*1 128 State,
Q. you my Will answer S.W.2d [Prosecutor]: However, question? case, in the instant the trial court Thus, objection. appellant’s overruled Well, really don’t A. understand. especially requires error reversal. This is you you I asked do think he is enti- Q. where, here, appel- the jury, true tled threaten witnesses? maxi- plea guilty, lant’s assessed him the No, added) (Emphasis A. sir.” punishment. mum Appellant contends now judgment is reversed Accordingly, which question harmed the form remanded for a new trial. cause used, prosecutor implied ap- as it fact, wit- pellant, as had threatened the agree.
nesses. We State,
In Moffett v.
(Tex.Cr.App.1977), we that as a reiterated cross-examination,
part of the State reputation if
permitted to ask the witness specific
he has heard acts misconduct. this is to the witness’ test Monice Odell MORGAN. credibility reputation. as to the defendant’s Ed., McCormick, (2d E. Evidence No. 61840. Cleary, al., ed.) (1972), et How Sec. 191. Texas, Appeals Criminal ever, may State ask whether En Banc. personal knowledge has witness so as to question nor framed March has been com imply actually that the act State, mitted. v. Sisson
(Tex.Cr.App.1978); Moffett v. (Tex.Cr.App.1977) on (Opinion v. Carey
Rehearing);
(Tex.Cr.App.1976) (Opinion Rehearing); on (Tex.Cr.
Brown v.
App.1972). State, supra, v. Sisson we held
reversible error occurred when State permitted reputation witness: to ask 7th, you August
“Have heard that Walker, Randy this Defendant fact, Donna Rana
Kay Miller together, you have
smoke marihuana
heard that?” case, prosecutor’s
In the instant undeniably
questions to the witness were in issue as
calculated assert the matter Thus, improper and highly
fact. asked.
should not have been previously
We held that improper questions such
each case wherein might asked, cured
are such error jury to disre
trial court’s instruction State, su v.
gard the same. See Moffett Carey supra; Lovilotte
pra; *2 However, petitioner apply
not to him. points predecessor out that Section 6(j), 54.02(h), Section supra, Article V.A.C.S., in in was effect as amended of the offense made examining provision an trial similar for upon of a to the be held transfer urges that we district court. Petitioner 6(j) Section interpret should Article interpreted the same manner as Sec- Family Code Menefee 54.02(h) of the White, he is entitled to relief. and that do the merits this con- We not reach prior problem arises with tention because a was respect petitioner ever sub- whether Huntsville, Johnson, appel- Paul for G. ject lant. 2338-1, supra. under Article Hdttash, Austin, Atty., for
Robert State’s 16 when he committed the Petitioner was 4,1972; he turned 17 four State. offense on March 8,1972.
days later on March Petitioner 18, 1972, July not until arrested 28,1972. August He was indicted until OPINION old, Being 17 January tried in petitioner was not a child within PHILLIPS, Judge. of the statute at the time application This for a is an writ of habeas indicted, or tried. See Article Sec corpus 11.07, pursuant filed to Article V.A. Trahan, parte Ex 3, V.A.C.S.; C.C.P. Ex parte (Tex.Cr.App.1979); Petitioner contends that his conviction in Matthews, (Tex.Cr.App. the offense of January robbery 1973 for 1973). assault void because he was a 5(a) Article 2338-1 as amended the time he committed the provided in 1967 trial an examining court failed to hold trial origi- exclusive The court has before petitioner subject was indicted and governing proceedings nal ed to criminal as an Pe adult. However, in those any delinquent child. titioner relies on White 6 of specified cases (Tex.Cr.App.1979), in which this Court jurisdiction" waive reversed the cause because the record did court or appropriate to the crimi- defendant, who had reflect nal district been transferred from at all times. considered in session examining an trial received discretionary 6 was the transfer issuing against also indictment him. See 2338-1, analogous provision of Article Menefee v. (Tex.Cr. Family present Code. Section 54.02 of App.1977). that if provided Subsection un- in White and Menefee der the terms of the act decisions 15 or older at the time an offense and was discretionary provi- based on the could Code, V.T.C.A., Family Family sion in the procedures following the Code, (Sections Title 3 51- 54.02. 6(c) 6(j). See Ex set out in Subsections — 56) go into Family Code Trahan, supra. parte peti- effect September until 30, V.A.P.C., the offense and had was amended in 1967 tioner committed 2338- provisions Thus its do same act that amended tried convicted. amended, ROBERTS, provided Judge, concurring. 1. As that no age could under 17 be convicted of I concur in the except perjury unless the the reason the 1967 nile and certified court waived 2338-1, V.A.T.S., amendment to Article the person proceedings. for criminal intent of the presumed Legis- whatever the Trahan, Ex parte supra; Mat- *3 lature, change held to effect the cannot be thews, Comparing 5(a) supra. Sections and attributed the dissent. 6(b) 30, it and Article becomes clear that charges brought criminal were where The of “Purpose statement denominated against was juvenile a who 15 or older 1967 Acts” fails to Amendatory promulgate when he committed the be the perceives legisla- what the dissent juvenile juris- had exclusive original extending juvenile tive of juvenile could be made only diction. The jurisdiction. pertinent part, this so- subject if to adult criminal sought pre- called of “to statement jurisdiction court waived and being proceeded against vent children transferred him to the district court in ac- both court and district court or 6, cordance with the of Section criminal court for offenses commit- supra. juvenile age.” [Emphasis while add- of ted charged was petitioner In this case ed] 17 with an offense until he turned 2338-1, 3, amended Sec. longer years age of and thus no a person “any defines female over the child as juvenile. 6(b), supra. He was See Section age age of years of ten subject any judicial proceed- never made eighteen years person male over ings juvenile. 5(a), supra. as a age age under the years of ten acquired jurisdic- never delinquent years.” seventeen A under the terms of Article petitioner penal to.be a rights said one who violates law and he was denied into grade under that statute.1 who falls or categories delinquency the other list- six sought is denied. The relief con- ed. The codification 2338-1 1965 child, J., mere- DALLY, separate tained no definition concurs result. Two, charged charges reaching this re the child who was The dissent sult not follow the recent decision in Ex when we do fense must have committed Trahan, older; (Tex.Cr.App. age §37 years S.W.2d 591 in other 15 1979). contrary, perfectly words, years To the this case is 15 or 16 when he was either Trahan. age. consistent with who committed offenses at a Children younger subject transfer- Upon comparing were of Sections 2338-1, V.A.C.S., 5(a) red to district court. of Article Thus, already person charges if a had turned 17 that where criminal are held in Trahan child, e., person charges against initiated the time him, “i. over criminal years,” years and under the of 17 he as a child but as an of 10 was not jurisdic- was 15 or older at and the child not made adult. He was had the time of the first re- jurisdiction Legislature lacking. under Article quirement exclusive If the in- only jurisdiction result, the district court could obtain something from this tended different procedures if of Article 2338- the certification express did not its intention in the words of the 6(c)-(j) were An exami- Sections followed. Act. We that in note two re- this statement reveals that nation of quirements express to have the time of of- the intention be fulfilled under Article had to jurisdiction fense control court had exclusive 2338-1 before court would court. declared that, discretion, in its it could involving “con- over all cases One, to the district waive charges person engaged in duct brought a “child” had meaning of this Title at child within A the Act. 17 defined under age engaged the time in the conduct.” V.T.C.A. Act. See older was not a child under the Code, 51.04(a). Family Trahan. as construed in Section 3 of “delinquent exeges same the most labored and attenuated ly defining child” in the For of this study set forth the 1967 act. can one derive from purposes, Legisla the additional dictional the conclusion that statement State, v. makes no difference. See Garza long-standing ture intended overturn (term (Tex.Cr.App.1971) rule, surely have of which it must used in include delin- “child” is statute to aware, children). quent as of court was to determined State, 494 trial. the time of See Salazar its view of support The dissent finds Boyett v. (Tex.Cr.App.1973); S.W.2d predicated (Tex.Cr.App.1972); an offense commissionof (Tex.Civ. Dillard v. part provision in that of the transfer 1969, writ ref’d App. [14th Dist.] to be of no Sec. declared — Houston e.); Dearing 151 Tex.Cr.R. n. r. in Foster v. effect *4 Wilson, (1947); Dendy v. agree with the cannot (1944). Tex. plainly, anything dissent that Section said cases collected at 89 A.L.R.2d also clearly less that it defined the bound- much juvenile jurisdiction. court To the aries Moreover, 6(b) of an examination of Sec. examination, upon even contrary, cursory logi- the amended wherein one would internally 6 is revealed Section to have expect expression to find clear cally a contradictory. pro- inconsistent and It was jurisdiction to legislative expand intent the (16) vided that “no sixteen child under court, ex- juvenile of the reveals no such is time the offense pression. Sec. reads: certified, shall be so no child and charged “If a child is with the violation law of and penal grade of a the prosecuted the offense committed shall”be the was fifteen or older at as an adult at trans- later date unless alleged the time of the commission of Court, ferred the . . .” Juvenile juvenile the within a may, court that, readily apparent It will be on the one alleged reasonable after the hand, an offender under the of 16 could following the re- jurisdiction by prosecution not have been certified for as (c) quirements set out in Subsections and, hand, an adult at all on the other that section, (j) through prosecuted he could not have been as an court appropriate the child to the district juvenile adult without such certifica- pro- or criminal district court for criminal Moreover, the subject tion! of each verb in ceedings.” [Emphasis added] which, considering this section “child” the Taking into account the definition legal thereof, hardly militates pri- “child” in the codification finding favor of that 6 was meant ju- judicial the limits of construction of expand the jurisdiction, hardly one can venile hardly court. It could have been the occa- quoted language was in- imagine that the great surprise sion of to the express Legisla- the tended to intent a statute that this Court should find such should have ture that incomprehensible. who, the definition of diction of the following Turning now to the statement statute, charged, merely was an adult when the amendments to while within because he committed a crime V.A.T.S., “Purpose entitled of 1967Amend- jurisdictional limits of the Act,” scrutiny atory subjecting court. therein, for a language one seeks in vain 6(j) Similarly, of Section legislative expand declaration of arrested af- negates the inference that one courts so jurisdic- reaching majority within the ter by the that such is determined 6(j) pro- time of the tion of the court. Section age of the defendant at the Not even commission of criminal act. vides: custody probation
“If the court waives officer or suit- action, including able certify appear it shall before the findings probation department written order and of the court accompanied by county designated. at complaint a time The receiv- child, ing juvenile and transfer the child to the court shall the case set for appropriate hearing dispose court or criminal dis- case as if district proceedings. trict court original- had been instituted in Upon transfer of the child for criminal ly. Unless the child is subsequently with as an he shall dealt pro- transferred court as and in adult accordance with the Code vided 6 of this [Empha- Criminal Procedure. .” prosecution later date sis [Emphasis added] offense.” add- 6(k) ed] provides: Nothing in revised brought “If the case is version child’s versions, upon grand jury grand attention of is so at variance judicial jury does indict for the offense which was rule founded complaint by age controlling trial forwarded time of was the factor, jurisdictional logical court or lead to certify Leg- criminal district court shall inference it was the intent of the grand jury’s abrogate failure to indict to the islature to rule. receipt certifica- Upon nile presented We are here with a situa- *5 juris- the court resume where, having annulled a [Emphasis diction of the child.” added] rule, statutory Legis- the clearly-expressed 6(k) again, language Here the of lature enacted one of similar ten- thereafter an interpretation does not lend itself to or. In Foster v.
favoring juvenile
(Tex.Cr.App.1966),
one
of
part
court
of
found
has, by
unintelligible.
Legislature
6 to be
the
following year,
the
reached adulthood.
amended the Act in
stating
necessary
12 of Article 2338-1 was likewise
holding
part
in Foster. Since that
Legislature in 1967.
amended
the 60th
Foster
Article 2338-1 struck down in
comparison
A
in the
with,
to
beyond
begin
comprehension
amended section to that of the 1965version
Legislature’s
mere statement of the
inten-
revised,
change.
reveals no substantive
As
replace
import
tion to
it with
of like
can
12 read:
divining
underlying
no
be of
use in
charge
If,
“Sec.
while
original
Long-
enactment.
any per-
pending against
or indictment is
abrogat-
precedent ought
standing
court,
in a
other than a
son
conjecture as
on the basis of an intuitive
ed
is a child
it is ascertained
meaning
indeciphera-
of an
to the intended
alleged
the trial
for the
statutory provision.
ble
in
duty
of the court
is the
Moreover,
in the
nothing
is
lan-
pending
which the
to transfer
there
case
sections of
together
pa- guage
with all
of the amended
immediately
necessarily supports
documents,
testimony
2338-1 which
pers,
and records of
Legislature's
inference that it
connected with the case to the
judicial
to
rule.
county
the child
intention
avoid
unless
Leg-
simple
indeed for
authority
held
of Section would
been
pro-
meant to
transferring
state had
6 of this
islature
so
Act.
jurisdiction was to
to be taken forth-
vide that
shall order the child
the defendant
designated
determined
place
with to the
of detention
the time of the commission
or to the
concurring opinion
itself,
in the
fense. As stated
release the child to
or to
decisis, if
has
that is what
462 of stare
Dillard v.
here,
thought
appropri-
was never
work
(Tex.Civ.App.
Dist.]
[14th
— Houston
and,
oversight
cover
Johnson,
ate mask to
e.) (Justice
concur
ref’d n. r.
writ
hence,
With all
an erroneous conclusion.
ring).
deference,
historical record
in-
when the
of the amendato-
“Neither the
so,
read,
consistently
my
correctly
albeit
ry
specifies
act itself
act of 1967 nor the
judgment
at the first
is it must be corrected
age of the defendant
an intent that the
by the
thought
it had been
opportunity.
offense rather
thoughtfully ex-
carefully
researched
age at the time of trial is
than his.
just
in Trahan v.
rendered
pressed
is true of Art.
controlling. The same
Code, for
Annotated Penal
de-
Vernon’s
sec-
specified
that from
There we concluded
age.
It is not
fendants over 15
as amended
tions of Article
changed
judiciary
supply
charges are
where criminal
“it
clear that
par-
Legislature has not
where the
who was 15 or
ticularized it.”
alleged of-
older when
out,
points
this defend-
majority
As the
fense,
has exclusive
and tried after he
ant was
indicted
does not
But now
diction.”1
and was no
had reached
follow Trahan.
longer a child within the terms of Article
seen,
always
nearly
This Court has
provisions
According
2338-1.
see, “perplexing problems”2
professed to
he was never
Legis-
juvenile delinquency
acts of the
court and should not be
after the
revised
lature. Even
say
that his conviction as an adult
heard
say
in 1965 to
certain sections of
act
was obtained
violation
in,
alia,
6,3 Article
inter
plainly
rather
corpus relief should be
the Act. Habeas
V.A.C.S.,
what is meant with re-
denied.
in the
spect to what mandated
original jurisdiction”
court was “exclusive
DAVIS, JJ., join
and W.
DOUGLAS
C.
juveniles,4 the Court
described
handle
*6
opinion.
language quoted in
unabashedly found the
CLINTON, Judge, dissenting.
margin
indefinitely
“so
framed and of
it
construction that
cannot
such doubtful
To the denial of relief and to the refusal
regard-
.
.
. and must
understood
give
legisla-
clear
Court to
effect to
inoperative,”
wholly
ed as
Foster
respecting persons
intent
tive statements of
552,
557-558
juveniles
offenses while
commit
reaching age
legislative
response
as
but are tried
adults after
reaction and
seventeen,
in the form of
respectfully
very
dissent. The rule
came the
next session
1256,
577,
1965,
Leg.,
by
p.
emphasis
supplied throughout
§
59th
ch.
3.
3. Acts
1. All
opinion
indi-
writer of this
unless otherwise
cated.
part,
pertinent
elaborate
in 1965 the rather
4.
procedure provided:
transfer
certification and
6,
Dearing
2.
151 Tex.Cr.R.
age
(16) years
or older
“If child sixteen
983,
(1947)
opinions were
in which four
which would be
with an offense
problem
very
aspect
on
be-
written
(ju-
by
felony if
an
adult
nagging
today,
fore
the notion
the Court
contrary
venile)
....
deems
Court
boy
who committed
Court
“to hold that a
public
of such
or the
best interest
years of
offense
he became 17
a heinous
age
before
.;
.
but no child
retain its
.
.
after he
not be tried for that offense
could
age
equally
age
at
of 17 would be
bad”
arrived
prose-
was committed shall be
the offense
“[o]rderly society
protection
entitled to
since
as
later date unless
cuted
an adult
delinquent
That rationale
as
as a
child.”
well
.”
the Juvenile Court
transferred
decisis, although
expression of
an
stare
many
opinion
relied
cites
cases also
today;
purely
expres-
it is
an
deeply held.
sion of
values
personal
amendments
to the law.5 Section 1 of the
purpose
stated intent and
need not ex-
—I
amendatory
amine them for
anyone
act served to inform
their construction should be
governed by
definitely emphasized
such a
just
who read it6
what
had
declaration —the same act amended Article
in mind:
30, Penal Code 1925.7
purpose
“The
of this Act is to .
Thus, notwithstanding
a line of cases
provide
grounds
from the Court with the
holding
uniform
to waive
time of trial
rather
than
children for criminal
when committing
except
perju-
offense —
offenses committed
involving
cases
ry
a determination
—controls
older;
children 15
or
and to
jurisdiction,
Trahan
correctly
con-
prevent
being proceeded
children
cludes
are not controlling after
both the
court and district
1967 amendments to Article 2338-1 and Ar-
court or criminal district court
for 30,
ticle
supra. Neither
are those cases
fenses
juvenile age.
committed while of
decided the 1967 amendments
since
This
necessary
Act is
portion
because a
they did
expressly
not address headon the
a similar Act was declared unconstitu-
legislative
declared
purpose,
in Foster v.
tional