S.D.W., Matter of
| Decision Date | 20 June 1991 |
| Docket Number | No. 01-89-00238-CV,01-89-00238-CV |
| Parties | In the Matter of S.D.W., a Juvenile. (1st Dist.) |
| Court | Texas Court of Appeals |
William Vance, Bryan, for appellant.
Bill R. Turner, Brazos Co. Dist. Atty., William O. Juvrud, Brazos Co. Asst. Dist. Atty., for appellee.
Before COHEN, PRICE and WILSON, JJ.
This is an appeal from a final judgment of the County Court at Law No. 1 of Brazos County, Texas, sitting as a juvenile court, based on a jury finding that appellant, S.D.W., engaged in delinquent conduct by committing the offenses of murder and aggravated robbery. The jury assessed a determinative sentence of nine years confinement on the murder charge. 1 TEX.FAM.CODE ANN. § 54.04(d)(3) (Vernon Supp.1991). For the robbery, 2 the judge sentenced appellant to an indeterminate period, not to exceed the time when appellant attains the age of 21. TEX.FAM.CODE ANN. § 54.04(d)(2) (Vernon Supp.1991). We affirm in part, and reverse and remand in part.
On October 1, 1988, Michael Granados Ramirez was found by some passersby lying in a Bryan street. He was badly beaten about the face and head. The police and an ambulance were summoned, but Ramirez, a recently "green-carded" Mexican national, refused medical attention, and generally refused to cooperate in the immediate investigation of the crime. He told one of the passersby, Betty Perez, that he had been attacked by five black males, one of whom was on a bicycle. After Ramirez declined to be taken to a hospital, Ms. Perez took him home, where he was found dead the next day of a subdural brain hemorrhage.
In summary, we reverse the nine year determinative sentence because of the State's failure to comply with TEX.FAM.CODE ANN. § 53.045(d) (Vernon Supp.1991), in that, the record does not contain any writing, whether titled "certificate of approval" or otherwise, indicating the State's prosecution of appellant under the second amended petition, or any petition, was affirmatively approved by a grand jury. We affirm imposition of the indeterminate sentence for the delinquent conduct finding based on the aggravated robbery allegation, and remand the delinquent conduct finding on the murder allegation for imposition of an indeterminate sentence.
In the first and second points of error, appellant asserts the determinate sentencing provisions of the family code are unconstitutional. Our resolution of the fifth point of error renders these points of error moot. They are accordingly not discussed, but see generally In the Matter of R.L.H., 771 S.W.2d 697, 699-700 (Tex.App.--Austin 1989, no writ), and In the Matter of S.C., 790 S.W.2d 766, 769 (Tex.App.--Austin 1990, writ denied).
Appellant's third and fourth points of error state that the trial court's judgment and the commitment order are void because there is a fatal variance between the judgment and commitment order, and the relief sought in the second amended petition. We generally understand appellant to be complaining about the lack of specificity as to dispositional alternatives in the State's pleading.
Because we reverse the determinative sentence on other grounds, it is unnecessary to discuss whether the State's pleading gives appellant notice, consistent with due process, of the State's intention to impose a determinate sentence of up to 30 years. 3 See generally R.L.H., 771 S.W.2d at 701-02.
At a detention hearing before the trial judge with all parties present conducted January 3, 1989, the prosecutor indicated a petition for felony murder would be filed by that Thursday. The State's original petition, which alleged murder, reflects a time-date stamp of January 5, 1989, indicating a filing on that date with the Brazos County Clerk's office. This date is confirmed by subsequent conversations on the record between the lawyers and the judge and is not in dispute.
A detention hearing was held on January 13, 1989, in which activity by the grand jury was discussed on the record between the attorneys.
MR. JUVRUD (for the State): The petition was presented to the Grand Jury of Brazos County, Texas, on the 12th of this month, yesterday. And the Grand Jury did approve and certify that petition to the district court for this case to proceed with determinate sentencing under 53.045 under the Family Code.
THE COURT: Are you aware of that?
MR. VANCE (for the appellant): Yes, sir, I am.
....
MRS. HOSKINS (Appellant's mother): Yes, sir.
In that same hearing, the State moved to waive count III of the petition, described by the prosecutor as "alleging a capital murder charge."
A pretrial hearing was held on January 26, 1989, in which the following statement was made by the prosecutor in the context of replying to a motion to bar prosecution:
MR. JUVRUD: The original detention was--occurred--based on violation of a lawful order of the court on a prior adjudication of this child, which was 157-J-88CC, as well as the new pending charges. The case was taken to the Grand Jury on the 12th of January, 1989. The first Grand Jury which was available to hear the Petition in which they certified and approved the Petition for our (sic) in determinate sentencing....
Then on February 3, 1989, which in one place was labeled a detention hearing and another, a final pretrial, the following exchange occurred:
....
In his fifth point of error, appellant complains the judgment and commitment order are void because the State did not present the second amended petition to the grand jury. The State argues it was not required to do so, as the original petition had been approved, and the two petitions were identical.
Section 53.045 of the family code provides that if the child is accused of one of six penal offenses, one of which is murder, the prosecuting attorney may refer the petition to the grand jury. TEX.FAM.CODE ANN. § 53.045(a) (Vernon Supp.1991). A determinate sentence cannot be imposed if the petition is not approved by a grand jury. TEX.FAM.CODE ANN. § 54.04(d)(2) (Vernon Supp.1991). If the grand jury approves a petition, "the fact of approval shall be certified to the juvenile court, and the certification shall be entered in the record of the case." TEX.FAM.CODE ANN. § 53.045(d) (Vernon Supp.1991).
Appellant specifically objected to the second amended petition because it had not been presented to the grand jury. Appellant's contention is that, as the State waived one of the murder allegations contained in the original petition, when the State reasserted the murder allegation in the amended petition, it was required to again bring the petition before the grand jury.
The State replies that each of the two murder charges in the second amended petition was specifically and separately charged. Because the jury returned a guilty verdict on the first of the two murder charges, the one that had never been dropped and had been approved (as reported by the prosecutor) by the grand jury, error, if any, in the State's failure to present the second amended petition to the grand jury was harmless. We disagree.
The requirements of section 53.045(a) and (d) and section 54.04(d)(2) and (d)(3) are clear--before a determinate sentence may be imposed, a grand jury must approve the petition made the basis of the judgment. We conclude the amended petition, which included an allegation that previously had been waived, should have been presented to the grand jury. Our holding is supported by the fact that, not only was the amended petition not presented to the grand...
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