In re D.B., 457 S.W.3d 536

Background

In 2012, when he was 16, D.B. was adjudicated for aggravated robbery and committed to the Texas Youth Commission/Texas Juvenile Justice Department (TJJD) on a 13-year determinate sentence.
TJJD cannot retain a youthful offender past his 19th birthday and may not parole a youthful offender for a first-degree-felony commitment without juvenile-court approval unless three years of the sentence have been served.
Because D.B. would turn 19 before serving three years, the State moved to transfer him from TJJD to the Texas Department of Criminal Justice (TDCJ) to serve the remainder of his sentence and requested notice to D.B. and his mother for the transfer hearing.
A May 7, 2014 transfer hearing was held; D.B., his mother, and brother testified on his behalf, and the trial court ordered transfer to TDCJ, finding it was in the best interest of D.B. and the public.
On appeal D.B. challenged only the sufficiency of notice to the victim or a member of the victim’s family under Tex. Fam. Code § 54.11(b)(5), asserting the hearing was unlawful for lack of victim notice.
The transfer order recited that due notice had been issued to all parties; no evidence in the record affirmatively controverted that recitation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the transfer hearing was unlawful for failure to give statutorily required notice to the victim or a family member	D.B.: hearing was invalid because the record shows no notice to the victim/family under § 54.11(b)(5)	State/Trial court: transfer order recites due notice to all parties; presumption of regularity applies and no record evidence contradicts that recitation	Court held: Overruled. D.B. failed to show the court acted contrary to statute; presumption of regularity stands without controverting evidence

Key Cases Cited

In re C.O.S., 988 S.W.2d 760 (Tex. 1999) (juvenile-admonishment rule may be raised on appeal)
Breazeale v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984) (presumption in favor of regularity of trial-court judgments)
In re E.V., 225 S.W.3d 231 (Tex. App.—El Paso 2006, pet. denied) (transfer-order recitation of notice upheld absent controverting evidence)
In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) (action contrary to statute is voidable, not void)
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) (distinguishing void from voidable actions)
In re O.R.F., 417 S.W.3d 24 (Tex. App.—Texarkana 2013, pet. denied) (application of void/voidable principle)
Holmes v. Concord Homes, Ltd., 115 S.W.3d 310 (Tex. App.—Texarkana 2003, no pet.) (preservation of complaint for appeal requires timely objection)
B.D. v. State, 16 S.W.3d 77 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (discussing preservation and notice issues in juvenile context)
Gen. Elec. Capital Assurance Co. v. Jackson, 135 S.W.3d 849 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (presumptions supporting judgment recitals)
Willingham v. Farmers New World Life Ins. Co., 562 S.W.2d 526 (Tex. Civ. App.—El Paso 1978, no writ) (presumption that recitals in judgment are true)
In re J.M.O., 980 S.W.2d 811 (Tex. App.—San Antonio 1998, pet. denied) (transfer hearings are not adjudications; different procedural protections)
In re D.S., 921 S.W.2d 383 (Tex. App.—Corpus Christi 1996, writ dism’d w.o.j.) (noting lesser procedural stringency at transfer hearings)
In re J.L.S., 47 S.W.3d 128 (Tex. App.—Waco 2001, no pet.) (contrast on when notice issues may be raised)
In re R.G., 994 S.W.2d 309 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (trial court not required to consider every subsection factor)