By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Failure to file transfer order with
district clerk not fatal to district court’s jurisdiction (00-2-05)
On March 9, 2000, the Fort Worth Court of Appeals held that an inadvertent
failure to file the juvenile court’s transfer order with the district clerk
did not preclude the district court from having jurisdiction over the
transferred case. The order was found and filed after the appeal was filed and
abated.
00-2-05. Moss v. State, ___ S.W.3d ___, No. 2-97-500-CR, 2000 WL 257763, 2000
Tex.App.Lexis ___ (Tex.App.—Fort Worth 3/9/00)[Texas Juvenile Law 151 (4th
Edition 1996)].
Facts: Appellant Joyce Ann Moss entered open pleas of guilty to two charges of
aggravated robbery with a deadly weapon. The trial court sentenced Appellant to
twenty-five years' confinement in each case, to be served concurrently. In four
issues on appeal, Appellant argues that the trial court's judgments and
sentences are void for want of jurisdiction, that she did not knowingly and
voluntarily enter her pleas of guilty, that trial counsel's ineffective
assistance renders her pleas involuntary, and that the trial court's judgments
should be reformed to remove the deadly weapon findings. Finding no reversible
error, we affirm the trial court's judgments.
Appellant was charged in separate indictments with two counts of aggravated
robbery with a deadly weapon, alleged to have occurred on August 24, 1995 and on
August 26, 1995. Because Appellant was sixteen years old at the time of these
offenses, her cases were originally filed in the 323 rd District Court of
Tarrant County, which is a juvenile court (the juvenile court). The State filed
a petition in each case requesting that the juvenile court waive its exclusive
original jurisdiction and transfer Appellant to the appropriate criminal
district court. The juvenile court entered an order waiving its jurisdiction in
each case and transferring Appellant to the appropriate criminal district court
(the transfer order). Appellant was first transferred to Criminal District Court
No. 2 and then to the 371st District Court (the trial court), both of which are
criminal district courts. Because Appellant's complaints on appeal relate to the
transfer from juvenile court to criminal district court, the transfer between
the two criminal district courts is not relevant to the disposition of this
appeal. The transfer order, however, was not filed with the papers of the trial
court.
Appellant entered open pleas of guilty to both offenses. She testified that she,
John Glasco, and Chris Smith committed two robberies at ATM machines. Appellant,
however, denied having a gun during the robberies and testified that only Glasco
had a gun. The trial court found Appellant guilty of both offenses and entered
an affirmative finding that Appellant used or exhibited a deadly weapon during
the commission of the offenses or during the immediate flight therefrom. At the
punishment hearing, one victim identified Appellant, but not with 100 percent
certainty, as the get-away driver. The other victim testified that she had seen
only Glasco.
On May 4, 1998, Appellant filed her original appellate brief, arguing that the
judgments and sentences are void for want of jurisdiction, that she did not
knowingly and voluntarily enter her pleas of guilty, that her trial counsel's
ineffective assistance renders her pleas involuntary, and that the judgments
should be reformed to remove the deadly weapon findings. Specifically, with
regard to jurisdiction, Appellant contends that because the order transferring
her from juvenile court to criminal district court was not filed with the
district clerk's office and was not among the trial court's papers, the record
does not affirmatively show that the juvenile court waived its jurisdiction. On
May 21, 1998, a deputy district clerk filed in this court the first supplemental
clerk's record, containing the transfer order, the State's petition requesting
that the juvenile court waive its jurisdiction, the juvenile court's docket
sheet, and a letter from the assistant district attorney on appeal. This letter
states that the clerk of the juvenile court had located copies of the transfer
order, the State's petition, and the docket sheet and requests that the deputy
district clerk prepare, certify, and file in this court a supplemental clerk's
record of the located items.
The State then filed a motion to abate the appeal. Appellant filed a motion to
strike the first supplemental clerk's record and, alternatively, a motion for
leave to file an amended brief. This court granted the State's motion to abate
the appeal, ordered the cause abated, and remanded the case to the trial court.
This court ordered the trial court to conduct a hearing with the attorneys of
record present in order to: (1) determine if the certified copy of the transfer
order is an accurate copy of the missing transfer order; (2) determine if any
omissions in the transfer order can be reconstructed; and (3) make appropriate
findings and recommendations.
The trial court conducted an abatement hearing on July 9, 10, and 14, 1998. At
the beginning of the hearing, Appellant's attorney conceded that the copy of the
transfer order contained in the first supplemental clerk's record is an accurate
copy. Scheresa Hudson (Hudson), the deputy district clerk assigned to the
juvenile court, testified that when the juvenile court signed and entered the
transfer order, she prepared three certified copies of the transfer order. She
sent two copies to the investigator in the district attorney's office and sent
the third copy via interoffice mail to the district clerk's office. She
testified that the copies sent to the district attorney's office were the copies
designated for filing and that, at the time the transfer order in this case was
entered, the investigator with the district attorney's office usually filed a
certified copy of the transfer order with the district clerk.
The felony intake clerk at the district clerk's office and the deputy district
clerks assigned to Criminal District Court No. 2 and the 371st District Court
each testified that she did not receive the transfer order for filing. The
parties stipulated that the district clerk's office did not receive the transfer
order for filing until May 1998 when Hudson filed a certified copy of the
transfer order with the district clerk's office for inclusion in a supplemental
clerk's record. After the abatement hearing, the trial court adopted and
incorporated into its order the State's proposed findings of fact and
conclusions of law. The trial court's findings of fact are summarized as
follows:
(1) The contents of the first supplemental clerk's record are accurate copies of
the missing items, including the transfer order.
(2) The deputy district clerks are responsible for the care, custody, and
control of documents tendered for filing and for orders signed by their courts.
(3) In September 1995, the District Clerk of Tarrant County did not have any
specific procedures to follow to ensure that orders from the juvenile court
judge got forwarded to the "downtown" criminal courts. Procedures now
exist where the intake clerk at the district clerk's office receives two
certified copies of transfer orders, one from the district attorney's office and
one from Hudson sent via interoffice mail. Prior to the institution of these
procedures, the intake clerk at the district clerk's office received transfer
orders sometimes from the district attorney's office, sometimes from Hudson,
sometimes from both, and "sometimes, as the Court finds happened here, from
neither."
(4) The district clerk's office did not receive for filing certified copies of
the transfer order.
(5) Hudson prepared a certified copy of the transfer order and placed it into
interoffice mail. The parties stipulated that this certified copy was never
filed or found. The trial court, therefore, finds and concludes that this
certified copy was lost.
(6) Hudson testified that she, or someone else in the district clerk's office at
the juvenile court, routinely prepares certified copies of transfer orders for
the district attorney's office for filing with the adult criminal district
court. The parties stipulated, and the trial court finds, that the district
attorney's office did not file a certified copy of the missing transfer order
until the first supplemental clerk's record was filed.
(7) The certified copies of the transfer order prepared for the district
attorney's office were lost until July 9, 1998, at which time they were found in
the State's trial file. The State brought these copies to the trial court on the
morning of July 10, 1998, and both parties agreed to the admission of these
copies. The tendered copies are the lost certified copies prepared for the
district attorney's office.
(8) Judge Scott Moore conducted a certification hearing with Appellant and her
counsel present. Judge Moore withheld ruling on the certification, continued the
hearing until September 14, 1995, and indicated that he would rule on that date.
(9) Judge Moore entered his finding on the juvenile court's docket sheet on
September 14, 1995. Judge Jean Hudson Boyd reviewed Judge Moore's docket
notation and brought Appellant, her attorney, and the assistant district
attorney into court on September 14, 1995 for the conclusion of the
certification hearing. Judge Boyd advised Appellant of the juvenile court's
ruling and her right to appeal. Neither Appellant nor her attorney objected to
the proceedings.
(10) The transfer order was signed and entered by Judge Boyd without objection
from Appellant.
(11) The reporter's record from the certification hearing, the transfer order,
and Judge Boyd's affidavit support the assistant district attorney's testimony
that Judge Boyd signed the transfer order.
(12) Appellant did not object to any of the proceedings in juvenile court and
waived her right to an examining trial, asserting that she had already been
certified and did not require a further examining trial.
The trial court also entered conclusions of law, summarized as follows:
(1) The transfer order vested the criminal district court with jurisdiction.
(2) The transfer order that the parties stipulated was a correct copy of the
missing transfer order meets all of the statutory requirements as they existed
at the relevant time for a juvenile court to waive jurisdiction and transfer
Appellant for prosecution in criminal court.
(3) Judge Boyd correctly advised Appellant of her right to appeal the transfer
order. Because the time for appealing non-jurisdictional defects has passed,
Appellant has waived her right to object to non-jurisdictional irregularities in
the certification process.
(4) The procedural irregularities, if any, in this case did not affect the
jurisdiction of the criminal courts.
(5) A document is "filed" when it is tendered to the clerk, or
otherwise put under the custody or control of the clerk. Because the evidence
shows that Hudson had and still has exclusive control of the original transfer
order, it is the district clerk's responsibility to forward copies of orders
affecting the jurisdiction of two district courts. To find otherwise would allow
a litigant veto power over the exercise of jurisdiction of a district court
without the knowledge or consent of the sister district court.
(6) The transfer order was filed on September 14, 1995, the date it was signed
and entered and the date the district clerk acknowledged possession of the
document by certifying copies. The filing was not properly completed until the
filing of the first supplemental clerk's record. The transfer order was tendered
for filing by the submission of the certified copy via interoffice mail on
September 14, 1995. The transfer order was lost. Because the filing was
completed before the case is to be submitted to the court of appeals, the trial
court should recognize the document as properly before the court.
(7) The family code does not require that the juvenile court file its order.
There are no statutory provisions placing the burden on any person to file a
transfer order. Ellis v. State [543 S.W.2d 135, 137 n. 2 (Tex.Crim.App.1976).]
strongly advises that the transfer order be filed and kept on file with the
court papers in the case, but it falls far short of requiring that the transfer
order be filed.
(8) The district attorney cannot defeat a district judge's transfer order by
failing to file the transfer order. To hold otherwise would violate the
separation of powers provision of the Texas Constitution.
The trial court filed with this court a reporter's record of the abatement
hearing and second and third supplemental clerk's records. Appellant then filed
a supplemental brief, raising nine additional issues on appeal, all of which
relate to Appellant's assertion that the trial court lacked jurisdiction.
In her first issue in her original brief, Appellant argues that the trial
court's judgments and sentences are void for want of jurisdiction. In her first
and second issues in her supplemental brief, Appellant contends that the trial
court erred in finding that the transfer order contained in the first
supplemental clerk's record was lost and in finding that there were no
procedures in place in 1995 to ensure that transfer orders were forwarded to the
district clerk's office. Appellant asserts that there is no evidence to support
these findings and that these findings are clearly erroneous. In issues three
through eight in her supplemental brief, Appellant argues that all of the trial
court's conclusions of law are incorrect as a matter of law and that the trial
court did not properly apply the law to the facts. In her ninth issue in her
supplemental brief, Appellant contends that the transfer order contained in the
first supplemental clerk's record is an ex parte document that we should not
consider.
As an appellate court, we should afford almost total deference to the trial
court's determination of the historical facts that the record supports,
especially when, as in this case, the trial court's fact findings are based on
an evaluation of credibility and demeanor. And we should afford the same amount
of deference to the trial court's rulings on mixed questions of law and fact, if
the resolution of those ultimate questions turns on an evaluation of credibility
and demeanor. We, however, may review de novo mixed questions of law and fact if
the resolution of the ultimate questions does not turn on an evaluation of
credibility and demeanor.
A question turns on an evaluation of credibility and demeanor when the testimony
of one or more witnesses, if believed, is always enough to add up to what is
needed to decide the substantive issue. In the case before us, the testimony of
the various witnesses is not enough to add up to what is needed to decide
whether the trial court had jurisdiction over Appellant. We therefore review de
novo the trial court's ruling on the ultimate question of whether it had
jurisdiction. In performing this review, however, we afford almost total
deference to the trial court's determination of the historical facts that the
record supports.
The penal code provides that a person may not be prosecuted for or convicted of
any offense committed before reaching seventeen years of age, unless the
juvenile court waives jurisdiction under section 54.02 of the family code and
certifies the individual for criminal prosecution. The version of section 54.02
in effect at the time of Appellant's transfer provided that the juvenile court
may waive its exclusive original jurisdiction and transfer a child to the
appropriate district court or criminal district court for criminal proceedings
if: (1) the child is alleged to have violated a penal law of the grade of
felony; (2) the child was fifteen years of age or older at the time the child is
alleged to have committed the offense and no adjudication hearing has been
conducted concerning that offense; and (3) after full investigation and hearing,
the juvenile court determines that there is probable cause to believe that the
child committed the offense alleged and that because of the seriousness of the
offense or the background of the child, the welfare of the community requires
criminal proceedings.
On appeal, Appellant does not contest the propriety of the juvenile court's
waiving its exclusive jurisdiction and transferring her to criminal district
court, the fact that the juvenile court signed and entered the transfer order,
or the accuracy of the copy of the transfer order contained in the first
supplemental clerk's record. Rather, she contends that the absence of the
transfer order in the trial court's file deprives the trial court of
jurisdiction.
Initially, we address Appellant's assertion that the copy of the transfer order
contained in the first supplemental clerk's record is not a "lost"
document, but rather is an ex parte document that this court should not
consider. Appellant argues that the district attorney's office did not lose the
two copies of the transfer order located in its trial file, but simply failed to
file them. Appellant contends that the transfer order can be deemed a lost
document only if the district clerk's office filed the transfer order and then
lost it: "If the criminal district clerk never had the Transfer Order, then
it is an ex-parte document, not a 'lost' document." We disagree.
The rules of appellate procedure provide that if a relevant item has been
omitted from the clerk's record, the trial court, the appellate court, or any
party may direct by letter the trial court clerk to prepare, certify, and file
in the appellate court a supplement containing the omitted item. The
supplemental clerk's record then becomes part of the appellate record. Rule
34.5(e) sets forth the proper procedure to be followed when a filing has been
lost or destroyed:
If a filing designated for inclusion in the clerk's record has been lost or
destroyed, the parties may, by written stipulation, deliver a copy of that item
to the trial court clerk for inclusion in the clerk's record or a supplement. If
the parties cannot agree, the trial court must--on any party's motion or at the
appellate court's request--determine what constitutes an accurate copy of the
missing item and order it to be included in the clerk's record or a supplement.
Because rule 34.5(e) does not define the term "lost," we construe the
word according to its common usage. Our review of the record indicates that
there was not a specific procedure for filing the transfer order. The felony
intake clerk at the district clerk's office testified that she received transfer
orders sometimes directly from the juvenile court, sometimes from the district
attorney's office, and sometimes not at all. Hudson testified that she prepared
three certified copies of the transfer order, sent two copies to the
investigator in the district attorney's office, and sent the third copy via
interoffice mail to the district clerk's office. Although the investigator in
the district attorney's office sometimes filed the transfer order, we have found
no authority placing on the district attorney's office the duty to file the
transfer order.
The record reflects that the two copies of the transfer order sent to the
district attorney's office were eventually located in the State's trial file on
July 9, 1998, the day the abatement hearing began. The copy of the transfer
order sent via interoffice mail to the district clerk's office was never
located. In accordance with rule 34.5(c)(1), on May 20, 1998, Sylvia Mandel, the
assistant district attorney on appeal, sent a letter to Nancy Gilliland, the
appellate clerk for the district clerk's office, stating that Hudson had located
copies of the juvenile court's docket, the State's petition requesting that the
juvenile court waive jurisdiction, and the transfer order. The letter indicated
that certified copies of these documents would be delivered to Gilliland that
day and requested that Gilliland prepare, certify, and file in this court a
supplement containing these missing items.
Because the parties could not agree on the accuracy of the copy of the transfer
order, in accordance with rule 34.5(e), the trial court held a hearing and
determined that the copy of the transfer order contained in the first
supplemental clerk's record is an accurate copy of the missing transfer order.
Appellant also stipulated that the copy in the first supplemental clerk's record
is accurate. After reviewing the entire record of the abatement hearing, we
conclude that the record supports the trial court's finding that the transfer
order was lost and its finding that there were no procedures in place in 1995 to
ensure that transfer orders were forwarded to the district clerk's office. We
therefore overrule Appellant's first and second issues in her supplemental
brief. We further conclude that the copy of the transfer order contained in the
first supplemental clerk's record has been made a part of the appellate record
under rules 34.5(c) and 34.5(e) and that it is proper for us to consider this
copy of the transfer order. We therefore overrule Appellant's ninth issue in her
supplemental brief.
We now address the merits of Appellant's argument that the trial court lacked
jurisdiction because the transfer order was not filed with the district clerk's
office and was not among the trial court's papers. In support of her argument,
Appellant analogizes her case to Whytus v. State, in which the Dallas Court of
Appeals reversed the trial court's judgment because the record did not
demonstrate that the juvenile court had waived jurisdiction. We, however,
conclude that Whytus is distinguishable from the case now before us. In Whytus,
the transcript did not contain the transfer order, nor did the statement of
facts indicate that the trial court had the transfer order before it. Because
the transfer order was not part of the appellate record, the court of appeals
had to rely solely on the State's representations in its brief that the transfer
order complied with section 54.02. Conversely, in this case, we have a copy of
the transfer order as part of the appellate record. We do not have to speculate
about the contents of the transfer order, nor do we have to wonder whether the
copy before us is an accurate copy. The parties stipulated, and the trial court
found, that the copy of the transfer order contained in the first supplemental
clerk's record is accurate and complete.
We have not found any authority to support Appellant's argument that the failure
to file the transfer order with the trial court deprives the trial court of
jurisdiction. The version of section 54.02 in effect at the time of Appellant's
transfer stated, "If the juvenile court waives jurisdiction, it shall state
specifically in the order its reasons for waiver and certify its action,
including the written order and findings of the court, and shall transfer the
child to the appropriate court for criminal proceedings." There is no
language in this section indicating that the transfer order must be filed and
kept with the papers of the trial court.
The court of criminal appeals addressed this issue in Ellis v. State. In Ellis,
the juvenile court's transfer order was not filed with the trial court at the
time of trial, but the trial court later directed the clerk to prepare and file
a supplemental transcript containing the transfer order. The appellant argued
that (1) the trial court did not have jurisdiction over him because the record
did not contain an order indicating that the juvenile court had waived
jurisdiction and (2) the court of criminal appeals should not consider the
transfer order in the supplemental transcript because the record did not show
that the transfer order was filed in the trial court at the time of trial.
The Ellis court rejected the appellant's argument, noting,
Regardless of whether the order of the juvenile court was actually on file with
the papers in the case, the record reflects that the juvenile court had waived
jurisdiction over appellant and had transferred it to the district court in
which all subsequent criminal proceedings were had, and that the district court
had such order in its possession and acted on the waiver and transfer and
assumed jurisdiction when the examining trial was conducted before indictment
was returned. [FN19]
The court determined that the trial court "properly directed that the
supplemental transcript be filed in order that the true facts might be shown and
the record speak the truth." After considering the transfer order in the
supplemental transcript, the court held that the transfer order complied with
the provisions of section 54.02 and that the record reflected that the trial
court had jurisdiction.
The Ellis court did not hold that the transfer order must be filed, but rather
stated,
We strongly advise that to prevent jurisdictional problems from arising the
order of the juvenile court waiving jurisdiction and transferring same to the
proper court for criminal proceedings ... be filed with the clerk of the court
to which the jurisdiction is transferred prior to or at the time of the
examining trial ... and, in the event of an indictment, be kept with the court
papers in the case. [FN22]
The court of criminal appeals had the opportunity to hold that the filing of the
transfer order with the trial court is mandatory and jurisdictional, but it did
not do so. Likewise, in the more than twenty years since the Ellis decision, the
legislature has not amended section 54.02 to require the filing of the transfer
order. As an intermediate appellate court, we cannot create such a requirement.
Additionally, we note that Appellant signed a written waiver of her right to an
examining trial. This waiver states, "Said defendant having already been
certified to this Court by the Judge of the Juvenile Court of Tarrant County,
Texas, ... agrees that the Tarrant County Grand Jury may hear and consider this
case as though said defendant were 17 years of age on the date of the alleged
offenses." The trial court's order on Appellant's waiver of an examining
trial provides that Appellant, "having been heretofore certified as an
adult," executed in writing a waiver of her right to an examining trial,
that the cause shall be submitted to the grand jury for consideration for
indictment, and that "permanent jurisdiction is accepted by this
Court." These documents clearly indicate that the juvenile court waived its
jurisdiction over Appellant and that the trial court acted on the transfer order
and accepted jurisdiction before the indictments were returned.
We hold that the transfer order signed and entered by the juvenile court on
September 14, 1995 complies with the requirements of section 54.02. While it is
certainly advisable to file the transfer order with the trial court, we conclude
that the failure to do so does not deprive the trial court of jurisdiction. We
hold that the trial court properly determined that it had jurisdiction over
Appellant's cases and that the trial court's judgments and sentences are not
void for want of jurisdiction. We therefore overrule Appellant's first issue in
her original brief and issues three through eight in her supplemental brief.
FN19. Ellis, 543 S.W.2d at 135.
FN22. Id. at 137 n. 2.