S.B.C., Matter of

Decision Date31 January 1991
Docket NumberNo. 12-88-00305-CV,12-88-00305-CV
Citation805 S.W.2d 1
PartiesIn the Matter of S.B.C.
CourtTexas Court of Appeals

Tab Beall, Tyler, for appellant.

Michael Sandlin, Tyler, for appellee.

RAMEY, Chief Justice.

The appellant S.B.C. 1 appeals from an adjudication and disposition of a juvenile court action alleging delinquent conduct, i.e., aggravated sexual assault. Pursuant to TEX.FAM.CODE ANN. § 54.04 (Vernon Supp.1991), 2 the jury assessed disposition at thirty (30) years. We affirm.

Appellant's first point of error alleges that the State's original petition was fundamentally defective because it failed to comply with the requisites of an indictment as set forth in TEX.CODE CRIM.PROC.ANN. art. 21.02 (Vernon 1989). This action is in juvenile court; therefore, it is the Texas Family Code which is controlling, not the Texas Code of Criminal Procedure. 3 Robinson v. State, 707 S.W.2d 47, 48-49 (Tex.Cr.App.1986); In the Matter of T.R.S. v. State, 663 S.W.2d 920, 921 (Tex.App.--Fort Worth 1984, no writ). A review of the petition filed by the State shows that it is in full compliance with TEX.FAM.CODE ANN. § 53.04 (Vernon 1986). The petition was styled "IN THE MATTER OF [S.B.C.]"; it was submitted on information and belief of the State; it identified by name, age and residence address the juvenile made subject of the petition; it stated the time, place, and manner of the acts alleged to have been committed and the penal law alleged to have been violated by the conduct of the juvenile; it identified the juvenile's parents by name and residence address. The petition is also in compliance with TEX.FAM.CODE ANN., § 53.045 (Vernon Supp.1991), in that it specifically identified the alleged delinquent conduct as being in violation of TEX.PENAL CODE ANN. § 22.021 (Vernon 1989) (Aggravated Sexual Assault). Appellant's first point of error is overruled.

In his second point of error, appellant contends that the State's determinate sentencing statutes 4 under which he was adjudicated violated his federal constitutional rights to equal protection and due process. He presents three arguments in support of this view. In two of these arguments appellant compares the rights of a juvenile under the determinate sentencing statutes with those of a juvenile under the preexisting adjudication and disposition sentencing statutes, 5 as well as the rights of a juvenile when certified as an adult and processed through the normal adult criminal justice system. This comparison is discussed below.

Subsequent to the filing of appellant's brief in the instant case, the Third Court of Appeals delivered an opinion on points remarkably similar to those presented here. In the Matter of R.L.H., 771 S.W.2d 697 (Tex.App.--Austin 1989, writ denied). In that case a jury determined that the juvenile engaged in delinquent conduct, i.e., attempted capital murder, and assessed disposition at confinement for 20 years. In his appeal, R.L.H. claimed, inter alia, that: (1) the determinate sentencing statutes were violative of the state and federal constitutional prohibition of incarceration in the penitentiary unless on an indictment of a grand jury, (2) the determinate sentencing statutes were violative of his state and federal constitutional rights to due process and equal protection, and (3) the disposition imposed was void, since it was not based upon any pleadings. The Austin Court held against appellant and affirmed the disposition. We consider the reasoning in R.L.H. to be directly supportive of our discussion in the instant case.

When the constitutionality of a statute has been challenged, alleging that a fundamental right is violated, the courts must review that statute under a standard of strict scrutiny. R.L.H., 771 S.W.2d at 701. Such a statute shall be upheld if it furthers a compelling state interest. Id. In enacting the determinate sentencing statutes, the legislature has furthered a compelling state interest by striking a balance between the state's interest in providing for the care, protection and development of its children, TEX.FAM.CODE ANN. § 51.01 (Vernon 1986), and its interest in providing protection and security for its general citizenry. Since both of these goals are vital, and the determinate sentencing statutes strike a balance between them, the statutes further a compelling state interest. Accordingly, the statutes in question are not violative of the Constitution's equal protection provisions. R.L.H., 771 S.W.2d at 701.

Due process rights are violated when an individual is treated in a selective or arbitrary manner by the State. 12 Tex.Jur.3d Constitutional Law § 147 (1981). At trial, the appellant specifically stated that he was not alleging any improper action by the prosecutor. He argued that there existed the potential for impropriety. Furthermore, in casting his due process arguments in the traditional equal protection terms (by comparing the treatment of various groups), appellant's due process claims are not only irrelevant to this appeal, but are also waived. In the Matter of J.T.H., 779 S.W.2d 954, 956-57 (Tex.App.--Austin 1989, no writ); R.L.H., 771 S.W.2d at 700.

In regard to his equal protection claims, appellant first argues that as the statutes are presently written, the prosecutor has "considerable and broad discretion" in determining whether to adjudicate a juvenile pursuant to the pre-existing determinate sentencing statutes 6 or to proceed pursuant to the newer determinate sentencing statutes. 7 TEX.FAM.CODE ANN. § 54.04 (Vernon Supp.1991). Appellant argues that due to the time variance between the two alternatives it would be necessary to institute guidelines in order to eliminate the "selective and potentially prejudicial application of the Statutes" by the prosecutor. As support, appellant cites Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and McKinney v. State, 761 S.W.2d 549 (Tex.App.--Corpus Christi 1988, no writ). Both of these cases concern the issue of the misapplication of prosecutorial discretion in the exclusion of minority venirepersons based on no racially neutral rationale. Appellant maintains that "just as the Court held in the Batson case that a prosecutor given the opportunity for discrimination might do so, in the instant case, a prosecutor with the discretion or opportunity to discriminate in the application of determinate sentencing statutes as opposed to one year adjudication and disposition statutes, would be in a position to potentially exercise improper discretion." However, it is important to note that neither Batson nor McKinney held that merely because the potential existed for a prosecutor to improperly exercise his discretion to exclude minority venirepersons through use of peremptory challenges, that such would render the practice of peremptory challenges unconstitutional. The United States Supreme Court recognized that the discretionary practice involved in peremptory challenges occupies "an important position in our trial procedures," Batson, 476 U.S. at 98, 106 S.Ct. at 1724, and is considered "a necessary part of trial by jury," Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), insofar as enabling each side to exclude those jurors it believed would be most partial toward the other side, thereby ensuring trial by an impartial jury. Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 809, 107 L.Ed.2d 905 (1990). In the case at bar, appellant specifically assured the court during trial arguments that he was not alleging that the District Attorney's Office had done anything improper, but rather that the "opportunity" exists for a prosecutor to deny constitutional rights to a juvenile under the determinate sentencing statute. Accordingly, he felt that the statute is unconstitutional.

For there to be reversible error, there must first have been error, which harmed the defendant and to which defendant objected. In his trial arguments, appellant specifically stated that he was not alleging any impropriety by the prosecutor. Appellant merely argued the potential of impropriety. Thus, his argument presents no error for review. To render an opinion on the potential of impropriety would be tantamount to rendering an advisory opinion. This Court has no such authority. See City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex.1985); R.L.H., 771 S.W.2d at 700.

Appellant also argues that "the realities of the Texas criminal system is such that an adult given a thirty year conviction could potentially be released prior to the time that Appellant might be released through the juvenile system" and further, that "another juvenile transferred to the criminal courts for prosecution as an adult might be entitled to earlier release as an adult than Appellant might receive as a juvenile." He maintains that such a potential for inconsistency denies him equal protection under the law.

The award or denial of "good time" credit is within the discretion of the director of the Texas Department of Criminal Justice Institutional Division (hereinafter "TDCJID"). Ex parte Williams, 589 S.W.2d 711, 712 (Tex.Cr.App.1979). The trial court has authority only to pronounce the sentence that is to be executed. It does not have the authority to interfere with the manner of its lawful execution. Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex.Cr.App.1982). The trial court properly exercised its authority in pronouncing disposition upon the verdict of the jury. Even had it desired to do so, the trial court could not have issued any instructions to the director of the TDCJID which would have the effect of "interfering" with the disposition's lawful execution.

Furthermore, the issue as to whether appellant might serve any time whatsoever in the state penal institution is not yet ripe. Before appellant may be transferred to the TDCJID, the juvenile court which originally committed the juvenile to the Texas Youth Commission must...

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