Review of Recent Juvenile Cases (2011)

Review of Recent Juvenile Cases (2011)

by
The Honorable Pat Garza
Associate Judge
386th District Court
San Antonio, Texas

 

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Merely filing motion for new trial is not sufficient evidence of its presentment to trial court.[Adams v. State](11-4-5B)

On November 7, 2011, the Dallas Court of Appeals held that to satisfy the presentment requirement for his motion for new trial (and preserve error), the presentment must be apparent from the record and may be shown by such proof as the judge's signature or notation on the motion or proposed order, or an entry on the docket sheet showing the motion was brought to the trial court's attention or a hearing was set.

Hearing not required for trial court to order sex offender registration where respondent failed to successfully complete treatment. [Adams v. State](11-4-5A)

On November 7, 2011, the Dallas Court of Appeals held that, although originally deferring a decision to require registration, trial court was not mandated to hold a hearing before requiring respondent to register as a sex offender where respondent did not successfully complete sex offender treatment.

The mere fact that an interrogation begins as noncustodial does not prevent custody from arising later in the interrogation.[McCulley v. State](11-4-4)

On August 18, 2011, the Fort Worth Court of Appeals held that custody is established with the manifestation of probable cause, combined with other circumstances, which would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest.

An employee of the El Paso Juvenile Probation Department is not an "employee" of El Paso County under the TTCA.[El Paso County v. Solorzano](11-4-3)

On September 21, 2011, the El Paso Court of Appeals held that, in a suit against the county for conduct by an El Paso Juvenile Probation employee, the trial court lacked subject-matter jurisdiction because the El Paso Juvenile Probation Department is a separate governmental entity apart from the County, and the County's immunity from suit was not waived under the TTCA.

The doctrine of sovereign immunity precludes obligations to be imposed on DFPS in delinquent conduct proceeding.[In the Matter of R.L.](11-4-2)

On September 14, 2011, the San Antonio Court of Appeals held that the Texas Department of Family and Protective Services ("DFPS"), as a delinquent juvenile's custodian, has sovereign immunity against a trial court’s assessing court costs, fees, and restitution.

The writ of habeas corpus may not be used to raise matters that should have been raised on direct appeal.[Ex parte A.M.](11-4-1)

On August 17, 2011, the San Antonio Court of Appeals held that respondent’s claims of prosecutorial misconduct, erroneous rulings by the trial court, that his forty-year determinate sentence amounts to cruel and unusual punishment, and ineffective assistance of counsel claim could have been, but were not, raised and resolved on direct appeal, as a result, they may not be raised through a subsequent petition for habeas corpus relief.

Fourteen year old child had authority to consent to officer’s warrantless entry into residence at 2:00am. [Limon v. State](11-3-15)

On June 15, 2011 the Court of Criminal Appeals held that the Fourth Amendment does not prohibit a minor child from consenting to entry into a home when the record shows the officer's belief in the child's authority to consent is reasonable under the facts known to the officer.

In a determinates sentence transfer hearing, the trial court does not lose jurisdiction because the release and transfer hearing is held more than sixty days after the referral was received by the court.[In the Matter of B.T.](11-3-14)

On July 20, 2011, the Dallas Court of Appeals held that a trial court does not lose its jurisdiction in a determinate sentence transfer because the release or transfer hearing is held more than sixty days after the referral was received by the court as required by §54.11(h).

A discretionary transfer order may convey jurisdiction in the criminal district court even though it lacks a date and printed name of a judge.[DeLaCerda v. State](11-3-13)

On July 21, 2011, the Houston Court of Appeals (1 Dist.) held that as long as a discretionary transfer order unequivocally provides for the assumption of jurisdiction by the criminal district court, the lack of a date and printed name of the judge will not affect it.

A determinate sentence transfer hearing is not a criminal prosecution; as a result, Sixth Amendment guarantees do not apply.[In the Matter of V.M.S.](11-3-12)

On July 14, 2011, the Eastland Court of Appeals held that neither the lack of a formal charging instrument nor the introduction of documentary evidence constitutes fundamental error in a determinate sentence transfer hearing.

An order transferring a juvenile's determinate sentence probation to an adult district court is not an appealable order.[In the Matter of T.D.S.](11-3-11)

On June 23, 2011, the Houston Court of Appeals (14 Dist.) held that because an order transferring appellant's determinate sentence probation to adult district court is not one of the appealable orders enumerated in the statute, it is not an appealable order and the appellate court is without jurisdiction.

The requirement that a statement must be signed by the child with no law enforcement officer or prosecuting attorney present, does not apply to video statements.[In the Matter of M.A.C.](11-3-10)

On April 14, 2011, the Eastland Court of Appeals held that the procedure set out for recorded statements does not contain the law enforcement, prosecutor, and weapon prohibitions found in the statute for written statements.

By giving minor full access to and control over a lockbox and its contents before leaving the country, defendant gave up any standing to challenge its search and seizure.[Castleberry v. State](11-3-9)

On April 28, 2011, the Houston Court of Appeals held that even though he never gave anyone authority, permission, or consent to open or view the contents of the lockbox, defendant gave up standing to challenge search and seizure when he left lockbox and key with minor.

Confrontation rights are implicated only when an out-of-court statement is made by an absent witness.[In the Matter of J.A.G.](11-3-8)

On June 16, 2011 the Waco Court of Appeals held that when the declarant of an out of court statement appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.

Juvenile misdemeanor offense admissible in adult punishment hearing.[Chappel v. State](11-3-7)

On June 20, 2011, the Dallas Court of Appeals held that where a violation of a penal law is a misdemeanor punishable by confinement in jail, such evidence of adjudication is admissible if the conduct upon which the adjudication is based occurred on or after January 1, 1996.

A child’s age is a factor in determining whether he is in official custody. [J.D.B. v. North Carolina](11-3-6).

On June 16, 2011, the United States Supreme Court held that the age of a child subjected to police questioning is relevant to the custody analysis of Miranda v. Arizona.

Failure to present the very complaint that is made on appeal waives or forfeits the issue.[Marsh v. State](11-3-5)

On June 10, 2011, the Texarkana Court of Appeals held that since the trial court was never presented with an argument that the defendant's constitutional right of confrontation was violated when the trial court excluded a witness’s juvenile record, it never had an opportunity to rule on that issue. As a result the issue was waived.

Juvenile court did not abuse its discretion by entering a registration order where the evidence was considered factually sufficient to support an implied finding that the interests of the public required registration.

On June 1, 2011, the El Paso Court of Appeals concluded that even though there was conflicting evidence and conflicting recommendations as to registration, the evidence was factually sufficient to support an implied finding that the interests of the public require registration.

Appellant's statements were not induced from either the medications she had received or from the effects of her withdrawal symptoms, and as a result voluntarily waived her rights. [Paolilla v. State](11-3-3)

On March 11, 2011, the Houston Court of Appeals (14 Dist) held that although appellant received potent dosages of each drug, no one testified that either the morphine or the methadone she ingested would have rendered her incapable of understanding her rights or overcome her free will in giving her statement.

Ineffective assistance of counsel found where counsel failed to inform applicant of the specific consequences of her guilty plea regarding immigration consequences. [Ex parte Yekaterina Tanklevskaya](11-3-2)

On May 26, 2011, the Houston Court of Appeals (1st Dist.) granted habeas relief, finding ineffective assistance of counsel, because counsel had a duty to inform applicant of not just the possible immigration consequences in general terms (as is contained in the plea paperwork), but specifically that her inadmissibility and subsequent removal was virtually certain and presumptively mandatory.

An order transferring a juvenile's probation to an adult district court is not an appealable order. [In the Matter of W.E.H.](11-3-1)

On May 16, 2011, the Fort Worth Court of Appeals held that the TFC § 56.01(c) specifically lists the orders from which a child may appeal in juvenile court, but an order transferring a child's determinate sentence probation to an appropriate district court is not one of the orders enumerated in the statute.

Despite the testimonial nature of witness’s prior statement, and the fact that she failed to remember anything about it, the Confrontation Clause was not implicated.[In the Matter of M.H.V.-P.](11-2-9)

On May 4, 2011, the El Paso Court of Appeals held that memory loss does not render a witness "absent" for Confrontation Clause purposes post-Crawford so long as the witness was present and testifying at the time the prior statement was admitted.

Trial court did not abuse its discretion by failing to hold a hearing on juvenile's motion for new trial based upon newly discovered evidence.[In the Matter of A.C.](11-2-8)

On April 7, 2011, the Eastland Court of Appeals held that juvenile’s motion for new trial did not establish that his failure to discover new evidence was not owing to a want of due diligence.

In Motion to Suppress, officer’s testimony that they could feel the vibrations the car was producing as a result of the loud music being played was sufficient to establish, for purposes of reasonable suspicion, a violation to justify stop.[In re A.S.](11-2-7)

On April 6, 2011, the San Antonio Court of Appeals held that an officer's expressed belief that a person was violating a statute or ordinance is sufficient to justify an investigatory stop. They are not required to prove an actual violation.

In order to avail oneself of the affirmative defense of duress, the accused must admit to having engaged in the proscribed conduct.[Ramirez v. State](11-2-6)

On March 24, 2011, the Amarillo Court of Appeals held that having failed to admit to the offense, Appellant was not harmed by any alleged error in the manner in which the defensive issue of duress was presented to the jury in the charge.

Punishment was reversed and remanded for using juvenile adjudications to enhance a sentence under the habitual offender statute.[Vaughns v. State](11-2-5)

On March 17, 2011, the San Antonio Court of Appeals reversed and remanded the punishment for a habitual offender, enhanced by two juvenile felony adjudications, because the Texas Legislature did not intend for juvenile adjudications to be final felony convictions in order to enhance a sentence for a habitual offender.

Appellant was not required to make an objection or request to have an 8.07 instruction included in the jury charges.[Taylor v. State](11-2-4)

The absence of an 8.07(b) instruction (instructions which limit the jury's consideration to events after Appellant's seventeenth birthday), combined with the evidence of Appellant's conduct as a juvenile and the instruction that the jurors did receive, ultimately resulted in inaccurate charge. However, the error did not result in egregious harm.

Retroactive sex offender’s de-registration order did not affect supervision requirements for a juvenile who was already on probation for violating sex offender’s registration requirements.[Cornell v. State](11-2-3)

On March 10, 2011, the Fort Worth Court of Appeals held that appellant could not challenge his original placement on community supervision for violating sex offender registration requirements, after that community supervision had been revoked, with a later juvenile court order attempting to excuse appellant from registering retroactively.

Criminal District Court’s review of Juvenile Court’s transfer order upheld, but only with respect to quashing indictment.[State v. Rhinehart](11-2-2)

On March 9, 2011, the Court of Criminal Appeals held that a mislabeled motion to quash (should have been Motion to Set Aside Transfer Order) was properly granted, and that the State, could not raise for the first time on appeal claims that the criminal district court was without jurisdiction of juvenile court’s decision to transfer the case to criminal district court.

The record supports the trial court's finding that appellant's statements were not induced from either the medications she received or the effects of withdrawal and as a result voluntarily waived her rights. [Paolilla v. State](11-2-1)

On March 11, 2011, the Houston Court of Appeals (14 Dist) held that although appellant received potent dosages of each drug, no one testified that either morphine or methadone would render appellant incapable of understanding her rights or that the combined effect of the drugs had overcome appellant's free will in giving her statement.

Appellant's plea of true to the enhancement paragraph is alone sufficient to show that he had a prior felony conviction.[Menson v. State](11-1-8)

On February 16, 2011, the Amarillo Court of Appeals concluded that an appellant's plea of true precludes his complaint about the insufficiency of the evidence to establish his enhancement paragraph.

Requiring participation in sex offender treatment as a condition of probation does not compel participation in a polygraph examination.[In the Matter of A.M.](11-1-7)

On February 11, 2011, the Eastland Court of Appeals held that respondent could have invoked his privilege against self-incrimination, prior to participation in polygraph examination, even though examination was part of mandatory sex offender treatment.

The State may use circumstantial evidence to prove that the defendant is the same person named in the alleged prior convictions.[Benton v. State](11-1-5)

On February 4, 2011, the Texarkana Court of Appeals held that a rational jury could have found beyond a reasonable doubt that the defendant was indeed the same person identified in the prior convictions.

Trial court did not abuse its discretion in admitting details of the MySpace pages.[Tienda v. State](11-1-4)

On December 17, 2010, the Dallas Court of Appeals concluded, after having reviewed the details of the MySpace pages admitted into evidence in this case, the trial court did not abuse its discretion in admitting the evidence.

A trial judge may take judicial notice of evidence from a previous trial on the merits or a previous revocation hearing.[Morales v. State](11-1-3)

On December 20, 2010, the Dallas Court of Appeals held that a trial court can take judicial notice of its own orders, records, and judgments rendered in cases involving the same parties.

New trial mandated by rules of appellate procedure where electronically recorded proceedings are inaudible.[In the Matter of K.G.](11-1-2)

On December 9, 2010, the Waco Court of Appeals held that under rule of appellate procedure 34.6(f), when a significant portion of the electronically recorded proceedings are inaudible through no fault of the respondent, he is entitled to a new trial.

Appellant’s probation may be modified for violating the general condition of being unsuccessfully discharged from a placement facility.[In the Matter of S.D.M.S.](11-1-1)

On November 30, 2010, the Eastland Court of Appeals held that the evidence here showed that respondent was discharged from his placement prior to the completion of the program; therefore, he violated the term and condition of his probation which required him to complete the program