In re G.A.T.

16 S.W.3d 818
CourtCourt of Appeals of Texas
DecidedMarch 30, 2000
DocketNo. 14-99-00252-CV
StatusPublished
Cited by94 cases

This text of 16 S.W.3d 818 (In re G.A.T.) 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
In re G.A.T., 16 S.W.3d 818 (Tex. Ct. App. 2000).

Opinion

[822]*822OPINION

HUTSON-DUNN, Justice (Assigned).

The State filed a petition alleging that G.A.T., a juvenile, had engaged in delinquent conduct by committing the offense of aggravated robbery. See Tex. Pen.Code Ann. §§ 29.03 (Vernon 1994). The jury found appellant delinquent and the trial court committed him to the Texas Youth Commission for six years with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice. Appellant asserts the following four points of error: (1) the trial court never obtained jurisdiction to adjudicate appellant under the determinate sentencing provisions of the Texas Family Code; (2) the identification of appellant was illegally obtained and used in violation of the Texas Family Code, Texas Code of Criminal Procedure, and the Texas and United States Constitutions; (3) the evidence is legally insufficient; and (4) the evidence is factually insufficient.

BACKGROUND

The complainant, Benito Castro, was walking home from a bar one evening when two youths, later identified as appellant and L.L., approached him. L.L. asked Castro for a quarter. When Castro reached into his pocket to retrieve a quarter, L.L. pulled out a knife and waved it in front of Castro. When Castro attempted to back up, two other individuals approached and threw Castro to the ground. All four individuals then began to hit and kick Castro. The assailants put their hands in Castro’s pockets and took a $100 lottery ticket for the World Series.

Delores Torres witnessed the robbery from the porch of a nearby home. Torres saw a group of small boys, one of whom she later identified as appellant, kicking and hitting Castro. Torres testified that she had seen appellant and his companions in the neighborhood on several prior occasions. According to Torres, the area in which the beating took place was well lit and she clearly saw the individuals involved in the attack. Right after the offense occurred, Torres flagged down Officer Richard Cano and provided him with a description of the attackers and indicated the direction in which they had fled.

Officer Cano saw four males who matched Torres’ description about four blocks in the direction indicated by Torres. He detained the group, which consisted of appellant, L.L., and two other juveniles. Officer Cano then found a knife on the ground several feet from L.L. Cano and the suspects returned to the scene of the offense. At that time, approximately ten or fifteen minutes had passed since the offense occurred. Both Torres and Castro identified the juveniles as participants in the robbery.

L.L., who pled guilty to the robbery, testified that appellant participated in the robbery with him.

POINT OF ERROR ONE

By point of error one, appellant contends that the trial court never obtained jurisdiction to adjudicate him under the determinate sentencing provisions of the Texas Family Code because he was not served with a summons on the determinate petition. See Tex. Fam.Code Ann. § 53.06(a)(1) (Vernon 1996). The State filed its original petition on October 14, 1998, and appellant was served with a summons and a copy of the petition on October 19, 1998. The State filed an amended determinate petition on November 1, 1998. Because appellant’s parents could not be located, the State served the amended petition on appellant’s grandmother. Nothing in the record indicates that the State ever personally served appellant with a summons for the amended petition, even though he was in custody.

The State properly served appellant with a summons, and the trial court acquired jurisdiction over him at that time. See Matter of S.D.W., 811 S.W.2d 739, 746 (Tex.App.-Houston [1st Dist.] 1991, no [823]*823writ.); B.R.D. v. State, 575 S.W.2d 126, 130 (Tex.Civ.App.-Corpus Christi 1978, writ ref d n.r.e.). A copy of the petition accompanied the summons as required by § 58.06(b) of the Texas Family Code. When jurisdiction attaches by virtue of a properly served original petition, the court does not lose jurisdiction because the State may have failed to serve appellant with an amended petition. See McBride v. State, 655 S.W.2d 280 (Tex.App.-Houston [14 th Dist.] 1983, no writ); B.R.D., 575 S.W.2d at 130. While certain aspects of juvenile delinquency adjudication proceedings are criminal in nature, the proceedings are primarily civil in nature. See Tex. Fam. Code Ann. § 51.17 (Vernon 1996); Matter of G.M.P., 909 S.W.2d 198, 201 (Tex.App.Houston [14th Dist.] 1995, no writ). Therefore, we follow the ruling in Carrillo v. State that the strict prohibition against amendment of pleadings in criminal cases is not applicable in juvenile proceedings. See Carrillo v. State, 480 S.W.2d 612, 615 (Tex.1972). However, the State may only amend its petition at “such time, and under such circumstances, as to be basically fair to the minor.” Id.; R.X.F. v. State, 921 S.W.2d 888, 893 (Tex.App.-Waco 1996, no writ). Otherwise, there is a denial of due process. See id.

Appellant contends that § 53.06 of the Texas Family Code required the court to direct a second summons to him when the State amended its original petition.1 However, none of the provisions relating to the filing of a petition or the issuance and service of a summons expressly require the court to direct a summons to a juvenile when the original petition is amended. See R.X.F., 921 S.W.2d at 893; see also B.R.D., 575 S.W.2d at 130.2 As such, we cannot infer that the legislature intended such a requirement. See R.X.F., 921 S.W.2d at 893. Rather, whether the juvenile received a copy of an amended petition is a relevant consideration in evaluating the “basically fair to the minor” requirement. See id. at 894; B.R.D., 575 S.W.2d at 130.

In analyzing whether the lack of service on the child of the amended petition amounted to a denial of due process, it is helpful to compare the two petitions. The original petition provided two alternate ways of proving the charged offense of aggravated robbery: (1) by charging appellant with exhibiting a deadly weapon while in the course of committing robbery, and (2) by charging him with causing serious bodily injury to the complainant while [824]*824in the course of committing robbery. See Tex. Pen.Code Ann. §§ 29.03(a)(1), (a)(2) (Vernon 1994). The amended petition abandoned the theory based on serious bodily injury and charged appellant only with aggravated robbery based on the exhibition of a deadly weapon. The amended petition was then approved by a grand jury so that the State could proceed under determinate sentencing guidelines.

First, we need to consider whether the deletion of one of the charging paragraphs violated appellant’s due process rights. The deletion of an alternate means of committing a charged offense is an “abandonment,” not an “amendment” of the charging instrument. See Eastep v. State, 941 S.W.2d 130, 133 (Tex.Crim.App.1997). When a statute provides multiple means for the commission of an offense and those means are subject to the same punishment, the State may plead them conjunc-tively. See id. However, the State is required to prove only one of the alleged means in order to support the conviction.

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Bluebook (online)
16 S.W.3d 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gat-texapp-2000.