K.M.P. v. State

701 S.W.2d 939
Court of Appeals of Texas·Decided January 8, 1986·No. No. 2-85-091-CV·Published·Cited by 10 cases

Opinion

OPINION

FENDER, Chief Justice.

This is an appeal from the discretionary transfer of a juvenile, K.M.P., appellant, to criminal court.

The appellant, age 15, and her husband, age 19, were married and living with their four-day-old child on January 8, 1985. On this day, appellant, who had apparently been at home alone with the baby, told a neighbor that she had dropped the baby on the kitchen floor and the neighbor called an ambulance. The baby died early the next morning at the hospital.

The cause of death was due to head injuries. The doctor testified that the fractures were so numerous that they were difficult to diagram and that the injuries were of such force that he could not conceive that the dropping of the baby would-cause this type of injury.

Appellant was taken into custody pursuant to a detention order. After a hearing of the State’s petition for discretionary transfer to criminal court, the juvenile court waived jurisdiction over appellant.

We affirm.

In her first point of error appellant contends that the trial court erred in overruling her objection to the State’s pleadings because such pleadings were fatally defective for “failure to state the manner of the alleged acts.” Section 53.04(d)(1) of the Texas Family Code says that the petition must state: “with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts.... ” TEX.FAM.CODE ANN. sec. 53.04(d)(1) (Vernon 1975).

The petition for discretionary transfer to criminal court alleges that appellant “did then and there intentionally and knowingly cause the death of an individual ... by manner and means unknown; and ... that ... K.M.P. ... did then and there intentionally, with the intent to cause serious bodily injury to [the baby], commit an act clearly dangerous to human life by manner and means unknown, which caused the death of [the baby]; and ... that ... K.M.P. ... did then and there intentionally and knowingly engage in conduct that caused serious bodily injury to [the baby], a child 14 years of age or younger by manner and means unknown.”

Although a proper indictment, to serve as a basis for trial in a criminal court for the offense of murder, would necessarily allege the manner of death, the same is not required in a juvenile court proceeding by which jurisdiction of a child will be transferred to a criminal court. Matter of Edwards, 644 S.W.2d 815, 821 (Tex.App.—Corpus Christi 1982, no writ). The fact that appellant is not apprised by the petition of the exact manner and means which caused the death for which she is charged, does not deny her due process. See id. Appellant’s first point of error is overruled.

Appellant contends in her second point of error that the trial court erred in hearing the motion for discretionary transfer without complying with the notice provisions of section 53.06 of the Family Code. Section 53.06 states that:

(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
[941]*941(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. (Emphasis ours.)

TEX.FAM.CODE ANN. 53.06 (Vernon 1975). Section 54.02(b) states that:

The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied....

Id.

Appellant contends that she herself was served with a summons without a copy of the petition and therefore the court did not have jurisdiction to hear the petition. However, the record reflects that appellant’s attorney stated at the hearing that appellant “(had) been served with a copy of the petition.” Also, the summon’s return which is contained in the record states that appellant received a copy of the petition. There is no evidence in the record that appellant did not receive a copy of the petition, therefore, appellant cannot raise this point for the first time on appeal.

Appellant next contends that her father, A.R., was served with a copy of the summons but not of the petition. Section 53.06(e) of the Family Code states that:

(e) A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

TEX.FAM.CODE ANN. sec. 53.06(e) (Vernon 1975).

The record reflects that at the hearing the following occurred:

MS. FLANAGAN (Assistant District Attorney): ... [T]he natural father of the juvenile has appeared numerous times before the court in detention hearings and indicated to the Court that he was appearing, not just for the purpose of testifying at the hearing as a witness, but was subjecting himself to the jurisdiction of the Court and was waiving service and Summons as required by the Family Code.
THE COURT: Is it of any import to you that he, [A.R.] when asked, indicated that he was here for the purpose of submitting to the jurisdiction of the court?
MR. WHITLOCK (Appellant’s attorney): I understand and recall that testimony vividly, your Honor. He being willing to come into court and submitting himself to the jurisdiction of the Court in no way removes a requirement that he be served with a Petition setting forth what we’re here to do, according to the Family Code, and I don’t think it’s waiva-ble just because he testifies....
THE COURT: Then I would ask you: have you any complaint to make about the — being served with a Summons or any notice of requirements regarding the proceedings here?
A.R.: I think there's nothing wrong by me not. I’m just getting the hearsay of what’s going on.

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K.M.P. v. State, 701 S.W.2d 939 (Tex. Ct. App. 1986).

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