Melendez v. State

• Decision Date: 21 October 1999
• Citation: 4 S.W.3d 437
• Parties: <!--4 S.W.3d 437 (Tex.App.-Houston 1999) RICARDO ALCIDES MELENDEZ Appellant, v. THE STATE OF TEXAS, Appellee. NO. 01-97-00870-CR. In The Court of Appeals For The First District of Texas
• Court: Texas Court of Appeals

Page 437

4 S.W.3d 437 (Tex.App.-Houston[1st Dist.] 1999)

RICARDO ALCIDES MELENDEZ Appellant, v. THE STATE OF TEXAS, Appellee.

NO. 01-97-00870-CR.

In The Court of Appeals For The First District of Texas.

October 21, 1999.

On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 732,688 . [Copyrighted Material Omitted] Panel consists of Justices Mirabal, Hedges, and Smith.^*

O P I N I O N

Jackson B. Smith, Jr., Justice.

Appellant, Ricardo Alcides Melendez, was convicted of murder by a jury. The jury assessed punishment at 60 years confinement. Melendez, 16 years old at the time of the offense, had been certified by a juvenile court to stand trial as an adult. In point of error one, Melendez contends that the criminal district court did not have jurisdiction because the juvenile court's waiver of jurisdiction violated the Vienna Convention of Consular Relations which provides for notice to be given to a consular post when a foreign national is taken into custody, and for the foreign national to be informed that he has the right to speak with consular officials. Melendez claims to be a citizen of El Salvador but that no notice was given to the El Salvadoran consulate and he was not advised that he could speak with consular officials.

In his second point of error, Melendez complains that the district court erroneously sustained the State's objection to proper defense argument during the guilt phase. Melendez argues in his third point of error that the criminal district court also violated the Vienna Convention when, during the punishment phase, it denied Melendez' motion to suppress evidence of his prior juvenile adjudications.

FACTUAL BACKGROUND

On the night of July 23, 1996, nine Hispanic immigrants were living in a Houston apartment, sleeping in two bedrooms. Early in the evening, 13-year-old Alvarado, one of the immigrants, heard breaking glass and looked out the apartment window to see three men shining a flashlight into the cars parked in front of the apartment. Gomez, another resident of the apartment, also looked out and recognized two men who had stolen his car stereo the night before. The intruders drove off in a blue car when they realized they had been seen.

A short time later, Alvarado was awakened by the sound of the bedroom window being opened and he saw a man climbing through the window pointing a gun. At that point, Sergio Rochas and Jose "Henry" Alva woke up and the man in the window fired two shots at them, hitting Alva in the chest. Alva died at the scene from the gunshot. Police investigators found two spent cartridge cases from a 9 mm semi-automatic pistol in the parking lot outside the apartment window.

The night after Alva's murder, Houston police officers stopped a blue car in which Melendez was riding and discovered a 9 mm pistol under the floor mat near his right foot. When 16-year-old Melendez was arrested for carrying a weapon, it was discovered that he was wanted as an escapee from the Texas Youth Commission. A Houston Police Department firearms examiner later determined that the 9 mm pistol found in the car near Melendez' foot was the same pistol used to shoot and kill Alva.

From a police department photo spread, Gomez and Rochas tentatively identified Melendez as one of the persons they had seen breaking into Gomez' car outside the apartment. Alvarado positively identified Melendez' photograph as the person who opened the window and shot Henry Alva.

After the juvenile court waived jurisdiction, Melendez was transferred to criminal district court where he was indicted for murder. Shortly before trial, Melendez filed a "Motion to Suppress Evidence of Prior Adjudications of Delinquency Because of Violation of the Vienna Convention." That trial resulted in a hung jury, and a mistrial was declared. In a second trial, the jury found Melendez guilty of murder. During the punishment stage of the trial, the judge denied Melendez' "Motion to Suppress Evidence of Prior Adjudications of Delinquency Because of Violation of Vienna Convention." The State introduced the prior adjudications and questioned Melendez about them. The jury assessed punishment at 60 years in prison.

Point of Error One

In his first point of error, Melendez contends that the juvenile court's disregard of the notice provisions of the Vienna Convention on Consular Relations¹ resulted in an improper waiver of jurisdiction; therefore, the transfer to criminal district court was void, and that court lacked jurisdiction to try him for murder. Melendez claims to be a citizen of El Salvador and, as such, he was entitled to have the El Salvadoran consulate notified that he had been arrested and that he should have been informed that he could speak with the consulate officials from his country. Because the State did not provide notice to the El Salvadoran consulate, or to him, in violation of the notice provisions of the Vienna Convention, he asserts he was improperly transferred to the district court. Melendez frames the issue as whether the provisions of the Vienna Convention have the same importance as the technical notice provisions of the Texas Family Code which require the State to show that it has satisfied the statutory notice provisions for the purpose of considering a discretionary transfer to district court.

To complain of an error in the certification process, a person must appeal the transfer order itself to the court of appeals. Adams v. State, 827 S.W.2d 31, 33 (Tex. App.-Dallas 1992, no pet.); Lowe v. State, 676 S.W.2d 658, 660-61 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd). An appellant may raise only a jurisdictional error in the transfer process for the first time on appeal from a conviction after the transfer. Adams v. State, 827 S.W.2d at 33. See Watson v. State, 587 S.W.2d 161, 162 (Tex. Crim. App. 1979) (collateral attack on certification proceeding was proper because record showed summons was not served on Watson in the transfer proceeding - a jurisdictional requirement).

Section 54.02 of the Texas Family Code authorizes the juvenile court to waive its exclusive original jurisdiction under certain circumstances and to transfer a child to the appropriate district court or criminal district court for criminal proceedings. Tex. Fam. Code 54.02 (Vernon 1996). The petition and notice requirements of sections 53.04, 53.05, 53.06 and 53.07 of the Texas Family Code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court. In the Matter of D.W.M., 562 S.W.2d 851, 852-53 (Tex. 1978) (discussing requirements for waiver of jurisdiction).

Melendez correctly states that, absent satisfaction of the statutory notice provisions, a juvenile court is without jurisdiction to transfer a juvenile to district court. Allen v. State, 657 S.W.2d 815-16 (Tex. App. - Houston [1st Dist.] 1982, pet dism'd as improvidently granted, 659 S.W.2d 410 (Tex. Crim. App. 1983). He then urges this Court to extend the rationale of Allen and equate the mandatory notice provisions of the Texas Family Code with the notice provisions of the Vienna Convention on Consular Relations and hold that the juvenile court's transfer of jurisdiction was not proper.

We decline to hold that the notice provisions of the Vienna Convention create a new jurisdictional requirement in addition to, or supersede, the notice requirements of the Texas Family Code. From our review of the relevant treaty provisions and available authorities, we have concluded that a failure to comply with those provisions does not operate to deprive a Texas juvenile court of its authority to transfer a juvenile to district court.

First, it is not settled that an individual has standing to assert a violation of the convention. Breard v. Greene, 118 S.Ct. 1352, 1354-55 (1998) (reasoning that absent clear and express statement to the contrary, the procedural rules of the forum State govern implementation of the treaty in that State but that Vienna Convention arguably confers right to consular assistance following arrest); Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir. 1997) (reasoning that even if the Vienna Convention could be said to create individual rights (as opposed to setting out the rights and obligations of signatory nations), it certainly does not create constitutional rights nor does it convert violations of treaty provisions into constitutional rights); United States v. Esparza-Ponce, 7 F.Supp.2d 1084, 1095-96 (S.D.Cal. 1998) (discussing "murky" inquiry and muddled issue of whether the Vienna Convention confers individual rights and concluding that a violation of the notice provisions does not rise to the level of a Miranda violation such as to require suppression of evidence); Paraguay v. Allen, 949 F.Supp. 1269, 1274 (E.D.Va. 1996) (suggesting that the Convention does not confer private enforceable rights because it is not self-executing), aff'd, 134 F. 3d 622 (4th Cir. 1998);

Secondly, at least one state supreme court has held that any failure to satisfy the notice provisions of the Vienna Convention does not deprive a juvenile court of jurisdiction in a parental termination/custody proceeding. In re Stephanie M., 867 P. 2d 706 (Cal. 1994). The California Supreme Court reasoned that the treaty language, "giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State," acknowledges that the receiving State has jurisdiction to apply its own laws to foreign nationals within its border and that such aid is expressly subject to the practices and procedures of the receiving State. Id. at 712. The Court concluded that the Convention concedes the jurisdiction of a court of the receiving state to apply its laws to a foreign national and that the operation of the receiving state's laws are in no way dependent upon the notice prescribed by the Convention. Id. at 713. Therefore, failure to...