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 CO URT OF RANDALL COUNTY; NO. 18,407-C; HONORABLE ANA ESTEVEZ, PRESIDING

__________________ ___________ Opinion

__________________ ___________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Alexander Clay Eyhorn appeal s from a final judgment adj udicating him guilty of aggravated sexual assault of a child. He was fifteen y ears 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 proceedi ng 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 de ferred adjudication for ten years. No appeal was taken2 from the order deferring his adjudiciation of guilt. However, the State later moved for such an adjudication, which motion the co urt granted. After being found guilty and sentenced to forty years in pr ison, appellant contests the ju venile court’s decision to transfer jurisdiction over him and the cause to the district c ourt. 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 prosecut e 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 ex pert’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,” T EX

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. art. 4.18(a) (West 2005), while 2) other claims (non-jurisdictional in nature) of “defect or erro r in a discretionary transfer proceeding in juvenile court . . .” may be a ppealed “only as provided by Article 44.47.” Id. art. 4.18(g). Here, there wa s no written motion questioning jurisdiction or its transfer3 filed with either the juvenile or district c ourt. Thus, appellant did not comply with the statutorily devised manner by wh ich 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 co njunction with the appeal of a conviction or of an order of deferred adjudication for the o ffense 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 concer ning such transfers after being granted deferred adjudication; instead, he may wait unt il 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 mi stakes arising before issuance of an order deferring the adjudicati on of guilt had to be appea led 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 ma y 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. A pp. 1999) (stating the same). Furthermore, non-jurisdictional complaints ar ising in a proceeding that resulted in deferred adjudication and implicated the standard of abus ed 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).4 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 ot her procedures applicable in t he prosecution of adults. Furthermore, the policy underlying Manuel, Daniels, and Webb fosters the notion that errors should be correct ed at their earliest opportunity . If juveniles who commit criminal acts are to be matriculated via diffe rent procedures, it woul d seem appropriate, then, to address complaints regarding the s ubjection of minors to adult procedures as early as possible. Finally, reading the st atute 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 awar e 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, obj ections regarding the expert’s conclusion upon which the juvenile court relied in certif ying appellant as an ad ult were susceptible5 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, t he complaint should have been raised and appealed at the earliest opportunity. That was immedi ately 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 overru led, and the judgment of the trial court is affirmed. Brian Quinn Chief Justice

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