By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

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Evidence is sufficient to support certification for murder; adult defendant is entitled to credit on sentence for time in juvenile detention [Melendez v.State] (00-4-27).

On November 22, 2000, the San Antonio Court of Appeals held on motion for rehearing that the juvenile court did not abuse its discretion in certifying the respondent for murder committed during a gang initiation ceremony, but that the respondent was entitled to receive on his adult sentence credit for time served in juvenile detention.

¶ 00-4-27. Melendez v. State, UNPUBLISHED, No. 04-99-00502-CR, 2000 WL 1728070, 2000 Tex.App.Lexis ____ (Tex.App.--San Antonio 11/22/00)[Texas Juvenile Law ... (5th Ed. 2000)].

Facts: By this opinion, we withdraw our opinion of October 25, 2000, [Juvenile Law Newsletter 00-4-14] and substitute the following. We deny Raul Melendez's motion for
rehearing.

Appellant, Raul Melendez, was convicted of murder. Melendez, a juvenile, was certified as an adult and entered his plea of nolo contendere in criminal district court pursuant to a plea agreement. On appeal, Melendez raises two issues. First, Melendez argues the trial court erred when it certified him as an adult. Second, Melendez complains the trial court did not adequately credit him with time served in juvenile detention while he was awaiting the certification hearing and transfer to criminal court. We modify the trial court judgment to reflect the correct time served and affirm the judgment as modified.

Melendez was one of three members of the "Sangre Boys Kin" gang (SBK) who were involved in "jumping in" Jaime Garcia to their gang. "Jumping in" is an initiation process wherein a physical beating is inflicted on a new gang member. Usually a new member is only beaten once. However, one of the SBK members was not present when the first beating was inflicted on Jaime Garcia, so he was beaten a second time by Melendez and his friends. Garcia died shortly after the second beating, from injuries sustained when he was kicked in the head. Melendez was fifteen at the time of the offense and at the time the trial court certified him as an adult.

Held: Judgment modified; motion for rehearing denied.

Opinion Text: Melendez argues the trial court erred when it waived jurisdiction and transferred him to a criminal district court. Although not articulated as such, Melendez's complaint is essentially an attack on the sufficiency of the evidence supporting the decision of the juvenile court.

To determine whether the evidence is legally sufficient to support the transfer of a juvenile proceeding for criminal prosecution, we consider only evidence and inferences tending to support the finding of the trier of fact. Matter of C.C., 930 S.W.2d 929, 933 (Tex.App.--Austin 1996, no pet.). When reviewing the factual sufficiency of the trial court's decision to waive juvenile jurisdiction, we consider and weigh all the evidence in the record. Matter of C.C., 930 S.W.2d at 933. We will uphold the trial court's findings unless we find the evidence too weak to support the findings, or the findings are so against the overwhelming weight of the evidence that they are manifestly unjust. Id.; Matter of M.A., 935 S.W.2d 891, 895-96 (Tex.App.--San Antonio 1996, no
writ).

In order to properly transfer a matter to a district court, a juvenile court must find two things. First, the court must find probable cause to believe the juvenile committed the offense or offenses alleged in the transfer petition. Second, the juvenile court must find that the welfare of the community requires criminal proceedings because of the seriousness of the offense alleged or because of the background of the juvenile. Matter of C.C., 930 S.W.2d at 932; Tex.Fam.Code Ann. § 54.02(a) (Vernon 1995 & Supp.2000).

Texas Family Code § 54.02(f) (Vernon 1995 & Supp.2000) sets forth the criteria a juvenile court must consider when it makes its findings of fact transferring a case from juvenile court to a criminal district court.

In making the determination required by subsection (a) of this section, the court shall consider, among other matters:

Although the trial court must consider each of the factors listed above, it need not make an affirmative finding on all factors. Matter of M.A., 935 S.W.2d at 896. The trial court's decision to waive jurisdiction is reviewed under an abuse of discretion standard. See id. Melendez argues the juvenile court erred when it applied the legislatively prescribed criteria contained in § 54.02(f) to his case.

The trial court found the evidence presented in relation to grounds one, two, and four as set forth in Tex.Fam.Code Ann. § 54.02(f) was sufficient to warrant transfer to a criminal district court. With regard to § 54.02(f)(1), the offense was obviously committed against a person. The offense was particularly brutal, and there was testimony from Melendez's probation officer that he had seen very few acts committed that were more violent than the one committed by Melendez.

With regard to § 54.02(f)(2), there was evidence in the record from the court appointed psychiatrist indicating Melendez understood the nature of his actions and the proceedings against him. Melendez's aptitude scores placed him in the average intelligence range. Melendez also indicated an understanding of his conduct, the seriousness of the offense, and the fact he was going to have to "do some time."

With regard to § 54.02(f)(4), the court also expressed a concern that although there was a program in the Texas Youth Commission specifically designed for offenders such as Melendez, the realities of the juvenile justice system would not allow adequate time to have an appreciable effect on Melendez's future conduct. In addition, there was no clear evidence of remorse on Melendez's part.

The evidence is both factually and legally sufficient to support the trial court's decision. The brutal nature of the crime involved and the lack of remorse on Melendez's part are particularly compelling in light of factors one and four set forth in Tex.Fam.Code Ann. § 54.02(f). We overrule Melendez's first issue.

In his second issue, Melendez complains he was not given credit for time served in juvenile detention prior to his certification and transfer to the adult criminal system. The State agrees Melendez should receive credit for this time. A juvenile who is certified as an adult and subsequently prosecuted and sentenced accordingly is entitled to credit for time served in the juvenile system. See Ex Parte Green, 688 S.W.2d 555, 557 (Tex.Crim.App.1985). Melendez was placed into juvenile detention on February 18, 1998. He was certified as an adult on June 8, 1998, and he was released on bond on June 10, 1998. He received three days credit for time served. We sustain Melendez's second issue. Melendez should receive credit for 113 days served.

We hold the trial court did not abuse its discretion by certifying Melendez as an adult. The judgment is affirmed as modified to reflect the correct number of days served.

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