By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

2003 Case Summaries     2002 Case Summaries     2001 Case Summaries     2000 Case Summaries     1999 Case Summaries

Juvenile felony adjudication does not later make a criminal defendant ineligible to receive community supervision from the jury [Malpica v. State] (03-2-30).

On April 30, 2003, the Tyler Court of Appeals held that while an adjudication of felony delinquency is not a criminal conviction, the error of the jury in finding it to be a conviction was not harmful in view of the 99 year sentence assessed.

03-2-30. Malpica v. State, ___ S.W.3d ___, No. 12-01-00330-CR, 2003 WL 1989138, 2003 Tex.App.Lexis ___ (Tex.App.-Tyler 4/30/03) Texas Juvenile Law (5th Ed. 2000).

Facts: Appellant was convicted of robbery on his plea of guilty to the trial court. Appellant elected to have a jury to assess punishment. The jury assessed his punishment at confinement for ninety nine years and a ten thousand dollar fine.

Held: Affirmed.

Opinion Text: JURY'S VIOLATION OF OATH

In his fourth issue, Appellant asserts that the jury violated its oath under Article 35.22 of the Texas Code of Criminal Procedure. Appellant filed an application for probation alleging that he had never been convicted of a felony. The evidence shows that Appellant had never been convicted of a felony, although his commission of several felony offenses while a juvenile resulted in his adjudication as a delinquent. In its charge, the trial court instructed the jury that adjudication as a delinquent for the commission of a felony does not disqualify one for probation. Following the sentence and fine assessment, the jury was required to complete the following form: "We, the jury, find that the Defendant, Jose Malpica, ______ before been convicted of a felony in this or any other state. (Answer by stating "Has" or "Has Not")." "Has" was placed on the verdict form signed by the presiding juror. Appellant insists this is evidence that they could not have considered the full range of punishment as they were sworn to do.

The State argues there is no connection between the jurors' oaths at the beginning of the trial to consider the full range of punishment, and their error in deciding that Appellant had been convicted of a felony. We agree. Moreover, since the jury assessed his punishment at confinement for ninety nine years, Appellant could not have been considered for probation. The jury's error did not harm Appellant. Appellant's fourth issue is overruled.

2003 Case Summaries     2002 Case Summaries     2001 Case Summaries     2000 Case Summaries     1999 Case Summaries