In re C.J.M. , 167 S.W.3d 892 ( 2005 )

TERRIE LIVINGSTON, Justice,

concurring.

While I agree with the conclusion the majority opinion reaches, I respectfully write separately to make a couple of observations.

When a statute is clear and unambiguous, we “should give the statute its common meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997); see also Sisk v. State, 131 S.W.3d 492, 494 (Tex.Crim.App.2004); Hernandez v. State, 127 S.W.3d 768, 771 (Tex.Crim.App.2004). When language in a statute is unambiguous, we will seek the intent of the legislature as found in the plain and common meaning of the words and terms used. St. Luke’s Episcopal Hosp., 952 S.W.2d at 505; In re K.L.V., 109 S.W.3d 61, 65 (Tex.App.-Fort Worth 2003, pet. denied). We should not adopt a construction that would render a law or provision meaningless. Centurion Planning Corp. v. Seabrook Venture II, No. 01-02-00518-CV, 2004 WL 2828125, at *3 (Tex.App.Houston [1st Dist.] Dec. 9, 2004, no pet. h.).

While I agree that there is a gap in the juvenile justice code’s instructions to the courts on what additional rules of criminal procedure apply in a Title III action, I believe there are two justifications for reaching the conclusion that we reach today.

First, as observed by the majority, section 51.17(c) of the juvenile justice code tells us specifically that courts may apply and use chapter 38 of the code of criminal procedure in Title III cases. Tex. Fam. Code Ann. § 51.17(c) (Vernon Supp.2004-05). Had the legislature so desired, it could have included a reference to chapter 37 of the code of criminal procedure as well, but it did not do so. Under the rules of statutory construction, we should not assume the omission was unintentional. See Upjohn Co. v. Rylander, 38 S.W.3d 600, 607 (Tex.App.-Austin 2000, pet. denied).

Second, we also know under rule of evidence 609(d) that in juvenile justice proceedings under Title III, evidence of prior juvenile adjudications are admissible in the limited situation in which the witness is a party. Tex.R. Evid. 609(d). This provision, not mentioned by appellant, the State, or the majority opinion, tells us that during a juvenile proceeding, evidence of prior juvenile adjudications against that particular juvenile are admissible to attack the juvenile’s credibility if the juvenile testifies. Id. Thus, we have clear authority from the supreme court to admit prior juvenile adjudications of a witness/party during a pending juvenile proceeding of that witness/party, but not prior extraneous, unadjudicated offenses. In this case, had the extraneous offense testified to by L.J. been previously adjudicated against C.J.M., it would have been admissible to attack C.J.M.’s credibility. Since it had not yet been pursued to an adjudication, it was not admissible.

I believe the unadjudicated offense was inadmissible for these additional reasons and therefore concur in the majority opinion and judgment.