By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Court of Appeals erroneously holds appeal
limited to jurisdictional matters (99-3-12).
On July 1, 1999, the Houston Fourteenth District Court of Appeals held that
the juvenile could not raise non-jurisdictional errors in discretionary transfer
proceedings in an appeal from his criminal conviction even though his case was
governed by the law that abolished the right to direct appeal from transfer
proceedings.
99-3-12. Irving v. State, UNPUBLISHED, No. 14-97-01312-CR, 1999 WL 442036, 1999
Tex.App.Lexis ___ (Tex.App.--Houston [14th Dist.] 7/1/99)[Texas Juvenile Law
(4th Ed. 1996)].
Facts: Bonestine Irving appeals his conviction for aggravated robbery. Based on
his plea of guilty without an agreed recommendation, the trial court assessed
his punishment at thirty years imprisonment. In two points of error, appellant
contends the order transferring him from juvenile court to stand trial as an
adult is void (1) due to inconsistencies in the pleadings, and (2) for failure
of the juvenile court to appoint a guardian ad litem.
Appellant was born November 12, 1979, and he and three other men robbed a
convenience store with guns on July 12, 1996, at which time appellant was 16
years of age. The State filed a petition and motion for the juvenile court to
waive jurisdiction because of the seriousness of the offense. The trial court
transferred appellant to district court to stand trial as an adult pursuant to
section 54.02, Texas Family Code. Appellant entered a plea of guilty to the
offense of aggravated robbery with a deadly weapon, and the trial court ordered
a pre-sentence investigation report (PSI). After receiving the PSI, the trial
court conducted a sentencing hearing and sentenced appellant to 30 years
imprisonment.
Held: Affirmed.
Opinion Text: On appeal, appellant contends in point one the transfer order is
void because the motion to transfer alleges appellant was 15 at the time of the
offense, and the transfer order states he was 14 years of age or older at the
time of the offense. In point two, appellant contends the transfer is void
because the trial court did not appoint a guardian ad litem as required by
section 51.11(a), Texas Family Code. The PSI report indicates that appellant
lived with his grandfather and grandmother, Tryber and R.C. Robinson. The
transfer order states that appellant and his grandmother, R.C. Robinson, were
served and were present at the transfer hearing. Nothing in the record indicates
that Mrs. Robinson was appointed guardian ad litem, or that she had ever been
appointed appellant's legal guardian. The State contends the failure to appoint
a guardian ad litem, or appoint Mrs. Robinson as guardian ad litem, is harmless
error under Flynn v. State, 707 S.W.2d 87,89 (Tex.Crim.App.1986) because she
rendered appellant "friendly support and guidance," and "even
without court order she served in essentially that capacity." Id.
To complain of an error in the certification process, a person must appeal the
transfer order itself to the court of appeals. Rodriguez v. State, 975 S.W.2d
667, 672 (Tex.App.-Texarkana 1998, pet. ref'd). An appellant may raise only a
jurisdictional error in the transfer process for the first time on appeal from a
conviction after the transfer. Id. Defects in the transfer process that are
nonjurisdictional in nature must have been raised in an appeal of the transfer
order, and are waived if raised for the first time on appeal from a conviction.
Id. In Adams v. State, 827 S.W.2d 31, 33 (Tex.App.- Dallas 1992, no pet.), the
court of appeals held:
A judgment is void only if the court rendering the judgment had no jurisdiction
over a party or his property, no jurisdiction over the subject matter, no
jurisdiction to enter the particular judgment, or no capacity to act as a court.
If the error asserted does not involve one of these specific issues, a judgment
is merely voidable-not void. A voidable judgment is not subject to collateral
attack in another court of equal jurisdiction (citations omitted).
Adams, 827 S.W.2d at 33.
Appellant does not contend that the juvenile court did not have (1) jurisdiction
over his person, (2) jurisdiction over the subject matter, (3) jurisdiction to
enter the particular judgment, or (4) capacity to act as a court. Id.
Appellant's complaint does not involve jurisdictional error in the juvenile
court. The complaint should have been brought by appeal from the transfer order.
Therefore, appellant's points of error one and two concerning the invalidity of
the transfer order from the juvenile court are waived. Appellant's points of
error one and two are overruled, and we affirm the judgment of the trial court.
[Editor's comment: The offense was committed on July 12, 1996, after the 1995
enactment of Vernon's Ann. C. Cr. P. art. 44.47 became effective. That article,
enacted when the right to a direct appeal from a certification order was
abolished by amendment to Family Code § 56.01, permits an appeal from a
criminal conviction to include any "claims ... that could have been raised
on direct appeal" prior to repeal of that right. In this case, the juvenile
did not have the right to a direct appeal that the Court of Appeals said he
should have taken, but did have the right to raise in an appeal from his
conviction any claim he could have made in a direct appeal.]