Texas Court of Appeals, 5th District (Dallas) Cases

In the Matter of J.B., a Juvenile v. the State of Texas

• 2023-12-28

Date Filed2023-12-28

Docket05-23-00973-CV

Cited0 times

StatusPublished

Full Opinion (html_with_citations)

AFFIRM; and Opinion Filed December 28, 2023.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00973-CV

IN THE MATTER OF J.B., A JUVENILE

On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JD-21-00009-X

MEMORANDUM OPINION
Before Justices Carlyle, Smith, and Kennedy
Opinion by Justice Kennedy
Appellant, J.B., was charged with the offense of aggravated sexual assault.

Although appellant was 16 years old at the time of the alleged offense, charges were

not filed against him until after his 18th birthday. Because appellant was over 18

years of age when charges were filed, the State filed a petition for discretionary

transfer from the juvenile court to the criminal district court under Texas Family

Code section 54.02(j). See TEX. FAM. CODE ANN. § 54.02(j). After conducting a

hearing on the State’s petition, the juvenile court waived its jurisdiction and

transferred the case to the criminal district court. Appellant appeals the juvenile

court’s transfer order claiming his right to a speedy trial was violated and attempting
to raise an issue concerning the summons and its service upon him. We affirm the

juvenile court’s order waiving jurisdiction and transferring the case to the criminal

district court. Because the dispositive issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

On January 5, 2021, the State filed its petition for discretionary transfer

asserting that on or about July 23, 2016, appellant, who was then 16 years old, about

to turn 17, committed the offense of aggravated sexual assault with a deadly weapon.

The State indicated that, for reasons beyond its control, it was not practicable to

proceed in juvenile court before appellant’s 18th birthday and/or, after exercising

due diligence, it was not practicable for the State to proceed in the juvenile court

before appellant’s 18th birthday because the State did not have probable cause to

proceed in the juvenile court before appellant’s 18th birthday and that new evidence

had been found since appellant’s 18th birthday.

On February 22, 2021, appellant was served with the petition and summons

for a February 17, 2021 hearing on the petition while he was in the custody of the

Texas Department of Corrections. A bench warrant issued on May 4, 2021. On

May 18, 2023, the bench warrant was recalled, and appellant was taken into custody

for discretionary transfer proceedings.

The juvenile court held a hearing on the State’s petition on September 14,

2023. At that time, appellant was 24 years old and was represented by counsel. The

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juvenile court judge explained to appellant that the court was being asked to transfer

him to stand trial as an adult on the charge of aggravated sexual assault, and that, if

he was transferred to stand trial as an adult, he could receive a punishment ranging

from 5 to 99 years or life imprisonment. In addition, the juvenile court judge

explained to appellant that the court’s charge in connection with the transfer request

was to make a decision about whether probable cause existed in his case.

At the hearing, the State’s witnesses were Detective Allen Holmes, the

investigating officer, and Linyeness Paine, an Assistant Supervisor with the Dallas

County Juvenile Department. Appellant did not testify at the hearing, and he did not

call any witnesses.

Through Detective Holmes, the State established the following. This case was

assigned to the detective within a few days of the occurrence of the alleged offense.

As part of his investigation, he interviewed the complainant, identified by the

pseudonym of Melissa Holmes.1 Melissa relayed to Detective Holmes the events

leading up to the alleged sexual assault. She told him she was outside of her

apartment smoking a cigarette when three individuals she did not know approached

her and asked if she wanted marijuana. She responded “yes” and followed them into

a wooded area next to the apartment complex. The individuals then demanded

1
Detective Holmes explained the pseudonym is comprised of the lead detective’s last name and a first
name chosen by the complainant.

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payment for the marijuana. When Melissa responded that she did not have any

money, the individuals got angry and said she was going to have to pay somehow.

One of the individuals then sexually assaulted her while one of the others held a gun.

Melissa was also beaten, kicked, and hit with rocks. Melissa described the

individuals as black males, ranging in height from 5 feet to 5 feet 8 inches and

indicated that the tallest one was the individual who sexually assaulted her.

Before Detective Holmes interviewed Melissa, she underwent a sexual assault

forensic exam at a nearby hospital. During that exam, evidence was collected and

transferred to the Dallas County Crime Lab where the kit was processed for any form

of a male DNA. In this case, the lab was able to generate a DNA profile, which was

uploaded into the FBI’s Combined DNA Index System (CODIS). Once the DNA

profile is uploaded into CODIS, the system continuously searches for matches with

known offenders. Initially, CODIS did not find any matches to the DNA profile

developed from the evidence collected during the forensic examination of Melissa.

Detective Holmes attempted to develop some suspects but was unable to do

so, and the case went cold. Then on June 9, 2020, he got a “known offender” hit on

the DNA results through CODIS, meaning a known suspect’s DNA matched against

the unknown male DNA profile generated from the analysis of the DNA collected

during Melissa’s forensic exam. Appellant was identified as the known offender

who matched the DNA profile.

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The police department then contacted Melissa to view a lineup to rule out the

DNA belonging to a consensual partner. Melissa did not recognize anyone in the

lineup. Detective Holmes showed Melissa the picture of the individual whose DNA

matched the DNA collected during her forensic exam and asked her if she recognized

the person, and she responded “no.” He also asked her whether the person was

someone who could have been a consensual partner of hers, and she likewise

responded “no.”

Detective Holmes then obtained a search warrant to obtain a buccal DNA

swab from appellant to confirm the match that occurred in the database. Detective

Holmes obtained the buccal swab from appellant on July 15, 2020, while appellant

was incarcerated in the Lindsay Facility of the Texas Department of Criminal

Justice. Detective Holmes received the DNA test report for that buccal swab on

November 16, 2020, confirming appellant’s DNA matched the DNA obtained from

the items in Melissa’s sexual assault kit. At that point, Detective Holmes determined

there was probable cause to believe that appellant committed the offense of

aggravated sexual assault against Melissa.

Linyeness Paine testified that there was an order for a social study evaluation

and investigation to be conducted in this case, but one was not conducted because

appellant did not wish to have the study done. Paine explained that, because of

appellant’s age, he had the option to waive the evaluation. In addition, Paine

established appellant was born on August 23, 1999, and that there had not been an

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adjudication hearing in this case. Paine further indicated that appellant had been

serving time on a separate case, and as soon as he was paroled, he was brought before

the juvenile court pursuant to a bench warrant.

At the conclusion of the hearing, the juvenile court made the findings required

under section 54.02(j) of the Texas Family Code, the provision governing the

transfer in this case. More particularly, in its Waiver of Jurisdiction and Order of

Transfer to a Criminal District Court, the juvenile court judge found appellant is 18

years of age or older, that he was 14 years of age or older, and under 17 years of age

at the time that he is alleged to have committed a felony of the first degree, and no

adjudication hearing concerning the alleged offense had been conducted. See FAM.

§ 54.02(j)(1)(2)(B)(3). In addition, the court found, after use of diligence by the

State, it was not practical to proceed in juvenile court before appellant’s 18th

birthday because probable cause did not then exist as law enforcement did not learn

of appellant’s identity until a CODIS match was made June 9, 2020, and probable

cause was not established until a confirmatory DNA match was obtained on

November 16, 2021. Id. § 54.02(j)(4)(b)(1). The court further found that there is

probable cause to believe that appellant committed the alleged offense and granted

the State’s request for transfer. Id. § 54.02(j)(5).

DISCUSSION

Appellant contends that the delay between the filing of the petition to transfer

and the hearing date denied him his right to a speedy trial under the United States

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and Texas Constitutions. The State asserts appellant did not preserve this complaint

for review because he failed to raise it in the lower court. Assuming, without

deciding, appellant’s counsel’s comments at the conclusion of the hearing,

concerning the time it took to “bench” appellant over to the juvenile court, were

sufficient to preserve his speedy trial complaint for our review, we conclude his

complaint is not sustainable.

A juvenile court has exclusive, original jurisdiction over all proceedings

involving a person who is a “child” when the alleged offense occurred. FAM.

§ 51.04(a). As applicable here, the Family Code defines “child” as one who is ten

years of age or older and under 17 years of age. Id. § 51.02(2). When, as here, the

State does not begin proceedings before the accused’s 18th birthday, the juvenile

court maintains jurisdiction after the accused turns 18 years of age, but such

jurisdiction is limited to either dismissing the case or transferring the case to the

appropriate district court or criminal district court for criminal proceedings under

section 54.02(j) if all criteria are satisfied. Id. § 54.02(j); In the matter of N.J.A.,

997 S.W.2d 554, 556

 (Tex. 1999).

       Pursuant to section 54.02(j), the juvenile court is permitted to waive its

exclusive original jurisdiction and transfer a person to the appropriate district court

or criminal district court for criminal proceedings if (1) the person is 18 years of age

or older, (2) the person was 14 years of age or older and under 17 years of age at the

time the person is alleged to have committed a felony of the first degree other than

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an offense under Section 19.02, Penal Code, (3) no adjudication concerning the

alleged offense has been made or no adjudication hearing concerning the offense has

been conducted, (4) the juvenile court finds from a preponderance of the evidence

that after due diligence of the State it was not practicable to proceed in juvenile court

before the 18th birthday of the person because the State did not have probable cause

to proceed in the juvenile court and new evidence has been found since the 18th

birthday of the person, and (5) the juvenile court determines that there is probable

cause to believe that the child before the court committed the offense alleged. FAM.

§ 54.02(j).

      Appellant concedes, and the record establishes, that the State satisfied the

requirements of 54.02(j), but urges the delay between the filing of the State’s petition

and the transfer hearing violated his right to a speedy trial. We recognize that the

Sixth Amendment to the United States Constitution and Article I, Section 10 of the

Texas Constitution provide a right to a speedy trial in a criminal prosecution. State

v. Lopez,

631 S.W.3d 107

, 113 (Tex. Crim. App. 2021); see U.S. CONST. amend. VI;

TEX. CONST. art. I, § 10. And generally, an evaluation of a speedy trial claim

includes consideration of the length of delay, the reasons for delay, to what extent

the defendant has asserted his right, and any prejudice suffered by the defendant.

Hopper v. State,

520 S.W.3d 915, 924

 (Tex. Crim. App. 2017). But a juvenile

transfer proceeding is civil in character; it does not become criminal unless and until

the juvenile court waives its exclusive jurisdiction and transfers the accused to a

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criminal court for prosecution. Moon v. State,

451 S.W.3d 28, 45

 (Tex. Crim. App.

2014). Thus, speedy trial rights do not apply to a juvenile offender until he is

certified as an adult and transferred to a criminal court. See Deleon v. State,

728 S.W.2d 935, 937

 (Tex. App.—Amarillo 1987, no writ); see also Pratt v. State,

907 S.W.2d 38, 50

 (Tex. App.—Dallas 1995, writ denied) (recognizing discretionary

transfer hearing are not adjudicational but rather are dispositional in nature); M.A.V.,

Jr. v. Webb County Court at Law,

842 S.W.2d 739, 749

 (Tex. App.—San Antonio

1992, writ denied) (because the discretionary hearing is dispositional rather than

adjudicative, the due process that is constitutionally adequate in a civil or criminal

proceeding is not applicable)). Because a juvenile transfer proceeding is not a

criminal prosecution, the right to a speedy trial is not implicated. Accordingly, we

overrule appellant’s speedy trial complaint.

      With respect to appellant’s reference to the summons, the State urges

appellant has failed to adequately brief any complaint regarding same. The Rules of

Appellate Procedure provide that an appellate brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to

the record. TEX. R. APP. P. 38.1(1). While appellant’s brief states, “Texas Family

Code Sec. 54.02(k) states the petition and notice requirements of Texas Family Code

Sections 53.04 [(Court Petition; Answer)], 53.05 [(Time Set for Hearing)]. 53.06

[(Summons)] and 53.07 [(Service of Summons)] must be satisfied, and the summons

must state that the hearing is for the purpose of considering waiver of jurisdiction

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under Subsection (j)[,]” it does not contain any argument in connection with same

and, thus, falls short of the requirements of rule 38.1. To the extent appellant’s

reference to sections 53.06 and 53.07 can nevertheless be construed to be a

jurisdictional challenge, for the reasons set forth herein, we conclude the juvenile

court obtained jurisdiction over appellant.

      The record before us shows appellant was served with the summons and a

copy of the petition on February 22, 2021. The summons directed appellant to

appear on February 17, 2021, at 9:15 a.m. for a hearing for the purpose of

considering waiver of jurisdiction under subsection (j) of section 54.02 of the Texas

Family Code to a criminal district court, a time that had already passed when the

summons was served. The discretionary transfer hearing did not, however, actually

take place until September 14, 2023. At that time, appellant, who was then an adult,

and his attorney appeared at the hearing. Because appellant was personally served

with the petition and summons, the hearing was rescheduled to a date following

service, and appellant personally appeared at the hearing, a defect, if any, in the

service of the summons five days after the hearing was originally scheduled was

waived. See Paz v. State, No. 08-15-00354-CR,

2017 WL 2351349

, at *6 (Tex.

App.—El Paso May 31, 2017, no pet.) (not designated for publication) (determining

that where appellant was an adult at the time of the transfer hearing his personal

appearance waived any technical service deficiency); Mosby v. State, No. 05-99-

01356-CR,

2000 WL 1618469

, at *2 (Tex. App.—Dallas Oct. 31, 2000, no pet.) (not

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designated for publication) (concluding defect in service of summons after hearing

was originally scheduled was waived and juvenile court acquired jurisdiction where

hearing was reset to three weeks after juvenile was personally served and juvenile

personally appeared at the rescheduled hearing). Accordingly, we resolve any

complaint regarding the summons and the juvenile court’s jurisdiction over the

transfer proceeding against appellant.

                                         CONCLUSION

      We affirm the juvenile court’s Waiver of Jurisdiction and Order of Transfer

to a Criminal District Court.




                                            /Nancy Kennedy/
                                            NANCY KENNEDY
                                            JUSTICE
230973F.P05




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                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

IN THE MATTER OF J.B., A                      On Appeal from the 305th Judicial
JUVENILE                                      District Court, Dallas County, Texas
                                              Trial Court Cause No. JD-21-00009-
No. 05-23-00973-CV                            X.
                                              Opinion delivered by Justice
                                              Kennedy. Justices Carlyle and Smith
                                              participating.

     In accordance with this Court’s opinion of this date, the juvenile court’s
Waiver of Jurisdiction and Order of Transfer to a Criminal District Court is
AFFIRMED.


Judgment entered this 28th day of December 2023.




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