Review of Recent Juvenile Cases (2011)
by
The Honorable Pat Garza
Associate Judge
386th District Court
San Antonio, Texas
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case reviews.
Merely filing motion
for new trial is not sufficient evidence of its presentment to trial
court.[Adams v. State](11-4-5B)
On November 7, 2011, the Dallas
Court of Appeals held that to satisfy the presentment requirement for
his motion for new trial (and preserve error), the presentment must be
apparent from the record and may be shown by such proof as the judge's
signature or notation on the motion or proposed order, or an entry on
the docket sheet showing the motion was brought to the trial court's
attention or a hearing was set.
Hearing not
required for trial court to order sex offender registration where
respondent failed to successfully complete treatment. [Adams v.
State](11-4-5A)
On November 7, 2011, the Dallas
Court of Appeals held that, although originally deferring a decision to
require registration, trial court was not mandated to hold a hearing
before requiring respondent to register as a sex offender where
respondent did not successfully complete sex offender treatment.
The mere fact
that an interrogation begins as noncustodial does not prevent custody
from arising later in the interrogation.[McCulley v. State](11-4-4)
On August 18, 2011, the Fort Worth
Court of Appeals held that custody is established with the manifestation
of probable cause, combined with other circumstances, which would lead a
reasonable person to believe that he is under restraint to the degree
associated with an arrest.
An employee
of the El Paso Juvenile Probation Department is not an "employee" of El
Paso County under the TTCA.[El Paso County v. Solorzano](11-4-3)
On September 21, 2011, the El Paso
Court of Appeals held that, in a suit against the county for conduct by
an El Paso Juvenile Probation employee, the trial court lacked
subject-matter jurisdiction because the El Paso Juvenile Probation
Department is a separate governmental entity apart from the County, and
the County's immunity from suit was not waived under the TTCA.
The doctrine
of sovereign immunity precludes obligations to be imposed on DFPS in
delinquent conduct proceeding.[In the Matter of R.L.](11-4-2)
On September 14, 2011, the San
Antonio Court of Appeals held that the Texas Department of Family and
Protective Services ("DFPS"), as a delinquent juvenile's custodian, has
sovereign immunity against a trial court’s assessing court costs, fees,
and restitution.
The writ of
habeas corpus may not be used to raise matters that should have been
raised on direct appeal.[Ex parte A.M.](11-4-1)
On August 17, 2011, the San Antonio
Court of Appeals held that respondent’s claims of prosecutorial
misconduct, erroneous rulings by the trial court, that his forty-year
determinate sentence amounts to cruel and unusual punishment, and
ineffective assistance of counsel claim could have been, but were not,
raised and resolved on direct appeal, as a result, they may not be
raised through a subsequent petition for habeas corpus relief.
Fourteen year old
child had authority to consent to officer’s warrantless entry into residence at
2:00am. [Limon v. State](11-3-15)
On June 15, 2011 the Court of
Criminal Appeals held that the Fourth Amendment does not prohibit a
minor child from consenting to entry into a home when the record shows
the officer's belief in the child's authority to consent is reasonable
under the facts known to the officer.
In a determinates
sentence transfer hearing, the trial court does not lose jurisdiction because
the release and transfer hearing is held more than sixty days after the referral
was received by the court.[In the Matter of B.T.](11-3-14)
On July 20, 2011, the Dallas Court
of Appeals held that a trial court does not lose its jurisdiction in a
determinate sentence transfer because the release or transfer hearing is
held more than sixty days after the referral was received by the court
as required by §54.11(h).
A
discretionary transfer order may convey jurisdiction in the criminal
district court even though it lacks a date and printed name of a
judge.[DeLaCerda v. State](11-3-13)
On July 21, 2011, the Houston Court
of Appeals (1 Dist.) held that as long as a discretionary transfer order
unequivocally provides for the assumption of jurisdiction by the
criminal district court, the lack of a date and printed name of the
judge will not affect it.
A determinate
sentence transfer hearing is not a criminal prosecution; as a result,
Sixth Amendment guarantees do not apply.[In the Matter of
V.M.S.](11-3-12)
On July 14, 2011, the Eastland Court
of Appeals held that neither the lack of a formal charging instrument
nor the introduction of documentary evidence constitutes fundamental
error in a determinate sentence transfer hearing.
An order
transferring a juvenile's determinate sentence probation to an adult
district court is not an appealable order.[In the Matter of
T.D.S.](11-3-11)
On June 23, 2011, the Houston Court
of Appeals (14 Dist.) held that because an order transferring
appellant's determinate sentence probation to adult district court is
not one of the appealable orders enumerated in the statute, it is not an
appealable order and the appellate court is without jurisdiction.
The requirement that
a statement must be signed by the child with no law enforcement officer or
prosecuting attorney present, does not apply to video statements.[In the Matter
of M.A.C.](11-3-10)
On April 14, 2011, the Eastland
Court of Appeals held that the procedure set out for recorded statements
does not contain the law enforcement, prosecutor, and weapon
prohibitions found in the statute for written statements.
By giving
minor full access to and control over a lockbox and its contents before
leaving the country, defendant gave up any standing to challenge its
search and seizure.[Castleberry v. State](11-3-9)
On April 28, 2011, the Houston Court
of Appeals held that even though he never gave anyone authority,
permission, or consent to open or view the contents of the lockbox,
defendant gave up standing to challenge search and seizure when he left
lockbox and key with minor.
Confrontation
rights are implicated only when an out-of-court statement is made by an
absent witness.[In the Matter of J.A.G.](11-3-8)
On June 16, 2011 the Waco Court of
Appeals held that when the declarant of an out of court statement
appears for cross-examination at trial, the Confrontation Clause places
no constraints at all on the use of his prior testimonial statements.
Juvenile
misdemeanor offense admissible in adult punishment hearing.[Chappel v.
State](11-3-7)
On June 20, 2011, the Dallas Court
of Appeals held that where a violation of a penal law is a misdemeanor
punishable by confinement in jail, such evidence of adjudication is
admissible if the conduct upon which the adjudication is based occurred
on or after January 1, 1996.
A child’s age
is a factor in determining whether he is in official custody. [J.D.B. v.
North Carolina](11-3-6).
On June 16, 2011, the United States
Supreme Court held that the age of a child subjected to police
questioning is relevant to the custody analysis of Miranda v. Arizona.
Failure to present
the very complaint that is made on appeal waives or forfeits the issue.[Marsh v.
State](11-3-5)
On June 10, 2011, the Texarkana
Court of Appeals held that since the trial court was never presented
with an argument that the defendant's constitutional right of
confrontation was violated when the trial court excluded a witness’s
juvenile record, it never had an opportunity to rule on that issue. As a
result the issue was waived.
Juvenile
court did not abuse its discretion by entering a registration order
where the evidence was considered factually sufficient to support an
implied finding that the interests of the public required registration.
On June 1, 2011, the El Paso Court
of Appeals concluded that even though there was conflicting evidence and
conflicting recommendations as to registration, the evidence was
factually sufficient to support an implied finding that the interests of
the public require registration.
Appellant's
statements were not induced from either the medications she had received
or from the effects of her withdrawal symptoms, and as a result
voluntarily waived her rights. [Paolilla v. State](11-3-3)
On March 11, 2011, the Houston Court
of Appeals (14 Dist) held that although appellant received potent
dosages of each drug, no one testified that either the morphine or the
methadone she ingested would have rendered her incapable of
understanding her rights or overcome her free will in giving her
statement.
Ineffective
assistance of counsel found where counsel failed to inform applicant of
the specific consequences of her guilty plea regarding immigration
consequences. [Ex parte Yekaterina Tanklevskaya](11-3-2)
On May 26, 2011, the Houston Court
of Appeals (1st Dist.) granted habeas relief, finding ineffective
assistance of counsel, because counsel had a duty to inform applicant of
not just the possible immigration consequences in general terms (as is
contained in the plea paperwork), but specifically that her
inadmissibility and subsequent removal was virtually certain and
presumptively mandatory.
An order
transferring a juvenile's probation to an adult district court is not an
appealable order. [In the Matter of W.E.H.](11-3-1)
On May 16, 2011, the Fort Worth
Court of Appeals held that the TFC § 56.01(c) specifically lists the
orders from which a child may appeal in juvenile court, but an order
transferring a child's determinate sentence probation to an appropriate
district court is not one of the orders enumerated in the statute.
Despite the
testimonial nature of witness’s prior statement, and the fact that she failed to
remember anything about it, the Confrontation Clause was not implicated.[In the
Matter of M.H.V.-P.](11-2-9)
On May 4, 2011, the El Paso Court of
Appeals held that memory loss does not render a witness "absent" for
Confrontation Clause purposes post-Crawford so long as the witness was
present and testifying at the time the prior statement was admitted.
Trial court
did not abuse its discretion by failing to hold a hearing on juvenile's
motion for new trial based upon newly discovered evidence.[In the Matter
of A.C.](11-2-8)
On April 7, 2011, the Eastland Court
of Appeals held that juvenile’s motion for new trial did not establish
that his failure to discover new evidence was not owing to a want of due
diligence.
In Motion to
Suppress, officer’s testimony that they could feel the vibrations the
car was producing as a result of the loud music being played was
sufficient to establish, for purposes of reasonable suspicion, a
violation to justify stop.[In re A.S.](11-2-7)
On April 6, 2011, the San Antonio
Court of Appeals held that an officer's expressed belief that a person
was violating a statute or ordinance is sufficient to justify an
investigatory stop. They are not required to prove an actual violation.
In order to
avail oneself of the affirmative defense of duress, the accused must
admit to having engaged in the proscribed conduct.[Ramirez v.
State](11-2-6)
On March 24, 2011, the Amarillo
Court of Appeals held that having failed to admit to the offense,
Appellant was not harmed by any alleged error in the manner in which the
defensive issue of duress was presented to the jury in the charge.
Punishment
was reversed and remanded for using juvenile adjudications to enhance a
sentence under the habitual offender statute.[Vaughns v. State](11-2-5)
On March 17, 2011, the San Antonio
Court of Appeals reversed and remanded the punishment for a habitual
offender, enhanced by two juvenile felony adjudications, because the
Texas Legislature did not intend for juvenile adjudications to be final
felony convictions in order to enhance a sentence for a habitual
offender.
Appellant was
not required to make an objection or request to have an 8.07 instruction
included in the jury charges.[Taylor v. State](11-2-4)
The absence of an 8.07(b)
instruction (instructions which limit the jury's consideration to events
after Appellant's seventeenth birthday), combined with the evidence of
Appellant's conduct as a juvenile and the instruction that the jurors
did receive, ultimately resulted in inaccurate charge. However, the
error did not result in egregious harm.
Retroactive
sex offender’s de-registration order did not affect supervision
requirements for a juvenile who was already on probation for violating
sex offender’s registration requirements.[Cornell v. State](11-2-3)
On March 10, 2011, the Fort Worth
Court of Appeals held that appellant could not challenge his original
placement on community supervision for violating sex offender
registration requirements, after that community supervision had been
revoked, with a later juvenile court order attempting to excuse
appellant from registering retroactively.
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.
The record
supports the trial court's finding that appellant's statements were not
induced from either the medications she received or the effects of
withdrawal and as a result voluntarily waived her rights. [Paolilla v.
State](11-2-1)
On March 11, 2011, the Houston Court
of Appeals (14 Dist) held that although appellant received potent
dosages of each drug, no one testified that either morphine or methadone
would render appellant incapable of understanding her rights or that the
combined effect of the drugs had overcome appellant's free will in
giving her statement.
Appellant's plea of
true to the enhancement paragraph is alone sufficient to show that he had a
prior felony conviction.[Menson v. State](11-1-8)
On February 16, 2011, the Amarillo Court
of Appeals concluded that an appellant's plea of true precludes his
complaint about the insufficiency of the evidence to establish his
enhancement paragraph.
Requiring
participation in sex offender treatment as a condition of probation does not
compel participation in a polygraph examination.[In the Matter of
A.M.](11-1-7)
On February 11, 2011, the Eastland Court
of Appeals held that respondent could have invoked his privilege against
self-incrimination, prior to participation in polygraph examination, even
though examination was part of mandatory sex offender treatment.
The State may use
circumstantial evidence to prove that the defendant is the same person named
in the alleged prior convictions.[Benton v. State](11-1-5)
On February 4, 2011, the Texarkana Court
of Appeals held that a rational jury could have found beyond a reasonable
doubt that the defendant was indeed the same person identified in the prior
convictions.
Trial court did not abuse its
discretion in admitting details of the MySpace pages.[Tienda v.
State](11-1-4)
On December 17, 2010, the Dallas Court
of Appeals concluded, after having reviewed the details of the MySpace pages
admitted into evidence in this case, the trial court did not abuse its
discretion in admitting the evidence.
A trial judge may take judicial
notice of evidence from a previous trial on the merits or a previous
revocation hearing.[Morales v. State](11-1-3)
On December 20, 2010, the Dallas Court
of Appeals held that a trial court can take judicial notice of its own
orders, records, and judgments rendered in cases involving the same parties.
New trial mandated by rules of
appellate procedure where electronically recorded proceedings are
inaudible.[In the Matter of K.G.](11-1-2)
On December 9, 2010, the Waco Court of
Appeals held that under rule of appellate procedure 34.6(f), when a
significant portion of the electronically recorded proceedings are inaudible
through no fault of the respondent, he is entitled to a new trial.
Appellant’s probation may be modified
for violating the general condition of being unsuccessfully discharged from
a placement facility.[In the Matter of S.D.M.S.](11-1-1)
On November 30, 2010, the Eastland Court
of Appeals held that the evidence here showed that respondent was discharged
from his placement prior to the completion of the program; therefore, he
violated the term and condition of his probation which required him to
complete the program
