Rushing v. State, 10-00-084-CR

• Decision Date: 11 July 2001
• Docket Number: No. 10-00-084-CR,10-00-084-CR
• Citation: 50 S.W.3d 715
• Parties: (Tex.App.-Waco 2001) JONATHAN DANIEL RUSHING, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 715

50 S.W.3d 715 (Tex.App.-Waco 2001)

JONATHAN DANIEL RUSHING, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-00-084-CR

Court of Appeals of Texas, Waco

July 11, 2001

Opinion Overruling Rehearing Aug. 1, 2001.

From the 54th District Court McLennan County, Texas Trial Court # 1999-579-C

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

John M. Hurley, Waco, for appellant.

John W. Segrest, Crim. Dist. Atty., James Wiley, Asst. Crim. Dist., Waco, for appellant.

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

BILL VANCE, Justice

When he was sixteen, Jonathan Daniel Rushing was living in a foster home. The home was near the residence of seventy-three-year-old Houston Burgess. Burgess's body was located after a search; he had been missing five days. He was found stabbed to death with his throat cut; his car had been stolen.

Rushing and another juvenile were soon implicated, and they were arrested for the crime. Because Rushing was under age seventeen, the case was initially referred to the juvenile court. That court waived its jurisdiction and transferred the matter to district court for trial as an adult. Rushing was indicted for capital murder, and the case was tried to a jury. The State was statutorily prohibited from seeking the death penalty because of Rushing's age. Tex. Pen. Code Ann. § 8.07(c) (Vernon Supp. 2001). Rushing was convicted and sentenced automatically to life in prison.

On appeal Rushing brings the following complaints:

1. The criminal district court never acquired jurisdiction because the order from the juvenile court waiving jurisdiction and transferring the case was never filed among the papers of the criminal district court proceeding.¹

2. The evidence is legally and factually insufficient to support the conviction.

3. His due process right to a fair trial was violated because he had to wear a leg-brace restraint which the jury saw and was prejudiced by.

4. The State should not have been allowed to call a witness not disclosed before trial.

5. A gruesome crime-scene photograph should not have been admitted into evidence, because it unfairly prejudiced the jury against him.

6. Incriminating statements he made to a juvenile probation officer should have been suppressed.

7. The court should have submitted to the jury the elements of a lesser-included offense.

8. The judgment includes a deadly weapon finding, but that allegation was not alleged in the indictment or submitted to the jury.

We will affirm the judgment.

JURISDICTION OF THE TRIAL COURT

Rushing claims the judgment and sentence are void. He says the district court never acquired jurisdiction over his case because the order from the juvenile court waiving jurisdiction and transferring the case was not filed with the district court along with the indictment. However, before he can prevail on that issue, he must navigate around article 4.18 of the Code of Criminal Procedure, which requires that a jurisdictional challenge in a juvenile-transfer case be made before trial. Otherwise, appellate review is forfeited.

Article 4.18

Article 4.18 reads in part:

(a) 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.

(b) The motion must be filed and presented to the presiding judge of the court:

. . .

(2) if the defendant's guilt or punishment is tried or determined by a jury, before selection of the jury begins;

. . .

(d) A person may not contest the jurisdiction of the court on the ground that the juvenile court has exclusive jurisdiction if:

(1) the person does not file a motion within the time requirements of this article;

. . .

Tex. Code Crim. Proc. Ann. art. 4.18 (Vernon Supp. 2001). It is undisputed that Rushing did not object to jurisdiction before trial. He asserts, however, that article 4.18 is unconstitutional because it violates the Separation of Powers Clause of the Texas Constitution, in that the appellate courts have a right to review the jurisdiction of the trial court which the Legislature cannot take away. Tex. Const. art. II, § 1 (Vernon 1997).

Jurisdiction of the Courts of Appeals, and the Right to Appeal

The general grant of jurisdiction of the Texas courts of appeals is found in the Texas Constitution:

". . . Said Court[s] of Appeals shall have appellate jurisdiction . . . under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error. Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law."

Tex. Const. art. V, § 6; Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Section five makes it plain that our jurisdiction includes criminal cases. Tex. Const. art. V, § 5.²

As noted in Carter v. State, 656 S.W.2d 468, 468 (Tex. Crim. App. 1983):

There is a fundamental proposition pertaining to appellate functions of the Judicial Department: A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases "as a remedy to revise the whole case upon the law and facts, as exhibited in the record," The Republic v. Smith, Dallam, 407 (Tex.), quoted approvingly by the Supreme Court of Texas in Bishop v. The State, 43 Tex. 390, 400 (1875). The Bishop Court noticed "error apparent upon the record," id., at 397, and corrected it by reversing the judgment of the trial court, id., at 403-404.

Although the Texas Constitution confers jurisdiction on the courts of appeals to dispose of an appeal once filed, it is the Legislature which gives a party the right to appeal in the first instance. Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993); Tex. Const. art. V, §§ 5, 6. The Court of Criminal Appeals has observed that neither the United States Constitution nor the Texas Constitution confers a right on a defendant to a direct appeal of a criminal conviction. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Ex parte Shumake, 953 S.W.2d 842, 843-44 (Tex. App.--Austin 1997, no pet.). Thus, it upheld section 5(b) of article 42.12 of the Code of Criminal Procedure, which denies appeal from a trial court's decision to adjudicate guilt after a deferred adjudication, even in the face of a complaint that the defendant had been denied his constitutional right to counsel at the hearing on adjudication. Id.

We do not question the Legislature's authority to regulate an appellate court's subject matter jurisdiction. See Galitz v. State, 617 S.W.2d 949, 951 (Tex. Crim. App. 1981). The Court of Criminal Appeals has stated that our lawmakers may deny the right to appeal entirely or the right to appeal only some things or the right to appeal all things only under some circumstances. Marin, 851 S.W.2d at 278.

The Legislature has granted a criminal defendant a general right of appeal. Tex. Code Crim. Proc. Ann. arts. 44.02, 44.07 (Vernon Supp. 2001). However, it has limited that general right in some respects. For example, when there is a plea bargain agreement not exceeded by the trial court the defendant must obtain the trial court's permission to appeal unless the appellate issue was raised by written motion filed prior to trial. Id. art. 44.02. There is no appeal from a trial court's decision to adjudicate guilt after placing a defendant on deferred adjudication community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2001). Also, the Legislature has expressly limited the State's right of appeal to only specific matters. Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2001).

Complaints About Jurisdiction

Article 4.18 might be considered a preservation-requirement statute. Normally a complaint not preserved will not be reviewed on appeal. Tex. R. App. P. 33.1 (formerly Rule 52(a)). This procedural rule was promulgated by the Court of Criminal Appeals under the statutory authority contained in article 44.33(a) of the Code of Criminal Procedure allowing the court to "make rules of posttrial and appellate procedure not inconsistent with this Code." Tex. Code Crim. Proc. Ann. art. 44.33(a) (Vernon Supp. 2001). Additional statutory authority is contained in section 22.108 of the Government Code: "The court of criminal appeals is granted rulemaking power to promulgate rules of posttrial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant." Tex. Gov't Code Ann. § 22.108 (Vernon Supp. 2001).³

Jurisdictional requirements, however, fall into a special category. In Marin, the Court of Criminal Appeals stated that "jurisdiction" is a "nonwaivable, nonforfeitable systemic requirement" of a criminal proceeding. Marin, 851 S.W.2d at 278-79. For example, a minor "may not be tried as an adult, even with his permission, unless the juvenile court relinquishes jurisdiction of him." Id. (citing Ex parte Stanley, 703 S.W.2d 686 (Tex. Crim. App. 1986)). Because Rule 33.1 "may not abridge, enlarge, or modify the substantive rights of a litigant," the question of "jurisdiction" ordinarily need not be preserved at trial. Id. Lack of jurisdiction is fundamental error, and is appealable at any time, even if raised for the first time on appeal. Stine v. State, 908 S.W.2d 429, 431 (Tex. Crim. App. 1995). Lack of jurisdiction over a case renders the judgment void. See Ex parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001) (citing Hoang v. State, 872 S.W.2d 694, 698 (Tex. Crim. App.1993)).

In cases involving juveniles,...