Davis v. State
| Decision Date | 31 July 2018 |
| Docket Number | No. 05-16-01341-CR,No. 05-16-01342-CR,No. 05-16-01343-CR,05-16-01341-CR,05-16-01342-CR,05-16-01343-CR |
| Parties | JORDAN DAVIS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F14-15543-Q, F14-15544-Q & F15-45428-Q
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Evans
Jordan Davis appeals his convictions for aggravated sexual assault and aggravated robbery. In the aggravated sexual assault cases, appellant contends that the judgments adjudicating guilt are void due to a deficient transfer order from juvenile district court to adult felony district court.1 He also contends that the judgments improperly included a fine. In both the sexual assault and robbery cases, appellant contends that his guilty plea was involuntary as a result of ineffective assistance of counsel and that court costs were improperly included in all three judgments. For thereasons that follow, we reverse the judgment in the aggravated sexual assault cases. In the aggravated robbery case, we modify the trial court's judgment and affirm the conviction.
In April, 2014, when appellant was sixteen, the State filed a petition for discretionary transfer in a Dallas County juvenile court which alleged that appellant engaged in delinquent conduct by committing two separate offenses of aggravated sexual assault. Pursuant to the State's petition, the juvenile court waived its jurisdiction and transferred the matter to criminal district court. See TEX. FAM. CODE ANN. § 54.02 (West 2014).
Appellant was subsequently indicted for two separate offenses of aggravated sexual assault in cause numbers F14-15543-Q and F14-15544-Q. When appellant was seventeen, he was also indicted for aggravated robbery in cause number F15-45428-Q.
In November, 2015, pursuant to a plea bargain agreement, appellant pled guilty to all three offenses and was placed on deferred community supervision for a period of ten years. In February, 2016, the State filed a motion to revoke appellant's community supervision or proceed with an adjudication of guilt in all three cases. After a hearing, the trial court granted the State's motion,2 found appellant guilty as charged in each indictment, and sentenced him to twenty years' imprisonment in all three cases. In the aggravated robbery case, the trial court also made a deadly weapon finding. This appeal followed.
In his second issue, appellant contends that the judgments adjudicating guilt in the aggravated sexual assault cases are void because the district court never properly acquired jurisdiction. Appellant argues that under Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014),the juvenile court abused its discretion by waiving jurisdiction without making adequate case-specific findings in the transfer order. The State argues that under former article 44.47(b) of the Code of Criminal Procedure, this Court lacks jurisdiction to hear appellant's complaint about the juvenile transfer because he did not raise his challenge when the trial court entered its order of deferred adjudication. Secondly, the State cites article 4.18 of the Code of Criminal Procedure and argues that the issue has not been properly preserved for review. Lastly, the State argues that the transfer order was sufficient. We are not persuaded by the State's arguments and conclude that under the holding in Moon, the juvenile court abused its discretion by failing to include case-specific findings in the order waiving jurisdiction.
Appellant's appeal of the transfer order is governed by former article 44.47 of the Code of Criminal Procedure. Article 44.47 provided in relevant part:
Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 85, 1995 Tex. Gen. Laws 2517, 2584 (adding Tex. Code Crim. Proc. art. 44.47), amended by Act of June 2, 2003, 78th Leg., R.S., ch. 283, § 30, 2003 Tex. Gen. Laws 1221, 1234-35 ( Tex. Code Crim. Proc. Ann. art. 44.47(b)), repealed by Act of May 12, 2015, 84th Leg., R.S., ch. 74, §§ 4-6, 2015 Tex. Gen. Laws 1065, 1066 (emphasis added).3 The statute uses the disjunctive "or" and by its plain language, provides,without limitation, two options for when a defendant can challenge a juvenile transfer: when appealing either a conviction or an order of deferred adjudication. See Bell v. State, No. 01-15-00510-CR, 2018 WL 3150851, at *2 (Tex. App.—Houston [1st. Dist.] June 28, 2018) (not yet reported); see also State v. Lopez, 196 S.W.3d 872, 875 (Tex. App.—Dallas 2006, pet. ref'd) ().
The State relies on Wells v. State, No. 12-17-00003-CR, 2017 WL 3405317 (Tex. App.—Tyler Aug. 9, 2017, no pet.) (mem. op., not designated for publication) and Eyhorn v. State, 378 S.W.3d 507 (Tex. App.—Amarillo 2012, no pet.) to support its argument that appellant was required to challenge the transfer order in an appeal from the order originally imposing community supervision and urges this Court to follow the holding in Wells "because the procedural facts in both cases are nearly identical." The court in Wells held that "for transfer orders issued before September 1, 2015, concerning conduct occurring after January 1, 1996, a non-jurisdictional challenge to a transfer order must be made in an appeal from the order deferring adjudication of guilt" and cited to both Eyhorn, 378 S.W.3d at 510, and Felix v. State, No. 09-14-00363-CR, 2016 WL 1468931, at *1 (Tex. App.—Beaumont Apr. 13, 2016, pet. ref'd) (). Wells, 2017 WL 3405317 at *2. The State's reliance on these cases is misplaced as the courts' holdings are based on a faulty premise. As pointed out in Bell, the court of appeals in Eyhorn noted the general, well-established rule in criminal cases that non-jurisdictional complaints that arise before an order of deferred adjudication must be raised on appeal of that order or are waived, and then stated, "We see no logical reason why art. 44.47(b) should be read as jettisoning that rule simply because the accused was initially subject to being tried as a juvenile." Bell, 2018 WL 3150851, at *3. Like the court in Bell, we too must disagree with the reasoning in Eyhorn and the cases that follow it. The statutory text of article 44.47 provides a defendant theright to challenge a transfer on appeal of a conviction "or" an order of deferred adjudication. The Legislature could have limited the ability to appeal in conformance with this background principle but it did not do so. Id.
In this case, appellant appealed the transfer order when appealing his convictions. Therefore, we have jurisdiction over the appeal.
The State also argues that even if we have jurisdiction to address appellant's complaint, appellant has failed to properly preserve the issue under article 4.18 of the Code of Criminal Procedure. We disagree.
Article 4.18 provides:
A claim that a district court or criminal district court does not have jurisdiction over a person because jurisdiction is exclusively in the juvenile court and that the juvenile court could not waive jurisdiction under Section 8.07(a), Penal Code, or did not waive jurisdiction under Section 8.07(b), Penal Code, must be made by written motion in bar of prosecution filed with the court in which criminal charges against the person are filed.
TEX. CODE CRIM. PROC. ANN. art. 4.18(a) (West Supp. 2017). The text of the statute indicates that article 4.18 applies in only two scenarios: (1) when a party asserts that the district court lacks jurisdiction because the juvenile court could not waive jurisdiction because the defendant was under 15 (and the case did not involve certain enumerated offenses), or (2) when the party asserts that the district court lacks jurisdiction because the juvenile court did not waive jurisdiction and the person is under 17. TEX. PENAL CODE ANN. § 8.07(a), (b) (West Supp. 2017);4 see also Bell, 2018 WL 3150851, at *4. Moreover, by its own terms, article 4.18 does not apply "to a claim of a defect or error in a discretionary transfer proceeding in juvenile court." TEX. CODE CRIM. PROC.ANN. art. 4.18(g). Act of June 19, 1999, 76th Leg., R.S., ch. 1477, § 28, 1999 Tex. Gen. Laws 5067, 5088 amended by Act of May 22, 2015, 84th Leg., R.S., ch. 74, § 1, 2015 Tex. Gen. Laws 1065; see also Bell, 2018 WL 3150851, at *3.
Appellant does not argue that he was under fifteen and thus could not be tried as an adult or that he was under seventeen and no juvenile court waived jurisdiction over him. Instead, appellant argues that the juvenile court waived jurisdiction but abused its discretion by doing so and transferring the case to district court without making adequate case-specific findings in the transfer order. The plain language of article 4.18 makes it inapplicable to these facts. See Bell, 2018 WL 3150851, at *4; see also Delacerda v. State, 425 S.W.3d 367, 379 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) ().
We conclude that appellant did not waive his contention that jurisdiction remained in the juvenile court under article 4.18 by failing to object to the transfer to the district court before he entered his guilty plea.
Under section 54.02 of the...
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