Polanco v. State

914 S.W.2d 269, 1996 WL 17489
CourtCourt of Appeals of Texas
DecidedFebruary 28, 1996
Docket09-94-368 CR, 09-94-369 CR
StatusPublished
Cited by42 cases

This text of 914 S.W.2d 269 (Polanco 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
Polanco v. State, 914 S.W.2d 269, 1996 WL 17489 (Tex. Ct. App. 1996).

Opinions

[270]*270OPINION

BURGESS, Justice.

Cruz Polanco III was fifteen years old at the time he was charged with retaliation and aggravated assault, therefore, the case began in juvenile court. The charges grew out of Polanco shooting a firearm into the home of the vice-principal of Polanco’s high school. That court, after certifying Polanco as an adult, waived jurisdiction and transferred the ease to the district court. Polanco was then indicted. He pleaded no contest without the benefit of a plea bargain and the court assessed punishment at ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice in each case, the second sentence to run consecutive with the first. He brings three points of error, the first and third attacking both judgments and the second attacking the aggravated assault judgment.

The first point alleges a lack of jurisdiction due to fatally defective service in the juvenile transfer proceeding. Polanco argues the service is defective for several reasons. First, the summons was not in compliance with Tex.Fam.Code Ann. § 54.02(b) (Vernon 1986):

(b) the petition and notice requirements of Sections 53.04, 53.05, 53.06 and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.

The summons states, in pertinent part:

TO THE SHERIFF OR ANY CONSTABLE OF JEFFERSON COUNTY, TEXAS:

You are hereby commanded to summon CRUZ POLANCO III if to be found in your county, to be and appear in the Juvenile Court of Jefferson County, Texas to be held on the 2nd Floor Jefferson County Courthouse in Beaumont, Jefferson County, Texas on 8th day of February, 1994 at 10:30 a.m. then and there to hear the FIRST AMENDED PETITION FOR DISCRETIONARY TRANSFER TO A CRIMINAL COURT OR DISTRICT COURT FOR CRIMINAL PROCEEDINGS being Cause No. 6717-J filed herein on the 31st day of January, 1994 in which CRUZ POLANCO III is the Respondent. The purpose of this hearing is to here [sic] the Petition of the State of Texas.

TO THE OFFICER SERVING THIS CITATION:

A true copy of this summons, together with certified copy of the Original Petition. You will deliver to the said CRUZ PO-LANCO III....

The return shows that “... a true copy of this Citation” was delivered to Polanco by a Jefferson County Deputy Constable.

Polanco asserts the summons fails to state that the purpose of the hearing is for the purpose of considering discretionary transfer in that it only states the purpose is “to here (sic) the petition of the State”.

Compliance with Tex.Fam.Code Ann. § 54.02(b) is mandatory and a prerequisite to the jurisdiction of the juvenile court. In re W.L.C., 562 S.W.2d 454, 455 (Tex.1978); Deleon v. State, 728 S.W.2d 935, 938 (Tex.App—Amarillo 1987, no pet). A summons which fails to state that the purpose of the heating is for the purpose of considering discretionary transfer is fundamentally defective and deprives the juvenile court of jurisdiction, Grayless v. State, 567 S.W.2d 216, 219 (Tex.Crim.App.1978), and any transfer order without valid service is a nullity. Watson v. State, 587 S.W.2d 161, 162 (Tex.Crim.App.1979).

The summons notified Polanco to “appear ... and to hear ...” the First Amended Petition for Discretionary Transfer to a Criminal or District Court. It further stated the purpose of the hearing was “to here (sic) the Petition of the State of Texas”. The summons, taken as a whole, adequately gives notice as to the purpose of the hearing and complies with section 54.02(b).

Polanco next argues the service is defective because section 53.06(b) requires that a copy of the petition must accompany the summons and there is nothing to indicate the petition was served upon him.1 In re Edwards, 644 S.W.2d 815 (Tex.App. — Corpus [271]*271Christi 1982, writ refd n.r.e.) is factually similar to this case. Edwards challenged whether the summons was proper under Tex. Fam.Code.Ann. § 53.06(b) in that the summons stated: “A copy of the pleadings heretofore filed ... accompanies this summons” rather than “a copy of the petition.” Id. at 819. The court stated “[t]he statute does not require that the summons state that ‘a copy of the petition’ accompanies the summons. All that is required is that ‘a copy of the petition must accompany the summons’.” Id. The court found nothing in the record indicated Edwards did not receive a copy of the “pleadings heretofore filed” and held “there was substantial compliance with § 53.06(b) of the Code.” Id. at 820.

In Sauve v. State, 638 S.W.2d 608, 610 (Tex.App.—Dallas 1982, pet. ref'd), the court held the burden to show invalidity of service was upon the defendant. Sauve argued the State failed to properly serve him pursuant to Tex.Fam.Code Ann. § 53.07(c) (Vernon 1986) providing that service be made “under the direction of the court.” The court declared:

Ordinarily, an officer’s return which is valid on its face carries a presumption of the truth of the facts stated on the return and of regularity. A defendant may rebut this presumption, but his testimony alone is insufficient; instead, he must offer other corroborating facts and circumstances to rebut the presumption.

Id. at 610.

In the present case, Polanco argues “there is nothing to indicate the petition was served upon him.” Since case law defines citation as both the summons plus a copy of the petition, and since the return states the “citation” was delivered, a presumption of regularity arose which Polanco failed to rebut.

As a final argument on this point, Polanco argues the summons is not in compliance with Tex.Fam.Code Ann. § 54.02(k) (Vernon 1986), which requires the summons must state “... that the hearing is for the purpose of considering waiver of jurisdiction under Subsection (j) of this section....” As noted above, the summons notified Polanco to “appear ... and to hear ...” the First Amended Petition for Discretionary Transfer to a Criminal or District Court. We see no substantial difference between the phrases “discretionary transfer” and “waiver of jurisdiction” in the context of section 54.02. The summons complied with section 54.02(k) of the Texas Family Code. Having considered all of Polanco’s arguments under this point of error, it is overruled.

The second point of error complains the trial court erred in cumulating or “stacking” sentences arising out of the same criminal episode. Polanco argues Tex.Penal Code Ann.

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Bluebook (online)
914 S.W.2d 269, 1996 WL 17489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polanco-v-state-texapp-1996.