Review of Recent Juvenile Cases (2009)
The Honorable Pat Garza
386th District Court
San Antonio, Texas
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Trial court could have believed several
scenarios in finding state acted with due diligence in waiver to adult court for
over 18 transfer. [Rosales v. State](09-4-10)
On November 4, 2009, the San Antonio Court of Appeals held
that trial court did not abuse its discretion in concluding that the State
acted with due diligence in juvenile court's order to waive its jurisdiction
and transfer case to a criminal district court.
Criminal trial court is improper forum for
review of due diligence question on order waiving jurisdiction to adult court
after 18. [State v. Rhinehart](09-4-9)
On October 12, 2009, the Dallas Court of Appeals held that,
in a discretionary transfer proceeding of a juvenile after he turns 18, the
adult trial court is not the proper forum to review the sufficiency of the
evidence regarding the lack of due diligence by the state in proceeding
The trial court erred in conducting a
bench trial with no affirmative jury waiver as required by Section 51.09. [In
the Matter of S.G.](09-4-8)
On October 14, 2009, the Waco Court of Appeals held that a
trial court is under a duty to commence a trial by jury unless that right is
properly, affirmatively waived by the juvenile and his counsel.
Evidence was legally and factually
sufficient to support the finding that respondent committed the offense of
terroristic threat. [In the Matter of I.A.G.](09-4-7C)
On October 1, 2009, the Beaumont Court of Appeals held that
circumstances described in the record were sufficient to support the jury's
conclusion that respondent, who stood beside a vehicle with a tire iron
while others simultaneously threatened the homeowner, intended to place the
homeowner in fear of serious bodily injury.
Under the law of parties, presence at the
scene along with other actions made the evidence legally sufficient to prove the
offense of deadly conduct. [In the Matter of I.A.G.](09-4-7B)
On October 1, 2009, the Beaumont Court of Appeals concluded
that under the law of parties, respondent's presence and actions tend to
show his agreement to commit the offense of deadly conduct while engaged in
organized criminal activity as a member of a criminal street gang.
Evidence was legally sufficient to
establish that respondent engaged in organized criminal activity, as a member
of a criminal street gang. [In the Matter of I.A.G.](09-4-7A)
On October 1, 2009, the Beaumont Court of Appeals held that
respondent was a member of the Norte 14 street gang and members of the Norte
14 street gang were involved in criminal activity on a regular basis, thus
respondent was a member of a criminal street gang under the code.
In a juvenile case, absent a timely motion
for new trial, a notice of appeal must have been filed within thirty days of the
date the trial court's judgment was signed. [In the Matter of M.R.H.](09-4-6)
On October 2, 2009, the Dallas Court of Appeals held found
that the judgment about which appellant appears to complain was rendered in
2001, and was therefore untimely raised in 2009.
Trial court's error in admitting
appellant's illegally obtained statement was harmful error requiring reversal of
his conviction.[In the Matter of D.J.C.](09-4-5C)
On September 24, 2009, the Houston (1 Dist) Court of Appeals
held that they could not determine beyond a reasonable doubt that the
erroneous admission of appellant's statement, in which he confessed to
having sex with the complainant, did not contribute to his conviction.
Violations of Family Code requirements
regarding police interactions with juvenile, including non compliance with
juvenile processing office and parental presence requirements deemed juvenile
statement inadmissible.[In the Matter of D.J.C.](09-4-5B)
On September 24, 2009, the Houston (1 Dist.) Court of
Appeals held that appellant's electronically recorded custodial statement
was taken in violation of sections 52.02(a), 52.025(a), (b)(5), and (c), and
51.095(a)(1)(A) and (a)(5) of the Family Code, and thus violated appellant's
substantial rights, and as a result was inadmissible in his adjudication
hearing under section 54.03 of the Code.
In light of all the circumstances,
appellant was in custody at the time he made his statement and, therefore, the
provisions in the Family Code governing the admissibility of the custodial
statement of a juvenile apply.[In the Matter of D.J.C.](09-4-5A)
On September 24, 2009, the Houston (1 Dist.) Court of
Appeals held that by excluding appellant's grandmother from the interview
room, having the magistrate judge read appellant his rights, and then
returning the child to the interview room and locking it, was a sufficient
restraint of freedom of movement to be associated with formal arrest.
Mother's support for commitment to TYC
does not necessarily require that an ad litem be appointed.[In the Matter of
On September 9, 2009, the San Antonio Court of Appeals found
that even though mother supported trial courts decision to commit appellant
to TYC, nothing in the record suggesting that appellant's mom was not
capable or willing to make decisions in appellant's best interest.
Evidence was factually sufficient to
support deadly conduct adjudication.[In the Matter of E.S.](09-4-3)
On August 26, 2009, the Corpus Christi Court of Appeals
concluded that in viewing the evidence in a neutral light, the evidence is
not so weak that the conviction seems clearly wrong and manifestly unjust,
and the trial court's determination is not against the great weight and
preponderance of the evidence.
In a Determinate Sentence transfer
hearing, the juvenile court retains jurisdiction over a person, to determine
whether they should be transferred to TDCJ, without regard to the age of the
person.[In the Matter of T.L.S.](09-4-2)
On August 19, 2009, the Tyler Court of Appeals denied
Respondent's plea to the jurisdiction of the juvenile court, holding that
the amended Family Code statutes applied prospectively and did not affect
the jurisdiction of the juvenile court to consider whether to order
individuals in this cohort to be transferred to TDCJ.
A mistrial is required only in extreme
circumstances where the prejudice is incurable.[In the Matter of D.J.T.](09-4-1)
On August 19, 2009, the Tyler Court of Appeals could not
conclude that the impermissible questions and answers in this case caused
the kind of incurable prejudice that could not be adequately addressed by
the trial court's repeated instructions to the jury.
Thirteen year old student's search of bra
and underpants by school officials violated Fourth Amendment rights.[Safford v.
On June 25, 2009, the Supreme Court of the United States
held that because there were no reasons to suspect that the drugs in
question (ibuprofen and over-the-counter naproxen) presented a severe enough
danger or were concealed in her underwear, the search of a thirteen year old
did violate the Constitution, but the official who ordered the
unconstitutional search was entitled to qualified immunity from liability.
Commitment to TYC not considered cruel and
unusual punishment.[In the Matter of J.M.](09-3-6)
On June 16, 2009, the Texarkana Court of Appeals held that
juvenile failed to establish that his commitment to TYC was cruel and
An oral request for an instruction on the
mistake-of-fact defense and dictating a proposed instruction on the record does
not satisfy the requirements of Rule 278 Civil Rules of Procedure.[In the Matter
On June 10, 2009, the Waco Court of Appeals held that while
the defense of mistake-of-fact was raised by the evidence, counsel failed to
preserve for appellate review the trial court's refusal to submit an
instruction on the defense.
Evidence was factually insufficient to
show that juvenile used or exhibited a deadly weapon during the commission of
the offense.[In the Matter of L.A.](09-3-4)
On June 10, 2009, the Waco Court of Appeals concluded that
conflicting evidence was so strong as to render the jury's verdict clearly
wrong and manifestly unjust regarding whether juvenile used or exhibited a
deadly weapon during the commission of the assault.
No right to appointed counsel in habeas
corpus relief for juvenile offender who has been transferred to adult
facility.[In re Hall](09-3-3)
On November 12, 2009, the Supreme Court of Texas held that
the Juvenile Justice Code does not provide juvenile offender who has been
transferred to an adult facility the right to appointed counsel to pursue
habeas corpus relief challenging the legality of his imprisonment.
In ineffective assistance of counsel,
deficient performance must damage defense such that there was a reasonable
probability that the result of the trial would have been different.[In the
Matter of J.T.B.](09-3-2)
On May 27, 2009, the Texarkana Court of Appeals held that in
determining whether juvenile received ineffective assistance of counsel,
failure to satisfy either prong of the two-pronged Strickland test (1.
Counsel's performance fell below an objective standard of reasonableness; 2.
Such performance damages the defense such that there was a reasonable
probability that the result would have been different) renders the argument
The offense of consumption of alcohol by a
minor does not require a culpable mental state.[Florance v. State](09-3-1)
On May 8, 2009, the Dallas Court of Appeals held that
consumption of alcohol by a minor is a strict liability offense and the lack
of a culpable mental state does not render the offense unconstitutional.
In theft adjudication, evidence was
legally and factually insufficient to sustain the finding that the tire stolen
had a value of at least $50.[In the Matter of O.A.G.](09-2-9)
On March 12, 2009, the Austin Court of Appeals held that
testimony regarding the fair market value of a wheel on one vehicle does not
establish the fair market value of a wheel on a different vehicle even where
both vehicle are the same year, make and model.
Jury can not consider indeterminate
sentence in a determinate sentence case.[In the Matter of J.B.L.](09-2-8)
On March 5, 2009, the Eastland Court of Appeals held that
due process rights were not violated were grand jury certified petition upon
probable cause as apposed to jury deciding same issue beyond a reasonable
Motion for New Trial need not be presented
to preserve factual sufficiency error.[In the Matter of C.J.](09-2-7)
On February 5, 2009, the Houston Court of Appeals (1 Dist.),
held that a complaint about factual sufficiency need not be presented in a
motion for new trial in a juvenile adjudication of delinquency to preserve
it for appeal.
Admission of uncertified TYC packet
considered erroneous.[Rangel v. State](09-2-6B)
On March 4, 2009, the Waco Court of Appeals held that where
the custodian of the 'pen packet' is not the custodian of the original
judgment, and cannot attest to the correctness of the original documents,
and the records are not self-authenticating, the documents are not
Warrantless arrest was reasonable were
respondent only addressed his constitutional complaints.[Rangel v.
On March 4, 2009, the Waco Court of Appeals held that since
trial counsel did not specifically mention Chapter 14 in his
warrantless-arrest objection; he mentioned only state and federal
constitutional provisions and article 38.23, he failed to preserve his
Chapter 14 complaint for appeal.
Appellant was not denied the right to
meaningful review even though the record failed to show evidence the trial court
considered at the disposition hearing.[In the Matter of J.L.H.](09-2-5)
On January 28, 2009, the Waco Court of Appeals found that
they had a full record for review even where two exhibits listed as support
for the required trial court's findings were not actually attached as stated
in the order.
Evidence was sufficient to justify the
exercise of the trial court's discretion in modifying disposition.[In the Matter
On February 10, 2009, the Amarillo Court of Appeals held
that the trial court's decision to modify disposition was not arbitrary and
unreasonable and thus, did not amount to an abuse of discretion.
Court of Appeals may modify the trial
court's order modifying disposition to commit appellant to TYC to reflect the
trial court's oral pronouncement.[In the Matter of L.L., Jr.](09-2-3)
On February 10, 2009, the Amarillo Court of Appeals modified
the trial court's order to reflect the trial court's oral findings that the
child, in the child's home, cannot be provided the quality of care and level
of support and supervision that the child needs to meet the conditions of
Routine administrative searches at
alternative school were considered permissible under the Fourth Amendment.[In
the Matter of P.P.](09-2-2)
On February 11, 2009, the San Antonio Court of Appeals held
that a routine administrative search, at alternative school, which required
students to take off their shoes, socks, and belt, and submit to a pat down
was permissible under the Fourth Amendment.
Trial court did not abuse it's discretion
in reducing bail for juvenile certified to adult court to $200,000.[Ex Parte
On February 11, 2009, the San Antonio Court of Appeals held
that bail set at $200,000 for juvenile certified as adult for the offense of
murder did not violate constitutional and statutory prohibitions against
A complaint on appeal which does not
comport with the Motion to Suppress at trial, fails to preserve that argument
for review.[McNichols V. State](09-1-13)
On January 29, 2009, the Houston Court of Appeals (14 Dist.)
held that since appellant's written motion to suppress was not based on TFC
Ã‚Â§52.02(b) (parental notification), he failed to preserve that argument for
Search by school administrator of male
juvenile's waistband for marijuana considered reasonable.[In the Matter of
On December 30, 2008, the Austin Court of Appeals held that
lifting of shirt of male to expose waistband and placing thumbs in waistband
between pants and gym shorts, and moving hands outward in search for
marijuana was reasonable related in scope to circumstances at hand (no pun
intended) for administrative search for marijuana at school.
Juvenile Court continues to have
jurisdiction, of those children at TYC, who were over 19 years of age when
Senate Bill 103 went into effect, for transfer to TDCJ.[In the Matter of
On December 31, 2008, the Austin Court of Appeals concluded
that the versions of sections 61.079(a) and 61.084(g) of the human resources
code in effect at the time this respondent was adjudicated delinquent in
2005 govern TYC's referral of him to the juvenile court for possible
Evidence was sufficient to sustain trial
court's decision to grant State's Motion For Discretionary Transfer to Adult
Criminal Court in capital murder prosecution.[Sepulvado v. State](09-1-10)
On December 23, 2008, the Tyler Court of Appeals held that
if the evidence establishes enough of the factors in TFC Ã‚Â§54.02(f) to
convince the juvenile court that a transfer is in the best interest of the
child and community, they would not disturb that order.
Error in adjudication admonishment by
trial court considered waived where no objection made by respondent's
attorney.[In the Matter of C.D.H.](09-1-9)
On December 16, 2008, the Texarkana Court of Appeals held
that where trial court admonished the child that he could be committed to
TYC until his eighteenth birthday, failure to objected waived error.
Juvenile modifications of disposition
hearings based on violations of conditions of probation have reduced due process
protections.[In the Matter of J.A.S.](09-1-8)
On December 18, 2008, the Corpus Christi Court of Appeals
held that a petition to modify disposition that informed appellant that his
discharge from Gulf Coast was unsuccessful and provided the date in which
the violation occurred, gave adequate notice.
Defendant in a plea-bargained case may not
raise the voluntariness of his plea on appeal.[Turner v. State](09-1-7)
On December 18, 2008, the Eastland Court of Appeals found
that a plea-bargaining defendant may pursue the remedy of withdrawing his
plea, because it was not voluntary, by filing a motion for new trial in the
trial court or by filing a habeas corpus.
Appellate court has authority to allow
respondent to be released on personal bond pending appeal.[In the Matter of
On December 18, 2008, the Amarillo Court of Appeals
concluded that Respondent had failed to meet his burden of showing
sufficient reason why the appellate court should supersede the judgment of
the trial court and release him on personal bond pending appeal.
If trial objection does not comport with
objection on appeal, error has not been preserved.[Chaves v. State](09-1-5B)
On December 18, 2008, the Houston Court of Appeals (1 Dist),
held that inculpatory statements made during an earlier writ of habeas
corpus hearing were admissible at subsequent trial where objection at the
time of the statement did not correspond with the objection made on appeal.
Statements by co-actor, which is against
his self interest, may be used in probable cause determination to arrest
respondent.[Chaves v. State](09-1-5A)
On December 18, 2008, the Houston Court of Appeals (1st
Dist), conclude that co-actor's statement was a statement against his
self-interest and therefore inherently credible and thus could be used to
establish probable cause to take appellant into custody.
An order transferring a case to another
county for disposition is not appealable.[In the Matter of M.A.O.](09-1-4B)
On December 10, 2008, the San Antonio Court of Appeals
concluded that Section 51.07 of the Texas Family Code, does not authorize an
appeal from an order transferring a disposition to another county.
Do you guys have anything on you that
you are not suppose[d] to have?not considered custodial interrogation by police
officer.[In the Matter of M.A.O.](09-1-4A)
On December 10, 2008, the San Antonio Court of Appeals, held
that when the circumstances show that the individual acts upon the
invitation or request of the police and there are no threats, express or
implied, that he will be forcibly taken, then that person is not in custody
at that time.
While the offense of drag racing and
causing a person's death is a traffic offense, it is punishable by imprisonment
or confinement in jail, and is therefore delinquent conduct and the juvenile
court has jurisdiction over it.[In the Matter of A.M.M.](09-1-3)
On December 11, 2008, the Houston Court of Appeals (1 Dist),
held that the juvenile court has jurisdiction over the offense of drag
racing and causing a person's death because it is an offense punishable by
imprisonment or confinement which in turn makes it delinquent conduct.
In Criminal Mischief prosecution evidence
was sufficient to show damage to door, even where testimony was that door had to
be replaced.[In the Matter of M.S.M.](09-1-2)
On December 4, 2008, the Austin Court of Appeals held that,
viewed in the light most favorable to the result, the testimony at trial
supported the court's finding that it would cost $50 or more to repair the
damage to the door.
To be exempt from registration as a sex
offender, the juvenile bears the burden of persuasion by a preponderance of the
evidence that the two criteria necessary to exempt him have been met.[In the
Matter of J.D.D.](09-1-1)
On November 18, 2008, the Dallas Court of Appeals held that
a trial court may exempt a juvenile from registering as a sex offender if he
shows that (1) registration would not increase the protection of the public
and (2) any potential increase in protection of the public resulting from
registration is clearly outweighed by the anticipated substantial harm to
the juvenile or his family that would result from registration.