Landry v. State

• Decision Date: 13 December 1973
• Docket Number: No. 7529,7529
• Citation: 504 S.W.2d 580
• Parties: Dan LANDRY, a juvenile child, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 580

504 S.W.2d 580

Dan LANDRY, a juvenile child, Appellant, v. The STATE of Texas, Appellee.

No. 7529.

Court of Civil Appeals of Texas Beaumont.

Dec. 13, 1973.

Rehearing Denied Jan. 17, 1974.

Hugh E. O'Fiel, Beaumont (on appeal only), for appellant.

J. G. Sanderson, Richard Hughes, Asst. Dist. Attys., Beaumont, for appellee.

DIES, Chief Justice.

Daniel Landry, a juvenile, was charged with carrying a prohibited weapon, a pistol, on March 26, 1973. On June 27, 1973, the Juvenile Court of Jefferson County committed him to the care, custody, and control of the Texas Youth Council, as authorized by Art. 5143d, Vernon's Ann.Civ.St. From this order of commitment, the juvenile brings this appeal.

Among his points, the juvenile complains there was no sworn testimony at his trial proving the offense of carrying a prohibited weapon. We sustain this point and remand the cause for a new trial.

The following transpired at trial:

'BY THE COURT:

'Okay, you may step down. All right, now, (court appointed counsel), have you explained to Daniel his rights in this matter, that he doesn't have to say anything in Court, today; that he may have a jury to determine whether or not he was guilty of carrying this prohibited weapon and to determine whether or not he was a juvenile delinquent?

'(COURT APPOINTED COUNSEL):

'Judge, I've explained this quite fully to Daniel, and to Mrs. Landry. They take no issue of the fact, whatsoever, that Daniel did have in his possession a pistol. Uh, it's our understanding that the probation department has recommended in this case that the child be sent to the Texas Youth Council. He does not feel that is justified in this case; Mrs. Landry doesn't feel like it's justified . Daniel, himself says that he did not know it was against the law to carry a pistol around. He found the pistol in the house, in his home. It belonged to someone that was visiting in the home and he picked it up and carried it out. And--

'BY THE COURT:

'All right, . . . let's go ahead and take the adjudication stage and when we get to the disposition, we'll certainly be glad to hear more.

'(COURT APPOINTED COUNSEL):

'All right.

'BY THE COURT:

'Now, he does wish to affirm the allegations in the petition?

'(COURT APPOINTED COUNSEL):

'Yes, sir, Judge.

'BY THE COURT:

'By way of explanation, do you think--do you have anything you'd like to tell the Court, Daniel, at this time, by way of explanation of why you had this pistol?

'BY THE JUVENILE:

'A I thought it was a blow gun--

'Q You thought it was a what?

'A I thought it was a cap pistol.

'Q A cap pistol? Is that what you said?

'A I thought it was a blow gun.

'q A blow gun?

'A Yes, sir.'

In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), it was held that juvenile delinquency proceedings which may lead to commitment in a state institution must measure up to the essentials of due process and fair treatment. Specifically required are:

'(1) (W)ritten notice of the specific charge or factual allegations, given to the child and his parents or guardian sufficiently in advance of the hearing to permit preparation;

'(2) (N)otification to the child and his parents of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child;

'(3) (A)pplication of the constitutional privilege against self-incrimination; and

'(4) (A)bsent a valid confession, a determination of delinquency and an order of commitment based only on sworn testimony subjected to the opportunity for cross-examination in accordance with constitutional requirements.'

See Bihms v. State, 491 S.W.2d 740 (Tex.Civ.App., Beaumont, 1973, no writ).

Here there is no sworn testimony to prove the offense of carrying a prohibited weapon as required by Gault, supra. These trials are not informal hearings, and the only way an appellate court can review the evidence to determine if the juvenile has been accorded his constitutional rights, is for the record to reveal completely the state's case.

The order of commitment is reversed and a new trial ordered. This cause was tried on June 27, 1973, before the effective date of Family Code, Title 3, relating to Delinquent Children and Children in Need of Supervision. Acts 63rd Leg., 1973, Ch. 544, p. 1460, effective September 1, 1973. The holding in the majority opinion and the views expressed in the concurring opinion were made in construing the statutes in effect at the time of the hearing and were not made with respect to the new statute which did not then govern the rights of the minor.

Reversed and remanded.

KEITH, Justice (concurring).

I concur in the reversal of the judgment of the trial court and the remand of the cause; but, feeling that other serious questions are presented by this record, I add to the well-written opinion of our Chief Justice.

A fifteen-year-old boy was charged with being a Delinquent child, the precise words used in the caption of the petition and order in this cause. ¹ He was charged with the violation of Art. 483, Vernon's Ann.P.C.; and, had he been two years older, his Maximum punishment would have been a fine of not less than $100 nor more than $500, Or by confinement in jail not less than one month nor more than one year. Yet, he has been committed to the custody of the Texas Youth Council for more than six years. Art. 2338--1, § 5(c), and Art. 5128, V.A.C.S. This has been done upon a record that so far transgresses constitutional rights that the judgment cannot withstand the mildest breeze emanating from the Constitution.

I need not apologize for writing at length on this case since I subscribe to the views of Justice Douglas, speaking for four justices: 'Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.' Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed.224, 229 (1948).

When the juvenile entered the court for the hearing, which in a very few minutes resulted in his incarceration for many years, he was cloaked in the presumption of innocence and protected by the full panoply of his constitutional rights, including those against self-incrimination. He could be convicted only by the state meeting its burden of proving the corpus delecti and his criminal agency beyond a reasonable doubt. ² As pointed out in the majority opinion, certain basic constitutional rights were guaranteed to juveniles. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

A year earlier, the Court had determined that while juvenile hearings need not conform to all of the requirements of a criminal trial, the hearings must measure up to the essentials of due process . Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84, 97--98 (1966).

It is unnecessary to enter the judicial thicket of the civil-criminal dichotomy as applied to juvenile proceedings. Unquestionably, such proceedings are penal in nature. As Justice Johnson, now a member of our Supreme Court, said in Leach v. State, 428 S.W.2d 817, 822 (Tex.Civ.App., Houston--14th Dist., 1968, no writ):

'The delinquency statute is penal in its Effect for the court may commit the child to a public institution until the child reaches the age of twenty-one years. The statute must be construed therefore, in the same manner it would be construed under the penal code.'

See also, In re Torres, 476 S.W.2d 883, 884 (Tex.Civ.App., El Paso, 1972, no writ).

Among the fundamental constitutional rights conferred on juvenile by Gault was the privilege against self-incrimination. The Court pointedly noted: 'It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children.' (387 U.S. at 47, 87 S.Ct. at 1454)

There is not a scintilla of evidence in our record that at the time and place in question the juvenile had a pistol in his possession, except the juvenile's qualified admission as set out in the majority opinion. ³

Our juvenile had not been confronted with any witnesses; no person had given any testimony that the juvenile did, in fact, have a pistol on or about his person. Thus, under Gault, 'an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and constitutional requirements.' (387 U.S. at 57, 87 S.Ct. at 1459)

At that stage of the proceedings, the state had not discharged its burden of establishing the corpus delecti by any competent evidence. Instead, the trial judge called upon the defendant to give incriminating evidence against himself by asking counsel: 'Now, he does wish to affirm the allegations in the petition?' and counsel's reply: 'Yes, sir, Judge.' Of course, all will agree that a person is not required to give evidence of an incriminating nature against himself; but, under proper safeguards, there may be a waiver of such privilege.

The prevailing general definition of waiver, in this sensitive area of federal constitutional rights, is that expressed by the United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 161, 1466 (1938), 'an intentional relinquishment or abandonment of a known right or privilege.'

The roots of privilege, as was said by Justice Fortas in Gault, 'has a broader and deeper thrust than the rule which prevents the use of confessions which are the product of coercion.' (387 U.S. at 47, 87 S.Ct. at 1454) Before calling upon the juvenile to 'affirm the allegations in the petition', the state had the burden of establishing a waiver of the right against self-incrimination. And, it must be shown that the waiver is made voluntarily, knowingly, and intelligently. Cf. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, 707 (1966), involving extra-judicial confessions. See also, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25...