By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Transferred juvenile may be convicted of a
different theory of assault than the theory used in the juvenile court (00-3-12)
On June 22, 2000, the El Paso Court of Appeals held that a transferred
juvenile may in criminal court be charged with and convicted of aggravated
assault with a deadly weapon under a transfer order that certified assault on a
peace officer for the same conduct.
00-3-12. Lopez v. State, UNPUBLISHED, No. 08-99-00023-CR, 2000 WL 799067, 2000
Tex.App.Lexis ___ (Tex.App.-El Paso 6/22/00)[Texas Juvenile Law 152 (4th Edition
1996)].
Facts: This is an appeal from the revocation of community supervision and
adjudication of guilt. We affirm.
In April 1994, the Juvenile Court of Midland County waived jurisdiction and
certified Appellant, Pablo Gabriel Lopez, to stand trial as an adult for the
offense of aggravated assault on a peace officer. In June 1995, Appellant was
indicted for the offense of aggravated assault. Appellant pleaded guilty to the
offense of aggravated assault, received deferred adjudication, and was placed on
10 years' community supervision.
In August 1998, while driving to Wal-Mart, Appellant ran a red light and struck
an another vehicle. One person was killed in the accident and two others were
seriously injured. Thereafter, in September 1998, the State filed is First
Amended Motion to Revoke Community Supervision and to Proceed with an
Adjudication of Guilt, in which it alleged Appellant had violated the terms and
conditions of his probation by committing one count of manslaughter and two
counts of aggravated assault. In October 1998, Appellant filed a Motion to
Dismiss alleging the juvenile court certified him as an adult for a different
offense than the offense for which he was indicted by the grand jury. Appellant
argued that the Juvenile Court specifically transferred its jurisdiction on the
Texas Penal Code § 22.02(a)(2)(A) offense and never lost jurisdiction with
regards to the Texas Penal Code § 22.02(a)(4) offense. Appellant argued that
the court did not have jurisdiction to proceed. The trial court overruled the
motion.
In January 1999, the court held a hearing on the State's motion to revoke and
found the allegations to be true. The court revoked Appellant's community
supervision and adjudicated him guilty. Appellant was sentenced to 10 years'
confinement in the Institutional Division of the Texas Department of
Corrections. This appeal follows.
Held: Affirmed.
Opinion Text: Appellant presents three issues on appeal. First, Appellant
contends the trial court erred in refusing to grant his Motion to Dismiss
because the juvenile court certified him as an adult for a different offense
than the offense for which he was indicted by the grand jury. Second, Appellant
argues the trial court erred in adjudicating his guilt because the alleged
violation of probation did not constitute an offense against the penal laws of
the State of Texas. Third, Appellant contends the trial court erred in failing
to dismiss the First Amended Motion to Adjudicate Guilt and Revoke Community
Supervision because the use of manslaughter and aggravated assault in this case
is unconstitutional.
At the outset, we note that we do not have jurisdiction to address Appellant's
second and third issues, as both seek to review the trial court's adjudication
of guilt. The Texas Code of Criminal Procedure Article 42.12, sec. 5(b)
provides, in relevant part:
On violation of a condition of community supervision imposed under Subsection
(a) of this section the defendant may be arrested and detained as provided in
Section 21 of this article. The defendant is entitled to a hearing limited to
the determination by the court of whether it proceeds with an adjudication of
guilt on the original charge. No appeal may be taken from this determination.
Tex.Code Crim.Proc.Ann. art. 42.12, § 5(b)(Vernon Supp.2000). It is well
established that an appellant whose deferred adjudication probation has been
revoked and who has been adjudicated guilty of the original charge, may not
raise on appeal contentions of error in the adjudication of guilt process. See,
e.g., Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992) (upholding
court of appeals' dismissal under Article 42.12, sec. 5(b) of Olowosuko's points
of error attacking his probation conditions and the State's motion to revoke);
Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992)(agreeing with court of
appeals that even if Phynes' right to counsel had been violated, he could not
use direct appeal as the vehicle with which to seek redress); Wright v. State,
592 S.W.2d 604, 606 (Tex.Crim.App.1980)(holding that under Article 42.12, sec.
5(b), "no appeal may be taken from the hearing in which the trial court
determines to proceed with an adjudication of guilt on the original
charge"); Williams v. State, 592 S.W.2d 931, 932-33
(Tex.Crim.App.1979)("the trial court's decision to proceed with an
adjudication of guilt is one of absolute discretion and [is] not reviewable
..."); see also 43 G. Dix & R. Dawson, Texas Practice: Criminal
Practice and Procedure § 43.117 (1995 & Supp.2000).
We now address Appellant's first issue that the trial court erred in refusing to
grant his Motion to Dismiss because the juvenile court certified him as an adult
for a different offense than the offense for which he was indicted by the grand
jury. Appellant argues that under Section 54.02(g) of the Texas Family Code as
it existed in 1994, the juvenile court retained jurisdiction. Section 54.02(g)
provided:
If the juvenile court retains jurisdiction, the child is not subject to criminal
prosecution at any time for any offense alleged in the petition or for any
offense within the knowledge of the juvenile court judge as evidenced by
anything in the record of the proceedings.
Act of May 24, 1973, 63rd Leg., R.S., ch. 544, § 1, 1973 TEX.GEN .LAWS 1460,
1476-77, amended by Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 34, 1995
TEX.GEN.LAWS 2517, 2533. The State argues that the juvenile court waives
jurisdiction of conduct, not offenses, and transfers the juvenile for offenses
arising out of such conduct. We agree.
In Cornealius v. State, the appellant argued that the trial court erred by
holding it had jurisdiction over Count V in the indictment. 870 S.W.2d 169, 175
(Tex.App.--Houston [14th Dist.] 1994), aff'd, 900 S.W.2d 731
(Tex.Crim.App.1995). In its order, the juvenile court certified appellant to
stand trial as an adult, waived jurisdiction over the cause, and transferred the
same to the district court for a criminal trial. See Cornealius, 870 S.W.2d at
175. That part of the order reciting the criminal allegations against appellant
contained a typographical error. The name of one of the victims was listed twice
while the name of another victim was omitted. See id. at 176. When the juvenile
court became aware of the mistake, the judge issued a memorandum correcting the
order. See id. The appellant was indicted immediately thereafter. See id.
The appellant argued in his motion to quash, that the trial court had no
jurisdiction over any allegation regarding the deceased whose name was omitted,
because the order transferring jurisdiction in this cause did not in any way
transfer jurisdiction over such allegation. See Cornealius, 870 S.W.2d at 176,
citing Dixon v.. State, 639 S.W.2d 9, 10 (Tex.App.--Dallas 1982, no pet.), the
Court noted that when the juvenile court waives jurisdiction and transfers a
juvenile to the criminal district courts, the juvenile court is transferring the
underlying conduct of the offense or offenses. See Cornealius, 870 S.W.2d at
176. The Court stated that in the instant case, the juvenile court did not
retain jurisdiction over any offense because it's certification order purported
to transfer all offenses and conduct of appellant to the criminal courts. See
id. The Court went on to state that the conduct that formed the basis for the
capital murder indictment was the same conduct over which jurisdiction was
transferred. See id. The Court held that jurisdiction in the criminal district
court was not defeated by a mistake in misnaming a complainant, where the
conduct that constituted the alleged offense was the identical conduct addressed
by the juvenile court. See id., citing Dixon, 639 S.W.2d at 10.
In the case at bar, the conduct on which the transfer order was based is as
follows:
On or about the 5th day of February, 1994, in the County of Midland, State of
Texas PABLO GABRIEL LOPEZ violated a penal law of the State of Texas punishable
by imprisonment, in that on or about said date, in said County and State, PABLO
GABRIEL LOPEZ did then and there unlawfully, intentionally and knowingly
threaten with a deadly weapon, to wit: an automobile, Henry Minton who was a
peace officer then in the lawful discharge of an official duty and whom the said
PABLO GABRIEL LOPEZ knew to be a peace officer, contrary to Section
22.02(a)(2)(A), Texas Penal Code....
The indictment returned against Appellant alleged in relevant part:
PABLO GABRIEL LOPEZ, hereinafter styled Defendant, on or about the 5th day of
February A.D., 1994, and before the presentment of this indictment, in the
County and State aforesaid, did then and there intentionally and knowingly use a
deadly weapon, to wit: an automobile, and did then and there intentionally and
knowingly threaten Henry Minton with imminent bodily injury by the use of said
deadly weapon....
The underlying conduct on which the transfer order is based is the same conduct
as that alleged in the indictment. The conduct that formed the basis for the
third degree felony offense of aggravated assault in the indictment was the same
conduct over which jurisdiction was transferred. We do not believe that
jurisdiction in the district court was lacking because the transfer order
alleged conduct resulting in the first degree felony offense of aggravated
assault of a peace officer. We overrule Issue One.
Having overruled Issue One, and because Issues Two and Three are not reviewable
by direct appeal, we affirm the judgment of the trial court.