                                    NO. 07-12-0019-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                  AUGUST 10, 2012
                           _____________________________

                              ALEXANDER CLAY EYHORN,

                                                                     Appellant
                                              v.

                                  THE STATE OF TEXAS,

                                                                     Appellee
                           _____________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

               NO. 18,407-C; HONORABLE ANA ESTEVEZ, PRESIDING
                         _____________________________

                                      Opinion
                           _____________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Alexander Clay Eyhorn appeals from a final judgment adjudicating him guilty of

aggravated sexual assault of a child. He was fifteen years old when he committed the

crime but was not prosecuted until he was eighteen. Upon his arrest, he was remanded

to the jurisdiction of the juvenile court. Per a motion filed by the State, the juvenile court

transferred its jurisdiction over the proceeding and appellant to the district court.

Thereafter, appellant entered a plea bargain wherein he pled guilty to the offense in

exchange for being placed on deferred adjudication for ten years. No appeal was taken
from the order deferring his adjudiciation of guilt. However, the State later moved for

such an adjudication, which motion the court granted. After being found guilty and

sentenced to forty years in prison, appellant contests the juvenile court’s decision to

transfer jurisdiction over him and the cause to the district court. We affirm.

       The contentions before us involve the decision to transfer jurisdiction over

appellant from the juvenile court to the district court. First, the State allegedly failed to

prove that it was not practicable to prosecute appellant as a juvenile despite its use of

due diligence to do so, and because it failed in that regard, the district court allegedly

acquired no jurisdiction over him. Second, appellant suggests that the juvenile court

abused its discretion in “certifying appellant as an adult” because of the tenuousness of

the evidence underlying the decision; the expert’s conclusions were unfounded and did

not support the decision, according to appellant. We overrule each for the following

reasons.

       No complaint was made of either matter until now. This is of import since 1)

claims regarding the want of jurisdiction in juvenile proceedings “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) (West 2005), while 2)

other claims (non-jurisdictional in nature) of “defect or error in a discretionary transfer

proceeding in juvenile court . . .” may be appealed “only as provided by Article 44.47.”

Id. art. 4.18(g). Here, there was no written motion questioning jurisdiction or its transfer




                                             2
filed with either the juvenile or district court. Thus, appellant did not comply with the

statutorily devised manner by which such issues may be raised.1

        As for appealing via art. 44.47, the latter specifies that an appeal of a transfer

order can be taken “only in conjunction with the appeal of a conviction or of an order of

deferred adjudication for the offense for which the defendant was transferred . . . . ” Id.

art. 44.47(b) (West 2006). At first blush, one could read this to mean that an appellant

need not appeal non-jurisdictional error concerning such transfers after being granted

deferred adjudication; instead, he may wait until he is finally convicted.                     Such an

interpretation of the statute, however, tends to run afoul of analogous precedent from

our Court of Criminal Appeals.

        For over a decade, non-jurisdictional mistakes arising before issuance of an

order deferring the adjudication of guilt had to be appealed immediately after the

accused was placed on community supervision; appellant could not wait until the trial

court ultimately convicted him to complain of such matters. Webb v. State, 20 S.W.3d

834, 836 (Tex. App.–Amarillo 2000, no pet.); see also Daniels v. State, 30 S.W.3d 407,

408 (Tex. Crim. App. 2000) (stating a defendant may raise issues related to his original

plea proceeding only in appeals taken when deferred adjudication is first imposed);

Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999) (stating the same).

Furthermore, non-jurisdictional complaints arising in a proceeding that resulted in

deferred adjudication and implicated the standard of abused discretion, see e.g.

Strowenjans v. State, 919 S.W.2d 142, 145-146 (Tex. App.–Dallas 1996), set aside on


        1
          We further note the observation by our Court of Criminal Appeals that objections implicating the
failure to prove due diligence are not jurisdictional. State v. Rhinehart, 333 S.W.3d 154, 159 (Tex. Crim.
App. 2011).


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other grounds, 927 S.W.2d 28 (Tex. Crim. App. 1996) (objections to evidence),

generally were and are of that ilk. So they must be appealed immediately. We see no

logical reason why art. 44.47(b) should be read as jettisoning that rule simply because

the accused was initially subject to being tried as a juvenile. Once certified as an adult,

the defendant is subjected to other procedures applicable in the prosecution of adults.

       Furthermore, the policy underlying Manuel, Daniels, and Webb fosters the notion

that errors should be corrected at their earliest opportunity. If juveniles who commit

criminal acts are to be matriculated via different procedures, it would seem appropriate,

then, to address complaints regarding the subjection of minors to adult procedures as

early as possible.

       Finally, reading the statute to comport with Manuel and company would be

tantamount to reading it as recognizing the realities of current practice. See Miller v.

State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000) (holding that courts are to presume

that the legislature was aware of current judicial opinions when enacting a statute).

That is, certifying a minor to be tried as an adult can lead to either immediate

prosecution and conviction or deferred adjudication.      If non-jurisdictional complaints

arise during a trial resulting in a conviction, they should be appealed immediately after

conviction. If they arise in a proceeding that results in a deferred adjudication, they

should be immediately appealed at that point. And, that is how art. 44.47(b) is to be

interpreted.

       The objections asserted here arose before the district court decided to defer the

adjudication of appellant’s guilt.   Thus, objections regarding the expert’s conclusion

upon which the juvenile court relied in certifying appellant as an adult were susceptible



                                            4
to review once he was placed on deferred adjudication.           Furthermore, whether the

juvenile court abused its discretion in ruling as it did after considering those conclusions

is not jurisdictional in nature. So, the complaint should have been raised and appealed

at the earliest opportunity. That was immediately after the district court deferred the

adjudication of his guilt and placed appellant on community supervision. Because it

was not, we cannot review the matter now.

       The issues raised by appellant are overruled, and the judgment of the trial court

is affirmed.

                                                 Brian Quinn
                                                 Chief Justice



Publish.




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