Light v. State
| Decision Date | 15 April 1999 |
| Citation | 993 S.W.2d 740 |
| Parties | (Tex.App.-Austin 1999) William Travis Light, Appellant v. The State of Texas, Appellee NO. 03-98-00043-CR |
| Court | Texas Court of Appeals |
Page 740
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT NO. 97-674-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING.
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Before Justices Jones, Patterson and Onion*
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Before John F. Onion, Jr., Justice (retired).
Appellant William Travis Light was certified by the juvenile court to stand trial as an adult. After the return of the indictment, appellant entered a plea of guilty before the jury to the indictment containing three counts of aggravated sexual assault of a child1 and one count of indecency with a child.2 In the unitary trial where punishment was the only issue,3 the jury assessed appellant's punishment at 10 years' imprisonment on each of the aggravated sexual assault of a child counts and 8 years' imprisonment on the indecency with a child count.
Points of Error
Appellant advances four points of error all related to the juvenile court's order waiving jurisdiction and transferring appellant to a district court to stand trial as an adult. In his first and fourth points of error, appellant claims that the juvenile court never obtained jurisdiction to enter the certification order, and hence, the district court did not have jurisdiction to try appellant in the absence of a valid waiver of jurisdiction by the juvenile court. These points of error are based on the fact that appellant was not personally served with a summons and a copy of the petition as required by the provisions of the Family Code and the case law of this state. We will sustain these contentions, reverse the convictions, and remand the cause. As a result, we will not reach the second and third points of error challenging the legal sufficiency of the evidence in the certification hearing to support (1) a finding of probable cause and (2) a finding that the welfare of the community required criminalproceedings.
Facts
The record reflects that appellant was born on August 22, 1980, and was sixteen years of age in June 1997 when the alleged offenses occurred. The petition requesting waiver of jurisdiction and transfer of appellant to criminal court was filed on July 21, 1997. The petition alleged that on June 18, 19, and 21, 1997, appellant committed the offenses of aggravated sexual assault of a child by causing the sexual organ of a child younger than 14 years to contact his mouth, and that on June 21, 1997, he committed the act of indecency with a child by touching the anus or genitals of a child younger than 17 years of age. The evidence showed that the victim was appellant's half-sister who was 10 years old at the time.
The record reflects that appellant was not served personally with a summons or a copy of the petition. The summons directed to appellant was served upon appellant's father by an investigator for the county attorney's office.
The certification hearing was conducted on August 8, 1997, in the 338th District Court, sitting as a juvenile court. Appellant appeared with his father and his attorney. At the commencement of the proceedings the juvenile court inquired of appellant if he had been "served with notice of this summons two entire days before today?" Appellant answered in the
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affirmative. The order waiving jurisdiction stated: "The Court finds that all those entitled to service of summons were properly served with summons in compliance with 53.07, Texas Family Code, and that this Court has jurisdiction to proceed." The record reflects only one attempted service of summons on appellant.
The record further reflects that appellant's natural parents were divorced. At the age of two he began to live with his maternal grandparents. Later, he began living with his natural father and the father's second wife, the mother of the victim. In 1995 appellant was placed on juvenile probation for one year as a result of a sexual act committed on the same complainant, his then eight-year-old half-sister. Appellant was placed in the home of his paternal grandparents. Appellant's father and his step-mother divorced. After appellant successfully completed his juvenile probation, and during the summer of 1997, appellant again had contact with his half-sister. This is when the offenses occurred. Appellant suffers from an attention deficit hyperactivity disorder and had been given Ritalin, a medication, for his disorder.
Dave Murray, a juvenile probation officer, recommended to the juvenile court at the hearing that the 16 year old appellant be left within the juvenile justice system. It was noted that appellant had no other criminal record save the offenses against a family member. The prosecutor stated to the court that he did not want appellant to go to prison, but felt that appellant needed adult probation. The juvenile court certified appellant to stand trial as an adult.
After indictment, appellant pleaded guilty before a jury to the felony offenses. He sought probation from the jury because the trial judge could not grant probation as a result of the nature of the offenses. See Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(1)(C), (E) (West Supp. 1999). The jury is under no such prohibition in considering probation. See Tex. Code Crim. Proc. Ann. art. 42.12, 4 (West Supp. 1999). The jury during its deliberations asked questions about treatment and who "mandated" any condition of probation. The trial court declined to answer the questions. The jury then assessed the three 10-year prison terms and the one 8-year prison term.
Article 44.47 of the Texas Code of Criminal Procedure
Prior to its 1995 amendment,4 section 56.01(c)(1)(A) of the Family Code governed the right of appeal from an order of the juvenile court waiving jurisdiction and transferring the juvenile to district court to stand trial as an adult. See Act of May 23, 1991, 72d Leg., R.S., ch. 680, 1, 1991 Tex. Gen. Laws 2466. Any appeal of the transfer order was to be taken to a court of appeals with a possible review by the supreme court. See id. If there was no appeal or if the juvenile court order was affirmed in the civil appellate process, the case proceeded to the district court to be handled as a criminal case. If there was a criminal conviction, an appeal would be permitted as in other criminal cases. The failure to appeal a transfer order to a civil appellate court would not waive a jurisdictional defect in the transfer process. The issue could be raised for the first time on appeal from a criminal conviction after the transfer. See Johnson v. State, 594 S.W.2d 83, 86 (Tex. Crim. App. 1980), overruled on other grounds, Hardesty v. State, 659 S.W.2d 823, 825 (Tex. Crim. App. 1985); Johnson v. State, 551 S.W.2d 379, 380 (Tex. Crim. App. 1977).
Presently under article 44.47, a defendant may still appeal a juvenile court order waiving jurisdiction and transferring him to a district court for trial as an adult, but the appeal may be taken only in conjunction with an appeal of a conviction of the offense for which the defendant was transferred to a criminal court. See Tex. Code Crim. Proc. Ann. art. 44.47(a), (b) (West Supp. 1999) (Act of May 27, 1995, 74th
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Leg., R.S., ch. 262, 85...
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