in the Matter of J.B.L. ( 1995 )

In the Matter of J.B.L.

IN THE

TENTH COURT OF APPEALS

No. 10-93-201-CV

        IN THE MATTER OF J.B.L.,

                                                                                               Appellant

From the 314th District Court

Harris County, Texas

Trial Court # 73434

O P I N I O N

          J.B.L., a juvenile, was charged with capital murder. He appeals a judgment by the 314th District Court of Harris County, sitting as a juvenile court, waiving its exclusive jurisdiction and transferring him to district court for criminal proceedings. Through four points of error, he argues: (1) the court committed reversible error in admitting into evidence over the appellant's hearsay objection a number of written witness statements implicating him in the murder; (2) the admission of these hearsay statements deprived him of his state and federal constitutional right to confront his witnesses; (3) the court's order failed to state with sufficient specificity the reasons for the appellant's transfer to criminal district court; and (4) the court relied upon undisclosed reasons in its decision to transfer the appellant. We affirm.

Factual Background

          The State charged the appellant with the capital murder of Babycutty K. John, who was killed when two male youths each shot him as they attempted to rob him in his home. The appellant initially informed the police that he was an innocent bystander to the murder committed by two of his acquaintances. These statements, however, were later contradicted by several witnesses, each one implicating the appellant in the shooting.

          The State introduced into evidence sworn written statements made by each of these witnesses, and the court admitted them despite the appellant's objections on grounds of hearsay. None of the witnesses testified in person at the hearing. Upon conclusion of the hearing, the court waived jurisdiction and transferred the appellant, who was 16 years old at the time of the offense, to the district court to be tried as an adult.

Hearsay Objections

          In his first point of error, the appellant complains the court erred in admitting into evidence, over his objections, the sworn written statements mentioned above because they constituted hearsay.

          A judge in a certification hearing is authorized to consider any evidence that a grand jury could consider in deciding to return an indictment. Tex. Fam. Code Ann. § 54.02(f)(3) (Vernon 1986); In re J.S.C., 875 S.W.2d 325, 330 (Tex. App.—Corpus Christi 1994, writ dism'd by agr.); In re G.F.O., 874 S.W.2d 729, 731 (Tex. App.—Houston [1st Dist.] 1994, no writ). A grand jury may consider evidence that is incompetent and inadmissible. In re G.F.O., 874 S.W.2d at 731. Therefore, the court could consider the several written statements mentioned above whether or not the statements constituted hearsay. Id. We overrule appellant's first point of error.

Right to Confrontation

          In point of error two, the appellant contends that his state and federal constitutional right to confront his witnesses was violated when it accepted into evidence written statements containing hearsay. See U.S. Const. amend. VI.; Tex. Const. art. I, § 10.

          While the appellant did object at the hearing to the introduction into evidence of the several written statements, he objected only on the ground of hearsay; he mentioned nothing about a possible violation of his right to confrontation. Hearsay complaints and confrontation complaints are distinct from one another and they require objections to be lodged on both grounds to preserve error on each. Cofield v. State, 857 S.W.2d 798, 804 (Tex. App.—Corpus Christi, 1993), aff'd, 891 S.W.2d 952 (Tex. Crim. App. 1994); see also In re M.A.B., 641 S.W.2d 621, 623 (Tex. App.—Corpus Christi 1982, no writ) (argument on appeal must comport with objection at trial). In fact, in criminal cases, the right to raise a violation of one's constitutional right to confront witnesses will be waived if no objection is made to the claimed violation at trial, even if a hearsay objection is lodged. Ward v. State, No. 12-93-42-CR, slip op. at 6 (Tex. App.—Tyler, March 31, 1995, n.w.h.) (citing Cofield, 857 S.W.2d at 804). We see no reason why the requirement of an objection at a criminal trial to preserve a confrontation complaint on appeal should not also apply in civil appeals from certification hearings. Therefore, because the appellant failed to raise his confrontation complaint at the certification hearing, his argument will not be considered on appeal. His second point is overruled.

Specificity of Reasons for Transfer

          If a juvenile court transfers a juvenile to district court for criminal proceedings, it is required to state with specificity the reasons for the transfer. Tex. Fam. Code Ann. § 54.02(h) (Vernon Supp. 1995). The appellant, in his third point of error, asserts the court's order failed to state with sufficient specificity the reasons for its decision to waive jurisdiction over him. The court's transfer order reads, in relevant part:

After full investigation and hearing at which hearing the child, his counsel, his father, ... and his mother, ... were present; the Court finds that the said [J.B.L.] is charged in the violation of a penal law of the grade of felony, if committed by an adult, to wit: CAPITAL MURDER OF BABYKUTTY JOHN, COMMITTED ON OR ABOUT FEBRUARY 23, 1993; that there has been no adjudication of this offense; that he was 16 years of age at the time of the commission of the alleged offense, having been born on the 30th day of June, 1976; that there is probable cause to believe that the child committed the offense alleged and that because of the seriousness of the offense the welfare of the community requires criminal proceedings. In making that determination, the Court has considered, among other matters:

                    1.       Whether the alleged offense was against the person or property, with the greater weight in favor of waiver given to offenses against the person;

                    2.       Whether the offense was committed in an aggressive and premeditated manner;

                    3.       Whether there is enough evidence upon which the grand jury may be expected to return an indictment;

                    4.       The sophistication and maturity of the child;

                    5.       The record and previous history of the child; and

                    6.       The prospects of adequate protection of the public and the likelihood of reasonable rehabilitation of the child by use of procedures, services and facilities currently available to the Juvenile Court.

The Court finds that the penal laws alleged to have been violated by [J.B.L.] were laws of the grade of felony, and was an offense against a person. The Court further finds that [J.B.L.] is now 17 years of age and was at the time of the alleged offense 16 years of age or over. The Court further finds that there was no adjudication hearing concerning the offense. The Court has considered the offense and finds that it was committed in an aggressive and premeditated manner, and that there is sufficient evidence upon which a grand jury might be expected to return an indictment, and that the Court has considered the sophistication and the maturity of [J.B.L.] and his previous history.

The Court specifically finds that [J.B.L.] is of sufficient sophistication and maturity to have intelligently, knowingly and voluntarily waived all constitutional and statutory rights heretofore that may have been waived by [him] and further that [he] has sufficient present ability to aid and assist his attorney and is of sufficient sophistication and maturity to intelligently and knowingly understand and have a rational as well as a factual understanding of the proceedings in this Court and to rationally assist in his own defense. The Court finds that it has considered the rehabilitative processes available to this Court and the facilities currently available to this Court, and having considered these among other matters, the Court finds that there is little if any, likelihood that the facilities and services available to this Court could reasonably be expected to rehabilitate [J.B.L.] and that there is from the nature of the offense the likelihood that the public is not adequately protected from such future such conduct, and for those reasons and other reasons, the jurisdiction of this Court is waived in this cause.

          While the appellant is complaining generally about a lack of specificity in the factual reasons for the court's decision, he specifically attacks the court's order for merely reciting the boilerplate factors the juvenile courts are directed by the Legislature to consider in certification hearings. The factors are:

          (1)      [W]hether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

          (2)      whether the alleged offense was committed in an aggressive and premeditated manner;

          (3)      whether there is evidence on which a grand jury may be expected to return an indictment;

          (4)      the sophistication and maturity of the child;

          (5)      the record and previous history of the child; and

          (6)      the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Tex. Fam. Code Ann. § 54.02(f) (Vernon 1986).

          We note that at the certification hearing the court had before it: live testimony from the investigating officer in the case; live testimony from the deceased's widow; sworn affidavits from witnesses to the crime and acquaintances of the appellant; several psychological evaluations of the appellant; the appellant's probation file; and a criminal history of the appellant indicating, among other things, arrests on two counts of theft between $20.00 and $199.99, burglary of a habitation, carrying a prohibited weapon on a school campus, and motor vehicle theft.

           The San Antonio Court of Appeals found a juvenile court's transfer order to be sufficiently specific under a similar set of facts in In re F.A., 835 S.W.2d 748, 749-750 (Tex. App.—San Antonio 1992, no writ). See also In re T.D., 817 S.W.2d 771, 775-777 (Tex. App.—Houston [1st Dist.] 1991, writ denied). We agree with the San Antonio court that the reasons involved in its case were stated with sufficient specificity; therefore, we conclude that the reasons stated in the instant case are sufficiently specific. Accordingly, the appellant's third point is overruled.

Undisclosed Reasons for Transfer

          In his fourth and final point, the appellant argues the court committed reversible error by relying upon undisclosed reasons in its decision to certify him. As the basis for his argument, the appellant refers to several places in the transfer order where the court indicated that it had considered "other matters" and "other reasons" not stated in the order in making its decision to transfer.

          It is axiomatic that if section 54.02(h) requires a juvenile court to state with specificity the reasons for its decision to certify a juvenile for criminal proceedings as an adult, the juvenile court may not rely upon undisclosed reasons in deciding to certify a juvenile. See Kent v. United States, 383 U.S. 541, 563, 86 S. Ct. 1045, 1058 (1966); In re J.R.C., 522 S.W.2d 579, 583 (Tex. App.—Texarkana 1975, writ ref'd n.r.e.). Accordingly, the court erred to the extent that it relied upon reasons not stated in the order for its decision to certify the appellant.

          However, the reasons the court did cite for its decision to transfer the appellant were more than sufficient to support the transfer order. Any reference the court made in its order to "other reasons" or "other matters" in support of its decision was extraneous and can be disregarded by this court. Accordingly, we fail to find that the error amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 81(b)(1). Therefore, we conclude the court's error was harmless, and we overrule the appellant's fourth point of error.

          Having overruled each of the appellant's four points of error, the judgment is affirmed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed June 14, 1995

Do not publish