- Posted by Hans Nielsen
- Juvenile Defense
Any discussion of juvenile certifications requires a review of the fundamental basics that any lawyer must be aware of in any hearing and on any later appeal. To begin with, the certification of a juvenile is based on the age of the juvenile and the degree of the felony offense. The youngest age at which the State may seek to certify a juvenile is age fourteen. However, the only offenses that a fourteen year can be certified for are capital murder, first degree felony offenses and any aggravated controlled substance felonies. An aggravated controlled substance felony is defined in the Family Code as a controlled substance offense that has a minimum sentence or fine greater than that for a first degree felony. Texas Family Code Section 51.02 (1). Offenses such as the first degree felony offense of possession of more than four hundred grams of cocaine would fit this definition since the minimum sentence for that offense is ten years. Once a juvenile reaches the age of fifteen any felony offense is eligible for transfer. It's also important to note that the age of the juvenile at the time that he committed the offense determines his eligibility to be certified and not his age at the time of the hearing.
When a court waives its jurisdiction it does so over a particular criminal transaction that the juvenile is alleged to have committed and not a particular statutory offense. What this means is that as long as the juvenile court waives its jurisdiction over a particular set of facts, an adult court prosecutor is free to charge the juvenile with any specific offense in the penal code that fits that criminal transaction. For example, if a juvenile was alleged to have committed a capital murder which involved a robbery offense the adult court prosecutor is free to proceed on a capital murder, murder or even an aggravated robbery indictment. As long as she does not stray into another criminal transaction that was not alleged in the certification petition, the adult court prosecutor is free to charge the certified juvenile with whatever penal code offense fits the crime.
A juvenile certification hearing must begin with the filing of a petition in a juvenile court that specifically states in writing 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 summons. Tex. Fam. Code Section 54.02 (b). Both are vitally important to know because if a juvenile is certified to stand trial as an adult and he was not personally served or the certification petition fails to state that it is requesting that the court waive its jurisdiction then the case will be reversed. A parent or guardian must also be served but if they appear at the hearing then service is considered to have been waived. 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.
All certification hearings must be heard by the presiding juvenile court judge and cannot be heard by the associate judge. 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 faced with an offense that was committed by numerous juveniles. If a decision has been made to file a certification petition on more than one juvenile a court may have the hearing for all of the juveniles at one time. If a motion to sever is filed by one of the juveniles attorneys the decision to sever is at the discretion of the court. Unless the juvenile can show some prejudice against him based on having his hearing with his co-actors the denial of any severance will be upheld on any appeal.
While the rules of evidence apply in juvenile proceedings the courts have ruled that hearsay evidence is admissible in a certification hearing. Prior to any hearing by the juvenile court to transfer its jurisdiction, the court is required to order that a full diagnostic study, social evaluation and investigation of the child and the circumstances of the offense be made. Texas Family Code Section 54.02 (d). If a juvenile refuses to cooperate in the making of the report it will still be considered complete. R.E.M. v. State, 541 S.W. 2d 841 (Tex.Civ.App. - San Antonio 1976, writ ref.d n.r.e.). While this report is required for all discretionary hearings it is not required for a mandatory transfer hearing. Texas Family Code Section 54.02 (n). It is important to note that this written report ordered by the court and any other written matters that either side wishes to introduce must be made available to both sides at least five days before the hearing. Texas Family Code Section 54.02 (e).
Prosecutors and defense attorneys must make sure that they provide opposing counsel with all written materials that they intend to introduce in the hearing at least five days before the hearing is held. The legislature also made it clear that despite the rules of evidence that generally excludes most hearsay evidence, a juvenile court may consider written reports in addition to testimony from witnesses. Texas Family Code Section 54.02 (e).
The Texas Legislature, in Family Code Section 54.02, gave juvenile courts the specific instruction that they must consider at least four factors when making a decision to waive its exclusive jurisdiction over a juvenile. The factors that must be considered by a juvenile court are (1) whether the offense was against person or property; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the protection of the public and likelihood of rehabilitation of the child within the juvenile system. In addition, 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." Texas Family Code Section 54.02(a)(3). If the juvenile court fails to make this finding or the evidence does not support this finding the courts waiver will not survive an appeal.
For many years the Court of Criminal Appeals had not issued any significant opinions regarding the issue of juvenile certifications. That changed with the landmark opinion by the Court in the Moon case. Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014). This case is a must read for all lawyers who are going to participate in a certification hearing in a juvenile court. Besides the CCA 's directive to district courts to detail their findings and demonstrate their reasoning in their written order, the Moon case held that the record must be developed with sufficient facts and evidence to justify the Courts findings and decision. This means that any prosecutor who conducts a certification hearing must make sure they provide sufficient evidence to support the Courts findings that it makes in the written transfer order. The CCA made it clear in Moon that not every one of the four factors must be proven in order to support transfer. 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 or the background of the child or both. However, the Moon decision made it clear that a district court cannot just certify a juvenile based solely on the mere category of offense the juvenile is alleged to have committed. Therefore, if a prosecutor is relying primarily on the first factor for transfer, that the offense was a crime against a person, the Moon case tells prosecutors that not only must they put on as much testimony and evidence as possible to show how egregious the offense was and how dangerous the juveniles behavior and actions in the commission of the offense were, but they must also ensure that the Courts order details specific evidence of those facts and the reasoning that the Court used to support its finding. If that is not done then a certification may not survive an appeal.
Before a juvenile court can waive its jurisdiction over a particular transaction and send the juvenile and the transaction he is alleged to have committed to an adult district court a written order and judicial findings must be signed by a judge. For many years in Harris county a boilerplate fill in the blank order was used that merely recited the language found in section 54.02. The order was typed up by the district attorney's office and given to the judge to sign. The Moon case immediately ended that practice. Now a judge must show her work and detail the reasons and the evidence that were considered to enter this decision. The CCA made it clear in Moon that it is not the job of the appellate court to "rummage" through the record to find facts that the juvenile court should have included in its written transfer order.
Once a juvenile has been certified in one case the law states that a subsequent felony offense committed while the juvenile is still under age seventeen shall be transferred. Texas Family Code Section 54.02(m). This unusual situation sometimes happens when a juvenile has been certified to stand trial as an adult and then commits another felony offense before he turns seventeen. 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 another transfer hearing be conducted by the juvenile court. Texas Family Code Section 54.02(n). It is not proper to simply file the new offense directly into the adult system without having this hearing. Of course, the adult prosecutor is not precluded from just using the offense as an extraneous in guilt innocence or in the punishment phase of the adult trial. The Family Code requires that the State provide fair notice that the mandatory transfer statute is being used as the purpose of the hearing. Texas Family Code Section 54.02(n). At the hearing the state simply has to introduce into evidence the prior transfer order; that the adult case has been indicted or that it resulted in a conviction that is final ( a copy of the pending indictment and proof of a pending future court setting or a judgment and sentence), and evidence that probable cause exists for the new offense. If the original offense that was transferred is not indicted, dismissed with prejudice or the conviction is reversed and final then the mandatory transfer statute cannot be relied upon In the unique situation where the originally transferred case is reversed on appeal and the reversal is final then presumably any conviction for the mandatory transfer case would be void.
In certain cases the State may seek to certify a criminal transaction that occurred in the past in which the juvenile offender is now age 18 or older. The Family Code deals with over 18 transfer petitions but all lawyers must be aware of several hurdles that exist before the transfer can succeed. Texas Family Code Section 54.02 (j). For all offenses other than capital murder or murder the law governing the age at the time of the offense controls. Texas Family Code Section 54.02(j)(2)(B)(C). For example, an eighteen year old who committed a first degree felony such as aggravated sexual assault at age thirteen cannot be certified but if he committed it when he was fourteen he can be. However, the offenses of capital murder and murder are treated differently in the Family Code. Texas Family Code 54.02 (j) (2) (A). No age limit exists for an over eighteen transfer for these two offenses except for the minimum age of ten which is the youngest age at which the State may prosecute. The first thing the state must prove in any over 18 hearing is that no adjudication has occurred for the transaction that they are seeking to transfer. Texas Family Code 54.02 (j) (3). There must also be proof presented that there is probable cause for the offense that is alleged in the over eighteen petition. Texas Family Code 54.02 (j) (5). In addition, the state must also prove with a preponderance of the evidence that one of four circumstances has occurred. One of those circumstances is that for a reason beyond the control of the State it was not practicable to proceed before the juveniles eighteenth birthday. Texas Family Code 54.02 (j) (4)(A). The other three require a showing that the State has exercised due diligence in its attempts to solve the case, find the juvenile or appeal the case. Texas Family Code 54.02 (j) (4). The first of those three circumstances require that the State show that there was no probable cause to file the case and that new evidence has been found after the juveniles eighteenth birthday that now provides probable cause to move forward. The other two circumstances are that the juvenile could not be found or that there was an appellate reversal of a certification order. If any one of those can be shown then the State may prevail on a transfer order filed on an individual who is over eighteen at the time of the filing of the petition. The important part of this hearing is the due diligence finding. If there is no evidence shown at the hearing that attempts were made to find the juvenile and bring him to justice before his eighteenth birthday then the State cannot prevail. If there was probable cause to file the charge before age eighteen but investigators took too long to investigate and file the case the same result will occur.