A___ N___ M___, Matter of

• Decision Date: 04 October 1976
• Docket Number: No. 18996,18996
• Citation: 542 S.W.2d 916
• Parties: In the Matter of A_ _ N_ _ M_ _.
• Court: Texas Court of Appeals

Page 916

542 S.W.2d 916

In the Matter of A_ _ N_ _ M_ _.

No. 18996.

Court of Civil Appeals of Texas,

Dallas.

Oct. 4, 1976.

F. Dean White, Canton, for appellant.

W. E. Eblen, County Atty., Canton, for appellee.

AKIN, Justice.

This is an appeal by a minor from an order of the county court adjudicating that he had engaged in delinquent conduct within the purview of Tex.Family Code Ann. § 51.03 (Vernon 1975) ¹ and from a disposition order committing him to the Texas Youth Council. Trial was to a six-man jury, who found that the minor had stolen two vehicles and had committed burglary in violation of the Texas Penal Code, offenses which would have been felonies if the minor had been an adult. The minor, through his appointed attorney ad litem, contends that the trial court erred in: (1) overruling his motion suggesting mental illness; (2) denying him a twelve-man jury; (3) denying him an instructed verdict because he had not been positively identified as the perpetrator of the offenses alleged by the State; (4) instructing the jury that it could return a verdict upon the vote of five jurors; (5) failing to advise his attorney ad litem of all written matter to be considered by the court at the disposition hearing; (6) failing to set forth in the disposition order reasons for the court's disposition; and (7) making a disposition not within the power of the juvenile court. Because we hold that the trial court erred in overruling his motion suggesting mental illness, in failing to set forth specifically the court's reasons for its disposition, and in making an improper disposition, we reverse.

A. The Adjudication Hearing

1. Suggestion of Mental Illness

The minor argues that the court should not have overruled his motion suggesting mental illness, but instead should have ordered appropriate medical and psychiatric inquiry before the adjudication hearing. We agree. Section 55.05(b) provides:

If it appears to the juvenile court, on suggestion of a party or on the court's own notice, that a child alleged to have engaged in delinquent conduct or conduct indicating a need for supervision May not be responsible as a result of mental disease or defect, the court Shall order appropriate medical and psychiatric inquiry to assist in determining whether the child is or is not responsible. (Emphasis added.)

We construe the word 'may' as used in this section to indicate reasonable possibility, not reasonable probability. Europak, Inc. v . County of Hunt, 507 S.W.2d 884, 886 (Tex.Civ.App.--Dallas 1974, no writ). Since the trial court had before it a psychological evaluation which was considered by the court on the motion suggesting mental illness, and since that evaluation stated that the minor's 'attempts to control his emotions are likely unsuccessful because his concept of reality tends to be distorted,' we hold that a reasonable possibility was raised that the minor may not be mentally responsible. Therefore, under § 55.05(b), it was mandatory that the trial court order a medical or psychiatric inquiry because the statute uses the word 'shall.' See Clear Lake Apartments, Inc. v. Clear Lake Utilities Co., 537 S.W.2d 48, 53 (Tex.Civ.App.--Houston (14 Dist.) 1976, writ filed). Consequently, we conclude that the court's failure to do so was error.

2. Six-Man Jury

Appellant contends that the trial court erred in using a six-month jury, rather than a twelve-man jury. He argues that the acts which were the subject of the delinquency hearing would be felonies if committed by an adult and would entitle an adult to a twelve-man jury in a district court under Tex.Code Crim.Proc.Ann. arts. 4.05 and 33.01 (Vernon 1966). This argument infers a denial of equal protection and due process guaranteed by the United States Constitution in the fourteenth amendment. Although the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L .Ed.2d 527 (1967) held that the fourteenth amendment was applicable to juveniles as well as adults, it later held in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) that trial by jury was not constitutionally required in a hearing to adjudicate a juvenile to be delinquent. Cf. In re S_ _ J_ _ C_ _, 533 S.W.2d 746, 747 (Tex.1976). Furthermore, due process does not require a jury of twelve in view of Williams v. Florida, 399 U.S . 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Consequently, we hold that § 51.17 which permits the juvenile board to designate either the county court or the district court as the juvenile court in certain counties does not contravene the fourteenth amendment to the United States Constitution.

Appellant's contention may also be construed to be a constitutional attack on § 51.17 under the Texas Constitution because of the decision of our supreme court in Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, 646 (1950). In that case the court held that since a domestic relations court was a statutory court exercising the jurisdiction of a district court, art. I, § 15 of the Texas Constitution which states that '(t)he right of trial by jury shall remain inviolate,' required a jury of twelve men unless the constitution expressly provided for a lesser number. We conclude that Jordan has no application here because Tex.Const. art. V, § 17 prescribes that a constitutional county court shall have a six-man jury and § 51.17 of the Family Code expressly authorizes designation of the constitutional county court as the juvenile court. We see no violation of the constitution in this arrangement.

3. Failure to Identify Minor

The minor contends that the court erred in refusing to grant him an instructed verdict because he was not identified in court as the perpetrator of the alleged delinquent conduct. In support of this argument, he cites cases such as De La Paz v. State, 161 Tex.Cr.R. 514, 279 S.W.2d 101 (1955) and Gandy v. State, 139 S.W.2d i75 (Tex.Cr.App.1940) which hold that in prosecution of criminal cases the accused must be formally identified in court as the person who committed the crime. This argument ignores the distinction drawn by the legislature between acts committed by juveniles and by adults; where juveniles are involved, the action is civil in nature rather than criminal. A similar argument was advanced by a juvenile in In re S_ _ J_ _ C_ _, 533 S.W.2d 746 (Tex.1976). In that case, our supreme court held that a juvenile may be adjudicated a delinquent based solely upon the uncorroborated testimony of an accomplice witness and that such testimony goes to the weight rather than the admissibility of the evidence. Furthermore, the court observed that there was no constitutional due process restriction prohibiting such testimony in an adjudication hearing although under Tex.Code Crim.Proc. art. 38.14 (Vernon 1966), the testimony of an accomplice witness must be corroborated.

Here, several witnesses testified that they knew the minor and saw him commit the acts alleged although no witness formally identified him in court as the person who committed the acts. In the absence of evidence casting doubt upon his identity, we hold that this evidence is sufficient identification for the purpose of adjudication and that further formal identification is unnecessary. See Chamblee v. Tarbox, 27 Tex. 139, 144--45 (1863); See also Farhart v. Blackshear, 434 S.W.2d 395, 401 (Tex.Civ.App.--Houston (1st Dist.) 1968, writ ref'd n.r.e.).

4. Unanimity of Verdict

Appellant also argues that the trial court erred in instructing the jury that a verdict could be rendered upon the vote of five jurors. We agree, although we find that this error was rendered harmless by virtue of the unanimous verdict of the jury. We address it, nevertheless, in view of our decision to remand for further proceedings. Section 54.03(c), as amended by the 64th Legislature, effective September 1, 1975, specifically states that jury verdicts in adjudication hearings must be unanimous. Consequently, on another trial the court should so instruct the jury.

B. The Disposition Hearing

1. Lack of Specificity in Order

Appellant complains of the court's failure to 'state Specifically in the order its reasons for the disposition' as required by § 54.04(f). (Emphasis added.) The only reason for the disposition stated in the order is that the '(c)ourt finds that a disposition of the child is necessary for the protection of the Public and the child.' The use of the word 'specifically' emphasizes that the legislature intended the court to do more than merely track the statutory language. The rationale for the disposition must be set forth clearly and specifically so as to permit an appellate court, on review, to determine whether the reasons given in the order are supported by the evidence or whether they are insufficient to justify the disposition made. In re T_ _ R_ _ W_ _, 533 S.W.2d 139, 141 (Tex.Civ.App.--Dallas 1976, no writ). Compare In re J_ _ R_ _ C_ _, 522 S.W.2d 579, 580, 582--83 (Tex.Civ.App.--Texarkana 1975, writ ref'd n.r.e.) With In re Honsaker, 539 S.W.2d 198, 200--02 (Tex.Civ.App.--Dallas 1976, no writ) . The court erred in failing to set forth the reasons for its disposition with sufficient specificity to meet this standard.

2. Contradictory Disposition Order

Appellant also argues that the form order signed by the court, in effect, makes no disposition. We agree. That order states:

It is ORDERED, ADJUDGED AND DECREED by this Court that said Respondent, A_ _ N_ _ M_ _, be and is hereby

placed on probation under the conditions set out in the instrument attached hereto and made a part hereof.

committed to the care, custody and control of the Texas Youth Council for an indeterminate period of time not to exceed the time when _ _he shall be eighteen (18) years of age or until duly discharged or further ordered, all in accordance and in compliance with Article 5143d, Vernon's Texas Civil Statutes.

No conditions of probation are attached to the order. Thus, the order is...