Opinion
No. 02-18-00411-CV
05-30-2019
IN THE MATTER OF E.O.
On Appeal from the County Court at Law Cooke County, Texas
Trial Court No. JV838-18 Before Sudderth, C.J.; Gabriel and Kerr, JJ.
MEMORANDUM OPINION
This is an appeal from the juvenile court's order transferring appellant E.O. (Evan) to an appropriate criminal court to be tried as an adult. In a single issue, Evan argues the juvenile court's decision to transfer him was an abuse of discretion. We disagree and thus affirm.
Throughout this opinion, we use aliases to refer to minors and their family members. See Tex. R. App. P. 9.8(c)(2).
I. BACKGROUND
The evidence presented at the November 27, 2018 transfer hearing consisted of the testimony of several witnesses as well as several documentary and media exhibits. The evidence developed during the hearing revealed the following.
A. FACTUAL BACKGROUND
At approximately 6:30 a.m. on February 6, 2018, Joseph reported to the Cooke County Sheriff's Department that his five-year-old daughter, Madison, was missing from her home. She had last been seen the previous evening asleep in her bed. The Sheriff's Department began an investigation and conducted an exhaustive search for Madison but was unable to locate her. Sheriff's Department investigators sought assistance from the Texas Rangers, and Rangers James Holland and Jeremy Wallace responded to the scene.
Meanwhile, at approximately 10:15 a.m., several investigators from the Texas Department of Family and Protective Services (DFPS) arrived on scene, which by that time was filled with personnel from the Sheriff's Department, some of whom were interviewing the several individuals who occupied Madison's home. One of the DFPS investigators, Jason Foutch, was asked to assist the Sheriff's Department with those interviews but was prevented from doing so because the scene was still being processed. At approximately 12:00 p.m., after the Sheriff's Department had finished processing the scene, Foutch and the other DFPS investigators entered the home and began interviewing the residents inside, one of whom was Evan. Those interviews eventually led DFPS investigators to conduct their own search for Madison. Evan was involved in that additional search, and at his direction, the search team found Madison underneath a trailer that was two lots to the north of the one where she lived.
Foutch stated that it had been cold the day Madison was found, stating that the temperature "was in the twenties." When the search party discovered Madison, she was facedown under the trailer, was wearing a pink nightgown, was wet, and was in shock. There was also a plastic garbage bag wrapped around her. Foutch stated that when members of the search party got Madison out from underneath the trailer, he did not know whether she was alive or dead. Other individuals involved in the investigation noticed that Madison had a "chemical smell" such as bleach or some other solvent emanating from her person.
Madison underwent an evaluation by a sexual assault nurse examiner (SANE), who testified at the hearing by affidavit. The SANE averred that Madison's evaluation revealed that she had suffered acute hymenal tearing and vaginal tearing, and that those areas were actively bleeding at the time of the exam. The SANE further said that she had observed evidence of hemorrhage in Madison's eyes, bruising at various locations on her body, and red linear marks on Madison's neck. The SANE concluded that Madison had been sexually abused and had suffered serious bodily injury as a result of a sexual assault.
Also testifying by affidavit was a pediatric neurologist who treated Madison in the weeks after the assault. The neurologist averred that in the course of treating Madison, he determined that she had suffered significant neurological injuries as a result of a severe beating of both sides of her head and strangulation. The neurologist stated that Madison suffered seizures throughout her stay in the hospital and that her motor and cognitive abilities were severely impaired because of the injuries she had sustained.
After Madison was found, Ranger Holland interviewed Evan and noticed what appeared to be bleach stains on his pants. Ranger Holland also smelled an odor of what he called a "Pine Sol type substance" emanating from Evan. During the interview, Evan stated that around 5:00 a.m., he went into Madison's bedroom, picked her up, and put a blanket over her head so that she could not see him. Evan said that he carried Madison to the residence next door, which he knew was unlocked. He then took her into the master bedroom, laid her on the couch, and inserted his penis into her vagina. Evan said that Madison was fighting and screaming and that he held her hands down. Evan stated that he did not speak to Madison during the assault
Evan stated that he stopped penetration after several minutes. Madison would not stop crying, so Evan punched her in the back of the head, which rendered her unconscious. Evan said that he then used water to clean her vagina, carried her to the abandoned trailer where she was found, placed her underneath it with her pink blanket, and left her there while she was still unconscious. Subsequent DNA testing revealed that the fly of Evan's underwear contained Madison's DNA along with Evan's semen.
B. PROCEDURAL HISTORY
The State filed a petition in the juvenile court alleging that on or about February 5, 2018, Evan, who was fourteen years old at the time, had committed an aggravated sexual assault of a child younger than six years of age; had committed aggravated kidnapping; and had attempted to commit capital murder. The State filed a motion asking the juvenile court to waive its exclusive jurisdiction over Evan and to transfer him to an appropriate criminal court to be tried as an adult. See Tex. Fam. Code Ann. § 54.02(a). Following a hearing, the juvenile court granted the motion and signed an order transferring Evan to the appropriate criminal court. Evan now appeals. See id. § 56.01(c)(1)(A) (permitting immediate appeal from an order transferring a juvenile for prosecution as an adult).
II. APPLICABLE LAW
The juvenile courts have exclusive original jurisdiction over all proceedings involving persons accused of committing a felony offense between their tenth and seventeenth birthdays. See Tex. Fam. Code. Ann. §§ 51.02(2), 51.03(a)(1), 51.04(a); Moon v. State, 451 S.W.3d 28, 37-38 (Tex. Crim. App. 2014). In certain situations, however, a juvenile court has discretion to waive that jurisdiction and transfer child felony offenders to the appropriate district court or criminal district court for criminal proceedings. See Tex. Fam. Code Ann. § 54.02(a); Moon, 451 S.W.3d at 38. As applicable to this case, a juvenile court may exercise that discretion if it finds that
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was:
(A) 14 years of age or older at the time [of the alleged offense], if the offense is a capital felony . . . or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or
(B) . . . ; and
See Tex. Fam. Code Ann. § 54.02(a); Moon, 451 S.W.3d at 38.
(3) after a full investigation and a hearing, [it] determines that there is probable cause to believe that the child before the court 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.
In making these findings, the juvenile court must 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;See Tex. Fam. Code Ann. § 54.02(f); Moon, 451 S.W.3d at 38. These are nonexclusive factors that serve to facilitate the juvenile court's balancing of the potential danger to the public posed by the particular juvenile offender with his amenability to treatment. Moon, 451 S.W.3d at 38. If the juvenile court waives jurisdiction, "it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and shall transfer the person to the appropriate court for criminal proceedings." Tex. Fam. Code Ann. § 54.02(h).
(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.
III. EVAN'S ISSUE & STANDARD OF REVIEW
In his sole issue, Evan contends the juvenile court abused its discretion by transferring him to criminal court because its findings as to three of the four enumerated section 54.02(f) factors are unsupported by factually sufficient evidence.
In evaluating a juvenile court's decision to waive its jurisdiction under section 54.02(a), we first review the juvenile court's specific findings of fact regarding the section 54.02(f) factors under "traditional sufficiency of the evidence review." See Moon, 451 S.W.3d at 47. In this context, our sufficiency review is limited to the facts that the juvenile court expressly relied upon in its transfer order. Id. at 50.
Because juvenile cases are reviewed under the civil standards of review for legal and factual sufficiency, and because the State's burden is the preponderance of the evidence, see Moon, 451 S.W.3d at 40, 45-47, when reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
We then review the juvenile court's ultimate waiver decision under an abuse of discretion standard. Id. at 47. That is to say, in deciding whether the juvenile court erred to conclude that the seriousness of the offense alleged and/or the background of the juvenile called for criminal proceedings for the welfare of the community, we simply ask, in light of our own analysis of the sufficiency of the evidence to support the section 54.02(f) factors and any other relevant evidence, whether the juvenile court acted without reference to guiding rules or principles. Id. In other words, was its transfer decision essentially arbitrary, given the evidence upon which it was based, or did it represent a reasonably principled application of the legislative criteria? In conducting our review, we bear in mind that not every section 54.02(f) factor must weigh in favor of transfer to justify the juvenile court's discretionary decision to waive its jurisdiction. Id.
IV. DISCUSSION
The transfer order states that the juvenile court considered the evidence in light of the four factors set forth in section 54.02(f). The order also details the facts the juvenile court found with respect to each of those factors. We consider each factor in turn.
A. EVAN'S ALLEGED OFFENSES WERE AGAINST A PERSON
Section 54.02(f)(1) requires the juvenile court to consider whether the alleged offenses were against person or property. Id. § 54.02(f)(1). The juvenile court found that Evan "assaulted a 5 year old child in her sleep by making penetration of the child's vagina with his penis" and "physically beat and/or strangled the child and left her unconscious outside in subfreezing weather." The juvenile court further found that the child "now cannot walk without assistance and does not speak because of a permanent partial brain trauma caused by the attack." Evan does not contest these findings and concedes that the juvenile court correctly found the alleged offenses were committed against a person.
B. EVAN'S SOPHISTICATION AND MATURITY
Section 54.02(f)(2) requires the juvenile court to consider the sophistication and maturity of the child. Id. § 54.02(f)(2). Evan contends the juvenile court's factual findings relating to his sophistication and maturity are not supported by factually sufficient evidence. He specifically challenges the juvenile court's findings that both the results of three tests that measured his IQ and the way he carried out the offense demonstrated he has a level of sophistication and maturity that warrants transfer to criminal court. We conclude the challenged findings are supported by factually sufficient evidence.
1. Findings as to Evan's IQ Test Results
The record contains three psychological evaluations of Evan. Dr. Kimberly Gajeton performed one of them on February 13, 2018, and as part of that evaluation, she administered a WASI-II IQ test. Dr. Gajeton reported that the results of that test showed Evan had a "current level of intellectual functioning [that fell] in the borderline range (WASI-II: Full 4 IQ = 76), with his overall IQ surpassing 5% of his age peers."
Evan underwent another psychological evaluation on April 26, 2018, performed by Dr. Stephen Thorne. Dr. Thorne's report notes that his evaluation of Evan also included the administration of a WASI-II IQ test. Dr. Thorne's report states the results of that test "indicate[d] that [Evan's] overall intellectual abilities lie at the high end of the Low Average range of functioning, with a Full Scale IQ of 89" and that "[t]his place[d] him in the [twenty-third] percentile when compared to his same-age peers." The report additionally says that "[a]llowing for measurement error, there [was] a 95% probability that [Evan's] IQ [was] between 84 and 95."
Dr. Lara Hastings conducted Evan's third psychological evaluation, which was performed on July 13, 2018. In her report, Dr. Hastings noted that Evan's school records indicated he had taken a KBIT-2 test on November 14, 2012, and that the results of that test indicated that he had an IQ composite score of 101.
The juvenile court credited Dr. Thorne's report and found that Evan had a full-scale IQ of 89, "with a probability that his true IQ is between 89 [sic] and 95," which placed him in the high end of the low average range. The juvenile court further found that Evan had undergone three IQ tests, that there were discrepancies in the results of those tests, and that those discrepancies demonstrated Evan had the maturity to manipulate interviewers and test results.
Evan argues that the record is void of any evidence that the discrepancies in the results of his IQ tests occurred because he had manipulated the exams. According to Evan, his "[m]anipulation of the test[s] was one possibility mentioned as a reason for the discrepanc[ies]." He argues that the record contains another possible reason for the discrepancies: "familiarity with the exam itself." Evan further points to the exam Dr. Gajeton administered, which showed he had an IQ of 76 and that the record shows he had been held back in school and struggled in a number of subjects. All of this, Evan argues, shows the juvenile court's findings regarding his IQ are against the great weight of the evidence and thus are factually insufficient.
We begin by acknowledging that Evan is correct that the record contains evidence that one possible explanation for the discrepancies in the results of his IQ tests was that he may have become more familiar with the tests over multiple administrations. For one thing, in his report, Dr. Thorne stated that it was "possible that, as a result of [Evan's] familiarity" with the test from having taken it a little more than two months earlier, the results from the April 2018 test "may slightly overestimate [Evan's] true intellectual functioning."
For another thing, Mark Dittloff, a licensed professional counselor who reviewed all three psychological reports, testified that he could not definitively say that the increase in Evan's IQ scores between the February 2018 test to the April 2018 test was the result of "malingering" (that is, intentionally trying to get a lower score), and he acknowledged that Evan's familiarity with the exam from its having been recently administered to him was a possible explanation for that increase. Dittloff also testified that IQ tests generally are not administered to a person within one year of one another specifically because "the more times [the person] take[s] the test, the more familiar they get with it."
But there was also evidence that Evan had manipulated the IQ test results, as the juvenile court found. First, though Dr. Thorne stated in his report that it was possible Evan's April 2018 test "slightly overestimate[d] his true intellectual functioning" because he may have become familiar with the test by taking one in February 2018, he also stated that based on his evaluation of Evan, he believed the April 2018 test results were "closer to reflecting [Evan's] true intellectual functioning," even accounting for the possible impact of Evan's familiarity with the test from having taken it in April 2018.
Second, Toni Hellman, Cooke County's Chief Juvenile Probation Officer and one of the people who had responsibility to supervise Evan, testified at the hearing. She stated that she had experience both in reviewing the results of IQ tests administered to juveniles and in dealing with juvenile offenders who had malingered an IQ test. Hellman agreed that a comparison of Dr. Gajeton's and Dr. Thorne's reports showed that the results of Evan's IQ tests indicated his IQ had improved in a short time. And she stated that in her experience, she had seldom seen instances where a juvenile's IQ jumped over a short period of time.
Third, although Dittloff testified that he could not definitively say that the increase in IQ scores from Evan's February 2018 IQ test to his April 2018 IQ test was the result of malingering, he further stated that the twenty-five-point decrease from Evan's November 14, 2012 IQ test to his February 13, 2018 IQ test was a "huge difference" that suggested malingering. Dittloff also stated that he was surprised by the difference between the results of Evan's February 2018 test and his April 2018 test. Dittloff stated that the differences in the results of Evan's three IQ tests gave him concerns that Evan had malingered the tests and raised a red flag to him as a therapist.
Finally, Ranger Holland testified that he did not agree that an IQ test showing Evan had an IQ that was in the fifth percentile of his peer group (as the April 2018 test results did) demonstrated he lacked maturity and sophistication. Ranger Holland testified that his experience as a law enforcement officer included training in and teaching courses related to techniques for interviewing individuals with sociopathic or psychopathic personalities. Ranger Holland stated that when he interviewed Evan, he discerned Evan had indications of sociopathic and psychopathic tendencies. Ranger Holland stated that given Evan's sociopathic personality and psychopathic tendencies, Evan could easily manipulate an IQ test that was administered to him. Ranger Holland went further, stating that he expected Evan to manipulate IQ tests, psychiatrists, social workers, and anyone else who dealt with him. Ranger Holland said that based on his experience and what he had seen, there was no doubt in his mind that Evan could have manipulated the February 2018 and April 2018 IQ tests.
Ranger Holland gave an example. According to Ranger Holland, during a portion of the interview, Evan had bent over, had pulled his hoodie over his head, and was looking down and crying. But when Ranger Holland looked underneath to see Evan's face, he noticed that Evan was smiling.
Considering the evidence through the appropriate standard of review, we conclude the juvenile court's findings related to Evan's IQ are supported by factually sufficient evidence. See Pool, 715 S.W.2d at 635; Cain, 709 S.W.2d at 176; Garza, 395 S.W.2d at 823.
2. Findings as to The Manner in Which The Offense Was Committed
The juvenile court also found that the manner in which Evan committed the offense demonstrated that he has a level of maturity and sophistication that warrants transfer for criminal proceedings. Evan offers two reasons why this finding is not supported by factually sufficient evidence. First, he contends it is contradicted by the juvenile court's additional finding that he "crudely planned the assault, tried to tamper with the evidence, then attempted to dispose of [Madison's] body." And second, he argues that the juvenile court's finding is contradicted by Dr. Thorne's conclusion that he should not be transferred for criminal proceedings.
With regard to the first contention, Evan appears to argue that the juvenile court's finding that he "crudely" planned the offense contradicts its finding that the manner in which he committed the offense demonstrated sophistication and maturity. To support that argument, he cites to an online version of the Merriam-Webster dictionary that defines the word "crude" to mean "rough or inexpert in plan or execution." We presume Evan is arguing that if the offense was roughly or inexpertly planned or executed, then that weighs toward finding that he lacked maturity and sophistication.
Assuming, without deciding, that "crude" has the meaning that Evan advocates, we are not persuaded by his argument. We note that Evan's contention that the juvenile court found that he crudely executed the offense is imprecise. There is a distinction between planning and committing an offense, and while the juvenile court found that Evan crudely planned the offense, it did not find that he crudely committed it. Given Evan's argument, the distinction between planning and committing is important, because the juvenile court expressly grounded its finding that Evan's maturity level warranted criminal proceedings on the way he committed the offense.
It should be noted that the same online source includes an additional definition of "crude": "marked by . . . vulgarity." Crude, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/crude (last visited May 29, 2019).
That leads us to Evan's contention that the juvenile court's finding that the manner in which he committed the offense demonstrated a level of maturity warranting transfer was contradicted by Dr. Thorne's conclusion that he should not be transferred for criminal proceedings. As to the manner in which Evan committed the offense, the juvenile court found as follows:
[Evan] covered the head of the child victim with a blanket so she could not see him. He did not speak. He took the child to the back room of an empty mobile home. After he completed the sexual assault, he tried to cover the offense by washing the child or her clothing with water or a chemical. To keep the child from fighting him, he held the child's arms. When the child continued to cry[,] [Evan] tried to "put her unconscious" by hitting her in the head. [Evan] then took the unconscious child to another mobile home where he put her in the dirt under the mobile home and left her clad only in a nightgown in subfreezing weather. [Evan] then went home and left the child for dead.Evan does not challenge the sufficiency of the evidence to support these particular findings. Rather, his argument is that the evidence is factually insufficient to support the juvenile court's finding that these facts demonstrated a level of sophistication and maturity warranting transfer to criminal court.
The primary basis of Evan's argument is Dr. Thorne's report. In his report, Dr. Thorne stated that he considered his evaluation in light of the four factors set forth in section 54.02(f) and concluded that Evan should not be transferred to criminal court. But the record contains evidence that supports the juvenile court's finding.
First, as the juvenile court stated in its order, although Dr. Thorne opined that Evan should not be transferred, he also stated that "the nature/circumstances of the instant offense [were] rather worrisome, as they reflect[ed] a mindset (and seri[e]s of troubling choices following the sexual offense) that [he had] rarely seen when evaluating juvenile sex offenders."
Second, Ranger Holland testified that Evan had committed the offenses with a level of sophistication that he had rarely seen even in older criminal defendants. Ranger Holland elaborated, stating that he had not worked on many murder cases that were "carried out in this manner[,] in which chemicals or disinfectants have been used" to destroy evidence or cover up the crime. Ranger Holland stated that he had seen that feature in serial murder cases or cases involving sociopathic offenders with psychopathic tendencies but that he did not see it in the "average run-of-the-day everyday murder or rape." Ranger Holland stated that in "[t]wenty-three, twenty-four years of being a police officer, [thirteen] years of being a homicide investigator, [he did not] think [he had] ever seen anything that [he] would compare to this [case], the egregious nature of the offense, the lack of remorse, the pure brutality of what occurred."
Considering the evidence through the appropriate standard of review, we conclude that factually sufficient evidence supports the juvenile court's findings related to the manner in which Evan committed the alleged offenses. See Pool, 715 S.W.2d at 635; Cain, 709 S.W.2d at 176; Garza, 395 S.W.2d at 823.
C. EVAN'S RECORD AND PREVIOUS HISTORY
Section 54.02(f)(3) requires the juvenile court to consider the record and previous history of the child. Id. § 54.02(f)(3). Evan contends the juvenile court's findings that Evan's record and previous history warranted transfer to criminal court are not supported by factually sufficient evidence. We conclude otherwise.
First, Evan notes that the juvenile court found that Evan had been using marijuana and Xanax since he was eleven years old, had consumed one bottle of vodka per month since he was thirteen years old, had regularly viewed pornography, and had admitted to fighting on several occasions on the bus. He does not challenge those findings but instead argues they are counterbalanced by other facts that weigh against finding his record and history warrant criminal proceedings. Specifically, Evan notes that he had no previous history with the juvenile justice system.
But the juvenile court's order specifically found that Evan's lack of previous involvement with the juvenile justice system could be explained by the fact that he had moved away from problems that otherwise would have brought him into the juvenile justice system or that authorities either ignored the problems or just sent him away.
Tana Bentley, a Cooke County juvenile probation officer who had been assigned to Evan, testified. Bentley said that from 2010 through the date of the hearing, Evan had attended eleven different schools. She also stated that she had read Dr. Thorne's report and noted that Evan had admitted to using and selling marijuana and Xanax and to engaging in fighting. Bentley testified that those acts had all occurred outside of Cooke County but if they had occurred within Cooke County, then the Cooke County Juvenile Justice Department would have referred Evan for adjudication or action. Bentley also testified that at the time Evan assaulted Madison, he was not in school because the school he had attended, which was not in Cooke County, placed him on a disciplinary alternative education program for possessing and selling illegal substances on school property. Bentley stated if that offense had occurred in Cooke County, then the Cooke County Juvenile Justice Department would have prosecuted him.
Hellman, Cooke County's Chief Juvenile Probation Officer, testified similarly. She stated that the conduct Evan admitted to with respect to the possession, use, and sale of Xanax and marijuana could constitute misdemeanors or felonies, and that the decision not to refer those offenses for prosecution was at the discretion of someone other than the Cooke County Juvenile Justice Department.
And in his report, Dr. Thorne noted that Evan was born in Georgia and lived there until he was six years old, at which time his family moved to Arlington, Texas. He then moved to Bedford, Texas, for approximately one year, back to Arlington for approximately two years, then to Little Elm, Texas, for approximately two years, before moving to Valley View, Texas, where he had lived for approximately two years prior to his detention.
Thus, the evidence is factually sufficient to support the juvenile court's finding that Evan's lack of previous involvement with the juvenile justice system could be explained by the fact that he had moved away from problems that otherwise would have brought him into the juvenile justice system or that authorities either ignored the problems or just sent him away.
We turn to Evan's next contention, which challenges the juvenile court's finding that "[i]n his time at the juvenile detention center[, Evan] continues to be a disruption for other residents and the staff." Evan argues this finding is outweighed by evidence showing that in the ten months he had been in juvenile detention, he had only eight disruptive incidents, only one of which was physical in nature.
But the juvenile court did not rely on the severity of Evan's disciplinary incidents; rather, it relied on the fact that they were disruptive and continuing. A factual-sufficiency challenge does not empower this court to substitute its judgment in place of the factfinder. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We thus decline to consider Evan's complaint with respect to the severity of the incidents at issue. And to the extent Evan argues that insufficient evidence supports the juvenile court's finding that during his time in detention, he had been and continued to be disruptive, the below evidence leads us to conclude otherwise.
Bentley testified that she had received eight reports of Evan's misconduct ranging from February 26, 2018, to September 3, 2018. She noted that juveniles in detention are advised of the rules, of how the rules would be applied, and of the consequences that would follow if they violated the rules. She stated that based on her review of Evan's incidents, Evan had a problem following the rules. In addition, Bentley testified that five of Evan's incidents occurred after March 2018. And Hellman testified that Evan's behavior in detention had not improved since March 2018.
Finally, Evan complains that the juvenile court inappropriately relied on his family history in making its finding that his record and previous history supported his transfer to criminal court. According to Evan, the fact that he had a dysfunctional upbringing is out of his control and should weigh against transfer. But Evan does not cite us to any authority holding that in considering the section-54.02(f)(3) factor, a juvenile court may only rely upon matters that were within the juvenile's control. And we note that in analyzing that factor, at least one court has considered relevant matters that were outside of the juvenile's control. See Rodriguez v. State, 478 S.W.3d 783, 784-85, 788 (Tex. App.—San Antonio 2015, pet. ref'd) (considering as relevant, when analyzing section-54.02(f)(3) factor, the fact that the juvenile had attended at least twelve different schools throughout his childhood because his mother's drug habit and the accompanying unstable family life had resulted in his moving around between family members).
In any event, we need not resolve whether Evan is correct that the juvenile court's consideration of his family history was improper because it was outside of his control. That is so because we conclude that the other evidence the juvenile court relied upon—namely, the unadjudicated drug offenses to which Evan admitted and his history of engaging in fights for which, according to Bentley, he would have been referred for adjudication or action had they occurred in Cooke County—was itself factually sufficient to support the juvenile court's finding that Evan's record and history warranted transfer to criminal court.
D. PROTECTION OF THE PUBLIC AND LIKELIHOOD OF REHABILITATION
Section 54.02(f)(4) requires the juvenile court to consider 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)(4). The juvenile court made findings regarding the protection of the public and the rehabilitation of Evan, but Evan challenges only its findings as to rehabilitation.
The juvenile court found that Evan "is a definite danger to the public" and that the TJJD program would not "protect the public." The record evidence, including what has been discussed above, supports these findings. During his interview with Ranger Holland, Evan described himself as a monster who hurts other people. Dr. Gajeton's report explains this disturbing conclusion in her assessment of Evan's personality function by stating that "[h]e fails to see the value of others . . . . He will actively seek to portray himself as being powerful and superhuman and will treat any affronts to this façade with utmost cruelty."
In its order, the juvenile court found that for the rehabilitative services offered by the Texas Juvenile Justice Department to be successful, an offender must accept responsibility for his conduct, which involved more than merely admitting to the offense. The juvenile court found that for those services to be successful, the juvenile must also have empathy for the victim of the offense. Evan does not challenge these findings.
The juvenile court also found that there was no evidence that Evan had accepted responsibility for his conduct, that he did not have empathy for Madison, and that he did not even have the capacity to have empathy for Madison. Evan challenges the juvenile court's finding that there was no evidence that he had accepted responsibility for his conduct.
Hellman testified that she had a lot of experience and training regarding the services available through the Texas Juvenile Justice Department. She testified that she had read all three of the psychological evaluations relating to Evan and acknowledged that Dr. Thorne had concluded that Evan could be rehabilitated through services available to the Texas Juvenile Justice Department. But she also stated that for a therapeutic course to be successful in Evan's case, the first thing he would need to do is accept responsibility for his conduct. And she stated that to her knowledge, Evan had not taken responsibility for his conduct.
In addition, Dittloff, who was a licensed sex offender therapist, opined that one of the components to a good sex offender treatment plan is the offender accepting responsibility. He further stated that accepting responsibility meant more than admitting to the conduct; it included the offender being able to demonstrate that he understood why he made the choices he made. Dittloff testified that as of the date of the hearing, Evan had not been able to demonstrate responsibility for his conduct. Dittloff further stated that another component of a good sex offender treatment plan is that the offender have empathy toward the victim, that is, demonstrating that he understands how his conduct affects the victim and how the victim feels about it. Dittloff referenced Dr. Hastings's psychological evaluation, noting that she had concluded that Evan lacked empathy, which made him vulnerable to further sexual acting out behavior without regard for consequences to other victims. Dittloff stated that conclusion told him that Evan struggles with empathy. And he further said that without empathy, rehabilitation is compromised.
Additionally, in her report, Dr. Hastings opined that Evan exhibited deficits in both empathy and remorse. And as noted above, Ranger Holland testified that in his career in law enforcement, he had not seen anything comparable to this case due in part to Evan's lack of remorse.
Considering the evidence through the appropriate standard of review, we conclude the juvenile court's findings as to the likelihood of Evan's rehabilitation, which are the only findings he challenges with regard to the section-54.02(f)(4) factor, are supported by factually sufficient evidence. See Pool, 715 S.W.2d at 635; Cain, 709 S.W.2d at 176; Garza, 395 S.W.2d at 823.
E. NO ABUSE OF DISCRETION
In deciding to transfer this case to criminal court, the juvenile court was required to consider the four factors set forth in family code section 54.02(f). See Tex. Fam. Code Ann. § 54.02(f). Evan's sole argument for why the juvenile court abused its discretion was that its findings under section 54.02(f)(2)-(4) were not supported by factually sufficient evidence. "These are nonexclusive factors that serve to facilitate the juvenile court's balancing of the potential danger to the public posed by the particular juvenile offender with his or her amenability to treatment." In re G.B., 524 S.W.3d 906, 914 (Tex. App.—Fort Worth 2017, no pet.). The family code does not require the juvenile court to find any particular factor true, which leads us to conclude that these factors are merely nonexclusive guides to assist the court in deciding if either of the two reasons for transfer exist. Yet, as we explained above, we conclude that the evidence relating to these challenged factors weigh in favor of the juvenile court's decision to transfer this case to criminal court.
Additionally, the record shows the juvenile court carefully considered this matter. It held an extensive hearing, which included testimony from seven witnesses who were subject to extensive cross-examination. The juvenile court also considered thirteen exhibits, which included three separate psychological evaluations of Evan. Given the evidence in the record and the specific factual findings of the juvenile court, we cannot conclude that the juvenile court acted without reference to guiding rules or principles in its decision to move the proceedings to criminal court. See Moon, 451 S.W.3d at 47. To the contrary, that decision represented a reasonably principled application of the legislative criteria. See id. We therefore conclude that decision was not an abuse of discretion and overrule Evan's sole issue.
V. CONCLUSION
Having overruled Evan's sole issue, we affirm the juvenile court's order transferring Evan to an appropriate criminal court to be tried as an adult. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice Delivered: May 30, 2019