In re D.S.

OPINION

KENNEDY, Justice.

D.S.¹ appeals from an adjudication and disposition of a juvenile court action alleging delinquent conduct, i.e., murder. Appellant was adjudicated under the State’s determinate sentencing statutes.² The jury found that appellant used a deadly weapon and assessed disposition at thirty years. Appellant, by eleven points of error, challenges the constitutionality of the determinate sentencing statutes and asserts that several actions by the trial court constitute reversible error. We affirm.

By his fifth point, appellant asserts that the trial court reversibly erred in allowing him to be sentenced under the determinate sentencing statutes because the certification to the court of grand jury approval was not in the case file at the time trial commenced. Appellant does not complain that the grand jury failed to approve the petition or failed to certify it to the court clerk. Rather, he only asserts that the timing was improper when the grand jury’s Certification To The Juvenile Court was placed in the case transcript.

The record reflects that the petition and the Notice of Intent To Seek Grand Jury Certification For Determinate Sentencing were timely filed. We also note that D.S. executed an election to have the jury determine disposition prior to the proceeding which only is available to a juvenile when the State is proceeding under the determinate sentencing statutes. See Tex.Fam. Code Ann. § 54.04(a) (Vernon Supp.1992).

The record shows that the certification was stamped “Filed November 8, 1990,” and the deputy clerk testified, outside the jury’s presence, that she did not place the document into the case file until December 13, 1990, the day after the jury was selected in the juvenile proceeding. When asked why the document was stamped with the November date, the deputy clerk replied that the certification was given to the chief clerk on November 8, 1990, when the grand jury left for the day.

In pertinent part, the Texas Family Code provides that, “if the grand jury approves of the petition, the fact of approval shall be certified to the juvenile court, and the certification shall be entered in the record of the case.” Tex.Fam.Code Ann. § 53.045(d) (Vernon Supp.1992).

In reading the pertinent statute, we find no time requirement for placing the grand jury’s certification to the court clerk in the case file. Additionally, we note that the court clerk received the certification on November 8, 1990, not on December 13, 1990. We conclude that the Certification To The Juvenile Court was properly and timely filed with the juvenile court. See In the Matter of S.B.C., 805 S.W.2d 1, 8 (Tex.App.—Tyler 1991, writ denied). We overrule point five.

By points ten and eleven, appellant contends the trial court reversibly erred in allowing the case to proceed to the disposition stage using the determinate sentencing scheme because the punishment phase of the scheme violates the United States Constitution and the Texas Constitution.

Appellant specifically complains that the determinate sentencing scheme provides that a person may serve time in the penitentiary or be punished without ever being convicted of a crime, it denies appellant bail, it violates the separation of powers doctrine by delegating the executive branch function of commutation of sentence to the judiciary, and it violates the double jeopardy clause in that it allows two punishments for the same offense.

We note that appellant does not argue impropriety, only the potential for impropriety. No error is shown to have occurred, and thus, nothing is presented for our review. Until such time as the committing court orders the transfer of appellant to the Texas Department of Criminal Justice Institutional Division (TDCJID) appellant’s arguments under points ten and eleven are premature. See also, S.B.C., 805 S.W.2d at 6. We overrule points ten and eleven.

By points six and seven, appellant argues that the State’s determinate sentencing statute is unconstitutional because it violates the United States Constitution’s due process clause, and the Texas Constitution’s due process clause, and due course of law protections of its citizens.

Appellant contends that the determinate sentencing statutes allow the State to prosecute without a sworn complaint, information, or evidence of a crime. In connection with this argument, he also asserts that the determinate sentencing statute fails to provide a right to an indictment before being convicted of a felony or being incarcerated with felons. Appellant also suggests that the determinate sentencing statute fails to provide guidelines to the grand jury in determining whether to approve the petition.

Appellant’s conclusion assumes that a petition cannot function as an indictment. See In re R.L.H., 771 S.W.2d 697, 699 (Tex.App.—Austin 1989, writ denied). The Texas Constitution provides that “[t]he practice and procedures relating to the use of indictments ... including their contents, amendment, sufficiency, and requisites, are as provided by law.” Tex. Const.Ann. art. V, § 12 (Vernon Supp.1992). The legislature exercised its constitutional power in the determinate sentencing statutes by providing that a petition is approved by a grand jury in the same manner that the grand jury votes on the presentment of an indictment. Tex.Fam.Code Ann. § 53.-045(b) (Vernon Supp.1992). Additionally, the statute provides that the grand jury retains all of its investigative powers while considering a petition submitted to it for approval. Tex.Fam.Code Ann. § 53.045(c) (Vernon Supp.1992). The grand jury treats the petition the same as information it would be presented with before issuing an indictment.

As if anticipating this constitutional argument, the legislature provided that for the purpose of transferring a juvenile to the TDCJID, a juvenile petition approved by a grand jury under this section is an indictment_ Tex.Fam.Code Ann. § 58.-045(d) (Vernon Supp.1992). We overrule points six and seven.

By points eight and nine, appellant asserts that the determinate sentencing scheme violates the equal protection clauses of the United States Constitution and the Texas Constitution. Appellant contends that the scheme allows arbitrary prosecution and treatment of offenders under the age of fifteen without adequate constitutional safeguards.

A prosecutor now has several processes available to deal with juveniles, the juvenile system, the determinate sentencing system, and the criminal system, if he first petitions and the court certifies the juvenile as an adult. There are differences among these systems. Appellant contends that his constitutional rights are violated because under the determinate sentencing system, he is treated differently than if he were adjudicated under the juvenile system.

As an accused child in juvenile court, appellant’s fundamental right to liberty was at stake. R.L.H., 771 S.W.2d at 701. Strict scrutiny is the proper equal protection test when a fundamental right is in issue. Id. The only legitimate classifications or burdens under the strict scrutiny standard are those which further a compelling state interest. Id. Thus, we must determine whether the determinate sentencing statutes further a compelling state interest and meet the strict scrutiny standard. The court in R.L.H. addressed this issue and noted that the determinate sentencing statutes were enacted as an alternative to the pre-existing criminal and juvenile systems. These statutes were enacted to strike a balance between 1) the criminal system’s goal to maintain our societal structure and to protect the safety of citizens by punishing persons who violate certain basic rules of conduct, and 2) the juvenile system’s primary purpose “to provide for the care, the protection, and the wholesome moral, mental, and physical development of children.” Id. (citing Tex.Fam. Code Ann. § 51.01(1) (Vernon 1986)). These systems encounter a gap neither can deal with effectively when a violent juvenile offender is involved. The legislature, seeking to strike a balance between the two systems, enacted the determinate sentencing statutes. This third system, which initially places the child in the Youth Commission and requires the committing court to re-evaluate the child’s situation when reaching age eighteen, are measures tailored to achieve a child’s well-being. Prohibiting the Youth Commission from paroling him without court approval and the possibility that he will serve the portion of his sentence beyond age twenty-one at the TDCJID are measures designed to protect the public by lengthening the period of confinement.

Because these two stated goals are vital, we conclude that the State’s interest in striking a balance between the goals is compelling. Because the determinate sentencing statutes further a compelling State interest, we conclude that they do not violate appellant’s Texas or federal equal protection rights. We overrule point eight and nine.

In addition to appellant’s constitutional complaints, he also asserts that the trial judge reversibly erred in conducting the trial. By point one, appellant asserts that the trial court reversibly erred in denying appellant’s request to charge the jury on the lesser included offense of aggravated assault.

■ An offense is a lesser included offense if 1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, 2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission, 3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission, or 4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim.Proc.Ann. art. 37.09 (Vernon 1981).

A two-step analysis is required in determining whether a jury charge on a lesser included offense must be given upon request. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must also be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser included offense. In the Matter of S.D.W., 811 S.W.2d 739, 751 (Tex.App.—Houston [1st Dist.] 1991, no writ) (citing Sanchez v. State, 745 S.W.2d 353, 357 (Tex.Crim.App.1988)).

In this case, the State’s petition alleged appellant committed the offense of murder. A person commits murder by intending to cause serious bodily injury and committing an act clearly dangerous to human life that caused the death of an individual. Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 1989).

In determining whether it was error to deny a jury charge on the offense of aggravated assault as a lesser included offense, we note that the first prong of the analysis was met since aggravated assault may be a lesser included offense of murder under either Tex. Penal Code Ann. §§ 19.02(a)(1) or (a)(2) (Vernon 1989). See Dowden v. State, 758 S.W.2d 264, 269 (Tex.Crim.App.1988).

At trial, a friend of appellant and the deceased testified that in the early morning hours of Sunday, September 3, 1990, appellant invited the deceased to go “cruising.” The friend wanted to join them but was told by appellant not to come along. The friend testified that appellant and the deceased left and drove toward McAllen at about 1:00 a.m., Sunday, and he did not see the deceased again. The friend then testified that he saw appellant about 10:00— 11:00 a.m. Sunday morning. He asked appellant where the deceased was and appellant acted nervous and did not answer. The friend testified that he asked appellant again, and that appellant said in Spanish that “he” was bothering him. The friend testified that appellant later told him that he killed the deceased, that he stabbed him with a knife, and had thrown him on Mile 12. In carefully reviewing the record, we find no evidence which raises an inference that D.S. was guilty only of aggravated assault, but not murder. We overrule point one.

By points two through four, appellant asserts that the trial court reversibly erred in admitting evidence. Specifically, appellant complains about the trial court admitting opinion testimony, inflammatory photographs, and reputation testimony, all over his objections. We will address each type of evidence individually.

Appellant complains about the introduction of opinion testimony by Deputy Fernando Cuellar, an officer at the scene, about what caused the deceased’s death. Appellant claims that the State did not properly qualify the deputy to testify about the cause of death.

In reviewing the record, the State asked Deputy Cuellar if, when he observed the body, did he form any opinion about the cause of death. Appellant’s attorney objected to the question because no predicate was laid for this question. The trial court sustained the objection. The prosecutor then asked Deputy Cuellar if he, in his past experience had come across dead bodies. He responded that he had. Once again, the prosecutor asked him if he had any opinion about what caused the death of this person. Again appellant’s attorney objected on the same grounds. The court overruled the objection, and Deputy Cuellar testified that when he checked for a pulse, he saw that there was a lot of blood on the body itself, the pants, shoes, and other areas surrounding the body. He noticed a puncture wound under the right nipple of the body. He testified that at that point he believed the deceased was stabbed.

In reviewing the full context of Deputy Cuellar’s testimony, we do not see how the questions asked and the answers given could be construed as stating an expert opinion about the actual cause of death. Rather, Deputy Cuellar’s testimony related to what he encountered when arriving at the scene, the steps he took in securing the area, and in trying to locate a weapon.

Essentially, Deputy Cuellar’s testimony amounted to his noticing a puncture wound in the deceased’s chest which was surrounded by massive amounts of blood suggested to him that the deceased was stabbed. We find no error in the admission of Deputy Cuellar’s testimony.

Appellant complains about the admission of what he considers inflammatory photographs. The record indicates that the State offered four photographs into evidence and that appellant’s attorney objected to all four. The trial court sustained objections to two photographs but overruled objections to the other two photographs. The photographs admitted over appellant’s objection were referred to by the pathologist in describing the stab wound near the deceased’s nipple, connected with the perforation into the chest cavity and to the heart and the lung, and in describing the flesh-type wound behind the right shoulder.

A photograph, provided it is competent, material, and relevant to the issue at trial, is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury unless it is offered solely to inflame the minds of the jury and provided a verbal description of the body would be admissible, a photograph depicting the same is admissible. Martin v. State, 475 S.W.2d 265, 267 (Tex.Crim.App.1972); Ward v. State, 787 S.W.2d 116, 119-20 (Tex.App.—Corpus Christi 1990, pet. ref’d).

The challenged photographs were used at trial by the pathologist to illustrate his testimony about the deceased’s wounds. In reviewing the record, we find no error by the trial court in admitting the photographs.

Appellant complains about the admission of reputation testimony by four witnesses at the disposition phase of trial over his objection. In reviewing the record, we note that appellant’s attorney objected to the first reputation witness by stating, “your honor, we object at this time based on Rule 404 of the Texas Rules of Civil Procedure. It does not allow for the admissibility of this type of evidence.” Subsequently, with the next two reputation witnesses, appellant’s attorney stated, “I renew my objection as to this witness under Rule 404.” Finally, as to the fourth reputation witness, appellant’s attorney stated, “objection, your honor, Rule 404, as to this witness.” When the prosecutor rephrased the question about appellant’s reputation, appellant’s attorney stated, “same objection, your honor.” Appellant was once again overruled.

To preserve a complaint for appellate review, a party must present to the trial court a timely objection stating the specific grounds for the ruling desired. Tex. R.App.P. 52(a). Appellant objected based on Texas Rule of Civil Procedure 404, which he asserts does not allow this type of evidence. Since appellant’s trial objection mentioned a nonexistent rule of civil procedure, and fails to state a specific legal basis or grounds for the objection, we conclude that this appellate error was not properly preserved. Tex.R.App.P. 52(a).

We affirm the trial court’s judgment.

GILBERTO HINOJOSA, J., concurs.

1 . A juvenile shall be identified by initials only. Tex.Fam.Code Ann. § 56.01(j) (Vernon 1986).

2 . The provisions authorizing a determinate sentence are found in Tex.Fam.Code Ann. §§ 53.-045, 54.04, 54.11 (Vernon Supp.1992) and Tex. Hum.Res.Code Ann. § 61.079 (Vernon 1990) and Tex.Hum.Res.Code Ann. § 61.084 (Vernon Supp.1992).

For an explanation of the statutes see Dawson, The Third Justice System: The New Juvenile — Criminal System of Determinate Sentencing For The Youthful Violent Offender In Texas, 19 St. Mary’s LJ. 943 (1988).