R--- K--- M--- v. State

• Citation: 535 S.W.2d 676
• Decision Date: 25 February 1976
• Docket Number: No. 15526,15526
• Parties: R_ _ K_ _ M_ _, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 676

535 S.W.2d 676

R_ _ K_ _ M_ _, Appellant, v. The STATE of Texas, Appellee.

No. 15526.

Court of Civil Appeals of Texas,

San Antonio.

Feb. 25, 1976.

Rehearing Denied April 14, 1976.

John Compere, Groce, Locke & Hebdon, San Antonio, for appellant.

Ted Butler, Crim. Dist. Atty., San Antonio, Lawrence R. Linnartz, Gerald R. Zwernemann, Douglas C. Young, Asst. Dist. Attys., San Antonio, for appellee.

KLINGEMAN, Associate Justice.

This is an appeal from an order of the 131st District Court of Bexar County, Texas, sitting as the juvenile court, wherein the Court waived its jurisdiction over appellant as a juvenile, certified him as an adult for the purpose of adult criminal proceedings, and transferred him to the 187th Criminal District Court of Bexar County, Texas.

Appellant, R.K.M., was approximately 15 years, 11 months old at the time of the alleged offense, and at the time of the hearing waiving jurisdiction he was over 17 and under 18 years of age. He is presently over 18 years of age. He is charged with the commission of two felonies, robbery and murder with malice. Shortly after the occurrence of the alleged offenses, appellant was picked up and placed in juvenile detention and an attorney was appointed to represent him on October 2, 1973. On October 10, 1973, a motion to certify and transfer the cause was filed by appellee in the juvenile court of Bexar County, Texas. The motion alleged that appellant had committed two offenses against the penal laws of this State of the grade of a felony, and requested that the juvenile court waive its jurisdiction over appellant and certify him as an adult. A trial was held, and on August 6, 1974, the trial court entered its order waiving jurisdiction and certifying appellant as an adult for criminal proceedings. This Court, on March 12, 1975, reversed and remanded the cause to the trial court. See R.K.M. v. State, 520 S.W .2d 878 (Tex.Civ.App.--San Antonio 1975, no writ). Subsequently, on March 31, 1975, appellee filed a second motion to certify and transfer the cause. On June 26, 1975, the hearing was conducted, and on June 27, 1975, an order was entered again waiving jurisdiction and transferring appellant to the District Court for adult criminal proceedings.

Appellant asserts by his first point of error that the case should be reversed because the State confined him in the juvenile detention facility without having a detention hearing at the expiration of the meximum 10 day interval in violation of Section 54.01(h) of the Texas Family Code, ¹ thereby violating appellant's right to due process of law under the Texas Family Code and the 14th amendment to the U.S. Constitution.

It is undisputed that appellant was placed in the Bexar County Juvenile Detention Center on October 2, 1973, and remained there until November 3, 1973, at which time he was released. During such period of time, detention hearings were held on October 2, 1973, October 4, 1973, and October 26, 1973. It is clear that more than 10 days transpired between the second detention hearing and the third detention hearing.

Appellant contends that since the statutory provisions concerning the length of time of detention were not complied with, the entire proceedings should be considered as void and of no force and effect. He argues that this is true for the following reasons: (a) it was a violation of due process; (b) although juvenile statutes are to be liberally construed to enable the courts to protect the juvenile, they are to be strictly construed insofar as it may result in the restraint of a child's liberty, because then the proceeding is criminal in nature.

Appellant has cited no case, nor have we found any, construing this particular provision of the Family Code. However, in support of his due process argument and his contention that the statute should be strictly construed against the state and in favor of the appellant, appellant cites and relies on such cases as In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Felder v. State, 463 S.W.2d 272 (Tex.Civ.App.--Houston (14th Dist.) 1971, writ ref'd n.r.e.); Collins v. State, 429 S.W.2d 650 (Tex.Civ.App.--Houston (14th Dist.) 1968, no writ); Leach v. State, 428 S.W.2d 817 (Tex.Civ.App.--.houston (14th Dist.) 1968, no writ). The thrust of appellant's contention is that in a proceeding which seeks to deprive a defendant of his liberty, the defendant is guaranteed all of the privileges and immunities he would have if it were a criminal proceeding. We have no disagreement with this contention, nor with the holdings in the above cited cases.

It should be pointed out that appellant was given a detention hearing on the same day he was placed in the Bexar County Juvenile Detention Center, and that during the approximate period of one month that he was in the detention center, he was given three detention hearings. It must also be noted that during all of this period of time, and up to the present time, he was represented by able and competent counsel. There is nothing in the record to indicate that at any time during the period of time he was being detained that any complaint was made with regard to the detention hearings. The record does not reveal that any habeas corpus proceedings were ever instituted. Moreover, such point of error was not brought up at any stage of the proceedings in the first waiver and transfer hearing, nor was it brought to this Court in appellant's previous appeal. See R.K.M. v. State, supra. On this appeal, appellant had not alleged that he was prejudiced by the failure to accord him a detention hearing during the period in question, or that the absence of such a hearing rendered the subsequent proceedings against him unfair. While we do not condone the failure of the State to strictly comply with the 10 day provision of the Family Code, we cannot see that such failure, under the record before us, in any way prejudices appellant's defense, or in any way affected his rights on the herein appeal.

Under the record, we do not regard the absence of the one detention hearing as a violation of due process. There is nothing in the record to show that the failure to hold such a hearing affected any subsequent proceedings. Even if we regard this as a criminal proceeding, and recognize that appellant is entitled to all of the rights and privileges of an adult in this regard, it is to be noted that generally an illegal detention in a criminal case concerning an adult, does not void a subsequent conviction. Gurstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 855, 43 L.Ed.2d 54 (1975); Erdelyan v. State, 481 S.W.2d 843 (Tex.Crim.App.1972); Klechka v. State, 429 S.W.2d 900 (Tex.Crim.App.1968), Cert. denied, 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592 (1969).

Under the record before us, appellant is not entitled to have the order of the juvenile court overturned solely because the provision of Section 54.01(h) was not complied with in one instance. Appellant's first point of error is overruled.

By his second and third points of error, appellant contends that this case should be reversed because there is no evidence supporting the trial court's finding that juvenile jurisdiction should be waived over appellant, and that there is insufficient evidence supporting such finding.

Section 54.02(f), Texas Family Code, sets up six criteria or considerations which the juvenile court must examine to determine whether to waive its original jurisdiction. Such criteria are as follows:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) whether the alleged offense was committed in an aggressive and premeditated manner;

(3) whether there is evidence on which a grand jury may be expected to return an indictment;

(4) the sophistication and maturity of the child;

(5) the record and previous history of the child; and (6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

We have carefully read and considered all of the evidence, and such evidence will be hereinafter summarized in some detail. From an examination of such evidence, it cannot be said that there is no evidence to support the trial court's finding, and clearly there is some evidence to support such finding. Appellant's 'no evidence' point of error is overruled.

Nine witnesses testified. Such witnesses include two psychologists, who must be considered as expert witnesses; three witnesses who testified with regard to the details of the alleged offenses; and four lay witnesses.

The material portions of the testimony may be summarized as follows:

Dr. Betty Lou Schroeder is the Bexar County psychologist. She testified that she had performed psychological evaluations on over 500 juveniles, and over 8,000 adults. Before joining the County, she was in private practice. Dr. Schroeder testified that she had done a psychological evaluation of appellant shortly after the alleged offenses, and in connection therewith, had done a battery of tests. She stated that in her opinion appellant had an unsocialized aggressive reaction of adolescence, and that the tests showed he had at...