No. 05-08-00467-CR
Opinion filed April 8, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-15446-XP.
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice MOSELEY.
The juvenile court waived its exclusive original jurisdiction and transferred then sixteen-year-old Jovanny Acevedo to district court to stand trial as an adult. See Tex. Fam. Code Ann. § 54.02(a) (Vernon 2008). On Acevedo's guilty plea, the trial court convicted him of the first degree felony offense of aggravated robbery, made a deadly weapon finding, and sentenced him to sixty years' confinement. In a single issue, Acevedo challenges the juvenile court's waiver of jurisdiction and order of transfer, advancing two arguments. First, Acevedo asserts the transfer proceeding "was devoid of a full investigation and lacked a full diagnostic study." See id. § 54.02(a)(3). Second, he asserts that the record reflects the juvenile system was unwilling, not unable, to rehabilitate him, and thus the juvenile court erroneously determined transfer was warranted. See id. § 54.02(f)(4). For the reasons set forth below, we affirm.
APPLICABLE LAW
A juvenile court may waive its exclusive original jurisdiction and transfer a child to a district court for criminal proceedings if, in addition to two other conditions, the juvenile court determines "after a full investigation and a hearing . . . that there is probable cause to believe that the child . . . committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings." Id. § 54.02(a)(3). "Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense." Id. § 54.02(d). In making the determination required by subsection (a), the trial court shall consider, among other matters: (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.
Id. § 54.02(f) (emphasis added). Once the requirements of section 54.02(a) are established, the State is charged with presenting some evidence of probative value on the factors to be considered by the court under section 54.02(f). In re M.D.B., 757 S.W.2d 415, 417 (Tex.App.-Houston [14th Dist.] 1988, no writ). While the juvenile court must consider all of these factors before transferring the case to district court, it is not required to find that each factor is established by the evidence. Faisst v. State, 105 S.W.3d 8, 11 (Tex.App.-Tyler 2003, no pet.). And the juvenile court is not required to give each factor equal weight so long as each is considered. Id. STANDARD OF REVIEW
The question for an appellate court reviewing a decision in a section 54.02 proceeding is whether the juvenile court abused its discretion in certifying the child to be tried as an adult for the alleged crime. In re K.B.H., 913 S.W.2d 684, 687-88 (Tex.App.-Texarkana 1995, no writ). A trial court abuses its discretion if its decision was arbitrary or unreasonable, Brown v. State, 960 S.W.2d 772, 778 (Tex.App.-Dallas 1997, pet. ref'd), or, given the record and the applicable law, the decision fell outside the zone of reasonable disagreement. See Benitez v. State, 5 S.W.3d 915, 918 (Tex.App.-Amarillo 1999, pet. ref'd). BACKGROUND
At the hearing on the State's petition for discretionary transfer, the juvenile court heard evidence that Acevedo entered Amratlal Mistry's food store, pointed a gun and yelled at Mistry and his son to give him money, and shot Mistry, seriously injuring him. A juvenile probation officer, Thomas King, evaluated Acevedo's case and testified to his history in the juvenile system and his findings. "A Social Evaluation and Investigative Report" prepared by King and a "Report of Psychological Evaluation and Diagnostic Study" prepared by a licensed staff psychologist at the doctorate level were admitted without objection. Acevedo's prior offenses were: unlawful carrying of a weapon (probation); runaway; failure to identify; and contempt. In part and as pertinent to this appeal, the juvenile court's order of discretionary transfer stated that "after considering all the testimony, diagnostic study, social evaluation, and full investigation," it found it was contrary to the interests of the public to retain jurisdiction; it found that because of the seriousness of the alleged offense and Acevedo's background, the welfare of the community required criminal proceedings; and, Acevedo "has not accepted or responded to supervision." DISCUSSION Full Investigation and Diagnostic Study
We first consider Acevedo's assertion that the transfer proceeding "was devoid of a full investigation and lacked a full diagnostic study." Acevedo describes the social and psychological evaluations as "minimal" and "conclusory" and urges that they fall short of constituting a "full investigation" as required by section 54.02. "Full investigation" is not defined in section 54.02. Turner v. State, 796 S.W.2d 492, 497 (Tex.App.-Dallas 1990, no writ). "[A]ny inquiry into the circumstances of an offense must be one of degree." In re I.B., 619 S.W.2d 584, 586 (Tex.Civ.App.-Amarillo 1981, no writ). "It is a matter of common knowledge that the course and scope of an investigation will vary according to the circumstances surrounding the events." Id. The primary function of the investigation is to discover evidence of probative force, whether for or against the child, for presentation at the hearing. Id. The issue of whether an investigation is complete is determined by the court that ordered the investigation. In re C.C., 930 S.W.2d 929, 934 (Tex.App.-Austin 1996, no writ); In re I.B., 619 S.W.2d at 586. The statutory requirement of a complete diagnostic study bears upon the maturity and sophistication of the child and relates to the questions of culpability, responsibility for conduct, and ability to waive rights intelligently and assist in the preparation of a defense. L.M. v. State, 618 S.W.2d 808, 811 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.). The paramount concern of the juvenile court is "the qualitative content of a diagnostic study, rather than a mere quantitative `check-list' of included items." Id. at 811-12. The social evaluation in the record is a five-page single-spaced document. It details the juvenile department referrals, including the current offense and statement of circumstances, prior offenses and dispositions, and prior court orders. It also describes the child: his description, attitude, school, employment, religion, hobbies and leisure time, residence, sophistication, and maturity. Finally, it includes King's recommendation that the petition for discretionary transfer be granted. The psychological evaluation is a four-page single-spaced document. It states that the instruments utilized in making the evaluation were a clinical interview, mental status exam, review of records, and thematic apperception test. It refers to a recent psychological assessment and the subsequent psychological screening conducted by other professionals. It also includes the results of an intelligence and an achievement test. It details Acevedo's answers to questions about his background, the facts supporting the behavioral observations and mental status conclusions, and testing results. Acevedo contrasts these reports to the documents considered by the juvenile court in I.L. v. State, 577 S.W.2d 375, 376 (Tex.Civ.App.-Austin 1979, writ ref'd n.r.e.): a psychiatrist's report, a social evaluation and investigation by a court investigator, monthly progress reports from a one-year stay at the Texas Youth Council, and an intelligence test. Acevedo also refers to a scholarly recommendation that a full investigation should include examinations by a psychiatrist and a clinical psychologist and an evaluation by a probation department caseworker. See id. The gist of his argument is that there is no psychiatric, and thus no medical, examination here. However, unlike in I.L., id., where the child's prior offenses included burglary, aggravated assault, and stabbing, Acevedo's prior offenses were minor, resulting in probation and juvenile detention, not juvenile commitment. The psychological evaluation states that "[t]he results of personality testing indicated no significant difficulties associated with a severe psychiatric disorder," and Acevedo did "not appear to be experiencing severe psychological distress. . . ." Under these circumstances, we cannot say that the absence of a psychiatric examination here resulted in an incomplete investigation or diagnostic study. Acevedo also argues that the investigation relied on his self-reporting. We disagree. As noted above, the psychological evaluation utilized a review of records and an intelligence and an achievement test. After reviewing the qualitative content of the social evaluation and psychological evaluation, we cannot agree with Acevedo that they were no more than a "mere quantitative `check-list' of included items." See L.M., 618 S.W.2d at 811-12. Under the facts of this case, we conclude the documents presented are sufficient to constitute the "full investigation" required by section 54.02. See In re I.B., 619 S.W.2d at 586. We reject Acevedo's first argument. System Failed
One of the factors the juvenile court must consider in determining whether transfer to the adult criminal justice system is warranted is "the prospect[] 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)(4). In his second argument Acevedo contends the record reflects the juvenile system was unwilling, not unable, to rehabilitate him, and thus the juvenile court erred in determining that transfer was warranted. Referring to that subsection, Acevedo argues the evidence does not support the juvenile court's finding that he had "not accepted or responded to supervision." Acevedo argues there was evidence that his behavior in detention had been "consistently positive" and he had spent three weeks in the honors section and was a good student, showing he was responding well to custody in the juvenile system. We understand Acevedo's argument to be that, although there is some evidence of probative force on this factor, it is factually insufficient. Even assuming Acevedo is correct, the juvenile court's findings on the other three factors alone would be sufficient to support the order of transfer, so long as the juvenile court considered each of the statutorily mandated factors. See In re C.C.G., 805 S.W.2d 10, 16 (Tex.App.-Tyler 1991, writ denied); In re Q.D., 600 S.W.2d 392, 395 (Tex.Civ.App.-Fort Worth 1980, no writ). See also Tex. Fam. Code Ann. § 54.02(f)(1)-(3). The record and the order show the juvenile court did so. Accordingly, we reject Acevedo's second argument. CONCLUSION
Having rejected Acevedo's arguments, we conclude the juvenile court did not abuse its discretion in transferring Acevedo's case to the district court for trial as an adult. See In re K.B.H., 913 S.W.2d at 687-88; Brown, 960 S.W.2d at 778; Benitez, 5 S.W.3d at 918. We resolve Acevedo's issue against him and affirm the trial court's judgment of conviction.