Bihms v. State, 7453

• Decision Date: 01 March 1973
• Docket Number: No. 7453,7453
• Citation: 491 S.W.2d 740
• Parties: Wayne Maurice BIHMS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 740

491 S.W.2d 740

Wayne Maurice BIHMS, Appellant, v. STATE of Texas, Appellee.

No. 7453.

Court of Civil Appeals of Texas Beaumont.

March 1, 1973.

Donald K. Shipley, Houston, for appellant .

Carol S. Vance, Dist. Atty., Max D. Carlson and Jack C. Frels, Asst. Dist. Attys., Houston, for appellee .

DIES, Chief Justice.

The State of Texas (appellee) instituted a revocation of probation proceeding against Wayne Maurice Bihms (appellant), a juvenile. Trial was to the court resulting in a revocation of a previously granted probation and a commitment of the juvenile to the Texas Youth Council, from which juvenile perfects this appeal.

Appellant predicates this appeal upon two points, i.e., (1) '(T)hat no evidence should have been allowed concerning statements made after Wayne Bihms' arrest by any of the Police officers' and (2) 'That the trial court errored in admitting into Evidence Plaintiff's Exhibit No. 2 in that such Exhibit is hearsay, contains extraneous matters not related to the present Case and contains statements concerning alleged conduct that are not offenses within the meaning of the Juvenile Act of the State of Texas.'

We overrule both points and affirm the trial court's decision.

The record reveals that one Roosevelt Douglas owned a blue 1965 Chevrolet Impala two-door hardtop which he found missing from the parking lot on his return some four hours after leaving it. Officer Dan Colvin of the League City Police Department, on the same day, saw this automobile backed up to a Diesel fuel tank on a construction job. Three young men were standing behind the car, apparently putting gas in the car. He stopped the car and identified appellant as one of the youths in the car. They were taken into custody on a suspicious person ordinance and a check revealed that the auto was a stolen vehicle.

Officer M. N. Dawsen of the Houston Police Department was dispatched to League City to pick up the three suspects. When he first came in contact with the three suspects, he 'gave them the warning from the blue card that was provided by the District Attorney's office.' This warning is as follows:

"That you have the right to have a lawyer present to advise you either prior to any questioning or during any questioning.

"If you are unable to employ a lawyer, you have the right to have a lawyer appointed to counsel with you prior to or during any questioning, and;

"You have the right to remain silent and not make any statement at all and that any statement you make may and probably will be used in evidence against you at your trial.

"You have the right to terminate the interview at any time."

This warning was given orally and the three suspects were not carried before a magistrate. Some effort to perform the latter was made but the courts were in session.

After giving the oral warning, Officer Dawsen questioned appellant who 'stated that they got it (the auto) off a parking lot.' Officer Bob Beck of the Houston Police Department testified that he was in the car when Officer Dawsen gave the warning and heard it.

Appellant cites in support of his first assignment of error Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944); In re Fisher, 184 S.W.2d 519 (Tex.Civ.App., Amarillo, 1944, no writ), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Dendy clearly holds that in proceedings under the Juvenile Delinquency Act (Art. 2338--1, Vernon's Ann.Civ.St.), the privilege against self-incrimination applies. This holding is followed in the Fisher case (184 S.W.2d at 523).

The requirements of Miranda are best summarized by quoting from the opinion as follows:

'He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.' 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

We think the warning given appellant by Officer Dawsen fully satisfies the Miranda requirements.

In relation to juveniles, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), sets forth the constitutional safeguards which must be applied. It held that juvenile delinquency proceedings which may lead to commitment in a state institution must measure up to the essentials of due process and fair treatment. Specifically required are: (1) Written notice of the specific charge or factual allegations given to the child and his parents or guardian sufficiently in advance of the hearing to permit preparation. (2) Notification to the child and his parents of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. (3) Application of the constitutional privilege against self-incrimination. (4) Absent a valid confession, a determination of delinquency and an order of commitment based on sworn testimony subjected to the opportunity for cross-examination in accordance with constitutional requirements.

With regard to the privilege against self-incrimination--with which we are here concerned--the court said:

'We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique--but not in principle--depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.' In re Gault, supra, 87 S.Ct. at 1458, 18 L.Ed.2d at 561.

At the time of apprehension, appellant was over fifteen years of age. There is no evidence of suspicious conduct which in any way intimates that his statement was the result of coercion, ignorance or fright. There are no features indicating 'incommunicado interrogation . . . in a police-dominated atmosphere.' (Miranda, supra 86 S.Ct. at 1612, 16 L.Ed.2d at 707) Appellant's statement to Officer Dawson following the warning was properly admitted in evidence. 'Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.' (Miranda, supra 86 S.Ct. at 1630, 16 L.Ed.2d at 726)

A clear understanding of appellant's second point of error requires a copy of petitioner's exhibit to be appended to this opinion. Prior to its receipt in evidence, Michael R. Barth, Juvenile Probation Officer, was called to the stand and the following testimony was adduced:

'Q What date was your first contact with Wayne Bihms as probation officer?

'A 1--25--71.

'Q Mr. Barth, I am showing you a document and ask you to examine it, marked as Petitioner's Exhibit No. 2. Did you prepare this document?

'A Yes, sir, I did.

'Q Is that your signature?

'A Yes, sir, it is.

'Q Do you have a copy of this?

'A Yes, sir, I do.

'Q All right. I will ask you, in referring to it, at what date did you prepare this report?

'A This report was prepared on July 19th.

'Q Of 1972?

'A Yes, sir.

'Q All right, sir.

'A On or about.

'Q In preparing this report, calling your attention to it, you have listed a number of previous referrals to your department on this juvenile; is that correct?

'A Yes, sir.

'Q Would you review those for the Court, please, sir?

'MR. SHIPLEY (appellant's attorney): Your Honor, I would object to any previous referrals other than what we are concerned with here today. * * * May I have the witness for a moment, Your Honor?

'THE COURT: Surely.

'MR. SHIPLEY: On each of the referrals that we haven't gone into yet, were you the person at the Probation Department that handled Wayne Bihms?

'THE WITNESS: No, not on each and every one of them.'

His testimony which followed established that part of the report was based on information and data not in his personal knowledge. He was also asked:

'Q Mr. Barth, based upon your personal observations, experience as a probation officer, and your work in this field, what is your recommendation for Wayne Maurice Bihms on disposition?

'A I am recommending the child to be placed in the custody of the Texas Youth Council.'

Petitioner's Exhibit No. 2 was not introduced until after the court had announced his decision to revoke the probation.

Appellant cites as his authority for the exclusion of any matters in Exhibit No. 2 not personally known by witness Barth...