Yzaguirre v. State, 372

• Decision Date: 18 April 1968
• Docket Number: No. 372,372
• Citation: 427 S.W.2d 687
• Parties: Ricardo YZAGUIRRE, Appellant, v. STATE of Texas, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 687

427 S.W.2d 687

Ricardo YZAGUIRRE, Appellant, v. STATE of Texas, Appellee.

No. 372.

Court of Civil Appeals of Texas Corpus Christi.

April 18, 1968.

Mathews & Walsh, Joe W. Walsh, Brownsville, for appellant.

Ann Gann, Asst. Dist. Atty., Brownsville, for appellee.

OPINION

GREEN, Chief Justice.

This appeal is from a judgment of the District Court of Cameron County, Texas, 138th Judicial District of Texas, Sitting as a Juvenile Court, declaring appellant Ricardo Yzaguirre to be a dilinquent child, under Art. 2338--1, Vernon's Ann.Tex.Civ.St., and committing him to the care, custody and control of the Texas Youth Council in accordance with Article 5143d, V.A.T.S. The petition in the trial court sought to have the two juveniles named therein, to-wit: appellant and one Abraham Gonzales, each declared to be a delinquent child by reason of their having committed in Cameron County a number of specifically alleged offenses, including the unlawful and voluntary killing with malice aforethought of one Roberto Medina by stabbing him with a knife. The trial was had before the judge without a jury. No severance was requested, and the two juveniles were tried jointly. Each juvenile was represented in court by employed counsel and the parents of both of said juveniles were present in court during the proceedings. After all parties had rested, the court found that the material allegations in the petition concerning the delinquent behavior of both juveniles in connection with the stabbing death of Roberto Medina on or about June 17, 1967, were true, that each juvenile was a minor of the age of fourteen years, and adjudicated appellant and Abraham Gonzales each to be a delinquent child. The court expressly found that none of the other charges contained in the State's petition were substantiated by the evidence. Only Yzaguirre has appealed.

A written statement of appellant in which he admitted stabbing deceased with a knife under circumstances supporting the conclusions reached by the trial court was admitted in evidence over appellant's objections. We shall discuss the matter of the admissibility and effect of this 'confession' further under appellant's third, fourth and fifth points, and appellee's counter-point.

Aside from the 'confession' several eye witnesses testified to events in connection with the stabbing of deceased. It was shown by such sworn testimony that the stabbing occurred at a dance being held at Ringgold Park Pavilion in Brownsville on the night of Saturday, June 17, 1967. A number of young teenagers were in attendance, including appellant and his co-defendant Abraham Gonzales, two brothers of Gonzales, deceased, and others. There was evidence of several fights among these youths during the evening. There was testimony of ill feeling between two factions and that shortly before deceased was cut, appellant while in a rest room had a knife and stated to Abraham Gonzales that he was going to kill one of the Medinas with his knife. Subsequently, according to testimony, Abraham and deceased got in a fight in which appellant also participated, and either during the fight or immediately after it was over appellant stabbed deceased with his (appellant's) knife. Medical testimony established that deceased, who had been taken to a hospital, died the next morning as the result of the knife wound.

Appellant does not by any point of error or by argument attack the sufficiency of the evidence to support the court's findings of facts, or the court's judgment.

Appellant bases his appeal on seven points of error, as follows:

FIRST POINT

The Court erred in proceeding to hear the case before the Court without Appellant's proper jury waiver.

SECOND POINT

The Court erred in adjudicating Appellant a delinquent without a plea being entered nor an arraignment being held.

THIRD POINT

The Court erred in admitting into evidence the purported voluntary statement of Appellant.

FOURTH POINT

The Court erred in stating that it did not use the purported voluntary statement of Appellant in reaching its decision.

FIFTH POINT

The Court erred in failing to use the exculpatory statements, which were contained in the purported voluntary confession of Appellant.

SIXTH POINT

The Court erred in adjudicating the Appellant a delinquent without ruling on Appellant's motion to be acquitted of paragraphs four and five of Appellant's Petition.

SEVENTH POINT

The Court erred in failing to appoint a guardian ad litem.

The Legislature of Texas and Texas appellate courts have made it abundantly clear that a proceeding to have a juvenile declared to be delinquent is a civil matter and that the statutes and rules relating to civil actions should govern as far as practicable. Art. 2338--1, Revised Civil Statutes of Texas; Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217; Steed v. State, 143 Tex. 82, 183 S.W.2d 458; Espinosa v. Price, Chief Justice, et al., 144 Tex. 121, 188 S.W.2d 576, 160 A.L.R. 284; Gamble v. State of Texas, Tex.Civ.App., 405 S.W.2d 384, n.w.h.; Solis v. State, Tex.Civ.App., 418 S.W.2d 265, n.w.h. The delinquent juvenile act, Art. 2338--1, does not undertake to convict a child for the commission of a crime. Sec. 3(a) of said article defines a delinquent child to be a person within the qualifying age limits who violates any penal law of this State of the grade of felony, and this definition furnishes the basis for civil proceedings against such a child under the act. ¹ The issue to be determined is whether the juvenile is a delinquent child within the meaning of the statutes.

This cause went to trial June 27, 1967, the judgment being signed June 28, 1967. This was prior to the effective date of the 1967 amendments to Art. 2338--1, i.e., August 28, 1967. However, the factual situation of this case is such that said 1967 amendments would not have made any difference in the manner in which the trial was conducted. See The New Juvenile Delinquent Law by Robert Billings, Vol. 31 of Texas Bar Journal, No. 3, p. 203 et seq., (March 22, 1968.)

Section 13 of Art. 2338--1 provides in part that 'If no jury is demanded, the Judge shall proceed with the hearing. * * *' Thus, the juvenile is accorded the right to a jury trial provided he desires one and makes the request. In this hearing, appellant was represented by able counsel. No jury was requested.

Appellant contends under his first point that where judicial process seeks to deprive a person of his freedom for committing an offense against the State, such legal proceedings even though they are held under the provisions of the delinquent juvenile statutes should be controlled by the rules which govern criminal proceedings. Art. 1.13, Vernon's Ann. Code of Criminal Procedure, provides that the defendant in a felony prosecution shall have the right to waive a jury trial 'conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State.' It is appellant's contention that this statute is applicable in a juvenile hearing, and since he did not expressly in writing with the written consent and approval of the court and State's attorney waive a jury, the court erred in proceeding to trial without one. We overrule this contention. This was not a criminal trial, and Art. 1 .13, C.C.P., does not apply. Since no demand for a jury as provided in Art. 2338--1, Sec. 13, supra, was made, the court did not err in proceeding with the hearing without a jury. Dendy v. Wilson, supra; In re Gonzalez, Tex.Civ.App., 328 S.W.2d 475, wr. ref. n.r.e.

Appellant cites and relies on the recent decision of our Federal Supreme Court in Application of Gault, 387 U.S. 1, 87A S.Ct. 1428, 18 L.Ed.2d 527 (May, 1967). That case does not support the contention or argument of appellant in this respect. There the majority opinion limits the matters before the court for decision in the following language (p. 1434):

'They (appellants) urge that we hold the Juvenile Code of Arizona invalid on its face, or as applied in this case because, contrary to the Due Process Clause of the Fourteenth Amendment, the juvenile is taken from the custody of his parents and committed to a state institution pursuant to proceedings in which the Juvenile Court has virtually unlimited discretion, and in which the following basic rights are denied:

1. Notice of the charges;

2. Right to counsel;

3. Right to confrontation and cross-examination;

4. Privilege against self-incrimination;

5. Right to a transcript of the proceedings; and

6. Right to appellate review.'

The court in a very thorough majority opinion by Justice Fortas in which he discussed at length these six features of the juvenile trial in question held that the Due Process provisions of the Fourteenth Amendment and the Bill of Rights apply to juveniles as well as to adults, and that the Arizona Juvenile Code and the trial court had denied to the juvenile 'the basic requirements of due process and fairness' with respect to the first four of such basic rights. The majority opinion discussed but did not definitely rule upon the right to a transcript and the right of appeal. The court, however, did not in any way deny to the State Legislatures and State courts the power and right to determine the rules of procedure in juvenile trials As long as such rules do not violate the basic requirements of due process and fairness.

In the hearing below, as distinguished from Gault, the petition which brought appellant into court set out in specific language the charges against him, and he and his parents had notice of such charges in ample time so that their employed counsel announced ready, with appellant's witnesses on hand, to go to trial when the cause was called. The juvenile, his counsel and his parents had the right and exercised it to confront and cross-examine the State's witnesses, and to have their own witnesses testify, as shown by the 316 page...