William Travis Light v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00043-CR

William Travis Light, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT

NO. 97-674-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING

Appellant William Travis Light was certified by the juvenile court to stand trial as

an adult. After the return of the indictment, appellant entered a plea of guilty before the jury to

the indictment containing three counts of aggravated sexual assault of a child (1) and one count of

indecency with a child. (2) In the unitary trial where punishment was the only issue, (3) the jury

assessed appellant's punishment at 10 years' imprisonment on each of the aggravated sexual assault

of a child counts and 8 years' imprisonment on the indecency with a child count.

Points of Error

Appellant advances four points of error all related to the juvenile court's order

waiving jurisdiction and transferring appellant to a district court to stand trial as an adult. In his

first and fourth points of error, appellant claims that the juvenile court never obtained jurisdiction

to enter the certification order, and hence, the district court did not have jurisdiction to try

appellant in the absence of a valid waiver of jurisdiction by the juvenile court. These points of

error are based on the fact that appellant was not personally served with a summons and a copy

of the petition as required by the provisions of the Family Code and the case law of this state. We

will sustain these contentions, reverse the convictions, and remand the cause. As a result, we will

not reach the second and third points of error challenging the legal sufficiency of the evidence in

the certification hearing to support (1) a finding of probable cause and (2) a finding that the

welfare of the community required criminal proceedings.

Facts

The record reflects that appellant was born on August 22, 1980, and was sixteen

years of age in June 1997 when the alleged offenses occurred. The petition requesting waiver of

jurisdiction and transfer of appellant to criminal court was filed on July 21, 1997. The petition

alleged that on June 18, 19, and 21, 1997, appellant committed the offenses of aggravated sexual

assault of a child by causing the sexual organ of a child younger than 14 years to contact his

mouth, and that on June 21, 1997, he committed the act of indecency with a child by touching the

anus or genitals of a child younger than 17 years of age. The evidence showed that the victim was

appellant's half-sister who was 10 years old at the time.

The record reflects that appellant was not served personally with a summons or a

copy of the petition. The summons directed to appellant was served upon appellant's father by

an investigator for the county attorney's office.

The certification hearing was conducted on August 8, 1997, in the 338th District

Court, sitting as a juvenile court. Appellant appeared with his father and his attorney. At the

commencement of the proceedings the juvenile court inquired of appellant if he had been "served

with notice of this summons two entire days before today?" Appellant answered in the

affirmative. The order waiving jurisdiction stated: "The Court finds that all those entitled to

service of summons were properly served with summons in compliance with 53.07, Texas Family

Code, and that this Court has jurisdiction to proceed." The record reflects only one attempted

service of summons on appellant.

The record further reflects that appellant's natural parents were divorced. At the

age of two he began to live with his maternal grandparents. Later, he began living with his natural

father and the father's second wife, the mother of the victim. In 1995 appellant was placed on

juvenile probation for one year as a result of a sexual act committed on the same complainant, his

then eight-year-old half-sister. Appellant was placed in the home of his paternal grandparents.

Appellant's father and his step-mother divorced. After appellant successfully completed his

juvenile probation, and during the summer of 1997, appellant again had contact with his half-sister. This is when the offenses occurred. Appellant suffers from an attention deficit

hyperactivity disorder and had been given Ritalin, a medication, for his disorder.

Dave Murray, a juvenile probation officer, recommended to the juvenile court at

the hearing that the 16 year old appellant be left within the juvenile justice system. It was noted

that appellant had no other criminal record save the offenses against a family member. The

prosecutor stated to the court that he did not want appellant to go to prison, but felt that appellant

needed adult probation. The juvenile court certified appellant to stand trial as an adult.

After indictment, appellant pleaded guilty before a jury to the felony offenses. He

sought probation from the jury because the trial judge could not grant probation as a result of the

nature of the offenses. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3g(a)(1)(C), (E) (West

Supp. 1999). The jury is under no such prohibition in considering probation. See Tex. Code

Crim. Proc. Ann. art. 42.12, § 4 (West Supp. 1999). The jury during its deliberations asked

questions about treatment and who "mandated" any condition of probation. The trial court

declined to answer the questions. The jury then assessed the three 10-year prison terms and the

one 8-year prison term.

Article 44.47 of the Texas Code of Criminal Procedure

Prior to its 1995 amendment, (4) section 56.01(c)(1)(A) of the Family Code governed

the right of appeal from an order of the juvenile court waiving jurisdiction and transferring the

juvenile to district court to stand trial as an adult. See Act of May 23, 1991, 72d Leg., R.S., ch.

680, § 1, 1991 Tex. Gen. Laws 2466 . Any appeal of the transfer order was to be taken to a court

of appeals with a possible review by the supreme court. See id . If there was no appeal or if the

juvenile court order was affirmed in the civil appellate process, the case proceeded to the district

court to be handled as a criminal case. If there was a criminal conviction, an appeal would be

permitted as in other criminal cases. The failure to appeal a transfer order to a civil appellate

court would not waive a jurisdictional defect in the transfer process. The issue could be raised for

the first time on appeal from a criminal conviction after the transfer. See Johnson v. State , 594

S.W.2d 83, 86 (Tex. Crim. App. 1980), overruled on other grounds , Hardesty v. State , 659

S.W.2d 823, 825 (Tex. Crim. App. 1985); Johnson v. State , 551 S.W.2d 379, 380 (Tex. Crim.

App. 1977).

Presently under article 44.47, a defendant may still appeal a juvenile court order

waiving jurisdiction and transferring him to a district court for trial as an adult, but the appeal may

be taken only in conjunction with an appeal of a conviction of the offense for which the defendant

was transferred to a criminal court. See Tex. Code Crim. Proc. Ann. art. 44.47(a), (b) (West

Supp. 1999) (Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 85, 1995 Tex. Gen. Laws 2517 ,

2584, effective January 1, 1996). The appeal is a criminal matter governed by the Code of

Criminal Procedure and the Texas Rules of Appellate Procedure that apply to a criminal case. See

Tex. Code Crim. Proc. Ann. art. 44.47(c) (West Supp. 1999). "Any appeal under this article may

include claims under the laws that existed before January 1, 1996, that could have been raised on

direct appeal of a transfer under section 54.02, Family Code." Tex. Code Crim. Proc. Ann. art.

44.47(d) (West Supp. 1999); see generally In the Matter of D. D. , 938 S.W.2d 172 , 173-74 (Tex.

App.--Fort Worth 1996, no pet.).

Article 44.47 is clearly applicable to the instant case where the conduct involved

occurred in June 1997. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 106(a), 1995 Tex.

Gen. Laws 2517 , 2591 (providing the revision applies "only to conduct that occurs on or after

January 1, 1996"). See also D. D. , 938 S.W.2d at 174.

Article 54.02 of Texas Family Code

"The Texas juvenile justice system is a creature of statute. Therefore, juvenile

rights not protected by the Texas or United States Constitutions exist only to the extent that they

have been created by the legislature." In the Matter of S.L.S. , 906 S.W.2d 190 , 192 (Tex.

App.--Austin 1995, no writ).

Section 54.02 of the Texas Family Code provides the procedure for the waiver of

jurisdiction by the juvenile court and the discretionary transfer to a district court for trial as an

adult. Tex. Fam. Code Ann. § 54.02 (West 1996). Subsection (b) of section 54.02 provides:

"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 hearing is for the purpose of considering

discretionary transfer to a criminal court." Tex. Fam. Code Ann. § 54.02 (b) (West 1996). Thus,

the petition and notice requirement of Chapter 53 dealing with juvenile delinquency proceedings

are applicable to the certification hearings.

Sections 53.04 and 53.05 pertain to the petition, answer, and time set for a hearing.

See Tex. Fam. Code Ann. §§ 53.04 , .05 (West 1996). Section 53.06 of the Code provides that

the juvenile court shall direct issuance of a summons to the child named in the petition, the child's

parent, guardian, guardian ad litem, custodian, or on any other person who appears to be a

necessary party to the proceeding. A copy of the petition must accompany the summons which

requires the person to appear at the time set to answer the allegations of the petition. Tex. Fam.

Code Ann. § 53.06 (a)(b) (West 1996). Section 53.06(e) expressly provides "a party, other than

the child , may waive service of summons by written stipulation or by voluntary appearance at the

hearing." Tex. Fam. Code Ann. § 53.06 (e) (West 1996) (emphasis added).

Section 53.07(a) of the Code provides that if a person who is to be served with a

summons is in the state and can be found he shall be served personally at least two days before

the hearing. Tex. Fam. Code Ann. § 53.07 (a) (West 1996). Subsection (b) provides:

The juvenile court has jurisdiction of the case if after a reasonable effort a person

other than the child cannot be found nor his post office address ascertained, whether

he is in or outside of this state.

Id . § 53.07(b) (emphasis added).

Compliance

Compliance with section 54.02(b) is mandatory. See Polanco v. State , 914 S.W.2d

269, 270 (Tex. App.--Beaumont 1996, pet. ref'd). Thus, sections 53.04 through 53.07 must be

satisfied in proceedings to certify a youthful offender for criminal prosecution as an adult. See

McBride v. State , 655 S.W.2d 280, 283 (Tex. App.--Houston [14th Dist.] 1983, no pet.). The

statutory requirements are "nothing more than a codification of the long-standing requirement for

personal service upon minors." See In re M.W. , 523 S.W.2d 513 , 515 (Tex. Civ. App.--El Paso

1975, no writ). (5) The "other than the child" language in section 53.06(e) reflects the common law

rule that a minor is without legal capacity under the law to waive service of summons. In re

D.W.M. , 562 S.W.2d 851, 853 (Tex. 1978). Thus, a juvenile cannot waive the service of process

in a discretionary transfer proceeding. See In the Matter of H.R.A. , 790 S.W.2d 102, 107-08

(Tex. App.--Beaumont 1990, no writ). Nor can anyone waive it for him. D.W.M. , 562 S.W.2d

at 853 .

The personal service of process on the juvenile must affirmatively appear of record.

Id . In the absence of a citation served on the juvenile, the juvenile court does not acquire

jurisdiction to consider discretionary transfer. See McBride , 655 S.W.2d at 283 ; Watson v. State ,

587 S.W.2d 161, 162 (Tex. Crim. App. 1979).

Both the Supreme Court of Texas and the Court of Criminal Appeals have

consistently held that the jurisdiction of the juvenile court is lacking where the record discloses

that the juvenile has not been personally served with a summons to a certification hearing. See

D.W.M. , 562 S.W.2d at 852 ; In re W.L.C. , 562 S.W.2d 454, 455 (Tex. 1978); Grayless v. State ,

567 S.W.2d 216, 218 (Tex. Crim. App. 1978); Johnson , 551 S.W.2d at 381 . The juvenile's

appearance at the hearing and the failure to object to the lack of a proper summons does not

constitute a waiver. Grayless , 567 S.W.2d at 219-20 ; DeLeon v. State , 728 S.W.2d 935, 939

(Tex. App.--Amarillo 1987, no pet.). The same is true even if an answer is filed by an attorney

for the juvenile. See M.W. , 523 S.W.2d at 515. Moreover, the fact that the juvenile appeared

at the hearing with his attorney and his mother and "no harm" was alleged or shown is of no

consequence. See H.R.A. , 790 S.W.2d at 107 . Any transfer order without valid service is a

nullity. Polanco , 914 S.W.2d at 270 . The juvenile court never acquired jurisdiction over

appellant in this case. The State would have it another way and presents argument.

State's Argument

The State does not challenge the legion of cases holding that the juvenile court is

without jurisdiction in the absence of personal service upon the juvenile. The State divides its

answer to points of error one and four into three parts: (1) failure to preserve error, (2) proper

personal service, and (3) harmless error.

Failure to Preserve

The district attorney separates his failure to preserve error argument into three

claims: first, appellant failed to follow the statutory requirement for raising a jurisdiction issue;

second, appellant failed to follow the appellate rules of procedure; and third, appellant waived any

error by pleading guilty in district court.

Article 4.18 of the Texas Code of Criminal Procedure

The State takes the position that appellant was statutorily required to raise in the

district court by written motion the issue of that court's jurisdiction over him, and that failure to

do so waived the claim now advanced. See Tex. Code Crim. Proc. Ann. art. 4.18 (West Supp.

1999).

Article 4.18(a) provides:

(a) A claim that a district court or criminal district court does not have jurisdiction

over a person because jurisdiction is exclusively in the juvenile court and that the

juvenile court could not waive jurisdiction under Section 8.07(a), Penal Code, or

did not waive jurisdiction under Section 8.07(b), Penal Code, must be made by

written motion in bar of prosecution filed with the court in which criminal charges

against the person are filed. (6)

A careful reading shows that article 4.18 is expressly limited to situations where

the juvenile court could not waive jurisdiction under section 8.07(a) of the Penal Code or did not

waive jurisdiction under section 8.07(b) of the Penal Code, regarding age affecting criminal

responsibility. See Tex. Penal Code Ann. § 8.07 (West Supp. 1999).

At the time of the instant offenses, section 8.07(a) prohibited, with certain

exceptions, prosecution or conviction of an individual under the age of fifteen. Section 8.07(b)

in effect at the time provided that no person under the age of seventeen may be prosecuted unless

the juvenile court waived jurisdiction under section 54.02 of the Family Code and its guidelines.

See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 77, 1995 Tex. Gen. Laws 2517 , 2581,

effective January 1, 1996. (7)

It is obvious that article 4.18 was added to the Code of Criminal Procedure to

overcome the holding in Bannister v. State , 552 S.W.2d 124 (Tex. Crim. App. 1977), which read

1974 Penal Code provisions in light of the juvenile court's jurisdiction under the Family Code.

See Robert O. Dawson, Texas Juvenile Law: An Analysis of Juvenile Statutory and Case Law For

Texas Juvenile Justice Officials , Ch. 3, pp. 25-27 (4th Ed. 1996); 343 George E. Dix and Robert

O. Dawson, Criminal Practice and Procedure , § 45.91 at 489-90 (Texas Practice 1995). In

Bannister , the defendant "played the game of 'courts' and won." Bannister, 552 S.W.2d at 125 .

Using a false name, and leading her attorney and the trial court to believe she was 19 years old

or older, the defendant pleaded guilty to the burglary of a habitation and received probation. At

the time of revocation of probation, Bannister proved that she was 15 years old at the time of the

guilty plea and now 18 years old. Upon review, it was held that neither the juvenile court nor the

district court had jurisdiction over her in view of the Family Code provisions and section 8.07 of

the 1974 Penal Code. Id. at 130 ; see also Ex parte Pierce , 621 S.W.2d 634 (Tex. Crim. App.

1981); Ex parte McCullough , 598 S.W.2d 272 (Tex. Crim. App. 1982); Robert O. Dawson ,

Responding to Misrepresentations, Nondisclosures and Incorrect Assumptions about the Age of

Accused: The Jurisdictional Boundary Between Juvenile and Criminal Courts in Texas , 18 St.

Mary's Law Journal 1117-1164 (1978) (discussing the Bannister opinion and related cases).

Jurisdiction, being a fundamental stricture on the power of the court, cannot be

conferred by agreement, consent, or waiver, where none exists. See Lemley v. State , 932 S.W.2d

284, 286 (Tex. App.--Austin 1996, no writ); Gonzalez v. Sanchez , 929 S.W.2d 218 , 221 (Tex.

App.--El Paso 1996, no writ); Howell v. Mauzy , 899 S.W.2d 696, 699 (Tex. App.--Austin 1994,

writ denied). If it can be said that a defendant waives a jurisdictional claim when he does not

timely follow a statutory procedure, article 4.18 does not provide an all-inclusive procedure but

is limited by its very terms to situations involving age.

Article 4.18 is not applicable to situations where, as here, the juvenile court has not

acquired jurisdiction because of a defect in the service of the summons and petition upon the

juvenile which in turn deprives the district court of jurisdiction.

Although not cited by the State, we are aware of Miller v. State , 981 S.W.2d 447

(Tex. App.--Texarkana 1998, pet. ref'd). In Miller , the juvenile defendant was indicted and tried

for an offense different or other than the offense involved in the certification order of the juvenile

court. Id. at 448 . The appellate court held that article 4.18 "now governs claims that the trial

court does not have jurisdiction over a person because jurisdiction is exclusively in the juvenile

court and that the juvenile court did not waive jurisdiction." Id . at 449. The Miller court affirmed

the conviction because the defendant failed to file his article 4.18 motion. Id . The reviewing

court overlooked the limited application of article 4.18. Moreover, the court did not take into

consideration the provisions of article 44.47(b) of the Code of Criminal Procedure or section

8.07(b) of the Penal Code with regard to the uncertified offense. We decline to follow Miller . (8)

The State's reliance upon article 4.18 is misplaced.

Next, the State argues that appellant failed to preserve error in the absence of a

timely specific objection and a ruling by the trial court. See Tex. R. App. P. 33.1(a). The State

does not make clear whether the objection should have been lodged in juvenile or district court.

It does argue that the error in failing to deliver the summons personally was procedural in nature,

not jurisdictional, and that a timely objection was essential.

To support its claim of nonjurisdictional error, the State cites Davis v. State , 956

S.W.2d 555 (Tex. Crim. App. 1997). On appeal Davis, challenged the order revoking probation

previously granted for the offense of possession of a controlled substance. He claimed that the

order of the magistrate [working in the district court system] accepting his plea of guilty and

placing him on probation was void as jurisdiction was lacking. This claim was based on the fact

that the district court's order referring the case to the magistrate was signed two days after the plea

and was untimely. The court of appeals agreed and reversed the conviction. See Davis v. State ,

928 S.W.2d 289, 291 (Tex. App.--Houston [14th Dist.] 1991). The Court of Criminal Appeals

reversed and affirmed the trial court. It stated:

The error in this case concerned the process by which the district court judge

referred this case to its surrogate, whose acts were adopted by the trial court.

Therefore, jurisdiction was not affected and the order placing appellant on

probation was not void even though a procedural irregularity arose due to the

untimeliness of the referral order. This is not to say that the case was properly

transferred only that the error was not jurisdictional and the conviction is not void.

Davis , 956 S.W.2d at 560 .

A judgment is void only if the court rendering the judgment has no jurisdiction over

the subject matter, no personal jurisdiction over a party, no jurisdiction to enter the particular

judgment, or no capacity to act as a court. See Adams v. State , 827 S.W.2d 31, 33 (Tex.

App.--Dallas 1992, no pet.). In Davis , the district court had all the necessary elements of

jurisdiction. The only error was the belated referral to the magistrate acting as a surrogate. Davis

is distinguishable from the instant case.

The State also cites Fontenot v. State , 932 S.W.2d 185, 190 (Tex. App.--Fort

Worth 1996, no pet.), for the proposition that if the court has jurisdiction of the parties and subject

matter, its actions are not void no matter how erroneous they may be. The broad statement in

Fontenot is questionable as it does not consider all the elements of jurisdiction. Moreover, in

Fontenot , the court had personal jurisdiction of the defendant which distinguishes it from the

instant case.

Third, the State argues that when appellant pleaded guilty before the jury in district

court, he waived all nonjurisdictional defects. See Jacks v. State , 871 S.W.2d 741 (Tex. Crim.

App. 1994). The case law clearly holds the error here was jurisdictional, thus Jacks is

inapplicable.

We reject the State's argument that appellant somehow failed to preserve error. A

lack of jurisdiction may be questioned at any stage of the proceedings, even on appeal. See

Methodist Hospitals of Dallas v. Texas Workers' Compensation Comm'n , 874 S.W.2d 144, 149

(Tex. App.--Austin 1994, no writ); Lopez v. State , 756 S.W.2d 49, 51 (Tex. App.--Houston [1st

Dist.] 1988, pet. ref'd). This is true in both civil and criminal matters. See Ex parte Rogers , 820

S.W.2d 35, 37 (Tex. App.--Corpus Christi 1991, no pet.).

Proper Personal Jurisdiction

The State further contends that the service of the summons and petition on appellant

was proper. It relies upon appellant's affirmative answer to the juvenile court's inquiry about

service and the finding in the juvenile court's order that "all" persons had been properly

summoned in compliance with section 53.07 of the Family Code. The State urges the presumption

of regularity normally given to the judgments and orders of the trial court. See Breazeale v. State ,

683 S.W.2d 446, 450-51 (Tex. Crim. App. 1985) (op. on reh'g).

"Texas appellate courts have refused to apply a 'presumption of regularity' to

discretionary transfer proceedings." 29 Thomas S. Morgan, Juvenile Law and Practice § 422,

at 111-12 (Texas Practice 1985). See also White v. State , 576 S.W.2d 843, 845 (Tex. Crim. App.

1979); Whytus v. State , 624 S.W.2d 290, 291 (Tex. App.--Dallas 1981, no pet.); L. M. v. State ,

618 S.W.2d 808, 811 (Tex. App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). The governing

statutes in certification or discretionary transfer proceedings are mandatory to which there has

been a strict adherence. See In re J.R.C. 522 S.W.2d 579, 584 (Tex. Civ. App.--Texarkana

1975, writ ref'd n.r.e.).

The State admits that there is evidence in the record contrary to the juvenile court's

order. It makes no claim that there was a second or independent service of summons on appellant.

The cases discussed earlier make clear that a juvenile cannot legally waive the personal service

of the summons in a certification hearing. Nevertheless, the State argues that under the

circumstances, appellant, in effect, waived such service. It observed, however, that under Title

3 of the Juvenile Justice Code of Chapter 51 of the Family Code, any right granted to a child

under the title or by the constitution and laws of this state or the United States may be waived only

if the waiver is made by the child and his attorney after being duly warned of the right and the

consequences of waiving it, is voluntary, and is made in writing or in a recorded court proceeding.

See Tex. Fam. Code Ann. § 51.09 (a) (West 1996). No such waiver appears in the instant record.

Harmless Error

Lastly, the State urges that the nonconstitutional error was harmless. See Tex. R.

App. P. 44.2(b). The rule provides: "[A]ny other [than constitutional] error, defect, irregularity,

or variance that does not affect substantial rights must be disregarded." "A substantial right is

affected when the error had a substantial and injurious effect or influence in determining the jury's

verdict." King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United

States , 328 U.S. 750, 776 (1946)).

The State relies upon Cain v. State , 947 S.W.2d 262 (Tex. Crim. App. 1997), in

its interpretation of former Rule 81(b)(2), the forerunner of Rule 44.2(b). In Cain , the court

wrote: "Except for certain federal constitutional errors labeled by the United States Supreme

Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any

other mandatory requirement, is categorically immune to a harmless error analysis." Id . at 264.

But the court later added: "Hence, it may be true that some kinds of errors (particularly

jurisdictional ones) will never be harmless under the Rule 81(b)(2) test and that some other kinds

of error will rarely be harmless." Id .

The Cain court asserted that jurisdictional error is not immune from harmless error

analysis, but immediately softened the boldness of its earlier statement by recognizing that some

jurisdictional error will never be harmless.

Rule 81(b)(2) has been superseded by Rule 44.2 which has divided the harmless

error analysis into one for constitutional error and one for nonconstitutional error. We need not

determine, however, whether the instant jurisdictional error is subject to a harmless error analysis.

Section 22.108(a) of the Texas Government Code provides:

(a) The court of criminal appeals is granted rulemaking power to promulgate rules

of posttrial, appellate, and review procedure in criminal cases except that its rules

may not abridge, enlarge, or modify the substantial rights of a litigant .

Tex. Gov't Code Ann. § 22.108 (a) (West 1988) (emphasis added); State v. Hardy , 963 S.W.2d

516 (Tex. Crim. App. 1997).

In determining the meaning of a statute, the starting point is the language of the

statute itself. When the language of the statute is unambiguous, we must give effect to the plain

meaning of the words unless doing so would lead to absurd results. See Boykin v. State , 818

S.W.2d 782 , 785-86 n.4 (Tex. Crim. App. 1991). Section 22.108(a) is unambiguous and must

be given its plain meaning. Rule 44.2(b) adopted by the Court of Criminal Appeals cannot abridge

or modify the substantial rights of appellant afforded him by the mandatory Family Code statutes

as consistently interpreted by the two high courts of this state. We reject all of the State's

arguments.

Non-compliance with section 54.02 of the Texas Family Code deprived the juvenile

court of jurisdiction; thus, the district court never acquired jurisdiction. "If a jurisdictional defect

renders a step void, then there is no jurisdiction to proceed with the next step." Watson , 587

S.W.2d at 163 . Appellant's first and fourth points of error are sustained.

The judgment is vacated and the cause remanded to the juvenile court for action not

inconsistent with this opinion. (9)

John F. Onion, Jr., Justice

Before Justices Jones, Patterson and Onion *

Vacated and Remanded

Filed: April 15, 1999

Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

1. See Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 7, 1995 Tex. Gen. Laws 2734 , 2737.

Tex. Penal Code Ann. § 22.021 (a)(2)(B) (West Supp. 1999), the current code provision, became

effective September 1, 1997, after the commission of the instant offense. There was, however,

no basic change in the law.

2. See Tex. Penal Code Ann. § 21.11 (a)(1) (West 1994).

3. A plea of guilty to a felony charge or offense before a jury admits the existence of all facts

necessary to establish guilt, and the introduction of evidence is to enable the jury to intelligently

exercise the discretion invested in the jurors by law in assessing punishment. See Carroll v. State ,

975 S.W.2d 630, 631-32 (Tex. Crim. App. 1998); Darden v. State , 430 S.W.2d 494, 495 (Tex.

Crim. App. 1968). The proceeding is a unitary trial, not a bifurcated one. See Tex. Code Crim.

Proc. Ann. art. 27.13 (West 1989); Frame v. State , 615 S.W.2d 766 , 767 n.1 (Tex. Crim. App.

1981) (citing Basaldua v. State , 481 S.W.2d 851, 853 (Tex. Crim. App. 1972) (op. on reh'g)).

4. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 48, 1995 Tex. Gen. Laws 2517 ,

2546.

5. M.W. cited, inter alia, Wheeler v. Ahrenbeak , 54 Tex. 535 (Tex. 1881) (holding right of

service could not be waived by minor even though "no injustice in fact was done by failure to

serve the minor defendants personally with process") and Wright v. Jones , 52 S.W.2d 247 (Tex.

Comm'n App. 1932, holding approved) (noting that a person non sui juris, such as a minor,

cannot appear and thereby confer jurisdiction of court over him). M.W. , 523 S.W.2d at 514.

6. The balance of the statute deals principally with procedure:

(b) The motion must be filed and presented to the presiding judge of the court:

(1) if the defendant enters a plea of guilty or no contest, before the plea;

(2) if the defendant's guilt or punishment is tried or determined by a jury,

before selection of the jury begins; or

(3) if the defendant's guilt is tried by the court, before the first witness is

sworn.

(c) Unless the motion is not contested, the presiding judge shall promptly conduct

a hearing without a jury and rule on the motion. The party making the motion has

the burden of establishing by a preponderance of the evidence those facts necessary

for the motion to prevail.

(d) A person may not contest the jurisdiction of the court on the ground that the

juvenile court has exclusive jurisdiction if:

(1) the person does not file a motion within the time requirements of this

article; or

(2) the presiding judge finds under Subsection (c) that a motion made under

this article does not prevail.

(e) An appellate court may review a trial court's determination under this article,

if otherwise authorized by law, only after conviction in the trial court.

(f) A court that finds that it lacks jurisdiction over a case because exclusive

jurisdiction is in the juvenile court shall transfer the case to the juvenile court as

provided by Section 51.08, Family Code.

Tex. Code Crim. Proc. Ann. art. 4.18(b)-(f) (West Supp. 1999).

7. The current law is basically the same. See Tex. Penal Code Ann. § 8.07 (West Supp. 1999).

8. The petition for discretionary review in Miller v. State , No. 0034-99 (Tex. Crim. App.), did

not clearly raise or even brief the issue of the limited application of article 4.18, or mention the

language of article 44.47(b) relating to a conviction of the "offense for which the defendant was

transferred to criminal court." Tex. Code Crim. Proc. Ann. art. 44.47(b) (West Supp. 1999).

The petition was refused March 10, 1999.

9. The juvenile court retains the power to transfer a child to criminal court for prosecution as

an adult until the transfer decision has been finally decided even though the child may become 18

years of age during the proceedings. See Tex. Fam. Code Ann. §§ 51.041 , 54.02 (West 1996);

R.E.M. v. State , 569 S.W.2d 613 , 615 (Tex. Civ. App.--Waco 1981, writ ref'd n.r.e.).

. State, 430 S.W.2d 494, 495 (Tex.

Crim. App. 1968). The proceeding is a unitary trial, not a bifurcated one. See Tex. Code Crim.

Proc. Ann. art. 27.13 (West 1989); Frame v. State , 615 S.W.2d 766 , 767 n.1 (Tex. Crim. App.

1981) (citing Basaldua v. State , 481 S.W.2d 851, 853 (Tex. Crim. App. 1972) (op. on reh'g)).

4. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 48, 1995 Tex. Gen. Laws 2517 ,

2546.

5. M.W. cited, inter alia, Wheeler v. Ahrenbeak , 54 Tex. 535 (Tex. 1881) (holding right of

service could not be waived by minor even though "no injustice in fact was done by failure to

serve the minor defendants personally with process") and Wright v. Jones , 52 S.W.2d 247 (Tex.

Comm'n App. 1932, holding approved) (noting that a person non sui juris, such as a minor,

cannot appear and thereby confer jurisdiction of court over him). M.W. , 523 S.W.2d at 514.

6. The balance of the statute deals principally with procedure:

(b) The motion must be filed and presented to the presiding judge of the court:

(1) if the defendant enters a plea of guilty or no contest, before the plea;

(2) if the defendant's guilt or punishment is tried or determined by a jury,

before selection of the jury begins; or

(3) if the defendant's guilt is tried by the court, before the first witness is

sworn.

(c) Unless the motion is not contested, the presiding judge shall promptly