Carrillo v. State

• Decision Date: 24 May 1972
• Docket Number: No. B--2984,B--2984
• Citation: 480 S.W.2d 612
• Parties: Reynaldo CARRILLO, Jr., Petitioner, v. The STATE of Texas, Respondent.
• Court: Texas Supreme Court

Page 612

480 S.W.2d 612

Reynaldo CARRILLO, Jr., Petitioner, v. The STATE of Texas, Respondent.

No. B--2984.

Supreme Court of Texas.

May 24, 1972.

Rehearing Denied June 21, 1972.

Fred J. Deyeso and Richard T. Haase, San Antonio, for petitioner.

Ted Butler, Dist. Atty., and Lucien B. Campbell and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, for respondent.

GREENHILL, Justice.

Reynaldo Carrillo, Jr., then age 16, was found by a jury to be a delinquent child. He was committed to the Texas Youth Council, but his sentence was probated. He was also ordered by the trial court to work for 40 hours at Joske's, a store in San Antonio.

Reynaldo's counsel contends that Rynaldo was denied due process of law under In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), in that Reynaldo was not given fair and timely notice of the charges against him. He complains particularly that the State was permitted to amend its charges against him during the trial in order to fit the evidence which was introduced. The charges with which Reynaldo were served accused him of taking a bottle of cologne from Danny Balli. During trial, an amendment was allowed which charged Reynaldo with taking the cologne from a different person, Grace Casanova. The court also permitted evidence that Reynaldo had taken a box of shotgun shells from Danny Balli, though he had not been so charged. The Court of Civil Appeals affirmed the judgment of the trial court. 470 S.W.2d 227. We reverse.

The evidence is that the house detective of Joske's Las Palmas Store in San Antonio became suspicious of Reynaldo and his male companion, also a minor. She partially hid herself, and she testified that she saw Reynaldo put a bottle of English Leather cologne (retail cost $5) into a 'gym bag' and then take a box of shotgun shells (retail cost $2.85). The boys were seized, the police were called, and the charge was filed.

As we understand it, the goods in the various departments at Joske's are under the control and responsibility of different people. The cosmetics department was the responsibility of Grace Casanova, and the sporting goods department was under Danny Balli. It appeared that before the trial, counsel for Reynaldo had attempted to talk to Danny Balli to find out the facts, but he had been unsuccessful. His first conversation with Grace Casanova was during the trial and after the State had been permitted to amend. He then had the opportunity to cross-examine her.

The charge was that Reynaldo took the cologne from Danny Balli, a person who did not own the cologne. This was all he was charged with. During the trial and before the jury, the house detective got into the additional taking of the box of shotgun shells. The State offered and marked box of shells in evidence over the objection of counsel for Reynaldo that there were no pleadings or charges of his taking shotgun shells. The objection was overruled, and the shells were admitted in evidence. By this time, the State was cognizant of the fact that it had not only failed to allege the taking of the shells but that it had been mistaken in alleging that Reynaldo took the cologne from Danny Balli.

Thereupon, the State moved to amend. It sought to amend to accuse Reynaldo with taking cologne from Grace Casanova and shotgun shells from Danny Balli. Counsel for Reynaldo strenuously objected. The court asked counsel for Reynaldo if he were surprised or prejudiced. He insisted that he was.

The court then announced that he would permit the amendment to charge Reynaldo with taking cologne from Grace Casanova. He also allowed the box of shotgun shells to remain in evidence as res gestae.

Having determined to permit the amendment, the court also announced that despite Reynaldo's counsel's statement that he was both surprised and prejudiced, the court was not convinced that Reynaldo and his counsel were prejudiced. Asked if he needed additional time, counsel for Reynaldo asked for a two days' delay. The court, toward the close of the afternoon hearing, gave Reynaldo's counsel until 9:30 the next morning, stating that counsel could get information directly from Grace Casanova who would be the next witness before the court adjourned.

The question of whether and when the State's charges may be amended and the question of fair notice are closely related. This court had before it in State v. Santana, 444 S.W.2d 614 (Tex.1969) two questions: (1) whether in a delinquency trial by jury, it was permissible to have a jury finding of delinquency made upon a 'preponderance of the evidence' as in civil trials, or whether there must be a finding 'beyond a reasonable doubt'; and (2) whether Santana had been denied due process because the State, before trial, but on the day of the trial, was permitted to amend to change its charges from 'assault to rape' to 'rape.' By a divided court, we upheld the commitment of Santana on both grounds. The Supreme Court of the United States reversed the judgment of this court, but it wrote only upon the question of 'preponderance of the evidence' versus 'beyond a reasonable doubt.' Santana v. State, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970). It held that there must be a finding of delinquency 'beyond a reasonable doubt.'

The Court of Civil Appeals in this case understandably attempted to follow our decision in Santana on the amendment point upon which the U.S. Supreme Court has not expressed itself. We adhere to our ruling in Santana that the strict prohibition against amendment of pleadings applicable in criminal cases is not applicable in juvenile proceedings. Our reason for doing so is that the Texas Legislature has prescribed that juvenile proceedings are to be civil, not criminal, in nature. But, under the language of Gault set out below, the amendment must come at such time, and under such circumstances, as to be basically fair to the minor. Otherwise, there is a denial of due process.

In Gault the due process standards of adequate and timely notice were set out. That opinion states:

'Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity." 387 U.S. 1 at 33, 87 S.Ct. 1428 at 1446, 18 L.Ed.2d 527 at 549.

The court continued,

'It (due process) does not allow a hearing to be held in which a youth's freedom and his parents' right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.' 387 U.S. 1 at 33, 87 S.Ct. 1428 at 1447, 18 L.Ed.2d 527 at 550.

In Santana, the amendment of the pleadings was Before trial; and counsel for Santana did not claim surprise. Here the amendment occurred after the trial had begun and toward the end of the trial. The tendered amendments included not only a different owner of the property but a separate offense, that of taking additional property. Counsel for Reynaldo insisted that he was surprised and prejudiced; and while the trial judge obviously did not believe him, the amendment was at such a time and under such circumstances as to be prohibited, as a matter of due process, by Gault. Accordingly, the judgment of the trial court, and that of the Court of Civil Appeals, must be reversed.

The problem then arises as to our disposition of the case. The Criminal District Attorney of Bexar County has indicated that his office no longer desires to prosecute Reynaldo, and he brings to our attention the fact that the trial court had already vacated the judgment against Reynaldo. He therefore suggests that the case is moot. He sets out that after the application for writ of error had been filed in this court, the trial court entered an order which, in substance, finds that Reynaldo Carrillo, Jr., had been found to be a delinquent child, had been placed on probation, and 'that the welfare of the said child and the interest of the community no longer require (that) he be subject to the jurisdiction of this court and that he should be released from probation:

'It is therefore ordered, adjudged and decreed . . . that the judgment heretofore entered herein be and the same is hereby vacated, and the said Reynaldo Carrillo, Jr., ordered discharged from the further jurisdiction of this court under and by virtue of the circumstances for which he was adjudged a delinquent child.'

Counsel for Reynaldo insists that the trial court could Not deprive Reynaldo of his right of appeal and the opportunity to prove that the finding of his delinquency occurred at a trial in which Reynaldo was deprived of due process of law. We do not regard the case as being moot.

The United States Supreme Court has held in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), where mootness was urged and rejected, that these collateral effects, e.g., enhancement of punishment, arising from a judgment of conviction require the appellate court, upon appeal, to rule on the correctness of the conviction. If a juvenile's appeal were made moot by compulsory serving of a relatively short sentence, the alleged errors of the trial court would be buried; and the juvenile would have no way to exonerate himself by appeal.

It appears that there are three reasons assigned for mootness in cases such as this: (1) the trial court has entered an order purporting to set aside the finding of delinquency; (2) the minor has served his sentence or has been on probation long enough to be discharged; and (3) the minor has reached, or exceeded, the age of 17 during the appeal. We will deal with each briefly.

1. The Subsequent Order Vacating the Judgment of Delinquency.

Does the subsequent order of the juvenile court, entered while the case is on appeal, purporting to vacate the judgment of delinquency make this case moot? We think not. In civil cases the general rule is that a trial court judge has no jurisdiction...