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Collins v. State

Court of Appeals of Texas, Ninth District, Beaumont

March 29, 2017

DON WILBURN COLLINS, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted on February 12, 2016

         On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 15-01-00728 CR

          Before Kreger, Horton, and Johnson, JJ.

          OPINION

          HOLLIS HORTON Justice.

         This case concerns whether an ex post facto violation of the defendant's constitutional rights occurred due to the transfer of the defendant's case from the juvenile court system to a district court where the defendant was tried as an adult. The appellant argues that an ex post facto violation occurred because he was tried as an adult for a crime he committed in 1998, when he was a thirteen-year-old child. At that time, Texas law required the proceedings against children fourteen or younger to be handled exclusively in juvenile courts.[1] However, after 1998, the Legislature amended the laws that apply to the transfer of juvenile proceedings to district court, expanding the attained age requirements for such transfers in cases involving children accused of committing murder. Act of May 27, 1999, 76th Leg., R.S., ch. 1477, § 8, 1999 Tex. Gen. Laws 5067, 5068-69 (current version at Tex. Fam. Code Ann. § 54.02(j) (West 2014)). The juvenile court in the defendant's case transferred the defendant's case from juvenile court based on the 1999 amendments, which lowered the age requirements to include thirteen year olds. The defendant appealed, complaining the juvenile court erred by relying on the amendments the Legislature passed after the date he committed the acts that resulted in the State charging him with murder.

         On appeal, Don Wilburn Collins argues that an ex post facto violation of his rights occurred when the juvenile court relied on the amended juvenile transfer provision in the Juvenile Justice Code to transfer his case to a district court. See U.S. Const. art. I, § 10, cl. 1 ("No State shall . . . pass any . . . ex post facto Law"); Tex. Const. art. I, § 16 ("No . . . ex post facto law . . . shall be made"); Tex. Fam. Code Ann. § 54.02(j) (West 2014) (authorizing a juvenile court to waive its jurisdiction over juveniles who have attained a certain age depending on the classification of the crime and to transfer the case from juvenile court to a district court for criminal proceedings). Collins also argues that the evidence admitted during the hearing conducted by the judge of the juvenile court on the State's motion to transfer was insufficient to support the court's decision to grant the State's motion and to transfer his case to a district court where he was tried for capital murder. See Tex. Fam. Code Ann. § 54.02(j) (setting out the factors the State must prove before the judge of a juvenile court is authorized to order that a juvenile proceeding be transferred to a district court).[2]

         For the reasons discussed in the opinion, we hold that the transfer of Collins' case from juvenile court to district court did not result in an ex post facto violation of Collins' constitutional rights. We further hold that, given the evidence introduced in the motion to transfer hearing, the judge of the juvenile court did not abuse her discretion by granting the motion to transfer. We overrule Collins' issues, and we affirm the trial court's judgment.

         Background

         In June 1998, Robert Middleton, an eight-year-old child, was in the woods near his home when someone doused him with gasoline and set him on fire. Middleton suffered third-degree burns over 95% of his body. In late April 2011, Middleton died of skin cancer. Dr. David Herndon, the doctor who treated Middleton's burns, explained that Middleton developed skin cancer due to complications from the burn injuries Middleton suffered in 1998.

         Middleton was hospitalized for an extended period that began on the day he was burned. Several weeks after Middleton was admitted to the hospital, and while Middleton was under the effects of narcotic drugs for pain, Middleton's mother claimed that Middleton told her that "Don" was the person who burned him. Based on that information, Bruce Zenor, a detective with the Montgomery County Sheriff's Department, filed an affidavit asking that the judge of the juvenile court authorize law enforcement officials to take Collins, a thirteen-year-old child who lived in Middleton's neighborhood, into custody. Later that same day, a juvenile court judge signed an order authorizing the police to take Collins into custody. After Collins was detained, he was placed in a juvenile detention facility.

         Approximately three weeks after Collins became a suspect in Middleton's case, William Pattillo III, an assistant county attorney for Montgomery County in charge of juvenile cases, filed a petition in juvenile court alleging that on June 28, 1998, Collins engaged in delinquent conduct by assaulting Robert Middleton, a child, by splashing Middleton with an accelerant and then lighting it with an incendiary device. See Tex. Penal Code Ann. § 22.02 (West 2011) (aggravated assault), § 22.04 (West Supp. 2016) (injury to a child).[3] In July 1998, the judge presiding over the juvenile court found that probable cause existed to believe that Collins had engaged in delinquent conduct.

         In January 1999, the judge presiding over the juvenile court released Collins from juvenile detention. Upon his release, the juvenile court placed Collins under the supervision of his uncle, John Horn. In July 2000, Pattillo filed a motion to nonsuit the petition charging Collins with delinquent conduct. The motion recites that the County[4] no longer desires to pursue the case. In the motion, Pattillo asked that the juvenile court dismiss the case "without prejudice to the rights of [Montgomery County] to refile[.]" The judge presiding over the juvenile court granted the request, and the order provides that the dismissal was "without prejudice to the rights of [Montgomery County] to reassert its claim or reinstate its action against [Collins]."

         In late April 2011, Middleton died; his death certificate indicates that he developed skin cancer as a consequence of the burn injuries that he suffered in 1998. In May 2011, Montgomery County's cold case unit opened a second investigation into Middleton's case. In September 2012, when Collins was twenty-seven, Montgomery County filed a petition against Collins in juvenile court charging him with murder. In the petition, the County asked that the judge of the juvenile court transfer the petition charging Collins with murder to a district court, where Collins could be tried as an adult.[5] Montgomery County's 2012 motion to transfer alleged that probable cause existed to believe that Collins was guilty of murdering Middleton by exposing him to fire. See Tex. Fam. Code Ann. § 54.02(j)(2)(A) (providing for discretionary transfers to criminal court in cases that involve children who were, at the time they committed the acts resulting in another's death, at least ten but under seventeen years of age).[6] In October 2012, based on the County's motion to dismiss its 2012 petition for discretionary transfer, the judge presiding over the juvenile court dismissed the petition.

         In September 2013, the County filed another petition alleging that Collins murdered Middleton. In its 2013 petition, the County once again asked the judge of the juvenile court to transfer the proceedings against Collins to a district court. In March 2014, the judge of the juvenile court conducted a hearing on the County's motion to transfer. Twenty-seven witnesses testified during the hearing, and the testimony the juvenile court considered in the hearing addresses whether the County had exercised due diligence in the manner it handled Collins' case before Collins turned eighteen. The evidence also addressed whether the County could have reasonably proceeded with a case against Collins for his role in causing Middleton's injuries before Collins turned eighteen. At the conclusion of the hearing, the judge of the juvenile court waived its right to exercise jurisdiction over Collins' case, found that the County had exercised due diligence in investigating Middleton's case before Collins turned eighteen, found that the County did not develop probable cause to allow it to proceed against Collins before he turned eighteen, found that it was not practicable for the County to have proceeded against Collins before he turned eighteen, and found that the State discovered new evidence in Middleton's case after Collins turned eighteen. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 34(j), 1995 Tex. Gen. Laws 2517, 2534 (current version at Tex. Fam. Code Ann. § 54.02(j)).

         In May 2014, the State secured an indictment from a grand jury charging Collins with capital murder. The indictment alleges that Collins injured Middleton in 1998 in the course of committing the offense of kidnapping, obstruction, or retaliation, and that the injuries Collins inflicted on Middleton resulted in Middleton's death. See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2016).[7] At the conclusion of the guilt-innocence phase of Collins' trial, the jury found Collins guilty of capital murder. In the punishment phase of the trial, the trial court instructed the jury that "the punishment for Capital Murder in this case is confinement in the Institutional Division of the Texas Department of Criminal Justice for any term not to exceed forty (40) years."[8] At the conclusion of the punishment phase of Collins' trial, the jury determined that Collins should serve a forty-year sentence. Subsequently, the judge sentenced Collins to a forty-year sentence.

         Ex Post Facto Challenge

         Under the current Juvenile Justice Code, the discretionary transfer statute allows a juvenile court judge to transfer a case involving a juvenile to a district court if the defendant is eighteen years of age or older at the time of the hearing, and if he was ten years of age or older when he committed a crime defined as a capital felony or as murder. Tex. Fam. Code Ann. § 54.02(j). However, when Collins injured Middleton in June 1998, the Juvenile Justice Code required that a child be fourteen or older at the time the crime was committed before the juvenile court could transfer a case based on conduct classified as a capital felony or as murder to district court. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 34, 1995 Tex. Gen. Laws 2517, 2533-34 (amended 1999, 2009, 2011, 2013) (current version at Tex. Fam. Code Ann. § 54.02(j)).

         Collins was thirteen when he poured gasoline on Middleton and set him on fire. Middleton lived approximately thirteen years after Collins caused Middleton's burns. Collins was never tried for delinquent conduct before he turned eighteen for his conduct. The parties do not dispute that under the laws as they existed in 1998, the Juvenile Justice Code did not authorize a juvenile court judge to transfer cases involving individuals who, at the time the juvenile injured his victim, were younger than fourteen. See 1995 Tex. Gen. Laws at 2534.

         In his first issue, Collins contends that the juvenile court's decision to rely on the amended version of the discretionary transfer statute to transfer his case to district court violated the ex post facto prohibitions in the Texas and the United States constitutions, which prohibit legislatures from enacting retroactive laws. See U.S. Const. art. I, § 10, cl.1 ("No State shall . . . pass any . . . ex post facto Law"); Tex. Const. art. I, § 16 ("No . . . ex post facto law . . . shall be made"). In response, the State contends that the Legislature expressly made the amendments to the discretionary transfer statute apply to any motion seeking a transfer if the motion was filed after September 1, 1999. According to the State, no ex post facto violation occurred because Collins received a forty-year sentence, which according to the State is a sentence that is substantially equivalent to the one Collins would have received had his case been handled entirely in a juvenile court.

         First, we must determine whether the amended version of the discretionary transfer statute applies to the motion for discretionary transfer the County filed in Collins' case in 2013. If so, we must then determine whether by allowing the transfer, Collins received a punishment more onerous than the one he would have received in a juvenile court such that the transfer resulted in a violation of his constitutional rights against the Legislature passing a retroactive law.

         Deciding whether the juvenile court properly applied the amended version of the discretionary transfer statute to Collins' case is a straightforward matter. When the Legislature amended the discretionary transfer statute, it provided that "[t]he change in law made [to the discretionary transfer sections in the statute] applies to discretionary transfer proceedings in which the discretionary transfer petition or motion was filed on [or] after the effective date of this Act." See Act of May 27, 1999, 76th Leg., R.S., ch. 1477, § 39(d), 1999 Tex. Gen. Laws 5067, 5090 (amended 2009, 2011, 2013) (current version at Tex. Fam. Code Ann. § 54.02(j)). The County filed the motion that resulted in the transfer of Collins' case on September 16, 2013. Given the enabling language in the amended discretionary transfer statute, we hold the judge of the juvenile court who presided over Collins' case was authorized to apply the amended version of the discretionary transfer statute to the County's motion for discretionary transfer. To the extent Collins argues that the juvenile court was not authorized by the Legislature to transfer his case to district court, his argument is overruled.

         Next, we turn to the issue of whether, by amending the discretionary transfer statute, the Legislature violated the constitutional prohibitions against enacting ex post facto laws. Generally, the Constitution prohibits statutes from being applied retroactively in a way that changes the punishment that applied to a crime on the date the crime was committed. See Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002) ("An ex post facto law . . . changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed."). Nevertheless, whether the Legislature's decision to amend a statute causes a sufficient change to increase a defendant's punishment in a manner that violated the Constitution "is a matter of degree[, ]" and "[a] statutory amendment that creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment does not violate the Ex Post Facto Clause." Johnson v. State, 930 S.W.2d 589, 591, 593 (Tex. Crim. App. 1996) (concluding that statute passed after defendant committed a crime, which permitted an out-of-state sentence to be used in cumulating the defendant's sentence, operated retroactively as a criminal punishment, violating article I, section 10 of the U.S. Constitution).

         According to Collins, by transferring his case to a district court, the juvenile court increased his potential punishment by exposing him to a life sentence, should he be convicted. See Tex. Penal Code Ann. § 12.31(a) (West Supp. 2016).[9] In arguing that the amendment to the discretionary transfer statute made the Juvenile Justice Code more punitive by allowing his case to be transferred to a district court, Collins compares the mandatory life sentence faced by a juvenile convicted of a capital felony in a district court with the forty-year determinate sentence that applied to juveniles found to have committed the same type of conduct he was convicted of having committed but whose cases were handled entirely within the juvenile justice system.[10] See Act of June 2, 1997, 75th Leg., R.S., ch. 1086, § 11, 1997 Tex. Gen. Laws 4179, 4185 (amended 1999, 2001, 2003, 2007, 2009, 2011, 2013, 2015) (current version at Tex. Fam. Code Ann. § 54.04(d)(3) (West Supp. 2016)). Collins contends that a mandatory life sentence, the sentence that applies to juveniles convicted in district court of committing capital murder, is the only sentence the Legislature authorized for juveniles convicted in a district court of committing a capital murder. Nonetheless, the district court did not impose a mandatory life sentence on Collins; instead, by instructing the jury that it could sentence Collins to no more than forty years in prison, the court effectively limited Collins' sentence to a term of no more than forty years. See Tex. Penal Code Ann. § 12.31(a)(1) (providing for mandatory life sentence in cases of capital felonies committed by individuals not yet eighteen).[11] However, Collins now argues that the trial court was not authorized to impose a punishment that differs from that proscribed in section 12.31(a)(1) of the Penal Code, which applies to juveniles convicted of committing capital murders. Id.

         In response to these arguments, the State focuses on the sentence Collins received, and it disregards the sentence he might have received had the court given him a life sentence. According to the State, the discretionary transfer statute is merely a procedural change as the statute was applied in Collins' case given that he did not receive a life sentence. The State suggests Collins did not suffer an increased punishment, given that he received a sentence substantially equivalent to the sentence he was eligible to receive had his case been handled entirely within the juvenile system.[12] The State concludes the forty-year sentence that Collins received is substantially the same as the determinate sentence that Collins would have received had his case been tried entirely within the juvenile justice system. See Tex. Fam. Code Ann. § 53.045 (West Supp. 2016); § 54.04((d)(3)(A).

         Having described the parties' arguments, we turn to the merits of Collins' argument that an ex post facto violation occurred. Several factors guide a court in evaluating whether a statute operates retroactively in a way that is constitutionally prohibited. One factor courts consider is "'whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred, [and] it is irrelevant whether the statutory change touches any vested rights.'" Grimes v. State, 807 S.W.2d 582, 587 (Tex. Crim. App. 1991) (quoting Weaver v. Graham, 450 U.S. 24, 29 n.13 (1981)). Courts also consider whether the change to the statute was procedural or substantive, indicating that "[l]aws altering procedure do not generally fall within the prohibition." Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Other factors that can be considered in evaluating the retroactive effect of a statute include:

• "whether the sanction involves an affirmative disability or restraint;"
• "whether it has traditionally been regarded as a punishment;"
• "whether it comes into play only on a finding of scienter;"
• "whether its operation will promote the traditional aims of punishment-retribution and deterrence;"
• "whether the behavior to which it applies is already a crime;"
• "whether an alternative purpose to which it may rationally be connected is assignable ...

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