M. A. G., Matter of, 1116

• Decision Date: 30 September 1976
• Docket Number: No. 1116,1116
• Parties: In the Matter of M.A.G., a Child, Appellant.
• Court: Texas Court of Appeals

Page 899

541 S.W.2d 899

In the Matter of M.A.G., a Child, Appellant.

No. 1116.

Court of Civil Appeals of Texas,

Corpus Christi.

Sept. 30, 1976.

Rehearing Denied Oct. 21, 1976.

G. Jaime Garza, Morin & Garza, Edinburg, for appellant.

F. M. Guerra, Jr., Asst. Dist. Atty., Edinburg, for appellee.

OPINION

NYE, Chief Justice.

This case is an appeal from a jury verdict declaring the appellant, M.A.G., ¹ to be a delinquent and from the subsequent order of the Court placing the appellant in the custody of a correctional facility. The appellant has perfected her appeal from both the adjudication of delinquency and the disposition order to the correctional facility in Houston, Texas.

On April 2, 1975, M.A.G. was taken into custody by the juvenile authorities in the City of McAllen. She was charged with misdemeanor theft (31.03 Penal Code) and released to her mother's custody. At the time of the arrest, the juvenile was 15 years old. On January 21, 1976, an adjudication hearing was held and the jury returned a verdict that M.A.G. had engaged in delinquent conduct. Based on the jury verdict, the trial judge declared M.A.G. to be a delinquent child. On February 3, 1976, a disposition hearing was held and the trial judge ordered M.A.G. placed in the custody of the director of the Alternative House in Houston and placed M.A.G. on one year probation, subject to extensions not to exceed one year each until M.A.G. reached the age of eighteen. On February 6, 1976, M.A.G. left the Alternative House in Houston in violation of her probation and has to this date remained a fugitive. On March 22, 1976, the appellant's counsel filed a motion to suspend the disposition order and to grant a personal recognizance bond pending appeal. On May 11, 1976, the Clerk of this Court informed appellant's counsel that his motion was being held under advisement by the Court and that the Court would not rule on his motion until the appellant surrendered to the appropriate authorities.

The case was submitted on September 2, 1976. Appellant was questioned about his lengthy brief of 167 pages. The brief contained 80 points of error, many of which were rephrasing the same points over and over again into multiple points. The appellee had answered appellant's brief in 5 counter-points which in effect were the only points of error raised on the appeal. At the outset, the appellant informed the Court that he chose to argue only 3 specific points of error and that the brief would speak for itself for the remaining points. When questioned about his brief, the appellant admitted that his brief was unduly long (actually longer than the statement of facts) and apologized to the Court. The Court told the appellant that his brief was unacceptable and that it amounted to a flagrant violation of the briefing rules, specifically, Rule 418, T.R.C.P. He was then ordered to rebrief the case and was given 2 weeks in which to comply.

During oral argument, the Court also inquired as to the status of the appellant. The Court was informed by counsel for the appellant that M.A.G. was still a fugitive but had been in contact with her mother. The attorney for the appellant assured the Court that he did not know the whereabouts of the appellant. Whereupon the Court informed the appellant's attorney that unless she surrendered herself to the appropriate authorities two (2) weeks from this day (September 2, 1976), the appeal would be dismissed. Appellant's attorney informed the Court that he would attempt to get the message to the appellant through her mother.

On September 16, 1976, the appellant's attorney filed a new brief containing 5 points of error which was 25 pages in length. The first brief was ordered stricken for being in violation of Rule 418, and the second brief was accpted and duly filed by the Clerk of this Court.

We now discuss the propriety of a dismissal of this appeal. Appeals from juvenile proceedings constitute one of the extremely rare circumstances when a Court of Civil Appeals has any direct contact with a criminal proceeding. Although under § 51.17, Tex.Fam .Code Ann. (1975), a delinquency proceedings are governed by the Texas Rules of Civil Procedure, it has been made clear that the adjudication hearing under § 54.03, Tex.Fam.Code Ann. (1975), is governed by many laws set out in the Code of Criminal Procedure and by criminal case law. For example, § 54.03(f) provides that the state must prove the child to be a delinquent beyond a reasonable doubt, substituting the criminal burden of proof for the civil burden of proof by a preponderance of the evidence. § 54.03(b) (3), which concerns the child's privilege against self-incrimination is governed by Art. 1.05 of the Code of Criminal Procedure. The child's right to trial and confrontation of witnesses is governed by Art. 1.05 of the Code of Criminal Procedure . See § 54.03(b)(4). Confessions by a child and a child's right to trial by jury are likewise governed by the Code of Criminal Procedure. See § 54.03(b)(6), Art. 1.12, T.C.C.P.; and § 54.03(e), Art. 38.22, T.C.C.P.

The United States Supreme Court as well as the Courts of this State have for a long time recognized that juvenile proceedings are quasicriminal in nature. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). See In the Matter of B.D.A., 524 S.W.2d 550 (Tex.Civ.App., Amarillo 1975, no writ); Leach v. State, 428 S.W.2d 817 (Tex.Civ.App., Houston (14th Dist.) 1968, no writ); Choate v. State, 425 S.W.2d 706 (Tex.Civ.App., Houston (1st Dist.) 1968, no writ). Neither the Texas Family Code nor the Rules of Civil Procedure govern a situation where a juvenile escapes from custody and remains a fugitive during the pendency of an appeal. The Code of Criminal Procedure, Article 44.09, permits the Court of Criminal Appeals to dismiss an appeal if the defendant escapes from the custody of the authorities and remains a fugitive while the appeal is pending.

The United States...