Criminal District Court’s review of Juvenile Court’s transfer order
upheld, but only with respect to quashing indictment.[State v.
Rhinehart](11-2-2)
On March 9, 2011, the Court of Criminal Appeals held that a
mislabeled motion to quash (should have been Motion to Set Aside
Transfer Order) was properly granted, and that the State, could not
raise for the first time on appeal claims that the criminal district
court was without jurisdiction of juvenile court’s decision to transfer
the case to criminal district court.
¶ 11-2-2. State v. Rhinehart, No. PD-0002-10, --- S.W.3d ----, 2011 WL
798650 (Tex.Crim.App., 3/9/2011).
Facts: Appellee was born on April 13, 1989. He was charged in juvenile
court with an aggravated robbery that was committed on February 28,
2006, forty-four days before appellee's seventeenth birthday. On April
16, 2007, three days after appellee's eighteenth birthday, the State
filed a petition in the juvenile court to transfer appellee's case to a
criminal district court where appellee would be tried as an adult.
Appellee claimed at an April 30, 2007 transfer hearing that the juvenile
court should deny this petition because the State did not use due
diligence in proceeding with his case in juvenile court before
appellee's eighteenth birthday. The State claimed at this hearing that
it had used due diligence. On May 2, 2007, the juvenile court signed an
order waiving its jurisdiction and transferring appellee to criminal
district court, after which appellee was indicted for aggravated
robbery.
Appellee raised the due-diligence issue again in the criminal district
court in a motion that he labeled a "MOTION TO QUASH INDICTMENT."
Attached to this motion was a proposed order indicating that the motion
was either "Granted" or "Denied." The criminal district court held a
hearing on this motion, during which the parties relitigated the
due-diligence issue that had been litigated in the juvenile court. The
State's only argument at the hearing in the criminal district court was
that it had used due diligence. Appellee relied on six exhibits that
covered matters that were covered at the transfer hearing in the
juvenile court. One of these exhibits (Defendant's Exhibit 5) is the
reporter's record of the transfer hearing in the juvenile court. The
criminal district court "Granted" appellee's "MOTION TO QUASH
INDICTMENT."
The State appealed to the court of appeals, claiming for the first time
on appeal that: (1) the criminal court was without jurisdiction to
review "the evidence underlying the juvenile court's decision to
transfer this case" because appellee "had no statutory right to appeal
the sufficiency of the evidence in the juvenile court's transfer
proceedings prior to being finally convicted in the criminal district
court" (emphasis supplied), and (2) the criminal district court erred to
grant appellee's motion to quash the indictment on a ground not
authorized by law because the sufficiency of the evidence supporting a
juvenile court's order to transfer a case to criminal district court is
not a valid ground for granting a motion to quash an indictment as a
matter of statutory law. Appellee responded by arguing, among other
things, that the State had waived these issues by failing to raise them
in the criminal district court and that he did not "appeal" but only
"challenged" the juvenile court's transfer order (as opposed to the
indictment) in the criminal district court.
The court of appeals sustained the State's second issue, found it
unnecessary to address its first issue, reversed the criminal district
court's order quashing the indictment, and remanded the case to the
criminal district court for further proceedings consistent with its
opinion. The court of appeals further stated that "issues relating to
the [juvenile-court] transfer proceedings are properly raised in an
appeal from a conviction after transfer." See Rhinehart, slip op. at 4.
It also stated:
Appellee acknowledges that a party may only appeal a transfer order in
conjunction with a conviction or an order of deferred adjudication. See
TEX.CODE CRIM. PROC. ANN. Art. 44.47(b) (Vernon 2006). Nonetheless,
appellee contends that an "appeal" differs from a "challenge," and
insists the statute does not restrict a defendant's rights to challenge
a transfer order. Although we note that the construction appellee seeks
to advance would effectively allow a defendant two bites at the
proverbial apple, we need not decide the issue here. Appellee's motion
did not seek to set aside the transfer order; it sought to quash the
indictment. Moreover, even if the statute afforded different treatment
for a "challenge" than an "appeal," the distinction is without a
difference in the present case. Appellee's motion concerned the
sufficiency of the evidence in the transfer proceeding. And in the
absence of a conviction or other order of deferred adjudication, we have
no jurisdiction to determine the propriety of a transfer. See TEX.CODE
CRIM. PROC. ANN. Art. 44.47(b) (Vernon 2006).
See Rhinehart, slip op. at 5.
We granted appellee's discretionary-review petition to review the court
of appeals's decision. The grounds upon which we granted review are:
1. The court of appeals erred in failing to address the "waiver" issue.
2. The court of appeals erred in re-framing the issue and failing to
address the true issue at hand, namely: whether the Criminal District
Court had the authority to set aside the transfer order.
3. The [court of appeals] erred in implicitly ruling that the trial
court lacked the authority to set aside the transfer order.
(Emphasis in original).
Held: Court of Criminal Appeals reversed the judgment of the court of
appeals and affirmed the criminal district court's ruling quashing the
indictment.
Opinion: Appellee asserts that the criminal district court "set aside
the transfer order because the State failed to proceed in the juvenile
court with due diligence before Rhinehart's eighteenth birthday" and
that the "issue in this case is whether the [criminal district] court
had the judicial authority to set aside a transfer order." And, in
support of his second ground for review, appellee argues, "Some of the
confusion in this case apparently has resulted from the fact that
Rhinehart mislabeled the motion as being a 'Motion to Quash Indictment.'
The motion was, in fact, a motion challenging the validity of the
transfer order. A review of the contents of the motion itself and the
arguments made during the pre-trial hearing clearly established that
fact."
Though the record does reflect that the basis of appellee's "MOTION TO
QUASH INDICTMENT" was the validity of the juvenile court's transfer
order, we must disagree with appellee that the effect of the criminal
district court granting this motion to quash was to set aside the
transfer order. Appellee's motion requested that the indictment be
quashed, not that the transfer order be set aside. On the record
presented to the court of appeals, the procedural posture of this case
was that the juvenile court's transfer order was still in force and
that, in granting appellee's "MOTION TO QUASH INDICTMENT," the criminal
district court had merely set aside the indictment. See State v. Eaves,
800 S.W.2d 220, 221-22 n. 5 (Tex.Cr.App.1990) ("quash" and "set aside"
are synonymous). We, therefore, disagree with the claim in appellee's
second ground for review that the court of appeals re-framed the issue
and failed to address the true issue, namely: whether the criminal
district court "had the authority to set aside the transfer order." This
issue is not presented in this case since the criminal district court
did not set aside the juvenile court's transfer order, and the court of
appeals would have erred even to address this issue.
We also understand appellee to argue that a juvenile court's erroneous
transfer order does not divest the juvenile court of its exclusive
jurisdiction over the case, thus permitting the criminal district court
to review the validity of the transfer order to determine whether it has
jurisdiction over the case. Appellee argues, "Accordingly, Rhinehart
would urge that, without a valid transfer proceeding, the [criminal
district] court would not have acquired jurisdiction. Consequently, the
validity of the transfer order is and must be subject to judicial review
in the [criminal district] court." We do not believe that the criminal
district court's quashing of appellee's indictment, based on the State's
lack of "due diligence," is necessarily a determination by the criminal
district court that it lacks jurisdiction over the case. In addition,
the legislative provision in Article 44.47(b) that a defendant may
appeal a juvenile court's transfer order "only in conjunction with the
appeal of a conviction ... for which the defendant was transferred to
criminal court" is some indication that a juvenile court's erroneous
transfer order does not divest the criminal district court of
jurisdiction over the case. We do not believe that the issue of whether
the criminal district court could set aside the juvenile court's
transfer order would be presented in this case unless the criminal
district court set aside the transfer order and attempted to remand the
case to the juvenile court.
Judge Price's dissenting opinion would decide that "the trial court
necessarily ruled that the [juvenile court's] transfer order was invalid
and that the lack of a valid transfer order deprived it of jurisdiction
over the matter." See Dissenting op. at 2 (Price, J.) (emphasis in
original). This dissenting opinion would then remand the case to the
court of appeals to consider, "in the first instance: 1) whether the
trial court had the authority to make such an implicit ruling on the
validity of the transfer order; and/or, in the event that it should find
that the trial court did have that authority (or, possibly, as an
alternative to deciding whether the trial court had that authority),
then 2) whether the State procedurally defaulted any complaint about the
trial court's authority by failing specifically to question its
authority during the proceedings at the motion to quash hearing." See
Dissenting op. at 4-5 (Price, J.) (emphasis in original).
There would, however, be no point in doing this unless the Court were
also to decide that, in quashing the indictment, the criminal district
court also implicitly or necessarily set aside the juvenile court's
transfer order. The juvenile court and the parties would, thus, have to
read at least two implicit or necessarily implied rulings in the
criminal district court's order granting appellee's motion to quash to
learn that the juvenile court had jurisdiction over the case again.
And, it is not so clear to us that, in granting appellee's motion to
quash, the criminal district court implicitly or even necessarily ruled
that the juvenile court's ruling on the due-diligence issue deprived the
criminal district court "of jurisdiction over the matter." It is not
apparent to us that a juvenile court's erroneous ruling on a
due-diligence issue deprives the criminal district court "of
jurisdiction over the matter." See, e.g., Article 44.47(b) (defendant
may appeal a transfer under Section 54.02 of the Family Code "only in
conjunction with the appeal of a conviction of ... the offense for which
the defendant was transferred to criminal court").
In addition, even if one could read these implicit rulings into the
criminal district court's granting of appellee's motion to quash, this
motion to quash still requested only that the indictment be quashed.
Notwithstanding what the criminal district court may have implicitly
decided, appellee's motion to quash may not have been clear and specific
enough to put the State on notice that appellee might also have been
seeking to set aside the juvenile court's transfer order so that the
State would have an opportunity to challenge the criminal district
court's authority to do this. The dissenting opinion apparently would
leave open the possibility that the State procedurally defaulted this
issue on appeal even though appellee's motion to quash may not have been
specific enough to put the State on notice that it needed to raise this
issue in the criminal district court.
At least in this case, we believe that appellee should have labeled his
motion something other than a motion to quash (e.g., a motion to set
aside the juvenile court's transfer order) if his intention was, as he
claimed on appeal, to challenge the validity of the transfer order.
Appellee has even acknowledged in this proceeding that "[s]ome of the
confusion in this case apparently has resulted from the fact that
Rhinehart mislabeled the motion as being a 'Motion to Quash Indictment.'
" In this particular case, we believe it appropriate to put appellee
back in the position that he was in after the juvenile court waived its
jurisdiction and transferred his case to the criminal district court and
before appellee filed his mislabeled motion to quash that may have
confused the other party on exactly what it was that appellee was
attempting to accomplish. Appellee's second ground for review is
overruled.
This also means that, with the criminal district court having only set
aside the indictment, which it clearly had the subject-matter
jurisdiction and authority to do, the State, as the losing party in the
trial court, failed to preserve the claims that it presented for the
first time on appeal in the court of appeals. Compare Sanchez v. State,
120 S.W.3d 359, 366-67 (Tex.Cr.App.2003) (right to be charged by an
instrument that is free of defects, errors, and omissions is neither a
"systemic" requirement nor a "waivable" right, and any error in the
charging instrument must be objected to in a timely and specific
manner); Hailey, 87 S.W.3d at 121-22; State v. Boado, 55 S.W.3d 621,
622-24 (Tex.Cr.App.2001) (Johnson, J., dissenting to dismissing
discretionary-review petition as improvidently granted) (court of
appeals should not have reversed trial court's decision quashing
indictment on theory not raised by the State in either the trial court
or on appeal). The court of appeals, therefore, erred in not considering
and sustaining appellee's waiver argument. See Kombudo v. State, 171
S.W.3d 888, 889 (Tex.Cr.App.2005) (Tex.R.App. P. 47.1 "requires a court
of appeals to address an appellee's reply that the appellant's point was
not preserved for review").
In arguing that the State, as the losing party in the criminal district
court, should be permitted to argue for the first time on appeal that
there was no valid basis for the criminal district court to have quashed
the indictment, Presiding Judge Keller's dissenting opinion relies on
this Court's prior decisions holding that the State can usually raise
the issue of a defendant's standing to challenge a search or a seizure
on Fourth Amendment grounds for the first time on appeal. See Dissenting
op. at 2 (Keller, P.J.) (citing State v. Klima, 934 S.W.2d 109, 111
(Tex.Cr.App.1996)); see generally Wilson v. State, 692 S.W.2d 661,
666-71 (Tex.Cr.App.1984) (op. on reh'g) (discussing when State may raise
issue of standing for the first time on appeal). We do not believe that
these cases apply here since there is no question that appellee has
standing to quash the indictment in this case. There is no claim in this
case that appellee attempted to quash an indictment charging someone
else with aggravated robbery. Nor does the dissent point to any case law
that equates allowing the State to raise standing for the first time on
appeal to allowing the State to ignore ordinary rules for preserving
error.
In addition, our decisions in Klima and Wilson primarily relied on the
Supreme Court's decision in Rakas v. Illinois for the proposition that
the State can usually raise the issue of a defendant's standing to
challenge a search or seizure on Fourth Amendment grounds for the first
time on appeal. We do note, however, that the prosecution in Rakas did
raise the standing issue in the trial court which, the Supreme Court
stated, "gave petitioners notice that they were put to their proof on
any issue as to which they had the burden...." See Rakas, 439 U .S. at
132 n. 1. Rakas, therefore, would not clearly support a decision here
that the State should be permitted to argue for the first time on appeal
that there was no valid basis for the criminal district court to have
quashed the indictment.
We also do not agree with the broad assertion in the Presiding Judge's
dissenting opinion that "the State need not preserve a complaint if the
issue is one which the defendant had the burden to prove in order to
obtain relief." In State v. Steelman, for example, the State was not
permitted to raise for the first time on appeal a claim that a search
was valid pursuant to a warrant even though the defendant had the burden
on the motion to suppress. See State v. Steelman, 93 S.W.3d 102, 107
(Tex.Cr.App.2002) ("At the suppression hearing, the State specifically
limited its argument to one theory of law: that there was probable cause
to justify a warrantless arrest and warrantless search. Because the
State did not present its other theory (that even if the warrantless
arrest was illegal, it did not taint the search pursuant to the warrant)
to the trial court, the State cannot rely on that theory on appeal.")
(emphasis in original).
This dissenting opinion claims that we misread Steelman because "it was
the State that had the burden to prove the propriety of the warrantless
police activity in that case." See Dissenting op. at 3-4 (Keller, P.J.)
(emphasis supplied). There is no disagreement or misunderstanding as to
when the burden shifts on a motion to suppress. The point is that, in
Steelman, the State was not permitted to raise for the first time on
appeal the theory that the search was justified pursuant to a warrant,
an issue upon which the defendant had the initial burden of production.
And the crucial focus is on the losing party's requirement to preserve
error for purposes of appeal.
Conclusion: To summarize, in this case, we apply ordinary rules of
procedural default to decide that the State, as the losing party in the
criminal district court, could not raise for the first time on appeal a
claim that there was no valid basis for the criminal district court to
have quashed the indictment. We decline to apply, in this case, the
Fourth Amendment standing rule of Rakas which, in any event, does not
clearly support the proposition that the State should be permitted to
raise this claim for the first time on appeal, particularly since the
State chose to litigate only the due-diligence issue in the criminal
district court thus, in effect, conceding that this might be a valid
basis for quashing the indictment. See Steagald, 451 U.S. at 209-11.
Appellee's first ground for review is sustained.
We reverse the judgment of the court of appeals and affirm the criminal
district court's ruling quashing the indictment.
KELLER, P.J., filed a dissenting opinion.
PRICE, J., filed a dissenting opinion in which WOMACK, J., joined.
KELLER, P.J., filed a dissenting opinion.