







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
                                                                              )
                                                                              )               
No.  08-04-00364-CV
                                                                              )
                                                                              )                     Appeal from the
                                                                              )
IN THE MATTER OF E.V., A
Juvenile                 )                 
65th District Court
                                                                              )
                                                                              )            
of El Paso County, Texas
                                                                              )
                                                                              )                    (TC# 98,01742)
                                                                              )
 
 
O
P I N I O N
 
Appellant E.V.
appeals from the trial court=s
decision to transfer him to the Institutional Division of the Texas Department
of Criminal Justice for completion of his thirty-year determinate
sentence.  Appellant advances two
issues:  (1) the Texas determinate
transfer procedure is unconstitutional both on it=s
face and as applied in his case; and (2) the trial court erred by failing to
provide notice to Appellant=s
mother.  We affirm.
FACTUAL
SUMMARY




Appellant E.V. is
a citizen of Mexico.  He was first
detained while in the United States in connection with the unlawful carrying of
a club in violation of Texas law.  The
State dismissed this indictment in December of 1998.  On the same day as the dismissal, the State
filed an amended petition alleging that Appellant had intentionally fled from
law enforcement officials who were attempting to detain him in connection with
another matter.  The State subsequently
filed a motion to dismiss and the trial court granted the motion.
In October of
2000, the State filed a petition against E.V. for murder.  A hearing was set for early November of
2000.  Prior to the scheduled hearing,
the State filed a second amended petition alleging attempted murder, breaking
into a vehicle, and destroying and/or damaging property.  The State sought a determinate sentence and
the grand jury approved on four counts: (1) murder; (2) attempted murder; (3)
burglary of a vehicle; and (4) criminal mischief.  A pretrial hearing was set and all parties
were ordered to appear.  On motion by
counsel, Appellant underwent a psychological evaluation.  After a hearing, the trial court found that
E.V. was fit to proceed to trial.  In
February of 2001, pursuant to a plea agreement, Appellant was adjudicated
delinquent and received a thirty-year determinate sentence to be served at the
Texas Youth Commission with a possible transfer to the Institutional Division
of the Texas Department of Criminal Justice.
In September of
2004, the Texas Youth Commission sent a letter to the trial court requesting
that a hearing be conducted to determine whether or not Appellant should be
transferred to the Institutional Division of the Texas Department of Criminal
Justice.  The trial court set a date for
the transfer hearing and ordered all parties, both Appellant and parents, to
attend.
DISCUSSION




In Issue One,
Appellant argues that the Texas Family Code section 54.11 is both
unconstitutional on its face and as applied to him.  Appellant argues that the court=s decision to transfer him to the
Institutional Division of the Texas Department of Criminal Justice is actually
a sentence enhancement.  He relies on Apprendi
v. New Jersey, 530 U.S. 466, 494 n.19, 120 S.Ct. 2348, 2365 n.19, 147
L.Ed.2d 435 (2000) for the proposition that as a sentence enhancement, the
factors enumerated under the Texas Family Code must be found by a jury beyond a
reasonable doubt to withstand constitutional scrutiny.
When this Court
reviews the constitutionality of a statute, we presume that the statute is
valid and that the Legislature acted reasonably, not arbitrarily, in enacting
the statute.  Rodriguez v. State,
93 S.W.3d 60, 69 (Tex.Crim.App. 2002). 
The individual challenging the statute bears the burden of proving it is
unconstitutional.  Id.  Further, we must uphold the statute if there
is a reasonable construction which will render the statute constitutional and
carry out the legislative intent.  Ex
parte Flores, 130 S.W.3d 100, 106 (Tex.App.‑-El Paso 2003, pet. ref=d), citing Ely v. State,
582 S.W.2d 416, 419 (Tex.Crim.App. 1979).
In order to review
an attack on the constitutionality of a statute Aas
applied,@ the
individual challenging the statute must have raised the issue in the trial
court by timely request, objection, or motion stating the grounds for the
ruling the complaining party desired with sufficient specificity to make the
trial court aware of the complaint.  Tex.R.App.P. 33.1(a)(1); Curry v.
State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995); Ex parte Flores,
130 S.W.3d at 106.  Here, the record does
not indicate Appellant presented this specific complaint to the trial court.
Accordingly, we find that Appellant has failed to preserve this issue for
appellate review.  Thus, we need not
consider whether the statute was unconstitutional as applied to him. .




Appellant, by
supplemental letter, also argues that Tex.Fam.Code
Ann. ' 54.11
(Vernon Supp. 2005) is unconstitutional on its face.  A facial constitutional challenge to a
statute may be raised for the first time on appeal.  Ex parte Flores, 130 S.W.3d at
106.  A facial challenge is very difficult
because the challenger must establish that no set of circumstances exists under
which the statute would be valid.  Ex
parte Flores, 130 S.W.3d at 106. 
Appellant submitted a one page supplement stating AAppellant attacks Section 54.11 of the
Texas Family Code and claims it is unconstitutional on its face for the reasons
stated in Appellant=s brief.@ 
Appellant fails to accompany his argument with any substantive analysis
or citation to legal authority or the record. 
When a party raises a point of error without citation of authorities or
argument, nothing is presented for appellate review.  State v. Gonzalez, 855 S.W.2d 692, 697
(Tex.Crim.App. 1993).  Thus, the issue
was improperly briefed and is waived. 
Issue One is overruled.
In Issue Two,
Appellant argues that the transfer proceeding was unlawful because Appellant=s mother was not notified in accordance
with Tex.Fam.Code Ann. ' 54.11. 
Section 54.11(b)(2) requires that notice of the transfer hearing be
given to, among others, the parents of the individual to be transferred.  See Tex.Fam.Code
Ann. '
54.11(b)(2).  During the hearing, the
following exchange took place between the trial court, Appellant and trial
counsel:
The
Court:        Are you in contact with your
parents?
 
Appellant:         Yes, sir.
 
The
Court:        Where are they?
 
Appellant:         My mother is in Mexico and my
grandmother is here in El Paso.
 
The
Court:        How about your father?
 
Appellant:         I don=t
got no father, sir.
 
The
Court:        They had intentions of being
here, do you know?
 
Trial
Counsel:   His uncle is here, Your
Honor.  That is him walking in the door.




We note that during the
proceedings, counsel failed to object to a defect in notice during the hearing
or to otherwise direct the trial court=s
attention to a defect in notice as to Appellant=s

mother.
Assuming, arguendo,
this issue was properly preserved, the order transferring Appellant to the
Institutional Division of the Texas Department of Criminal Justice recited that
Aafter due notice had been issued on all
parties as requested by Section 54.11(b) and (d) Texas Family Code . . . .@ 
We may presume the regularity of recitations like this in
judgments.  See Breazeale v. State,
683 S.W.2d 446, 450‑51 (Tex.Crim.App. 1985)(Op. on reh=g); In re B.D., 16 S.W.3d 77, 80
(Tex.App.--Houston [1st Dist.] 2000, pet. denied).  However, we will only presume this regularity
where the record is absent any controverting material.  Casillas v. State Office of Risk
Management, 146 S.W.3d 735, 738 (Tex.App.--El Paso 2004, no pet.), citing
Gen. Elec. Capital Assurance Co. v. Jackson, 135 S.W.3d 849, 853 (Tex.App.--Houston
[1st Dist.] 2004, pet. denied).  If the
record supports a court=s
finding, as set forth in a judgment or order, that all parties were notified,
notice will be deemed adequate.  See
In re R.G., 994 S.W.2d 309, 311-12 (Tex.App.‑‑Houston [1st
Dist.] 1999, pet. denied).  Although the
issue in R.G. concerned notice to the appellant, we think the reasoning
is applicable to situations in which an appellant alleges that notice to other
parties, as required by the same statute, was insufficient.




Here, the Texas
Youth Commission sent a letter to the trial court requesting a transfer hearing
and counsel was appointed to represent Appellant.  Prior to that hearing, private counsel was
retained for Appellant.  Counsel informed
the trial court that he knew Appellant=s
mother, aunt, and uncle.  Appellant=s uncle actually attended the
hearing.  The only controverting evidence
in this case was the absence of Appellant=s
parents at the hearing.  However,
Appellant=s uncle
did attend the hearing, presumably because his parents could not.  Based on the foregoing, we think the record
sufficiently supports the recitation in the court=s
order that notice was served on the parties as required by statute.  Therefore, Issue Two is overruled.
Having addressed
each of Appellant=s issues,
we affirm the judgment of the trial court.
 
 
February
2, 2006
DAVID WELLINGTON
CHEW, Justice
 
Before Barajas, C.J., McClure, and Chew, JJ.

