D.S., Matter of, 13-91-199-CV

CourtCourt of Appeals of Texas
Citation833 S.W.2d 250
Docket NumberNo. 13-91-199-CV,13-91-199-CV
PartiesIn the Matter of D.S., a Child.
Decision Date28 May 1992

Rene Correa, Weslaco, Mark Alexander, McAllen, for appellant.

Rene Guerra, Theodore Hake, Edinburg, for appellee.



KENNEDY, Justice.

D.S. 1 appeals from an adjudication and disposition of a juvenile court action alleging delinquent conduct, i.e., murder. Appellant was adjudicated under the State's determinate sentencing statutes. 2 The jury found that appellant used a deadly weapon and assessed disposition at thirty years. Appellant, by eleven points of error, challenges the constitutionality of the determinate sentencing statutes and asserts that several actions by the trial court constitute reversible error. We affirm.

By his fifth point, appellant asserts that the trial court reversibly erred in allowing him to be sentenced under the determinate sentencing statutes because the certification to the court of grand jury approval was not in the case file at the time trial commenced. Appellant does not complain that the grand jury failed to approve the petition or failed to certify it to the court clerk. Rather, he only asserts that the timing was improper when the grand jury's Certification To The Juvenile Court was placed in the case transcript.

The record reflects that the petition and the Notice of Intent To Seek Grand Jury Certification For Determinate Sentencing were timely filed. We also note that D.S. executed an election to have the jury determine disposition prior to the proceeding which only is available to a juvenile when the State is proceeding under the determinate sentencing statutes. See Tex.Fam.Code Ann. § 54.04(a) (Vernon Supp.1992).

The record shows that the certification was stamped "Filed November 8, 1990," and the deputy clerk testified, outside the jury's presence, that she did not place the document into the case file until December 13, 1990, the day after the jury was selected in the juvenile proceeding. When asked why the document was stamped with the November date, the deputy clerk replied that the certification was given to the chief clerk on November 8, 1990, when the grand jury left for the day.

In pertinent part, the Texas Family Code provides that, "if the grand jury approves of the petition, the fact of approval shall be certified to the juvenile court, and the certification shall be entered in the record of the case." Tex.Fam.Code Ann. § 53.045(d) (Vernon Supp.1992).

In reading the pertinent statute, we find no time requirement for placing the grand jury's certification to the court clerk in the case file. Additionally, we note that the court clerk received the certification on November 8, 1990, not on December 13, 1990. We conclude that the Certification To The Juvenile Court was properly and timely filed with the juvenile court. See In the Matter of S.B.C., 805 S.W.2d 1, 8 (Tex.App.--Tyler 1991, writ denied). We overrule point five.

By points ten and eleven, appellant contends the trial court reversibly erred in allowing the case to proceed to the disposition stage using the determinate sentencing scheme because the punishment phase of the scheme violates the United States Constitution and the Texas Constitution.

Appellant specifically complains that the determinate sentencing scheme provides that a person may serve time in the penitentiary or be punished without ever being convicted of a crime, it denies appellant bail, it violates the separation of powers doctrine by delegating the executive branch function of commutation of sentence to the judiciary, and it violates the double jeopardy clause in that it allows two punishments for the same offense.

We note that appellant does not argue impropriety, only the potential for impropriety. No error is shown to have occurred, and thus, nothing is presented for our review. Until such time as the committing court orders the transfer of appellant to the Texas Department of Criminal Justice Institutional Division (TDCJID) appellant's arguments under points ten and eleven are premature. See also, S.B.C., 805 S.W.2d at 6. We overrule points ten and eleven.

By points six and seven, appellant argues that the State's determinate sentencing statute is unconstitutional because it violates the United States Constitution's due process clause, and the Texas Constitution's due process clause, and due course of law protections of its citizens.

Appellant contends that the determinate sentencing statutes allow the State to prosecute without a sworn complaint, information, or evidence of a crime. In connection with this argument, he also asserts that the determinate sentencing statute fails to provide a right to an indictment before being convicted of a felony or being incarcerated with felons. Appellant also suggests that the determinate sentencing statute fails to provide guidelines to the grand jury in determining whether to approve the petition.

Appellant's conclusion assumes that a petition cannot function as an indictment. See In re R.L.H., 771 S.W.2d 697, 699 (Tex.App.--Austin 1989, writ denied). The Texas Constitution provides that "[t]he practice and procedures relating to the use of indictments ... including their contents, amendment, sufficiency, and requisites, are as provided by law." Tex. Const.Ann. art. V, § 12 (Vernon Supp.1992). The legislature exercised its constitutional power in the determinate sentencing statutes by providing that a petition is approved by a grand jury in the same manner that the grand jury votes on the presentment of an indictment. Tex.Fam.Code Ann. § 53.045(b) (Vernon Supp.1992). Additionally, the statute provides that the grand jury retains all of its investigative powers while considering a petition submitted to it for approval. Tex.Fam.Code Ann. § 53.045(c) (Vernon Supp.1992). The grand jury treats the petition the same as information it would be presented with before issuing an indictment.

As if anticipating this constitutional argument, the legislature provided that for the purpose of transferring a juvenile to the TDCJID, a juvenile petition approved by a grand jury under this section is an indictment.... Tex.Fam.Code Ann. § 53.045(d) (Vernon Supp.1992). We overrule points six and seven.

By points eight and nine, appellant asserts that the determinate sentencing scheme violates the equal protection clauses of the United States Constitution and the Texas Constitution. Appellant contends that the scheme allows arbitrary prosecution and treatment of offenders under the age of fifteen without adequate constitutional safeguards.

A prosecutor now has several processes available to deal with juveniles, the juvenile system, the determinate sentencing system, and the criminal system, if he first petitions and the court certifies the juvenile as an adult. There are differences among these systems. Appellant contends that his constitutional rights are violated because under the determinate sentencing system, he is treated differently than if he were adjudicated under the juvenile system.

As an accused child in juvenile court, appellant's fundamental right to liberty was at stake. R.L.H., 771 S.W.2d at 701. Strict scrutiny is the proper equal protection test when a fundamental right is in issue. Id. The only legitimate classifications or burdens under the strict scrutiny standard are those which further a compelling state interest. Id. Thus, we must determine whether the determinate sentencing statutes further a compelling state interest and meet the strict scrutiny standard. The court in R.L.H. addressed this issue and noted that the determinate sentencing statutes were enacted as an alternative to the pre-existing criminal and juvenile systems. These statutes were enacted to strike a balance between 1) the criminal system's goal to maintain our societal structure and to protect the safety of citizens by punishing persons who violate certain basic rules of conduct, and 2) the juvenile system's primary purpose "to provide for the care, the protection, and the wholesome moral, mental, and physical development of children." Id. (citing Tex.Fam.Code Ann. § 51.01(1) (Vernon 1986)). These systems encounter a gap neither can deal with effectively when a violent juvenile offender is involved. The legislature, seeking to strike a balance between the two systems, enacted the determinate sentencing statutes. This third system, which initially places the child in the Youth Commission and requires the committing court to re-evaluate the child's situation when reaching age eighteen, are measures tailored to achieve a child's well-being. Prohibiting the Youth Commission from paroling him without court approval and the possibility that he will serve the portion of his sentence beyond age twenty-one at the TDCJID are measures designed to protect the public by lengthening the period of confinement.

Because these two stated goals are vital, we conclude that the State's interest in striking a balance between the goals is compelling. Because the determinate sentencing statutes further a compelling State interest, we conclude that they do not violate appellant's Texas or federal equal protection rights. We overrule point eight and nine.

In addition to appellant's constitutional complaints, he also asserts that the trial judge reversibly erred in conducting the trial. By point one, appellant asserts that the trial court reversibly erred in denying appellant's request to charge the jury on the lesser included offense of aggravated assault.

An offense is a lesser included offense if 1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, 2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its...

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