M.A., Matter Of

935 S.W.2d 891, 1996 Tex. App. LEXIS 4882
CourtCourt of Appeals of Texas
DecidedNovember 6, 1996
DocketNo. 04-96-00094-CV
StatusPublished
Cited by21 cases

This text of 935 S.W.2d 891 (M.A., Matter Of) 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
M.A., Matter Of, 935 S.W.2d 891, 1996 Tex. App. LEXIS 4882 (Tex. Ct. App. 1996).

Opinion

OPINION

LÓPEZ, Justice.

This appeal is a challenge to the juvenile court’s decision to certify appellant to stand trial as an adult. Appellant is accused of the death of a four-year-old girl, resulting from a drive-by shooting. In seven points of error, appellant challenges the court’s findings on probable cause that he committed the offense and sufficiency of the evidence to waive jurisdiction and transfer him to the district court. He asserts that Penal Code Section 19.03(a)(8), capital murder of a child under six years of age, requires a specific finding that the accused had knowledge of the age of the victim. We disagree based on the plain reading of the statute and affirm the trial court’s decision. *

Appellant and his family were involved in an ongoing feud with the Ramos family stemming from appellant’s brothers’ refusal to join a gang. Prior to the problems with the Ramos family, the record indicates that appellant was attending school and had not had problems with delinquent activity. Several altercations occurred between appellant’s older brothers and two Ramos brothers after [893]*893they refused to become gang members. Eventually appellant’s niece was shot during a drive-by-shooting, for which the two Ramos brothers were convicted. Appellant’s family was forced to move out of San Antonio due to constant threats from the Ramos family.

On the evening of the offense at issue, the victim was visiting with the Ramos family when shots were fired from the street. The four-year-old child was killed as she was sitting in the living room of the home watching television. Appellant eventually admitted that he committed the shooting.

In his first point of error, appellant asserts that the trial court’s finding of probable cause that appellant violated Texas Penal Code Section 19.03 (capital murder) was unconstitutional. He contends that because knowledge of the victim’s age is a necessary element of the offense, a finding of that knowledge was necessary to certify appellant for capital murder.

The State argues that this point was waived because it was never brought to the trial court’s attention. TexRApp. P. 52(a); J.R.W. v. State, 879 S.W.2d 254, 258 (Tex. App. — Dallas 1994, no writ). The record includes argument by appellant’s counsel that knowledge of the victim’s age is a necessary element of the offense and that certifying appellant for capital murder without a finding that he knew the age of the victim would be inappropriate. Appellant did not, however, assert any constitutional grounds to support this argument.

Although there is merit to the State’s argument that this point of error was waived, we have determined that the point should be overruled on the merits, as discussed below.

The following Penal Code sections apply:

Section 19.03:
(a) A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and: ...
(8) the person murders an individual under six years of age.
Section 19.02(b)(1):
(b) A person commits an offense if he:
(1) intentionally and knowingly causes the death of an individual; ...

Under Family Code Section 54.02(a)(3), the juvenile court may waive its exclusive original jurisdiction and transfer a child to the district court if:

after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.

Tex. Fam.Code Ajsin. § 54.02(f) (Vernon 1996); see also R.P. v. State, 759 S.W.2d 181, 182 (Tex.App. — San Antonio 1988, no writ). Probable cause has been further defined as “sufficient facts and circumstances to warrant a prudent man to believe that the suspect had committed an offense.” In re J.P.O., 904 S.W.2d 695, 700 (TexApp. — Corpus Christi 1995, writ denied); In re D.W.L., 828 S.W.2d 520, 524 (Tex.App. — Houston [14th Dist.] 1992, no writ); see Gerstein v. Pugh, 420 U.S. 103,112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975).

In order to allow for the waiver of jurisdiction, the juvenile court must have probable cause to believe that appellant committed the actual offense or offenses alleged. In re RAG., 866 S.W.2d 199,199 (Tex.1993); In re R.P., 759 S.W.2d at 182.

Appellant argues that because there was no way he could have known that the victim was in the home, there was no possibility that he “knowingly” committed capital murder. Therefore, there was no probable cause that he committed the offense alleged in the petition.

Appellant admits that this is a novel issue in Texas. He also asserts that the grammatical construction of Section 19.03 can only be read to require that an accused knew the age of the victim. Cf. United States v. X-Citement Video, Inc., 513 U.S. 64,-, 115 S.Ct. 464, 467, 130 L.Ed.2d 372 (1994) (requiring defendants distributing videotapes “knew” sexual tapes depicted minors). Appellant suggests that we look at the legislative history wherein the testimony indicates an intent to require knowledge. The offense was included in capital murder due to an alarming [894]*894number of children's deaths caused by abuse. Hearings on Tex. S.B. 13 Before Senate Criminal Jurisprudence Committee, 73rd Leg., R.S. (Mar. 9,1993).

The Eastland Court of Appeals has recently held that “knowledge of the victim’s age is not an element of the offense under Section 19.03(a)(8). Looking at the plain language of this statute, there is nothing to indicate that the accused must have known that his victim was younger than six years old.” McCollis-ter v. State, 933 S.W.2d 170, 172 (TexApp.— Eastland 1996, no pet. h.).

The State asserts that a literal reading of the statute does not require that the accused know the age of the child, therefore, no such finding is required. Cf. McFarland v. State, 928 S.W.2d 482, 498 (Tex.Crim.App.1996) (preferring to look to literal language of statute when possible). They also point out that Section 19.03(a)(8) is drafted much differently than Section 19.03(a)(1) where plain language is included that an accused must have known of the officer’s status. Compare Tex. Penal Code Ann. § 19.03(a)(8), with, Tex. Penal Code Ann. § 19.03(a)(1). See also Tex. Penal Code Ann. §§ 22.021, 22.04(c)(1) (other offenses against children with requirement that accused know victim was child).

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935 S.W.2d 891, 1996 Tex. App. LEXIS 4882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ma-matter-of-texapp-1996.