in the Matter of J.I.G., a Child v. State ( 2021 )

Affirmed and Memorandum Opinion filed January 21, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00459-CV
14-20-00460-CV
IN THE MATTER OF J.I.G., A CHILD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court No. 2
Galveston County, Texas
Trial Court Cause Nos. 19-JV-0406 & 19-JV-0407
MEMORANDUM OPINION
In this accelerated appeal, J.I.G., a minor, challenges the juvenile court’s
orders waiving its exclusive original jurisdiction over the felony charges against
him and transferring him to a criminal district court for trial as an adult.
Specifically, J.I.G. has been charged with the felony offenses of capital murder and
aggravated robbery, based on two alleged car jackings. See Tex. Penal Code §§
19.03, 29.03. The State moved for the juvenile court to waive its jurisdiction
pursuant to Texas Family Code section 54.02(m), and the juvenile court granted
the motion after a hearing. Tex. Fam. Code § 54.02(m).
In two issues, J.I.G. contends that (1) his counsel was not provided access to
all written matter to be considered by the court in making the transfer decision five
days before the hearing as required by Family Code section 54.02(e), and (2) the
State violated Texas Rule of Civil Procedure 21 by not providing notice of a
document placed in the trial court’s file before the hearing. Tex. Fam. Code §
54.02(e); Tex. R. Civ. Proc. 21(a). Because J.I.G. failed to preserve his first issue
and section 21 does not apply to the document in question, we affirm the trial
court’s orders.
Access
Section 54.02(e) provides in relevant part:
At the transfer hearing the court may consider written reports from
probation officers, professional court employees, or professional
consultants in addition to the testimony of witnesses. At least five
days prior to the transfer hearing, the court shall provide the attorney
for the child and the prosecuting attorney with access to all written
matter to be considered by the court in making the transfer decision.
Tex. Fam. Code § 54.02(e). J.I.G. contends that the trial court violated this
provision because his counsel did not receive notice at least five days before the
hearing that a certification report had been filed with the court by the Galveston
County Juvenile Probation Department. This issue was not preserved for our
review in the trial court.
Generally, juvenile appeals proceed under the rules governing civil cases.
E.g., In re Z.Q., No. 14-12-00129-CV, 2013 WL 176116, at *3 (Tex. App.—
Houston [14th Dist.] Jan. 17, 2013, pet denied) (mem. op.) (citing Tex. Fam. Code
§ 56.01(b) and In re M.R., 858 S.W.2d 365, 366 (Tex. 1993)). In order to preserve
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a complaint for appellate review, a party must make a timely and sufficiently
specific request, objection, or motion in the trial court. Tex. R. App. P. 33.1(a)(1);
In re Z.Q., 2013 WL 176116, at *3. The record must show that the trial court either
ruled on the request, objection, or motion expressly or implicitly, or refused to rule
and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a)(1); In re
Z.Q., 2013 WL 176116, at *3. A party’s argument on appeal must comport with its
complaint in the trial court or error has not been preserved. See Petroleum Workers
Union of the Republic of Mex. v. Gomez, 503 S.W.3d 9, 32 n.37 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). Moreover, the failure to obtain an adverse
ruling in the trial court operates as a waiver of review of the alleged error on
appeal. Harrington v. Hawthorne-Midway Palms, LLC, No. 14-18-00460-CV,
2020 WL 1061086, at *4 (Tex. App.—Houston [14th Dist.] Mar. 5, 2020, no pet.)
(mem. op.). In other words, if a party objects but then obtains the relief it sought
from the trial court, it waives the right to complain on appeal. See, e.g., Freeman v.
Thomas, No. 06-20-00001-CV, 2020 WL 4196254, at *3 (Tex. App.—Texarkana
July 22, 2020, no pet.) (mem. op.); see also Petroleum Workers Union, 503 S.W.3d
at 37.
It is undisputed that the certification report was in the trial court’s records
before the transfer hearing. At the start of the transfer hearing on March 11, 2020,
the State requested that the trial court take judicial notice of the entirety of the
court’s file, expressly mentioning the certification report and representing that
J.I.G.’s counsel had access to the documents at least five days before the hearing.
J.I.G.’s counsel did not object to this request, and the trial court took judicial notice
of the documents in the file.
During the testimony of the third witness called by the State, the certification
report was mentioned for the first time since the beginning of the hearing. At this
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point, J.I.G.’s counsel objected, saying, “I don’t believe I received a certification
report.” The State noted that the report had been on file for a couple of months, but
J.I.G.’s counsel said that she never received notice that it was filed. The judge
observed that she had already taken judicial notice of the report and that many of
the documents that made up the report had also been separately admitted into
evidence. The judge asked counsel if she wanted a minute to look over the report.
Counsel responded that the report was about an inch thick. The judge then asked
counsel how much time she wanted, and counsel asked, “Can I get overnight or
to—get an additional date?” The State then said that she would like to proceed
with the witness currently on the stand. J.I.G.’s counsel stated she had no objection
to that and agreed to the proposal. J.I.G.’s counsel also cross-examined the witness
before the court again asked how much time she would like to review the
certification report. Counsel stated that she could report back in two days.
On March 13, 2020, the trial court reconvened the hearing, at which time,
J.I.G.’s counsel acknowledged, “I did get the opportunity to read the certification
report.” Counsel, however, further stated that when she looked at the court’s file,
she discovered other documents that she had been unaware of, principally several
protective orders that had been filed because one of the officers in the case had
been involved in a shooting and the file contained autopsy results for someone
unconnected to J.I.G.’s case. After an off-the-record discussion, the judge stated on
the record that J.I.G.’s counsel wished to consult with a “juvenile expert” and the
court would give her the opportunity to do so. The judge asked counsel to report
back in a week so the hearing could be reset, stating,
the Court needs to feel confident that you have had ample opportunity
to review whatever evidence in the files you want to look at, whatever
documents in the files you want to look at, and the Court will give you
an opportunity if having reviewed those documents you feel like you
need to call additional witnesses or put on additional evidence [the]
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Court will give you opportunity to do that.
The hearing continued on June 2, 2020, with J.I.G.’s counsel and the judge
noting that the delay was partly to allow counsel to review the file and partly due
to “COVID-19 quarantine.” J.I.G.’s counsel then called a probation officer as a
witness, and extensive examination occurred by both sides including questions
about the certification report. At the conclusion of the hearing, J.I.G.’s counsel
acknowledged that she had had access to the court’s file and was able to conduct
her review at least five days prior to the hearing. Counsel further suggested adding
language to the trial court’s orders to so reflect. And, indeed, the orders mention
the fact that the hearing was recessed and counsel had access to all written matter
to be considered by the court at least five days before the hearing.
At no point did J.I.G.’s trial counsel make an objection or request about the
certification report or other relevant documents that the trial court did not
accommodate. Because counsel got the relief she requested and did not obtain an
adverse ruling regarding the certification report or based on Texas Family Code
section 54.02(e), J.I.G.’s first issue was not preserved for our review. See Freeman,
2020 WL 4196254, at *3; Harrington, 2020 WL 1061086, at *4; Petroleum
Workers Union, 503 S.W.3d at 37. Accordingly, we overrule J.I.G.’s first issue.
Rule 21(a)
Texas Rule of Civil Procedure 21, entitled Filing and Serving Pleadings and
Motions, states in relevant part as follows:
(a) Filing and Service Required. Every pleading, plea, motion, or
application to the court for an order, whether in the form of a motion,
plea, or other form of request, unless presented during a hearing or
trial, must be filed with the clerk of the court in writing, must state the
grounds therefor, must set forth the relief or order sought, and at the
same time a true copy must be served on all other parties, and must be
noted on the docket.
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Tex. R. Civ. Pro. 21(a). J.I.G. contends that the State violated Rule 21 by not
providing notice that the certification report had been filed by the probation
department before the hearing.
By its very language, Rule 21(a) applies only to pleadings, pleas, motions,
requests, or applications to the court for orders. Id.; see also Univ. of Texas Med.
Branch at Galveston v. Callas, 497 S.W.3d 58, 65 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied) (holding Rule 21 did not apply to medical expert report
because it did not fit within the categories covered by the rule); Price v. Schroeder,
No. 03-07-00364-CV, 2010 WL 2010792, at *19 (Tex. App.—Austin May 20,
2010, no pet.) (mem. op.) (holding rule did not apply to documents filed with court
that did not fit within these categories). The certification report was ordered
prepared by the trial court and was prepared and filed by the probation department.
It contains a summary of J.I.G.’s relevant history, including prior offenses,
behavior, education, drug use, mental health, and prior services and programs
offered, among other things. The report is not a pleading, plea, motion, request, or
application to the court for an order. The request for transfer was contained in the
State’s petition. Although the certification report concludes with a
recommendation that J.I.G. be transferred to stand trial as an adult, the report does
not contain a request of any form in that regard.
Because the certification report does not fit within the categories of
documents covered by Rule 21, there was no violation of Rule 21 by failing to
provide J.I.G.’s counsel with notice that the report had been filed. Accordingly, we
overrule J.I.G.’s second issue.
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Conclusion
Having overruled each of J.I.G.’s issues, we affirm the trial court’s transfer
orders.
/s/ Frances Bourliot
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
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