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No. _______
In the
Texas Court of Criminal Appeals At Austin
No. 01-15-00510-CR In the Court of Appeals for the
First District of Texas
at Houston
KENDALL BELL Appellant
V.
THE STATE OF TEXAS Appellee
STATE’S PETITION FOR DISCRETIONARY REVIEW
KIM OGG District Attorney
Harris County, Texas
JESSICA CAIRD Assistant District Attorney
Harris County, Texas
Texas Bar No. 24000608
Harris County Criminal Justice Center
500 Jefferson, 6th Floor
Houston, Texas 77002
Tel.: (713) 274-5826
FAX No.: (832) 927-0180 Counsel for Appellee
ORAL ARGUMENT REQUESTED
PD-1383-18COURT OF CRIMINAL APPEALS
AUSTIN, TEXASTransmitted 12/20/2018 8:12 AM
Accepted 12/21/2018 2:03 PMDEANA WILLIAMSON
CLERK
FILEDCOURT OF CRIMINAL APPEALS 12/21/2018 DEANA WILLIAMSON, CLERK
STATEMENT REGARDING ORAL ARGUMENT
In the event this Honorable Court grants the State’s petition for discretionary
review, the State respectfully requests oral argument. The First Court of Appeals’
opinion appears to conflict with applicable law from this Court, and thus creates
questions regarding appellate jurisdiction in relation to juvenile certification
proceedings, procedural default for a failure to timely raise claims, and the
application of Texas Code of Criminal Procedure Article 4.18 to jurisdictional
claims made for the first time on appeal. Oral argument would facilitate a just
resolution to this matter; and therefore, the State respectfully requests that this
Court grant the parties the opportunity to present oral argument.1
1 See TEX. R. APP. P. 68.4(c).
ii
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list
of the names of all interested parties is provided below:
Counsel for the State:
Kim OggDistrict Attorney of Harris County
Stacey M. Soule—State’s Prosecuting Attorney
Jessica CairdAssistant District Attorney on appeal
Janna OswaldAssistant District Attorney at trial
Appellant or criminal defendant:
Kendall Bell
Counsel for Appellant:
Cheri DuncanAttorney on appeal
Anthony Tornal SimmonsAttorney at trial
Trial Judge:
Honorable Jim WallaceJudge Presiding
iii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ...................................................... i
IDENTIFICATION OF THE PARTIES............................................................................ ii
TABLE OF CONTENTS .....................................................................................................iii
INDEX OF AUTHORITIES ............................................................................................... v
STATEMENT OF THE CASE .......................................................................................... 1
STATEMENT OF THE PROCEDURAL HISTORY ................................................... 2
STATE’S GROUNDS FOR REVIEW ............................................................................. 4
1. May appellant mount a jurisdictional attack on the
certification order without having filed a timely motion in
bar of prosecution as required by Texas Code of Criminal
Procedure Article 4.18?
2. Does Manuel v. State and its progeny apply to Texas Code of
Criminal Procedure Article 44.47 to procedurally default
appellant from raising claims upon revocation that he could
have pursued on appeal from the order of deferred
adjudication?
REASONS FOR GRANTING REVIEW ......................................................................... 4
STATEMENT OF FACTS .................................................................................................. 6
I. The juvenile proceedings ................................................................................ 6
II. The criminal court proceedings ......................................................................... 7
III. The appellate court proceedings ...................................................................... 8
STATE’S FIRST GROUND FOR REVIEW .................................................................. 9
iv
STATE’S SECOND GROUND FOR REVIEW ........................................................... 14
PRAYER ............................................................................................................................... 20
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE...................... 1
APPENDIX A ........................................................................................................................ 1
v
INDEX OF AUTHORITIES
CASES
Bell v. State,
512 S.W.3d 553 (Tex. App.—Houston
[1st Dist.] 2016), pet. granted, judgment vacated,
515 S.W.3d 900 (Tex. Crim. App. 2017). ..................................................... 2, 3, 9
Bell v. State,
515 S.W.3d 900 (Tex. Crim. App. 2017) ............................................................... 2
Bell v. State,
No. 01-15-00510-CR, __ S.W.3d __ (Tex. App.-Houston
[1st Dist.] Nov. 27, 2018, pet. filed). ................................................ 3, 4, 5, 10, 15
Daniels v. State,
30 S.W.3d 407 (Tex. Crim. App. 2000) ................................................................. 5
Davis v. State,
195 S.W.3d 708 (Tex. Crim. App. 2006) ............................................................... 5
Ex parte Seidel,
39 S.W.3d 221 (Tex. Crim. App. 2001) .............................................................11
Ex parte Spaulding,
687 S.W.2d 741 (Tex. Crim. App. 1985) ...................................................... 11, 12
Eyhorn v. State,
378 S.W.3d 507 (Tex. App.—Amarillo 2012, no pet.)....................... 4, 13, 14, 19
Felix v. State,
No. 09-14-00363-CR,
2016 WL 1468931 (Tex. App.—Beaumont Apr. 13, 2016, pet. ref’d)
(not designated for publication) ................................................................ 5, 13, 14
Guerrero v. State,
471 S.W.3d 1 (Tex. App.-Houston
[14th Dist.] 2014, no pet.) ..................................................................................8, 9
vi
Manuel v. State,
994 S.W.2d 658 (Tex. Crim. App. 1999) ................................ 5, 15, 16, 18, 19, 20
Marin v. State,
851 S.W.2d 275 (Tex. Crim. App. 1993) .............................................................13
Moon v. State,
451 S.W.3d 28 (Tex. Crim. App. 2014) ........................................................ 1, 8, 9
Olivo v. State,
918 S.W.2d 519 (Tex. Crim. App. 1996) ...................................................... 16, 20
Perez v. State,
424 S.W.3d 81 (Tex. Crim. App. 2014) .......................................... 5, 6, 16, 18, 20
Riles v. State,
452 S.W.3d 333 (Tex. Crim. App. 2015) .........................................................5, 19
Rushing v. State,
85 S.W.3d 286 (Tex. Crim. App. 2002) ........................................................ 13, 14
Wells v. State,
No. 12-17-00003-CR,
2017 WL 3405317 (Tex. App.—Tyler Aug. 9, 2017, no pet.)
(not designated for publication) .......................................................................5, 14
Wiley v. State,
410 S.W.3d 313 (Tex. Crim. App. 2013) ............................................ 6, 16, 19, 20
vii
STATUTES
Tex. Code Crim. Proc. Ann. art. 4.18
(West 2013) ............................................................................... 4, 9, 10, 11, 12, 14
Tex. Code Crim. Proc. Ann. art. 42.12, §21
(West 2013) ................................................................................................... 17, 19
Tex. Code Crim. Proc. Ann. art. 42.12, §23
(West 2013) ................................................................................................... 17, 19
Tex. Code Crim. Proc. Ann. art. 42.12, §5
(West 2013) ............................................................................................. 17, 18, 19
Tex. Code Crim. Proc. Ann. art. 44.02
(West 2013) ..........................................................................................................16
Tex. Code Crim. Proc. Ann. art. 44.47
(West 2013) ................................................................................................. 3, 7, 20
Tex. Fam. Code Ann. §54.02
(West 2013) ............................................................................................. 10, 12, 19
Tex. Penal Code Ann. §8.07
(West 2013) ......................................................................................................9, 12
OTHER AUTHORITIES
APPEAL OF WAIVER OF JURISDICTION AND TRANSFER TO CRIMINAL COURT IN
JUVENILE CASES, 2015 Tex. Sess. Law Serv. Ch. 74 (S.B. 888)
(Vernon’s) .............................................................................................................. 7
CONTINUATION AND FUNCTIONS OF THE TEXAS BOARD OF CRIMINAL JUSTICE, THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, AND THE CORRECTIONAL MANAGED
HEALTH CARE COMMITTEE, AND TO THE FUNCTIONS OF THE BOARD OF
PARDONS AND PAROLES, 2007 Tex. Sess. Law Serv. Ch. 1308 (S.B. 909)
(Vernon’s) ............................................................................................................17
viii
RULES
Tex. R. App. P 68.2 .................................................................................................... 3
Tex. R. App. P. 25.2 .................................................................................................16
Tex. R. App. P. 26.2 .......................................................................................... 17, 18
Tex. R. App. P. 38.2(a)(1)(A) ................................................................................... ii
Tex. R. App. P. 66.3(a) ..........................................................................................4, 5
Tex. R. App. P. 66.3(b) ..........................................................................................4, 5
Tex. R. App. P. 66.3(c) .............................................................................................. 5
Tex. R. App. P. 66.3(f) ............................................................................................... 6
Tex. R. App. P. 68.4(c) .............................................................................................. i
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
A juvenile district court waived its exclusive, original jurisdiction on July
10, 2013, and transferred appellant’s aggravated robbery charge to criminal court.2
The State charged appellant by indictment with the felony offense of aggravated
robbery as a certified juvenile.3 The criminal court entered an order deferring
adjudication of appellant’s charge on July 18, 2013.4 On November 18, 2014, the
State filed a motion to adjudicate appellant’s guilt for two new law violations.5
The criminal court adjudicated appellant’s guilt on May 13, 2015, and sentenced
him to 20 years confinement.6 Appellant filed written notice of appeal the same
day.7 On appeal, appellant claimed that the juvenile court’s waiver order was void
on its face for a lack of case-specific factual findings under Moon v. State.8
2 (CR-11, 15). 3 (CR-11);
The appellate record consists of the following:
CR-Clerk’s Record;
RRI-RRIV-designates the Court Reporter’s Record from April 23, 2015 and May 13,
2015, prepared by Marci E. Barnett;
RRJI-RRJII-designates the Court Reporter’s Record from the 314th Juvenile District
Court’s discretionary waiver hearing conducted on July 10, 2013, prepared by
Julia Rangel. 4 (CR-17). 5 (CR-43). 6 (CR-117). 7 (CR-121). 8 (Appellant’s Original Brief filed on Nov. 11, 2015 at 2, 9) (citing Moon v. State, 451
S.W.3d 28 (Tex. Crim. App. 2014)).
2
STATEMENT OF THE PROCEDURAL HISTORY
On December 15, 2016, the First Court of Appeals issued a published
opinion in which it reversed the criminal court’s order of conviction and remanded
the matter to the juvenile court.9 The First Court maintained that appellant’s case
remained pending in the juvenile court since its inception because it never properly
transferred to the criminal court.10 It held that the juvenile court abused its
discretion by granting transfer to criminal court “[b]ecause the juvenile court’s
only ‘case-specific’ finding regarding the offense was that it was against the person
of another[,]” which listed the seriousness of the offense as the sole basis that
criminal proceedings were required.11
The State filed a petition for discretionary review contending that the First
Court erred when it addressed appellant’s claim regarding the juvenile proceedings
because he was required to mount the complaint from order of deferred
adjudication, not revocation and conviction.12 This Court granted the State’s
petition, vacated the Court of Appeals judgment, and remanded for that Court to
9Bell v. State, 512 S.W.3d 553, 560 (Tex. App.—Houston [1st Dist.] 2016), pet. granted,
judgment vacated, 515 S.W.3d 900 (Tex. Crim. App. 2017), reh’g denied (May 17,
2017), opinion adopted in part, No. 01-15-00510-CR, 2018 WL 6177292 (Tex.
App.—Houston [1st Dist.] Nov. 27, 2018) (hereinafter Bell I). 10 Id. 11 Id. 12 See Bell v. State, 515 S.W.3d 900, 901 (Tex. Crim. App. 2017)).
3
fully vet whether it had jurisdiction to address appellant’s claims about the juvenile
proceedings after revocation of community supervision in the criminal court.13
On June 28, 2018, the First Court of Appeals again reversed the trial court’s
judgment in a published opinion.14 The State timely moved for en banc
reconsideration, and although the Court denied the request, it reissued its opinion
on November 27, 2018.15 In the reissued opinion, the First Court of Appeals held
that it had jurisdiction over appellant’s claim regarding the error in the juvenile
proceeding.16 The Court then adopted the conclusions of the original opinion in
Bell I.17
The State now timely files its petition for discretionary review in accordance
with Texas Rule of Appellate Procedure 68.2(a).
13 Id. 14 Bell v. State, No. 01-15-00510-CR, __ S.W.3d __, slip op. at 1 (Tex. App.-Houston
[1st Dist.] Nov. 27, 2018, pet. filed) (hereinafter Bell II). 15 Id., slip op. at 1-2. 16 Id., slip op. at 5-6, 8 (citing Tex. Code Crim. Proc. Ann. art. 44.47 (West 2013)). 17 Id., slip op. at 12 (citing Bell I, 512 S.W.3d at 553-560).
4
STATE’S GROUNDS FOR REVIEW
1. May appellant mount a jurisdictional attack on the
certification order without having filed a timely motion in
bar of prosecution as required by Texas Code of Criminal
Procedure Article 4.18?
2. Does Manuel v. State and its progeny apply to Texas Code of
Criminal Procedure Article 44.47 to procedurally default
appellant from raising claims upon revocation that he could
have pursued on appeal from the order of deferred
adjudication?
REASONS FOR GRANTING REVIEW
Texas Rule of Appellate Procedure 66.3(a) and (b) apply to warrant this
Court’s granting discretionary review to assess whether the First Court of Appeals
erred when it failed to apply Texas Code of Criminal Procedure Article 4.18 to
appellant’s jurisdictional complaint.18 The First Court’s decision directly conflicts
with the Amarillo Court of Appeals published opinion in Eyhorn v. State.19 The
18 Tex. R. App. P. 66.3(a); Tex. R. App. P. 66.3(b). 19 See Bell II, slip op. at 7 (“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.”); see also Eyhorn, 378 S.W.3d at 509-510 (finding appellant’s non-
jurisdictional complaint under Moon waived by his failure to urge it from the order of
deferred adjudication, and finding his jurisdictional complaint waived by failure to
comply with Tex. Code Crim. Proc. Ann. art. 4.18 (West 2013)).
5
First Court’s opinion also contradicted opinions that followed Eyhorn’s reasoning
from the Beaumont Court of Appeals and the Tyler Court of Appeals.20 Rule
66.3(a) supports granting review because of the conflict between the First Court
and three sister courts on the same issue.21 Likewise, the First Court’s opinion
decided an important question of law regarding the applicability of Article 4.18
that this Court should resolve which supports granting review under Rule 66.3(b).22
The First Court’s interpretation of Article 44.47 also conflicts with
applicable decisions from this Court, namely in its disregard for Manuel v. State
and its progeny, which permits review under Rule 66.3(c).23 The First Court
neglected to consider preservation, procedural default, and appellate jurisdiction
for untimely consideration of claims for relief. Its decision disregards the
jurisdictional requirement that appellant file notice of appeal regarding complaints
20 Compare id., n. 2 (disagreeing with Felix v. State and Wells v. State as unpersuasive)
with Felix v. State, No. 09-14-00363-CR, 2016 WL 1468931, at *1 (Tex. App.—
Beaumont Apr. 13, 2016, pet. ref’d)(not designated for publication) (holding
jurisdictional claim waived by failure to file Article 4.18 motion in bar of prosecution
and non-jurisdictional claim waived because he did not timely mount it from order of
deferred adjudication); Wells v. State, No. 12-17-00003-CR, 2017 WL 3405317, at *2
(Tex. App.—Tyler Aug. 9, 2017, no pet.)(not designated for publication)(holding
even void judgment claim must be appealed from order of deferred adjudication or it
is waived, other jurisdictional complaints waived under 4.18). 21 Tex. R. App. P. 66.3(a). 22 Tex. R. App. P. 66.3(b). 23 See Tex. R. App. P. 66.3(c); see also Manuel v. State, 994 S.W.2d 658, 661-662 (Tex.
Crim. App. 1999); Daniels v. State, 30 S.W.3d 407, 408-409 (Tex. Crim. App. 2000);
Davis v. State, 195 S.W.3d 708, 712 (Tex. Crim. App. 2006); Perez v. State, 424
S.W.3d 81, 86 (Tex. Crim. App. 2014); Riles v. State, 452 S.W.3d 333, 338 (Tex.
Crim. App. 2015).
6
about the juvenile proceeding within 30 days after the criminal court issued a final
appealable order from which he had the ability to request review.24 Lastly, the
First Court’s opinion has so far departed from the accepted course of judicial
proceedings as to call for the exercise of this Court’s powers of supervision under
Texas Rules of Appellate Procedure 66.3(f).25
STATEMENT OF FACTS
I. THE JUVENILE PROCEEDINGS
The State accused appellant of engaging in delinquent conduct at the age of
16 by committing an aggravated robbery.26 The State sought discretionary waiver
of juvenile jurisdiction and transfer to criminal court.27 At the conclusion of the
certification hearing, the juvenile judge issued an order that waived jurisdiction
24 See id.; see also Wiley v. State, 410 S.W.3d 313, 320 (Tex. Crim. App. 2013) (holding
the failure to raise claims known to defendant at the time community supervision was
imposed procedurally defaulted them when he did not raise it until after revocation);
Perez, 424 S.W.3d at 85 (holding a timely notice of appeal is necessary to invoke a
court of appeals’ jurisdiction filed within 30-days of being placed on deferred
adjudication community supervision for all issues relating to the placement of the
person on deferred adjudication community supervision). 25 Tex. R. App. P. 66.3(f). 26 (RRJI-5; RRJII-Petitioner’s Exhibit 3). 27 (RRJII-Petitioner’s Exhibit 1, 3).
7
and transferred appellant’s aggravated robbery charge to the criminal district
court.28
II. THE CRIMINAL COURT PROCEEDINGS
In the criminal district court, appellant pled guilty without an agreed
recommendation on July 18, 2013, and he swore to a stipulation and judicial
confession of his guilt for the aggravated robbery.29 The criminal court issued an
order of deferred adjudication on July 18, 2013, for a period of 6 years community
supervision.30 As part of the conditions for community supervision, the criminal
court ordered that appellant not commit any offense against the laws of the State of
Texas, any other state, or the United States.31 Despite having the ability to appeal
the order of deferred adjudication under Code of Criminal Procedure Article
44.47(b), appellant did not appeal the trial court’s final order deferring adjudication
of his guilt.32
More than a year later in 2014, the State filed a motion to adjudicate
appellant’s guilt and alleged that he committed two new law violations, namely
28 (CR-11-12, 15). 29 (CR-25-26). 30 (CR-17). 31 (CR-19). 32 See Tex. Code Crim. Proc. Ann. art. 44.47(b) (West 2013) (the law in effect for the
date of appellant’s certification hearing and guilty plea); see also APPEAL OF WAIVER
OF JURISDICTION AND TRANSFER TO CRIMINAL COURT IN JUVENILE CASES, 2015
Tex. Sess. Law Serv. Ch. 74 (S.B. 888) (Vernon’s) (repealing Article 44.47 for all
discretionary wavier and transfer orders issued on or after September 1, 2015).
8
that he shot Dalvin Levi with a firearm, which caused Dalvin Levi bodily injury,
and that appellant possessed a firearm in violation of the terms and conditions of
his probation.33 The criminal court heard the motion to adjudicate on April 23,
2015 and May 13, 2015.34 At the conclusion of the hearing, the criminal court
found that appellant violated the terms of his probation, found him guilty of
aggravated robbery, and it assessed sentence at 20 years incarceration.35
At no time during the criminal court proceedings did appellant complain that
the criminal district court lacked jurisdiction to proceed. He did not file a motion
in bar of prosecution under Texas Code of Criminal Procedure article 4.18.
III. THE APPELLATE COURT PROCEEDINGS
On appeal, appellant claimed that the criminal district court “lacked
jurisdiction to enter a judgment against [him], because the juvenile court abused its
discretion when it waived jurisdiction over the case.”36 Appellant contended that
the juvenile court’s order failed to waive jurisdiction because the form order was
“invalidated in Moon [v. State] and Guerrero [v. State].”37 In reliance on
Guerrero, appellant claimed that the “criminal district court never acquired
33 (CR-42-43). 34 (RRII, RRIII). 35 (RRIII-26). 36 (Appellant’s Opening Brief at iii, 1, 2). 37 Id. at 2 (citing Moon, 451 S.W.3d at 28; Guerrero v. State, 471 S.W.3d 1 (Tex. App.-
Houston [14th Dist.] 2014, no pet.)).
9
jurisdiction over appellant[.]”38 He complained that his order, which lacked case-
specific findings, was insufficient to transfer the proceedings under Moon and that
it was void.39 The First Court of Appeals agreed and held that the juvenile court
abused its discretion by granting transfer without including case-specific factual
findings in the written transfer order.40
STATE’S FIRST GROUND FOR REVIEW
May appellant mount a jurisdictional attack on the
certification order without having filed a timely motion in
bar of prosecution as required by Texas Code of Criminal
Procedure Article 4.18?
Texas Code of Criminal Procedure Article 4.18 governs claims that a
criminal district court does not have jurisdiction over a person because jurisdiction
rests exclusively in the juvenile court and the juvenile court did not waived it.41
When pursuing such a claim, the defendant is responsible for filing a motion in bar
of prosecution before he enters a guilty plea or proceeds to trial.42 Article 4.18(d)
states, “A person may not contest the jurisdiction of the court on the ground that
38 Id. at 3 (citing Guerrero, 471 S.W.3d at 3). 39 Id. at 9 (citing Moon, 451 S.W.3d at 50). 40 Bell I, 512 S.W.3d at 559-560 41 Tex. Code Crim. Proc. Ann. art. 4.18(a) (West 2013) (referencing Tex. Penal Code
Ann. §8.07(b) (West 2013)). 42 Tex. Code Crim. Proc. Ann. art. 4.18(a), (b) (West 2013).
10
the juvenile court has exclusive jurisdiction if: (1) the person does not file a motion
within the time requirement of this article.” In this case, it is without dispute that
appellant never filed a motion in bar of prosecution, and yet his point of error
expressly contested the jurisdiction of the criminal district court to proceed to
conviction.43 At no time did appellant raise his jurisdictional claim in the criminal
district court.
In contradiction to the express wording of appellant’s complaint, the First
Court of Appeals found that he did not argue the district court lacked jurisdiction.44
The First Court concluded that appellant did not argue the juvenile court failed to
waive jurisdiction under Texas Family Code Section 54.02 as required for
application of Texas Penal Code Section 8.07(b) and Article 4.18.45 The First
Court’s opinion, however, failed to account for appellant’s void order claim in
which he argued that the waiver order did not comport with Texas Family Code
Section 54.02(h), and thus had not conveyed jurisdiction to the criminal court.46
43 Compare (Appellant’s Opening Brief at i, iii, 1, 2, 9) (arguing the criminal court lacked
jurisdiction because the order transferring juvenile jurisdiction was void) with Tex.
Code Crim. Proc. Ann. art. 4.18(d) (West 2013) (requiring appellant to file the motion
in bar of prosecution before his guilty plea to contest the jurisdiction of the criminal
district court). 44 Bell II, slip op. at 8-9. 45 Id 46 Compare id. (claiming appellant made no jurisdictional argument that the criminal
court lacked jurisdiction under Article 4.18 or Section 8.07(b)) with (Appellant’s
Opening Brief at i, iii, 2, 9) (claiming the criminal district court never acquired
jurisdiction because the order was void on its face for lack of case-specific factual
findings as required by Tex. Fam. Code Ann. §54.02(h) (West 2013)).
11
Article 4.18(d)’s prohibition on contesting jurisdiction without a motion in bar of
prosecution appears to directly apply to appellant’s jurisdictional complaint made
for the first time on appeal.
The lower court’s opinion looked to subsection (g) of 4.18 to conclude that
appellant alleged only a defect in the transfer proceeding, which did not require a
motion in bar of prosecution.47 Yet, appellant complained of more than a mere
defect in the proceeding.48 Instead, he argued that the transfer order was void on
its face, and thus failed to meet the requirements of Texas Family Code Section
54.02(h) to transfer the case from the juvenile court to the criminal court.49
As this Court has long held, “[a] void judgment is a nullity from the
beginning, and is attended by none of the consequences of a valid judgment.”50
When the document “facially reflects the want of jurisdiction of the court over
either the parties or the subject matter….the judgment [is] devoid of any potency,
causing it to be and to forever remain ‘limp as a wet dishrag.’”51 Appellant’s claim
alleged an utter failure to transfer jurisdiction because, were the order void, it never
conveyed jurisdiction to the criminal court under Texas Family Code Section
47 See Tex. Code Crim. Proc. Ann. art. 4.18(g) (West 2013). 48 (Appellant’s Opening Brief at i, iii, 1, 2, 9). 49 (Appellant’s Opening Brief at i, iii, 1, 2, 8-9). 50 Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001) (quoting Ex parte
Spaulding, 687 S.W.2d 741, 745 (Tex. Crim. App. 1985) (Teague, J., concurring)). 51 Spaulding, 687 S.W.3d at 745 (Teague, J., concurring).
12
54.02(h).52 If true, Texas Penal Code Section 8.07(b) would apply to show that the
juvenile court “did not waive jurisdiction” because the waiver order was a nullity.53
Accordingly, rather than claim a mere defect in the proceeding, appellant
claimed the order on its face failed to confer jurisdiction on the criminal court.54
This argument met the requirements of Article 4.18 and Section 8.07(b) as a
claimed that the juvenile court failed to waive jurisdiction and transfer the case to
criminal court.55 It therefore required a motion in bar of prosecution.56
Application of Article 4.18 is consistent with this Court’s past holdings.
This Court upheld the constitutionality of Article 4.18 in Rushing v. State.57 It
noted, “…that which the Legislature may withhold altogether, it may withhold in
part. Thus our lawmakers may deny the right to appeal entirely or the right to
appeal only some things or the right to appeal all things only under some
52 See id.; see also Tex. Fam. Code Ann. §54.02(h) (West 2013)(requiring a order that
states specifically its reasons for transfer). 53 See Tex. Code Crim. Proc. Ann. art. 4.18(a) (West 2013)(applying to any Tex. Penal
Code Ann. §8.07(b) claim that the juvenile court had not waived jurisdiction to the
criminal court for someone younger than 17 years on the date of the offense). 54 See id. (explaining a void judgment has no legal authority because it is a nullity from
its inception); see also (Appellant’s Opening Brief at 9) (arguing the waiver order was
void on its face for a lack of case-specific findings). 55 See Tex. Code Crim. Proc. Ann. art. 4.18 (West 2013) (stating that any claim the
criminal court lacks jurisdiction over the person because it rests solely in the juvenile
court and that court “did not waive jurisdiction” must be made in written bar of
prosecution before guilty plea); Tex. Penal Code Ann. §8.07(b) (West 2013) (stating
that unless the juvenile court waives jurisdiction under Tex. Fam. Code Ann. §54.02,
and certifies the defendant for criminal prosecution, he may not be convicted of an
offense committed before he turned 17). 56 Id.
13
circumstances.”58 The Legislature utilized its authority to limit the right to appeal
whether jurisdiction rested in the juvenile court, and it could make that right
contingent upon timely filing the motion in bar of prosecution in the trial court.59
The Beaumont Court of Appeals in Felix v. State considered the implications
of Article 4.18 on jurisdictional claims after motion to revoke probation.60 The
defendant in that case mounted a nearly identical claim to appellant’s when he
argued that the juvenile court abused its discretion by waiving jurisdiction and
exceeded its authority by transferring the case.61 Based on this Court’s holding in
Rushing and on Article 4.18, the Beaumont Court of Appeals held that his
jurisdictional claim the district court lacked jurisdiction over the defendant because
it rested in the juvenile court was waived when he did not timely file the motion in
bar of prosecution.62
The Beaumont Court of Appeals expanded upon the Amarillo Court of
Appeals holding in Eyhorn v. State.63 The Court in Eyhorn noted at the outset that
the defendant in that case had not filed a motion in bar of prosecution in the trial
court, and therefore the defendant could not raise a jurisdictional complaint as part
57 Rushing v. State, 85 S.W.3d 286, 285-6 (Tex. Crim. App. 2002). 58 Id. (quoting Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993)). 59 Id. 60 Felix, 2016 WL 1468931, at *1. 61 Id. 62 Id. (citing Rushing, 85 S.W.3d at 286). 63 Id. (citing Eyhorn, 378 S.W.3d at 509-10).
14
of the appeal.64 The Amarillo Court then went on to analyze the complaint as a
non-jurisdictional one.65 The Tyler Court of Appeals relied on Felix and it too held
that any jurisdictional complaints regarding discretionary waiver and transfer to
criminal court were waived by the failure to file a timely written motion in bar of
prosecution under Article 4.18.66
The State seeks review by this Court to determine whether appellant can
mount a jurisdictional attack on the juvenile court’s waiver order through a claim
that it was facially void without first having preserved the claim under Article 4.18
with a timely filed motion in bar of prosecution.
STATE’S SECOND GROUND FOR REVIEW
Does Manuel v. State and its progeny apply to Texas Code of
Criminal Procedure Article 44.47 to procedurally default
appellant from raising claims upon revocation that he could
have pursued on appeal from the order of deferred
adjudication?
If, on the other hand, appellant raised a non-jurisdictional defect in the
certification procedure, does Manuel v. State and its progeny apply to require that
64 Eyhorn, 378 S.W.3d at 509 (citing Tex. Code Crim. Proc. Ann. art. 4.18(a) (West
2005)). 65 Id. at 509-510. 66 Wells, 2017 WL 3405317, at *2 (citing Rushing, 85 S.W.3d at 286; Felix, 2016 WL
1468931, at *1; Tex. Code Crim. Proc. Ann. art. 4.18(a)-(b) (West 2016)).
15
appellant pursue the claim from order of deferred adjudication rather than waiting
until revocation of community supervision? The First Court of Appeals answered
this question by holding that the “or” in Article 44.47 provided the appellate court
with jurisdiction to hear the complaint even when appellant raised the claim more
than a year after he received the order of deferred adjudication and after he could
complain about the certification procedure.67 It concluded that the phrasing, “only
in conjunction with the appeal of a conviction of or an order of deferred
adjudication for the offense” left the decision to the defendant’s discretion as to
when he chose to appeal a defect in the certification procedure.68
In reply to the State’s reliance on Manuel v. State, the First Court of Appeals
held that it did not apply to juvenile transfer appeals because Manuel stated only a
background rule that concerned adult deferred adjudication appeals.69 The First
Court held that it was inapplicable to certified juveniles based on the wording of
Article 44.47.70 It concluded, “[t]he statute’s terms are clear and make no
exception for this background rule.”71
Yet, the rule of law applied in Manuel v. State, and refined in the cases that
followed it addressed the procedural default that comes from undue delay in
67 Bell II, slip op. at 6. 68 Id. 69 Bell II, slip op. at 8 (citing Manuel, 994 S.W.2d at 661-62). 70 Bell II, slip op. at 8. 71 Id.
16
raising a claim.72 The Court of Criminal Appeals in Manuel v. State and Perez v.
State explained how procedural default created a lack of jurisdiction to hear the
matter on appeal.73 Appellate and procedural rules required that a defendant
pursue appeal within thirty days from the final appealable order, namely the order
of deferred adjudication, to raise claims related the placement of the person on
deferred adjudication, the guilty plea, or the sentence.74 When the defendant
knows of the issue at the time he received community supervision, he cannot delay
in raising the matter until he has received the benefit of community supervision,
and then lost that benefit because of a failure to comply with the terms of the
agreement.75
72 Manuel, 994 S.W.2d at 660 (holding when complaint arises from placement on
community supervision, appellant must appeal that claim within 30 days after being
placed on community supervision); Wiley, 410 S.W.3d at 318 (holding Manuel stated
a rule of procedural default for claims regarding the proceedings that placed appellant
on community supervision); Perez, 424 S.W.3d at 85 (stating Wiley and Manuel held
were claims that could be timely raised from order of deferred adjudication were
procedurally defaulted when raised after conviction). 73 Id. at 660-62 (affirming lower court’s conclusion that it lacked jurisdiction to consider
the claim); Perez, 424 S.W.3d at 85 (holding lower court lacked jurisdiction to
consider procedurally defaulted claim on appeal from revocation). 74 See Tex. Code Crim. Proc. Ann. art. 44.02 (West 2013); Tex. R. App. P. 25.2, 26.2
(requiring appeal to be filed within 30 days after final appealable order entered by the
trial court); see also Perez, 424 S.W.3d at 85 (explaining that the procedural default
resulted from a failure to timely invoke the jurisdiction of the appellate court with
notice of appeal filed within 30 days after receiving the deferred adjudication
community supervision) (citing Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.
1996); Wiley, 410 S.W.3d at 318-19). 75 See id.
17
This rule applies to deferred-adjudication community supervision appeals
not just as a “background rule” developed by case law, but rather based on the text
of Texas Code of Criminal Procedure Article 42.12, as well as Texas Rule of
Appellate Procedure 26.2(a)(1).76 In 2007, the Legislature gave defendants the
right to appeal conviction after revocation of deferred adjudication community
supervision, and it stated “[t]he determination to proceed with an adjudication of
guilt on the original charge is reviewable in the same manner as a revocation
hearing conducted under Section 21[.]”77 Section 21 of Article 42.12 permits a
trial court to revoke community supervision after a hearing, which leads to the
provisions under Section 23 that expressly address proceedings upon revocation of
a “regular” probation.78 Section 23 states that upon revocation for a violation of
community supervision the defendant “may appeal the revocation.”79 None of the
three Article 42.12 provisions permits appeal of the underlying decision that placed
76 See Tex. R. App. P. 26.2(a)(1) (requiring defendant to file notice of appeal within 30
days after a final appealable order entered); Tex. Code Crim. Proc. Ann. art. 44.47(b)
(West 2013). 77 Tex. Code Crim. Proc. Ann. art. 42.12, §5(b) (West 2013); see also CONTINUATION
AND FUNCTIONS OF THE TEXAS BOARD OF CRIMINAL JUSTICE, THE TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, AND THE CORRECTIONAL MANAGED HEALTH
CARE COMMITTEE, AND TO THE FUNCTIONS OF THE BOARD OF PARDONS AND
PAROLES, 2007 Tex. Sess. Law Serv. Ch. 1308 (S.B. 909) (Vernon’s) (creating the
change effective Jun. 15, 2007 to permit appeals from orders adjudicating guilt). 78 See Tex. Code Crim. Proc. Ann. art. 42.12, §21(b-2) (West 2013)(allowing judge to
revoke community supervision after a hearing); Tex. Code Crim. Proc. Ann. art.
42.12, §23 (West 2013)(explaining revocation proceedings and allowing appeal only
of the revocation). 79 Tex. Code Crim. Proc. Ann. art. 42.12, §23 (West 2013).
18
the person on community supervision to be appeal after revocation.80 To do so
would be untimely.81
Thus, when the Legislature granted defendants the ability to appeal an
adjudication of guilt after revocation, it did so to the same degree as for a regular
probation revocation, and confined the appeal to the revocation proceedings
alone.82 The ability to appeal from revocation did not allow a defendant to appeal
issues related the placement of the person on deferred adjudication community
supervision.83 This Court repeatedly reiterated the Manuel holding, even after the
2007 expansion of appellate rights, and it held each time that a defendant is
procedurally defaulted from mounting an objection to the sufficiency of evidence
to support the order of deferred adjudication after revocation of community
supervision.84
Despite the juvenile court’s waiver of jurisdiction, appellant’s order of
deferred adjudication and his revocation of the community supervision occurred
80 See Tex. Code Crim. Proc. Ann. art. 42.12, §§5, 21, 23 (West 2013). 81 See Tex. R. App. P. 26.2(a)(1). 82 Tex. Code Crim. Proc. Ann. art. 42.12, §§5, §21, §23 (West 2013). 83 Id.; see also Manuel, 994 S.W.2d at 662 (“Certainly, it was not the Legislature’s intent,
in enacting Article 44.01(j) to permit two reviews of the legality of a deferred
adjudication order, one at the time deferred adjudication community supervision is
first imposed and another when, and if, it is later revoked.”); Perez, 424 S.W.3d at 86
(applying Manuel even after change to 42.12, §5, which permitted appeal after
adjudication of guilt). 84 Perez, 424 S.W.3d at 85 (holding claim procedurally defaulted when appealed after
revocation rather than order of deferred adjudication for any issue related to
19
under Article 42.12, Section 5, and thus reasonably invoked the appellate
limitations described by Manuel and Perez for any revocation of deferred
adjudication community supervision.85 Appellant could appeal only those claims
that related to revocation of deferred adjudication community supervision.86 To
permit appellant two bites at the apple, namely the ability to appeal from order of
deferred adjudication and again upon revocation would run afoul of this Court’s
precedent.87 As that Court concluded, there is “no logical reason why art[icle]
44.47(b) should be read as jettisoning [Manuel’s] rule simply because the accused
was initially subject to being tried as a juvenile.” Rather, once certified as an
adult, the defendant is subject to the procedures applicable to adults.88
Manuel and its progeny should bar appellant from appealing claims upon
revocation that he could have raised when he received the order of deferred
placement on deferred); Wiley, 410 S.W.3d at 320 (same); Riles, 452 S.W.3d at 338
(same). 85 See Tex. Fam. Code Ann. §54.02(h) (West 2013) (applying Code of Criminal
Procedure and criminal law upon transfer); Tex. Code Crim. Proc. Ann. art. 42.12,
§§5, §21, §23 (West 2013) (restricting appeal to revocation proceeding); Wiley, 410
S.W.3d at 320 (explaining procedural default for claims that could be raised from
order of deferred adjudication); Manuel, 994 S.W.2d 661-62 (same); Perez, 424
S.W.3d at 85 (same). 86 See Riles, 452 S.W.3d at 338 (citing Manuel, 994 S.W.2d at 661-62). 87 See id.; see also Eyhorn, 378 S.W.3d at 509. 88 See id.; see also Tex. Fam. Code Ann. §54.02(h) (West 2013) (“On transfer of the
person for criminal proceedings, the person shall be dealt with as an adult in
accordance with the Code of Criminal Procedure” except for detention procedures).
20
adjudication.89 Appellant had the ability to appeal his complaint about the
certification proceedings from the order of deferred adjudication.90 And a timely
notice of appeal was necessary to invoke the jurisdiction of the appellate court.91
Because appellant failed to raise the claim from order of deferred adjudication, the
First Court of Appeals lacked jurisdiction to address appellant’s untimely
complaint even as a non-jurisdictional claim under Article 4.18(g).
The State respectfully requests that this Court grant the petition for
discretionary review on both grounds to address whether appellant was
procedurally defaulted from pursing this claim upon revocation of community
supervision.
89 See Wiley, 410 S.W.3d at 320 (“But this also necessarily means that the appellant could
readily have raised this sufficiency claim in a direct appeal from the initial judgment
imposing community supervision. Failing to do so, we hold, constituted a procedural
default under Manuel.”)(citing Manuel, 994 S.W.2d at 661-62). 90 See Tex. Code Crim. Proc. Ann. art. 44.47(b) (West 2013)(permitting appeal from
deferred adjudication order). 91 See Perez, 424 S.W.3d at 85 (addressing requirement for timely appeal of complaint to
invoke jurisdiction of the appellate court)(citing Olivo, 918 S.W.2d at 522).
21
PRAYER
The State respectfully requests this Court grant the State’s petition for
discretionary review on both issues, consider the merits, and reverse the decision
of the First Court of Appeals.
KIM OGG District Attorney
Harris County, Texas
/s/ Jessica Caird
JESSICA CAIRD Assistant District Attorney
Harris County, Texas
500 Jefferson, 6th Floor
Houston, Texas 77002
(713) 274-5826
FAX No.: (832) 927-0180
Texas Bar No. 24000608
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE
This is to certify: (a) that the word count of the computer program used to
prepare this document reports that there are 3,761 words in the document in
compliance with Texas Rule of Appellate Procedure 9.4(i); and (b) that a copy of
the foregoing instrument is being served by EFileTexas.Gov e-filer to the
following email addresses on December 19, 2018:
Cheri Duncan
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Stacey M. Soule
State Prosecuting Attorney
P. O. Box 13046
Austin, Texas 78711-3046
/s/ Jessica Caird
JESSICA CAIRD Assistant District Attorney
Harris County, Texas
500 Jefferson, 6th Floor
Houston, Texas 77002
(713) 274-5826
FAX No.: (832) 927-0180
Texas Bar No. 24000608
APPENDIX A
(The First Court of Appeals’ Opinion on remand in 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
O P I N I O N *
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
2
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.
3
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.
4
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
5
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.
6
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.
7
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.
8
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
9
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
10
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.”).
11
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).
12
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).
