P.L.W. v. State

• Decision Date: 31 March 1993
• Docket Number: No. 04-92-00244-CV,04-92-00244-CV
• Citation: 851 S.W.2d 383
• Parties: In the Matter of P.L.W., a Minor v. STATE of Texas.
• Court: Texas Court of Appeals

Page 383

851 S.W.2d 383

In the Matter of P.L.W., a Minor v. STATE of Texas.

No. 04-92-00244-CV.

Court of Appeals of Texas,

San Antonio.

March 31, 1993.

Laura Angelini, San Antonio, for appellant.

Steven C. Hilbig, Crim. Dist. Atty., Adele Barnett, Leticia Cortez, Daniel Thornberry, Asst. Crim. Dist. Attys., San Antonio, for appellee.

Before PEEPLES, BIERY and GARCIA, JJ.

OPINION

BIERY, Justice.

P.L.W., appellant, was found by a jury to have engaged in delinquent conduct by committing the offenses of aggravated robbery with a deadly weapon and evading arrest; appellant was committed to the custody of the Texas Youth Commission. Appellant presents three points of error contending (1) the trial judge erred by failing to admonish appellant as required by TEX.FAM.CODE ANN. § 54.03(b) (Vernon Supp.1993), (2) there was no evidence to support the jury finding that appellant engaged in delinquent conduct by committing aggravated robbery with a deadly weapon, and (3) the evidence was insufficient to prove appellant was a party to the offense of aggravated robbery and to support the jury finding that appellant engaged in delinquent conduct by committing aggravated robbery with a deadly weapon. We reverse and remand because, as the State candidly concedes, there was no compliance with the requirements of the law concerning admonishment of the appellant. As required by the authorities set forth below, we also will address appellant's points of error two and three concerning no evidence and insufficient evidence. We overrule those points of error.

Section 54.03(b) of the Texas Family Code requires:

At the beginning of the adjudication hearing, the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem:

(1) the allegations made against the child;

(2) the nature and possible consequences of the proceedings, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding;

(3) the child's privilege against self-incrimination;

(4) the child's right to trial and to confrontation of witnesses;

(5) the child's right to representation by an attorney if he is not already represented; and

(6) the child's right to trial by jury.

TEX.FAM.CODE ANN. § 54.03(b) (Vernon Supp.1993). This section is mandatory and an appellant need not object at trial to preserve the complaint for appeal. In re G.K.G., 730 S.W.2d 182, 183-84 (Tex.App.--San Antonio 1987, no writ).

After the assistant district attorney read the paragraphs of the petition to the appellant and the appellant acknowledged that he understood the charges, the record reflects:

THE COURT: So they could also convict you of robbery. That is taking somebody's property by force or by threats. They could even prove that happened without a weapon. A jury could still find you guilty of force and threats. You could be sent to the Texas Youth Commission. Usually we send people to TYC for at least 8 months or put you on probation....

The reading of the allegations by the prosecutor to a juvenile has been held not to comply with the requirements of the Texas Family Code. In re J.D.P., 691 S.W.2d 106, 107 (Tex.App.--San Antonio 1985, no writ). Further, there was no admonishment of the appellant that his juvenile record might be admissible against him in a subsequent criminal proceeding. See In re Cooper, 623 S.W.2d 507, 508 (Tex.App.--Fort Worth 1981, no writ). None of the other explanations required by section 54.03(b) were given to the juvenile.

As the State concedes, point of error one is meritorious and is sustained.

We next address appellant's second and third points of error concerning sufficiency of the evidence because of double jeopardy issues. In re J.B.S., 696 S.W.2d 223, 224-25 (Tex.App.--San Antonio 1985, no writ).

The appellant was charged with aggravated robbery with a deadly weapon of George Thomas. Thomas testified that, on the evening of December 13, he was home alone with his brother Ronnie Thomas, when the appellant and Ernest Adkins came to the front door of his home and asked to use the phone. While Adkins used the phone, the appellant remained by the front door, which was still opened. Thomas went back to the front door in order to close it when he saw two masked men with shotguns running up to the door. Thomas closed the door, but the men kicked it in. Thomas was able to recognize one of the armed as an individual named "Germain." The appellant and Adkins did not seem to be agitated.

The intruders made the appellant and Adkins lie down near the front steps, while George Thomas was led around the house, both upstairs and downstairs, in search of property. Both of the Thomas brothers were hit with the guns, but neither the appellant nor Adkins was harmed by the intruders. At one point one of the shotguns went off, striking a light switch. George Thomas was ordered to open a safe. He knew Adkins was aware the Thomas home had a safe. When Thomas was unable to open the safe, the robbers placed the two brothers in a closet. Neither the appellant or Adkins was placed in the closet.

After a few minutes the two brothers emerged from the closet. George Thomas observed all four youths running away together in the same direction. Thomas also testified that Shamall McIntyre was a neighbor, living within a mile or so or five to ten minutes of the Thomas home. Thomas subsequently determined that a Nintendo game, a VCR, and a pair of shoes were missing. Both the appellant and Adkins were identified by Thomas that same day, when they were brought back by the police, who had been given descriptions of the suspects.

George's ten year-old brother, Ronnie, confirmed that after the appellant and Adkins entered and asked to use the phone, the door was kicked in by the two other men. Again both George and Ronnie were hit by the intruders, but not the appellant or Adkins.

Annette Thomas, George's and Ronnie's mother, testified that when she arrived home from work that evening, she discovered that both of her children had been injured or beaten; that her front door had been kicked in; and that there was a gunshot to the wall of her home. She discovered that a camera, cologne, perfume, a VCR, a Nintendo game and jewelry were missing.

Officer Randall Story testified he responded to the robbery call that evening, and obtained the description of the suspects. He remained there an hour and a half, and observed the two suspects being brought back for identification.

Deputy Robert Gallegos was on patrol, within a mile or so of the robbery, when he spotted and stopped the appellant and another individual matching the descriptions. Both supplied false names. The appellant seemed very calm. Neither said he had been a victim of a robbery. They said they were coming from a friend named Shamall's house. The two were taken back to the crime scene where they were identified by George Thomas.

McIntyre testified that on the evening of the offense, he was visited at home by the appellant, Adkins, Germain, and another youth called "Junior." The four stayed there together for a half hour. One was carrying a trash bag containing video games. The appellant used the telephone, and then departed with Adkins. The appellant was never threatened during the half hour he was there. After the arrival of the four, McIntyre noticed a shotgun shell on his coffee table.

Clearly, this evidence would not support a finding that appellant was guilty of aggravated robbery as a sole actor. The law of parties was submitted in the abstract by the trial judge; however, there was no application of the law of parties in the application or authorization paragraph of the jury charge. Although the State made no objection to the charge, appellant's counsel did point out to the trial judge the following:

MS. ANGELINI: No. The only thing I asked for was the application paragraph to the law of applying the law to the facts.

THE COURT: No, I don't do that. Now ...

If appellant was an adult, the evidence would be insufficient to sustain the conviction because the application paragraph authorized the appellant's conviction only as a sole actor. Nickerson v. State, 782 S.W.2d 887, 891-92 (Tex.Crim.App.1990). The State must object to the expansion of its burden of proof in jury charge. Marras v. State, 741 S.W.2d 395, 407-08 (Tex.Crim.App.1987), overruled on other grounds, Garrett v. State, 851 S.W.2d 853, 860 (Tex.Crim.App.1993) 1993); TEX.CODE CRIM.PROC.ANN. art. 36.15 (Vernon Supp.1993). In juvenile proceedings, however, the Rules of Civil Procedure apply in the absence of a Family Code...