R. G. S., In re

• Decision Date: 14 December 1978
• Docket Number: No. 5229,5229
• Citation: 575 S.W.2d 113
• Parties: In re R. G. S.
• Court: Texas Court of Appeals

Page 113

575 S.W.2d 113

In re R. G. S.

No. 5229.

Court of Civil Appeals of Texas, Eastland.

Dec. 14, 1978.

Rehearing Denied Jan. 4, 1979.

Robert Michael Brown, Brown & Harding, Lubbock, for appellant.

Joseph Thigpen, Dist. Atty., Haskell, Travis Hartgraves, County Atty., Aspermont, for appellee.

McCLOUD, Chief Justice.

On January 24, 1978, the father, stepmother and younger brother of appellant, R.G.S., were shot and killed. Three days later, appellant was taken into custody and detained. The State of Texas filed a petition on January 30, 1978, in the 39th District Court of Stonewall County, sitting as a juvenile court, seeking an adjudication, pursuant to Section 54.03 of the Texas Family Code, ¹ that appellant engaged in delinquent conduct or conduct indicating a need for supervision. The "adjudication" petition alleged that appellant unlawfully, intentionally, and knowingly shot and killed his father stepmother, and brother. Appellant was summoned to appear at 2:30 p. m. on January 30, 1978, the date the petition was filed, to answer the allegations. On January 30, 1978, the court, following a hearing attended by appellant and his attorney, entered a detention order pursuant to Section 54.01. Appellant and his attorney filed written waivers of subsequent detention hearings. On February 22, 1978, the court ordered the Juvenile Office of Taylor County to make a complete diagnostic study, social evaluation, and full investigation of the appellant, his circumstances, and the circumstances of the alleged offense. On March 10, 1978, the court, pursuant to appellant's motion for an adjudication hearing, entered an order setting the "adjudication hearing" for March 20, 1978. On March 13, 1978, the State filed its petition requesting the juvenile court to waive its jurisdiction and transfer the cause to the appropriate criminal court in Stonewall County in accordance with Section 54.02, which provides in part:

(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

(1) the child is alleged to have violated a penal law of the grade of felony;

(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and

(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.

On March 13, 1978, the court set the "waiver hearing" for March 17, 1978. On March 15, 1978, the court entered an order stating that on March 14, 1978, it learned that the State had filed its waiver of jurisdiction and transfer petition, and the court on such date, on its own motion, vacated the March 20, 1978, adjudication hearing setting. The court also denied appellant's request for a new "adjudication hearing" setting. Appellant sought, and was granted, three continuances of the transfer hearing. On May 26, 1978, the transfer hearing was held and by order dated June 1, 1978, the juvenile court waived jurisdiction and ordered the cause transferred to the District Court of Stonewall County for criminal proceedings.

Appellant appeals from the order waiving jurisdiction and transferring the cause. We affirm.

In his first point of error, appellant contends the court erred in denying him a speedy "adjudication hearing" in violation of the mandatory provisions of Section 53.05. We disagree. Section 53.05 provides that the court shall set the hearing, if the juvenile is in detention, not later than ten days after the petition is filed. The initial hearing was set within the statutory period.

Appellant's main complaint is that the court, on its own motion, had no authority to vacate the March 20, 1978, trial setting for the "adjudication hearing."

The rule that a hearing must be set, but not heard, within the ten-day provision, was discussed in Matter of J. R. C., 551 S.W.2d 748 (Tex.Civ.App. Texarkana 1977, writ ref'd n. r. e.), as follows:

Section 53.05 merely requires that the time initially set for the hearing be not later than 10 days after the filing of the petition. It does not preclude continuing the hearing by agreement or for good cause. Smith, Parent and Child, Tex. Family Code Symposium, 5 Tex.Tech.L.Rev. 551 (1974). As for the delays which occurred after the time initially set for the hearing, appellant participated in or was responsible for a considerable portion of those delays, and under the record presented here he is in no position to complain of them.

In the recent case of L. L. S. v. State, 565 S.W.2d 252 (Tex.Civ.App. Dallas), writ ref'd n. r. e. per curiam, 569 S.W.2d 495 (Tex.1978), the court properly held that a juvenile court, on its own motion, could continue a hearing. The court said We do not interpret section 53.05 as imposing a jurisdictional limitation requiring dismissal of the proceeding unless a proper waiver or ground for postponement is shown by the record. The requirement that a hearing be set within ten days after the filing of the petition is mandatory, but there is no jurisdictional requirement that the hearing be completed at that time. The requirement for a setting within ten days provides a time for appearance for both parties. The judge can then determine whether the child is adequately represented and what the future schedule of the case should be. Whether the hearing on the state's petition or on its motion to transfer is completed on that date or postponed is a matter within the court's discretion, subject to the constitutional requirement of a speedy trial. Respondent does not contend that the period of the delay in the present case was so long as to constitute a constitutional denial of due process apart from the provision of section 53.05 that a hearing be set within ten days. We construe the statute as permitting a postponement in the court's discretion and on the court's own motion, so long as the postponement is not for such a long period as to be a denial of due process.

We hold that the trial court, upon learning that the State had filed a waiver and transfer petition, did not abuse its discretion when it vacated, on its own motion, the previous order setting the "adjudication hearing" for March 20, 1978. We think that neither Rule 247 nor Rule 251, T.R.C.P., should prohibit a juvenile court from vacating, on its own motion under proper circumstances, a previously set date for an adjudication hearing. Moreover, appellant's complaint that the court erred in continuing or postponing the adjudication hearing, would have to be raised in the appeal of the adjudication proceeding. There has been no "adjudication" trial or appeal. Appellant has failed to show the court abused its discretion.

Appellant next argues that the admission into evidence of hearsay portions of the diagnostic study denied him due process of law and the right to confront the absent witnesses, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.

Appellant complains of certain information contained in the report prepared by Joyce Talbot, Assistant Juvenile Officer of Taylor County. The report, ordered by the court, shows that the hearsay information under attack was obtained by Talbot from reports compiled by the district attorney's office. Talbot's report expressly identifies by name the persons who gave the information, and to whom the information was given.

Section 54.02 expressly provides that the juvenile court, in a waiver hearing, may consider certain hearsay reports. The waiver statute provides in part:

(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.

(e) At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. At least one day prior to the transfer hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the transfer decision. The court may order counsel not to reveal items to the child or his parent, guardian, or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.

(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person (2) whether the alleged offense was committed in an aggressive and premeditated manner;

(3) whether there is evidence on which a grand jury may be expected to return an indictment;

(4) the sophistication and maturity of the child;

(5) the record and previous history of the child; and

(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

In Matter of J. R. C., 551 S.W.2d 748 (Tex.Civ.App. Texarkana 1977, writ ref'd n. r. e.), the appellant contended that the psychological and social reports should not have been considered by the juvenile court because they constituted hearsay, were based upon further hearsay, and were not identified or authenticated by any witness. After observing that Section 54.02(d) requires the juvenile court to order such reports, and that Section 54.02(e) specifically states that the court may consider such reports, the court said:

Although the reports, being ex parte...