C.O.S., In re

• Decision Date: 01 April 1999
• Docket Number: No. 98-0198,98-0198
• Citation: 988 S.W.2d 760
• Parties: 42 Tex. Sup. Ct. J. 461 In the Matter of C.O.S., Petitioner.
• Court: Texas Supreme Court

Page 760

988 S.W.2d 760

42 Tex. Sup. Ct. J. 461

In the Matter of C.O.S., Petitioner.

No. 98-0198.

Supreme Court of Texas.

Argued Sept. 8, 1998.

Decided April 1, 1999.

William B. Connolly, Houston, for Petitioner.

John B. Holmes, Carol M. Cameron, Houston, Dan Morales, Austin, for Respondent.

Justice OWEN delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice ABBOTT, Justice HANKINSON, Justice O'NEILL and Justice GONZALES joined.

C.O.S., a juvenile, was adjudicated delinquent, given a determinate sentence, and remanded to the custody of the Texas Youth Commission. The court of appeals affirmed. In C.O.S.'s appeal to this Court, he urges us to reverse and to remand this case for a new trial because the trial court failed to explain to him and his parent, guardian, or ad litem, as required by section 54.03(b) of the Family Code, that (1) the record of a juvenile court adjudication may be admissible in a future, adult criminal proceeding, and (2) he has a right to confront witnesses. We hold that C.O.S. was not required to preserve these errors in the trial court before raising them on appeal. However, the errors were harmless in this case. C.O.S. also asserts that the trial court did not adequately give other explanations required by section 54.03(b). We disagree. Finally, we must determine whether C.O.S.'s written and oral waiver of a jury trial was effective. We conclude that it was. Accordingly, we affirm the judgment of the court of appeals.

I

The State alleged that C.O.S. engaged in delinquent conduct by committing aggravated sexual assault on two minors. C.O.S., who was 14 years old when the alleged conduct occurred, was brought before a juvenile court and pleaded "not true." The trial court failed to give two of the explanations that section 54.03(b) of the Family Code requires at the beginning of an adjudication hearing in juvenile proceedings. While the adjudication of C.O.S. was governed by section 54.03(b) as it existed before its amendment in 1997, ¹ the required explanations remain unchanged. Section 54.03(b) provides:

(b) At the beginning of the adjudication hearing, the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem:

(1) the allegations made against the child;

(2) the nature and possible consequences of the proceedings, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding;

(3) the child's privilege against self-incrimination;

(4) the child's right to trial and to confrontation of witnesses;

(5) the child's right to representation by an attorney if he is not already represented; and

(6) the child's right to trial by jury. ²

The trial court did not explain to C.O.S. that the record in these proceedings could be used against him in the punishment phase of a future adult, criminal proceeding. The trial court also failed to tell C.O.S. that he had the right to confront witnesses. Although the trial court advised C.O.S. of the other matters required by section 54.03(b), C.O.S. contends that the explanations given by the trial court were inadequate.

Also at issue is C.O.S.'s waiver of a jury trial. During the section 54.03(b) explanations by the trial court, C.O.S. agreed in open court and on the record to waive a jury trial. A written waiver of a jury signed by C.O.S., his counsel, and his guardian ad litem was also filed with the court at that time. The case proceeded to a bench trial, and the trial court found that C.O.S. had engaged in delinquent conduct. The court then imposed a determinate sentence of ten years and committed C.O.S. to the Texas Youth Commission.

C.O.S. appealed, raising several points of error. In an en banc opinion, the court of appeals affirmed the trial court's judgment in all respects, with three justices dissenting. ³ The court of appeals held that the trial court's failure to give the two statutory explanations in question was subject to a harm analysis and that the error was harmless under the circumstances presented in this case. ⁴ The court reasoned that C.O.S. was given the right to confront witnesses and that he had done so. ⁵ The court of appeals further concluded that the trial court's failure to explain the potential use of the record from these juvenile proceedings in a later criminal prosecution was not harmful error because C.O.S. contested the allegations of delinquency and presented a defense at trial. ⁶ The court of appeals did not discuss C.O.S.'s contentions that the trial court failed to adequately explain other matters encompassed by section 54.03(b). With regard to the waiver of a jury, the court of appeals held that the record reflected an informed and knowing waiver. ⁷ The court of appeals also resolved other issues adversely to C.O.S., but he has not pursued those issues in this Court. When we granted C.O.S.'s petition for review, we consolidated this case for oral argument with In re D.I.B., which we also decide today. ⁸

II

The trial court's failure to explain the use of a juvenile record in future criminal proceedings and its failure to explain C.O.S.'s right to confront witnesses was error. Section 54.03(b) requires that these and other explanations be given to a juvenile at the beginning of an adjudication hearing. ⁹ The State does not argue otherwise.

The State does contend, however, that C.O.S. did not preserve his complaints for appeal. C.O.S. did not object at trial, call the omissions to the trial court's attention in a motion for new trial, or otherwise make the trial court aware of its error. C.O.S. first complained of the trial court's failure to give two of the explanations required by section 54.03(b) in the court of appeals. C.O.S. maintains that the explanations are mandatory and cannot be waived and that the trial court's error was of such a fundamental nature that it may be assailed for the first time on appeal. We conclude that in a quasi-criminal case such as this, a juvenile is not required to preserve error in the trial court (by objection or otherwise) regarding the explanations omitted in this case.

A

We first consider the impact of an amendment to section 54.03 that the State contends is dispositive of whether the failure to give an explanation required by subsection (b) of section 54.03 is fundamental error, which can be raised for the first time on appeal. In 1997 the Legislature added subsection (i) to section 54.03. It provides:

(i) In order to preserve for appellate or collateral review the failure of the court to provide the child the explanation required by Subsection (b), the attorney for the child must comply with Rule 52(a), Texas Rules of Appellate Procedure, before testimony begins or, if the adjudication is uncontested, before the child pleads to the petition or agrees to a stipulation of evidence. ¹⁰

When C.O.S. was adjudicated delinquent and when subsection (i) was enacted, Rule 52(a) of our Rules of Appellate Procedure set forth the general prerequisites for preserving error for appeal:

(a) General Rule. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion. If the trial judge refuses to rule, an objection to the court's refusal to rule is sufficient to preserve the complaint. It is not necessary to formally except to rulings or orders of the trial court. ¹¹

The new rule of appellate procedure that supersedes former Rule 52(a) is substantially unchanged. ¹²

The State concedes that subsection (i) of section 54.03 of the Family Code did not apply to C.O.S.'s delinquency adjudication because the amendment did not become effective until September 1, 1997, and the proceedings in the trial court took place in 1995. However, the State argues that subsection (i) indicates that the Legislature never intended for the explanations to be mandatory or for fundamental error to occur if the trial court failed to give the required explanations.

The legislative history of subsection (i) sheds little light on whether the Legislature was attempting to change the law that was in effect before the 1997 amendment or whether it was merely clarifying what it thought the law to be. We do note that by 1997, at least one court of appeals had held that a juvenile was not required to complain to the trial court that an explanation required by section 54.03(b) had been omitted before that omission could be raised on appeal. ¹³ But another court of appeals had held that a juvenile could not first raise the failure to give any of the explanations required by section 54.03(b) in a motion for rehearing in the court of appeals. ¹⁴

However, even were we to conclude that, by adding subsection (i) in 1997, the Legislature intended to clarify what it believed to be existing law, we cannot attribute the intent of the 75 th Legislature to that of the 63 rd Legislature, ¹⁵ which initially promulgated section 54.03(b) of the Family Code. ¹⁶ We are constrained to construe the statute as it existed when this case was tried. At that time, the statute and its legislative history were silent regarding preservation of error.

B

Section 54.03(b) has at all times provided that a juvenile court "shall" give the listed explanations. The trial court in this case failed to follow that directive. Generally, our civil rules of procedure and our decisions thereunder require a party to apprise a trial court of its error before that error can become the basis for reversal of a judgment. ¹⁷ In a civil case, judicial economy generally requires that a trial court have an opportunity to correct an error before an appeal proceeds.

Another reason for...