Griego v. State

853 S.W.2d 664, 1993 Tex. App. LEXIS 954, 1993 WL 91608
CourtCourt of Appeals of Texas
DecidedApril 1, 1993
DocketNo. 01-92-00559-CV
StatusPublished
Cited by3 cases

This text of 853 S.W.2d 664 (Griego 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
Griego v. State, 853 S.W.2d 664, 1993 Tex. App. LEXIS 954, 1993 WL 91608 (Tex. Ct. App. 1993).

Opinion

OPINION

COHEN, Justice.

The trial judge found that appellant, a juvenile, engaged in delinquent conduct by committing aggravated sexual assault and aggravated kidnapping and committed appellant to the Texas Youth Commission with a determinate sentence of 20 years. We affirm.

Appellant and others kidnapped and raped a woman at gunpoint in Harris County. At the time, appellant was almost 16 years of age. The State filed a delinquency petition in Harris County. While this petition was pending, appellant committed two misdemeanors in Fort Bend County, attempted assault and possession of marijuana. The State filed a petition in Fort Bend County, alleging appellant had engaged in delinquent behavior by committing those crimes.

In the Fort Bend County disposition hearing, appellant offered into evidence his confession from the aggravated sexual assault/kidnapping case. The trial judge refused to admit or consider the evidence, and, granted a continuance of the disposition hearing at the State’s request. Appellant states that no judgment of disposition has been rendered in the Fort Bend County case.

Later, appellant filed a plea in abatement and a motion to dismiss in the Harris County court, claiming the court lacked jurisdiction. He offered the statement of facts from the Fort Bend County adjudication and disposition hearings to prove that the Fort Bend County judge had knowledge of the Harris County case. That knowledge, appellant argued, barred the Harris County case, pursuant to Tex.Penal Code Ann. § 8.07(c) (Vernon Pamph.1993). The trial judge denied the motion to dismiss, which appellant claims was reversible error.

In his sole point of error, appellant claims the Harris County delinquency adjudication is void. Appellant argues section 8.07(c) prohibits his prosecution for the Harris County offenses because they were within the knowledge of the Fort Bend County judge in those juvenile proceedings.

Section 8.07(c) provides:

Unless a juvenile court waives jurisdiction and certifies the individual for criminal prosecution, a person who has been alleged in a petition for an adjudication hearing to have engaged in delinquent conduct or conduct indicating a need for supervision may not be prosecuted for or convicted of any offense alleged in the juvenile court petition or any offense within the knowledge of the juvenile court judge as evidenced by anything in the record of the juvenile court proceedings.

Tex.Penal Code Ann. § 8.07(c) (Vernon Pamph.1993) (emphasis added).

The question is whether the phrase “prosecuted for or convicted of,” as used in section 8.07(c), includes an adjudication of delinquency in juvenile court, or refers only to the criminal trial of a certified juvenile in district court. If the former, then Harris County could not adjudicate appellant’s delinquency for the aggravated sexual assault and kidnapping offenses because the Fort Bend County judge had knowledge of those offenses. Appellant contends the above quoted phrase refers to juvenile cases. We disagree.

“An order of adjudication or disposition in a [juvenile] proceeding is not a conviction of crime, and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.” Tex.Fam.Code Ann. § 51.13 (Vernon 1986 & Pamph.1993). Instead, juvenile cases are civil in nature. Robinson v. State, 707 S.W.2d 47, 48-49 (Tex.Crim.App.1986); In re R.J.W., 770 S.W.2d 103, 105 (Tex.App.—Houston [1st Dist.] 1989, no writ). Thus, contrary to appellant’s claim, adjudications of delinquency are not convictions.

The remaining question is whether an adjudication of delinquency is a “prosecution” under section 8.07(c). Appellant contends it is a prosecution because of [666]*666the potential for incarceration in the penitentiary under the determinate sentencing laws. Juvenile courts may render a sentence of up to 40 years. Tex.Fam.Code Ann. § 54.04(d)(3) (Vernon Pamph.1993). A juvenile delinquent may be transferred to prison at age 18 to serve the remainder of the juvenile’s sentence. See Tex.Fam. Code Ann. §§ 53.045 and 54.04 (Vernon 1986 & Pamph.1993). Here, for instance, because appellant received a 20-year sentence, he will remain in the custody of the Texas Youth Commission until age 18, and then he might spend the majority of his sentence in the Texas Department of Criminal Justice. (TDCJ). Appellant gives several other examples of why a juvenile proceeding should be considered a “prosecution.” The district attorney in a juvenile proceeding is defined as the “prosecuting attorney.” Tex.Fam.Code Ann. § 51.02(7) (Vernon 1986). The approval of the petition by the grand jury and its certificate is an indictment for the purposes of transfer to the TDCJ. Tex.Fam.Code Ann. § 53.-045(d) (Vernon Pamph.1993). After the juvenile’s eighteenth birthday, he can be placed with adult felons. Tex.Fam.Code Ann. § 51.13(c)(3) (Vernon Pamph.1993). The juvenile’s records may be placed in federal and state central records depositories, such as the Texas Crime Information Center and the National Crime Information Center. Tex.Fam.Code Ann. § 51.14(c) (Vernon Pamph.1993). The adjudication can be treated the same as a prior conviction for the purposes of punishment enhancement at a future criminal proceeding. Tex.Fam.Code Ann. § 51.14(e) (Vernon Pamph.1993); Tex.Code Crim.Proc.Ann. art. 37.07, § 3(a) (Vernon 1987). And the child’s fingerprints and photographs may be sent to the TDCJ. Tex.Fam.Code Ann. § 51.15(a), (c) (Vernon Pamph.1993). Thus, appellant argues, a juvenile proceeding should be considered a prosecution. Again, we disagree.

The potential for penitentiary incarceration under the determinate sentencing laws does not render a juvenile proceeding a criminal prosecution for purposes of section 8.07(c). In re S.C., 790 S.W.2d 766, 773 (Tex.App.—Austin 1990, writ denied). In In re S.C., the juvenile, like appellant here, claimed that because he was subject to penitentiary time under a determinate sentence, he was prosecuted as a criminal in violation of section 8.07(c). Id. The Austin Court concluded that “section 54.-02(g) of the Family Code and section 8.07(c) of the Penal Code simply bar prosecutions in addition

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Bluebook (online)
853 S.W.2d 664, 1993 Tex. App. LEXIS 954, 1993 WL 91608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griego-v-state-texapp-1993.