in the Matter of X.S., a Juvenile

                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                   No. 06-22-00073-CV




        IN THE MATTER OF X.S., A JUVENILE




        On Appeal from the County Court at Law
               Harrison County, Texas
               Trial Court No. 5105-J




      Before Morriss, C.J., Stevens and van Cleef, JJ.
               Opinion by Justice Stevens
                                                OPINION

           In this accelerated appeal, X.S. challenges the juvenile court’s order waiving jurisdiction

and transferring his case to a criminal district court for trial as an adult on charges of murder,

participating in a riot, and engaging in organized criminal activity.1 X.S. argues that (1) the

juvenile court lacked jurisdiction due to a defective summons and that (2) the evidence is legally

and factually insufficient to support the juvenile court’s findings favoring the decision to transfer

the case. Because we conclude that the summons was not defective and that the decision to

transfer was supported by sufficient evidence, we affirm the juvenile court’s order of transfer.

I.         Background

           On February 18, 2022, the State filed both an adjudication petition against sixteen-year-

old X.S. and an original petition for discretionary transfer to criminal court. This Court reversed

the juvenile court’s prior decision to transfer this case after finding that the previous record failed

to show that X.S. received a summons attaching a petition to certify him has an adult. See In re

X.S., No. 06-22-00038-CV, 

, at *1 (Tex. App.—Texarkana Sept. 2, 2022, no

pet.) (mem. op.).

           In its first amended petition for discretionary transfer to criminal court, the State alleged

that X.S. engaged in organized criminal activity by committing the murder of Kaden Barrick

while being a member of a criminal street gang. The State also alleged that the murder occurred

after X.S.’s participation in a riot that caused a fight to break out. Because the charges were not




1
    See TEX. PENAL CODE ANN. §§ 19.02, 42.02, § 71.02 (Supp.).
                                                         2
adjudicated, the State prayed for a discretionary transfer to a criminal court. Section 54.02 of the

Texas Family Code, which authorizes such a transfer, states, in relevant part:

              (a)     The juvenile court may waive its exclusive original jurisdiction
       and transfer a child to the appropriate district court or criminal district court for
       criminal proceedings if:

                       (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 he is alleged to
                       have committed the offense, if the offense is a capital felony, an
                       aggravated controlled substance felony, or a felony of the first
                       degree, and no adjudication hearing has been conducted
                       concerning that offense; or

                               (B)    15 years of age or older at the time the child is
                       alleged to have committed the offense, if the offense is a felony of
                       the second or third degree or a state jail felony, and no adjudication
                       hearing has been conducted concerning that offense; and

                      (3)     after a full investigation and a hearing, the juvenile court
               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.

TEX. FAM. CODE ANN. § 54.02(a).

       At the hearing, Kenny Phillips, a detective with the Marshall Police Department, testified

that many people met at a local park to engage in a fight that resulted in the shooting death of

Barrick. According to Phillips, witnesses identified X.S. as the shooter. Phillips said that X.S.

fled after the shooting and was found in Gregg County. After his arrest, X.S. executed a written

confession admitting to discharging a firearm during the incident.

                                                 3
       Scott Smith, a lieutenant with the Marshall Police Department, testified that, based on his

investigation of gang member social media accounts, he believed X.S. was a member of the

“SRT” gang. Smith testified that X.S. had a caption underneath his screen name that said,

“Murda . . . doctor” after the shooting.

       The juvenile court also heard testimony from Philleniea Williams, a Juvenile Probation

Officer for Harrison County, and admitted a psychological evaluation, social history report, and

an East Texas Council on Alcoholism and Drug Abuse (ETCADA) evaluation without objection.

Williams    testified   that   the   psychological   evaluation   showed   X.S.   had    attention-

deficit/hyperactivity disorder, impulsive propensities, and difficulty maintaining control over his

emotions and anger. Even so, he could anticipate the consequences of his actions and recognize

the boundaries of appropriate behavior. As for his intelligence, the evaluation stated that, “[o]n

this administration of the Wechsler Adult Intelligence Scale – Third Edition (WAIS-III), [X.S.]

obtained a Verbal IQ of 86 (18th percentile), a Performance IQ of 77 (6th percentile), and a Full

Scale IQ score of 80 (9th percentile). Results suggested current general intellectual functioning

in, the Low Average range.” X.S. claimed during the evaluation that he was not at the crime

scene, but the evaluation concluded that X.S. tended to minimize problems and tried to describe

himself in socially desirable terms. Williams testified, and the evaluation showed, that X.S. was

not diagnosed with any mental condition and was found competent.

       Williams prepared the social history report, which considered X.S.’s school and

disciplinary records. Williams, who had contacted school officials, noted that a principal said

X.S. had difficulty making good choices and considering the consequences of his actions, that

                                                 4
another principal described X.S. as extremely immature, and that his counselor said that he was

easily influenced and immature. The school’s disciplinary report contained twenty-two referrals,

including one in which X.S. allegedly had a handgun while at school. Williams also testified

that X.S. was not passing his school classes.

       The social history showed that X.S. had previously been referred to Harrison County

Juvenile Services for unauthorized use of a vehicle and resisting arrest or search. Williams

testified, and the social history showed, that X.S. had “anger outbursts” while in the detention

center and was “sneaky and hot tempered.” According to Williams, X.S.’s detention supervisor

and juvenile supervision officer felt that X.S. had limited comprehension, did not understand the

severity of his choices, and was a follower, not a leader. While in the Juvenile Detention Center,

X.S. received write-ups for using social media, failing to follow instructions, beating on his door,

and being disrespectful. Yet, Williams said there was nothing in the reports that suggested X.S.

did not know right from wrong.

       When asked about the ETCADA evaluation results, Williams testified that it showed X.S.

had tested positive for marihuana and that he had severe cannabis use disorder.

       At the end of the hearing, the juvenile court concluded that the juvenile system would be

unable to provide X.S., who had turned seventeen, with adequate services to sufficiently

rehabilitate him before he reached eighteen.

II.    The Juvenile Court’s Summons Was Not Defective

       In his first point of error, X.S. argues that the juvenile court lacked jurisdiction to transfer

him to criminal court because the summons served on him was defective. We disagree.

                                                  5
       “[T]he right of a juvenile offender to remain outside the jurisdiction of the criminal

district court is not absolute.” Ex parte Arango, 

 (Tex. App.—Houston [1st

Dist.] 2017, pet. ref’d). A juvenile’s discretionary transfer to criminal court is authorized by

Section 54.02 of Texas Family Code. TEX. FAM. CODE ANN. § 54.02. That section sets forth

petition and notice requirements and provides that “the summons must state that the hearing is

for the purpose of considering discretionary transfer to criminal court.” TEX. FAM. CODE ANN.

§ 54.02(b).

       Here, the State’s first amended petition for discretionary transfer to criminal court

requested “that summons as required by law be issued.” On April 7, 2022, the same day as the

amended petition was filed, the juvenile court issued a summons to X.S. and his mother, which

we previously found to be defective. See In re X.S., 

, at *1. After our prior

opinion in this case issued on September 2, the juvenile court issued a new summons

commanding X.S. and his mother to appear in person on Wednesday, September 14, 2022, at

2:45 for an “ADULT CERTIFICATION and TRANSFER HEARING.” The summons, which

was served by Williams on both parties on September 6, also stated that a copy of the petition

was attached. The State’s live pleading was the first amended petition for discretionary transfer

to criminal court. Williams testified that she had personally served X.S. and his mother with a

summons for court and said that they had notice that the hearing was an adult certification

transfer hearing. Williams also clarified that she had served them with a copy of the “petition for

certification.” Also, the juvenile court’s order expressly found that X.S. was personally served



                                                6
with a copy of the “Petition Seeking Discretionary Transfer.” X.S. and his mother were present

at the hearing.

        We conclude that the summons, which stated that the hearing was for an “ADULT

CERTIFICATION and TRANSFER HEARING,” complied with Section 54.02 because it

notified X.S. and his mother that the hearing was for the purpose of considering discretionary

transfer to criminal court. The summons also said that a petition was attached. Because of

Williams’s testimony and the trial court’s findings, unlike the circumstances of our prior opinion

in In re X.S., the record affirmatively showed that X.S. received a copy of a petition seeking

discretionary transfer to a criminal court. 

 As a result, we do not conclude that the summons

was defective such that it deprived the juvenile court of jurisdiction. We overrule X.S.’s first

point of error.

III.    The Juvenile Court’s Decision Was Supported by Sufficient Evidence

        In his last point of error, X.S. argues that the evidence was legally and factually

insufficient to support the juvenile court’s transfer decision. “The State has the burden to

persuade the juvenile court by a preponderance of the evidence that the welfare of the

community requires transfer of jurisdiction for criminal proceedings, either because of the

seriousness of the offense or the background of the child (or both).” In re T.C., No. 06-21-

00075-CV, 

, at *3 (Tex. App.—Texarkana Feb. 10, 2022, no pet.) (mem. op.)

(quoting In re A.K., No. 02-20-00410-CV, 

, at *19 (Tex. App.—Fort Worth

May 6, 2021, pet. denied) (mem. op.) (citing In re K.W., No. 02-19-00323-CV, 

,



                                                7
at *3 (Tex. App.—Fort Worth Jan. 9, 2020, no pet.) (mem. op.))). The juvenile court considers

the following in making a transfer decision:

       (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.

 (quoting TEX. FAM. CODE ANN. § 54.02(f)). “The factors in Section 54.02(f) are nonexclusive

factors . . . and any combination of these criteria may suffice to support a waiver of jurisdiction

and transfer.” Id. (quoting In re C.O., No. 02-21-00235-CV, 

, at *5 (Tex.

App.—Fort Worth Dec. 16, 2021, pet. filed) (mem. op.)). “Also, ‘[t]he statute requires only that

the court consider the factors listed; it does not mandate that any particular factor be true, or limit

the purpose for which the factors may be considered.’” 

 (quoting In re Z.T., No. 05-21-00138-

CV, 

, at *13 (Tex. App.—Dallas Aug. 17, 2021, pet. denied) (citing Ex parte

Thomas, 

, 382 (Tex. Crim. App. 2021))). “The court is also not required to give

each of the factors equal weight.” 

 (quoting In re Z.T., 

, at *13).

       A.      Standard of Review

       “Our review of a transfer order is two pronged.” 

 (quoting In re A.K., 

, at *18). “First, we review the juvenile court’s specific findings of fact regarding the

Section 54.02(f) factors under ‘traditional sufficiency of the evidence review.’” 

 (quoting

In re A.K., 

, at *18 (quoting In re C.M.M., 

 (Tex. App.—
                                                  8
Houston [14th Dist.] 2016, pet. denied))). “Under a factual sufficiency challenge, we consider

all the evidence presented to determine if the juvenile court’s findings are against the great

weight and preponderance of the evidence so as to be clearly wrong and unjust.” 

 (quoting In

re A.K., 

, at *18) (citing In re C.M.M., 

); see In re Z.T., No.

05-21-00138-CV, 

, at *8 (Tex. App.—Dallas Aug. 17, 2021, pet. denied)

(mem. op.) (“Where, as here, we have a record from the hearing, we may review the entire

record to determine whether the facts elicited sufficiently support the juvenile court’s stated

reason or reasons for the transfer.”).

        “Second, we review the juvenile court’s waiver decision for an abuse of discretion.” 

(quoting In re A.K., 

, at *18) (citing In re C.M.M., 

). Stated

differently,

        in deciding whether the juvenile court erred to conclude that the seriousness of the
        offense alleged or the background of the juvenile or both 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.

 (citing In re A.K., 

, at *18) (citing In re C.M.M., 

). “A

juvenile court abuses its discretion when its transfer decision is essentially arbitrary, given the

evidence upon which it was based.” 

 (quoting In re A.K., 

, at *18) (citing

In re C.M.M., 

). “By contrast, a waiver decision representing ‘a reasonably

principled application of the legislative criteria’ generally will pass muster under this standard of

review.” 

 (quoting In re A.K., 

, at *18) (quoting In re C.M.M., 

).
                                                 9
         B.       Analysis

         As for the first Section 54.02(f) factor, X.S. was charged with three offenses, including

(1) the murder of Barrick, a first-degree felony under Section 19.02 of the Texas Penal Code,

(2) engaging in organized criminal activity by being “a member of the criminal street gang

‘SRT’” while committing murder, also a first-degree felony under Section 72.01 of the Texas

Penal Code, and (3) participating in a riot that resulted in fighting under Section 42.02 of the

Texas Penal Code.2 The juvenile court found that there was probable cause to believe that X.S.

committed the offenses as alleged. Because of the testimony by Phillips and Smith, recited

above, we conclude that the juvenile court’s finding of probable cause was supported by

factually sufficient evidence.          Since X.S.’s offenses were aimed at harming persons, not

property, and one of those offenses resulted in a death, we conclude that the offenses weighed

heavily in favor of transfer.

         As to the second factor, the juvenile court found that X.S. was sophisticated and mature

based on the nature and circumstances of the offenses and his social, psychological, and

ETCADA evaluations.3 “[I]n assessing maturity and sophistication, courts place weight on

whether there is evidence indicating the juvenile knew right from wrong.” In re T.C., 

, at *4 (quoting In re Z.T., 

, at *14) (citing In re K.J., 

,

2
 Participating in a riot is typically a Class B misdemeanor except that it “is an offense of the same classification as
any offense of a higher grade committed by anyone engaged in the riot if the offense was: (1) in the furtherance of
the purpose of the assembly; or (2) an offense which should have been anticipated as a result of the assembly.” TEX.
PENAL CODE ANN. § 42.02(f).
3
 Relying on Moon v. State, 

 (Tex. Crim. App. 2014), X.S. argues that the trial court’s findings were
not specific enough. Moon was disavowed and overruled in Ex parte Thomas, 

, 379 (Tex. Crim.
App. 2021) (orig. proceeding). As a result, while detailed findings are preferred, “case-specific fact-findings” are
not necessary. Id. at 381.
                                                         10
151 (Tex. App.—Houston [1st Dist.] 2016, no pet.)). The evidence showed that X.S. was

immature, was of low average intelligence, was easily influenced, and had difficulty making

good choices and considering the consequences of his actions. Even so, Williams expressly

testified that X.S. knew the difference between right and wrong. The psychological evaluation

said that X.S. “display[ed] adaptive capacity to think logically and coherently.” The evaluation

continued, “He is about as capable as most people in recognizing conventional modes of

response.” It also showed X.S. could anticipate the consequences of his actions and recognize

the boundaries of appropriate behavior. As a result, X.S. described himself in socially desirable

terms and tended to minimize problems. Also, the record showed that X.S. fled to another

county after committing the alleged offenses. From this fact, the juvenile court could have

concluded that X.S. was aware that his actions were wrong. See id. (finding that juvenile’s flight

indicated he was aware that his actions were wrong). X.S. also demonstrated maturity when,

after further reflection, he decided to execute a written confession stating that he had discharged

a firearm at the park. See id. Even though the evidence on the second factor was conflicting, we

cannot say that the juvenile court’s finding on the second Section 54.02(f) factor was against the

great weight and preponderance of the evidence. See id.

       Next, as for X.S.’s record and previous history, Smith testified that he believed X.S. was

a member of the SRT gang, which carried significant weight. See In re K.M., No. 01-20-00121-

CV, 

, at *12 (Tex. App.—Houston [1st Dist.] July 23, 2020, no pet.) (mem.

op.) (“A juvenile court may give significant weight to gang affiliation when assessing previous

history.”). X.S. had used marihuana, and his ETCADA labeled him as having severe cannabis

                                                11
use disorder. Also, “[t]he juvenile court may consider disciplinary measures taken by the child’s

school and rule infractions while the child is in the juvenile detention facility following the

commission of the offense in determining whether the child’s record and previous history weigh

in favor of transfer.” Bell v. State, 

, 895 (Tex. App.—Houston [1st Dist.] 2022,

pet. filed). X.S., who was not passing his classes, had twenty-two school referrals, including one

involving an allegation that he brought a gun on campus. X.S. was previously referred to

Harrison County Juvenile Services for unauthorized use of a vehicle and resisting arrest or

search. He was described as having a hot temper and received write-ups for using social media,

failing to follow instructions, beating on his door, and being disrespectful. We find that the

juvenile court’s finding that the third Section 54.02(f) factor weighed in favor of transfer was

supported by factually sufficient evidence.

       As for the last factor, we note that the third Section 54.02(f) factor also “serve[s] 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.” In re T.C., 

, at

*5 (quoting In re T.L., No. 02-19-00200-CV, 

, at *6 (Tex. App.—Fort Worth

Sept. 26, 2019, no pet.) (mem. op.)). Despite prior referrals to juvenile services, X.S. continued

to engage in delinquent conduct. Two pending charges against him were serious first-degree

felonies that involved a firearm. Though he was facing those charges, X.S. received write-ups

for misbehavior while in juvenile detention. Also, X.S. was seventeen at the time of the hearing,

and that was “particularly relevant . . . because the resources of the juvenile court are designed to

assist and rehabilitate juveniles, not adults.” 

 (quoting In re Z.T., 

, at *13)

                                                 12
(citing In re H.Y., 

 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)). We

find that the juvenile court’s decision on the last Section 54.02(f) factor was supported by

factually sufficient evidence.

       The circumstances of the offenses also weighed heavily in favor of the transfer. The

evidence showed that X.S., while a member of a gang, participated in a riot and shot a firearm,

killing Barrick. The trial court could have found that X.S.’s decision to include the caption

“Murda . . . doctor” on his social media account displayed cold-bloodedness. After reviewing all

the evidence, we cannot find that the juvenile court’s Section 54.02(f) findings were against the

great weight and preponderance of the evidence so as to be clearly wrong and unjust. As a

result, we overrule X.S.’s complaint that these findings were not supported by factually sufficient

evidence.

       On this record and in light of these findings, we cannot say that the juvenile court’s

decision was arbitrary or made without reference to guiding rules or principles. Instead, the

decision resulted from an application of legislative criteria after careful consideration of the

surrounding facts and circumstances. Accordingly, we find no abuse of discretion in the juvenile

court’s decision to waive jurisdiction and transfer the case to a criminal district court.




                                                  13
IV.   Conclusion

      We affirm the juvenile court’s order of transfer.




                                            Scott E. Stevens
                                            Justice

Date Submitted:      December 13, 2022
Date Decided:        December 14, 2022




                                               14