Kendall Bell v. State

Opinion issued November 27, 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

*
We issued our original opinion in this case on June 28, 2018. The State filed a
motion for en banc reconsideration. The unanimous court has voted to deny the
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, 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

motion for en banc reconsideration. We nevertheless withdraw the opinion of June
28, 2018, and we issue this opinion in its stead. The disposition remains the same.
2
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

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

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).

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.

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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

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 the 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, 767–68

(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. We 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

4
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)).

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, “Appeal of transfer from

juvenile court.”

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.1

Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 85, 1995 Tex. Gen. Laws 2577,

2584 (adding former 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. art. 44.47(b)) (hereinafter “TEX. CODE CRIM. PROC. art.

44.47”).

1
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.
5
 Article 44.47 is straightforward. It applies to an appeal of a transfer from

juvenile court. And 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 defendant

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 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 his 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
We are likewise 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, No. 12-17-00003-CR, 2017 WL
3405317, at *2 (Tex. App.—Tyler Aug. 9, 2017) (mem. op., not designated for
publication), which followed Eyhorn’s reasoning.

7
 For the same reasons, we reject the State’s contention that this case is

governed by Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999).

Manuel established the background rule (not specific to juvenile transfers)

concerning appeals of deferred adjudications, stating: “a defendant placed on

deferred adjudication community supervision may raise issues relating to the

original plea proceeding, such as evidentiary sufficiency, only in appeals taken when

deferred adjudication community supervision is first imposed.” Id. This is the

background rule on which Eyhorn relied. And this background rule would apply in

the absence of a statute providing to the contrary. But here, article 44.47—entitled

“Appeal of transfer from juvenile court”—expressly and specifically addresses when

one can appeal a transfer to criminal court from juvenile court, and it says the

defendant can appeal the transfer with either his conviction or deferred adjudication.

The statute’s terms are clear and make no exception for this background rule. To

read the statute to comport with the background rule (and to thus require a defendant

to appeal upon deferred adjudication, not conviction) would require us to rewrite this

specifically-applicable statute. We can do no such thing. See, e.g., Vandyke v. State,

538 S.W.3d 561, 569 (Tex. Crim. App. 2017).

We also disagree with the argument that this case is governed by article 4.18

of the Code of Criminal Procedure (“Claim of underage”), which imposes a

procedural requirement that was not met in this case. By its own terms, article 4.18

8
expressly excludes from its application “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, when article 4.18 does apply (when one is not alleging a defect or

error in a discretionary transfer proceeding), its application is limited. 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 offenses not at issue

here) (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

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

scenarios.

3
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
9
 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 him4—the challenges

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

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).”
4
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 . . . 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 . . . .”); Reyes v. State, No. 01-98-
00507-CR, 1999 WL 182579, at *1 (Tex. App.—Houston [1st Dist.] Apr. 1, 1999,
no pet.) (mem. op.; not designated for publication) (rejecting challenge under
8.07(b) because the juvenile court did waive jurisdiction).

The State points us to Mays v. State, No. 01-03-01345-CR, 2005 WL 1189676, at
*1 (Tex. App.—Houston [1st Dist.] May 19, 2005, no pet.) (mem. op.; not
designated for publication). But article 4.18 squarely applied there. In Mays, a
juvenile court waived jurisdiction in one cause number, the criminal court assumed
jurisdiction over Mays in a different cause number, and Mays argued, with regard
to the case in adult court, that no juvenile court waived jurisdiction over him in that
cause number. Id.; cf. Delacerda, 425 S.W.3d at 379–80 (“[W]hen a defendant
challenges the district court’s jurisdiction due to an allegedly defective order
assuming jurisdiction the defendant need not object via written motion [under article
4.18] before jury selection begins to preserve his complaint for appellate review.”).

10
 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. 4.18(a), (g); 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

Unlike article 4.18, which excludes from its application claims of defects or

errors in transfer proceedings, 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.

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

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), 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 . . . .”), vacated on other
grounds, 15 S.W.3d 104 (Tex. Crim. App. 2000) (per curiam).
11
 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.

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

Jennifer Caughey
Justice

Panel consists of Justices Keyes, Brown, and Caughey.

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

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