The Texas Prosecutor, May-June 2017, Volume 47, Number 3

Juvenile certifications

A walk through the waiver of jurisdiction and discretionary transfer of juveniles to adult criminal court

“Juvenile commits capital murder!”
    “Son in high school kills father!”
    “Teen charged with murder in shooting death of couple!”
    Headlines like these appear more and more frequently these days, it seems. But when faced with handling a minor committing a heinous act, how is a prosecutor to proceed? The crime demands justice—but what is justice when the offender isn’t even 17 years old? How do we decide when it’s appropriate to treat juvenile criminals as adults?
    While the purpose of the juvenile system is to rehabilitate, some criminal cases are too egregious to remain in the juvenile system. It is only for these extreme cases—and when other rehabilitative efforts have been tried and failed—that the State should seek to certify a juvenile to be tried as an adult. The enormity of such a decision is not something that prosecutors should take lightly.

Who qualifies for certification?
When considering certification of a juvenile offender to an adult criminal district court, first determine whether the juvenile and his criminal offense qualify for certification under the statute. Section 54.02 of the Texas Family Code sets forth the minimum requirements to seek a waiver of jurisdiction and discretionary transfer to adult criminal court. The youngest age at which the State may seek to certify a juvenile is 14; however, the only offenses that a 14-year-old can be certified for are capital murder; first-degree felonies; and any aggravated, controlled-substance felonies, which are defined as controlled-substance offenses that have a minimum sentence or fine greater than that for a first-degree felony. For example, the first-degree felony of possession of a controlled substance (more than 400 grams of cocaine) fits this definition because the minimum sentence for that offense is 10 years in prison, while the standard punishment for a first-degree felony begins at five years. Once a juvenile reaches age 15, any felony offense is eligible for certification. The age of the juvenile at the time he committed the offense, not his age at the time of the hearing, determines whether he can be certified.
Before the hearing
The process of seeking to certify a juvenile begins in juvenile court with the State filing a petition that specifically states that the purpose of the hearing is for the court to waive its jurisdiction over the juvenile. In addition, a juvenile must be personally served with a copy of the certification petition and the summons. If a juvenile is certified to stand trial as an adult and he was not personally served, or the certification petition does not state that it is requesting that the court waive its jurisdiction, then the case will be reversed. During the certification hearing, we always introduce into evidence a certified copy of the proof of personal service of the certification petition and summons by the law enforcement agency that served the juvenile. A parent or guardian must also be served, but if he or she appears at the hearing, then service is considered to have been waived. Also, a parent or guardian must be present at a certification hearing, and if one does not appear, then a court must appoint a guardian for the juvenile. It is important that a prosecutor state on the record the names of any parents or guardians who are at the hearing so that the appellate record is clear that the juvenile had someone present.
    Prior to the certification hearing, the court must order a full diagnostic study, including a social evaluation and investigation of the child and the circumstances of the offense. A juvenile may refuse to cooperate in making the report, in which case the report will be completed without his input. In this situation, a prosecutor should state on the record that the State is not requesting that the court waive completion of the diagnostic study, social evaluation, and investigation of the child; instead, the report should be considered complete without the juvenile’s cooperation. This report, as well as any other written documents either party wishes to introduce, must be made available to both sides at least five days before the hearing. While this report is required for all discretionary hearings, it is not required for a mandatory transfer hearing.

Hearsay is admissible
While the rules of evidence apply in juvenile proceedings, the courts have ruled that hearsay evidence is admissible in a certification hearing. Both of us spent most of our careers in adult courts where the rules excluding hearsay were strictly enforced by judges. When we were assigned to juvenile court, it was a paradigm shift to practice in a court where it was permissible and even expected of us to elicit hearsay from witnesses and from documents.
    Hans remembers that when he first arrived in juvenile court several years ago, he was skeptical of a colleague who said that he could use just one officer to prove up the probable cause for a certification hearing involving an aggravated robbery. He had a hard time believing that this was the law and was flabbergasted when he learned that she was correct.     Sarah handled a certification hearing on a juvenile charged with murder in which the lead investigator hesitated before answering any question that called for hearsay. Sarah would ask the question, and he would pause and look at the defense attorney—as though bracing for an objection—before answering. Sarah didn’t blame him—it is very unusual for an officer to be able to testify about what each witness told him during the investigation, and it’s even more unusual for one officer to testify about witness statements in the police report that were given to other officers!
    Appellate courts have ruled that a court’s finding of probable cause in a juvenile hearing is the equivalent of a similar finding by a criminal district court or a grand jury, where hearsay is admissible. A judge can discern the credibility of any hearsay testimony and weigh it properly to make a finding as to whether the State has provided sufficient proof of probable cause. It is also our belief that the legislature permitted the admissibility of hearsay evidence to provide the judge with a complete picture of the juvenile and his offense without conducting a full-blown trial. In fact, the Family Code section dealing with these hearings specifically states that a court may consider written reports from different sources to make a decision. The fact that the law allows hearsay during these hearings further highlights the fact that transferring a child to an adult court is a very serious proposition, and the law recognizes that the judge should be permitted to learn and evaluate every bit of information regarding the criminal incident, juvenile, and juvenile’s history.

Admitting evidence at the hearing
All certification hearings must be heard by the presiding juvenile court judge and cannot be heard by an associate judge or magistrate. A juvenile does not have the right to a jury for this hearing. The burden of proof is on the State, and the standard of proof in the hearing is a preponderance of the evidence. In some instances, a prosecutor may be handling an incident committed by several co-defendants (called co-actors in juvenile law). If the prosecutor is seeking certification on more than one co-actor, a court may hold the hearing for all of the juveniles at one time. If one of the juvenile’s attorneys files a motion to sever, the decision to sever is at the court’s discretion. Unless the juvenile can show some prejudice against him based on having his hearing with his co-actors, a denial of severance will be upheld on any appeal.
    Before a juvenile court may waive its jurisdiction, the court must make a finding that there is probable cause to believe that the child committed the alleged offense 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 adult court. While this hearing is not a court trial, prosecutors certainly do not want to fall short on establishing probable cause. Even if a juvenile court finds probable cause but the evidence does not support this finding, the court’s waiver of jurisdiction will not survive an appeal.
    In addition to establishing probable cause, the Texas Legislature gave juvenile courts specific instruction to consider at least four factors when deciding whether to waive exclusive jurisdiction over a juvenile. The factors are:
1)    whether the offense was against person or property,
2)    the child’s sophistication and maturity,
3)    the child’s record and previous history, and
4)    the protection of the public and the child’s likelihood of rehabilitation within the juvenile system.
    Seeking out evidence to support the §54.02 factors is similar to the research a prosecutor in adult court conducts to strengthen his punishment case at trial. The more evidence presented to the juvenile court on the four factors, the more likely the State will succeed in convincing the court to waive its jurisdiction and transfer to the adult system.
    While hearsay is admissible and one officer may testify as to the entire investigation, the State may want to call additional officers and witnesses to highlight certain facts of the crime. Just keep in mind that with each witness who testifies at the hearing, a transcript of the testimony is created; that transcript could be used to impeach the witness in a future trial in adult court. Don’t let this concern prevent prosecutors from calling all necessary witnesses to establish probable cause, or from providing evidence to support a finding of the four factors listed above.
    We make it a practice to offer the diagnostic study, social evaluation, and investigation of the juvenile, which form the foundation of the evidence. Build upon these resources with additional evidence, such as testimony from the evaluating psychologist or psychiatrist, along with anyone else who contributed to the report, to assist the court in understanding the report. There may be instances in which the evaluator needs to explain how he came to his conclusions.
    We also introduce:
•    crime scene photos and videos,
•    surveillance videos if the offense was caught on film,
•    statements (confessions) from the juvenile or his co-actor,
•    victim impact testimony from a complainant or a decedent’s family,
•     any judgments for the juvenile’s adjudications in the juvenile system,
•     testimony from any victims in the juvenile’s past criminal cases, and
•     any unadjudicated extraneous offenses if they can contribute to a favorable finding for one of the four factors.
    Depending on the child’s background, we might also call a gang expert to testify if the juvenile is a member of a criminal street gang. Such an expert can discuss the gang’s criminal activity and possibly the role this juvenile played in the gang. This testimony could also contribute to a finding that the juvenile has an above-average level of criminal sophistication. For example, Sarah handled a case in which the juvenile was a gang leader, a decision-maker within the gang, and a recruiter of other juveniles. This information illustrated for the judge the juvenile’s level of sophistication.
    The juvenile’s school records may also provide useful evidence of his sophistication and maturity level. Prior teachers or school administrators who taught or knew the juvenile can testify as to the child’s intelligence, sophistication, and maturity. For example, a principal who describes the juvenile as someone who makes his own decisions and doesn’t follow another’s instructions demonstrates that the child has a higher level of sophistication and maturity than the average juvenile of the same age. This testimony may seem repetitive, but it gives the judge a consistent description of the juvenile to consider.
    We also try to include any testimony from the juvenile’s prior probation officers to highlight rehabilitative programs in the juvenile system that the child has already been afforded. This could establish whether the juvenile was actually committed to his own rehabilitation. Any testimony stating that there are no additional rehabilitative services available for him in the juvenile system should be presented. If all available juvenile programs have been exhausted, it is less likely that remaining in the juvenile system would be beneficial. If the juvenile is close to 18 years of age—the maximum age of supervision by a juvenile court on an indeterminate petition—then introduce testimony that there is insufficient time left for juvenile programs and services to rehabilitate him. Furthermore, even if prosecutors are faced with a juvenile who successfully completed juvenile rehabilitation programs or probation, under the appropriate circumstances, prosecutors could make an argument that the juvenile failed to utilize what he had learned and that further rehabilitation attempts would be futile.
    If the juvenile was placed in detention prior to the hearing, prosecutors should always review those detention records for any violation reports. If the juvenile was breaking the rules while in detention, present evidence of the violations along with detention records and testimony from detention officers. Sarah once had a certification hearing on an individual charged with three cases of aggravated robbery. While he was awaiting his certification hearing (and he presumably should have been on his best behavior), he attacked another inmate in the detention center. The assault was captured on surveillance video, and Sarah played it during his hearing. It was clear that he was acting on his own direction—he even waited until the officer was distracted before attacking the unsuspecting inmate. The incident supported an argument that this particular juvenile operated at a level of maturity and criminal sophistication to be able to evaluate when and whom to attack.
    Hans once had a hearing in which the juvenile, whom he was seeking to certify for an aggravated robbery, was held in the detention facility. While the juvenile was there, he and two other juveniles escaped from the facility after overpowering a guard. A few weeks before their escape, he had been caught jamming one of the security door locks with a piece of plastic, which Hans argued was part of their efforts to discern potential flaws with the facility’s security to gain their escape.
    If the juvenile was released from detention under pre-trial supervision, look for evidence of any negative behaviors or violations of the rules of his release. Testimony from his supervision officer or any other witness who viewed the negative actions could be beneficial in the pursuit of certification.

The Moon case
For many years, the Court of Criminal Appeals (CCA) had not issued any significant opinions on juvenile certifications. That changed with the landmark Cameron Moon decision. This significant case served not only as a basis for the reversal of several prior certifications, but it also provided guidance to courts and prosecutors on what is required in certification hearings and the resulting court orders.
    In this Harris County case, a juvenile was charged with murder, certified in juvenile court, and convicted in adult court. After his conviction, he appealed the juvenile certification, and the case was sent back to juvenile court. Ultimately, he was re-certified, and this opinion became a must-read for all prosecutors seeking to certify a juvenile. The Court of Criminal Appeals directed juvenile courts to detail their findings and demonstrate their reasoning in their written certification orders and held that the record must be developed with sufficient facts and evidence to justify the court’s findings and decision. This means that any prosecutor who conducts a certification hearing must make sure to provide sufficient evidence to support the court’s findings in the written transfer order. The CCA made it clear in Moon that not every one of the four factors of §54.02 must be proven to support transfer to adult court—the State must persuade a juvenile court, with a preponderance of the evidence, that the welfare of the community requires transfer because of the seriousness of the offense, the background of the child, or both.
    However, the Moon decision also specifies that a juvenile court cannot just certify a juvenile based solely on the category of offense—and there must be more than just probable cause for that offense. Therefore, if a prosecutor is relying primarily on the first factor for transfer, that the offense was a crime against a person, Moon instructs prosecutors to provide as much testimony and evidence as possible for two reasons: one, to show how egregious the offense was and how dangerous the juvenile’s behavior and actions were, and two, to ensure that the court’s order details specific evidence of those facts and the reasoning that the court used to support its finding.
    Another note about the Moon case: The defendant had to wait until he was sentenced in adult court before he could appeal his juvenile certification. The legislature changed this process effective September 1, 2015, by allowing the use of an interlocutory appeal. Once the court grants the waiver of jurisdiction and signs the order certifying the juvenile, the case transfers to adult court, and the juvenile may appeal the certification decision immediately with an interlocutory appeal.
    Before a juvenile and the alleged criminal incident officially transfer to adult court, the juvenile court must execute a written order with specific findings presented in the certification hearing. For many years in Harris County, we used a boilerplate fill-in-the-blank order that merely recited the language in §54.02. Created by the district attorney’s office, the order was presented to the judge to sign immediately following the certification hearing. The Moon case ended that practice. Now a judge must show her work and detail the reasons and evidence she considered in waiving jurisdiction. The CCA noted in Moon that it is not the appellate court’s job to “rummage” through the record to find facts that the juvenile court should have included in its written transfer order.
    The job of drafting the written transfer order is usually borne by a prosecutor. In those jurisdictions in which the judge writes her own order, this extra duty doesn’t exist. However, it is incumbent upon all prosecutors to ensure that the order survives appellate scrutiny. Therefore, if the prosecutor drafts the order, the best practice is to draft an order and findings that the court can either adopt, modify, or use in some manner when drafting her own order. In Harris County, we now draft orders and findings that take the evidence presented at the hearing and apply them to the specific statutory factors of §54.02. If no evidence exists for one or more of the four factors, the order should state that the evidence supporting the other factors outweighs the absence of any evidence for that one factor. This is often the case where a juvenile is a first offender but has committed a particularly horrific offense or has committed multiple aggravated offenses.
    Thus far, the findings and orders that have been appealed in Harris County post-Moon have survived appellate scrutiny. Sarah had a certification hearing on a juvenile whose first offense in the system was murder—before that, he had never had so much as a traffic ticket. However, his role in the murder was especially heinous. He confessed to killing another gang member with a machete and then left the body in a remote wooded area. The scene was incredibly gruesome and the photos even worse. Evidence was presented of the act itself, including crime scene photos, an autopsy report, and the juvenile’s statement. A gang expert testified in great detail on the structure of the juvenile’s gang and its rituals, rules, and expectations, as well as the danger the gang presented to the community. The expert was able to illuminate the dark role this juvenile played not only in the alleged offense, but also in that specific criminal street gang.

Once jurisdiction is waived
When a juvenile court waives its jurisdiction, it does so over a particular criminal incident that the juvenile is alleged to have committed, not over a particular statutory offense. This means that as long as the juvenile court waives its jurisdiction over a particular set of facts, the adult-court prosecutor is free to charge the juvenile with any specific offense that fits that criminal episode. For example, if a minor was charged in juvenile court with committing a capital murder involving a robbery, once that juvenile is certified, the adult-court prosecutor may proceed on a capital murder, murder, or even an aggravated robbery indictment—any offense that fits the crime.
    Once a juvenile has been certified in one case, the law states that any subsequent felony offenses committed while the offender is still under age 17 shall be transferred as well. The mandatory transfer statute in the Family Code dispenses with the requirement of another diagnostic study, social evaluation, and investigation, but it does require that the juvenile court conduct an additional certification hearing. It is not proper to simply file the new offense directly into the adult system without having this hearing. Of course, the adult-court prosecutor also may present the offense as an extraneous offense in the adult court trial rather than the juvenile prosecutor seeking certification of a new offense. This decision should be discussed with the prosecutor handling the certified case in adult court.
    If a new transfer petition is filed in a juvenile court, the best practice is to say in the petition that the State is relying upon the mandatory transfer statute so that the juvenile and his attorney have notice of it. At the hearing, the State should introduce evidence of the prior transfer order, evidence that the adult case has been indicted or that it resulted in a final conviction (for example, a copy of the pending indictment and proof of a pending future court setting or a judgment and sentence), and evidence of probable cause for the new offense. If the original (transferred) offense is not indicted or dismissed with prejudice, or the conviction was reversed and is final, then the State cannot rely upon the mandatory transfer statute. In the unusual situation where the originally transferred case was reversed on appeal and the reversal is final, then presumably any conviction for the mandatory transfer case would be void. (We say “presumably” because it would be a very uncommon situation; we are not sure it’s ever happened.)

“Over-18” certifications
In addition to the process of transferring a juvenile to adult court, there is also a mechanism for holding an adult responsible for actions he committed when he was a juvenile. The State may seek to certify the criminal incident that occurred in the past even if the offender is currently age 18 or older. The Family Code sets forth the procedure for “over-18” transfer petitions, as they’re called, and a prosecutor must be aware of several hurdles that exist before the transfer can succeed. For all offenses other than capital murder or murder, the law governing the age at the time of the offense controls. For example, an 18-year-old who committed a first-degree felony (such as aggravated sexual assault) at age 13 cannot be certified, but if he committed the offense at age 14, he would be eligible for certification. Capital murder and murder are treated differently in the Family Code from any other offenses. Transfer for these two offenses carries a minimum age of 10, which is the youngest age at which the State may prosecute any crime.
    During an over-18 hearing, the prosecutor must prove that no adjudication has occurred for the criminal incident that he is seeking to transfer. Probable cause must be established for the offense alleged in the petition, and the State must prove by a preponderance of the evidence that one of the four situations eligible for an over-18 transfer occurred (explained below).

1. The first circumstance is that for a reason beyond the State’s control, it was not practicable to proceed before the juvenile’s 18th birthday. A recent case decided by the Texas Court of Criminal Appeals, Moore v. State, is an example of how the State did not meet its burden under this statute. In Moore, a child abuse investigator had a heavy caseload and took two years to complete an investigation before she handed the case over to a prosecutor. The investigator also made a mistake with regard to the perpetrator’s age and mistakenly believed he was 17 when the investigator presented the case, but the perpetrator was actually 18. Prosecutors took a year to file a petition to transfer, and the case was transferred to an adult district court when Moore was 19 years old. The CCA held that the officer’s heavy caseload was not a circumstance beyond the State’s control and therefore the State had not met its burden. Unfortunately, both of us have had to inform officers that we could not file cases due to suspects turning 18 before the investigation was completed and turned over to us for review.

2. The second situation that allows the State to seek an over-18 transfer is when the State can show that there was no probable cause to file the case originally, and new evidence that provides probable cause to move forward has been found after the juvenile’s 18th birthday. For example, Sarah had an aggravated sexual assault in which the victim did not know her assailant and she was unable to identify the rapist. It wasn’t until a few years later that the DNA recovered from her rape kit matched a CODIS hit and her rapist was identified. The offender was under 17 at the time of the sexual assault but in his 20s when the CODIS hit occurred. It was impossible to prosecute him when he was a juvenile because he hadn’t yet been identified; however, once the identification was made, we sought certification utilizing the over-18 provision.

3. A third circumstance occurs when probable cause exists to file a certification petition on a juvenile before age 18 but the juvenile could not be found until after he turned 18. It is vital to prove and put on evidence that the State exercised due diligence in its efforts to locate the juvenile prior to his 18th birthday. Without any evidence of attempts to locate him, the State will not prevail. In any serious offenses, such as a murder case with probable cause that a juvenile committed the offense before age 18, investigators must routinely search for the juvenile on a regular basis and document those efforts in the police report so that the court can make a finding of due diligence if the juvenile is not located before his 18th birthday.

4. The fourth and final circumstance is when a previous transfer order was set aside by a district court or there was an appellate reversal of a certification order and the State seeks to re-certify the offender, such as in the cases reversed after the Moon opinion. So far there have been about five Moon reversals in Harris County, and they have all been refiled in the juvenile district court by utilizing this provision.
    If prosecutors can prove any one of these circumstances, then the State may prevail on a transfer petition filed on an individual who is over 18 at the time of filing. Again, the most important part of this type of hearing is the due diligence finding. The State must prove that it exercised due diligence in handling these uncommon scenarios. Prosecutors must inform and train officers to diligently and swiftly investigate juvenile cases before the juvenile turns 18. If even one serious case is rejected because of error on our part, it is one too many.
 
Conclusion
Transfer hearings, whether discretionary or mandatory, involve myriad obstacles to challenge juvenile prosecutors. The decision to even seek certification is one not to be taken lightly, and the prospect of transferring a child to adult court must be scrutinized thoroughly. While remaining cognizant of the fact that rehabilitation is the cornerstone of the juvenile system, we must also keep community safety at the forefront of our minds and sometimes seek to certify a juvenile offender as an adult. This is the delicate balance of juvenile work.

Endnotes
1  Tex. Fam. Code §51.02(1). Unless otherwise specified, all subsequent cites are to the Tex. Fam. Code.

2  §54.02(b).

3  §54.02(d).

4  R.E.M. v. State, 541 S.W.2d 841 (Tex.Civ.App. —San Antonio 1976, writ ref.d n.r.e.).

5  §54.02(e).

6  §54.02(n).

7  §54.02(e).

8  §54.02(c).

9  In re D.R.M., No. 89-01192-CV, 1990 WL 159335 (Tex. App.—Houston [1st Dist.] 1990) (not for publication). There are no published opinions on this topic.

10  §54.02(a)(3).

11  §54.02(f)(1)–(4).

12  Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014).

13  §56.01(c)(1)(A).

14  Moon, 451 S.W.3d at 50.

15  §54.02(m).

16  §54.02(n).

17  §54.02(n).

18  §54.02(m)(1).

19  §54.02 (j).

20  §54.02(j)(2)(B)–(C).

21  §54.02(j)(2)(A).

22  §54.02(j)(3).

23  §54.02(j)(5).

24  §54.02(j)(4)(A).

25  Moore v. State, No. PD-1634-14, 2017 Tex. Crim. App. LEXIS 167 (Tex. Crim. App. Feb. 8, 2017) (op. on reh’g).

26  §54.02(j)(4)(B)(i).

27  §54.02(j)(4)(B)(ii).

28  §54.02(j)(4)(B)(iii).