By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Evidence sufficient under criminal standards
to support transfer findings; lawyer alone waived 10 days to prepare for hearing
(99-4-14)
On October 4, 1999, the Dallas Court of Appeals considered the question
whether criminal or civil standards of review apply to claims of insufficiency
of evidence to support factual findings in certification proceedings. The court,
without deciding that question, applied criminal standards in this case because
of the 1995 amendments requiring that certification appeals must accompany a
criminal appeal. The court also decided that the defense attorney, without the
participation of his client, waived the 10 days provided by statute for
preparation by failing to object to proceeding with the hearing in only 8 days.
99-4-14. Green v. State, UNPUBLISHED, No. 05-97-01176-CR, 1999 WL 783734, 1999
Tex.App.Lexis ___ (Tex.App.—Dallas 10/4/99)[Texas Juvenile Law 140, 91 (4th
Edition 1996)].
Facts: A jury convicted Keldrick Green of capital murder, and the trial court
assessed the mandatory life sentence. See Tex. Penal Code Ann. § 12.31(a)
(Vernon 1994). In nine issues on appeal, appellant generally asserts: (1) the
evidence is legally and factually insufficient to support his conviction; (2)
the trial court erred in failing to instruct the jury on accomplice witness
testimony; (3) he received ineffective assistance of counsel during trial; and
(4) the juvenile court erred in certifying him to stand trial as an adult. For
the reasons set forth below, we affirm the trial court's judgment.
After the juvenile court waived jurisdiction and transferred the case to
criminal district court, appellant was tried for capital murder in a joint trial
with two other codefendants, Michael Yasin Steen and Corey Hood. Another
suspect, Renard Morrison, was also charged with capital murder, but was not
tried in this proceeding.
We need not recount all the evidence adduced at trial. However, by way of
summary, the jury heard evidence that on April 26, 1996, appellant, Hood, Steen,
and Morrison were riding in a gray Oldsmobile. They came upon a white Mustang
with gold wheel rims stopped in an alley near Main Place in Dallas. The
Oldsmobile pulled alongside the Mustang and someone in the Oldsmobile opened
fire, killing the driver of the Mustang and injuring the two other occupants.
Three people got out of the Oldsmobile and pulled the victims out of the
Mustang, and two of them drove it away. Later that night, the police found the
Oldsmobile and the Mustang about three miles from the scene of the shooting.
Both cars had been burned, and the Mustang's gold wheel rims had been removed.
David Lopez, one of the victims, testified that he was a passenger in the
Mustang on the night of the shooting. Lopez stated the shots were fired before
the occupants of the Oldsmobile got out of their car. After the shooting, two or
three men got out of the Oldsmobile and approached the Mustang. Someone shot
Lopez again at close range, but Lopez did not see the shooter. The men said they
were "going to take the trash out" so they could take the Mustang.
They pulled the victims out of the Mustang and took the car. Lopez positively
identified Steen as one of his attackers based on the tattoos on Steen's right
hand. Lopez stated that Steen did not have the gun; one of the other men, whom
he could not identify, had a gun. Lopez was unable to identify either appellant
or Hood as his attackers.
Two eyewitnesses, Guadalupe Fuentes and Juan Jamaica, testified they saw the
Oldsmobile pull beside the Mustang. The eyewitnesses confirmed that the shots
came from the occupants of the Oldsmobile. After the shooting, they saw three
people get out of the Oldsmobile and pull the victims from the Mustang.
Antwan Dickerson testified that he knew all three defendants. The day after the
shooting, Dickerson went to Steen's girlfriend's apartment. While Dickerson was
there, Steen showed him some gold wheel rims. According to Dickerson, Steen
stated that they had "hit a lick" the night before. Dickerson
explained that to "hit a lick" means "something that you come up
on to get something you want." Hood was present in Steen's girlfriend's
apartment during this conversation, but Dickerson did not see appellant there.
Steen later told Dickerson the gold rims were in Waco. Dickerson also testified
that Morrison stated he was driving the car on the night of the offense but did
not indicate whether he drove the Oldsmobile or the Mustang.
Renard Morrison testified for the State. Morrison admitted he was with
appellant, Steen, and Hood at the time of the offense. According to Morrison,
Steen was driving the gray Oldsmobile and Morrison asked for a ride. As they
approached the Mustang, Steen said, "We're going to get that car."
Morrison responded, "Y'all just kidding around, we're not going to get that
car." Steen then pulled beside the Mustang and started shooting. After the
shots were fired, appellant, Steen, and Hood got out of the Oldsmobile without
being asked and began pulling the victims out of the Mustang. Meanwhile,
Morrison climbed into the driver's seat of the Oldsmobile. As Morrison attempted
to drive away from the shooting scene, Hood jumped into the Oldsmobile. Steen
and appellant left in the Mustang. Five minutes later, Morrison saw Steen and
appellant in the parking lot of Steen's girlfriend's apartment complex.
According to Morrison, Steen, appellant, and Hood removed the gold wheel rims
from the Mustang and burned the two cars.
Steen testified on his own behalf. According to Steen, Morrison was driving the
gray Oldsmobile on the night of the offense. Morrison pulled beside the Mustang,
got out of the car, and started shooting. Morrison pulled two of the victims out
of the Mustang, and the third victim fell out. Morrison drove the Mustang away
with appellant in the passenger seat; Steen followed in the Oldsmobile with Hood
in the passenger seat. They drove to some apartments. Steen claimed he was not
present when the gold wheel rims were removed from the Mustang and the two cars
were burned. However, Morrison later brought the gold wheel rims to Steen's
apartment. Steen, along with appellant and Hood, later took the rims to Waco.
Neither appellant nor Hood testified at trial.
Held: Affirmed.
Opinion Text: In his first and second issues, appellant contends the evidence is
legally and factually insufficient to support the juvenile court's transfer
order. Before we reach the merits of these issues, however, we must address the
appellate standard of review applicable to a juvenile court's transfer order.
Appellant asserts we should apply the legal and factual sufficiency standards
applicable to civil matters generally. See In the Matter of C.C., 930 S.W.2d
929, 932- 33 (Tex.App.--Austin 1996, no writ). However, the State contends that
the appropriate standard of review is an abuse of discretion standard. The State
further argues we should not consider the legal and factual sufficiency of the
evidence as independent grounds of error, but only as relevant factors in
determining whether the trial court abused its discretion. See In the Interest
of G.J.S., 940 S.W.2d 289, 293 (Tex.App.--San Antonio 1997, no writ); In re J.J.,
916 S.W.2d 532, 535 (Tex.App.--Dallas 1995, no writ).
Prior to the 1995 legislative amendments, section 56.01(c)(1)(A) of the family
code governed the right of appeal from a juvenile court's order waiving
jurisdiction and transferring the juvenile to district court to stand trial as
an adult. See Act of May 23, 1991, 72nd Leg., R.S., ch. 680, § 1, 1991 Tex.Gen.
Laws 2466, 2466. Any appeal of the transfer order was to be taken to a court of
appeals with possible review by the Texas Supreme Court. See id. Further, the
requirements governing an appeal were "as in civil cases generally."
Tex.Fam. Code Ann. § 56.01(b) (Vernon 1996). Therefore, when reviewing the
legal and factual sufficiency of the evidence to sustain the juvenile court's
transfer order, some courts applied the legal and factual sufficiency standards
applicable to civil cases generally. See, e.g., In the Matter of C.C., 930
S.W.2d at 932-33. Others, including this Court, considered the legal and factual
sufficiency of the evidence under standards applicable to civil cases but held
that the ultimate issue was whether the trial court abused its discretion. See
In re J.J., 916 S.W.2d at 535.
In 1995, the legislature amended the family code and the code of criminal
procedure to provide that an appeal of a juvenile court order waiving
jurisdiction and transferring a juvenile for trial as an adult may be taken only
in conjunction with the appeal of a conviction of the offense for which the
juvenile was transferred to a criminal district court. See Act of May 27, 1995,
74th Leg., R.S., ch. 262, § 48, 1995 Tex.Gen. Laws 2517, 2546; Act of May 27,
1995, 74th Leg., R.S., ch. 262, § 85, 1995 Tex.Gen. Laws 2517, 2584 (current
version at Tex. Code Crim.Proc.Ann. art. 44.47(a), (b) (Vernon Supp.1999). Under
this new provision, appeal of a discretionary transfer order is a criminal
matter governed by the code of criminal procedure and the rules of appellate
procedure applicable to criminal cases. Tex. Code Crim.Proc.Ann. art. 44.47 Copr.
(Vernon Supp.1999). The change in the law applies to conduct occurring on or
after January 1, 1996. Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 106(a),
1995 Tex.Gen. Laws 2517, 2591; In the Matter of D.D., 938 S.W.2d 172, 174 (Tex.App.--Fort
Worth 1996, no pet.). Appellant committed the charged offense on April 26, 1996;
therefore, appellant's appeal of the discretionary transfer order is governed by
article 44.47.
Our research has revealed no published cases from any court addressing the
proper standard of review to be applied to a juvenile court transfer order after
this change in the law. Nor do the parties' arguments concerning the applicable
standard of review take into account these changes. After the recent legislative
amendments to the family code and the code of criminal procedure, we question
whether the civil standards of review remain applicable to juvenile court
transfer orders.
In the absence of briefing and argument, we decline to decide this legal issue.
Therefore, for purposes of this opinion, we assume, without deciding, that the
legal and factual sufficiency review applicable to criminal cases applies to our
review of the juvenile court's discretionary transfer order rather than the
abuse of discretion standard. See Tex. Code Crim.Proc.Ann. art. 44.47 Copr.
(Vernon Supp.1999). Thus, when considering appellant's legal sufficiency
arguments, we view the evidence in the light most favorable to the trial court's
findings to determine whether the trial court could have found probable cause
that a crime was committed 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)(3) (Vernon 1996); see
Jackson, 443 U.S. at 319. When we consider appellant's factual sufficiency
arguments, we determine whether the trial court's findings are so contrary to
the overwhelming weight of the evidence as to be clearly wrong and patently
unjust. See Clewis, 922 S.W.2d at 133.
The juvenile court may waive its exclusive original jurisdiction and transfer a
child to the appropriate district court or criminal district court if: (1) the
child is alleged to have violated a penal law of the grade of felony; (2) the
child was fourteen years of age or older at the time he is alleged to have
committed the offense if the offense is a capital felony and no adjudication
hearing has been conducted concerning that offense; and (3) after a full
investigation and a hearing, the juvenile court determines there is probable
cause to believe the child before the court committed the offense alleged and
because of the seriousness of the offense alleged or the background of the child
the welfare of the community requires criminal proceedings. See Tex.Fam. Code
Ann. § 54.02(a) (Vernon 1996).
In making the determination required by section 54.02(a), the trial court must
consider 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.
Tex.Fam. Code Ann. § 54.02(f) (Vernon 1996). The purpose of the hearing is not
to determine the guilt or innocence of the accused, but rather to evaluate
whether he should be tried as a juvenile or an adult. See In the Matter of D.W.L.,
828 S.W.2d 520, 524-25 (Tex.App.--Houston [14th Dist.] 1992, no writ).
We first address appellant's contention that the evidence is legally and
factually insufficient to show probable cause to believe he committed the
charged offense. Specifically, appellant asserts there is no evidence showing he
was a party to the capital murder. Appellant asserts that actions taken after
the offense do not show he was guilty as a party. We disagree.
As noted above, a person is criminally responsible for an offense committed by
another if, with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1994). Evidence
that a person is physically present at the scene and encouraged commission of
the offense either by words or other agreement is sufficient to show that the
person acted as a party to the offense. See Cordova v. State, 698 S.W.2d 107,
111 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d
352 (1986). The evidence must show that at the time of the offense, the parties
were acting together, each doing some part of the execution of the common
purpose. Id. In determining whether a person participated in an offense as a
party, we may examine events occurring before, during, and after the commission
of the offense. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986), cert.
denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). We may also
consider any actions of the accused that show an understanding and common design
to commit the offense. Id. Circumstantial evidence may be used to prove a person
is a party to an offense. Id.
At the hearing on the motion for discretionary transfer, the State presented
evidence that during the course of a robbery of a Mustang, one person was killed
and two others were injured. One of the victims was run over as the suspects
were fleeing the scene. When the Mustang was later found, it had been stripped
of its gold tire rims and stereo equipment.
Detective Randy Loboda testified that during the investigation the police
identified several individuals involved in the offense, including appellant. One
of the suspects gave a written statement implicating appellant in the offense.
Loboda also testified that appellant orally admitted he pulled some of the
victims out of the Mustang, and that appellant left the crime scene in the
Mustang. Because each of the suspects claimed someone else was the shooter,
Loboda could not state with any degree of certainty which suspect actually shot
the victims. On cross-examination, Loboda indicated there was no evidence
showing appellant was involved in planning the offense.
Probable cause exists when there are sufficient facts and circumstances to
warrant a prudent person to believe the suspect committed the offense. In the
Matter of C.C., 930 S.W.2d at 933. Viewing the above evidence in the light most
favorable to the prosecution, we conclude the above evidence is legally
sufficient to support the trial court's finding that probable cause existed to
believe appellant committed the charged offense as a party. See Jackson, 443
U.S. at 319. Additionally, after viewing all of the evidence without the prism
of "in the light most favorable to the prosecution," we conclude the
evidence is factually sufficient to support the trial court's probable cause
finding. See Clewis, 922 S.W.2d at 133.
Appellant also challenges the legal and factual sufficiency of the evidence to
support the trial court's finding that, because of the seriousness of the
offense or the background of the child, the welfare of the community requires
criminal proceedings. Relying on R.E.M. v. State, 541 S.W.2d 841, 846-47 (Tex.Civ.App.--San
Antonio 1976, writ ref'd n.r.e.), appellant asserts the seriousness of the
offense, standing alone, is an insufficient basis for transferring jurisdiction.
However, in R.E.M., the appellate court found no admissible evidence supported a
finding that the juvenile had committed the offense. Thus, the court held that
merely charging the child with a serious crime was insufficient to justify
transfer. See id; see also In the Matter of C.C.G., 805 S.W.2d 10, 14 (Tex.App.--Tyler
1991, writ denied). In contrast, our record contains evidence showing
appellant's involvement in the offense; therefore, it is distinguishable from
R.E.M. We conclude the evidence is legally and factually sufficient to support
the trial court's finding that the seriousness of the offense required transfer
to criminal district court.
Appellant also asserts the evidence is legally and factually insufficient to
support the trial court's finding that, because of his background, the welfare
of the community required criminal proceedings. Specifically, appellant asserts
the evidence "wholly fails to establish" the procedures, services, and
facilities available to the juvenile court could not protect the public and
rehabilitate appellant, which is one of the four factors the trial court is
required to consider in determining whether transfer is appropriate. See Tex.Fam.
Code Ann. § 54.02(f) (Vernon 1998); In the Matter of C.C., 930 S.W.2d at 933.
However, the juvenile court was not required to make affirmative findings on
each of the four factors. In the Matter of C.C., 930 S.W.2d at 933. Therefore,
even assuming the evidence is insufficient to support an affirmative finding on
this factor, the trial court's findings on the other three factors are
sufficient to support its decision to transfer appellant. Appellant does not
challenge the legal or factual sufficiency of the other three factors. Moreover,
the record contains evidence to support an affirmative finding on each of these
factors. The evidence shows the offense was committed against persons as opposed
to property, and that appellant had a previous referral to the juvenile
department for shooting his sister. Appellant's mother also indicated appellant
had a serious drug problem. The evidence about appellant's level of
sophistication and maturity was conflicting. Accordingly, we conclude the
evidence is legally and factually sufficient to support the juvenile court's
finding that the welfare of the community required criminal proceedings against
appellant. We overrule appellant's first and second issues.
In his third issue, appellant contends the juvenile court erred in failing to
provide his attorney ten days to prepare for the hearing as required by section
51.10(h) of the family code. Section 51.10(h) provides that any attorney
representing a child in juvenile proceedings "is entitled to [ten] days to
prepare for any adjudication or transfer hearing...." Tex.Fam. Code Ann. §
51.10(h) (Vernon 1998). Under the plain language of the statute, the attorney,
not the child, is entitled to request ten days to prepare for the hearing. See
R.X.F. v. State, 921 S.W.2d 888, 894 (Tex.App.--Waco 1996, no writ). Therefore,
an attorney may waive the ten-day preparation period without the child's
permission. Id. Here, when the juvenile court asked appellant's attorney how
long he had been on the case, he replied, "About eight days, Your
Honor." Appellant's attorney did not object to going forward, request a
continuance, or indicate he had not had adequate time to prepare. Under these
circumstances, we conclude appellant waived any complaint about not having the
full ten days to prepare for the transfer hearing. We overrule appellant's third
issue.
In his fourth issue, appellant contends the juvenile court erred in not
considering all of the factors set out in section 54.02(f) before entering its
transfer order. Specifically, appellant complains the juvenile court failed to
consider the prospects of adequate protection of the public and the likelihood
of rehabilitation of appellant by use of the procedures, services, and
facilities currently available to the juvenile court. Appellant asserts the
juvenile court's failure to address this factor in the transfer order
affirmatively shows the court did not consider it. We disagree.
The recitations in the transfer order should be sufficient to demonstrate that
the statutory requirement of "full investigation" has been met and
that the question has received the careful consideration of the juvenile court.
In the Matter of T.L.C., 948 S.W.2d 41, 43 (Tex.App.--Houston [14th Dist.] 1997,
no writ)(quoting Kent v. United States, 383 U.S. 541, 560-62, 86 S.Ct. 1045, 16
L.Ed.2d 84 (1966)). Contrary to appellant's assertion, the transfer order shows
the trial court considered this factor. In pertinent part, the transfer order
recites:
In addition, the Court found and considered that the child has not accepted or
responded to supervision. The Court finally found and considered that the public
needs protection from the Respondent and his conduct.
Although the order does not use the specific language of the statute, we
conclude it is sufficient to show that the trial court considered the prospects
of adequate protection of the public and the likelihood of appellant's
rehabilitation in a juvenile facility. We overrule appellant's fourth issue.
In his fifth issue, appellant contends we should reverse the juvenile court's
order regarding his transfer to criminal district court because the record is
incomplete through no fault of his own. See Tex.R.App.P. 34(f). Specifically,
appellant complains that the social evaluation and psychological evaluation,
introduced into evidence during the transfer hearing, do not appear in the
record. However, on January 5, 1999, the court reporter supplemented the record
with the missing exhibits. Accordingly, we overrule appellant's fifth issue
because it is moot. See Shavers v. State, 881 S.W.2d 67, 79 (Tex.App.--Dallas
1994, no pet.).