                          NUMBER 13-10-00493-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

FRANCISCO EMMANUEL DOMINGUEZ,                                    Appellant,

                                         v.

THE STATE OF TEXAS,                                               Appellee.


                 On appeal from the 357th District Court
                      of Cameron County, Texas.


            DISSENTING MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Perkes
        Dissenting Memorandum Opinion by Justice Benavides

    A review of the record reveals the following timeline:

          On June 16, 2008, Dominguez was arrested under the juvenile justice
           code.
                That same day, as per Lieutenant Castañeda’s testimony, attorney “Trey
                 Garza” arrived at the Harlingen Police Department, declared himself
                 attorney for Dominguez, and stated that no one was to talk to Dominguez.

                According to testimony, on June 16, 2008 Officers took Dominguez before
                 Magistrate Sallie Gonzalez in an attempt to interrogate him, but
                 Dominguez refused to speak with them. See TEX. FAM. CODE ANN. §
                 51.095 (West 2008).

                A hearing was held to determine whether Dominguez should be transferred
                 to the criminal court system.1 See id. § 54.02 (West 2008). Dominguez
                 testified in the motion to suppress hearing that he was declared an adult at
                 this proceeding and was represented by a juvenile court-appointed
                 attorney.

                On August 11, 2008, Dominguez was transferred to the adult
                 Carrizales-Rucker Detention Center.

                Lieutenant Castañeda received a call from an unidentified source advising
                 him that Dominguez was certified as an adult and was being transferred to
                 the Carrizales-Rucker facility.

                Lieutenant Castañeda and Officers Rolph and Escalon removed
                 Dominguez from his cell after 10 p.m.

                Lieutenant Castañeda did not ask Dominguez if he was represented by an
                 attorney because he was notified by an unnamed source that Dominguez
                 was not represented.      Lieutenant Castañeda proceeded to read
                 Dominguez his Miranda rights and interrogate Dominguez along with the
                 other officers.

                Lieutenant Castañeda testified at the suppression hearing that Dominguez
                 told them that he wanted to talk to them before, but his attorney would not
                 allow it. However, Dominguez testified that he told law enforcement
                 officers that he did not want to be questioned, but they persisted.



        1
           I am unable to the exact date of this hearing from the record. At the suppression hearing,
defense counsel argued to the trial court that the transfer hearing was held on August 8, 2008, the State
elicited testimony from Officer Rolph confirming that Dominguez had “waived his hearing on a discretionary
transfer to become certified as an adult,” and Dominguez testified that his adult certification hearing was “on
the 12th.”



                                                      2
             According to Dominguez’s testimony, he signed his self-incriminating
              statement approximately two to three hours after law enforcement officers
              arrived at the adult facility at 12:45 a.m.

             On August 27, 2008, the juvenile court signed an order waiving jurisdiction
              and transferring the cause to the criminal district court. See id.

       Based on these facts, I would hold that the trial court committed harmful error in

denying Dominguez’s motion to suppress the August 12, 2008 statement because the

officers obtained Dominguez’s statement improperly under the juvenile justice code.

                           I.     JURISDICTION AND WAIVER

       As a matter of procedure, this Court is not precluded from addressing an issue not

briefed or raised by Dominguez. When a defendant appeals his conviction, courts of

appeals have the jurisdiction to address any error in that case.        Pfeiffer v. State, 363

S.W.3d 594, 599 (Tex. Crim. App. 2012). The jurisdiction of this Court is invoked by the

timely filing of a notice of appeal.   Id.   Once our jurisdiction is invoked, our function to

review is limited only by our own discretion or valid restrictive statute.      See Carter v.

State, 656 S.W.2d 468, 469 (Tex. Crim. App. 1983) (en banc) (holding that “[a]fter

jurisdiction attaches to a particular cause, a broad scope of review and revision has been

asserted by appellate courts of this State—one that is still recognized, acknowledged

and confirmed by the Legislature”).      Furthermore, “‘[t]here is a fundamental proposition

pertaining to appellate functions of the [j]udicial [d]epartment:    A constitutional grant of

appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the

whole case upon the law and facts, as exhibited in the record [.]’”      Pfeiffer, 363 S.W.3d

at 599 (quoting Carter, 656 S.W.2d at 468). Therefore, when a defendant appeals his

conviction, courts of appeals have the jurisdiction to address any error, see Pfeiffer, 363


                                                3
S.W.3d at 599; even those which “prompt sua sponte appellate attention” because the

error involved constitutes a violation of established rules.           Pena v. State, 191 S.W.3d

133, 136 (Tex. Crim. App. 2006). I would hold that the error in this case is one that our

Court’s discretion cannot ignore and one that we must address sua sponte, in light of the

age of the defendant at the time, the facts of the case, the magnitude of the offense, and

the potential harm that ignoring it may cause.2

                                         II.     ANALYSIS

       Juveniles and adult criminal defendants are not treated equal in Texas “until the

former is certified as an adult and comes within the purview of the adult criminal system.”

Vasquez v. State, 739 S.W.2d 37, 43 (Tex. Crim. App. 1987) (en banc).                   For purposes

of the juvenile code, a “child” is a person who is older than ten, but younger than 17

years of age.      TEX. FAM. CODE ANN. § 51.02(2) (West 2008).                   “Until the moment

transfer is ordered, the juvenile is cloaked with the trappings of a non-criminal

proceeding with attendant safeguards such as greater protections in the areas of

confession law and notice requirements.”           Vasquez, 739 S.W.2d at 43.3

       Some of the governing statutory safeguards include the rules regarding waiver of

rights and admissibility of a child’s statement.        See TEX. FAM. CODE ANN. §§ 51.09–.095



       2
           The waiver cases cited by the majority from our sister courts in Houston and Dallas deal with
unrelated issues and are thus unpersuasive. The Ponce case involved a child committing the crime of
perjury, which does not preclude prosecution; and in Geter, the appellant challenged the manner and
means of waiving his rights before a magistrate under section 51.09 of the family code. See Ponce v.
State, 985 S.W.2d 594, 595 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Geter v. State, No.
05-95-00775-CR, 1996 WL 459767, at *3 (Tex. App.—Dallas July 31, 1996, no pet.) (not designated for
publication). Neither of these cases applies here.
         3
           The Vasquez decision by Judge McCormick is an interpretation of the juvenile justice code as
well as rigorous analysis of pertinent case law and constitutional principles. References to Vasquez are
hardly “dicta” as the majority contends.



                                                   4
(West 2008).     For example, a child may not waive any federal or state constitutional

rights without the consent of the child and his attorney, unless he received proper

warnings from a magistrate without the presence of law enforcement.        Compare id. §§

51.09–.095 with TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2003).

        Here, Dominguez’s transfer order was not signed until August 27, 2008—two

weeks after law enforcement obtained his written confession at the Carrizales-Rucker

facility.   Because a juvenile court holds exclusive original jurisdiction over these

matters, I would hold that a written transfer order under section 54.02 is jurisdictionally

mandatory because it effectively waives the juvenile court’s jurisdiction and transfers it

from a juvenile proceeding to an adult proceeding.    But see Evans v. State, 61 S.W.3d

688, 690 (Tex. App.—Fort Worth 2001, no pet.) (holding that a lack of written transfer

order between two adult criminal district courts was a procedural matter rather than a

jurisdictional one).

        The record is unclear as to when Dominguez was certified as an adult. The

majority assumes from testimony that Dominguez was certified prior to his

self-incriminating statement.   Without more details, I cannot join this assumption

because dates are too critical to this issue.        After his physical transfer to the

Carrizales-Rucker facility on August 11, 2008, law enforcement visited Dominguez later

that night into the early morning of the next day.     The majority assumes, based on

testimony, that a proper transfer order was in place on August 11, 2008, when

Dominguez was moved to the adult facility.        However, without being afforded the

underlying juvenile record in this case, we must conclude that Dominguez’s final transfer




                                            5
under section 54.02 was effective on August 27, 2008, not August 11, 2008.4 The mere

physical transfer of Dominguez from a juvenile facility to an adult facility, without a

signed, corresponding written transfer order, is inadequate for me to conclude that the

juvenile cloak had been lifted in this case at the time he made his statement.5 Vasquez,

739 S.W.2d at 43.           I am baffled by the majority’s position that Dominguez’s physical

transfer to an adult-detention facility without the proper, signed transfer order was

enough to remove his “juvenile cloak,” particularly when it appears from the record that

the officers who conducted Dominguez’s interrogation were acting on information told to

them from unknown or undisclosed sources. This assertion is unreasonable because it

effectively skirts and defies the Legislature’s intent to hold juvenile defendants under a

more protected justice system separate and apart from adult criminals.6 Therefore, I

would hold, based on the record, that until August 27, 2008, Dominguez was (1) a child,


        4
           It is worth noting that the transfer order included in Dominguez’s record is defective. The transfer
order fails to comply with the statutory requisites of section 54.02. The pertinent statutes states that if a
juvenile court waives jurisdiction:

        it shall state specifically in the order its reasons for waiver and certify its action, including
        the written order and findings of the court, and shall transfer the person to the appropriate
        court for criminal proceedings and cause the results of the diagnostic study of the person
        ordered under Subsection (d), including psychological information, to be transferred to the
        appropriate criminal prosecutor.

See TEX. FAM. CODE ANN. § 54.02 (h).
        5
           I would hold that cases like Rushing v. State, 50 S.W.3d 715 (Tex. App.—Waco 2001), aff’d 85
S.W.3d 283 (Tex. Crim. App. 2002), are inapplicable to the instant case because they deal with late filings
of transfer orders and not the effective dates of the orders. Here, a transfer order was not effective until
August 27, 2008. The filing date of the order is irrelevant in this case.
        6
             The majority’s interpretation of section 54.02 would be nonsensical and would create
inconsistencies in the law. See Molinet v. Kimbrell, 356 S.W.3d 407, 414–15 (Tex. 2011) (holding that “it
is the Legislature's prerogative to enact statutes; it is the judiciary's responsibility to interpret those statutes
according to the language the Legislature used, absent a context indicating a different meaning or the
result of the plain meaning of the language yielding absurd or nonsensical results”).




                                                         6
see TEX. FAM. CODE ANN. § 51.02(2)7; (2) represented by counsel, see id. § 51.10(b)(1);

and (3) should have been afforded the procedural safeguards for juvenile defendants,

see TEX. FAM. CODE ANN. §§ 51.09–095.               Dominguez should not have been allowed to

waive his Fifth Amendment right and sign his statement without his attorney or a

magistrate present under the juvenile code.              See id.

        The juvenile justice code was enacted by our legislature to meet several public

policy goals and “pervasive themes,” such as (1) to provide for the protection of the

public and public safety; and (2) to provide for the care, the protection, and the

wholesome moral, mental, and physical development of children coming within its

provisions.     Id. § 51.01 (West 2008); Lanes v. State, 767 S.W.2d 789, 795 (Tex. Crim.

App. 1989) (en banc); see In re D.Z., 869 S.W.2d 561, 566–67 (Tex. App.—Corpus

Christi 1993, writ denied). In order to further these intended goals and themes, law

enforcement must comply with these statutes when dealing with juvenile defendants.

That did not happen here.         See generally id.

        Accordingly, I conclude that law enforcement authorities in this case improperly

obtained Dominguez’s confession in the early morning hours of August 12, 2008, and in

light of this impropriety, I would hold that the trial court committed error by denying

Dominguez’s pre-trial motion to suppress.                See Shepherd v. State, 273 S.W.3d 681,

684 (Tex. Crim. App. 2008). This error allowed the jury to place weight on Dominguez’s

improperly-obtained statement, and if I were to hold it harmless, it will encourage the


        7
           Dominguez’s age by itself does not automatically remove him from the enhanced protections of
the juvenile justice code. See Vasquez, 739 S.W.2d at 43 (noting that a child is not “arrested” for purposes
of criminal action until a juvenile transfer order is entered).



                                                     7
State to repeat this impropriety with impunity.   See TEX. R. APP. P. 44.2(a); Wilson v.

State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996) (en banc).           Because I cannot

determine beyond a reasonable doubt that this erroneous admission of evidence did not

contribute to Dominguez’s conviction or punishment, I would reverse the conviction and

remand for a new trial.    See TEX. R. APP. P. 44.2(a); Hernandez v. State, 60 S.W.3d

106, 108 (Tex. Crim. App. 2001).

       For the foregoing reasons, I respectfully dissent.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
26th day of July, 2012.




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