By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
When primary offense occurred before 9/1/97,
prior juvenile adjudication before 1/1/96 may be used in criminal proceedings to
enhance punishment (99-3-35)
On August 12, 1999, the Austin Court of Appeals held that the 1997 amendment
restricting juvenile adjudications that can be used for criminal enhancement to
those offenses committed on or after 1/1/96 applied only to a primary offense
committed on or after 9/1/97. Accordingly, there is no remoteness prohibition
for a juvenile adjudication alleged as enhancement for an ofense committed
before 9/1/97.
99-3-35. Limon v. State, UNPUBLISHED, No. 03-98-00670-CR, 1999 WL 603452, 1999
Tex.App.Lexis ___ (Tex.App.—Austin 8/12/99)[Texas Juvenile Law (4th Edition
1996)].
Facts: After convicting appellant of two counts of aggravated sexual assault of
a child and one count of indecency with a child, the jury assessed punishment,
enhanced by a prior felony conviction, at confinement for 99 years for each of
the assault convictions and confinement for twenty years on the indecency count.
Appellant asserts that the trial court erred in failing to quash the enhancement
paragraph of the indictment because the use of the prior juvenile conviction for
enhancement purposes was not authorized by law. We will affirm.
The enhancement paragraph alleged that appellant had been convicted of the
felony offense of burglary in the juvenile court of Kerr County on June 17,
1986. Appellant relies on section 51.13(d) of the Family Code as amended by Act
of June 1, 1997, 75th Leg., R.S., ch. 1086, § 5, 1997 Tex. Gen. Laws 4179, 4183
(eff.Sept. 1, 1997). See Tex. Fam.Code Ann. § 51.13 (West Supp.1999). As
amended, section 51.13(d) provides that juvenile conduct occurring on or after
January 1, 1996, may constitute a felony for enhancement purposes:
(d) An adjudication under Section 54.03 that a child engaged in conduct that
occurred on or after January 1, 1996, and that constitutes a felony offense
resulting in commitment to the Texas Youth Commission under Section 54.04(d)(2),
(d)(3), or (m) or 54.05(f) is a final felony conviction only for the purposes of
Sections 12.42(a)-(c) and (e), Penal Code.
Id. Appellant points out that his juvenile adjudication in 1986 was a decade
prior to the January 1, 1996 date provided for in the 1997 amendment.
The offenses for which appellant was convicted in the instant cause occurred on
or about January 1, 1997. The State contends that the 1997 amendment to section
51.13(d) by the 75th Legislature was prospective, and that this cause is
governed by section 51.13(d) as it read on January 1, 1997. On that date,
section 51.13(d) provided:
(d) An adjudication under Section 54.03 that a child engaged in conduct that
constitutes a felony offense resulting in commitment to the Texas Youth
Commission under Section 54.04(d)(2), (d)(3), or (m) or 54.05(f) is a final
felony conviction only for the purposes of Sections 12.42(a)-(c) and (3), Penal
Code.
Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 13, 1995 Tex. Gen. Laws 2517,
2524.
Appellant recognizes that the law in effect at the time of the offense is
usually controlling. See Tex. Gov't Code Ann. § 311.031(a) (West 1998).
However, appellant contends that he is entitled to the benefit of the Code
Construction Act since he was not sentenced until after the 1997 amendment went
into effect. Specifically, appellant relies on Government Code section
311.031(b), that provides:
(b) If the penalty, forfeiture, or punishment for any offense is reduced by a
reenactment, revision, or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the statute as
amended.
Id. § 311.031(b).
The 1997 act, House Bill 1550, provides:
SECTION 53. (a) The change in law made by this Act applies only to conduct that
occurs on or after the effective date of this Act. Conduct violating a penal law
of the state occurs on or after the effective date of this Act if every element
of the violation occurs on or after that date.
(b) Conduct that occurs before the effective date of this Act is covered by the
law in effect at the time the conduct occurred, and the former law is continued
in effect for that purpose.
* * * * *
SECTION 55. (a) Except as provided by Subsection (b) of this section, this Act
takes effect September 1, 1997.
Act of June 1, 1997, 75th Leg., R.S., ch. 1086, §§ 53, 55, 1997 Tex. Gen. Laws
4179, 4199.
In Than v. State, 918 S.W.2d 106 (Tex.App.--Fort Worth 1996, no pet.), the
defendant urged that he was entitled to the benefit of the lesser punishment
provided by a statutory amendment enacted subsequent to the charged offense. The
following analysis by the Than court states the guidelines governing the
controlling statute:
If there is a conflict between a statute that has specific provisions and a
statute that has general provisions applicable to the same subject, the specific
will prevail, especially when it was enacted later than the general. Tex. Gov't
Code Ann. § 311.026(b) (Vernon 1988); Wilson v. State, 899 S.W.2d 36, 39 (Tex.App.--Amarillo
1995, pet. ref'd.). In this case, the trial court had to follow the instruction
of the saving clauses of Senate Bill 1067, which prevail because they are
specific and were enacted later than the directive in section 311.031(b) of the
Code Construction Act. Tex. Gov't Code Ann. § 311.031(b) (Vernon 1988).
Than, 918 S.W.2d at 108.
The offenses in the instant cause occurred on January 1, 1997. The 1997
amendment limiting the use of juvenile convictions occurring after January 1,
1996 did not become effective until September 1, 1997. Consequently, the law in
effect at the time of the instant offense, that did not place any limitation on
the date the juvenile conviction occurred, controls.
In addition, it appears that appellant waived any defect in the prior juvenile
conviction by procedural default. Article 1.14(b) of the Code of Criminal
Procedure provides:
(b) If the defendant does not object to a defect, error, or irregularity of form
or substance in an indictment or information before the date on which the trial
on the merits commences, he waives and forfeits the right to object to the
defect, error, or irregularity and he may not raise the objection on appeal or
in any other postconviction proceeding. Nothing in this article prohibits a
trial court from requiring that an objection to an indictment or information be
made at an earlier time in compliance with Article 28.01 of this code.
Tex.Code Crim. Proc. Ann. art. 1.14(b) (West Supp.1999). Appellant filed a
pretrial motion to quash the indictment based on the following: (1) appellant's
plea in the 1986 juvenile proceeding was involuntary; (2) the juvenile court
failed to admonish appellant as required by law; and (3) the effect of the 1995
amendment allowing the use of felony juvenile convictions for purposes of
enhancement could not be used for purposes of enhancement unless the juvenile
conviction occurred after the effective date of the 1995 amendment. It was not
until the jury had returned a verdict of guilty that appellant urged that the
1997 amendment precluded the use of juvenile convictions that occurred prior to
January 1, 1996. Appellant's failure to object to any defects of substance or
form in the charging instrument prior to trial waived the error. See Ex parte
Patterson, 969 S.W.2d 16, 20 (Tex.Crim.App.1998). Appellant's point of error is
overruled.