D. L. C. v. State
D. L. C. v. State
Opinion of the Court
This is an . appeal from an order of the juvenile court of Bell County, Texas, wherein the court waived its original jurisdiction over appellant D.L.C.,
Appellant is a male, presently seventeen years old. He attends high school in Temple and lives with his parents, two sisters, and a brother. He has been charged with a felony,
At the hearing on the question of transfer to the criminal district court, extensive evidence was presented by the victim, a police officer, several medical doctors who had examined the appellant, and two employees of the Texas Youth Council. Evidence was also presented by the court-designated psychologist who testified that appellant was intelligent, had a relatively high I.Q., but that he was functioning emotionally in a pre-adolescent state of development, that is, in the ten-to-twelve year-old age bracket. At the conclusion of the hearing, the juvenile court entered its order waiving its exclusive original jurisdiction and ordered appellant transferred to the district court for further proceedings.
Appellant is before us on four points of error, all of which we overrule. Appellant’s first point is that the trial court erred in failing to give specific reasons in its order for waiver of original exclusive jurisdiction as required by Tex.Family Code Ann. § 54.02(h) (1975).
The court’s order waiving jurisdiction is quite long and details the procedure the State followed from the time appellant was
Appellant insists that the order before us is inadequate under the holding of the court in In the Matter of J. R. G., 522 S.W.2d 579 (Tex.Civ.App.1975, writ ref. n. r. e.). We think not. In J. R. G. the order transferring the case to the district court was patently inadequate. This order entirely failed to make the determinations required by section 54.02(a)(3) of the Family Code that either the seriousness of the offense or the background of the child required criminal proceedings for the welfare of the community, and further failed to find that no adjudication hearing had been conducted concerning the alleged offenses as required by section 54.02(a)(2). Indeed, the only reason for the transfer that can be found in this order is “that it is contrary to the best interest of said child and to the public to retain jurisdiction.” This conclusion is clearly insufficient under either section (f) or section (h) of Tex.Family Code Ann. § 54.02.
Appellant’s point of error number two is that the court erred in waiving jurisdiction based on a finding that appellant had been previously charged with a similar offense because there is no evidence to sustain such a finding.
The trial court’s order waiving jurisdiction stated that “despite his otherwise good record and previous history, he has heretofore been charged with a similar offense, which when considered with other factors, requires criminal proceedings.” In fact, appellant had not been previously charged with a similar offense. The court was in error in making this finding. A criminal charge, in legal phraseology, is properly limited to such accusations as have taken shape in a prosecution. United States v. Patterson, 150 U.S. 65, 68, 14 S.Ct. 20, 37 L.Ed. 999 (1893). However, in our opinion it was not such an error as to amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434. In spite of this misstatement, there was ample evidence before the court upon which it could have based its judgment.
Appellant’s point of error number three is that he was denied due process of law under the Texas Family Code on the issue of waiver of exclusive jurisdiction and discretionary transfer to criminal court because the State failed to properly notify appellant of the exact purpose of the hearing, as required by statute.
Appellant asserts that the subpoena commanding him to appear before the court to
Appellant maintains that the above written statement as to the purpose of the hearing is insufficient as it does not apprise appellant of the fact that the transfer is discretionary with the court as is required by Art. 54.02(b) of the Family Code. In our judgment the notice requirement is adequate under the Code. The word “discretionary” following the phrase “for the purpose of considering” is, for all practical purposes, surplusage. For the court to “consider” the transfer contemplates the discretionary character of whatever decision it would eventually make. Appellant cites R. K. M. v. The State of Texas, 520 S.W.2d 878 (Tex.Civ.App.1975, no writ), where the court reversed the trial court for omitting the fact in the notice that the transfer was “to Criminal Court.” The correctness of that decision is apparent as the notice of the transfer proceeding wholly failed to apprise the juvenile as to the court of transference.
Appellant’s fourth, and last point, asserts that he was denied due process of law under the Family Code since he was never given proper notice of the ultimate facts and specific issues to be confronted during the hearing.
The State filed its original petition to transfer jurisdiction to criminal court on May 19,1975. Appellant was served a copy of this petition. Thus the requirements of Tex.Family Code Ann. §§ 54.02(b), 53.06, and 53.07 have been satisfied. As appellant contends, the State filed a Second Amended Original Petition on May 27, 1975. From our review of the record, we find that a summons with the notation “appear . to answer the petition filed therein, a copy of which is attached to this summons,” was served on appellant on May 30, 1975. Although the officer’s return does not indicate which petition was attached, we note that appellant does not allege that he failed to receive the State’s second amended petition, but merely that the transcript fails to show which petition was attached to the May 30th summons. In light of earlier service of a substantially similar petition upon the appellant, and appellant’s failure to allege that he did not in fact receive a copy of the State’s second amended petition, we find no merit in this point of error.
The judgment of the trial court is affirmed.
. In compliance with Tex.Family Code Ann. § 56.01 the name of the alleged child has been deleted and initials substituted throughout this opinion.
. The State alleges that appellant committed a felony violating Tex.Penal Code Ann. §§ 20.04, 19.02, and 21.02 (1974).
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