In the Matter of J. A.--Appeal from 98th District Court of Travis County

cv4-208 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00208-CV
In the Matter of J. A., Appellant
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-12,029, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

 

The State accused J.A., a juvenile, of committing homicide. He challenges the sufficiency of the evidence to support the trial court's waiver of jurisdiction and resultant transfer of the case to the criminal justice system. We will affirm the order.

On December 28, 1993, J.A. was a front-seat passenger in a car filled with members of one gang. They saw a fight and stopped. A member of another gang approached the car and got in J.A.'s face, "lipping," "throwing gang signs," claiming to have a gun, and threatening to shoot J.A., though the gang member never showed a weapon. J.A. put the automatic stick-shift car in neutral--possibly accidentally while leaning away from the taunter at the window.

The decedent, a friend of the rival gang member, also approached the car. He was legally intoxicated. He was talking big, also making gang gestures, asking J.A. and others if they wanted to see his weapon, and threatening to kill J.A and the others. He was actually unarmed. The decedent either reached inside his jacket as if for a weapon or pulled his arm back as if to punch J.A.

J.A. said he was scared. He pointed the gun out the window and fired to protect himself and scare away the taunters. He said he intended to fire into the air. The coroner reported that the decedent was shot four times--once in the head, once in the neck, and twice in the abdomen. J.A. and his friends then fled in the car.

J.A. said he immediately felt bad about the incident. He said he wished the decedent had not claimed to have a gun, wished he himself had not had a gun, and wished neither of them had been at that scene. Other witnesses said they had never seen J.A. start fights and that J.A. never bragged about the shooting.

Dr. David Poole, a psychologist, evaluated J.A. He concluded that J.A. had an IQ between 70 and 80, was immature, had had poor moral guidance, had no thought disorder, was not particularly violent, knew right from wrong, and did not have an antisocial or anti-authority personality. Dr. Poole testified that, though J.A. might initially avoid his gang friends if released, he would likely drift back to them. He said J.A. might shoot again if placed in a similar position. Dr. Poole opined that J.A. could be rehabilitated. He recommended two years of residential treatment because J.A. was one of the more hopeful kids he had seen.

Ena Brent, a probation officer, testified that J.A. had numerous prior referrals to juvenile court, was not a motivated probationer, and had failed to respond to services. She conceded that J.A. had never been on intensive supervision or gone to the Texas Youth Commission. She had no opinion regarding certification as an adult, however.

Dr. Nicholas Carrasco, a former director at the Giddings State Home and School, testified that Giddings had a program for offenders like J.A. He deemed it unlikely that a person almost seventeen, like J.A., could complete the program by his eighteenth birthday.

J.A. had twelve prior referrals to juvenile court, primarily for burglary. He was being considered for intensive supervision probation when the present offense occurred. He was absent excessively from school and had been suspended from school seven times.

By his sole point of error, J.A. challenges the sufficiency of the evidence to support the waiver of jurisdiction. Whether to waive is within the trial court's discretion. C.W. v. State, 738 S.W.2d 72, 75 (Tex. App.--Dallas 1987, no writ). As part of our review we evaluate the evidentiary support for the trial court's decision on civil standards of review. In re G.F.O., 874 S.W.2d 729, 731-32 (Tex. App.--Houston [1st Dist.] 1994, no writ). If we find insufficient evidentiary support, then we will find abuse of discretion. Id.

Whether J.A. challenges the legal or factual sufficiency of the evidence is unclear. To review a legal insufficiency point asserting that no evidence supports the judgment, we consider only the evidence and inferences supporting the finding and disregard all contrary evidence and inferences. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). If any evidence of probative force supports the finding, we must affirm the finding. In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). To review a factual sufficiency point, we must review and weigh all the evidence. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We may set the judgment aside only if the favorable evidence is so weak as to render the judgment clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The Family Code sets out the considerations in a waiver proceeding:

 

(1) whether the alleged offense was against person or property, with greaterweight in favor of transfer given to offenses against the person;

(2) whether the alleged offense was committed in an aggressive and premeditated manner;

 

(3) whether there is evidence on which a grand jury may be expected to return an indictment;

 

(4) the sophistication and maturity of the child;

 

(5) the record and previous history of the child;

 

(6) 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.

 

Tex. Fam. Code Ann. 54.02(f) (West 1986). The juvenile court need not find that all six factors have been established, only that they have been considered. C.W., 738 S.W.2d at 75.

Ample evidence supports the court's findings on the first three factors. The crime was undisputedly committed against a person. The court's finding that the crime, though not premeditated, was aggressive is likewise supported. In the thirty seconds between the first approach by a rival gang member and the shooting, J.A. did not retreat or request that the driver leave. He shot the victim repeatedly even though he never saw a weapon. Whether his aggression was due to sudden passion or justified as self-defense is not the concern here. The evidence also supports the court's third finding that a grand jury could indict J.A.

Under part four, the court found that J.A. was maturing rapidly as a result of this incident and beginning to reflect on the consequences of his actions. Ample evidence supports this. Dr. Poole's testimony that J.A. was immature does not conflict with this finding. J.A. had no intellectual or psychological impairments to prevent him from knowing right from wrong.

The court's fifth conclusion was that J.A.'s juvenile record was neither the worst nor the best, but slightly better than average. Though we cannot speak to the statistics nor the trial court's experience, we concur and find that the evidence supports this conclusion as well.

On the sixth factor, the court found that J.A.'s age precluded a meaningful chance at rehabilitation. The evidence again supports this finding. Dr. Poole recommended two years of rehabilitation, but J.A. was less than two years away from his eighteenth birthday. Though Dr. Poole did not believe that J.A. was particularly violent, he did testify that J.A. was likely to fall back in with his gang friends and might, if faced with a similar situation, react similarly. The juvenile system's previous attempts to rehabilitate J.A. had failed in part because he was not motivated to improve.

The court's findings were supported by legally and factually sufficient evidence. The waiver of jurisdiction was not an abuse of discretion. We overrule point one.

We affirm the trial court's order.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: May 17, 1995

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