In re A.A.B.

• Decision Date: 11 June 2003
• Docket Number: No. 10-00-035-CV.,10-00-035-CV.
• Citation: 110 S.W.3d 553
• Parties: In the Matter of A.A.B., a Juvenile.
• Court: Texas Court of Appeals

Page 553

110 S.W.3d 553

In the Matter of A.A.B., a Juvenile.

No. 10-00-035-CV.

Court of Appeals of Texas, Waco.

June 11, 2003.

Jeffrey A. Kearney, Kearney Law Firm, Ft. Worth, for appellant/relator.

Bill Moore, County Atty. for Johnson County, Cleburne, for appellee/respondent.

Before Chief Justice DAVIS, Justice VANCE, and JUSTICE Gray.

OPINION

REX D. DAVIS, Chief Justice.

A jury adjudicated A.A.B. delinquent for stabbing another juvenile, B.J.T. The court assessed punishment at twenty-one months' probation. A.A.B. claims in three points that the court erred by: 1) placing the burden of proving self-defense on him; and 2) improperly excluding evidence that B.J.T. was suspended from school for fighting at the time of the altercation in question (two points).

BACKGROUND

A.A.B. and B.J.T. were involved in several altercations. Their fathers agreed that the boys should settle their differences by "fighting it out." The fathers ended the fight after several minutes and called it a "draw." However, the "fight" did not end the animosity between the two youths. The stabbing took place two months after the arranged fight.

The facts are undisputed that, on the day of the incident, B.J.T. approached A.A.B. and asked him about an incident between A.A.B. and B.J.T.'s sister. A.A.B. pulled out a three and a half inch long knife and stabbed B.J.T. The facts are disputed, however, as to who struck first. A.A.B. contends that B.J.T. approached him and "got in his face." A.A.B. testified that B.J.T., who is much larger than A.A.B., punched him in the face, and as B.J.T. advanced again, he stabbed B.J.T. with the knife. B.J.T. admits that he approached A.A.B. but denies that he threw the first punch. As a result of the incident B.J.T. required several hours of surgery and thirty-six staples to close the wound.

SELF-DEFENSE INSTRUCTION

A.A.B. argues in his first point that the jury question on self-defense improperly placed the burden of proof on him. The court properly instructed the jury in the charge that the State bore the burden of disproving beyond a reasonable doubt that A.A.B. acted in self-defense. See Green v. State, 891 S.W.2d 289, 296 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). However, the specific question submitted to the jury on the issue of self-defense made no reference to the State's burden of proof.¹ A.A.B. contends that, because the question does not repeat the court's prior instructions regarding the State's burden of proof, it improperly places the burden of proof on him to prove self-defense.

A.A.B. did not submit a written request for an instruction (or question) on self-defense. The trial court tendered a proposed charge for the parties' consideration. When the court asked for objections to the charge, A.A.B.'s counsel stated, "We have no objection."

WHAT LAW GOVERNS THE JURY CHARGE?

Section 51.17 of the Juvenile Justice Code sets out the procedural and evidentiary rules and statutes which govern in juvenile proceedings.

§ 51.17. Procedure and Evidence

(a) Except for the burden of proof to be borne by the state in adjudicating a child to be delinquent or in need of supervision under Section 54.03(f) or otherwise when in conflict with a provision of this title, the Texas Rules of Civil Procedure govern proceedings under this title.

(b) Discovery in a proceeding under this title is governed by the Code of Criminal Procedure and by case decisions in criminal cases.

(c) Except as otherwise provided by this title, the Texas Rules of Evidence applicable to criminal cases and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title.

TEX. FAM.CODE. ANN. § 51.17 (Vernon 2002).

The Juvenile Justice Code does not have a specific provision governing the jury charge. Therefore, it appears that the Rules of Civil Procedure govern the charge in a juvenile delinquency proceeding. E.g., State v. Santana, 444 S.W.2d 614, 615 (Tex.1969); P.L.W. v. State, 851 S.W.2d 383, 386-87 (Tex.App.-San Antonio 1993, no writ).

Texas courts have rejected efforts to apply provisions of the Code of Criminal Procedure not identified in section 51.17 to juvenile proceedings. See In re S.J.C., 533 S.W.2d 746, 748-49 (Tex.) (article 38.19 requirement that accomplice's testimony be corroborated does not apply to juvenile proceedings), cert. denied sub. nom. Chavez v. Texas, 429 U.S. 835, 97 S.Ct. 101, 50 L.Ed.2d 100 (1976);² In re J.A.W., 976 S.W.2d 260, 264 (Tex.App.-San Antonio 1998, no pet.) (article 36.02 provision for reopening of evidence in criminal case does not apply to juvenile proceedings); but see In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998) ("Because Rule 30(b)³ is in the nature of a rule of evidence, the Family Code extends its applicability to juvenile proceedings.").

Nevertheless, this Court and two others have applied the analysis of the Court of Criminal Appeals set forth in Almanza v. State to jury charge issues raised in juvenile delinquency appeals. See In re M.E.R., 995 S.W.2d 287, 291 (Tex.App.-Waco 1999, no pet.) (citing Almanza, 686 S.W.2d 157, 172 (Tex.Crim. App.1985) (op. on reh'g)); In re E.F., 986 S.W.2d 806, 810 (Tex.App.-Austin 1999, pet. denied); (In re K.W.G., 953 S.W.2d 483, 488 (Tex.App.-Texarkana 1997, pet. denied)). In Almanza, the Court of Criminal Appeals provided its interpretation of the "`harm' standard[s] set out in Article 36.19 [of the Code of Criminal Procedure]."⁴ Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App.1998). However, chapter 36 of the Code of Criminal Procedure does not apply to juvenile proceedings. Cf. S.J.C., 533 S.W.2d at 748-49; J.A.W., 976 S.W.2d at 264.

Neither this Court nor the Austin court discussed at length its reasoning in applying Almanza to a juvenile appeal. The Texarkana court determined that Almanza applies because "charging errors affect the substantive rights of juveniles." K.W.G., 953 S.W.2d at 488 (citing In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368, 377-78 (1970) ("the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault⁵ — notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination")). However, this could be said of virtually any procedural error which occurs in a juvenile proceeding.

We have no reason to believe that the substantive rights of a juvenile cannot be adequately protected by applying the requirements of the Rules of Civil Procedure to jury charges in such cases. A comparison of the pertinent provisions of the Code of Criminal Procedure and the Rules of Civil Procedure bears this out.

Under the Code of Criminal Procedure, a defendant generally must object in writing or by dictating the objection on the record to preserve charge errors for appellate review.⁶ See TEX.CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp.2003); Posey, 966 S.W.2d at 61 & n. 8. A defendant may also preserve charge error by submitting a requested instruction in writing or by dictating it on the record. See TEX.CODE GRIM. PROC. ANN. art. 36.15 (Vernon Supp. 2003).

"[I]f no proper objection [or request] was made at trial and the accused must claim that the error was `fundamental,' he will obtain a reversal only if the error is so egregious and created such harm that he `has not had a fair and impartial trial' — in short `egregious harm.'" Almanza, 686 S.W.2d at 171 (quoting TEX.CODE CRIM. PROC. ANN. 36.19). Thus, an unpreserved charge error in a criminal case will require reversal only when it rises to the level of "fundamental error." Id. at 171-72; accord Jimenez v. State, 32 S.W.3d 233, 238 (Tex.Crim.App. 2000) ("Article 36.19 establishes the standard for fundamental error in the court's charge").

The Rules of Civil Procedure similarly require an objection or request to preserve charge errors for appellate review. See State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240 (Tex.1992); D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 975 S.W.2d 1, 19 (Tex. App.-Waco 1997), rev'd on other grounds, 973 S.W.2d 662 (Tex.1998). When an objection is required, it must be made in writing or dictated on the record. See TEX.R. CIV. P. 272. Requests for particular questions, definitions or instructions must be made in writing. Id. 278; see also id. 273 ("requests shall be prepared and presented"), 276 (if trial judge refuses request, "the judge shall endorse thereon `Refused'"); Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 451 (Tex.1995) (per curiam).

Under the civil rules, an objection preserves for appellate review any error contained in the court's charge as submitted. See TEX.R. CIV. P. 272; Religious of the Sacred Heart v. City of Houston, 836 S.W.2d 606, 613-14 (Tex.1992) (citing Lyles v. Texas Employers' Ins. Assn., 405 S.W.2d 725, 727 (Tex.Civ.App.-Waco 1966, writ ref'd n.r.e.)); Johnson v. Johnson, 869 S.W.2d 490, 492 (Tex.App.-Eastland 1993, writ denied). Conversely, a party must tender a written request to preserve error regarding an omission from the charge unless the omitted matter is a question "relied upon by the opposing party." See TEX.R. CIV. P. 278; Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 201 (Tex.App.-Texarkana 2000, pet. denied). If a question "relied upon by the opposing party" is omitted from the charge, an objection is sufficient to preserve error. See TEX.R. CIV. P. 278; Religious of the Sacred Heart, 836 S.W.2d at 614; Lyles, 405 S.W.2d at 727.

An appellant cannot obtain reversal of a civil judgment on the basis of errors in the charge which have not been preserved by objection or request unless such errors rise to the level of "fundamental error." See Santana, 444 S.W.2d at 615; Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304 (Tex.App.-Houston [14th Dist.] 1995, no writ). In this context, an error is considered "fundamental" when it "directly and...