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

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No objection to failure to prove age; out-of-court proof of age sufficient [In re J.C.M.] (03-4-13).

On October 29, 2003, the El Paso Court of Appeals held that the respondent did not object to the absence of proof of age in the adjudication proceeding as required by law and that the out-of-court proof of age was sufficient.

03-4-13. In the Matter of J.C.M., UNPUBLISHED, No. 08-02-00303-CV, 2003 WL 22455287, 2003 Tex.App.Lexis ____ (Tex.App.-El Paso 10/29/03) Texas Juvenile Law (5th Ed. 2000).

Facts: J.C.M., a juvenile, appeals the trial court's failure to grant a motion for directed verdict during the adjudication hearing, and the court's judgment committing him to the Texas Youth Commission because the State failed to prove that he was within the range of age that gave the trial court jurisdiction over the case.

On April 8, 2002 the State filed a petition alleging that J.C.M. engaged in delinquent conduct by possessing a usable quantity of marijuana in the amount of two thousand pounds or less but more than fifty pounds. J.C.M. filed various documents acknowledging that his birth date was July 5, 1985. [FN1] In his notice of appeal, his date of birth is given as July 5, 1985 and in the body of the notice it is stated, "The Appellant is a juvenile who was less than 17 years of age on the date the offense was allegedly committed."

FN1. These documents included: "Waiver of Right to Detention Hearing;" "Waiver of Right to Hearing before Juvenile Court Judge and Election of Jury/Non Jury Trial;" "Waiver of Detention Form;" "Motion to Suppress Evidence;" "Jackson v. Denno Motion for Hearing on Voluntariness of any Admission or Confession;" "Motion in Limine;" "Motion for Court Reporter to Take Voir Dire, Arguments and Bench Conferences;" "Request for Notice of Extraneous Offenses or Convictions;" "Motion to Disclose Expert Witnesses;" and "Waiver of Detention Form."

The adjudication hearing was held before a jury on May 6, 2002. During the testimony of Jose L. Mendoza, an agent of the United States Border Patrol, he was asked by the prosecutor if he had an opportunity to speak with T.C.M. at the time of the arrest. Defense counsel objected on the grounds of hearsay and, after discussion between both counsel and the court, the court overruled the objection. The following exchange then occurred:

STATE: Did you have an opportunity to speak to the juvenile?
WITNESS: Yes, we did.
STATE: Were you able to ascertain his date of birth?
WITNESS: Yes. We had to ask for biographical information.
STATE: And did he give you his date of birth?
WITNESS: Yes, he did.
STATE: And what was that date of birth?
DEFENSE: Okay. Your Honor, at this time, for the record, I'm going to object on hearsay grounds.
COURT: Overruled.
DEFENSE: That's not a statement against interest.
COURT: Overruled.
STATE: His date of birth?
WITNESS: It was in '85. I don't recall the day and month.
STATE: Would you look at your report to refresh your memory?
WITNESS: It would 7 5 of '85.
STATE: Okay. So, that would make him 16; correct, at the time of the
WITNESS: That would make him 16, correct.

At the close of the evidence, J.C.M. made a motion for directed verdict maintaining that the State had not proven intentional and knowing conduct with regard to the elements of the alleged offense. The jury returned a verdict that J.C.M. had engaged in delinquent conduct.

The disposition hearing was conducted on June 7, 2002. Jesus Lopez, a juvenile probation officer, testified for the State. During the course of his testimony, the following exchange occurred:

STATE: Okay. How old is the juvenile?
WITNESS: The juvenile is claiming to be 16 years of age. We have a date of birth of July 5th, 1985.
STATE: Was there any kind of controversy as to his age?
WITNESS: He he's not sure. I have spoken to him several times. And I said, "Are you sure that you're 16 years of age?" And he states that he's not sure, but he doesn't know his date of birth.
STATE: But he did swear, I guess, at some time at trial, right, that he was 15 or 16 years of age?
WITNESS: That was in Ciudad Juarez, if that is what you are asking. It was in Ciudad Juarez at a placement from CAMEF. That was in Ciudad Juarez. He told a person there that he was not 16 years of age, and that was back in March of 2002.
STATE: So, what have you done to verify what his age is?
WITNESS: We have dental records and also physical records stating that he is at least 18 years of age.
STATE: But you don't have anything conclusive like a birth certificate or a baptism record?
WITNESS: No. This person personnel from CAMEF was going to try and get us an original birth certificate. We still don't have that at this department.
STATE: Is there any likelihood of getting it in the future?
WITNESS: They're still trying, Mr. Contreras. They're still trying, but we still don't have it. I know Rosa Maria is still talking to them and letting them know that it is necessary for us to have that birth certificate as soon as possible. They still don't have it. They still have to get if from Mexico, the City of Mexico.
STATE: Judge, I'm going to I don't know whether we have jurisdiction to even proceed unless you're satisfied unless the Court is satisfied that he is a juvenile with the date of birth that he came in with. And, if that's the case, then, you can take judicial notice of the intake packet and say that that's the date of birth he gave.
...
COURT: Well, actually, it was proven at trial to the Court's satisfaction that his birth date is July 5th, 1985.
STATE: Okay, Judge. And would the Court please take judicial notice that you made that determination at trial?
COURT: Yes.

Held: Affirmed.

Opinion Text: In Issue No. One, J.C.M. asserts that the court erred in failing to grant his motion for directed verdict because the State failed to prove that the juvenile was within the age range necessary for the trial court to have jurisdiction over the case. In Issue No. Two, he maintains that due to this lack of jurisdiction, the court was without authority to commit him to the Texas Youth Commission. The juvenile court is not a court of general jurisdiction. The family code provides the juvenile court's authority to act. See Tex. Fam.Code Ann. §§ 51.01 60.009 (Vernon 2002); In re A.S., 875 S.W.2d 402, 403 (Tex.App. Corpus Christi 1994, no writ). The juvenile court has exclusive, original jurisdiction over all proceedings involving a defendant who is a "child" when the alleged offense occurred. See Tex. Fam.Code Ann. § 51.04(a) (Vernon 2002). The family code defines "child" as one who is:

(A) ten years of age or older and under 17 years of age; or
(B) seventeen 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 Ann. § 51.02(2) (Vernon 2002).

Regarding objections to the jurisdiction of a juvenile court regarding the individual's age, the family code provides:

Section 51.042. Objection to Jurisdiction Because of Age of the Child
(a) A child who objects to the jurisdiction of the court over the child because of the age of the child must raise the objection at the adjudication hearing or discretionary transfer hearing, if any.
(b) A child who does not object as provided by Subsection (a) waives any right to object to the jurisdiction of the court because of the age of the child at a later hearing or on appeal.

Tex. Fam.Code Ann. § 51.042 (Vernon 2002).

This statutory provision deals with the in personam jurisdiction of the juvenile court and this type of jurisdiction can be waived. In re E.D.C, 88 S.W.3d 789, 792 (Tex.App. El Paso, no writ). J.C.M. maintains that there was a failure of proof in that the evidence adduced at trial concerning his age was inadmissible hearsay. Further, J.C.M. asserts that the hearsay objections to the testimony regarding his age served as an objection to the court's jurisdiction pursuant to Section 51.042. We disagree with regards to both contentions. J.C.M. never objected to the court's jurisdiction with regard to his age. Furthermore, the testimony at the adjudication and the disposition hearings regarding the juvenile's age is not pertinent in that J.C.M. filed a notice of appeal wherein he admitted that he was within the jurisdictional age limit of the juvenile court. See id. at 793. Accordingly, we find that the court did not err in failing to grant Appellant's motion for directed verdict in that the court had jurisdiction with regard to the cause. It therefore follows that the court had jurisdiction to commit the juvenile to the Texas Youth Commission. Issues No. One and Two are overruled in their entirety.

Having overruled each of Appellant's issues on review, we affirm the judgment of the trial court.

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