In the Matter of G. R. H.--Appeal from 368th District Court of Williamson County

In Re RGH IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-390-CV
IN THE MATTER OF G.R.H.,
APPELLANT
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 92-002-J368, HONORABLE BURT CARNES, JUDGE PRESIDING

This is an appeal from an order of the district court of Williamson County, sitting as a juvenile court, waiving its juvenile jurisdiction over G.R.H., appellant, and transferring him to district court for criminal proceedings. Tex. Fam. Code Ann. 54.02 (West 1986 & Supp. 1993).

Appellant brings three points of error challenging this order. In his first two points of error, he argues that the juvenile court erred in admitting his written confession into evidence at the transfer hearing. In his third point of error, appellant complains that the transfer violates his constitutional rights because, if tried for capital murder, he will not have the benefit of mitigating evidence at the punishment phase of the trial. We will affirm the order of the juvenile court.

 
FACTUAL AND PROCEDURAL BACKGROUND

On January 10, 1992, appellant and another juvenile, S.R.B., were taken into police custody in Sealy, Texas, after admitting they had run away from home and had taken, without permission, a car belonging to S.R.B.'s mother. The Sealy police contacted appellant's mother in Round Rock and informed her of his whereabouts. When the police attempted to contact S.R.B.'s mother in Cedar Park, however, they were informed that she had been murdered and that appellant and S.R.B. were suspects in her murder.

Appellant was taken before a Sealy magistrate, who read and explained his rights under section 51.09 of the Family Code. Tex. Fam. Code Ann. 51.09 (West 1986 & Supp. 1993). The magistrate correctly warned appellant that he could receive a determinate sentence for a term not to exceed forty years. Family Code 51.09(c). Approximately nine hours later, on his arrival in Cedar Park, appellant was given a second set of warnings by a Cedar Park magistrate. However, the Cedar Park magistrate's warning stated that the determinate sentence could be for a term not to exceed thirty years. (1) Family Code 51.09(b)(1)(F). Approximately three hours later, after a third set of warnings that also referred to a possible thirty-year determinate sentence, appellant gave a written confession of his participation in the murder to the Cedar Park magistrate.

On March 4, 1992, the State filed its "original petition for waiver of jurisdiction and discretionary transfer to adult criminal court." The petition was based on allegations of capital murder and, in the alternative, intentional murder. At the hearing on the petition, appellant's written confession was admitted into evidence over his objection. On June 1, 1992, the juvenile court signed an order waiving its jurisdiction and ordering appellant transferred to the district court for further criminal proceedings.

 
DISCUSSION

In his first two points of error, appellant complains that the juvenile court erred in admitting his written confession into evidence at the transfer hearing. In point of error one, he asserts that the confession was invalid because the warnings of a possible thirty-year sentence given to him by the Cedar Park magistrate did not comply with the requirements in section 51.09(c) of the Family Code that a juvenile be warned of a possible forty-year sentence. Appellant also argues that the inconsistency of the warnings from the Sealy and Cedar Park magistrates as to the potential determinate sentence confused him and obviated any positive effects of the warnings. In point of error two, appellant asserts that his confession was not made knowingly, voluntarily, and intelligently, because he was sixteen years old, had been tested as "borderline retarded," and had been in custody for seven hours without the presence of or guidance from a parent or other adult in loco parentis or from an attorney before making his statement.

A juvenile court may waive its exclusive original jurisdiction and transfer a child to a district court for criminal proceedings if it finds that (1) the child is alleged to have committed a felony, (2) the child was fifteen years of age or older at the time of the offense, (3) no adjudication hearing has been conducted concerning the offense, (4) there is probable cause to believe the child committed the offense, and (5) due to the seriousness of the offense or the background of the child, the welfare of the community requires criminal proceedings. Family Code 54.02(a). In making these findings, the court is required to consider the following factors: (1) whether the alleged offense was against person or property; (2) whether the alleged offense was committed in an aggressive and premeditated manner; (3) whether there is evidence on which a grand jury may be expected to return an indictment; (4) the sophistication and maturity of the child; (5) the record and previous history of the child; and (6) the prospects of adequate protection of the public and the likelihood for rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court. Family Code 54.02(f). Appellant asserts that his confession was a significant factor in the court's determination that there was probable cause that he committed the offense. He also asserts that the confession formed the evidentiary foundation for the juvenile court's findings that the offense was premeditated and that there was a likelihood the grand jury would indict him.

Even if the juvenile court erred in admitting appellant's confession into evidence, other evidence presented to the court demonstrated probable cause that appellant committed the offense, that the murder was premeditated, and that it was likely a grand jury would indict appellant. Therefore, because we conclude that any error in its admission was harmless, we will assume, without deciding, that the confession was improperly admitted into evidence. Tex. R. App. P. 81(b)(1). (2)

At the transfer hearing, the report of a psychiatrist who examined appellant was introduced into evidence. (3) Included in this report was appellant's description of the planning and commission of the murder, given to the psychiatrist in even more detail than appeared in appellant's prior written confession. For instance, appellant explained to the psychiatrist that he and S.R.B. planned the murder on Thursday. According to the plan, the murder would take place when the deceased would have money. In discussing the commission of the murder, appellant explained that when the deceased arrived home from work, appellant hid in nearby woods. Shortly thereafter, when the deceased took a nap, S.R.B. came to the woods and invited appellant back into the house. Once back inside the house, both appellant and S.R.B. jumped on the deceased, attempting to choke and smother her. Appellant related to the psychiatrist that he stabbed the deceased multiple times: "I stabbed her in the neck, then the hand. Her mother rolled over, then I stabbed her in the back. Then I dropped the knife. Her mother got it. She almost stabbed me." Appellant got the knife back and stabbed the deceased again in the chest. He then discovered he had wounded himself on one arm. Finally, appellant described leaving the scene: "Then [S.R.B.] kissed me and said she loved me. Then I heard real loud breathing. I had blood on my arms and hands. I washed my hands. I went back in--there was no breathing. I checked her pulse. [S.R.B.] was putting clothes in a box. We drove off in the car."

The foregoing evidence was not all, however. A probation officer also testified, based on his review of evidence in the case, about the planning and commission of the murder by appellant and S.R.B. (4) The probation officer testified that S.R.B. approached appellant with an invitation to help murder her mother; although they initially agreed to commit the murder the next day, circumstances changed and they decided to do it that day. Appellant hid in the woods and S.R.B. came and got him when the deceased was napping. The probation officer further testified that, once in the house, appellant removed a pillow from the couch and attempted to choke and smother the deceased. When this did not appear to be working, S.R.B. went to the kitchen and returned with a knife. S.R.B. handed the knife to appellant, who began stabbing the deceased.

Also introduced into evidence was the probation officer's written report detailing appellant's background and the circumstances of the offense. Included in this report was a statement taken from S.R.B.'s confession to the magistrate stating, "[S]he was still breathing just a little, then I said `go stab her some more', so [G.R.H.] did, and then she wasn't breathing, so I said `let's get out of here'." The report also described eyewitness accounts of appellant and S.R.B. hurriedly leaving the murder scene around the time the murder was committed. Furthermore, the report stated that the results of forensic laboratory tests showed that appellant's blood was found at the murder scene and that blood of the deceased was found on appellant's jeans and friendship bracelet. Finally, the report noted that when appellant and S.R.B. were taken into custody in Sealy, they were in possession of a car and a purse belonging to the deceased.

When this last report was offered into evidence, appellant's attorney objected, in part, "[A]s to any mention of or consideration of the alleged confessions made in this case, I object to those portions." This objection was overruled by the juvenile court. (5) Although appellant does not specifically complain of this ruling on appeal, he complains in his brief that his confession was a "major factor" in the certification process in that it was relied on by the probation officer in preparing his report. Any error presented by appellant as to the admission of the probation officer's report has been waived. "A general objection to a unit of evidence as a whole . . . which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible." Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981). Appellant's objection was general because it did not point out specifically any statement in the report that was inadmissible. In fact, appellant admitted at trial that other portions of the report were admissible. In any event, the portions of the report cited above do not refer to information found in appellant's original confession to the Cedar Park magistrate.

Thus, even if appellant's confession was improperly admitted into evidence, we conclude that the strength of other evidence in the record prevents us from determining that the admission of the confession was reasonably calculated to cause and probably did cause rendition of an improper order. Tex. R. App. P. 81(b)(1). Accordingly, any error in its admission was harmless. Appellant's first two points of error are overruled.

In his third point of error, appellant complains that the juvenile court erred in certifying him to stand trial as an adult for capital murder because, under the Texas statutory framework, he will not have the benefit of mitigating evidence at trial. Appellant claims that he should be allowed to introduce mitigating evidence at the penalty phase of his trial and thus receive individualized sentencing. Without the opportunity to mitigate his punishment, appellant asserts, his rights under the Fourteenth and Eighth Amendments, as well as his rights to due process and equal protection of the law, will be violated.

Under section 12.31 of the Penal Code, an individual convicted of a capital felony may be sentenced either to death or to life imprisonment. Tex. Penal Code Ann. 12.31(a) (West Supp. 1993). However, section 8.07(d) of the Penal Code provides that no person may be punished by death for an offense committed while he was younger than seventeen years of age. Tex. Penal Code Ann. 8.07(d) (West Supp. 1993). Therefore, persons convicted of committing a capital offense while they were younger than seventeen years of age must be sentenced to life imprisonment. Allen v. State, 552 S.W.2d 843, 845 (Tex. Crim. App. 1977). Appellant was sixteen years of age at the time of the alleged offense.

Appellant's complaint is premature. The order of the juvenile court merely transferred appellant to district court for further criminal proceedings as to a charge of capital murder or, in the alternative, intentional murder. Appellant has not been indicted, tried, or convicted of capital murder. Therefore, there has been no violation of his constitutional rights as a result of the transfer order.

Moreover, even assuming appellant is convicted of capital murder, the Texas Court of Criminal Appeals has held that jury sentencing is not necessary for a person convicted of committing a capital offense while younger than seventeen years of age because life imprisonment is the only punishment that may be assessed. Allen, 552 S.W.2d at 846. The fact that a judge must automatically impose a life sentence is not a denial of appellant's rights to due process and equal protection. Cammon v. State, 672 S.W.2d 845, 851 (Tex. App.Corpus Christi 1984, no writ). It is also not a violation of his rights under the Eighth Amendment. Harmelin v. Michigan, 111 S. Ct. 2680, 2702 (1991) (refusing to require individualized sentencing in non-capital cases). We overrule appellant's third point of error.

 
CONCLUSION

The order of the juvenile court is affirmed.

 

J. Woodfin Jones, Justice

Before Justices Powers, Jones, and Kidd

Affirmed

Filed: October 6, 1993

Do Not Publish

1. The legislature amended section 51.09(c), effective September 1, 1991, to provide that, in addition to the warnings a child receives under section 51.09(b)(1), a child must be warned that he could receive a forty-year determinate sentence. See also Tex. Fam. Code Ann 54.04(d)(3) (West Supp. 1993) (increasing maximum determinate sentence from thirty to forty years). However, the language in section 51.09(b) referring to a warning of thirty years was not deleted.

2. Appeals from orders of juvenile courts are governed by procedures for the appeal of civil cases. See Tex. Fam. Code Ann. 56.01(a) (West Supp. 1993).

3. The only objection to this report was on the basis that the psychiatrist had not fully informed appellant of his rights. This objection was overruled by the juvenile court, and appellant does not complain of this ruling.

4. A hearsay objection to his testimony as a whole was made only after he had described the planning and commission of the murder. The juvenile court sustained the ruling, but only as to the statement the probation officer was about to make. Appellant does not complain of this ruling on appeal.

5. Appellant also objected "to the personal opinions and the recommendations that are obviously personal from [the probation officer] and not apparently based on investigative facts." The juvenile court sustained this objection and did not admit a portion of the report.