R. A. B., In re

• Decision Date: 26 June 1975
• Docket Number: No. 988,988
• Citation: 525 S.W.2d 892
• Parties: In the Matter of R.A.B., a minor, Appellant.
• Court: Texas Court of Appeals

Page 892

525 S.W.2d 892

In the Matter of R.A.B., a minor, Appellant.

No. 988.

Court of Civil Appeals of Texas Corpus Christi.

June 26, 1975.

Phil Harris, Weslaco, for appellant.

Gordon Young, Asst. Dist. Atty., Juvenile Dept., Edinburg, for appellee.

OPINION

BISSETT, Justice.

This is an appeal by a male juvenile, who will be 17 years of age on August 17, 1975, from an order revoking probation. The appellant will sometime be referred to as 'R.A.B.', and sometimes as 'the juvenile'.

The State of Texas, acting by and through the District Attorney of Hidalgo County, filed a petition in the Juvenile Court of Hidalgo County on November 29, 1973, wherein it was alleged that R.A.B. 'is a child whose conduct is delinquent' in that he had theretofore committed two burglaries, two thefts and was knowingly and intentionally in possession of a usable quantity of marijuana consisting of more than two ounces but less than four ounces. The petition was filed in the 93rd District Court of Hidalgo County, Texas, and the case was docketed as 'Cause No. 1799--B' in that court . Judge Magus F. Smith was, and is, the regular Judge of the 93rd District Court.

A hearing was had on the petition on July 30, 1974. Following the hearing, judgment was rendered on the same day which declared that R .A.B. 'has engaged in delinquent conduct within the meaning of Section 51.03 of the Texas Family Code'. By a separate order, entitled 'Order of Disposition', also rendered on July 30, 1974, and following a separate hearing, it was ordered that R.A.B. be placed on probation for a period of one year. Judge Smith presided at both hearings and signed both orders. R.A.B. did not appeal from either of those orders.

On December 9, 1974, the State filed a motion, entitled 'Motion to Modify Disposition', wherein request was made that R.A.B. be brought before the court to determine whether the court should modify the disposition previously made. A hearing on the motion was held on March 18, 1975, before Judge Joe B. Evins, the regular judge of the 206th District Court of Hidalgo County. At the conclusion of the hearing, Judge Evins announced from the bench that R.A.B. had violated the terms and conditions of the probation. A written judgment was signed and rendered by Judge Evins on March 27, 1975, wherein it was ordered that the prior disposition order placing R.A.B. on probation be modified so as to commit him to the care, custody and control of the Texas Youth Council. A commitment order which ordered R.A.B. committed to the care, custody and control of the Texas Youth Council was also signed by Judge Evins on March 27, 1975.

R.A.B., in point of error 1, complains that the trial court did not notify him or his parent of his right to appeal from the order that declared him to be delinquent, and which was signed and rendered on July 30, 1974. The point cannot be considered by this Court in this appeal.

Point 1 relates only to the adjudication hearing and the orders which were made following that hearing. They are not before this Court in this appeal. We are concerned here only with the hearing that was held on March 18, 1975 on the State's motion to modify disposition, and the orders which were rendered on March 27, 1975, which revoked probation and committed the juvenile to the care, custody and control of the Texas Youth Council. While there are no juvenile cases on the issue presented by the point, the Texas Court of Criminal Appeals, in cases involving adults, has consistently held that where the defendant fails to appeal from the original judgment which placed him on probation, he may not attack the original conviction for the first time in an appeal from a subsequent order that revokes that probation. See Hoskins v. State, 425 S.W.2d 825 (Tex.Cr.App.1967); Brooks v. State, 459 S.W.2d 640 (Tex.Cr.App.1970); Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972); Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59 (1955). The rule of those cases applies to the case at bar. Point 1 is overruled.

Points of error 5, 6, 7, and 8 assert error in that the trial court, in both the adjudication hearing on July 30, 1974, and in the hearing on the motion to modify disposition on March 18, 1975, erred in not explaining to the juvenile and his parent: 1) the nature and possible consequences of the proceedings; 2) the allegations made against the child; 3) the privilege against self-incrimination; and 4) the juvenile's right to confrontation of witnesses. None of the points have merit.

As phrased, the points relate to alleged errors that were committed by the trial court on two different occasions and at two different hearings. The points cannot be considered insofar as the adjudication hearing on July 30, 1974, is concerned for the same reason stated in our discussion of point 1.

With respect to the hearing on the motion to modify disposition and the orders which were made and rendered pursuant to that hearing, the record reveals: R.A.B. was represented by counsel; prior to the introduction of any evidence, the comments made by Judge Evins in response to questions raised by counsel for both the State and for the juvenile, fully apprised R.A.B. and his parent of the nature and possible consequences of the proceeding, and of the allegations made against the child; R.A.B. did not testify at the hearings, consequently there is no basis for the complaints concerning 'self-incrimination'; counsel for R.A.B. cross-examined the State's witnesses in great detail, and the juvenile was accorded the right of confrontation of witnesses. Points 5, 6, 7, and 8 are overruled.

The juvenile, in point 2, contends that neither Judge Evins nor the 206th District Court of Hidalgo County have jurisdiction over him or Cause No. 1799--B, and that the order which, in effect, revoked his probation, rendered on March 27, 1975, is void. We do not agree.

Under the Texas Family Code Ann., V.T.C.A. (1974), all procedures concerning juveniles are controlled by the provisions of Title 3. Section 51.04 thereof, entitled 'Jurisdiction', provides, in part:

'(a) The juvenile court has exclusive original jurisdiction over proceedings under this title.

(b) In a county having a juvenile board, the board shall designate one or more district, criminal district, domestic relations, juvenile, or county courts or county courts at law as the juvenile court . . .

(e) A designation made under Subsection (b) . . . of this section may be changed from time to time by the authorized boards or judges for the convenience of the people and the welfare of children. However, there must be at all times a juvenile court designated for each county. It is the intent of the legislature that . . . changes in the designation of juvenile courts be made only when the best interest of the public requires it.'

It is, therefore, plain that statutory authority existed for the designation of all the district courts of Hidalgo County, Texas, as 'the juvenile court'. Nothing is presented which indicates that the 206th District Court could not have been so designated.

The juvenile, in his brief, makes the unqualified statements: that only the 93rd District Court has been designated as the juvenile court of Hidalgo County; that Judge Smith is the juvenile judge for that court; and that the 206th District Court and Judge Evins 'have not been designated as a juvenile court'. The statements have no support in the record. The burden was upon the juvenile to show that Judge Evins and the 206th District Court did not have jurisdiction in the premises. He did not meet that burden. Moreover, the judgment which modified the original disposition shows on its face that it was made and entered in a cause then pending in 'THE JUVENILE COURT OF HIDALGO COUNTY', and that it was signed and entered by Judge Evins as 'PRESIDING JUDGE'. Furthermore, the order of commitment affirmatively shows that it was signed by Judge Evins, Judge of the 206th District Court, 'Sitting as a Juvenile Court in said County'.

The juvenile also makes the statement in his brief that 'the case was not transferred to any other court or judge by Judge Smith'. The record is silent in that respect. All that is shown is that Judge Smith conducted the original hearing and Judge Evins conducted the hearing on the motion for modification of disposition of the juvenile. The Court of Criminal Appeals, in Wise v. State, supra, held where the record showed that all judges of the county could hear all cases, the judge of the 30th District Court, who conducted the entire hearing on the motion to revoke probation, had authority to revoke probation, notwithstanding the fact that the Judge of the 89th District Court presided at the original trial. Also, in Chavez v. State, 462 S.W.2d 283 (Tex.Cr.App.1971), it was held that two judges could conduct parts of one hearing on motion to revoke probation and that either judge could make the ruling.

Rule 330(e), (f), (g) and (h), Texas Rules of Civil Procedure, provides in counties where there are two or more district courts, for the exchange and transfer of authority from one court to another, wherein the judges have broad powers to try any case assigned to another court without having the case transferred, or to transfer cases to other courts. In particular, subsection (g) thereof provides that one judge can hear only part of the case and some other judge can hear the remainder of the case and render judgment.

No reason is shown why Judge Evins was not legally empowered to conduct the hearing and render the judgment that is attacked. It has not been shown that the 206th District Court is not a juvenile court of Hidalgo County. It is not shown that the case was not transferred to Judge Evins and the 206th District Court. Under the record, we must presume that Judge Evins had jurisdiction to hear and determine the case. Point 2 is overruled.

Points of error 3 and 4 assert that the trial court erred in overruling the juvenile's ...