In re M.A.V.

• Decision Date: 24 July 2002
• Docket Number: No. 04-01-00533-CV.,04-01-00533-CV.
• Citation: 88 S.W.3d 327
• Parties: In the Matter of M.A.V.
• Court: Texas Court of Appeals

88 S.W.3d 327

In the Matter of M.A.V.

No. 04-01-00533-CV.

Court of Appeals of Texas, San Antonio.

July 24, 2002.

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Jose L. Arce, Juan Ramon Flores, Laredo, for Appellant.

Homero Ramirez, Webb County Atty., Enrique Pellegrin, Asst. County Atty., Laradeo, for Appellee.

Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice.

Opinion by: CATHERINE STONE, Justice.

This case concerns the State's fourth attempt to certify M.A.V. to stand trial as an adult for crimes he allegedly committed when he was sixteen.¹ M.A.V. is charged with seven counts of capital murder, three counts of murder, eleven counts of burglary, and one count of theft. In three issues, M.A.V. challenges the juvenile court's latest certification and transfer order, claiming: (1) transfer to criminal district court is improper because the juvenile court has already adjudicated him guilty of the alleged offenses; (2) there is legally and factually insufficient evidence to support several of the juvenile court's probable cause findings; and (3) the juvenile court failed to waive its jurisdiction over this matter. We affirm in part, and reverse and render in part.

A. Double Jeopardy

In his first issue, M.A.V. claims the juvenile court is precluded from transferring him to criminal district court because jeopardy has already attached regarding the alleged offenses. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). M.A.V. contends jeopardy has attached because the court's transfer order states: "the court finds ... [M.A.V.] did violate a penal law .... (the order then cites each penal provision M.A.V. purportedly violated)." We disagree.

In Breed v. Jones, the State of California filed a petition in juvenile court alleging Breed had committed robbery. Id. at 521, 95 S.Ct. 1779. An adjudicatory hearing was held, and the court determined Breed had committed the offense. Id. at 521-22, 95 S.Ct. 1779. Shortly thereafter, the court declared Breed "unfit for treatment as a juvenile" and transferred Breed to adult court. Id. at 524, 95 S.Ct. 1779. Breed was tried as an adult and, once again, found guilty of robbery. Id. at 525, 95 S.Ct. 1779. Breed filed a petition for a writ of habeas corpus in federal district court, alleging his prosecution in adult court subjected him to double jeopardy. Id. at 525-26, 95 S.Ct. 1779. The Supreme Court agreed with Breed, holding jeopardy attaches:

at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.

Id. at 529, 95 S.Ct. 1779. The Court determined jeopardy attaches at the point in a juvenile proceeding where the juvenile is "put to trial before the trier of facts." Id. at 531, 95 S.Ct. 1779. The court recognized its holding will require that a decision to transfer a juvenile be made prior to an adjudicatory hearing. Id. at 535-36, 95 S.Ct. 1779. However, the Court specifically noted:

nothing decided today forecloses States from requiring as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding.

Id. at 538 n. 18, 95 S.Ct. 1779.

Breed is distinguishable from the case at bar. Unlike Breed, we are not confronted with a situation where the child was adjudicated prior to his transfer. Texas courts have consistently held that a certification and transfer hearing is not an adjudicatory trial because the child's guilt or innocence is not the subject of inquiry. In re L.R.L.C., 693 S.W.2d 552, 553 (Tex. App.-San Antonio 1985, no writ). Rather, the subject of inquiry at such hearing is whether:

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 alleged or the background of the child the welfare of the community requires criminal proceedings.

See TEX. FAM.CODE ANN. § 54.02(a)(3) (Vernon 1996).

It is clear from the record that Judge Mireles knew the difference between transfer and adjudication, and conducted the proceeding as a transfer hearing. Throughout the proceeding, Judge Mireles repeatedly reminded M.A.V. "this is not your trial" and stressed that "this proceeding was not for determining guilt or innocence." Moreover, Judge Mireles's order specifically states:

(1) After having been duly appointed ... the Honorable Andy Mireles ... considered whether there is probable cause to believe ... [M.A.V.] committed the offenses listed below.

(2) No adjudication hearing has been conducted to this point concerning the offenses set forth above.

(3) A full investigation and hearing of the child, his circumstances and the circumstances of the offense were conducted by this Court and this Court finds that there is probable cause to believe M.A.V. committed the offenses as charged.

(4) And further, there is probable cause to believe that [M.A.V.] ... engaged in delinquent conduct and that further proceedings in the case in the Adult Court are in the best interest of [M.A.V.] and the general public.

(5) No adjudication concerning the alleged offenses has been made and no adjudication hearing concerning the offenses has been conducted.

(6) This Court determines that there is probable cause to believe [M.A.V.] ... committed the offenses alleged.

Because Judge Mireles recognized that the only issue to be decided at this hearing was whether he should transfer M.A.V. to criminal district court, we hold M.A.V.'s double jeopardy rights were not violated. M.A.V.'s first issue is therefore overruled.

B. Erroneous Probable Cause Findings

In his second issue, M.A.V. claims there is legally and factually insufficient evidence to support several of the juvenile court's probable cause findings. Specifically, M.A.V. contends there is insufficient evidence to support the court's findings regarding: (1) burglary by entering a habitation and attempting to commit and committing a theft of Daniel Duenez, Jr.; (2) burglary by entering a habitation and attempting to commit and committing a theft of Ruben Martinez, Jr.; (3) burglary by entering a habitation and attempting to commit and committing a robbery of Daniel Duenez, Jr.; and (4) burglary by entering a habitation and attempting to commit and committing a robbery of Ruben Martinez, Jr. We agree.

When the legal sufficiency of the evidence supporting a certification and transfer order is challenged, we view the evidence in the light most favorable to the court's findings and determine whether there is any evidence to support such findings. In re J.J., 916 S.W.2d 532, 535 (Tex.App.-Dallas 1995, no writ). By contrast, when the factual sufficiency of a certification and transfer order is challenged, we consider all of the evidence to determine if the court's finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.² C.M. v. State, 884 S.W.2d 562, 563 (Tex.App.-San Antonio 1994, no writ). Absent an abuse of discretion, we will not disturb a juvenile court's findings. Id.

Under section 54.02 of the Texas Family Code, the juvenile court must determine whether probable cause exists to believe the child committed the alleged offense before certifying the child as an adult. See TEX. FAM.CODE ANN. § 54.02(a)(3) (Vernon 1996). Probable cause is shown by facts and circumstances sufficient to warrant a prudent person to believe the child committed the alleged offense. In re A.A., 929 S.W.2d 649, 653 (Tex.App.-San Antonio 1996, no writ). "The probable cause standard of proof embraces a practical, common sense approach rather than the more technical standards applied in the burdens of proof of either beyond a reasonable doubt or a preponderance of the evidence." Id.

As alleged by the State, a person is criminally responsible for burglary when, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony or theft. TEX. PENAL CODE ANN. § 30.02(a)(3) (Vernon Supp.2002). A person commits "theft" when he unlawfully appropriates property with the intent to deprive the owner of it. TEX. PENAL CODE ANN. § 31.03(a) (Vernon 1994). A person commits "robbery" when 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. TEX. PENAL CODE ANN. § 29.02(a)(1), (2) (Vernon 1994). A person commits a "criminal attempt" if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. TEX. PENAL CODE ANN. § 15.01(a) (Vernon 1994).

Of the eleven counts of burglary with which M.A.V. was charged, three charges were based on the commission of murder, a felony; two charges were based on felony conduct directed toward James Smiley; and two charges were based on felony conduct of theft and robbery, but with no victim identified. M.A.V. does not present evidentiary challenges to any of these seven charges. The remaining four charges contested by M.A.V. charge that he entered a habitation without the effective consent of the owner and "did attempt to commit and committed" theft of Duenez (Paragraph IXc); theft of Martinez (Paragraph IXd); robbery of Duenez (Paragraph Xc); and robbery of Martinez (Paragraph Xd). See TEX. PENAL CODE ANN. § 30.02(a)(3) (Vernon Supp.2002) (burglary includes entering a building or habitation and committing or attempting to commit a felony, theft, or an assault). Since the State alleged the specific conduct of theft and robbery directed toward two specific individuals, it had the burden to...