F. G., In re

• Decision Date: 24 June 1974
• Docket Number: No. 8470,8470
• Citation: 511 S.W.2d 370
• Court: Texas Court of Appeals
• Parties: In the Matter of F. G.

Page 370

511 S.W.2d 370

In the Matter of F. G.

No. 8470.

Court of Civil Appeals of Texas,

Amarillo.

June 24, 1974.

Nelson, McCleskey, Harriger & Brazill, Jerry M. Kolander, Jr., Ernest R. Finney, Jr., Lubbock, for appellant.

Alton R. Griffin, Dist. Atty. (Mary Anne Wiley, Asst. Dist. Atty.), Lubbock, for appellee.

ELLIS, Chief Justice.

In this juvenile proceeding, the appellant, a child who had been adjudged a delinquent child, brings an appeal from the trial court's order modifying the previous disposition order which had placed the child on a suspended commitment status. By reason of the court's finding of violation of the conditions of such suspension the court modified the disposition order and committed the child to the custody of the Texas Youth Council. Reversed and remanded.

The child had been placed on suspended commitment on February 28, 1973, after being adjudged a delinquent child. This probationary status continued until January 13, 1974, when the child was arrested and charged with carrying a prohibited weapon in violation of V.T.C.A., Penal Code, Section 46.02. After arrest, the child was placed in the juvenile ward of the Lubbock County jail to await further disposition of the case. While in custody the appellant child signed a statement on January 15, 1974, admitting the commission of the act of carrying the prohibited weapon in question while riding in an automobile. The statement was made to and witnessed by two juvenile probation officers without the aid or presence of counsel on behalf of the appellant prior to or during the interview. The probation officers testified that they informed the child of the right to counsel prior to the signing of the statement and gave the child the standard 'Miranda warning.' Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Lubbock County Criminal District Attorney's office filed an application to Modify the Disposition of the appellant child and sought to have the probation revoked. The Assistant Criminal District Attorney recommended that the child be committed to the custody of the Texas Youth Council upon a finding that the child had violated Article 46.02 of the Texas Penal Code which prohibited the carrying of a prohibited weapon, thereby committing an offense against the State of Texas in violation of a condition of the probation, or suspended disposition, granted under the order of February 28, 1973.

During the course of the hearing, the State's attorney offered the testimony of the arresting officer, a pistol and the signed statement of the appellant child. Upon the offering of the statement into evidence, the appellant child objected to the admission of the statement on the grounds that the statement was signed by the appellant without the advise of counsel. The appellant child contended in support of the objection to the admission of such statement that Article 51.09 of the Texas Family Code does not permit the waiver of any rights granted the juvenile by the Family Code or the Constitution of the United States unless his attorney is present or consents. The statement was admitted after the trial court found that the statement was voluntary and met the requirements of the United States Constitution, and that under Section 54.03(e) of the Texas Family Code, the admission of the extra-judicial statements of the child was permitted if the requirements of the United States Constitution were met; and that the additional requirements of Section 51.09 with respect to the presence and concurrence of the child's attorney in connection with this waiver of the child's rights were not necessary.

Based upon the child's signed statement, and the testimony of the arresting officer, along with the introduction of the pistol, the appellant child was found to have violated Section 46.02, Penal Code, by unlawfully carrying a prohibited weapon. As a result of this findings, the appellant child was ordered to be removed from a probationary status and committed to the custody of the Texas Youth Council. The appellant child brings this appeal from such order on three points of error.

In appellant's first point of error, it is contended that the trial court erred in admitting the child's signed statement into evidence because the statement was taken in violation of Section 51.09 of the Family Code. In the second point, appellant child contends that there was no admissible evidence to support any finding that the child was guilty of carrying a prohibited weapon. In the third point, the appellant contends there was insufficient admissible evidence to support any finding that the child was guilty of carrying a prohibited weapon. We sustain the appellant child's first and third points.

Section 51.09 of Title 3 of Vernon's Texas Codes Annotated, Family Code, ¹ dealing with the subject of 'Waiver of Rights,' contains the following provisions:

'Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:

'(1) the waiver is made by the child and the attorney for the child;

'(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;

'(3) the waiver is voluntary; and

'(4) the waiver is made in writing or in court proceedings that are recorded.'

Section 51.10 deals with the child's 'Right to Assistance of Attorney.' Section 51.10(a) provides that a child is granted the right to an attorney 'at every stage of proceedings under this title,' including among eight situations specifically listed:

'(5) the hearing to modify disposition required by Section 54.05 of this code.'

Section 51.10(b) sets out five instances in which a child's right to an attorney shall not be waived, providing specifically that the child's right to representation by an attorney Shall not be waived in:

'(4) a hearing prior to commitment to the Texas Youth Council as a modified disposition in accordance with Section 54.05(f) of this code.

Under Section 51.09, supra, in the absence of a contrary intent appearing elsewhere in this title, any right granted to a child 'by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if . . . the waiver is made by the child and the attorney for the child.' We find no contrary intent expressed in those portions above quoted, or elsewhere in Title 3, which pertain to a child's rights to an attorney, and the specific prohibitions against waiver of an attorney in juvenile proceedings of the character involved in the instant case. Thus, it is our opinion that waiver of an attorney at any stage of the juvenile proceedings here involved is not permitted under Title 3. Further, under the holdings of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and in Miranda v. Arizona, supra, the Fifth Amendment of the United States Constitution protects one's privilege against self incrimination and guarantees the safeguard of the right to the presence of counsel during all custodial interrogations.

In Miranda, the court specifically pointed out the significance of the presence of counsel when statements are taken from an individual during custodial interrogation in relation to safeguarding the privilege against self incrimination. Also, the case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, applied the requirements of Miranda to juveniles. In Gault, the court significantly stated: 'The child 'requires the guiding hand of counsel at every step in the proceedings against him." Thus, in the Gault decision, it is definitely manifested that the child must be given the utmost in protection because of the lack of maturity and experience. Further, the states may adopt their own safeguards so long as they meet those set out in Miranda. These additional safeguards and protections in behalf of juveniles appear to have been provided by Section 51.09. It is here noted that Section 51.01 dealing with 'Purpose and Interpretation,' provides:

'This title shall be construed to effectuate the following public purposes:'

'(5) to provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assumed a fair hearing and their constitutional and other legal rights recognized and enforced.'

The juvenile proceedings here involved are governed by Title 3 of the Family Code, and, as above set out, encompass all applicable constitutional guarantees and protections. Further, it is observed that the proceedings under Title 3, to which Section 51.09 applies, embrace a broad scope of coverage, including 'Proceedings Before and Including Referral to Juvenile Court,' set out in Chapter 52, and 'Proceedings Prior to Judicial Proceedings,' as provided in Chapter 53. See the opinion in which motion for rehearing was overruled, filed May 23, 1974, In the Matter of R. E. J., 511 S.W.2d 347 (Tex.Civ.App.-Houston (1st Dist.)).

It is observed that this title does not purport to set out specifically each and every right and procedure to which a child is entitled, for in addition to the rights 'granted to a child by this title,' full recognition is accorded to rights granted 'by the constitution or laws of this state or the United States.' We note that under this title, Section 54.03(e), 'a child . . . need not be a witness against nor otherwise incriminate himself.' It is...