In the Matter of K.A. v. the State of Texas

Motion for Rehearing granted; Memorandum Majority and Dissenting
Opinions and Judgment filed April 18, 2024, Withdrawn; and Reversed
and Rendered and Memorandum Majority and Dissenting
Opinions on Rehearing filed July 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00802-CV

IN THE MATTER OF K.A., Appellant

On Appeal from the 474th District Court
McLennan County, Texas
Trial Court Cause No. 2023-75-J

MEMORANDUM MAJORITY OPINION ON REHEARING

In this accelerated appeal, appellant K.A. challenges the order of the juvenile
court waiving its exclusive jurisdiction and transferring appellant to the criminal
district court for resolution of charges of aggravated sexual assault, which the State
alleges occurred when appellant was between the ages of 14 and 17 years of age.

In issue one, appellant argues the trial court’s finding that a “preponderance
of the evidence established that, after due diligence of the State, it was not
practicable to proceed in juvenile court before [appellant’s] 18th birthday because
[appellant] could not be found” is not supported by legally-sufficient evidence.1
Alternatively, K.A. argues in issue two that this court should modify the order of
the trial court to strike the phrase “because [appellant] could not be found.”

We conclude that the trial court’s finding that “it was not practicable to
proceed in juvenile court before [appellant’s] 18th birthday” was not supported by
legally-sufficient evidence and reverse the order.

I. BACKGROUND

In June 2023, the State filed a petition for discretionary transfer to a criminal
district court in McLennan County alleging that appellant committed the offense of
aggravated sexual assault of a child on his minor stepsister. At the time the State’s
petition was filed, appellant was an adult, although the State alleged that he
committed the offense while a juvenile. At the hearing, the primary dispute was
appellant’s age at the time of the alleged offense.

At the conclusion of the hearing, the trial court orally announced it would
waive jurisdiction and transfer the case to district court. The court later signed an
order specifically stating the reasons for waiver, as required by statute. Tex. Fam.
Code Ann. § 54.02(h). This appeal timely followed. Tex. Fam. Code Ann.
§ 56.01(c)(1)(A) (appeal permitted from trial court order transferring child for
prosecution as adult).

II. ANALYSIS

In issue one, appellant challenges the evidence supporting the overall
practicability of whether the State could have proceeded before appellant’s

1
The Supreme Court of Texas ordered the Court of Appeals for the Tenth District of
Texas to transfer this appeal (No. 10-23-00322-CV) to this court. Misc. Docket No. 23-9079
(Tex. Sept. 26, 2023); see Tex. Gov’t Code Ann. §§ 73.001, .002. Because of the transfer, we
decide the case in accordance with the precedent of the transferor court under principles of stare
decisis if our decision otherwise would have been inconsistent with the transferor court’s
precedent. See Tex. R. App. 41.3.
2
eighteenth birthday. Alternatively, in issue two, appellant asks this court to render
a judgment nunc pro tunc to remove from the required findings in the transfer
order the explanation that it was not practicable to proceed against appellant
“because [appellant] could not be found.”

A. Applicable law

Texas juvenile courts have exclusive, original jurisdiction over cases
involving what otherwise would be criminal conduct by children 10 years of age or
older, but younger than 17 years of age.2 Tex. Fam. Code Ann. §§ 51.02(2)(a),
.03(a)(1), .04(a). Under section 54.02(j), a juvenile court may transfer to the
criminal district court for trial a case involving a person who is alleged to have
committed a felony as a child and has reached their eighteenth birthday. Tex. Fam.
Code Ann. § 54.02(j).

Under section 54.02(j), a juvenile court may waive its jurisdiction, as
applicable to the allegations here, if:

(1) the person is 18 years of age or older;
(2) the person was 14 years of age or older and under 17 years of age
at the time the person is alleged to have committed an aggravated
controlled substance felony or a felony of the first degree;
(3) no adjudication concerning the alleged offense has been made or
no adjudication hearing concerning the offense has been conducted;
(4) for a reason beyond the control of the state it was not practicable
to proceed in juvenile court before the 18th birthday of the person; or
after due diligence of the state it was not practicable to proceed in
juvenile court before the 18th birthday of the person because the state

2
The guiding principle is that “children should be protected and rehabilitated rather than
subjected to the harshness of the criminal system because children, all children are worth
redeeming.” Hidalgo v. State, 983 S.W.2d 746, 754 (Tex. Crim. App. 1999) (internal quotation
marks omitted); see also Tex. Fam. Code Ann. § 51.01(2) (purpose of Juvenile Justice Code).
Similarly, the Supreme Court has described statutory transfer proceedings of children to the
criminal system as “critically important” as the process must “measure up to the essentials of due
process and fair treatment” before a child loses their protected status. Kent v. United States, 383
U.S. 541, 562 (1966).
3
did not have probable cause to proceed in juvenile court and new
evidence has been found since the 18th birthday of the person; or the
person could not be found; and
(5) the juvenile court determines that there is probable cause to
believe that the child before the court committed the offense alleged.

See Tex. Fam. Code Ann. § 52.04(j) (applicable provisions). The statute further
requires the juvenile court to conduct a hearing without a jury to consider the
waiver of jurisdiction. Tex. Fam. Code Ann. § 52.04(l).

If the juvenile court waives jurisdiction, it shall state specifically, in the
written order, its reasons for waiver and certify its action, including the written
order and findings of the court, and shall transfer the person to the appropriate
court for criminal proceedings. Tex. Fam. Code Ann. § 52.04(h). On transfer of the
person for criminal proceedings, the person shall be dealt with as an adult and in
accordance with the Code of Criminal Procedure. Id.

In this case, appellant was a 23-year-old adult when the State first filed its
petition. The juvenile court did not have jurisdiction to adjudicate the allegations
against appellant because he was no longer a juvenile. In re N.J.A., 997 S.W.2d
554, 557 (Tex. 1999). Instead, the juvenile court had the limited jurisdiction
granted by section 54.02(j) to “to waive its exclusive original jurisdiction and
transfer a case to district court if the person is eighteen years old or older and
certain criteria are met.” The supreme court has further explained that “if the
person is over age eighteen, and section 54.02(j)’s criteria are not satisfied, the
juvenile court’s only other option is to dismiss the case.” Id.; see Moore v. State,
532 S.W.3d 400, 405 (Tex. Crim. App. 2017) (“The State has the burden under
Section 54.02(j)(4)(A) and its failure to get around to this case in time did not meet
that burden.”).

B. Standard of review

On appeal from a juvenile court’s order waiving its exclusive jurisdiction,
4
we begin by reviewing the legal sufficiency of the evidence to support the juvenile
court’s findings under section 54.02(j). In re C.M.M., 503 S.W.3d 692, 701 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied); see also In re A.M., 577 S.W.3d
653, 659 (Tex. App.—Houston [1st Dist.] 2019, pet. granted) (“In reviewing a
discretionary transfer, we evaluate the trial court’s findings of fact under traditional
sufficiency-of-the-evidence principles.”). If the juvenile court’s findings are
supported by legally-sufficient evidence, then we review the ultimate waiver
decision under an abuse-of-discretion standard. C.M.M., 503 S.W.3d at 701.

A court abuses its discretion if it acts without reference to any guiding rules
and principles. In re Nat’l Lloyds Ins., 507 S.W.3d 219, 226 (Tex. 2016) (orig.
proceeding). Courts have held that “[a] juvenile court abuses its discretion when its
decision to transfer is essentially arbitrary, given the evidence upon which it was
based.” C.M.M., 503 S.W.3d at 701 (citing Moon v. State, 451 S.W.3d 28, 47 (Tex.
Crim. App. 2014), overruled on other grounds by Ex parte Thomas, 623 S.W.3d
370 (Tex. Crim. App. 2021)). “By contrast, a waiver decision representing ‘a
reasonably principled application of the legislative criteria’ generally will pass
muster under this standard of review.” C.M.M., 503 S.W.3d at 701 (quoting Moon,
451 S.W.3d at 47).

C. Practicable to proceed before appellant’s eighteenth birthday

Appellant argues that the finding of the trial court that it was not practicable
for the State to proceed against appellant in juvenile court before his eighteenth
birthday was not supported by legally-sufficient evidence.

We begin with the statutory finding made by the trial court which provides:
“A preponderance of the evidence established that, after due diligence of the State,
it was not practicable to proceed in juvenile court before [appellant’s] 18th
birthday because [appellant] could not be found.”3 This order differs from the oral

3
Both appellant and the State agree that the statement “because [appellant] could not be
5
rendition made by the trial court after the hearing with respect to the reason it was
not practicable to proceed before appellant’s eighteenth birthday:

And then there’s a question of whether by a preponderance of the
evidence, I find that it was not practicable to proceed in juvenile court
before [appellant’s] 18th birthday, which I do find, because apparently
an outcry was not made until 2022 after he was already 21 or 22 years
of age, and after due diligence it was not practicable for the State to
proceed here in juvenile court before [appellant’s] birthday, because
the State did not have probable cause to proceed before that time.

Although appellant and the State entered into an agreed stipulation that
(1) appellant was over 18 years of age at the time of trial and (2) no adjudication
concerning the alleged offense had been made, the stipulation did not address when
the State first learned of the allegations against appellant. The State presented a
single witness—the investigator for the State who interviewed appellant. However,
the investigator was not asked when complainant’s outcry was made known to the
State.

Appellant testified he was interviewed about the allegations against him in
May 2022. However, appellant’s hearing testimony did not discuss when
complainant first made an outcry known to the State or when the State began its
investigation. Appellant’s mother testified at trial that she was not aware of the
allegations against appellant until “the investigation started in 2022.”

There are also two signed statements in the record—one from appellant’s
father and another from his stepmother. Neither appellant’s father nor his
stepmother testified at the hearing.4 In his May 2022 statement, appellant’s father
recounted that “around 5 years” before they had a family meeting to discuss
information brought to him by complainant’s father that appellant was touching

found” was erroneous.
4
There was no objection to the admissibility of these statements at the hearing by
appellant.
6
complainant inappropriately. The father’s statement concludes with the comment
that he thought everything was resolved after the meeting because the family had
set up a schedule such that appellant and complainant would never be together
unsupervised.

Appellant’s stepmother described, in her statement, her limited recollection
of the family meeting some years before, concluding that she thought everything
had been resolved. Stepmother next states that complainant contacted her on April
21, 2022, needing to talk to her. Shortly thereafter stepmother received a call from
an investigator asking for a statement.

Complainant first made an outcry to her family at least five years before the
State began its investigation and before appellant was eighteen years of age, which
is supported by uncontroverted statements introduced into evidence.5 What is not
in the record is evidence establishing if complainant made another later outcry in
2022 that was made known to the State, or when her original outcry was first made
known to the State. Even the trial court’s oral rendition highlights the lack of
evidence as the trial court stated, “[A]pparently an outcry was not made until 2022
after he was already 21 or 22 years of age.” The State had the burden of proof on
this issue and put on no evidence of when it became aware of the allegations. The
investigator’s interview of appellant, which was introduced into evidence, refers to
an outcry that complainant made at school. However, the record is silent as to
when that outcry was made.6

5
Although appellant challenged the timing of the family meeting referenced in his
father’s and stepmother’s statements, he did not challenge the fact that complainant made an
outcry to her father at that time. Appellant’s interview with the investigator, which was
introduced into evidence, further confirms complainant’s outcry at least five years before the
investigation.
6
The dissent highlights evidence from appellant’s recorded interview in which appellant
stated when he became of aware of complainant’s report to her school. However, the date on
which appellant became aware of a report is not evidence of when the State first became aware
of complainant’s outcry.
7
We sympathize with the dissent because this is clearly a case in which
something should have been done and was not. The State had the burden of proof.
And the State failed to put on evidence of each element required to waive the
jurisdiction of the juvenile court. It would have been a simple matter for the State
to ask the investigator when the State first became aware of complainant’s outcry
against appellant. But the State neither asked its witness nor established this
requirement with any direct evidence. It is not this court’s role to fix the State’s
mistakes. It is our role to resolve legal issues based on the record before us.

On rehearing, the State argues that there is recent precedent from the Tenth
Court of Appeals to which this opinion runs contrary. See In re A.S.,
No. 10-23-00337-CV, 2024 WL 1326019, at *1 (Tex. App.—Waco Mar. 28, 2024,
pet. filed) (mem. op.). We disagree but granted rehearing to address the opinion.

The facts in A.S. are initially similar to those in the instant case as the trial
court made the following findings:

Here, the trial court found: (1) A.S. was eighteen years of age or
older; (2) A.S. was fourteen years of age or older and under seventeen
years of age when he allegedly committed the first-degree-felony
offense of aggravated sexual assault of a child; (3) no adjudication
concerning the alleged offense had been made; (4) for reasons beyond
the control of the State, it was not practicable to proceed in juvenile
court before A.S.’s eighteenth birthday; and (5) there was probable
cause to believe that A.S. committed the offense alleged.

A.S., 2024 WL 1326019, at *2. The appellant in A.S. also challenged the legal
sufficiency of the evidence supporting the juvenile court’s finding that “for reasons
beyond the control of the State, it was not practicable to proceed in juvenile court
before [A.S.’s] eighteenth birthday.” Id. However, that is where the similarities
end. In A.S., the complainant made her outcry to a friend approximately one year
before the proceedings in the trial court. Id. She also testified that she only told her
best friend about the allegations, who then told a sibling, who then told their

8
mother, who then told complainant’s mother. Id. However, A.S. is not a case
involving more than one outcry by the complainant. Further, nothing in the A.S.
opinion suggests that the State does not have the burden to produce evidence
establishing it was not practicable to proceed before a defendant’s eighteenth
birthday.

Another argument the State makes with respect to the sufficiency of the
evidence is that the Tenth Court of Appeals appears to reference the police case
number on an exhibit for the proposition “the alleged offense was established in
2022.” 7 A.S., 2024 WL 1326019, at *2. However, the opinion in A.S. does not
explain how it arrived at the conclusion about when the case number was
established and likely was supported by testimony from witnesses regarding the
naming protocol for the Waco Police Department or the date the case was opened.
Without more, there is nothing in the opinion of our sister court that suggests that
this court can independently reach any assumptions about the naming protocol for
files or exhibits generated by the police department or any other entity that are
otherwise not in evidence. We therefore conclude our sister court’s holding in A.S.
is distinguishable and does not conflict with this opinion.

This case is complicated by the fact that complainant made an outcry before
appellant was eighteen years of age. Without speculating, we cannot determine
whether the State promptly addressed the allegations against appellant, or whether
the State knew of the allegations before appellant’s eighteenth birthday. Therefore,
we conclude the trial court erred and abused its discretion because its decision to
transfer was essentially arbitrary, given the evidence on which it was based. See
C.M.M., 503 S.W.3d at 701; Tex. Fam. Code Ann. § 54.02(j)(4)(A).

We sustain issue one and reverse the order of the trial court.
7
The Tenth Court specifically states: “Furthermore, the Waco Police Department case
number ‘22-8296’ for the alleged offense was established in 2022 after A.S. was eighteen years
of age.” A.S., 2024 WL 1326019, at *2.
9
D. Nunc pro tunc

In issue two, appellant argues that if this court finds the transfer order is
supported by legally-sufficient evidence, we must render a judgment nunc pro tunc
to correct the trial court’s error. Because issue two is conditionally predicated on
this court holding there is legally-sufficient evidence to support the order of
transfer, we do not reach issue two.8

8
Appellant addresses his request for a judgment nunc pro tunc for the first time to this
court. Although appellant cites two different cases for the proposition that a judgment nunc pro
tunc may be requested in an appellate court for the first time, both cases rely on reasoning from
Asberry and French which are criminal appeals, without substantive discussion of whether that
reasoning can be applied to civil appeals. See Ajao v. Hall, 654 S.W.3d 22, 25 n.6 (Tex. App.—
Houston [14th Dist.] 2022, no pet.); Jordan-Nolan v. Nolan, No. 07-12-00431-CV, 2014 WL
3764509, at *3 (Tex. App.—Amarillo July 28, 2014, no pet.); see generally French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting Asberry’s reasoning); Asberry v. State, 813
S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d). These cases are not precedent on this
issue. See In re Kholaif, 624 S.W.3d 228, 231 (Tex. App.—Houston [14th Dist.] 2020, no pet.)
(“Dictum is not binding as precedent under stare decisis.”). Absent fundamental error, in civil
appeals, parties must first preserve a complaint for appellate review in the trial court. See Tex. R.
App. P. 33.1(a).
Even were it possible for a civil judgment nunc pro tunc to be requested for the first time
on appeal, we further note that a judgment nunc pro tunc would be inappropriate in this context
because the trial court’s finding, if erroneous, was not a clerical error. See Andrews v. Koch, 702
S.W.2d 584, 585 (Tex. 1986) (“A clerical error is one which does not result from judicial
reasoning or determination.”). The erroneous finding constitutes a judicial error because
correcting the error would be a substantive and material change. See Mathes v. Kelton, 569
S.W.2d 876, 878 (Tex. 1978) (judgment nunc pro tunc that changed party entitled to possession
of personal property “materially altered the substance” of prior order and “[could] not be validly
accomplished”); In re Marriage of Russell, 556 S.W.3d 451, 460 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (changes to judgment to correct division of property in judgment were
substantive and not properly accomplished with judgment nunc pro tunc); Hernandez v. Lopez,
288 S.W.3d 180, 185–88 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (judgment nunc pro
tunc that changed year of confirmation of father’s child support arrearage from 2004 to 2003
created new payment obligation not present in original agreed order and impermissibly corrected
judicial error).
10
III. CONCLUSION

Having sustained issue one and without reaching issue two, we reverse the
order of the trial court and render the judgment the trial court should have rendered
by dismissing the State’s case. N.J.A., 997 S.W.2d at 557; see Tex. R. App. P.
43.2(c).

/s/ Charles A. Spain
Justice

Panel consists of Justices Wise, Spain, and Hassan (Wise, J., dissenting).

11