In the Matter of C.M. v. the State of Texas

Affirmed and Memorandum Opinion filed September 19, 2024.

In The

Fourteenth Court of Appeals

NO. 14-24-00223-CV

IN THE MATTER OF C.M.

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2023-00562J

MEMORANDUM OPINION

In this accelerated appeal, C.M., a minor charged with capital murder,
challenges the juvenile court’s order waiving its exclusive original jurisdiction and
transferring him to a criminal district court for trial as an adult. The State moved
for the juvenile court to waive its jurisdiction pursuant to Texas Family Code
section 54.02(a), and the juvenile court granted the motion after a hearing. See Tex.
Fam. Code § 54.02(a). In two issues, C.M. challenges the order on the grounds that
the evidence is legally and factually insufficient to support the trial court’s findings
on probable cause and the section 54.02 factors. We affirm.
Governing Law

Texas juvenile courts have exclusive, original jurisdiction over cases
involving delinquent conduct by children between ten and seventeen years old. See
id. §§ 51.02(2), 51.03(a), 51.04(a). However, if a juvenile court determines after an
evidentiary hearing that certain requirements are satisfied, it may waive its
jurisdiction and transfer a child to a district court for criminal proceedings. Id. §
54.02(a), (c). Such transfers “should be regarded as the exception, not the rule; the
operative principle is that, whenever feasible, children and adolescents below a
certain age should be ‘protected and rehabilitated rather than subjected to the
harshness of the criminal system.’” Ex parte Thomas, 623 S.W.3d 370, 376 (Tex.
Crim. App. 2021) (quoting Hidalgo v. State, 983 S.W.2d 746, 754 (Tex. Crim.
App. 1999)).

Under section 54.02(a), a juvenile court may waive its exclusive original
jurisdiction and transfer a child to an 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:
...

(B) 15 years of age or older at the time he is alleged to have
committed the offense, and no adjudication hearing has been
conducted concerning that offense; and

(3) after full investigation and 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 or the background of the child the welfare of the
community requires criminal proceedings.

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Tex. Fam. Code § 54.02(a).

The State has the burden of proof to show by a preponderance of the
evidence that the welfare of the community requires a transfer of jurisdiction for
criminal proceedings, either due to the seriousness of the offense alleged or the
background of the child or both. Bell v. State, 649 S.W.3d 867, 886 (Tex. App.—
Houston [1st Dist.] 2022, pet. ref’d). In making such a determination:

[T]he juvenile court shall consider among other matters:

(1) whether the alleged offense was against person or property, with
greater weight 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; and
(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 § 54.02(f). “Any combination of these criteria may suffice to
support a waiver of jurisdiction; not every criterion need weigh in favor of
transfer.” In re C.M.M., 503 S.W.3d 692, 701 (Tex. App.—Houston [14th Dist.]
2016, pet. denied). The factors listed in section 54.02(f) are non-exclusive. Bell,
649 S.W.3d at 886. If the juvenile court waives jurisdiction, “it shall state
specifically in the order its reasons for waiver and certify its action, including the
written order and findings of the court.” Tex. Fam. Code § 54.02(h); see also
Thomas, 623 S.W.3d at 379.

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We review a juvenile court’s decision to waive its exclusive original
jurisdiction and transfer a case to criminal district court using two steps. Bell, 649
S.W.3d at 887. First, we review the juvenile court’s findings using the traditional
evidentiary sufficiency review. Id. In reviewing legal sufficiency, we credit
evidence favorable to the challenged finding and disregard contrary evidence
unless a reasonable fact finder could not reject the evidence. In re C.M.M., 503
S.W.3d at 701. If more than a scintilla of evidence supports the finding, the no-
evidence challenge fails. Id. In reviewing factual sufficiency, we consider all
evidence presented to determine if the court’s findings are against the great weight
and preponderance of the evidence so as to be clearly wrong or unjust. Id.

If the juvenile court’s findings are supported by sufficient evidence, then we
move to the second step––reviewing the ultimate waiver decision for an abuse of
discretion. Id. 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).

The Hearing

Ross Watson, a detective sergeant with the Houston Police Department,
homicide division, testified that on June 15, 2022, he was dispatched to 8228 Swiss
Lane to conduct an investigation into the murder of Anthony Merchant. Previously,
on June 13, officers had been called to the same address to investigate the death of
Edwin Hill, who was Merchant’s stepson. Watson described the investigation into
Merchant’s death as being rather complicated. An autopsy revealed that Merchant
was killed by a single gunshot wound to his chest. When Watson arrived at the
scene, he observed an Infiniti SUV parked at an angle in the driveway, two other
vehicles parked in the driveway next to the house, and “numerous shell casings in
the street directly next to the driveway.”

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At the scene, Watson interviewed Merchant’s wife, Edwina Merchant, as
well as a tow truck driver. Edwina told Watson that she and Merchant had come to
her son’s, Hill’s, house to retrieve a Bentley automobile that was parked there but
was registered in Merchant’s name. The keys were apparently lost or stolen, so
they had called the tow truck driver. As Merchant and the tow truck driver were in
the driveway and Edwina was sitting in the front passenger seat of the Infiniti, she
felt something, possibly another vehicle, bump the back of the Infiniti. Someone
opened the rear driver’s side door, pointed a gun at her, and yelled at Edwina that
she was about to die. She was then shot at, so she dove out of the open door to the
ground.

Watson further testified that the tow truck driver reported that while he was
trying to figure out how to tow a Bentley, he saw Merchant retrieve a holstered
firearm from the Bentley and put it into his waistband. Sometime later, he saw a
car pull up to the property and several young black males exit the vehicle and run
up with masks on their faces and guns drawn. The tow truck driver said he dove to
the ground and then “heard a bunch of gunfire.” He said he stayed down after that
and did not see much.

According to Watson, two 9mm firearms were found at the scene. One,
believed to be Merchant’s, was found in a holster near where Merchant had been
placed on a stretcher, and the other was found in the street near the rear driver’s
side door of the Infiniti. As previously noted, several spent 9mm and .40 caliber
shell casings were also found at the scene.

After the scene was processed, the police received information that a white
Nissan Altima that had been under surveillance had been spotted at the scene
around the time of the shooting. The vehicle was subsequently stopped for traffic
violations. At the time the vehicle was stopped, the occupants included two males

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(Marvieon Simien and Quavon Jackson) and four females (Kelsey Love, Emiyah
Robinson, Shayah Baptiste, and Janay Davis), who were all brought in for
questioning. Love was determined to be the vehicle’s owner.

According to Watson, when interviewed, Davis said that the car had been
borrowed in the early evening by two young men (Edmund Guillory and Pedro
Ochoa), and when it was later returned around 8 p.m. that same day, two other
young men (C.M. and Shane Henry) were with them. Henry appeared to be angry
and said something about dropping a gun. Davis further indicated that she knew
the men and identified them through booking photos. Watson also noted that C.M.
had recently appeared in police offense reports with both Guillory and Ochoa.

Watson stated that Robinson made similar statements to those Davis had
made, including naming the same four men as returning with the car that evening.
She also provided current telephone numbers for C.M. and another one of the men.

Watson reported that Love, who owned the car, said that she loaned it that
evening to the same four men as identified by the other women and that they
returned it around 8 p.m. She also provided C.M.’s number and said that Henry
had appeared angry when they returned. Love reported that the same four men had
taken drugs from a house where a dead person was located, a possible reference to
Edwin Hill, who had previously been found dead in the house on Swiss Lane.

Baptiste also made similar statements regarding who borrowed the car and
who returned with it that evening. She also mentioned people in that group talking
about finding a dead body in a home, and she mentioned seeing a photograph of
one of the men in Hill’s house.

Police were able to exclude both Simien and Jackson, the two males in the
white Altima when it was stopped, as suspects in the killing of Merchant.

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According to cell phone records for Simien’s phone, he was not near the location at
the time of Merchant’s death, and Jackson had been wearing an ankle monitor,
which reflected that he was at his own house at the time of the shooting.

Having identified four suspects, Watson next obtained their cell phone
records. He discovered that on June 15, Guillory’s phone was using a cell tower
that was very close to the scene of the crime and was used to call C.M.’s cell
phone. C.M.’s and Henry’s cell phones also used a cell tower near the scene on the
day of Merchant’s death. C.M.’s Instagram account also showed communication
with Guillory, as well as a photo of illegal drugs posted on June 13. Guillory’s
phone revealed numerous photographs of him with C.M., including with firearms,
and communication between the two on June 15.

Watson also reviewed surveillance video from the day of Merchant’s death
taken in the area near the scene. From the video, he was able to determine that the
white Altima had been “circling in the area for about 45 minutes probably prior to
the shooting” and a vehicle matching that description was visible on Swiss Lane
immediately before the shooting began. The same video doorbell that captured the
vehicle also captured the sound of gunfire shortly thereafter.

Police subsequently arrested Henry and interviewed him. According to
Watson, Henry admitted that the group had gone to the scene to commit a robbery.
He was given a gun, and the plan was to commit a robbery. C.M. was driving the
white Altima. Henry said that when they got to the scene, he opened the door to an
SUV at the location, heard gunfire, and began firing his own weapon but then
dropped it at the scene. Henry explained that Guillory had also gotten out of the
white Altima but C.M. had stayed in. But, Henry also said that both Guillory and
C.M. had fired their weapons. Henry said that a couple of days before, he had gone
to the house on Swiss Lane with C.M. and Guillory. C.M. and Guillory had entered

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the house and returned with illegal drugs, saying that there was a dead body inside.

Watson also guided the court through a written timeline of events occurring
on June 15 that was admitted into evidence. It shows text messages occurring
around 4 p.m. from a member of the group about buying a gun; at 6 p.m., C.M.’s
and Henry’s cell phones used towers located near where the white Altima was
borrowed; a series of text messages among group members indicated an intention
to commit a robbery, with members encouraging other members to ensure C.M.
came along as well; at 6:39 p.m., video showed the white Altima leaving the
apartment complex; from 6:55 p.m. to 7:38 p.m., cell phone records showed the
phones of members of the group using cell towers in the area near Swiss Lane; in
the same time period, the white Altima is observed on surveillance videos taken in
the area; at around 7:38 p.m., video from a doorbell on Swiss Lane showed the
vehicle pass by and then recorded the sounds of gunfire shortly thereafter; and,
lastly, cell phone records showed C.M.’s, Henry’s, and Guillory’s phones
apparently leaving the area, eventually tracking them back to the apartment
complex where the car had been borrowed. A couple of hours later, Guillory texted
C.M. to say “send me that shit,” to which C.M. responded by sending a link to a
news story about Merchant’s murder.

Additionally, Watson noted that Henry’s fingerprint was found on a rear
door of the Infiniti, which tended to corroborate his statement that he had opened
that rear door. DNA evidence also linked Henry to the gun found at the scene. A
fingerprint matching C.M. was found inside the white Altima on the rearview
mirror. Watson’s believes this corroborates that C.M. was the driver on the day of
the shooting. Watson also noted that two .40 caliber casings found inside the white
Altima were determined to be fired from the same gun as other casings found at the
scene. Altogether, police determined that bullets were fired from three different

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guns at the scene, which Watson believed corroborated Henry’s statement that he,
C.M., and Guillory had all fired guns at Merchant. One of the guns apparently used
was later found in possession of a member of the same gang as C.M., Henry, and
Guillory. No shell casings were traced to having been fired in the handgun that
Merchant had on his person the day of his death.

Watson additionally discussed C.M.’s background with the criminal justice
system, including that he had been arrested several times and “documented in
different HPD offense reports.” In one offense report, C.M., Guillory, C.M.’s
brother, and two others were accused of robbing two people, including a homeless
man in a wheelchair. In another report, C.M. was accused of participating in the
theft of a vehicle. In a third report, C.M. was accused of evading arrest when police
responded to a report of gunfire, and in a fourth, Ochoa and C.M. were linked
together for evading arrest.

Watson also discussed C.M.’s history of gang participation, including
membership in one gang known for robbing pharmacies. A subgroup of the gang
allegedly included C.M., Guillory, and Ochoa and worked out of the area where
the white Altima was borrowed.

On cross-examination, Watson acknowledged that Edwina had initially
identified two other people as the ones who shot her husband rather than the people
who were ultimately charged, but police had excluded the two as suspects due to
other information. Watson explained that it was believed the two Edwina initially
identified were involved in her son’s prior murder but not in the murder of her
husband. Watson stated he did not find Edwina to be a credible witness. Watson
further acknowledged that the female witnesses discussed above had changed
portions of their stories over time.

Watson also admitted that there was no evidence that anything was taken
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from the scene of the shooting. He explained, however, that based on the totality of
his investigation, the event appeared to be a robbery resulting in a death and not an
“ambush kind of murder.” He said that Henry’s statement that a robbery was
planned and attempted was the primary driver of that conclusion, but he
emphasized that the investigation as a whole lead to that conclusion. He
specifically noted the tow truck driver’s testimony regarding armed men wearing
masks. He also noted that in text messages before the shooting, Guillory said to
Henry that they were “going to hit” and “that they’re popping for 60 apiece,” both
of which Watson took to refer to a robbery motive, indicating that they stood to
make $60,000 each from the robbery.

In responding to questions regarding how C.M. could have fired his weapon
at Merchant from the driver’s seat of the white Altima when it was the passenger’s
side of the vehicle that was closest to Merchant’s position, Watson stated that it
was possible he either shot over the roof or rolled the passenger side window
down. The windows on the vehicle were operational. Watson also noted that if
C.M. did shoot through the area of the passenger window, the spent casings would
likely have gone into the backseat of the Altima, which is exactly where spent
casings were found.

Dr. Christin Smith testified that she is the Harris County Juvenile Probation
Department staff psychologist who completed the certification evaluation for C.M.
Her report was also admitted into evidence at the hearing. Smith first described
some of C.M.’s history, including running away from home, acquiring his first
firearm when he was 14 or 15 years old, and the fact that his father, mother, and
twin brother all had criminal histories. Smith said that C.M. told her that “[w]hen
there were items or money that he needed, his means of obtaining those were
through robbery.” He received his first criminal charge, theft of a motor vehicle, in

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September 2019, and was subsequently charged that November with robbery of a
disabled man in a wheelchair.

After being placed on pre-adjudication supervision for the robbery charge,
C.M. was deemed to have inadequate supervision at home and there was alleged
tampering with his ankle monitor, resulting in an order for immediate custody.
C.M. was subsequently accepted into the Gang Recidivism Intervention Program
(GRIP), from which he graduated successfully in March 2021. In May 2022, C.M.
received a third juvenile referral for evading arrest or detention after shots were
reported fired in the vicinity. He was again adjudicated delinquent and placed in
the Harris County Youth Village Boys Program, a residential center. While there,
C.M. received group and individual services and was reported for eight behavioral
incidents—most involving some form of aggression, such as fighting or having an
aggressive tone with staff—and some refusals to attend school.

Smith further testified that according to her review, C.M. began associating
with gangs when he was 12 or 13 years old and appeared to have been active in
several gangs, including one that he started with his twin brother. A gang
assessment of C.M. noted altercations with rival gangs. C.M. was exposed to
domestic and community violence from a young age and had several friends who
had violent deaths. In 2020, he had to relocate when his home was “shot up.”
C.M.’s grades were often good but had oscillated, and he had passed two portions
of the GED test.

As part of her review, Smith conducted several tests on C.M. His overall
intelligence tested as average for a youth his age, although above the typical level
for the juvenile justice population. On his personality assessment inventory, Smith
concluded that C.M.’s scores indicated successful treatment may be challenging
due to defensiveness and lack of trust. Additionally, C.M.’s results on a self-

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reported inventory revealed elevated scores for social maladjustment and value
orientation that placed him at a higher likelihood of disregarding social norms and
demonstrating behavior that could be considered anti-social or delinquent. Smith
also classified C.M. as “group oriented,” which she said under the circumstances
indicated a below average chance of successful treatment and an above average
probability for violent activity.

Smith assessed C.M.’s overall risk for dangerousness as being in the middle
range compared to other adolescents in the juvenile justice system, whether the
current alleged offense was considered or not. For violent and aggressive
tendencies, she placed C.M. in the high range. Regarding sophistication and
maturity, C.M. fell in the middle range, although Smith said that his maturity alone
was in the high range. Smith said that C.M. struggled with behavioral norms
related to right and wrong. For treatment amenability, he scored in the middle
range. C.M. was able to identify some minimal feelings of guilt and remorse about
past actions but more so about his punishment for those actions. Regarding the risk
of violent reoffending, C.M. scored in the high range for a history of violence,
parental caregiver criminality, poor parental management, poor school
performance, peer group delinquency, and poor social and personal support.

Smith also noted that C.M. had positive social engagement while at the
detention center, as he had joined the football and basketball teams and had no
behavioral infractions while participating in those activities. She also stated that he
scored well for a positive attitude towards intervention and authority because he
requested and participated in treatment and had been compliant.

As to the factors relevant to waiver, Smith said that she looked at the
seriousness of the crime and overall risk for violent reoffending as well as the
youth’s legal knowledge, level of dangerousness, criminal sophistication, level of

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maturity, and amenability to treatment. In assessing C.M. without considering the
current offense, Smith concluded that his criminal sophistication was in the
average range and his dangerousness was in the above average range. When she
considered the current offense, that elevated his criminal sophistication to above
average. She found that his maturity and treatment amenability were both in the
average range, whether the offense was considered or not. Regarding the risk of
violent reoffending, Smith concluded that without considering the offense and if
C.M. received no rehabilitation services, he would be at a moderately high risk. If
the offense is also considered, that would elevate to high risk. Smith said she does
not offer an ultimate opinion on whether the court should grant the certification
and waive jurisdiction, but she does make recommendations regarding future
treatment as a starting block for providers.

On cross-examination, Smith acknowledged that the first real structured
treatment environment that C.M. had experienced was when he was sent to the
Youth Village after the current offense was alleged to have occurred. In the past
year, C.M. had been reported for only 11 infractions, and nine were school
refusals. Smith said that C.M. had specifically sought out treatment, requesting
both therapy and medication. She explained that sometimes juveniles pay “lip
service” to the need for treatment and then their interest dwindles, but C.M. had
actually increased his participation over time. When asked what struck her about
C.M., Smith said that he was personable, polite, friendly, compliant, and
motivated. Smith also noted that C.M. does not appear to take a leadership role in
planning illegal acts. Lastly, Smith acknowledged that had she reviewed the
treatments notes of Kailey Posterick, one of C.M.’s therapists, prior to testifying,
she would have rated C.M. as high average for treatment amenability rather than
average.

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C.M. called Paula Huber to the stand who testified that she was C.M.’s
therapist while he was at the Youth Village, from October 2022 until February
2023. She had also seen him a couple of times since then. Their sessions began
after the offense charged in this case. When they began, he was open to therapy
and warmed up quickly but was suffering from post-traumatic symptoms. She
described him as “smart, charismatic, kind to those he knew[, and] willing to trust
others once he got to know [them].” C.M.’s mother was very engaged and willing
to participate in treatment. Huber said that C.M.’s family was a little dysfunctional
“but definitely more willing to work on things than a lot of [her] current families.”
She said that he was still engaged in his treatment and requesting therapy and
medication, which, she said, was a bit surprising. He had gotten better at
understanding himself and how he came to be this way and at managing his
symptoms, which include anxiety, nightmares, and hyper vigilance. C.M.’s
empathy had increased through therapy. He had passed two parts of the GED,
which Huber said was pretty rare for the youth they work with. His PTSD stemmed
from witnessing domestic violence and friends being shot as well as his
relationship with his father.

Huber estimated that she had worked with around a hundred youth during
her time with the Juvenile Probation Department, and she said that C.M. was more
willing to engage in long-term treatment and had more insight than other juveniles
she has treated. His persistence was comparatively rare. She and C.M.’s current
therapist, Posterick, had concluded that C.M. would be a good candidate for the
Capital Offenders Program if he was adjudicated for the current offense as a
juvenile.

On cross, Huber said she did not know how C.M. treated strangers because
she had not observed him in that context. He had demonstrated growth by taking

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accountability for his actions that had led to behavioral issues at the Youth Village.
She did not do any testing and could speak to what his behavior would be outside
of a juvenile facility. She had worked with other youth who were certified for trial
as adults and for whom she agreed with the certification, but that was not the case
with C.M.

Posterick testified that she is a therapist for the foundations program in the
Juvenile Detention Center and was, at the time of the hearing, C.M.’s therapist.
She described C.M. as very friendly, outgoing, and easy to work with as a client
and as a resident in the facility. She said that most of the staff knew and got along
with him very well. “He’s very polite and a fun kid to work with.” She thinks she
knows him pretty well. He always seemed interested and eager and ready to talk in
sessions. He had “very minimal” behavior issues at the facility and participated in
football and a studio program where they recorded podcasts. He had requested and
received additional study materials from her, which was unusual in her experience.
He was motivated and taking an active role in his treatment.

Posterick explained that the Capital Offenders Program is a Texas Juvenile
Justice Department (TJJD) program for youth who have committed a serious
offense but have demonstrated an ability to safely interact in the general population
at the facility. They also look for people who are open to treatment. She does not
make the recommendation often; C.M. would be the fifth patient she had referred
to the program out of 45 patients that she has seen discharged to TJJD. She
explained that he has a demonstrated amenability to treatment and his progress had
already been “exceptional.” She defined “amenability” as not only a willingness to
engage, but a willingness to actually apply the skills that they learn in treatment.

On cross-examination, Posterick acknowledged that she could not speak to
how C.M. would behave if released back into the community. She also

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acknowledged that the fact C.M. was potentially facing significant prison time if
certified could have an impact on his behavior.

In its order waiving its exclusive jurisdiction, the juvenile court stated that
C.M. had been charged with a felony occurring in 2022, for which there had been
no adjudication; C.M. was 14 years of age or older at the time of the commission
of the offense, having been born in 2006; there was probable cause to believe C.M.
was guilty as charged; C.M.’s conduct required criminal proceedings for the
welfare of the community; and C.M.’s background necessitated transfer to criminal
court for the welfare of the community. The juvenile court further stated that in
making these determinations, it considered that the offense was against a person
and not just property, C.M.’s sophistication and maturity, his record and previous
history, the prospects for adequate protection of the public, and the likelihood of
rehabilitation.

Probable Cause

In his first issue, C.M. contends that the evidence is legally and factually
insufficient to support the juvenile court’s conclusion that there was probable cause
to believe that he committed capital murder. “‘Probable cause’ is defined as
sufficient facts and circumstances to warrant a prudent person to believe the
suspect committed . . . the offense.” In re C.M.M., 503 S.W.3d at 702. “Probable
cause is based on probabilities; it requires more than mere suspicion but less
evidence than that needed to support a conviction or support a finding by a
preponderance of the evidence.” Id. “Probable cause exists where the police have
reasonably trustworthy information sufficient to warrant a reasonable person to
believe a particular person has committed . . . an offense.” Guzman v. State, 955
S.W.2d 85, 87 (Tex. Crim. App. 1997).

A person commits capital murder if he “intentionally or knowingly causes
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the death of an individual” and “intentionally commits the murder in the course of
committing or attempting to commit . . . robbery,” among other possibilities. Tex.
Penal Code §§ 19.02(b)(1), 19.03(a)(2). A person commits robbery “if, in the
course of committing theft . . . and with intent to obtain or maintain control of the
property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to
another; or (2) intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death.” Id. § 29.02(a).

A person may be convicted as a party to an offense, including capital
murder, “if the offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or by both.” Id. § 7.01(a); see also Gross v.
State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). The law of parties, set forth
under Penal Code section 7.02, may be applied to a case even though no such
allegation is contained in the indictment. See In re State ex rel. Weeks, 391 S.W.3d
117, 124 (Tex. Crim. App. 2013) (“Regardless of whether it is pled in the charging
instrument, liability as a party is an available legal theory if it is supported by the
evidence.”); see also Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App.
2002) (“It is well-settled that the law of parties need not be pled in the
indictment.”).

Under Section 7.02(a)(2), a person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense. Tex. Penal Code § 7.02(a)(2). And, under
Section 7.02(b), a person is criminally responsible for an offense committed by
another under a theory of conspiracy. Id. § 7.02(b).

Here, C.M. raises several specific evidentiary challenges to the juvenile
court’s finding of probable cause. First, C.M. asserts that the evidence did not

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support the charge of capital murder where there was no evidence any of the
alleged assailants knew Merchant would be at the scene and, at most, evidence
indicated they went there to burglarize a home and not to commit the underlying
offense of robbery. C.M. does not cite any authority suggesting that to be guilty of
robbery, a person needs to know a particular victim will be at the location to be
robbed, and we are aware of no such authority. See generally Tex. Penal Code §
29.02(a) (elements for robbery). Here, the finding of probable cause for capital
murder based on an underlying offense of robbery was supported not only by
Henry’s direct admission that a robbery was planned and intended, but also by the
statement of the tow truck driver that the assailants got out of their vehicle wearing
masks and carrying guns and by the text message Guillory sent to Henry before the
shooting, stating that they were “going to hit” and “that they’re popping for 60
apiece,” both of which Watson took to refer to a robbery motive.

Second, C.M. emphasizes the fact that neither of the alleged eyewitnesses at
the scene identified C.M. as being one of the assailants, and, in fact, Edwina
identified two other individuals as the men who shot her husband. Although
certainly relevant to the probable cause analysis, the fact that neither witness
identified C.M. is not dispositive. Watson stated that he did not find Edwina
credible and indicated she may have had ulterior motives in making her statements,
and the tow truck driver indicated he dove to the ground and did not see much
shortly after the assailants arrived. The tow truck driver also noted that the
assailants were wearing masks. C.M.’s identity as one of the assailants was
otherwise sufficiently established by evidence, including Henry’s direct statements
that C.M. participated, text messages between alleged assailants indicating an
intention to commit a robbery and encouraging other members of the group to
ensure C.M. came along, statements by the women later discovered with the white

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Altima that C.M. was one of the men that came back after borrowing the white
Altima, the fact that C.M.’s cell phone contacted a cell phone tower in the area
where the shooting occurred around the time of the shooting, and the video
showing the white Altima in the area and even on the same street as the shooting
immediately before the shooting. Additionally, C.M. sent a news story regarding
Merchant’s death to Guillory after the shooting. All of this evidence points to
C.M.’s participation in the shooting.

Third, C.M. argues that Henry’s statement that C.M. shot at Merchant from
his position in the driver’s seat did not make sense given the relative positions of
the individuals involved. C.M. suggests that given the relative positioning, it would
have been very difficult or awkward for someone to shoot at Merchant from the
driver’s seat of the white Altima over the roof of the vehicle or through the
passenger side window. He also suggests that had he done so, he likely would have
been shooting at the backs of the other assailants, as they had reportedly exited the
white Altima and at least one had gone to the Infiniti and opened the rear door.
Again, while these concerns are certainly relevant to the analysis and the
believability of the evidence, they are not dispositive. Henry’s statement did not
say how C.M. shot from the driver’s seat, whether he shot through the passenger
window or rose up from the seat and shot over the roof. According to Watson,
Henry’s statement was corroborated at least somewhat by the fact that shell casings
were found in the rear of the white Altima, which he explained would have likely
been the result if someone had fired from the driver’s seat. Moreover, the exact
positioning of the assailants is not established well enough by the evidence to
conclude C.M. would have been shooting at anyone other than Merchant had he
fired from the driver’s seat of the white Altima.

Lastly, C.M. states that there was no evidence to establish any theory under

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the law of parties and no evidence that he intended Merchant’s death under any
possible scenario. C.M. does not develop either of these contentions beyond stating
them. The evidence described above was legally and factually sufficient to show
probable cause that C.M. was an active participant in planning and carrying out an
armed robbery that resulted in many shots fired at the victim, including by C.M.
himself. The evidence is legally and factually sufficient to support the juvenile
court’s finding of probable cause for capital murder. See In re C.M.M., 503 S.W.3d
at 701.

Section 54.02(m) Factors

In his second issue, C.M. challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings on the section 54.02 factors. See Tex.
Fam. Code § 54.02(f). As set forth above, the juvenile court stated in its order
waiving jurisdiction, that in making its determination, it considered four section
54.02(f) factors, including (1) that the offense was against a person, (2) C.M.’s
sophistication and maturity, (3) his record and previous history, and (4) the
prospects for adequate protection of the public and the likelihood of rehabilitation.
“Any combination of these criteria may suffice to support a waiver of jurisdiction;
not every criterion need weigh in favor of transfer.” In re C.M.M., 503 S.W.3d at
701.

Type of offense. The first factor weighs heavily in favor of transfer because
C.M. was charged with a serious offense against a person, namely capital murder.
See Tex. Fam. Code § 54.02(f)(1). Capital murder is, of course, a capital felony
and a serious offense against a person. See Tex. Penal Code §§ 12.31 (capital
felonies), 19.03 (capital murder). The allegations against C.M. involved a shooting
in a neighborhood by C.M. and other alleged members of a gang.

Sophistication and maturity. The second factor, C.M.’s sophistication and
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maturity, also weighs in favor of the transfer. “In assessing the sophistication and
maturity of the child, the juvenile court places emphasis on whether the evidence
shows that the child knew right from wrong and could assist his attorney in his
defense.” See Bell, 649 S.W.3d at 892. Evidence that the juvenile is not
intellectually disabled and is capable of understanding the proceedings against him
is also relevant to a determination of the juvenile’s maturity and sophistication to
support upholding a transfer decision. See id. at 893. How to weigh such evidence
is generally within the juvenile court’s discretion. See id.

Smith, the psychologist who evaluated C.M., rated him overall as having an
average level of maturity and sophistication for his age. She noted that C.M. had
rated himself as “high” for maturity, and she also rated his autonomy as high.
According to Smith, C.M. demonstrated at least a basic understanding of court
proceedings and the roles played by different participants, including his own
attorney. She also noted that he understood that the loss of life is what made the
capital murder charge so serious. Smith additionally rated C.M.’s level of
intellectual and criminal sophistication as average when the charged offense was
not considered, but she increased the criminal sophistication rating to above
average when considering the current charge. Smith further reported that C.M.
considered himself independent and “in control” and “has some awareness of
wrongfulness,” but she also noted that he struggles to delay gratification, has a
quick temper, and does not always understand the reasons behind his emotions.
Overall, the evidence supports the trial court’s determination that C.M.’s
sophistication and maturity support the waiver and certification. See, e.g., id.
(holding evidence was sufficient to support finding on sophistication and maturity
element when child knew right from wrong and could assist attorney in his defense
but was “functioning well below grade level”).

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Record and previous history. The third factor, C.M.’s record and previous
history, also weighs heavily in favor of the transfer. As discussed above, C.M. has
previously been charged and adjudicated for three other offenses, including
robbery of a man in a wheelchair, auto theft, and evading arrest. Additionally,
C.M. has a history of discipline issues at home and while in a juvenile facility,
although it should be noted that C.M.’s two therapists who testified did not
consider him a discipline problem and said he generally got along well with the
staff at the facility.

C.M.’s history of gang affiliation is also concerning. See, e.g., id. at 895 (“A
juvenile court may give significant weight to a child’s gang affiliation when
assessing the child’s previous history.”); In re S.G.R., 496 S.W.3d 235, 242 (Tex.
App.—Houston [1st Dist.] 2016, no pet.) (“A juvenile court does not err by
according significant weight to evidence of affiliation with a criminal street gang
in connection with a child’s record and previous history, as these gangs are by
definition regularly engaged in criminal activities.”). As discussed above, C.M.
admitted he began associating with gangs when he was 12 or 13 years old. He also
appeared to be active at the time of the charged offense in several gangs, including
one he helped start and another with a penchant for robbing pharmacies. It is also
worth noting regarding his history that C.M. told Smith that when he saw
something he wanted, “[H]e would rob or ask for it.” C.M. reported to Smith that
he had acquired his first gun when he was 14 or 15, and offense reports indicated
he had a history of posting pictures of himself on social media with guns. This
evidence supports the trial court’s determination that C.M.’s record and previous
history supports the waiver and certification.

Protection and rehabilitation. Lastly, the fourth factor—which looks at the
prospects for adequate protection of the public and the likelihood of reasonable

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rehabilitation—also supports the trial court’s determination. Under this factor, the
trial court could again consider the serious nature of the offense C.M. allegedly
committed, as well as his significant history of committing crimes and affiliating
with violent gangs. See, e.g., Bell, 649 S.W.3d at 897.

The evaluator, Smith, assessed C.M.’s overall risk for dangerousness as
being in the middle range compared to other adolescents in the juvenile justice
system, but for violent and aggressive tendencies, she placed C.M. in the high
range if the charged offense is included. Specifically in regard to the factors for
transfer, Smith stated that C.M. should be considered as an above average risk of
dangerousness. As for reoffending, she stated that he was in the moderately high
risk category if the subject offense is excluded but in the high risk category if the
charged offense was considered. In coming to these conclusions, she specifically
noted C.M.’s short temper and history of getting into fights, as well as his history
with guns and gangs, and the fact that he tended to gravitate toward negative peer
groups and had impulsively engaged in criminal activity.

In regard to the possibility of rehabilitation, Smith opined that C.M. had an
average level of treatment amenability when compared to most juvenile offenders
his age, based on his prior experiences with therapy and apparent openness to
engaging in treatment but also considering his apparent defensiveness and lack of
trust and the fact there was an indication in the testing that he might just “go
through the motions.” During her testimony, however, Smith acknowledged that
she would have rated C.M. as high average for treatment amenability if she had
been able to review Posterick’s notes prior to making that determination.

Posterick, C.M.’s therapist at the time of the hearing, spoke very highly of
his amenability to treatment, including that he was easy to work with, always
seemed interested and ready to talk at sessions, had “very minimal” behavior

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issues, participated in extracurricular programs, and had requested and received
additional study materials from her. Posterick had also recommended C.M. for the
Capital Offenders Program, which she had rarely done for juveniles in her care.
She described his progress in therapy thus far as “exceptional.” Posterick
acknowledged, however, that she could not speak to how C.M. would behave if
released back into the community.

Huber, a therapist who had previously treated C.M., also spoke highly of his
amenability to treatment. She said that C.M. was more willing to engage in long-
term treatment and had more insight than other juveniles she has treated and that
his persistence in treatment was comparatively rare. She also noted that C.M.’s
family appeared more willing to work on improvement than most families she
dealt with. And, she said that he had passed two parts of the GED, which was
pretty rare. Huber also acknowledged, however, that she did not do any testing and
could not speak to what C.M.’s behavior would be outside of a juvenile facility.

Although Posterick and Huber made compelling cases for C.M.’s progress in
and amenability to treatment, the evidence that he posed a continuing threat for
dangerous and violent conduct if released into the community was sufficient to
support the juvenile court’s conclusion that this fourth factor weighed in favor of
transfer.

Juvenile court’s discretion. Concluding that sufficient evidence supports
the juvenile court’s findings under section 54.02(a) and (f), we move to the second
step of the inquiry: whether the juvenile court’s ultimate waiver decision was an
abuse of discretion. See In re C.M.M., 503 S.W.3d at 701. As described above,
although there is evidence that C.M. was remarkably open to treatment and
appeared to be mostly staying out of trouble while at the Youth Village, the
evidence also indicated that C.M. has a troubling history of criminal conduct and

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gang involvement, had participated in the commission of a very violent offense,
and constituted a risk of future criminal and violent behavior in the community.
Accordingly, we cannot say that the trial court acted outside of guiding rules and
principles and abused its discretion in waiving its exclusive original jurisdiction
and transferring C.M. to a criminal district court for trial as an adult. See Thomas,
623 S.W.3d at 380 (explaining that juvenile courts have substantial discretion in
making a transfer decision.); see also Nat’l Lloyds Ins., 507 S.W.3d at 226. We
therefore overrule C.M.’s second issue on appeal.

We affirm the juvenile court’s order.

/s/ Frances Bourliot
Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

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