








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0822-07, PD-0823-07


MELTRON LEVION ALBERTY, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS

DALLAS  COUNTY



 Johnson, J., delivered the opinion of the Court, in which Keller, P.J.,
Meyers, Price, Womack, Hervey, Holcomb, and Cochran, JJ., joined. 
Keasler, J., concurred.

O P I N I O N


 The state indicted appellant for aggravated sexual assault of a child in two indictments that
alleged that those offenses were committed on or about July 7, 2001, appellant's 17th birthday, and
June 1, 2003. The indictments therefore alleged two offenses that were committed when appellant
was an adult and were properly filed in the district court.  Much of the testimony, however, dealt
with allegations of an ongoing series of assaults on the complaining witness that began when
appellant was 13 years of age and continued until the dates alleged in the indictments.  The jury
convicted appellant of the charged offenses, and the judge sentenced him to fifteen years'
confinement in each case.  The court of appeals affirmed appellant's convictions.  We reverse and
remand the causes to the court of appeals.
The Record
	 The complainant testified that the last assault on him by appellant occurred when
complainant was twelve, an apparent reference to the date alleged in the second indictment, June 1,
2003, when appellant would have been eighteen.  The complainant also stated that there had been
one time when appellant forced him and his brother to engage in a menage a trois that took place
about a year before the last abuse, when the complainant was eleven.  This may be a reference to the
date alleged in the first indictment, July 7, 2001, appellant's seventeenth birthday.  The description
of that incident was explicit and detailed.
	The remainder of the testimony of the complainant and other prosecution witnesses was
either without any time frame or within a time frame during which appellant was clearly a juvenile. 
Testimony by the complainant elicited at trial by the prosecutor established a defined time frame for
an assault asserted by the complainant to have occurred when he was "six or seven" years old and
appellant was thirteen. The testimony about that assault was explicit and detailed.  The prosecutor
continued his direct examination of the complainant with several questions that were couched in
terms of "did he ever"or "did [something] ever happen": "did he ever use anything [as a lubricant]";
"did he ever hit you"; "did stuff ever come out"; "did it ever land on [you]."
	The length of the period of abuse was mentioned a number of times: "Is that the only time
he ever did anything like that to you?" "No.  It went on for five years"; "How old were you when [the
abuse] started?"  "Seven." . . .  "How old were you the last time it happened?"  "I was 12"; "You
don't remember where your brother was in all these times, do you?"  "Some of the times; yes, sir."
	The complainant's mother, DeDe, testified that, when the complainant was younger-six,
seven, or eight-he didn't want to go visit his grandmother's house, where appellant also lived.  She
stated that she had confronted appellant after the complainant's outcry and that he had confessed to
"touching" the complainant when he was thirteen and the complainant six or seven, but denied any
other incidents.
	In closing argument, the prosecutor referred to that testimony twice, saying that "he admitted
to doing it once when he was thirteen and the kids were six[,]" and that DeDe "told you the
Defendant admitted to abusing both of them, both of them."  Also in his closing argument, the
prosecutor stressed the duration of the abuse.
[W]hen you ask Granny, in five whole years, they want to tell you that Meltron was
never alone with either one of these kids.
	We're talking five-plus years, never, ever, ever.  Come on.  You know that
they are covering that up.  That is a lie.  How in five-plus years, as often as these kids
are over there, Meltron is never, ever going to be alone with them.

	The jury charge contained the usual language in regard to the time frame to be considered:

You are instructed that the State is not required to prove the exact date alleged in the
indictment.  The term "on or about the 1st of June, 2003" means any date prior to the
date of the filing of the indictment, August 27, 2003, and within the Statute of
Limitations.  The Statute of Limitation for this type of alleged offense is 10 years past
the child's 18th birthday.

Appellant made no objection to this instruction.
The Appeal
	On appeal, appellant brought three points of error, the second of which is relevant to the
issues presented for our review.
The jury charges in these cases were erroneous in that they instructed the jury that
they could convict appellant of any offense anterior to presentment of the indictment
and within the statute of limitations, when in fact he could only be convicted of
offenses occurring on or after his seventeenth birthday, July 7, 2001, since
jurisdiction over offenses before that date had never been waived by the juvenile
court.

	In ruling on appellant's second point of error, the court of appeals construed the complaint,
not as jury-charge error, but as a jurisdictional claim and then ruled that appellant had waived the
issue because he had failed to file a written motion challenging the jurisdiction of the district court
as required by Tex. Code Crim. Proc. art. 4.18(a).  Alberty v. State, Nos. 05-05-01687-CR and 05-05-01688-CR (Tex. App.-Dallas, delivered February 9, 2007)( not designated for publication).
Thus, appellant claims he could only be convicted of offenses occurring on or after
his seventeenth birthday because the trial court lacked jurisdiction over any offenses
which occurred prior to his seventeenth birthday. For the reasons that follow, we
conclude appellant waived this issue.

The Texas Code of Criminal Procedure provides

A claim that a district court or criminal district court does not have
jurisdiction over a person because jurisdiction is exclusively in the
juvenile court and that the juvenile court could not waive jurisdiction
under Section 8.07(a) Penal Code, or did not waive jurisdiction under
Section 8.07(b), Penal Code, must be made by written motion in bar
of prosecution filed with the court in which criminal charges against
the person are filed.

Tex. Code Crim. Proc. Ann. Art. 4.18(a) (Vernon 2005).  If the defendant's guilt or
punishment is being tried or determined by a jury, the written motion must be filed
and presented to the presiding judge of the court before selection of the jury.  Tex.
Code Crim. Proc. Ann. art. 4.18(b)(2)(Vernon 2005).  If a defendant does not file a
motion within the applicable time requirements of article 4.18(b), he may not contest
the jurisdiction of the trial court on the ground that the juvenile court has exclusive
jurisdiction.   Tex. Code Crim. Proc. Ann. Art. 4.18(d)(1) (Vernon 2005).

In this case, appellant did not file a motion claiming the criminal district court lacked
jurisdiction.  Because he did not file an article 4.18 motion, he may not complain on
appeal that the trial court lacked jurisdiction.  Nevertheless, appellant contends the
trial court erred in submitting a jury charge allowing his conviction for acts that
occurred before his seventeenth birthday because the trial court lacked jurisdiction
to do so.

Alberty, slip op. at 1-2.

Analysis
	Appellant's actual complaint was not lack of jurisdiction, but that the jury charge permitted
the jury to convict appellant of offenses committed before his seventeenth birthday.  It is clear from
the record that a significant portion of the testimony at trial was about incidents of abuse that
occurred before appellant's seventeenth birthday and that some of the testimony appears to be about
at least two incidents that occurred after his seventeenth birthday.  Because the indictment alleged
assaultive conduct that occurred after appellant became an adult, jurisdiction was properly in the
district court, and appellant did not challenge jurisdiction.
	Because of age restrictions on criminal prosecution, appellant could not be held criminally
responsible for the sexual assaults allegedly committed while he was 15 or 16 years of age unless
the juvenile court waived jurisdiction and certified appellant for criminal prosecution as an adult,
and he could not be held criminally responsible at all for the sexual assaults allegedly committed
while he was under the age of 15 years.  Tex. Penal Code § 8.07(a), (b).  Appellant asserts error
in that the jury charge did not set out that distinction and did not instruct the jury that it could not
convict appellant of any offense unless it found beyond a reasonable doubt that the offense of
conviction occurred on or after July 7, 2001.  He further alleges harm because much of the testimony
was about an incident when he was thirteen and that the testimony described that assault in graphic
detail.
	Art. 4.18, by its plain language, applies only if jurisdiction is "exclusively in the juvenile
court."  The record indisputably shows that the evidence supported jurisdiction in both the juvenile
and district courts, thus jurisdiction in the juvenile court was not exclusive.  Because the district
court also had jurisdiction, art. 4.18 does not apply, and appellant was not bound to file any motion
in regard to the earlier assaults.  The court of appeals erred in holding that appellant waived his
complaint.
Conclusion
	We reverse and remand these cases to the court of appeals for consideration of whether the
jury charge was erroneous because it did not limit the "on or about" language in regard to the statute
of limitations to any date prior to the date of the filing of the indictment, August 27, 2003, and on
or after the appellant's seventeenth birthday on July 7, 2003, thus permitting the jury to convict him
on the basis of testimony about numerous offenses alleged to have been committed while appellant
was a juvenile.  If the instruction is found to be erroneous, the court of appeals shall then consider
whether appellant was harmed by that error.  Almanza v. State, 724 S.W.2d 805 (Tex. Crim. App.
1986).

Delivered: April 9, 2008
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