D.W., Matter of

Citation933 S.W.2d 353
Decision Date14 November 1996
Docket NumberNo. 09-95-288CV,09-95-288CV
PartiesIn the Matter of D.W., a Juvenile.
CourtCourt of Appeals of Texas

Dennis Powell, Orange, for appellant.

John Kimbrough, County Attorney, Doneane Beckcom, Assistant County Attorney, Orange, for State.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

At age fifteen, Appellant, D.W., shot B.M. to death while in the course of robbing B.M. Appellant entered a plea of true to capital murder. On June 23, 1993, the trial court gave Appellant a forty year sentence and committed him to custody of the Texas Youth Commission. On May 25, 1995, the trial court entered an order transferring Appellant into the custody of the Texas Department of Criminal Justice, Institutional Division, to serve the remainder of his forty year sentence. Appellant raises five points of error.

Point of error one urges: "The Trial Court Erred in Including an Affirmative Finding of a Deadly Weapon in the Order of Transfer." The State must give notice in some form of its intention to seek an affirmative finding of the use of a deadly weapon. Ex parte Patterson, 740 S.W.2d 766 (Tex.Crim.App.1987), modified by, Ex parte Beck, 769 S.W.2d 525 (Tex.Crim.App.1989). In Luken v. State, 780 S.W.2d 264 (Tex.Crim.App.1989) , the Court of Criminal Appeals held the accused could challenge the notice of a deadly weapon finding for the first time on appeal. Unlike the criminal process applied in prosecutions of adults, the determinate sentencing scheme has a two-phase process which may result in two appeals. The affirmative finding is made at the first, dispositional phase of the proceeding. TEX. FAM.CODE ANN. § 54.04(g) (Vernon 1996). The trial court's 1993 judgment and order of commitment recited Appellant "exhibited and used a deadly weapon, to wit: a firearm during the commission of the offense...." The Order of Transfer noted the Judgment and Order of Commitment included the deadly weapon finding. Appellant argues the State did not provide adequate notice of its intention to seek an affirmative finding of the use of a deadly weapon by including a deadly weapon allegation in a written pleading filed prior to the disposition hearing.

Appellant did not perfect an appeal from his commitment to the Texas Youth Commission, nor does he include the statement of facts of the disposition hearing in the record of this appeal. Disposition orders and transfer orders are separately appealable. TEX. FAM.CODE ANN. § 56.01(c)(1)(B) & (c)(2) (Vernon 1996). Appellant argues the issue of whether the State gave him sufficient notice of its intention to seek an affirmative finding was not ripe for adjudication until the possibility of his incarceration became a certainty. Appellant relies upon the treatment afforded points raised in two appeals from disposition orders: Matter of D.S., 833 S.W.2d 250 (Tex.App.--Corpus Christi 1992, writ denied), and Matter of S.B.C., 805 S.W.2d 1 (Tex.App.--Tyler 1991, writ denied). S.B.C. challenged the constitutionality of the determinate sentencing scheme because he might be incarcerated longer than an adult would be. Id. at 6. The appellate court held the issue was premature in an appeal from a disposition order, as S.B.C. might be released following the transfer hearing which had not yet occurred, in which case he would not be incarcerated longer than a similarly situated adult would be. Id. Likewise, D.S. challenged the constitutionality of the determinate sentencing scheme based upon the mere unrealized potential for punishment in violation of the state and federal constitutions. D.S., 833 S.W.2d at 252. The court of appeals held the "potential for impropriety" presented nothing for review until such time as the court ordered the appellant's transfer to the Texas Department of Criminal Justice, Institutional Division. The court did address D.S.'s argument that the trial court 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. Id. at 251.

The issue in this case is analogous to the issue of the absent certification in D.S. The certification, together with the petition, is the juvenile procedural equivalent of an indictment. The absence of such a certification was reviewable in the appeal from the commitment order. In our case, Appellant urges the trial court erred in including the affirmative finding recital in the transfer order because of a procedural defect in the disposition phase of the proceedings. He is not challenging the constitutionality of the determinate sentencing statutes. There was nothing speculative or conditional about the affirmative finding when the trial court adjudicated Appellant to be delinquent. Although Appellant did not have to preserve the issue by written motion filed before the day of the disposition hearing, once the affirmative finding was included in the commitment order nothing prevented him from exercising his right to appeal in order to challenge the trial court's decision to include the finding in the order. The forty year sentence might not be served, either, but both the sentence and the affirmative finding are matters which have been raised and considered in appeals from commitment orders. See, In Matter of S.L.L., 906 S.W.2d 190 (Tex.App.--Austin 1995, no writ); Matter of A.F., 895 S.W.2d 481 (Tex.App.--Austin 1995, no writ). Even defects of constitutional dimension may be waived. Ex parte Crispen, 777 S.W.2d 103 (Tex.Crim.App.1989); Little v. State, 758 S.W.2d 551 (Tex.Crim.App.), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988). A lack of notice would be reversible error, but would not render the judgment itself void. Patterson 740 S.W.2d at 778. Appellant raises matters which relate to the earlier, appealable proceeding in the subsequent appeal of the transfer order. Matter of T.C.K.Jr., 877 S.W.2d 43, 44 (Tex.App.--Beaumont 1994, no writ). Appellant cannot attack the disposition order in the later appeal of the transfer order.

Here, the trial court included an affirmative finding of the use of a deadly weapon in its unappealed disposition order. The transfer order includes a recital that the 1993 commitment includes an affirmative finding of the use of a deadly weapon. It was not error for the transfer order to include this recital, as the record reflects the recital is correct. Appellant certainly had written notice of the State's intention to seek a deadly weapon finding prior to the entry of the transfer order, because the disposition order included such a finding. Point of error one is overruled.

Point of error two urges: "The Trial Court Erred in Refusing to Dismiss the Action and Release the Juvenile Respondent in Response to the Intentional Destruction of Exculpatory Evidence by the Texas Youth Commission." In the course of deposing the assistant superintendent of the Giddings State Home and School, Appellant's counsel discovered that reports prepared by members of the special services committee were shredded after the committee made its recommendation to the trial court. 1 The trial court granted Appellant's motion to strike the recommendation, but denied Appellant's motion to dismiss the prosecution.

The State's suppression of exculpatory evidence violates due process irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Although the loss or destruction of evidence can deny a criminal defendant due process of law, the duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed. California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984). Absent bad faith, the mere failure to preserve potentially useful evidence does not of itself result in the denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). We must examine the totality of circumstances to determine whether the loss resulted in a trial so lacking in fairness as to deny due process. Ex parte Brandley, 781 S.W.2d 886, 892 (Tex.Crim.App.1989), cert. denied, 498 U.S. 817, 111 S.Ct. 61, 112 L.Ed.2d 35 (1990). A criminal defendant must show that the evidence was lost or destroyed by the State after a request therefore, the evidence was favorable to the defendant, and the evidence was material. Nastu v. State, 589 S.W.2d 434, 441 (Tex.Crim.App.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

The State is accused of having failed to preserve evidence, as opposed to having maintained any undisclosed evidence in its possession, so the Brady standard does not apply. Williams v. State, 906 S.W.2d 58, 61 (Tex.App.--Tyler 1995, pet. ref'd). In order to meet the Trombetta standard, the exculpatory value of the lost evidence must have been obvious at the time of its destruction, and the accused must be unable to find comparable evidence. Appellant argues the documents must have been material because the assistant superintendent admitted they shredded the reports so they would not be available to the defendant. Such a conclusion does not necessarily follow, especially when the assistant superintendent's admission is read in its context, as the document destruction is a standard operating procedure, not a unique occurrence. Furthermore, the contributing professionals' input is contained in Appellant's file, incorporated into the recommendation, and available through deposition. Appellant does not meet the Trombetta standard for failure to preserve exculpatory evidence. Appellant argues he has met the Youngblood standard for failure to preserve potentially useful information, as he established bad faith on the part of the Giddings School. The assistant superintendent admitted the Commission did not want the destroyed...

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