
  
   
   
 
  
 
 
 
 
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0002-10


THE STATE OF TEXAS


v.


KENTON JERROD RHINEHART, Appellee




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

DALLAS COUNTY



Hervey, J., delivered the opinion of the Court in which Meyers, Johnson,
Keasler and Cochran, JJ., joined.  Keller, P.J., filed a dissenting opinion.  Price, J.,
filed a dissenting opinion in which Womack, J., joined. O P I N I O N 

	We granted discretionary review in this case to address, among other things, whether a
criminal district court may set aside a juvenile court's order waiving its jurisdiction and transferring
the case to the criminal district court under Section 54.02 of the Family Code (ground three of
appellee's discretionary-review petition).  However, with the criminal district court not having set
aside the juvenile court's transfer order, we decide that this issue is not presented in this case, and
we, therefore, decline to address it.  We do find it necessary to sustain another ground for review
(ground one) in appellee's discretionary-review petition, thus requiring this Court to reverse the
judgment of the court of appeals. 
	Appellee was born on April 13, 1989.  He was charged in juvenile court with an aggravated
robbery that was committed on February 28, 2006, forty-four days before appellee's seventeenth
birthday.  On April 16, 2007, three days after appellee's eighteenth birthday, the State filed a petition
in the juvenile court to transfer appellee's case to a criminal district court where appellee would be
tried as an adult.  Appellee claimed at an April 30, 2007 transfer hearing that the juvenile court
should deny this petition because the State did not use due diligence in proceeding with his case in
juvenile court before appellee's eighteenth birthday. (1)  The State claimed at this hearing that it had
used due diligence.  On May 2, 2007, the juvenile court signed an order waiving its jurisdiction and
transferring appellee to criminal district court, after which appellee was indicted for aggravated
robbery. (2)
	Appellee raised the due-diligence issue again in the criminal district court in a motion that
he labeled a "MOTION TO QUASH INDICTMENT."  Attached to this motion was a proposed order
indicating that the motion was either "Granted" or "Denied."  The criminal district court held a
hearing on this motion, during which the parties relitigated the due-diligence issue that had been
litigated in the juvenile court.  The State's only argument at the hearing in the criminal district court
was that it had used due diligence.  Appellee relied on six exhibits that covered matters that were
covered at the transfer hearing in the juvenile court.  One of these exhibits (Defendant's Exhibit 5)
is the reporter's record of the transfer hearing in the juvenile court.  The criminal district court
"Granted" appellee's "MOTION TO QUASH INDICTMENT."
	The State appealed to the court of appeals, claiming for the first time on appeal that: (1) the
criminal court was without jurisdiction to review "the evidence underlying the juvenile court's
decision to transfer this case" because appellee "had no statutory right to appeal the sufficiency of
the evidence in the juvenile court's transfer proceedings prior to being finally convicted in the
criminal district court" (3) (emphasis supplied), and (2) the criminal district court erred to grant
appellee's motion to quash the indictment on a ground not authorized by law because the sufficiency
of the evidence supporting a juvenile court's order to transfer a case to criminal district court is not
a valid ground for granting a motion to quash an indictment as a matter of statutory law.  Appellee
responded by arguing, among other things, that the State had waived these issues by failing to raise
them in the criminal district court (4) and that he did not "appeal" but only "challenged" the juvenile
court's transfer order (as opposed to the indictment) in the criminal district court.
	The court of appeals sustained the State's second issue, found it unnecessary to address its
first issue, reversed the criminal district court's order quashing the indictment, and remanded the
case to the criminal district court for further proceedings consistent with its opinion. (5)  The court of
appeals further stated that "issues relating to the [juvenile-court] transfer proceedings are properly
raised in an appeal from a conviction after transfer."  See Rhinehart, slip op. at 4.  It also stated:
	Appellee acknowledges that a party may only appeal a transfer order in conjunction
with a conviction or an order of deferred adjudication.  See Tex. Code Crim. Proc.
Ann. Art. 44.47(b) (Vernon 2006).  Nonetheless, appellee contends that an "appeal"
differs from a "challenge," and insists the statute does not restrict a defendant's rights
to challenge a transfer order.  Although we note that the construction appellee seeks
to advance would effectively allow a defendant two bites at the proverbial apple, we
need not decide the issue here.  Appellee's motion did not seek to set aside the
transfer order; it sought to quash the indictment.  Moreover, even if the statute
afforded different treatment for a "challenge" than an "appeal," the distinction is
without a difference in the present case.  Appellee's motion concerned the sufficiency
of the evidence in the transfer proceeding.  And in the absence of a conviction or
other order of deferred adjudication, we have no jurisdiction to determine the
propriety of a transfer.  See Tex. Code Crim. Proc. Ann. Art. 44.47(b) (Vernon
2006).

See Rhinehart, slip op. at 5.

	We granted appellee's discretionary-review petition to review the court of appeals's decision. 
The grounds upon which we granted review are:
	1. The court of appeals erred in failing to address the "waiver" issue.

	2. The court of appeals erred in re-framing the issue and failing to address the true
issue at hand, namely: whether the Criminal District Court had the authority to set
aside the transfer order.

	3. The [court of appeals] erred in implicitly ruling that the trial court lacked the
authority to set aside the transfer order.

(Emphasis in original).
	Appellee asserts that the criminal district court "set aside the transfer order because the State
failed to proceed in the juvenile court with due diligence before Rhinehart's eighteenth birthday" and
that the "issue in this case is whether the [criminal district] court had the judicial authority to set
aside a transfer order."  And, in support of his second ground for review, appellee argues, "Some of
the confusion in this case apparently has resulted from the fact that Rhinehart mislabeled the motion
as being a 'Motion to Quash Indictment.'  The motion was, in fact, a motion challenging the validity
of the transfer order.  A review of the contents of the motion itself and the arguments made during
the pre-trial hearing clearly established that fact."
	Though the record does reflect that the basis of appellee's "MOTION TO QUASH
INDICTMENT" was the validity of the juvenile court's transfer order, we must disagree with
appellee that the effect of the criminal district court granting this motion to quash was to set aside
the transfer order.  Appellee's motion requested that the indictment be quashed, not that the transfer
order be set aside. (6)  On the record presented to the court of appeals, the procedural posture of this
case was that the juvenile court's transfer order was still in force and that, in granting appellee's
"MOTION TO QUASH INDICTMENT," the criminal district court had merely set aside the
indictment.  See State v. Eaves, 800 S.W.2d 220, 221-22 n.5 (Tex.Cr.App. 1990) ("quash" and "set
aside" are synonymous). (7)  We, therefore, disagree with the claim in appellee's second ground for
review that the court of appeals re-framed the issue and failed to address the true issue, namely:
whether the criminal district court "had the authority to set aside the transfer order."  This issue is
not presented in this case since the criminal district court did not set aside the juvenile court's
transfer order, and the court of appeals would have erred even to address this issue.
	We also understand appellee to argue that a juvenile court's erroneous transfer order does
not divest the juvenile court of its exclusive jurisdiction over the case, thus permitting the criminal
district court to review the validity of the transfer order to determine whether it has jurisdiction over
the case.  Appellee argues, "Accordingly, Rhinehart would urge that, without a valid transfer
proceeding, the [criminal district] court would not have acquired jurisdiction.  Consequently, the
validity of the transfer order is and must be subject to judicial review in the [criminal district] court." 
We do not believe that the criminal district court's quashing of appellee's indictment, based on the
State's lack of "due diligence," is necessarily a determination by the criminal district court that it
lacks jurisdiction over the case.  In addition, the legislative provision in Article 44.47(b) that a
defendant may appeal a juvenile court's transfer order "only in conjunction with the appeal of a
conviction . . . for which the defendant was transferred to criminal court" is some indication that a
juvenile court's erroneous transfer order does not divest the criminal district court of jurisdiction
over the case.  We do not believe that the issue of whether the criminal district court could set aside
the juvenile court's transfer order would be presented in this case unless the criminal district court
set aside the transfer order and attempted to remand the case to the juvenile court.
	Judge Price's dissenting opinion would decide that "the trial court necessarily ruled that the
[juvenile court's] transfer order was invalid and that the lack of a valid transfer order deprived it of
jurisdiction over the matter."  See Dissenting op. at 2 (Price, J.) (emphasis in original).  This
dissenting opinion would then remand the case to the court of appeals to consider, "in the first
instance: 1) whether the trial court had the authority to make such an implicit ruling on the validity
of the transfer order; and/or, in the event that it should find that the trial court did have that authority
(or, possibly, as an alternative to deciding whether the trial court had that authority), then 2) whether
the State procedurally defaulted any complaint about the trial court's authority by failing specifically
to question its authority during the proceedings at the motion to quash hearing."  See Dissenting op.
at 4-5 (Price, J.) (emphasis in original).
	There would, however, be no point in doing this unless the Court were also to decide that,
in quashing the indictment, the criminal district court also implicitly or necessarily set aside the
juvenile court's transfer order. (8)  The juvenile court and the parties would, thus, have to read at least
two implicit or necessarily implied rulings in the criminal district court's order granting appellee's
motion to quash to learn that the juvenile court had jurisdiction over the case again.
	And, it is not so clear to us that, in granting appellee's motion to quash, the criminal district
court implicitly or even necessarily ruled that the juvenile court's ruling on the due-diligence issue
deprived the criminal district court "of jurisdiction over the matter."  It is not apparent to us that a
juvenile court's erroneous ruling on a due-diligence issue deprives the criminal district court "of
jurisdiction over the matter."  See, e.g., Article 44.47(b) (defendant may appeal a transfer under
Section 54.02 of the Family Code "only in conjunction with the appeal of a conviction of . . . the
offense for which the defendant was transferred to criminal court").
	In addition, even if one could read these implicit rulings into the criminal district court's
granting of appellee's  motion to quash, this motion to quash still requested only that the indictment
be quashed.  Notwithstanding what the criminal district court may have implicitly decided, appellee's
motion to quash may not have been clear and specific enough to put the State on notice that appellee
might also have been seeking to set aside the juvenile court's transfer order so that the State would
have an opportunity to challenge the criminal district court's authority to do this.  The dissenting
opinion apparently would leave open the possibility that the State procedurally defaulted this issue
on appeal even though appellee's motion to quash may not have been specific enough to put the
State on notice that it needed to raise this issue in the criminal district court.
	At least in this case, we believe that appellee should have labeled his motion something other
than a motion to quash (e.g., a motion to set aside the juvenile court's transfer order) if his intention
was, as he claimed on appeal, to challenge the validity of the transfer order.  Appellee has even
acknowledged in this proceeding that "[s]ome of the confusion in this case apparently has resulted
from the fact that Rhinehart mislabeled the motion as being a 'Motion to Quash Indictment.'"  In this
particular case, we believe it appropriate to put appellee back in the position that he was in after the
juvenile court waived its jurisdiction and transferred his case to the criminal district court and before
appellee filed his mislabeled motion to quash that may have confused the other party on exactly what
it was that appellee was attempting to accomplish.  Appellee's second ground for review is
overruled. (9)
	This also means that, with the criminal district court having only set aside the indictment,
which it clearly had the subject-matter jurisdiction and authority to do, the State, as the losing party
in the trial court, failed to preserve the claims that it presented for the first time on appeal in the court
of appeals.  Compare Sanchez v. State, 120 S.W.3d 359, 366-67 (Tex.Cr.App. 2003) (right to be
charged by an instrument that is free of defects, errors, and omissions is neither a "systemic"
requirement nor a "waivable" right, and any error in the charging instrument must be objected to in
a timely and specific manner); Hailey, 87 S.W.3d at 121-22; State v. Boado, 55 S.W.3d 621, 622-24
(Tex.Cr.App. 2001) (Johnson, J., dissenting to dismissing discretionary-review petition as
improvidently granted) (court of appeals should not have reversed trial court's decision quashing
indictment on theory not raised by the State in either the trial court or on appeal).  The court of
appeals, therefore, erred in not considering and sustaining appellee's waiver argument.  See
Kombudo v. State, 171 S.W.3d 888, 889 (Tex.Cr.App. 2005) (Tex. R. App. P. 47.1 "requires a court
of appeals to address an appellee's reply that the appellant's point was not preserved for review"). (10)
	In arguing that the State, as the losing party in the criminal district court, should be permitted
to argue for the first time on appeal that there was no valid basis for the criminal district court to
have quashed the indictment, Presiding Judge Keller's dissenting opinion relies on this Court's prior
decisions holding that the State can usually raise the issue of a defendant's standing to challenge a
search or a seizure on Fourth Amendment grounds for the first time on appeal.  See Dissenting op.
at 2 (Keller, P.J.) (citing State v. Klima, 934 S.W.2d 109, 111 (Tex.Cr.App. 1996)); see generally
Wilson v. State, 692 S.W.2d 661, 666-71 (Tex.Cr.App. 1984) (op. on reh'g) (discussing when State
may raise issue of standing for the first time on appeal). (11)  We do not believe that these cases apply
here since there is no question that appellee has standing to quash the indictment in this case.  There
is no claim in this case that appellee attempted to quash an indictment charging someone else with
aggravated robbery.  Nor does the dissent point to any case law that equates allowing the State to
raise standing for the first time on appeal to allowing the State to ignore ordinary rules for preserving
error.
	In addition, our decisions in Klima and Wilson primarily relied on the Supreme Court's
decision in Rakas v. Illinois (12) for the proposition that the State can usually raise the issue of a
defendant's standing to challenge a search or seizure on Fourth Amendment grounds for the first
time on appeal. (13)  We do note, however, that the prosecution in Rakas did raise the standing issue
in the trial court which, the Supreme Court stated, "gave petitioners notice that they were put to their
proof on any issue as to which they had the burden . . . ."  See Rakas, 439 U.S. at 132 n.1. (14) Rakas,
therefore, would not clearly support a decision here that the State should be permitted to argue for
the first time on appeal that there was no valid basis for the criminal district court to have quashed
the indictment.
	We also do not agree with the broad assertion in the Presiding Judge's dissenting opinion that
"the State need not preserve a complaint if the issue is one which the defendant had the burden to
prove in order to obtain relief."  In State v. Steelman, for example, the State was not permitted to
raise for the first time on appeal a claim that a search was valid pursuant to a warrant even though
the defendant had the burden on the motion to suppress.  See State v. Steelman, 93 S.W.3d 102, 107
(Tex.Cr.App. 2002) ("At the suppression hearing, the State specifically limited its argument to one
theory of law: that there was probable cause to justify a warrantless arrest and warrantless search. 
Because the State did not present its other theory (that even if the warrantless arrest was illegal, it
did not taint the search pursuant to the warrant) to the trial court, the State cannot rely on that theory
on appeal.") (emphasis in original).
	This dissenting opinion claims that we misread  Steelman because "it was the State that had
the burden to prove the propriety of the warrantless police activity in that case."  See Dissenting op.
at 3-4 (Keller, P.J.) (emphasis supplied).  There is no disagreement or misunderstanding as to when
the burden shifts on a motion to suppress.  The point is that, in Steelman, the State was not permitted
to raise for the first time on appeal the theory that the search was justified pursuant to a warrant, an
issue upon which the defendant had the initial burden of production. (15)  And the crucial focus is on
the losing party's requirement to preserve error for purposes of appeal.
	To summarize, in this case, we apply ordinary rules of procedural default to decide that the
State, as the losing party in the criminal district court, could not raise for the first time on appeal a
claim that there was no valid basis for the criminal district court to have quashed the indictment.  We
decline to apply, in this case, the Fourth Amendment standing rule of Rakas which, in any event,
does not clearly support the proposition that the State should be permitted to raise this claim for the
first time on appeal, particularly since the State chose to litigate only the due-diligence issue in the
criminal district court thus, in effect, conceding that this might be a valid basis for quashing the
indictment. (16) See Steagald, 451 U.S. at 209-11.  Appellee's first ground for review is sustained.
	We reverse the judgment of the court of appeals and affirm the criminal district court's ruling
quashing the indictment. (17)
								Hervey, J.
Delivered: March 9, 2011
Publish
1. 	See, e.g., Matter of J.C.C., 952 S.W.2d 47, 49-50 (Tex.App.-San Antonio 1997, no writ)
(juvenile court abused its discretion in certifying J.C.C. as an adult and transferring the case to the
district court because the State failed to show due diligence "in not prosecuting him in [juvenile
court] before his eighteenth birthday").
2. 	The State presented three witnesses, and appellee presented one witness at the April 30, 2007
transfer hearing in the juvenile court.  The evidence presented at this hearing shows that the police
developed appellee as a suspect in the aggravated robbery on June 27, 2006 (about four months after
it was committed).  The aggravated-robbery case was filed in the juvenile court on July 26, 2006. 
Appellee was not arrested for this offense until April 6, 2007.  The State seemed to take the position
at the April 30th transfer hearing that it was not able to locate appellee until his arrest on April 6th
even though during this period of time appellee had been in and out of jail on several occasions on
various other criminal charges that had been filed against him in adult criminal court.  In its May 2,
2007 order, waiving its jurisdiction and transferring appellee to the criminal court, the juvenile court
made a finding that "it was not practicable to proceed in Juvenile Court before the eighteenth
birthday of [appellee] because [appellee] could not be found."  See § 54.02(j)(4)(B)(ii), Tex. Fam.
Code (juvenile court may waive its exclusive original jurisdiction and transfer a person to the
appropriate  district court or criminal district court for criminal proceedings if, among other things,
the juvenile court finds from a preponderance of the evidence that "after due diligence of the state
it was not practicable to proceed in juvenile court before the 18th birthday of the person because the
person could not be found").
3. 	See Article 44.47(b), Tex. Code Crim. Proc. (defendant may appeal a transfer under Section
54.02 of the Family Code "only in conjunction with the appeal of a conviction of . . . the offense for
which the defendant was transferred to criminal court").
4. 	Appellee argued that the State, as the losing party in the criminal district court, could not
present new theories on appeal for reversing the criminal district court's decision.  See Hailey v.
State, 87 S.W.3d 118, 121-22 (Tex.Cr.App. 2009) (ordinary notions of procedural default generally
prohibit an appellate court from reversing a trial court's decision on a theory not presented to the trial
court); State v. Mercado, 972 S.W.2d 75, 77-78 (Tex.Cr.App. 1998).
5. 	See State v. Rhinehart,  No. 05-09-00155-CR, slip op. at 3-4 (Tex.App.-Dallas, delivered
October 12, 2009) (not designated for publication) (appellee's "MOTION TO QUASH
INDICTMENT" did not assert any of the statutory grounds in Articles 27.03, 27.08 and 27.09, Tex.
Code Crim. Proc. for setting aside an indictment; instead, "the motion asserted that the indictment
should be quashed because the elements requisite to transfer a case from juvenile court to district
court had not been met") and slip op. at 5 ("Because there is nothing before us to demonstrate that
the indictment was not valid, we conclude the trial court erred in quashing the indictment.  The
State's second issue is sustained.  Our resolution of this issue obviates the need to address the State's
first issue.  We reverse the trial court's order and remand the case for further proceedings consistent
with this opinion.").  (Citation to authority omitted).
6. 	The relief requested in the prayer in appellee's motion was that "upon hearing and
presentation of evidence that the indictment in this cause be quashed and held for naught." 
(Emphasis supplied). 
7. 	Under these circumstances, the State can obtain another indictment against appellee.  See
Article 28.05, Tex. Code Crim. Proc. (if a motion to set aside an indictment is sustained, "the
defendant shall not therefor be discharged, but may immediately be recommitted by order of the
court, upon motion of the State's attorney or without motion; and proceedings may afterward be had
against him as if no prosecution had ever been commenced"); Article 28.08, Tex. Code Crim. Proc.
(if a motion to set aside an indictment is sustained, "but the court refuses to discharge the defendant,
then at the expiration of ten days from the order sustaining such motion[]," the defendant shall be
discharged, "unless in the meanwhile complaint has been made before a magistrate charging him
with an offense, or unless another indictment has been presented against him for such offense").
8. 	The dissenting opinion states that "our original purpose in granting the appellee's petition
for discretionary review was to address the trial court's authority to declare . . . the [juvenile court's]
transfer order invalid . . . ."  See Dissenting op. at 3-4 (Price, J.).  However, we granted discretionary
review on the related but nevertheless different question of whether the court of appeals "erred in
implicitly ruling that the trial court lacked the authority to set aside the transfer order."  We have
declined to address this question since the criminal district court did not set aside the juvenile court's
transfer order based on its ruling on the due-diligence question.
9. 	Our disposition of appellee's second ground for review makes it unnecessary to address
appellee's third ground for review, which we dismiss.  We express no opinion on the question
presented in ground three: whether the court of appeals erred in implicitly deciding that the criminal
district court "lacked the authority to set aside the [juvenile court's] transfer order."
10. 	We also express no opinion on whether the court of appeals correctly decided that the
criminal district court erroneously granted appellee's motion to quash the indictment.  See generally
State v. Rosenbaum, 910 S.W.2d 934, 942-48 (opinion of Clinton, J.), adopted by the Court, 910
S.W.2d at 948 (opinion on reh'g) (Tex.Cr.App. 1995) ("An indictment must be facially tested by
itself under the law as a pleading; it can neither be supported nor defeated as such by what evidence
is presented at trial. . . . A fortiori, it can not be supported or defeated by evidence presented at
pretrial."); Eaves, 800 S.W.2d at 221-23. 
11. 	We disagree with the statement in this dissenting opinion that our majority opinion holds that
there was no valid basis for quashing the indictment.  See Dissenting op. at 1 (Keller, P.J.) (noting
that the "Court appears to agree" that the trial court should not have granted appellee's motion to
quash because there was nothing to indicate that the indictment was invalid); and at 2 (stating, "In
this case, as the Court holds, there was no valid basis for quashing the indictment.").  We have
expressed no opinion on this issue.
12. 	439 U.S. 128 (1979).
13. 	The rationale for this rule is that standing is an element of the defendant's Fourth
Amendment claim and thus the defendant "cannot complain that he is surprised on appeal by final
decision (here) of issues upon which (he has) had no opportunity to introduce evidence."  See United
States v. Hansen, 652 F.2d 1374, 1381-82 (10th Cir. 1981) (internal quotes omitted).  This rule,
however, is not absolute.  See Steagald v. United States, 451 U.S. 204, 209-11 (1981) (government
"through its assertions, concessions, and acquiescence" lost right to challenge defendant's assertion
that he possessed legitimate expectation of privacy in the searched home).  Our decision on rehearing
in Wilson, upon which our decision in Klima heavily relied, also pointed out that "the prosecution
may forfeit review of the [standing] issue through its assertions, concessions, and acquiescence in
the course of the litigation."  See Wilson, 692 S.W.2d at 668 (op. on reh'g) (internal quotes omitted). 
That arguably happened in this case when the State claimed at the hearing on appellee's motion to
quash only that it had used due diligence.  See id.
14. 	Compare State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Cr.App. 1999) (prosecution not put to
its burden to prove voluntariness unless a defendant presents evidence that raises a voluntariness
question).
15. 	See Steelman, 93 S.W.3d at 106-07; see also Ford v. State, 158 S.W.3d 488, 492
(Tex.Cr.App. 2005) ("To suppress evidence on an alleged Fourth Amendment violation, the
defendant bears the initial burden of producing evidence that rebuts the presumption of proper police
conduct.  A defendant satisfies this burden by establishing that a search or seizure occurred without
a warrant.  Once the defendant has made this showing, the burden of proof shifts to the State where
it is required to establish that the search or seizure was conducted pursuant to a warrant or was
reasonable.") (footnotes omitted); Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Cr.App. 1986) ("When
a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, this Court has
placed the burden of proof initially upon the defendant.  As the movant in a motion to suppress
evidence, a defendant must produce evidence that defeats the presumption of proper police conduct
and therefore shifts the burden of proof to the State.  A defendant meets his initial burden of proof
by establishing that a search or seizure occurred without a warrant.  Once a defendant has established
1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts
to the State.  If the State produces evidence of a warrant, the burden of proof is shifted back to the
defendant to show the invalidity of the warrant.  If the State is unable to produce evidence of a
warrant, then it must prove the reasonableness of the search or seizure.") (footnotes and citation to
authorities omitted).
16. 	Our decision in this case should not be read to mean that the State could not at a later time
claim that any defect in this transfer order is not a valid basis for granting a motion to quash.
17. 	If the State chooses, it may reindict.
