In the Matter of L.B.--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-021-CV

IN THE MATTER OF L.B.

From the 19th District Court

McLennan County, Texas

Trial Court # 94-08-J

O P I N I O N

Alleging L.B. had committed two felony offenses, the State requested that the juvenile court waive its jurisdiction and transfer him to a district court for criminal proceedings. See Tex. Fam. Code Ann. 54.02 (Vernon 1986 & Supp. 1994). After a hearing, the juvenile court waived its jurisdiction over the child on the two counts of aggravated robbery alleged in the petition. See id.; Tex. Penal Code Ann. 29.03 (Vernon Supp. 1994). L.B. brings seven points of error, challenging the court's decision to certify him as an adult. In points one and two, L.B. complains that the McLennan County Juvenile Probation Department did not investigate other alternatives to certification and implemented a per se policy of seeking certification in aggravated robbery cases. In point three he argues that the Juvenile Probation Department is exercising executive powers contrary to the Texas constitution. Next, he challenges the sufficiency of the evidence to support the court's ruling in points four through six. Finally, he claims that the court erroneously required him to carry a burden of proof to avoid certification. We will affirm.

Generally, the juvenile court has exclusive jurisdiction over individuals between the ages of ten and seventeen. See Tex. Fam. Code. Ann. 51.02(1), 51.04(a), 51.08(a). However, upon application by the state, the juvenile court may waive its exclusive original jurisdiction and transfer the child to a district court for criminal proceedings. See id. 54.02(a). The court may waive jurisdiction if (1) the child was at least fifteen-years old at the time of the alleged offense; (2) there has been no adjudication-of-delinquency hearing involving the alleged offense; and (3) "after full investigation and hearing," the court finds probable cause to believe that the child committed the felony alleged and that the welfare of the community requires that the child, due to the seriousness of the alleged offense or the background of the child, be dealt with in a criminal proceeding. Id.

The statute lists six factors that the court "shall" consider in making a decision on the certification request. Id. 54.02(f). Concerning the alleged offense, these factors include whether the offense was against a person or property, whether it was committed in an aggressive or premeditated manner, and whether there is sufficient evidence to expect that a grand jury will return an indictment. Id. (f)(1), (2), (3). Concerning the child, the court must consider the child's sophistication, maturity, record, and previous history. Id. (f)(4), (5). Finally, the court must consider, in light of the resources available to it, the rehabilitation of the child and protection of the public. Id. (f)(6).

Although the court is required to consider each factor, the court need not find that each is established by the evidence. See Matter of K.D.S., 808 S.W.2d 299, 302 (Tex. App. Houston [1st Dist.] 1991, no writ). Nor is the court required to give each factor the same weight. Matter of C.C.G., 805 S.W.2d 10, 15 (Tex. App. Tyler 1991, writ denied). We review the court's decision under the abuse-of-discretion standard. See Matter of T.D., 817 S.W.2d 771, 773 (Tex. App. Houston [1st Dist.] 1991, writ denied).

In his first two points, L.B. alleges that the Juvenile Probation Department did not fully investigate alternatives other than certification and that this failure to investigate amounts to a per se policy of seeking certification in aggravated robbery cases. He appears to argue that the statute places a duty on the Department to exercise diligence and effort in determining what facilities and programs are available to the court. However, the statute addresses itself to the actions of the court, not the actions of the Probation Department. The statute allows for wavier of jurisdiction if "after full investigation and hearing the juvenile court determines" that the community is best served by criminal proceedings. Tex. Fam. Code Ann. 54.02(a)(3).

Additionally, as an appellate court, we review the trial court's actions, not those of the Juvenile Probation Department. Because we review the actions of the trial court, L.B. is required to obtain an adverse ruling by the court on a request, objection, or motion. See Tex. R. App. P. 52(a). Absent the adverse ruling, we have nothing to review. If L.B. has a complaint concerning the basis of the court's decision regarding the efficacy of alternatives other than criminal proceedings, his complaint should be directed against the sufficiency of the evidence on which the court acted. The court is the one to conduct the "full investigation," and it is the court's actions against which L.B.'s complaint should be directed. Because his first two points do not complain about court action, they are overruled.

In his third point, L.B. argues that the Juvenile Probation Department's participation in the decision to seek certification violates the separation of powers doctrine of the Texas constitution. See Tex. Const. art. II, 1. Again, however, L.B. did not raise this complaint in the trial court by a request, objection or motion. See Tex. R. App. P. 52(a). Because he did not obtain an adverse ruling for us to review, this complaint is not properly before us, and point three is overruled.

In points four, five and six, L.B. complains that the evidence is insufficient to support the court's findings relating to probable cause, his sophistication and maturity, and the likelihood of rehabilitation. We review the sufficiency of the evidence to support the trial court's findings under well-established legal and factual insufficiency standards. See Tex. Fam. Code Ann. 56.01(b); Matter of T.D., 817 S.W.2d at 773-74. Thus, we will disturb the court's findings only if there is no evidence to support the findings or if the findings are against the great weight and preponderance of the evidence. See Matter of T.D., 817 S.W.2d at 777-78; see also Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Because the hearing on a petition for waiver of jurisdiction is a nonjury proceeding, L.B. was not required to raise the sufficiency of the evidence below as a prerequisite to raising the issue on appeal. See Tex. Fam. Code Ann. 54.02(c); Tex. R. App. P. 52(d).

The State alleged two aggravated robbery offenses in its petition, the first occurring on October 9, 1993, and the second on November 27, 1993. The court concluded that the State was alleging that L.B. committed the offenses in his individual capacity and while acting as a party to the offenses and that there was probable cause to believe he had committed the offenses. See Tex. Penal Code Ann. 7.01 (Vernon 1974). In point four, L.B. claims "[t]here was not sufficient evidence to find that probable cause existed to believe that [he] was a party to the offenses alleged in the petition." Probable cause is a lower standard than preponderance of the evidence. Matter of D.W.L., 828 S.W.2d 520, 524 (Tex.App. Houston [14th Dist.] 1992, no writ). A finding of probable cause merely requires evidence sufficient to allow a prudent person to believe that a suspect had committed an offense. Id. Probable cause does not require that the evidence show the belief is more likely true than false. See Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502 (1983).

A senior investigator for the district attorney's office testified at the hearing. He had reviewed the police reports and witness statements and concluded that L.B. committed the alleged offenses. He believed that the grand jury would find the evidence sufficient to return an indictment against L.B. for the offenses. The investigator also stated that L.B. had been identified as carrying a shotgun in the October 9 offense and a nine-millimeter handgun during the November 27 offense. In addition to the investigator's testimony, the court was presented with a report from the Juvenile Probation Department which indicated that L.B. had been identified as the person carrying a shotgun in the October 9 incident and was identified by the victims in the November 27 offense as one of the perpetrators. This report was before the court for all purposes. See Tex. Fam. Code Ann. 54.02(e).

L.B. attempted to controvert the investigator's testimony that L.B. was carrying the handgun during the November 27 offense by introducing the police offense reports and the statements of the witness. Although these documents clearly indicate that L.B. was not identified as the individual with the handgun by the victims of that crime, they show that he was identified as a participant in the offense. The evidence is sufficient to support a finding of probable cause for either offense. See Matter of R.G., Jr., 865 S.W.2d 504, 509 (Tex. App. Corpus Christi 1993, no writ). Point four is overruled.

The court specifically found that L.B. has the sophistication and maturity of an adult. L.B. claims that this finding rests on a conclusion by an examining psychologist who based his opinion on L.B.'s failure to show remorse or acceptance of responsibility for the charged offenses. Because L.B. had been advised by his attorney not to talk about the offenses, he now argues that the psychologist's conclusion is based on impermissible considerations which violate his Fifth Amendment right to silence. Accepting, for the purpose of analysis, L.B's argument that the psychologist's evaluation should be excluded because of the constitutional questions involved, we find that the other evidence is sufficient to support the court's finding. The court also had before it a report by a psychiatrist who evaluated L.B. This report concludes with the psychiatrist's opinion that L.B. has the psychological and mental maturity to be treated as an adult. A juvenile probation officer, who worked with L.B. for a year and a half prior to the offense and had visited him in the county jail five days a week for more than thirty days prior to the hearing, testified that he was a level "6 or 7" on a 10 point scale of sophistication and maturity. Even excluding the evidence of the psychologist, the evidence is sufficient to support the court's finding. See Matter of K.D.S., 808 S.W.2d at 302-03. Point five is overruled.

In point six, L.B. attacks the sufficiency of the evidence to support the court's conclusion that "the likelihood of reasonable rehabilitation . . . by the use of the procedures, services and facilities . . . available to the Juvenile court [is] in doubt." L.B. argues that the Juvenile Probation Department did not fully investigate the resources available to the court and, thus, could not provide the court with guidance on the effectiveness of these options. L.B.'s probation officer testified that the Department knew L.B. had not exhausted the resources available to the juvenile court. She stated that she did not believe the procedures available to the court were "adequate" to deal with L.B., that he could not be rehabilitated by the resources available to the juvenile court, and that the protection afforded to the public would not be adequate if he were handled in the juvenile system. She testified that she based this conclusion on "[t]he seriousness of the offense and the length of time that [L.B.] would be in [the Texas Youth Commission] or Boot Camp."

On cross-examination, the probation officer admitted that no effort was made to find an alternative placement for L.B. She had not considered boot camp as a possible placement and did not know what placements were available through the Texas Youth Commission (T.Y.C.). She replied, simply, "No," when asked, "Do you know anything about those placements [available through T.Y.C.] at all?" She did not know how much time L.B. would spend with the T.Y.C. beyond the six-month minimum. She was not sure if the seriousness of the offense affected the length of time L.B. would spend at T.Y.C. Finally, she did not know what programs were available through the adult system and admitted that the options available after certification were not discussed or taken into consideration prior to the decision to seek certification.

We conclude that the probation officer's testimony is the legal equivalent of no evidence. She merely stated her opinion that L.B. could not be appropriately dealt with in the juvenile system. However, on cross examination she admitted that she had no factual basis for that opinion. Thus, this evidence is merely a scintilla, which, in legal effect, is no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

However, that does not end our review of the evidence available to the court. The court had two mental evaluations before it, one prepared by a psychologist, the other by a psychiatrist. The court had the offense reports from the November 27 incident. It also had a social history report prepared by the Probation Department to consider. We presume that the court knew the answer to the questions which the probation officer could not answer because these are legal issues. The court could evaluate the information regarding L.B.'s home life, his intellectual ability, his scholastic achievement and placement, his prior behavior while on probation for a earlier offense, and his criminal record. After considering this evidence, we determine that the evidence is legally and factually sufficient to support the court's conclusion that the likelihood of rehabilitation via the juvenile system was "in doubt." Point six is overruled.

Finally, L.B. claims the court required him to demonstrate beyond all doubt that the public could be protected and he could be rehabilitated within the juvenile system. He bases this claim on the court's use of the phrase "in doubt" in the conclusion discussed above. We do not believe that the court's use of the phrase "in doubt" indicates that the court was placing a burden on L.B. to avoid certification by proving the effectiveness of the juvenile system. Point seven is overruled.

The court's order is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 6, 1994

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