in the Matter of J.O.E., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-15-00215-CV
________________________
IN THE MATTER OF J.O.E., A JUVENILE
On Appeal from County Court at Law No. 1
Potter County, Texas
Trial Court No. 10,478-J#1; Honorable W.F. “Corky” Roberts, Presiding
October 11, 2016
OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
On April 16, 2015, Appellee, the State of Texas, filed a petition alleging that
Appellant, J.O.E.1, a fifteen-year-old juvenile, violated the Texas Penal Code by
committing aggravated robbery2 and possession of marihuana.3 A grand jury approved
and certified the State’s determinate sentencing petition on May 6, 2015. The State
later waived the allegation of possession of marihuana, whereupon Appellant waived his
1
To protect the juvenile’s privacy, we will refer to him by his initials. See TEX. FAM. CODE ANN. §
109.002(d) (West 2014).
2
See TEX. PENAL CODE ANN. § 29.03 (West 2011).
3
See TEX. HEALTH & SAFETY CODE § 481.121(b)(1) (West 2010).
right to a jury trial and pleaded true to the aggravated robbery allegation. The trial court
determined that Appellant had engaged in delinquent conduct and proceeded to hear
testimony regarding the disposition phase of the proceeding. During the disposition
phase, while Appellant’s legal counsel remained silent, the State represented to the
court that Appellant had been properly certified by a Potter County grand jury. At the
conclusion of the hearing, the court determined that the appropriate placement for
Appellant was in the Texas Department of Juvenile Justice for a period of eight years.
The dispositional order was signed on May 18, 2015, and Appellant filed a timely notice
of appeal.
By two issues, Appellant contends: (1) the trial court lacked jurisdiction to
dispose of his case by determinate sentencing because the grand jury certification
named the wrong person and (2) Appellant’s right to a jury trial was violated because he
never waived that right at the disposition phase of the proceeding. We affirm.
BACKGROUND
On May 6, 2015, a Potter County grand jury approved and certified the petition
concerning Appellant. The certification documents consisted of a one-page document
(signed by the grand jury foreman), entitled Certification of Grand Jury Approval of
Petition, and four attached pages constituting the State’s original petition. The style of
the case, located at the top of the certification, correctly sets forth Appellant’s full name,
cause number, and name of the juvenile court. The body of the certification, however,
names another individual as having engaged in delinquent conduct “by committing the
offenses of Aggravated Robbery as alleged in Count One, and Possession of
Marihuana as alleged in Count Two of the petition previously filed in Cause no. 10478-
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J#1 [correct cause number] in the County Court at Law #1 of Potter County, Texas,
[correct court] . . . a copy of which is attached and incorporated for all purposes herein.”
The attached petition lists Appellant’s correct name no less than five times and never
lists the name of the other individual.
Appellant came before the court for adjudication and disposition on May 18,
2015. At the adjudication hearing, the State announced that the grand jury had certified
the petition and waived Count 2 (pertaining to the possession of marihuana charge).
Following that announcement, Appellant pleaded true to the aggravated robbery charge.
Prior to commencement of the hearing, Appellant and his attorney signed a written
“Waiver of Trial by Jury” pursuant to section 54.03(c) of the Texas Family Code. TEX.
FAM. CODE ANN. (West 2014). At the commencement of the adjudication hearing, the
court admonished Appellant and confirmed the waiver of his right to trial by jury with
respect to that phase of the proceeding. The court did not, however, provide any
additional admonishments prior to beginning the disposition phase of the hearing. At no
time did Appellant request, in writing or otherwise, a jury to determine the issue of
disposition.
ANALYSIS AND DISCUSSION
Juvenile delinquency proceedings are governed by the provisions of the Texas
Family Code. See TEX. FAM. CODE ANN. §§ 51.01 – 61.07 (West 2014 & Supp. 2016).
Such proceedings are considered to be both civil and criminal in nature. In re S.L.L.,
906 S.W.2d 190, 192 (Tex. App.—Austin 1995, no writ). Due to the very real possibility
of loss of liberty, juvenile proceedings invoke procedural requirements similar to those in
adult criminal prosecutions. Consequently, many of the rights afforded by the Texas
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Code of Criminal Procedure to adult criminal defendants are also provided to a juvenile
under the Texas Family Code.4
ERROR IN CERTIFICATION PETITION
A grand jury approves a juvenile court certification petition in the same manner
that it votes on the presentment of an indictment, and the law expressly provides that a
juvenile court petition that has been approved by a grand jury pursuant to section
53.045 is an indictment for the purpose of transferring a juvenile to the Texas
Department of Criminal Justice. In the Matter of J.G., 905 S.W.2d 676, 680 (Tex.
App.—Texarkana 1995, writ denied). The indictment serves to invest the court with
jurisdiction of the case. Carrillo v. State, 2 S.W.3d 275, 277 (Tex. Crim. App. 1999). An
indictment also serves to give notice of the offense so that a defendant can adequately
prepare a defense. Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995).
Additionally, the indictment serves to protect against the risk of incarceration without a
finding of probable cause by a grand jury. In the Matter of A.D.J., No. 03-96-00210-CV,
1996 Tex. App. LEXIS 4566, at *3 (Tex. App.—Austin, Oct. 16, 1996, writ denied)
(mem. op.). An indictment must charge (1) a person with (2) the commission of the
offense. Cook, 902 S.W.2d at 476. An indictment is sufficient when it contains the
name of the accused, one or more initials of the given name and the surname, or states
that the name is unknown and provides a reasonably accurate description of the
accused. TEX. CODE CRIM. PROC. ANN. art. 21.07 (West 2009).
4
For example, both juveniles and adults have the right to assistance of counsel and trial by jury.
Compare TEX. CODE CRIM. PROC. ANN. arts. 1.051, 1.12 (West 2005 & Supp. 2016) with TEX. FAM. CODE
ANN. §§ 51.10, 54.03, 54.04 (West 2014 & Supp. 2016).
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Appellant contends that, because the certified petition serves as an indictment,
which establishes the court’s jurisdiction, and the certification approval form erroneously
listed another individual in the body of the form, the certification of the petition was
invalid and the trial court was, therefore, without jurisdiction. Because Appellant did not
object to this alleged defect at the time of his hearing, he argues that lack of jurisdiction
is fundamental error that can be brought for the first time on appeal. Wal-Mart Stores,
Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993).
The State, however, contends that a certified petition is not in all respects
identical to an indictment. In the Matter of A.D.J., 1996 Tex. App. LEXIS 4566, at *3.
The State contends that certification serves to protect against the risk of incarceration
without a finding of probable cause by a grand jury, but that an indictment’s notice
requirement is fulfilled by the State’s original petition and the jurisdiction requirement is
established by the service of summons on the juvenile. Id. The State contends all of
these elements have been met, because while the certification page refers to an
erroneous name, the identification of Appellant as the person who robbed and injured
the victim was never at issue. That is, Appellant pleaded true to the factual basis of the
petition during the adjudication hearing, signed a written stipulation admitting guilt of
each element alleged in the petition, and testified as to his guilt during the disposition
phase, and the correct name appears in the style of the case on the Certification of
Grand Jury Approval of Petition, as well as in the original petition, which was attached
thereto.
Both parties rely on Cook, which held that an indictment must charge (1) a
person (2) with the commission of the crime, as established by Article V, Section 12(b)
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of the Texas Constitution. Cook, 902 S.W.2d at 477. Article V, Section 12(b) was
created to stop abuse by defendants withholding substantive defects at trial and raising
them on appeal to void the conviction. Id. at 476. While Article V, Section 12(b)
requires an indictment to charge “a person,” it does not require the indictment to charge
a person using their full and correct name. TEX. CONST. art. V, § 12(b); Cook, 902
S.W.2d at 479-80. The indictment in Cook “wholly failed” to list any person against
whom the crime was charged or the actus reus of the offense. Cook, 902 S.W.2d at
480. The appellate court found the appellant had waived the error by failing to object at
trial. The Texas Court of Criminal Appeals reversed, finding the conviction was void for
lack of jurisdiction. Id. at 474. Defects in the fundamental, constitutional requirements
of an indictment cannot be waived. Id. at 479.
A charging instrument can, however, be sufficient even when it does not list the
correct name. Cook, 902 S.W.2d at 480 n.5 (noting that when an incorrect name is
used, “whether erroneously or through a lack of information,” the charging instrument
still meets the Article V, Section 12(b) requirement to be an indictment, because it
charges “a person”). Article 26.07 of the Texas Code of Criminal Procedures provides
the following:
When the defendant is arraigned, his name, as stated in the indictment,
shall be distinctly called; and unless he suggest by himself or counsel that
he is not indicted by his true name, it shall be taken that his name is truly
set forth, and he shall not thereafter be allowed to deny the same by way
of defense.
TEX. CODE CRIM. PROC. ANN. art. 26.07 (West 2009).
While a valid indictment is required for jurisdiction and is not subject to waiver—
defects, errors, or irregularities in the form or substance of the indictment are
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considered to be of a non-jurisdictional nature and can be waived by a defendant’s plea
of nolo contendere. TEX. CODE CRIM. PROC. ANN. art. 1.14 (West 2005); Studer v. State,
799 S.W.2d 263, 265 (Tex. Crim. App. 1990).
In the case at hand, the State’s original petition names the correct person,
whereas the grand jury’s certification contains a misnomer by listing an erroneous name
in the body of the certification. However, the erroneous name is best described as a
defect, error, or irregularity in form, most likely the result of poor proof-reading following
the use of a previous certification as a template. To be preserved, such errors must be
objected to before the date of the trial or the right to complain on appeal is waived. TEX.
CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005); Studer, 799 S.W.2d at 263. Here,
Appellant did not object, either in writing or verbally, to the defect prior to trial and thus
waives the right to object to the defect on appeal. Unlike Cook, where no person was
listed in the indictment, in the present case “a person,” referred to by the wrong name in
the body of the certification, is listed. While the name is incorrect in the body of the
certification, the name is correctly listed multiple times in the style of the case and the
original petition, which was attached to the certification and “incorporated for all
purposes,” giving Appellant sufficient notice of the charges against him. Appellant’s
failure to correct errors or irregularities in the form of the certification prior to trial waives
his right to bring these complaints for the first time on appeal. Appellant’s first issue is
overruled.
WAIVER OF TRIAL BY JURY
As to his second issue, Appellant contends his right to a jury trial was violated
because he never waived that right at the disposition phase of the proceeding. Clearly,
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Appellant was entitled to a jury trial during that phase of his hearing, but only by
request. Section 54.04(a) of the Texas Family Code provides in relevant part:
The disposition hearing shall be separate, distinct, and subsequent to the
adjudication hearing. There is no right to a jury at the disposition hearing
unless the child is in jeopardy of a determinate sentence under Subsection
(d)(3) or (m), in which case, the child is entitled to a jury of 12 persons to
determine the sentence, but only if the child so elects in writing before the
commencement of the voir dire examination of the jury panel.
TEX. FAM. CODE ANN. § 54.04(a) (West Supp. 2016). Unlike section 54.03(b)(6),
requiring the court to admonish the child of his right to a trial by jury at the beginning of
the adjudication hearing, there is no statutory requirement for the court to admonish the
child of this right.
Appellant argues that although section 54.04 states that a child is only entitled to
a jury if the child expressly elects in writing, the right to a trial by jury has special
protection within the justice system such that it cannot be forfeited or extinguished by
inaction alone. Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). Appellant
argues that he should have to expressly relinquish his right to a trial by jury, and
because nothing in the record shows he was ever admonished of this right prior to his
disposition hearing, his case should be remanded to the trial court.
The State contends there was no duty to admonish Appellant of his right to a jury
trial under section 54.04. Additionally, the State contends that Appellant was orally
admonished by the court, prior to waiving his right to a jury trial at the adjudication
phase of his trial, regarding the various dispositions available to the court, including: (1)
sending the juvenile home with his parents, (2) sending the juvenile to various
8
placements, or (3) committing the juvenile to the Texas Juvenile Justice Department, all
of which Appellant testified he understood.
It is clear from the language of section 54.04 that there was an affirmative duty
on Appellant to expressly request a jury at the disposition hearing. At no time did either
Appellant or his counsel request a jury during that phase of the case. Therefore,
pursuant to the statute, the right to a jury trial during this phase was waived. Appellant’s
second issue is overruled.
CONCLUSION
The trial court’s dispositional order is affirmed.
Patrick A. Pirtle
Justice
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