BRD v. State

575 S.W.2d 126, 1978 Tex. App. LEXIS 4063
CourtCourt of Appeals of Texas
DecidedDecember 14, 1978
Docket1413
StatusPublished

This text of 575 S.W.2d 126 (BRD v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BRD v. State, 575 S.W.2d 126, 1978 Tex. App. LEXIS 4063 (Tex. Ct. App. 1978).

Opinion

575 S.W.2d 126 (1978)

In the Matter of B. R. D., Appellant,
v.
The STATE of Texas, Appellee.

No. 1413.

Court of Civil Appeals of Texas, Corpus Christi.

December 14, 1978.
Rehearing Denied January 11, 1979.

*128 Frank M. Garza, Garza & Medina, Corpus Christi, for appellant.

Michael J. Westergren, County Atty., Richard W. Rogers, III, Asst. County Atty., Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

On June 6, 1978, an Assistant County Attorney of Nueces County filed a petition in the juvenile court alleging that appellant B. R. D. was a child who had committed murder in violation of Section 19.02 of the Texas Penal Code Ann. (1974). The State contended that the juvenile court should waive its jurisdiction and transfer the case to a criminal district court for criminal proceedings pursuant to the authority of Section 54.02 of the Texas Family Code Ann. (1975). On June 23, 1978, the court held a hearing to determine whether or not it should waive its jurisdiction and transfer the case. At the conclusion of this hearing, the court entered an order waiving its jurisdiction and transferring the case to the 105th District Court of Nueces County, Texas, for adult criminal proceedings. B. R. D. appeals from this transfer order.

Section 54.02 of the Texas Family Code governs the juvenile court's waiver of jurisdiction hearing and sets forth certain matters the juvenile court must consider in deciding whether to waive its jurisdiction and transfer the child to a criminal court for prosecution purposes. This section provides, in relevant part, as follows:

"(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
(1) whether the alleged offense was against person or property, with great weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court."

In accordance with these guidelines, the juvenile court heard testimony of five witnesses and received into evidence five reports.

Two police officers testified in detail concerning the events surrounding the murder and the subsequent apprehension of appellant who was found driving the murder victim's automobile at the time he was apprehended. Sergeant D. R. Perkins, an officer of the Port Aransas police department, testified that he found an elderly woman dead inside the lounge that she owned and managed in Port Aransas, Texas. Sergeant Perkins testified in detail to facts which led to appellant's arrest. The Chief of Police, D. Wayne Matthews, testified that twelve to fifteen statements had been taken from various people who had been in or around the decedent's bar on the day in question. Two of these statements were admitted into evidence as State's exhibits 4 and 5.

Gordon R. Dickson, Assistant District Attorney of Nueces County, Texas, testified that he was familiar with the grand jury system and that he had reviewed the police file and the statements which had been taken from witnesses in this case. It was his opinion that on the basis of these statements, it would be likely that the grand *129 jury would indict the appellant for the offense with which he was charged.

Cliff Rowland, a Nueces County juvenile probation official, testified concerning the social and family background of the child. A copy of his report also was introduced into evidence. It was Rowland's recommendation that the juvenile court transfer the child to a district court for criminal proceedings. The juvenile court received into evidence two psychiatric examination reports, one of which had been prepared at the State's request, and one at the Appellant's request. These reports indicated Appellant could stand trial as an adult. Based on all of the evidence, the juvenile court entered an order waiving its jurisdiction.

The appellant brings forward points of error on appeal which complain in essence that the juvenile court: 1) lacked jurisdiction, 2) erred in admitting and considering certain evidence, and 3) erred by failing to enter a specific order. We will first consider the jurisdictional question.

In point of error number one, the appellant contends that the juvenile court did not have jurisdiction to proceed with the transfer hearing because the State failed to issue and serve summons on appellant's parents as required by Section 54.02(b) after the State amended its original petition requesting transfer of the cause. We do not agree.

The original transfer petition, with attached summons, was served on the appellant on June 7, 1978, on appellant's mother on June 7, 1978, and on appellant's father on June 16, 1978. This summons specified that the transfer hearing was to be held June 16, 1978. Appellant's attorney, however, moved to continue the hearing from June 16 until June 23, 1978. Thereafter, on June 20, 1978, the State filed an amended transfer petition which was identical to the original transfer petition with the exception that the amended transfer petition corrected the spelling of appellant's surname. The appellant and his attorney received a copy of the amended transfer petition. Although appellant's parents did not receive a copy of the amended transfer petition, both his mother and father appeared for the June 23 hearing.

Prior to the commencement of the hearing, appellant's attorney contested the juvenile court's jurisdiction on the ground that appellant's parents had not been served with the State's amended transfer petition. The State, on the other hand, argued: 1) that the original summons served on the parents was sufficient and 2) that since the parents had voluntarily appeared at the hearing, the juvenile court had jurisdiction to proceed. The juvenile court overruled appellant's motion.

Appellant refers us to Section 53.06 of the Texas Family Code Ann. (1975) which provides, in relevant part, as follows:

"(a) The juvenile court shall direct issuance of a summons to:
(1) the child named in the petition;
(2) the child's parent, guardian, or custodian;
(3) the child's guardian ad litem; and
(4) any other person who appears to the court to be a proper or necessary party to the proceeding.
(b) The summons must require the persons served to appear before the court at the time set to answer the allegations of the petition. A copy of the petition must accompany the summons.
* * * * * *
(e) A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing."

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Bluebook (online)
575 S.W.2d 126, 1978 Tex. App. LEXIS 4063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brd-v-state-texapp-1978.