipt of previous services,
his aggressive and violent interactions with juvenile staff, his needs, and the
offenses being alleged.
C.O. responded by arguing that he had lacked a father figure because of his
father’s incarceration, he had had an abusive stepfather leading to post-traumatic
stress disorder (PTSD), 17 it was mere speculation that C.O. had tried to remotely wipe
his iPhone, there was sufficient evidence to show C.O. was not guilty of the offenses,
and his aggressive behavior could be attributed to Prozac.
At the hearing’s conclusion, the juvenile court granted the State’s petition. The
court explained that “the reason I’m transferring . . . this case to the adult criminal
courts[] is because of [C.O.’s] extensive felony history” and because C.O.’s juvenile
court rehabilitation efforts had “obviously failed as [his] behavior seems to have
escalated to the point now that resulted in the death of an individual.” The juvenile
court noted, “I think you’re making adult decisions and that you need adult
consequences through the adult system.” The juvenile court set C.O.’s bond at $5
million based on the threats C.O. had made to detention officers.
17
C.O.’s mother, in her July 2021 parental written statement, asserted that C.O.
had been diagnosed with PTSD in 2019. In contrast, the psychological examiner’s
April 2021 evaluation stated that C.O. “does not appear to fit the criteria for diagnosis
of . . . PTSD[] at this time.”
25
In the transfer order, the juvenile court found that the petition and notice
requirements of Family Code Sections 53.04 through 53.07 had been satisfied; that
there was probable cause to believe that C.O. had committed the capital-murder and
aggravated-robbery offenses alleged in the State’s petition; that the offenses were
against the person of another (Marisa); that C.O. was of sufficient sophistication and
maturity to be tried as an adult; and that the likelihood of reasonable rehabilitation of
C.O. by the use of procedures, services, and facilities available to the juvenile court
was low and contrary to the best interests of the public for the juvenile court to retain
jurisdiction. See Tex. Fam. Code Ann. § 54.02(a), (b), (f)(1)–(2), (4). The juvenile
court found that because of the alleged offenses’ seriousness and C.O.’s background,
the community’s welfare required criminal proceedings. See id. § 54.02(a), (f)(3). The
juvenile court stated that in making its determination, it had considered, among other
things, the four statutory factors. See id. § 54.02(f)(1)–(4). The juvenile court stated
that it based its findings on evidence presented by the State in support of its petition,
as detailed in the contents of the prediagnostic study and evidence admitted through
its witnesses, including the testimony of Huie and Detective Noble “regarding [C.O.’s]
actions and conduct in the commission of the acts alleged in . . . [the State’s p]etition,
on the heinous nature of these actions and conduct, and the manner in which they
were allegedly committed by [C.O.].”
In the order, the juvenile court noted that C.O.’s prior referrals to Tarrant
County Juvenile Services included the offenses of evading arrest with a vehicle,
26
unauthorized use of a motor vehicle, two burglary-of-a-motor-vehicle offenses, violation
of a court order, two credit-card-abuse offenses, and theft of property $2,500 to $30,000,
for which he was adjudicated delinquent or placed in deferred prosecution programs.
B. Analysis
Having reviewed all of the evidence, we conclude that it shows that the alleged
offense was against a person (Marisa); that C.O. could appreciate the nature and effect
of his actions and could assist in his defense; that C.O. had an increasingly dangerous
criminal record; and that C.O.’s rehabilitation by using juvenile court procedures,
services, and facilities was unlikely in light of unsuccessful previous efforts. See id.
Accordingly, the juvenile court did not abuse its discretion by transferring C.O.’s case
because the record shows that the juvenile court acted with reference to the applicable
guiding rules and principles in reaching its decision. Assuming, without deciding, that
the juvenile court erred during its initial remarks at the hearing, the record reflects that the
juvenile court considered the four statutory factors and that sufficient evidence supports
the juvenile court’s transfer decision. Accordingly, we overrule C.O.’s second point.
IV. Conclusion
Having overruled both of C.O.’s points, we affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: December 16, 2021
27