By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Criminal defendant failed to prove he was only
16 when offense was committed (99-3-16)
On July 8, 1999, the Houston First District Court of Appeals held that the
criminal defendant failed, on contradicted evidence, to prove that he was only
16 when the offense was committed in a case without prior juvenile transfer
proceedings.
99-3-16. Mendoza v. State, UNPUBLISHED, No. 01-97-01017-CR, 1999 WL 460045, 1999
Tex.App.Lexis ___ (Tex.App.--Houston [1st Dist.] 7/8/99)[Texas Juvenile Law (4th
Edition 1996)].
Facts: Juan Carlos Mendoza, the appellant, appeals from a motion to quash for
lack of jurisdiction.
On October 5, 1995, the appellant entered a guilty plea to robbery and was given
deferred adjudication for a period of five years. On May 8, 1996, the State
filed a motion to adjudicate guilt based on several alleged probation
violations. Following a substitution of counsel, the appellant filed a motion to
quash based on the court's lack of jurisdiction based on the appellant's age at
the time of the offense. The court held a pre-revocation hearing on the
appellant's motion and determined that the appellant was 17 years old at the
time of the offense.
After the revocation hearing on August 21, 1997, the court found the State's
motion to adjudicate to be true, adjudicated the deferred adjudication, and
found the appellant guilty of the felony offense of robbery and sentenced him to
20 years in prison.
Held: Affirmed.
Opinion Text: In two points of error, the appellant first contends the court
lacked jurisdiction when he entered his guilty plea and at the time of
sentencing because the appellant was under the age of 17 when he committed the
charged offense, a robbery; and the trial court denied him due process of law
through its comments and conduct during the motion hearing and at sentencing.
A. Appellate Jurisdiction
Before we address the merits of the appellant's point of error two, we address
this Court's jurisdiction to consider this appeal. We have jurisdiction to
consider the appellant's second point of error because this is an appeal from
the appellant's motion to quash for lack of jurisdiction, and not an appeal from
the order adjudicating guilt. See Tex.Code Crim. P. art. 42.12 § 5(b) (1999);
Ex parte Lewis, 934 S.W.2d 801, 803 (Tex.App.--Houston [1st Dist.] 1996, no
pet.) (the question of jurisdiction of the convicting court may be raised at any
time).
Our jurisdiction to consider the appellant's point of error one is limited to
the due process complaint from the ruling on the motion to quash for lack of
jurisdiction. We do not have jurisdiction to consider the appellant's due
process complaints appealed from the order adjudicating guilt.
B. Trial Court Jurisdiction
In point of error two, the appellant contends the trial court did not have
jurisdiction when he entered his guilty plea and at the time of sentencing
because the appellant was under the age of 17 when he committed the charged
offense.
In the trial court, the appellant's counsel filed a motion to quash the State's
motion to adjudicate based on lack of jurisdiction. The trial court held a
hearing on the appellant's motion before hearing the State's motion to
adjudicate.
At the hearing on the appellant's motion to dismiss, defense counsel presented
the testimony of three witnesses--Russell Harry, Jose Luis Ardon, and Laurie
Navarro.
. Harry, an employee of the Texas Department of Public Safety, testified the
prosecutor had provided him with a Texas identification card bearing the name
"Danilo Antonio Ardon" and a birth date of "8-26-78." Harry
also testified that he had contacted the communications deputy and confirmed
that the name and date of birth on the card corresponded to the identification
card number. The identification card was introduced into evidence without
objection from the State.
. Ardon, the appellant's older brother, testified the appellant's birth date was
August 26, 1978. He identified the appellant in the photo on the identification
card.
. Navarro, the appellant's girlfriend, identified the appellant in court as
"Danilo Antonio Ardon" and testified his birth date was
"8-26-78."
After the defense rested, the State presented the testimony of five
witnesses--Sally Pankhurst, Sheryl McFarlin, David Morgan, Donald Baker, and
Melinda Donaldson.
. Pankhurst, a court clerk, testified that several court documents indicated
that the appellant's name was Juan Carlos Mendoza and that his birth date was
April 5, 1978. These documents included the indictment, the plea of guilty, and
the judgment and sentence (for deferred adjudication). In addition, other
documents contain similar information, including the request for appointment of
counsel and the motion for probation.
. McFarlin, custodian of records for the Harris County Adult Probation
Department, testified that she saw "Juan Carlos Mendoza" sign and
place his right thumbprint on the conditions of probation on October 5, 1995.
. Morgan, supervisor of the identification division of the Harris County
Sheriff's Office, testified that the fingerprints on documents in the court's
file matched the appellant's fingerprints. [FN1]
FN1. Mr. Morgan had taken the appellant's fingerprints on August 21, 1997, the
date of the probation revocation hearing, and compared them with court documents
and jail cards containing the appellant's prints.
. Deputy Baker, who works in the central records division of the Harris County
Sheriff's Office, testified the two jail cards from two separate arrests
appeared to match the appellant. Deputy Baker testified that one jail card
contained the name "Juan Carlos Mendoza" and a birth date of April 5,
1978. Baker testified that another jail card contained the name "Juan
Carlos Navarro" and a birth date of August 26, 1978. Baker testified the
name "Danilo Antonio Ardon" was not on any of the jail cards.
. Donaldson, the appellant's probation officer, testified that the appellant's
probation record indicated a birth date of "4-5-78." She also
testified that the appellant had never told her that his date of birth was
anything other than April 5, 1978.
After hearing the testimony, the court made the following finding on the record
in denying the appellant's motion:
The Court finds as a matter of fact that the Defendant was, indeed, of legal age
to make the plea, that he was properly admonished, properly under oath, and that
the Defendant is, indeed, Juan Mendoza, not anyone else, and he was 17 at the
time of the commission of the offense.
In reviewing a trial court's ruling, we must first determine the applicable
standard of review. As a general rule, the appellate courts should afford almost
total deference to a trial court's determination of the historical facts the
record supports especially when the trial court's fact findings are based on an
evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App.1997).
The appellant's motion to quash hinged on the factual determination of whether
he was 17 at the time the offense was committed. Texas Penal Code section
8.07(b) addresses when age affects criminal responsibility and states:
Unless the juvenile court waives jurisdiction and certifies the individual for
criminal prosecution, a person may not be prosecuted for or convicted of any
offense committed before reaching 17 years of age....
Tex. Pen.Code § 8.07(b) (1994).
Similarly, the Family Code defines a "child" as a person who is either
ten years of age or older and under 17 years of age, or 17 years of age or older
and under 18 years of age who is alleged or found to have engaged in delinquent
conduct or conduct indicating a need for supervision as a result of acts
committed before becoming 17 years of age. Tex. Fam.Code § 51.02(2) (1996).
Code of Criminal Procedure article 4.18(a) requires that post-1995 challenges to
the transfer of jurisdiction from juvenile court or to waivers of juvenile court
jurisdiction be brought in a written motion in bar of prosecution filed with the
court in which criminal charges against the person are filed. Tex.Code Crim. P.
art. 4.18(a) (1999). In addition, Article 4.18(d) provides that a person may not
contest the jurisdiction of the court on the ground that the juvenile court has
exclusive jurisdiction if the required motion is not timely filed. Due to the
effective date of January 1, 1996, the appellant correctly states Article 4.18
is inapplicable to his case.
The present case is analogous to Nguyen v. State, 731 S.W.2d 105, 107 (Tex.App.--Houston
[1st Dist.] 1987, pet. ref'd). In that case, the trial court overruled a
defendant's motion for new trial despite the contention the defendant had
initially lied about his age and was a juvenile when he was convicted as an
adult. The age issue was not raised until after Nguyen received a 75-year prison
sentence, and the evidence, including a birth certificate showing he was an
adult, was conflicting. Nguyen, 731 S.W.2d at 107.
Like Nguyen, the issue of the appellant's "true age" was first raised
in a motion following unsuccessful deferred adjudication. Nguyen, 731 S.W.2d at
106. Also like Nguyen, the evidence of the appellant's age presented at the
hearing is contradictory. Id. Further, the impending prison sentence provided
ample motivation for the appellant to claim his true age was 16, but various
other documents indicated he was 17 and not 16 at the time of the offense. Id.
The appellant cites Bannister, Brooks, and Whytus in support of his contention.
However, reliance on these cases is misplaced because each is distinguishable.
In Bannister v. State, 552 S.W.2d 124, 125 (Tex.Crim.App.1977), the defendant
gave her age as 19 or 20 and told her court-appointed counsel she was 22. Later,
defense counsel offered a birth certificate reflecting her juvenile status. As a
result, the "true" age of the defendant was clear and beyond dispute.
Nguyen, 731 S.W.2d at 107. [FN4] Like the present case, the factual
determination of the appellant's age was the linchpin of the analysis. Unlike
the present case, the record is not clear in this case as to the appellant's
correct age.
FN4. The Bannister court stated "the fact that her age was not discovered
until the time proceedings were undertaken to revoke her probation did not
change the situation." Bannister, 552 S.W.2d at 130.
In Ex parte Brooks, 579 S.W.2d 250 (Tex.Crim.App.1979), the appellant brought a
post-conviction petition for writ of habeas corpus complaining his conviction
was void by virtue of the fact the district court was without jurisdiction to
render judgment and sentence on his plea of guilty. Unlike the present case,
Brooks did not involve the defendant's misrepresentation of his age and, in
fact, there was no question he was a juvenile. Id. at 251. Rather, the Brooks
court dismissed the case because the petitioner was indicted for the offense of
aggravated robbery without having first been afforded his right to an examining
trial as mandated by statute, nor without having affirmatively waived such
right. Id.
In Whytus v. State, 624 S.W.2d 290, 291 (Tex.App.--Dallas 1981, no pet.), the
court held because a waiver by the juvenile court is jurisdictional, the State
has the burden to show a valid order of waiver was rendered by the juvenile
judge. However, the burden arises only when it is first established the
defendant is a juvenile. Id. The Whytus court reversed the defendant's
conviction because the State did not show that the juvenile court waived
jurisdiction over the juvenile, thus giving the district court jurisdiction to
try him as an adult. Id. Unlike Whytus, the appellant here was not found to be a
juvenile, so the State had no burden to show transfer or waiver.
The trial court's finding that the appellant was 17 years of age at the time of
the offense followed the testimony of eight witnesses, three witnesses for the
defense and five witnesses for the State. The trial judge, as trier of fact, was
free to disbelieve and reject all or any part of the testimony of the witnesses.
Nguyen, 731 S.W.2d at 107. The trial court was the sole judge of the credibility
of the witnesses testifying and the evidence offered, and his ruling should not
be overturned without a clear abuse of discretion. Rivera v. State, 808 S.W.2d
80, 96 (Tex.Crim.App.1991); Ex parte Shutter, 868 S.W.2d 383, 387 (Tex.App.--Houston
[1st Dist.] 1993, pet. ref'd).
Because there is conflicting evidence on the issue, we conclude the trial court
did not abuse its discretion in overruling the appellant's motion to quash the
State's motion to adjudicate guilt. Accordingly, the trial court had
jurisdiction over the appellant.
We overrule the appellant's second point of error.