Kendall Bell v. State

Opinion issued June 28, 2018

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00510-CR
———————————
KENDALL BELL, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1394740

OPINION

When Kendall Bell was 16, the State filed a petition in a Harris County

juvenile court alleging that he had engaged in delinquent conduct by committing

aggravated robbery with a deadly weapon. On the State’s motion, the juvenile court

concluded that, because of the seriousness of Bell’s offense, the welfare of the
community required criminal proceedings. The juvenile court waived its jurisdiction

and transferred the case to criminal district court, where Bell pleaded guilty without

an agreed recommendation. The criminal district court deferred a finding of guilt

and placed him on community supervision for six years. The State later moved to

adjudicate, alleging that Bell had violated the terms of his supervision. Following a

hearing, the district court granted the motion, found Bell guilty of aggravated

robbery, and sentenced him to 20 years’ imprisonment.

On appeal, Bell contended that, under Moon v. State, 451 S.W.3d 28 (Tex.

Crim. App. 2014), the juvenile court abused its discretion by waiving jurisdiction

without making sufficient case-specific findings supporting its conclusion that the

welfare of the community required criminal proceedings. Our Court agreed that the

juvenile court did not provide sufficient case-specific findings, vacated the district

court’s judgment, dismissed the criminal case, and remanded to the juvenile court

for further proceedings.

The State filed a petition with the Court of Criminal Appeals, arguing for the

first time that this Court lacked jurisdiction to hear Bell’s complaint because he did

not contest the juvenile transfer when the trial court entered its order of deferred

adjudication. The Court of Criminal Appeals remanded the case so that we could

consider the jurisdictional issue in the first instance. Bell v. State, 515 S.W.3d 900,

901 (Tex. Crim. App. 2017) (per curiam).

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 We conclude that we have jurisdiction to hear Bell’s complaint. The Court of

Criminal Appeals refused with prejudice the State’s petition for discretionary review

as to the remaining issues in the case. See id. We therefore adopt this court’s prior

opinion, Bell v. State, 512 S.W.3d 553 (Tex. App.—Houston [1st Dist.] 2016),

vacated on other grounds, 515 S.W.3d 900 (Tex. Crim. App. 2017).

Background

Juvenile court’s waiver of jurisdiction

The State asked the juvenile court to waive jurisdiction. At the hearing on the

State’s motion, the juvenile court admitted three exhibits: proof that Bell had been

served, a stipulation of Bell’s birth date, and a probation report. The juvenile court

also heard testimony from three witnesses, including Deputy A. Alanis of the Harris

County Sheriff’s Office.

After the hearing, the juvenile court waived jurisdiction and transferred the

case to the criminal district court. The juvenile court concluded that, because of the

seriousness of Bell’s offense, the welfare of the community required criminal

proceedings.

Proceedings in the criminal district court

In the criminal district court, Bell pleaded guilty without an agreed

recommendation. The court entered an order of deferred adjudication, deferred a

finding of guilt, and placed Bell on community supervision for six years. The State

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later moved to adjudicate, alleging that Bell had violated the terms of his

supervision. In May 2015, the district court granted the motion, found Bell guilty of

aggravated robbery, and sentenced Bell to 20 years’ imprisonment. Bell appealed.

Jurisdiction

We consider the State’s new argument that this Court lacks jurisdiction to hear

Bell’s complaint about the juvenile transfer because he did not raise his challenge

when trial court entered its order of deferred adjudication.

A. Standard of Review

Jurisdiction is an absolute, systemic requirement that operates independently

of preservation of error requirements. Henson v. State, 407 S.W.3d 764, 768 (Tex.

Crim. App. 2013). Whether we have jurisdiction is a question of law that we review

de novo.

We also review issues of statutory construction de novo. Cary v. State, 507

S.W.3d 750, 756 (Tex. Crim. App. 2016). In interpreting statutes, the text is

paramount. People reading a statute and attempting to follow it know only what the

statute actually says. We thus focus our analysis on the plain text of the statute and

“attempt to discern the fair, objective meaning of that text at the time of its

enactment.” Prichard v. State, 533 S.W.3d 315, 319 (Tex. Crim. App. 2017)

(quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). In

determining the plain meaning of a statute, courts read words and phrases in context

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and construe them according to the rules of grammar and common usage. Id. (citing

Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014)).

B. Analysis

Bell’s appeal of the juvenile court’s transfer order is governed by now-

repealed article 44.47 of the Code of Criminal Procedure.1 Article 44.47 provided in

relevant part:

(a) A defendant may appeal an order of a juvenile court certifying the
defendant to stand trial as an adult and transferring the defendant to a
criminal court under Section 54.02, Family Code.
(b) A defendant may appeal a transfer under Subsection (a) only in
conjunction with the appeal of a conviction of or an order of deferred
adjudication for the offense for which the defendant was transferred to
criminal court.
Act of May 27, 1995, 74th Leg., R.S., ch. 262, §85, 1995 TEX. GEN. LAWS 2517,

2584 (adding TEX. CODE CRIM. PROC. art. 44.47), amended by Act of June 2, 2003,

78th Leg., R.S., ch. 283, §30, 2003 TEX. GEN. LAWS 1221, 1234–35 (amending TEX.

CODE CRIM. PROC. ANN. art. 44.47(b)) (hereinafter “TEX. CODE CRIM. PROC. art.

44.47”).

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The Legislature repealed article 44.47 of the Code of Criminal Procedure effective
September 1, 2015, but it stated that “[a]n order of a juvenile court waiving
jurisdiction and transferring a child to criminal court that is issued before the
effective date of this Act is governed by the law in effect on the date the order was
issued[.]” Act of May 12, 2015, 84th Leg., R.S., ch. 74, §§ 4–6, 2015 TEX. GEN.
LAWS 1065, 1066. Bell’s transfer order (dated July 11, 2013) was issued before
September 1, 2015.
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 Article 44.47 is straightforward. It provides that a defendant may, as here,

appeal a transfer from juvenile court “in conjunction with the appeal of a conviction

. . . or an order of deferred adjudication . . . .” Id. The statute uses the disjunctive

“or.” Its plain meaning, therefore, is that a defendant transferred to adult court may

appeal the transfer when appealing either a conviction or an order of deferred

adjudication. Because Bell appealed the transfer when appealing his conviction, we

have jurisdiction over the appeal.

The State challenges our jurisdiction, contending that Bell should have

attacked the transfer order in an appeal from his 2013 order of deferred adjudication.

According to the State, because Bell did not do so—and instead waited to attack the

transfer order on appeal from his conviction—he waived his right to challenge the

transfer order.

The statute does not support the State’s argument. The statute simply states

that a defendant may challenge a juvenile transfer on appeal from a conviction or an

order of deferred adjudication. It does not require a defendant to challenge the

transfer at the first opportunity—on the earlier of a conviction or deferred

adjudication. Nor does the statute otherwise limit one’s ability to challenge a transfer

order on appeal from a conviction. It provides, without limitation, two options for

when one can challenge a juvenile transfer.

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 The State points us to Eyhorn v. State, 378 S.W.3d 507 (Tex. App.—Amarillo

2012, no pet.), where the Amarillo Court of Appeals concluded that the appellant

waived his right to challenge the juvenile transfer by not appealing his order of

deferred adjudication and instead challenging the juvenile transfer later, on appeal

from his conviction. That case is not binding on us, and we are unpersuaded by its

reasoning. There, the court noted the general, well-established rule in criminal cases

that non-jurisdictional complaints that arise before an order of deferred adjudication

must be raised on appeal of that order or are waived. Id. at 509–10. The Eyhorn court

then stated, “We see no logical reason why art. 44.47(b) should be read as jettisoning

that rule simply because the accused was initially subject to being tried as a

juvenile.” Id. at 510. We respectfully disagree in light of the statutory text. Article

44.47 gives a defendant the right to challenge a transfer on appeal of a conviction

“or” an order of deferred adjudication. TEX. CODE CRIM. PROC. art. 44.47(b). The

statute could have limited the ability to appeal in conformance with this background

principle. But the Legislature did not do so.2

2
For the same reasons, we are unpersuaded by Felix v. State, No. 09-14-00363-CR,
2016 WL 1468931, at *1 (Tex. App.—Beaumont Apr. 13, 2016, pet. ref’d) (mem.
op., not designated for publication), and Wells v. State, Nos. 12-17-00003-CR, 12-
17-00004-CR, 2017 WL 3405317, at *2 (Tex. App.—Tyler Aug. 9, 2017, no pet.)
(mem. op., not designated for publication), which followed Eyhorn’s reasoning.

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 We also reject the argument that this case is governed by article 4.18 of the

Code of Criminal Procedure, which imposes a procedural requirement that was not

met in this case. By its own terms, article 4.18 does not apply “to a claim of a defect

or error in a discretionary transfer proceeding in juvenile court.” TEX. CODE CRIM.

PROC. art. 4.18(g); see also ROBERT O. DAWSON, TEXAS JUVENILE LAW, 534 (Nydia

D. Thomas et al. eds., 8th ed. 2012).

Moreover, article 4.18(a) is expressly limited in its application. It provides:

A claim that a district court or criminal district court does not have
jurisdiction over a person because jurisdiction is exclusively in the
juvenile court and that the juvenile court could not waive
jurisdiction under Section 8.07(a), Penal Code, or did not waive
jurisdiction under Section 8.07(b), Penal Code, must be made by
written motion in bar of prosecution filed with the court in which
criminal charges against the person are filed.

TEX. CODE CRIM. PROC. art. 4.18(a) (emphasis added). In simple terms, article 4.18

applies in only two scenarios: (1) when a party asserts that the district court lacks

jurisdiction because the juvenile court could not waive jurisdiction because the

defendant was under 15 (and the case did not involve certain enumerated offenses)

(8.07(a)), or (2) when the party asserts that the district court lacks jurisdiction

because the juvenile court did not waive jurisdiction and the person is under 17

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(8.07(b)). TEX. PENAL CODE ANN. § 8.07(a), (b).3 This case presents neither of those

scenarios.

Bell makes no argument that the district court lacks jurisdiction because the

juvenile court could not waive jurisdiction under Penal Code section 8.07(a). And

he makes no argument that the juvenile court did not waive jurisdiction under Penal

Code section 8.07(b). See TEX. CODE CRIM. PROC. art. 4.18(a). Indeed, Bell does not

argue that he was under 15 and thus could not be tried as an adult or that he was

under 17 and no juvenile court waived jurisdiction over him 4—the challenges

contemplated by the plain terms of article 4.18. See id.

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Section 8.07 of the Penal Code states that (a) “[a] person may not be prosecuted for
or convicted of any offense that the person committed when younger than 15 years
of age except” for certain offenses and that, (b) “[u]nless the juvenile court waives
jurisdiction under Section 54.02, Family Code . . . a person may not be prosecuted
for or convicted of any offense committed before reaching 17 years of age except
an offense described by Subsections (a)(1)–(5).”
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Cf. Cordary v. State, 596 S.W.2d 889, 891 (Tex. Crim. App. [Panel Op.] 1980)
(“[A]s appellant was never transferred from the juvenile court to the district court
as required by Article 2338-1, Section 6 and Article 30, V.A.P.C., she was never
made subject to the jurisdiction of the district court.”); Ex parte Trahan, 591 S.W.2d
837, 842 (Tex. Crim. App. 1979) (“He was indicted on January 13, 1969, at age 16,
without being transferred from the juvenile court or provided with an examining
trial. . . . The transfer procedure was not followed in this case, and the district court
never obtained jurisdiction.”); Reyes v. State, No. 01-98-00507-CR, 1999 WL
182579, at *1 (Tex. App.—Houston [1st Dist.] Apr. 1, 1999, no pet.) (not designated
for publication) (rejecting challenge under 8.07(b) because, as the record reflects,
the juvenile court did waive jurisdiction and transferred appellant to the district
court).
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 To the contrary, Bell is arguing that the juvenile court waived jurisdiction but

abused its discretion by doing so and transferring the case to district court without

making adequate case-specific findings in the transfer order. On these facts, article

4.18’s plain terms render it inapplicable. See id.; see also Delacerda v. State, 425

S.W.3d 367, 379 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (article 4.18 did

not apply where defendant did not raise challenge based on Texas Penal Code section

8.07(a) or (b)).5

By contrast, article 44.47 expressly applies to an “appeal [of] an order of a

juvenile court certifying the defendant to stand trial as an adult and transferring the

defendant to a criminal court under Section 54.02, Family Code.” TEX. CODE CRIM.

PROC. art. 44.47(a). That is what we face here.

Article 44.47 controls and gives us jurisdiction to hear Bell’s challenge.

Conclusion

We conclude that our Court possesses jurisdiction over this case. As to the

remaining issues at stake, we adopt this court’s prior opinion, available at Bell v.

5
See also Ex parte Waggoner, 61 S.W.3d 429, 431 n.2, 432 (Tex. Crim. App. 2001)
(referencing Light v. State, 993 S.W.2d 740, 747 (Tex. App.—Austin 1999), vacated
on other grounds, 15 S.W.3d 104 (Tex. Crim. App. 2000) (per curiam), for “further
discussion” of the statutory scheme); Light, 993 S.W.2d at 747 (“A careful reading
shows that article 4.18 is expressly limited to situations where the juvenile court
could not waive jurisdiction under section 8.07(a) of the Penal Code or did not waive
jurisdiction under section 8.07(b) of the Penal Code . . . .”).

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State, 512 S.W.3d 553 (Tex. App.—Houston [1st Dist.] 2016), vacated on other

grounds, 515 S.W.3d 900 (Tex. Crim. App. 2017).

Jennifer Caughey
Justice

Panel consists of Justices Keyes, Brown, and Caughey.

Publish. TEX. R. APP. P. 47.2(b).

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