TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 46,933, HONORABLE OLIVER KELLEY, JUDGE PRESIDING
A juvenile court's order waiving its jurisdiction and transferring jurisdiction to the district court for criminal proceedings may now be appealed "only in conjunction with the appeal of a conviction of the offense for which the defendant was transferred to criminal court." Tex. Code Crim. Proc. Ann. art. 44.47(b) (West Supp. 1998); see Matter of D. D., 938 S.W.2d 172 (Tex. App.--Fort Worth 1996, no writ).
Appellant challenges the factual sufficiency of the evidence to support the juvenile court's finding that a criminal proceeding was required "because of the seriousness of the offense, the background of the juvenile-respondent, and the welfare of the community." Appellant argues that when all the evidence in support of and contrary to the challenged finding is considered, the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust.
The State first contends that appellant waived his right to appeal the juvenile court's transfer order when he pled guilty before the jury in district court with no plea agreement or recommendation from the State. The State argues that it "is well settled under what is commonly known as the Helms rule, that a voluntary and understanding plea of guilty or nolo contendere waives all non-jurisdictional defects that occurred prior to entry of the plea." The State acknowledges that it was unable to locate direct authority for its contention and suggests that this case presents a question of first impression involving a juvenile. We decline consideration of the State's waiver contention because the Court of Criminal Appeals has now cast doubt on the "well settled Helms rule" by granting a petition for discretionary review to "reconsider the decision in Helms v. State, [484 S.W.2d 925 (Tex. Crim. App. 1975)]." See Young v. State, 940 S.W.2d 680 (Tex. App.--Beaumont 1996, pet. granted February 12, 1997). Alternatively, the State urges that the evidence is factually sufficient to support the juvenile court's order. We agree.
In reviewing a juvenile court's transfer order, "absent a showing of abuse of discretion we will not disturb the juvenile court's findings." Matter of C. C., 930 S.W.2d 929, 933 (Tex. App.--Austin 1996, no writ). "When reviewing the factual sufficiency of the evidence supporting a finding, we must consider and weigh all the evidence in support of and contrary to the findings." Id. "We will uphold the contested findings unless we find the evidence is too weak to support them, or they are so against the overwhelming weight of the evidence that they are manifestly unjust." Id.
A juvenile court may waive its exclusive original jurisdiction and transfer a child to district court for criminal proceedings if (1) the State alleges that the child committed a first degree felony, (2) the offense alleged was committed by the child when fourteen years of age or older, (3) no court has conducted an adjudication hearing concerning that offense, and (4) after a full investigation and hearing the juvenile court finds probable cause to believe the child committed the alleged offense and that because of the crime's seriousness or the child's background, the community's welfare requires criminal proceedings. See Tex. Fam. Code Ann. § 54.02(a) (West 1996). In making the required determination, the court shall consider among other matters: (1) whether the alleged offense was against a person or property, with greater weight in favor of transfer given to offenses against the person, (2) the sophistication and maturity of the child, (3) the record and previous history of the child, and (4) the prospects of adequate protection of the public by use of procedures, services, and facilities currently available to the juvenile court. See id. § 54.02(f) (West 1996).
The record of the hearing in the juvenile court to determine whether appellant should be retained in the juvenile system or be transferred to district court for trial shows a full investigation and evaluation of appellant, the circumstances of the alleged offense and the available facilities for treatment and rehabilitation in the juvenile system. Appellant's confession and other evidence revealed that appellant and his mother, the murder victim, engaged in a heated argument triggered by a telephone call from one of appellant's friends. After she answered the telephone, the victim accused appellant of being a gang member. Appellant knocked his mother down. She crawled from the living room into the garage. Appellant took a butcher knife with an eight inch blade and followed his mother into the garage. He stabbed her in the back twice, inflicting deep wounds that caused her death. Without summoning medical aid for his mother, appellant washed the blood from the knife and left the house taking the knife with him. Some distance from the house, appellant threw the knife into a storm drain where it was later found by a police officer. The victim told neighbors that appellant had wounded her. She died soon after being admitted to a hospital.
Although appellant's history in the juvenile system was not extensive, there was some evidence appellant had engaged in criminal activities. He admitted his participation in the burglary of a habitation and shop-lifting offenses. Appellant and his mother had had prior arguments and altercations; on one occasion he had thrown a knife at her. The victim played bingo almost every night and slept until late every morning. Appellant prepared his own food and washed his clothes. He thought his mother had neglected him and favored his older sister. Appellant's father died before appellant was born, and appellant had problems with the man with whom his mother was living. Appellant told a psychiatrist that "life in the Detention Center was an improvement over his home life."
Appellant finished the eighth grade and was attending ninth grade classes. In the current school year, appellant had no disciplinary problems and his attendance and record in R.O.T.C. class were good. School records showed his performance in mathematics was quite good but he had poor grades in english, history, and reading.
Richard Edmunds Coons, a psychiatrist, was appointed by the juvenile court judge to make a psychiatric evaluation of appellant. Dr. Coons concluded that:
It is my opinion that although John Eugenio Quinones likely suffered from mild depression at the time of his offense that level of depression would not exclude his responsibility for the alleged delinquent conduct in that John Eugenio Quinones (a) did not lack substantial capacity to appreciate the wrongfulness of his conduct, and (b) did not lack substantial capacity to conform his conduct to the requirements of the law.
John Eugenio Quinones does not have a mental disease or defect which precludes his fitness to proceed in this cause at this time in that he does not lack capacity to understand the proceedings in the juvenile court and does not lack capacity to assist in his own defense.
John Eugenio Quinones has an adequate understanding of the functions of judge, jury, defense attorney, and prosecutor. He also has an understanding of the transfer procedure and the potential outcome if he were tried as an adult.
Frank Anthony Pugliese, a psychologist, also evaluated appellant. In a clinical interview, Dr. Pugliese administered various intelligence and personality tests and found appellant's "score of 96 . . . consistent with the average range of intellectual functioning." He also found appellant had "the sophistication of an average fifteen-year-old" and concluded that:
John is a fifteen year old male who admitted to stabbing his mother twice during an argument about his suspected involvement in a gang. The evaluation revealed a youngster who had a very strained relationship with his mother for an extended period of time and has felt neglected, abused, and ignored. He has felt much anger and resentment towards his mother for her seemingly callous and insensitive attitude and claimed she often instigated conflicts with him and prompted him to react in an oppositional manner. It is apparent John is a very moody, volatile, and easily frustrated individual who feels very insecure and inadequate and has many conflicts related to his acceptability to others. He is, nonetheless, likely to be quite rebellious towards authority figures and lacks the impulse control essential to prevent him from behaving in a self-defeating manner. Although there are no indications John is actively suicidal at this time, he should be monitored closely throughout his stay at the detention center and trial since he can be very unpredictable. I also suggest he obtain some counseling to strengthen his coping skills and to help him confront the reality of what he has done.
Appellant offered extensive evidence concerning the Texas Youth Commission's Capital Offender Treatment Program and evidence that he "qualified completely" to participate in the program. However, there was "no guarantee" that he would be accepted for that program.
Katherine Mehl, a neighbor of the victim and appellant, testified that she had known appellant for fourteen years. Appellant attended school with Mehl's grandson and had been in Mehl's house many times. Mehl had also observed appellant at St. Joseph's Catholic Church where both families attended. She would not have believed appellant capable of committing the crime of which he was accused. Mehl believed appellant could be rehabilitated and testified she would be willing to take appellant into her own home. She wanted appellant kept in the juvenile system and did not want him tried as an adult criminal.
David Curtis, appellant's godfather, a retired sergeant first class, testified that he and his wife, Kim, had known appellant since his birth. Curtis felt "it would be better for society to salvage this boy" and he wanted appellant placed in a youth program where he could be rehabilitated. Kim Curtis testified that she thought appellant had lived in an unhappy household. She supported appellant's retention in the juvenile system rather than his transfer to district court for a criminal trial.
Father Charles Van Winkle was on sabbatical leave from St. Joseph's Catholic Church and a letter he had written was admitted in evidence. Father Van Winkle had been the parish priest at St. Joseph's for nine years. During that time, he knew the victim, appellant, and appellant's sister, as they were parish members. Father Van Winkle alluded to appellant's growing up without a father and a conflict between appellant and the man with whom his mother was living. Father Van Winkle said appellant's mother had been strict with appellant's religious upbringing, but she herself had not followed the strict principles she expected appellant to follow. Father Van Winkle said there were other "extenuating circumstances" and "plead with the court that John be tried as the juvenile he is and not as an adult."
We observe that "[t]he trial judge is free to decide to transfer the case due to the seriousness of the crime, even if the background of the child suggests the opposite." C. M. v. State, 884 S.W.2d 562, 564 (Tex. App.--San Antonio 1994, no writ); see Matter of M. A., 935 S.W.2d 891, 895-97 (Tex. App.--San Antonio 1996, no writ). "[T]he trial court did not abuse its discretion by waiving jurisdiction by finding the community's welfare required transfer because of the crimes seriousness alone." Matter of K. B. H., 913 S.W.2d 684, 688 (Tex. App.--Texarkana 1995, no writ). Appellant's remorseless, vicious attack upon his mother causing her death was so serious as to justify the juvenile court's transfer of jurisdiction. See Tex. Fam. Code Ann. § 54.02(a)(3) (West 1996). After reviewing all of the evidence, we conclude that the juvenile court's order waiving jurisdiction and transferring the cause to the district court for criminal proceedings is not so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). The evidence is factually sufficient to support the juvenile court's order. The juvenile court did not abuse its discretion in ordering the transfer of the cause to the district court. Appellant's first point of error is overruled.
In his second point of error, appellant alleges that the "trial court erred in overruling defense counsel's objections to questions suggesting that if defendant violated his probated sentence [community supervision] and was sentenced to ten years, he would walk out of prison at age 21." Appellant had timely filed a motion requesting that he be granted community supervision. The jury was appropriately charged, but refused to grant appellant community supervision and assessed punishment of more than ten years imprisonment, precluding community supervision. In his effort to gain the jury's consideration of community supervision, appellant offered the testimony of Adult Probation Officer Edward R. Bonds. He testified:
Q. And isn't it also true that if Mr. Quinones was sent to Boys Town and he rebelled against the authority and discipline or he didn't meet the terms or conditions of what they demanded, he would be sent back as a violator of his probation.
A. Yes, sir.
Q. [Appellants attorney]: No other questions, Your Honor.
RECROSS-EXAMINATION QUESTIONS BY [PROSECUTOR:]
Q. And if that happened and he had been sentenced to the ten-year sentence, at the age of 21, he would walk out of the prison -- arguably be eligible to walk out of the prison a free --
MR. LEE: Objection, Your Honor. That calls for speculation. We don't know how the --
THE COURT: Overruled.
Q. Arguably, if he went up there and he rebelled and he was brought back here and violated and the Court sentenced him to ten years in the penitentiary, at the age of 20 or 21, he would be eligible for parole and walking the streets with little to no one over-looking his shoulder?
A. It's my assumption that is true. However, I am not that detailed on juvenile probation, sir.
Q. All right. Well, this wouldn't be juvenile probation.
A. I understand that. But I haven't got down to figuring it that close.
"[I]t is well settled that an error in admission of evidence is cured where the same evidence comes in without objection; defense counsel must object every time allegedly inadmissible evidence is offered." Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); see Tex. R. Crim. Evid. 103(a)(l); Tex. R. App. P. 33.1; Rodriguez v. State, 955 S.W.2d 171, 175 (Tex. App.--Amarillo 1997, no pet).
Assuming without deciding that the asking of the alleged objectionable question was error, the error was not preserved for appellate review. The objection was not specific. The question to which counsel objected was not answered and when the question was restated there was no objection to the question or the answer. Moreover, the result of a violation of the terms of probation, if probation were granted, was first raised by appellant. Appellant's second point of error is overruled.
The juvenile court's order transferring jurisdiction to the district court is affirmed. The district court's judgment of conviction is affirmed.
Carl E. F. Dally, Justice
Before Justices Kidd, B. A. Smith and Dally*
Affirmed
Filed: April 9, 1998
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
WP="BR1">
Q. And isn't it also true that if Mr. Quinones was sent to Boys Town and he rebelled against the authority and discipline or he didn't meet the terms or conditions of what they demanded, he would be sent back as a violator of his probation.
A. Yes, sir.
Q. [Appellants attorney]: No other questions, Your Honor.
RECROSS-EXAMINATION QUESTIONS BY [PROSECUTOR:]
Q. And if that happened and he had been sentenced to the ten-year sentence, at the age of 21, he would walk out of the prison -- arguably be eligible to walk out of the prison a free --
MR. LEE: Objection, Your Honor. That calls for speculation. We don't know how the --
THE COURT: Overruled.
Q. Arguably, if he went up there and he rebelled and he was brought back here and violated and the Court sentenced him to ten years in the penitentiary, at the age of 20 or 21, he would be eligible for parole and walking the streets with little to no one over-looking his shoulder?
A. It's my assumption that is true. However, I am not that detailed on juvenile probation, sir.
Q. All right. Well, this wouldn't be juvenile probation.
A. I understand that. But I haven't got down to figuring it that close.
"[I]t is well settled that an error in