in the Matter of D. D. ( 1996 )

DD729 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00729-CV



In the Matter of D. D.





FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 94-022-J368, HONORABLE BURT CARNES, JUDGE PRESIDING

PER CURIAM

BACKGROUND

This is an appeal from a juvenile court order waiving jurisdiction and transferring appellant to district court for prosecution. See Tex. Fam. Code Ann. § 54.02 (West 1996). ⁽¹⁾ The petition accused appellant of two counts of unauthorized use of a motor vehicle and two counts of aggravated kidnapping. On the State's motion, the juvenile court rendered an order of nonsuit dismissing both unauthorized use counts and one of the aggravated kidnapping counts. The court then waived its jurisdiction and transferred appellant to district court for trial on the remaining kidnapping count.

Appellant contends the juvenile court erred in granting the State's motion to dismiss because it was untimely. He further contends that the juvenile court retained jurisdiction over the three dismissed counts and could not lawfully transfer appellant to district court for trial on the fourth count. Appellant also complains that the transfer order violated his right to due process. We will affirm the order of the juvenile court.

DISCUSSION

By his first point of error, appellant complains that the juvenile court improperly granted the State's motion for nonsuit because it was untimely. He also argues that the transfer was ineffectual because a juvenile court may not retain jurisdiction as to some offenses and transfer jurisdiction over others. We will first address appellant's question of timeliness.

The State moved to dismiss three of the four counts against appellant after it had rested at the waiver and transfer hearing. Appellant alleges that this motion came too late, that it should have been made prior to the close of the State's case. Appellant relies on Texas Rule of Civil Procedure 162 which provides, in pertinent part:

At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. . . .

Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief. . . .

Tex. R. Civ. P. 162; see Hyundai v. Alvarado, 892 S.W.2d 853, 854 (Tex. 1995); Aetna Casualty & Sur. Co. v. Specia, 849 S.W.2d 805, 806 (Tex. 1993) (general rule that plaintiff has right to nonsuit at any time until introduction of all evidence other than rebuttal evidence). The purpose of rule 162 is to fix a definite time after which a party may not voluntarily dismiss or nonsuit the cause of action. Plaintiff's right to nonsuit or dismiss is well recognized and subject to few limitations. Hoodless v. Winter, 16 S.W. 427, 428 (Tex. 1891); 5 McDonald Texas Civil Practice §§ 27.39-.41 (1992). It is appellant's specific assertion that because the State's motion was untimely, it was erroneously granted.

The Rules of Civil Procedure apply to precertification proceedings only as far as practicable. See Tex. Fam. Code Ann. § 51.17 (West 1996); Brenan v. Court of Civil Appeals 14th District, 444 S.W.2d 290, 292 (Tex. 1968); In re M.R., 846 S.W.2d 97, 100 (Tex. App.--Fort Worth, 1993, writ denied). Rule 162 contemplates nonsuit at anytime prior to the closing of the plaintiff's evidence during a trial on the merits. In re R.G., 865 S.W.2d 504, 508 (Tex. App.--Corpus Christi 1993, no writ). A hearing on the State's petition for discretionary transfer to criminal court is not a trial on the merits. Id.; In re D.W.L., 828 S.W.2d 520, 524-25 (Tex. App.--Houston [14th Dist.] 1992, no writ); In re J.D.P. v. State, 609 S.W.2d 868, 870 (Tex. Civ. App.--Dallas 1979, no writ); In re P.A.C., 562 S.W.2d 913, 915 (Tex. Civ. App.--Amarillo 1978, no writ). In a transfer proceeding it is not the function of the trial court to determine the juvenile's guilt or innocence of an alleged offense. In re I.B., 619 S.W.2d 584 (Tex. Civ. App.--Amarillo 1981, no writ). Instead, the sole purpose of the hearing is to determine whether the juvenile's and society's best interest would be served by maintaining juvenile jurisdiction over the child or by transferring the juvenile to the appropriate district court for adult proceedings. In re Honsaker, 539 S.W.2d 198, 201 (Tex. Civ. App.--Dallas 1976, writ ref'd n.r.e.). In making this determination, the court strives to promote a full and thorough investigation of the background and circumstances of the child as well as of the alleged offense. See J.D.P., 609 S.W.2d at 870. Because the waiver and transfer proceeding was not a trial on the merits, the juvenile court did not err in granting the State's motion to nonsuit.

We now turn to appellant's assertion that the transfer of one count to the district court was improper because the juvenile court retained jurisdiction over the other counts. Appellant correctly states that a juvenile court cannot both retain jurisdiction over one count in a certification petition and waive jurisdiction as to others in the same petition. Tex. Fam. Code Ann. § 54.02(g). If a juvenile court retains jurisdiction over any of the charges alleged in the State's motion to transfer, the child is not subject to adult criminal prosecution for the offenses alleged in the petition. Richardson v. State, 770 S.W.2d 797, 799 (Tex. Crim. App. 1989); See also Mason v. State, 778 S.W.2d 487, 488 (Tex. Crim. App. 1989).

In the present case, the juvenile court retained jurisdiction only over one of the charges alleged in the petition to transfer; it dismissed the other three charges. The order of nonsuit recites that "Counts One, Two, and Four of the State's Original Petition Requesting Waiver of Jurisdiction and Transfer to Criminal Court . . . are hereby dismissed with prejudice." Moreover, the waiver of jurisdiction and order of transfer recites: "After conducting such full investigation, . . . the court finds that the welfare of the community requires criminal proceedings, and that this court should waive its exclusive, original jurisdiction of this cause as to the felony offenses alleged in Count 3. . . ."

The juvenile court may adjudicate delinquency, dismiss charges pending in it against a juvenile, or waive its jurisdiction in favor of prosecution as an adult in district court. In the instant case, the court waived its jurisdiction as to one of the charges and dismissed the remaining charges. We hold that the juvenile court did not retain jurisdiction over the charges dismissed. Therefore the transfer order was effective to transfer jurisdiction over the remaining count to the district court. Appellant's first point of error is overruled.

In a second and final point of error, appellant urges that his right to due process in an adversarial system was violated by the juvenile court's order of transfer. Because a proceeding on the State's motion for discretionary transfer is not a trial on the merits, we believe that appellant's point is ill-founded. See In re G.R.L. v. State, 581 S.W.2d 536, 538 (Tex. Civ. App.--Dallas 1979, no writ) (due process does not prohibit introduction of hearsay testimony in discretionary transfer hearing before juvenile court). A State's petition requesting the juvenile court to waive jurisdiction and transfer a case to the district court is addressed to the court's discretion. In re M.I.L., 601 S.W.2d 175, 177 (Tex. Civ. App.--Corpus Christi 1980, no writ). Absent a showing of an abuse of discretion, the juvenile court's findings will not be disturbed. In re D.W.L., 828 S.W.2d at 525. We have considered whether the juvenile court acted without reference to any guiding principles or whether the action of the court was arbitrary and unreasonable as to amount to an abuse of discretion. We conclude that the juvenile court did not abuse its discretion by transferring appellant to district court for criminal proceedings. Appellant's second point of error is overruled.

CONCLUSION

The order of the juvenile court is affirmed.

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: July 31, 1996

Do Not Publish

1. ¹  The 1996 amendments to this section are irrelevant to this appeal.

te, 609 S.W.2d 868, 870 (Tex. Civ. App.--Dallas 1979, no writ); In re P.A.C., 562 S.W.2d 913, 915 (Tex. Civ. App.--Amarillo 1978, no writ). In a transfer proceeding it is not the function of the trial court to determine the juvenile's guilt or innocence of an alleged offense. In re I.B., 619 S.W.2d 584 (Tex. Civ. App.--Amarillo 1981, no writ). Instead, the sole purpose of the hearing is to determine whether the juvenile's and society's best interest would be served by maintaining juvenile jurisdiction over the child or by transferring the juvenile to the appropriate district court for adult proceedings. In re Honsaker, 539 S.W.2d 198, 201 (Tex. Civ. App.--Dallas 1976, writ ref'd n.r.e.). In making this determination, the court strives to promote a full and thorough investigation of the background and circumstances of the child as well as of the alleged offense. See J.D.P., 609 S.W.2d at 870. Because the waiver and transfer proceeding was not a trial on the merits, the juvenile court did not err in granting the State's motion to nonsuit.

We now turn to appellant's assertion that the transfer of one count to the district court was improper because the juvenile court retained jurisdiction over the other counts. Appellant correctly states that a juvenile court cannot both retain jurisdiction over one count in a certification petition and waive jurisdiction as to others in the same petition. Tex. Fam. Code Ann. § 54.02(g). If a juvenile court retains jurisdiction over any of the charges alleged in the State's motion to transfer, the child is not subject to adult criminal prosecution for the offenses alleged in the petition. Richardson v. State, 770 S.W.2d 797, 799 (Tex. Crim. App. 1989); See also Mason v. State, 778 S.W.2d 487, 488 (Tex. Crim. App. 1989).

In the present case, the juvenile court retained jurisdiction only over one of the charges alleged in the petition to transfer; it dismissed the other three charges. The order of nonsuit recites that "Counts One, Two, and Four of the State's Original Petition Requesting Waiver of Jurisdiction and Transfer to Criminal Court . . . are hereby dismissed with prejudice." Moreover, the waiver of jurisdiction and order of transfer recites: "After conducting such full investigation, . . . the court finds that the welfare of the community requires criminal proceedings, and that this court should waive its exclusive, original jurisdiction of this cause as to the felony offenses alleged in Count 3. . . ."

The juvenile court may adjudicate delinquency, dismiss charges pending in it against a juvenile, or waive its jurisdiction in favor of prosecution as an adult in district court. In the instant case, the court waived its jurisdiction as to one of the charges and dismissed the remaining charges. We hold that the juvenile court did not retain jurisdiction over the charges dismissed. Therefore the transfer order was effective to transfer jurisdiction over the remaining count to the district court. Appellant's first point of error is overruled.

In a second and final point of error, appellant urges that his right to due process in an adversarial system was violated by the juvenile court's order of transfer. Because a proceeding on the State's motion for discretionary transfer is not a trial on the merits, we believe that appellant's point is ill-founded. See In re G.R.L. v. State, 581 S.W.2d 536, 538 (Tex. Civ. App.--Dallas 1979, no writ) (due process does not prohibit introduction of hearsay testimony in discretionary transfer hearing before juvenile court). A State's petition requesting the juvenile court to waive jurisdiction and transfer a case to the district court is addressed to the court's discretion. In re M.I.L., 601 S.W.2d 175, 177 (Tex. Civ. App.--Corpus Christi 1980, no writ). Absent a showing of an abuse of discretion, the juvenile court's findings will not be disturbed. In re D.W.L., 828 S.W.2d at 525. We have considered whether the juvenile court acted without reference to any guiding principles or whether the action of the court was arbitrary and unreasonable as to amount to an abuse of discretion. We conclude that the juveni