L.G.R. v. State

• Decision Date: 11 February 1987
• Docket Number: No. C-5435,C-5435
• Citation: 724 S.W.2d 775
• Parties: L.G.R., Petitioner, v. The STATE of Texas, Respondent.
• Court: Texas Supreme Court

Page 775

724 S.W.2d 775

L.G.R., Petitioner, v. The STATE of Texas, Respondent.

No. C-5435.

Supreme Court of Texas.

Feb. 11, 1987.

Rehearing Denied March 18, 1987.

Joseph A. Connors, III, McAllen, for petitioner.

Theodore C. Hake, Crim. Dist. Atty's. Office, Edinburg, for respondent.

OPINION

GONZALEZ, Justice.

The issue in this case is the effect of a variance between the State's petition and the court's charge in a juvenile adjudication hearing. As a result of jury findings, the trial court held that the child had engaged in delinquent conduct. The court of appeals affirmed. 709 S.W.2d 23 (Tex.App., 1986). We reverse the judgment of the court of appeals and remand this cause to the trial court for a new trial.

In its first amended petition the State alleged that:

L.G.R. ... did then and there, with intent to destroy or damage a building owned by FRANK GONZALEZ, intentionally start a fire in said building ... in violation of a Penal law of this State, punishable by imprisonment, to-wit: V.T.C.A., Penal Code Section 28.02, ARSON, against the peace and dignity of the State.

Although the State's petition notified L.G.R. that he would be tried for the crime of intentionally setting a fire in Frank Gonzalez' building, the trial court allowed the State to submit to the jury an unalleged theory that L.G.R. intentionally set the fire in a vehicle (box car) owned by C. Kelly.

Over L.G.R.'s objection, the trial court submitted the following charge to the jury:

Even if the jury finds beyond a reasonable doubt that on or about the 14th day of June, a.d., 1985, in the County of Hidalgo in the State of Texas, with intent to destroy or damage a vehicle owned, if it was, by C. Kelley, [sic] a special owner of the Specific Railroad, [sic] L.G.R. did then and there intentionally set, if he did, a fire in said vehicle, knowing it was within the limits of an incorporated city, to wit: the City of Weslaco, Hidalgo County, Texas, the jury still cannot answer "yes" to this special issue, number one, unless the jury further finds that the fire, if any, in the building owned by Frank Gonzalez would not have occurred but for the voluntary conduct of the accused juvenile, L.G.R., operating either alone or concurrently with another cause. Does the jury so find beyond a reasonable doubt?

Answer "Yes" or "No."

We, the jury, answer: Yes.

L.G.R. contends that the trial court's use of this charge was a denial of due process of law and fair notice of the charges against him.

The Texas Family Code provides that: "the petition must state: (1) with reasonable particularity the time, place and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the act." TEX.FAM.CODE ANN. § 53.04(d)(1) (Vernon 1986). The court of appeals held that the variance between the petition and the charge did not result in error because the law of transferred intent found in section 6.04(a) of the Penal Code does not need to be included in the State's pleading in a delinquency petition. TEX.PENAL CODE ANN. § 6.04(a) (Vernon 1974). We disagree with the court of appeals holding that the variance between the petition and the charge was not error. In a juvenile proceeding, petition requirements are governed by the Family Code. The State's failure to comply with the mandatory requirements of section 53.04 cannot be remedied by incorporating transferred intent into the court's charge.

In the case of In re Gault, the United States Supreme Court addressed the due process standards of adequate and timely notice:

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, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527, 549 (1967).

We recently held that although juvenile delinquency proceedings are civil in nature, because they may result in the child being deprived of liberty, the juvenile is entitled to the essentials of due process and fair treatment. Matter of J.R.R., 696 S.W.2d 382 (Tex.1985). Moreover, in Carrillo v. State, 480 S.W.2d 612 (Tex.1972), the court stated that in juvenile cases the child must know of the specific issues he is to meet, and they must be set forth with particularity, citing In re Gault. Also, in Matter of D.W.M., 562 S.W.2d 851 (Tex.1978), we held that the petition and notice requirements of section 53.04 of the Family Code must be satisfied.

In this case, the State's pleading failed to set forth with reasonable particularity the place and manner of the acts submitted to the jury in the court's charge. Not only did the State fail to allege in its petition that L.G.R. would be tried for setting a fire in a vehicle (box car), but it also failed to allege its owner. There was no trial amendment offered by the State.

It is in the public interest that the courts of this state insure that in any proceeding in which a child is exposed to the risk of loss of liberty the notice requirements mandated by the Legislature in juvenile delinquency proceedings be observed. As Justice Pope said in Santana, "[l]iberty is our real concern." State v. Santana, 444 S.W.2d 614, 628 (Tex.1969), judgmt. vacated and cause remanded, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594, on remand, 457 S.W.2d 275 (Tex.1970). It is imperative that L.G.R. be accorded fairness first; therapy second.

The variance between the State's petition and the court's charge denied L.G.R. a fair trial. Accordingly, we reverse the judgments of the courts below and remand the cause for a new trial.

SPEARS, J., files a dissenting opinion in which HILL, C.J., and ROBERTSON, J., join.

SPEARS, Justice, dissenting.

I respectfully dissent.

This case is reminiscent of old horror stories when an indictment was quashed because it only alleged that the defendant stomped his victim to death but did not include "with his feet" and the indictment held defective when it charged the victim was drowned by the defendant but did not say it was "in water." I thought our system of justice had advanced further than that, but this case provides no such evidence.

I agree it is in the public interest, as well as constitutionally mandated, that a juvenile be afforded due process in a delinquency proceeding by receiving adequate notice of the allegations against him. The court's opinion, however, tortures the Family Code's pleading mandate of "reasonable particularity"...