Ludwig v. State

636 S.W.2d 869, 1982 Tex. App. LEXIS 4952
CourtCourt of Appeals of Texas
DecidedJuly 29, 1982
Docket10-81-168-CR
StatusPublished
Cited by8 cases

This text of 636 S.W.2d 869 (Ludwig 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
Ludwig v. State, 636 S.W.2d 869, 1982 Tex. App. LEXIS 4952 (Tex. Ct. App. 1982).

Opinion

HALL, Justice.

This is an appeal from a conviction for robbery to which appellant pleaded no contest, and punishment was assessed by a jury at imprisonment for five years. At the time of the offense appellant was fifteen years of age but jurisdiction was waived by the juvenile court and appellant was tried in the district court.

The evidence showed that appellant gained entry to the victim’s home on the pretext of using the phone. He then held a pistol on the victim which he had carried to her house and ordered her to lay on the couch so he could tie her up. The victim, a third grade school teacher by profession, tried to calm appellant down by talking to him. She explained that she didn’t have much money, but that what she had was in her purse. Appellant then took money from the victim and put it in his pocket while he continued to keep the gun pointed at her. After taking the money he attempted to tie her wrist and ankles. A struggle ensued and they fell to the floor where appellant began kissing and attempt *870 ing to fondle the victim while she fought to get free.

As they struggled, the victim successfully forced her finger into the trigger guard of the pistol and discharged each round until the pistol would fire no more. Appellant then began striking her on the head with the pistol, choking her and banging her head against the walls and door. After the victim managed to throw the pistol outside the house appellant fled taking the victim’s money with him. Appellant later led police to where he had hidden the money in the garage of his home.

On May 2,1980, the Brazos County Court at Law sitting as a juvenile court waived its juvenile jurisdiction and transferred the case to the 85th Judicial District Court of Brazos County for appellant to be tried as an adult. Appellant waived his rights to an examining trial and to indictment by the grand jury. Appellant was then charged on a felony information with aggravated robbery. The information charged that appellant, on or about April 2,1980, “while in the course of committing theft and with the intent to obtain property of [the victim], to-wit: MONEY OF THE UNITED STATES, without the effective consent of said [victim] and with intent to deprive the said [victim] of said property, did then and there by using and exhibiting a deadly weapon to-wit: a pistol intentionally and knowingly placed the said [victim] in fear of imminent bodily injury.” After plea negotiations the state agreed to waive the alleged aggravation element of the offense and proceed on the lesser included offense of robbery, appellant pleaded nolo conten-dere, and the issue of punishment was submitted to a jury. The punishment assessed was five years in the penitentiary, and the jury refused appellant’s plea for probation.

Appellant in his first ground of error asserts that the juvenile court’s transfer order is void because it failed to recite that the court had considered the prospects of adequate protection of the public and the likelihood of rehabilitation of appellant by the use of procedures, services, and facilities currently available to the juvenile court. Appellant argues that the court’s failure to specifically state it had considered the above criteria, which is set out in V.T. C.A., Family Code § 54.02(f)(6), is a fundamental defect in the transfer order which deprived the district court of jurisdiction in this case.

It would appear under the authorities that the proper method for testing the sufficiency of the juvenile court’s order would have been by direct appeal pursuant to Family Code Secs. 56.01 and 56.02, which appellant did not take, and not collaterally by this appeal from his criminal conviction. Tatum v. State, 534 S.W.2d 678, 680 (Tex.Cr.App.1976); Ex parte Allen, 618 S.W.2d 357, 358 (Tex.Cr.App.1981); Dillard v. State, 477 S.W.2d 547, 550 (Tex.Cr.App.1972). Nevertheless, as the Court did in Tatum, we shall consider appellant’s attack on the transfer order.

The pertinent parts of § 54.02 read as follows:

“(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.
* sfc ⅝ sjs * *
“(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 greater weight in favor of transfer given to offenses against the person;
*871 (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.
* * * * * *
“(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings....”

The juvenile court’s order stated:

“The Court, having heard the evidence and argument of counsel, finds that [appellant] was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; the alleged offense was against a person committed in an aggressive and premeditated manner; there is evidence on which a grand jury may be expected to return an indictment; and the child is sophisticated and mature enough to realize the seriousness and consequences of his act.
“It is the opinion of this Court that because of the seriousness of the offense and the background of the child the welfare of the community requires criminal proceedings.
“The Court, for the reasons herein stated, waives its exclusive original jurisdiction of the child, ...

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Bluebook (online)
636 S.W.2d 869, 1982 Tex. App. LEXIS 4952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ludwig-v-state-texapp-1982.