Davilla v. State

• Decision Date: 28 February 1972
• Docket Number: No. 8243,8243
• Parties: Robert Gonzales DAVILLA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 410

477 S.W.2d 410

Robert Gonzales DAVILLA, Appellant, v. The STATE of Texas, Appellee.

No. 8243.

Court of Civil Appeals of Texas,

Amarillo.

Feb. 28, 1972.

Fullingim & Fullingim, Dennis L. Fullingim, Lubbock, for appellant.

Thomas J. Purdom, County Atty., Lubbock, Crawford C. Martin, Atty. Gen., Roland Daniel Green, III, Austin, for appellee.

REYNOLDS, Justice.

This appeal emerges from an order revoking probation which had been granted under the Texas Juvenile Act, Vernon's Ann.Civ.St. art. 2338--1. Affirmed.

On March 11, 1971, the 137th District Court of Lubbock County, sitting as a Juvenile Court, conducted a hearing to determine whether Robert Gonzales Davilla, appellant here, was a delinquent child. At that hearing his mother was present and he was represented by appointed counsel, but no guardian ad litem was requested or appointed. At the conclusion of the hearing, appellant was adjudged to be a delinquent child, and he was placed on probation under certain terms and conditions. Appellant accepted the judgment of probation and no appeal was taken therefrom as authorized by the Juvenile Act, and the judgment of delinquency became final.

Application to revoke the probation was filed June 16, 1971, on the allegation that appellant had assaulted two police officers of the City of Lubbock. An attorney and a guardian ad litem were appointed to represent the appellant at the revocation hearing. Appellant's counsel urged a motion for dismissal based upon the fact that no guardian ad litem had been appointed to represent the minor's interest in the March 11, 1971 delinquency hearing at which appellant was adjudicated a delinquent child. The motion was overruled. After a hearing, appellant's probation was revoked and he was ordered committed to the care, custody and control of the Texas Youth Council.

Appellant contends that the failure of the trial court to appoint a guardian ad litem for him at the first hearing where he was adjudged a delinquent child deprives him of a fundamental right. It is reasoned that the dictates of Rule 173, Texas Rules of Civil Procedure, providing that 'When a minor * * * may be a defendant to a suit and has no guardian within this State, * * * the court shall appoint a guardian ad litem for such person * * *', renders both the original delinquency proceeding held in the absence of a guardian ad litem and the subsequent revocation proceeding based thereon a nullity. Thus, the question we are to decide is: Does the error in failing to appoint a guardian ad litem for a minor defendant in a delinquency proceeding where a parent is present and he is represented by counsel, and where no appeal is taken from the adjudication of delinquency, constitute fundamental error? If so, the proceeding is void and it is elemental that the delinquency judgment may be attacked in any proceeding; if not, the proceeding is voidable only and it is as elemental that the error may be successfully challenged only by a direct appeal brought for that purpose. We answer the question in the negative.

We agree with the apt expression in Felder v. State, 463 S.W.2d 272 (Tex.Civ.App.--Houston (14th Dist.) 1971, writ ref'd n.r.e.), that '(c)ases of this type are fraught with much difficulty and uncertainty.' The difficulty and uncertainty is increased when conflicting authorities, some of which are specifically noted hereinbelow, can be found stating the effect of a trial court's failure to appoint a guardian ad litem in a delinquency proceeding or in a proceeding to revoke probation granted in a prior delinquency adjudication.

It has been held, in an appeal from a juvenile delinquency judgment, that failure to appoint a guardian ad litem during the delinquency proceeding where the delinquent's parents are present is not reversible error. In Re Gonzalez, 328 S.W.2d 475 (Tex.Civ.App.--El Paso 1959, writ ref'd n.r.e.). The opinion states that the 'pertinent statutes' have no requirement for the appointment of a guardian ad litem, but the opinion does not mention Rule 173 which apparently was not considered in reaching that decision. A later case, considering an appeal from an adjudication of delinquency and citing the holding in Gonzalez, held that where the juvenile was represented by employed counsel and both of his parents were present during the entire proceedings, Rule 173 did not require the appointment of a guardian ad litem. Yzaguirre v. State, 427 S.W.2d 687 (Tex.Civ.App.--Corpus Christi 1968, no writ). Following these two decisions, our Supreme Court held that Rule 173 is applicable to juvenile delinquency proceedings. Brenan v. Court of Civil Appeals, Fourteenth District, 444 S.W.2d 290 (Tex.Sup.1968) .

Subsequent to the Brenan decision, the case of Starks v. State, 449 S.W.2d 559 (Tex.Civ.App.--Eastland 1969, writ ref'd), was decided . There Starks was declared a delinquent child and placed on probation at a hearing where his mother was present and he was represented by an attorney, but no guardian ad litem was appointed. Thereafter, at a hearing to determine whether the judgment should be modified and probation revoked, Starks appeared with his attorney and requested the appointment of a guardian ad litem. The court refused the request. Following the revocation of his probation, Starks appealed claiming error because of the refusal to appoint a guardian ad litem to represent him at the revocation hearing. The court of civil appeals, relying on the Brenan decision, held that the refusal to appoint the requested guardian ad litem as prescribed by Rule 173 was reversible...