Turner v. State

• Decision Date: 10 July 1990
• Docket Number: No. 05-89-01043-CV,05-89-01043-CV
• Citation: 796 S.W.2d 492
• Parties: Reginald TURNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 492

796 S.W.2d 492

Reginald TURNER, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-01043-CV.

Court of Appeals of Texas,

Dallas.

July 10, 1990.

Rehearing Denied Sept. 28, 1990.

Larry D. Rayford, Dallas, for appellant.

Janice Warder, Kathleen A. Walsh, Dallas, for appellee.

Before ENOCH, C.J., and CARVER ¹ and ASHWORTH ², JJ.

OPINION

ENOCH, Chief Justice.

This suit was the subject of a prior appeal in this court. The prior appeal arose from a juvenile court's waiver of exclusive jurisdiction and transfer of appellant, Reginald Turner, to criminal district court for trial as an adult on one count of robbery and two counts of sexual assault, while retaining jurisdiction of two counts of arson. R---- T---- v. State, 764 S.W.2d 588, 589 (Tex.App.--Dallas 1989, no writ). The juvenile court retained jurisdiction as to the arson counts because it found no probable cause to believe that appellant committed the alleged acts of arson. This Court, however, vacated the transfer order and remanded the cause to the juvenile court for a new trial, holding that the juvenile court, by retaining jurisdiction as to some counts, continued to retain exclusive jurisdiction as to all counts. R---- T----, 764 S.W.2d at 590. On remand, the juvenile court granted the State's motion for nonsuit as to the arson counts and again signed a waiver of exclusive jurisdiction transferring appellant to criminal district court to stand trial as an adult for the aggravated robbery and aggravated sexual assault offenses. Appellant raises three points of error. ³ Finding no error, we affirm.

In his first point of error, appellant alleges that the trial court erred in, again, transferring him to criminal district court on the three offenses which were the subject of the prior discretionary transfer and which were returned to the trial court by this Court's previous order. Appellant argues that once a juvenile court retains jurisdiction as to any count alleged in the certification petition, the child's status is permanently fixed as to all offenses alleged in the petition, and thus the child is not subject to criminal prosecution as an adult for any offense alleged in the petition. Stanley v. State, 687 S.W.2d 413, 414 (Tex.App.--Houston [14th Dist.] 1985, writ dism'd w.o.j.).

We agree that this is a correct proposition of law, when a juvenile court has retained jurisdiction as to one or more offenses. See Richardson v. State, 770 S.W.2d 797, 799 (Tex.Crim.App.1989); Stanley, 687 S.W.2d at 414. In Richardson, the Court of Criminal Appeals held:

[W]hen a motion or petition to waive juvenile jurisdiction alleges multiple offenses, the juvenile court must either waive or retain jurisdiction as to all offenses alleged, at one time. Absent a complete waiver, the juvenile court retains jurisdiction over all offenses alleged in the petition, and the district court does not obtain jurisdiction over any alleged offense.

Richardson, 770 S.W.2d at 799 (emphasis added).

Also we point out that the Texas Family Code provides:

If the juvenile court retains jurisdiction, the child is not subject to criminal prosecution at any time for any offense alleged in the petition or for any offense within the knowledge of the juvenile court judge as evidenced by anything in the record or proceedings.

TEX.FAM.CODE ANN. § 54.02(g) (Vernon 1986) (emphasis added). However, the Texas Family Code also provides:

If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and shall transfer the child to the appropriate court for criminal proceedings.

TEX.FAM.CODE ANN. § 54.02(h) (Vernon Supp.1990).

In our case, on remand and upon the State's motion, the juvenile court nonsuited the arson counts over which it had originally retained jurisdiction. Thereafter, when the juvenile court transferred all remaining offenses to the criminal district court, it completely waived its jurisdiction because it did not retain jurisdiction of any part of the case. We note our previous holding, "Certification orders such as this one which attempt to retain jurisdiction over some counts while transferring others are not void orders; they are merely voidable, subject to challenge until the remaining offenses not transferred in the order are dismissed by the juvenile court." R--- T---, 764 S.W.2d at 590-91.

However, appellant further argues that once the juvenile court considered and denied the State's motion to waive jurisdiction as to the arson counts, it could not thereafter nonsuit the arson counts and subsequently relinquish its jurisdiction over the case. It is appellant's position that whenever a determination is made anywhere throughout the process that the juvenile should not be tried as an adult, the process stops, and the juvenile court may not thereafter waive its jurisdiction. We disagree.

We recognize that recertification is prohibited in situations where a criminal district court, after conducting an examining trial and finding no probable cause to indict, remands the case back to the juvenile court. Ex parte Solete, 603 S.W.2d 853, 856-57 (Tex.Crim.App.1980); LeBlanc v. Gist, 603 S.W.2d 841, 845 (Tex.Crim.App.1980); Jenkins v. State, 700 S.W.2d 759, 760 (Tex.App.--Houston [14th Dist.] 1985, no pet.). However, we have not found case law prohibiting a juvenile court from entering a new certification order following invalidation of the original certification order by a court of appeals.

To the contrary, case law supports the juvenile court's recertification in this case. See Reyes v. State, 630 S.W.2d 798, 799-800 (Tex.App.--Houston [1st Dist.] 1982), aff'd, 647 S.W.2d 255 (Tex.Crim.App.1983). In Reyes, the State filed a motion in the juvenile court, asking it to waive jurisdiction and transfer the appellant to district court for trial as an adult. After conducting a hearing on the State's motion, the juvenile court refused to waive jurisdiction on the basis that there was insufficient evidence upon which a grand jury would be expected to return an indictment. The juvenile court then granted the State's motion for rehearing after which it waived jurisdiction, certified the juvenile for prosecution as an adult, and ordered the case transferred to district court. Reyes, 630 S.W.2d at 798. The appellate court in Reyes affirmed, holding that, although the juvenile court had previously considered and denied the State's motion to waive jurisdiction, it could grant a rehearing, reconsider its decision, and subsequently relinquish jurisdiction. Reyes, 630 S.W.2d at 800. In Miller v. State, 640 S.W.2d 404, 406 (Tex.App.--San Antonio 1982), aff'd, 708 S.W.2d 436 (Tex.Crim.App.1984), the defendant was recertified after each one of the two reversals of the transfer order by the court of appeals. Although the Court of Criminal Appeals ultimately upheld the dismissal of the indictment on double jeopardy grounds, no statement was ever made by the court that recertification following a reversal was improper. ⁴

We conclude that a juvenile court which originally retains jurisdiction as to any count alleged in a certification petition is not precluded from subsequently nonsuiting the count and relinquishing its jurisdiction over the case. Therefore, we hold that the juvenile court did not err in recertifying appellant. Point of error one is overruled.

In appellant's second point of error, he alleges that the trial court erred in proceeding with the transfer hearing when the guardian had not been given notice of the new hearing date. The record reflects that both the child and the parent were summoned by the trial court for the first certification hearing which occurred on April 22, 1988. Appellant is not claiming that this summons was insufficient to confer jurisdiction. Appellant alleges that when the second certification hearing occurred on July 13, 1989, almost fifteen months later, he and his guardian should have been served a new summons and a new copy of the State's petition.

The procedural safeguards incorporated into section 54.02 of the Texas Family Code are required to protect the rights of the child as a matter of federal constitutional law enunciated by the United States Supreme Court in Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1053-54, 16 L.Ed.2d 84 (1966). In re Honsaker, 539 S.W.2d 198, 201 (Tex.Civ.App.--Dallas 1976, writ ref'd n.r.e.). This section specifies that notice shall be given as provided by section 53.06 of the Texas Family Code, which requires the juvenile court to issue summons to the child; a child's parents, guardian, or custodian; a child's guardian ad litem; and any other person who appears to be a proper, necessary party. TEX.FAM.CODE ANN. §§ 53.06(a), 54.02(k) (Vernon 1986). A basic principle of the code is that every child who appears before the juvenile court must have the assistance of some friendly, competent adult who can supply the child with support and guidance. TEX.FAM.CODE ANN. § 51.11 (Vernon 1986). Usually, one of the child's parents, or in some situations a substitute parent, will fill this need. However, if a parent or guardian is unavailable, the Code requires the appointment of a guardian ad litem. In re Honsaker, 539 S.W.2d at 201.

A second summons is not required when the date of a certification hearing has been reset and the original summons is sufficient to confer jurisdiction. See Vasquez v. State, 663 S.W.2d 16, 20 (Tex.App.--Houston [1st Dist.] 1983), aff'd, 739 S.W.2d 37 (Tex.Crim.App.1987); In re R.M., 648 S.W.2d 406, 407 (Tex.App.--San Antonio 1983, no writ); In re B.Y., 585 S.W.2d 349, 351 (Tex.Civ.App.--El Paso 1979, no writ); B.R.D. v. State, 575 S.W.2d 126, 129-30 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). The jurisdiction of a juvenile court continues until there has been a final disposition of the question of waiver of jurisdiction. Reyes, 647 S.W.2d at...