in the Matter of S.G., a Juvenile

IN THE
TENTH COURT OF APPEALS
No. 10-09-00035-CV
IN THE MATTER OF S.G., A JUVENILE
From the 74th District Court
McLennan County, Texas
Trial Court No. 2008-217-J
OPINION
S.G., a juvenile, was found to have engaged in delinquent conduct by committing
the offense of Indecency with a Child by Contact by the trial court in a non-jury trial.
TEX. FAM. CODE ANN. § 54.03 (Vernon 2006); TEX. PEN. CODE ANN. § 21.11 (Vernon 2003).
S.G. complains that the evidence is factually insufficient to find that he engaged in
delinquent conduct, that the trial court’s questioning of his expert witness was
erroneous, and that the record contains no waiver of a jury trial. Because we find the
record contains no affirmative waiver of a jury trial in accordance with the Texas Family
Code, we reverse and remand for a new trial.
Waiver of Jury Trial
Texas Family Code Section 54.03(c) states: “Trial shall be by jury unless jury is
waived in accordance with Section 51.09.” TEX. FAM. CODE ANN. § 54.03(c) (emphasis
added). Section 51.09 of the Texas Family Code establishes the methodology for a
juvenile to waive his rights, including that to a jury trial. TEX. FAM. CODE ANN. § 51.09
(Vernon 2007). Section 51.09 states:
Unless a contrary intent clearly appears elsewhere in this title, any
right granted to a child by this title or by the constitution or laws of this
state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and
understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are recorded.
TEX. FAM. CODE ANN. § 51.09 (Vernon 2007) (emphasis added).
The record in this case is silent as to the waiver of a jury trial. There is neither a
written waiver in the record nor any oral waiver on the record as required by Section
51.09. Id. Additionally, the judgment adjudicating S.G. makes no mention of a jury trial
being waived or otherwise.
The State argues that any error stemming from this failure has not been
preserved in the trial court. See TEX. R. APP. P. 33.1. See also TEX. FAM. CODE ANN. §§
54.03(b) & (i) (Vernon 2008). S.G. does not dispute that no objection was lodged in the
trial court, but argues that an affirmative waiver is required regardless of the failure of
the trial court to explain his rights to him. Thus, we must first determine whether the
failure to object to the lack of a written or oral jury trial waiver must be preserved at the
trial court or may be raised for the first time on appeal.
In the Matter of S.G. Page 2
Preservation of Error
The Texas Supreme Court addressed the issue of the necessity of preservation of
error for purposes of appeal in juvenile cases in In re C.O.S. In re C.O.S., 988 S.W.2d 760
(Tex. 2001). In re C.O.S. involved improper admonishments in a juvenile proceeding
prior to the 1997 amendment to Section 54.03, which added (i), which now requires that
an objection must be made to the trial court’s failure to give admonishments pursuant
to Section 54.03(b) prior to the start of testimony. See Act of May 27, 1987, 70th Leg.,
R.S., ch. 385, § 8, 1987 Tex. Gen. Laws 1891, 1894; Act of May 26, 1987, 70th Leg., R.S., ch.
386, § 3, 1987 Tex. Gen. Laws 1899, 1900, amended by Act of June 2, 1997, 75th Leg., R.S.,
ch. 1086, § 10, 1997 Tex. Gen. Laws 4179, 4184-85 (current version at TEX. FAM. CODE
ANN. §§ 54.03(b) & (i)). However, we do not construe S.G.’s complaint to be based on
the failure to properly give admonishments pursuant to Section 54.03(b), but the trial
court’s failure to comply with the mandates in Section 54.03(c).
In re C.O.S. holds that there are three categories of rights and requirements used
in determining whether error may be raised for the first time on appeal. See In re C.O.S.,
988 S.W.2d at 765-767. The first set of rights are those that are considered so
fundamental that implementation of these requirements is not optional and cannot,
therefore, be waived or forfeited by the parties. See id. at 765; Marin v. State, 851 S.W.2d
275, 279 (Tex. Crim. App. 1993). The second category of rights is those that must be
implemented by the system unless expressly waived. See In re C.O.S., 988 S.W.2d at 766;
Marin v. State, 851 S.W.2d at 278-279. The third set of rights is those that the trial court
has no duty to enforce unless requested. See In re C.O.S., 988 S.W.2d at 765; Marin v.
In the Matter of S.G. Page 3
State, 851 S.W.2d at 279. The law of procedural default applies to this last category,
wherein the failure to speak waives these forfeitable rights. See In re C.O.S., 988 S.W.2d
at 767 (quoting Marin v. State, 851 S.W.2d at 279).
The right to a jury trial in a juvenile case fits into the second category. See In re
C.D.H., 273 S.W.3d 421, 424-425 (Tex. App.—Texarkana 2008, no pet.) (citing Aldrich v.
State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003)). See also Bessey v. State, 239 S.W.3d
809, 812 (Tex. Crim. App. 2007) (waivable-only right cannot be forfeited by inaction
alone). This second category includes rights or requirements embodied in a statute that
directs a trial court in a specific manner. See In re C.O.S., 988 S.W.2d at 766. See also In re
J.L.S., 47 S.W.3d 128, 130 (Tex. App.—Waco 2001, no pet.). The Supreme Court held in
C.O.S. that “when a statute directs a juvenile court to take certain action, the failure of
the juvenile court to do so may be raised for the first time on appeal unless the juvenile
defendant expressly waived the statutory requirement. In re C.O.S., 988 S.W.2d at 766;
In re J.L.S., 47 S.W.3d at 130.
Thus, we find that this error may be raised for the first time on appeal.
Harm Analysis
We apply the civil harm standard when reviewing the adjudication phase of an
indeterminate juvenile sentencing proceeding. See In re C.P., 998 S.W.2d 703 (Tex.
App.—Waco 1999, no pet.). Under the civil harm standard, an error requires reversal
only if it probably caused the rendition of an improper judgment or probably prevented
the appellant from properly presenting the case to this Court. See TEX. R. APP. P. 44.1(a).
In the Matter of S.G. Page 4
A harm analysis is required except in very limited circumstances. In re D.I.B., 988
S.W.2d 753, 758 (Tex. 2001). This is true even in cases where the error involved “defies
analysis by harmless error standards” or “the data is insufficient to conduct a
meaningful harmless error analysis.” In re D.I.B., 988 S.W.2d at 759.
This case presents particular difficulties in determining harm. The interplay
between the criminal and civil standards in juvenile cases is particularly problematic
here when determining which rule of appellate procedure governs the determination of
harm.1 Juvenile cases are most similar to criminal cases in their procedure; however,
juvenile appeals are to be governed by civil rules of appellate procedure as far as
practicable. In re D.I.B., 988 S.W.2d at 756. Also, there is little authority to guide our
decision in a case where the record is completely devoid of any reference of any kind to
a jury trial by anyone, including the trial court.
It is true that the failure to object to the trial court’s failure to give the required
explanations waives the ability to complain about the error for appeal; however, this
failure is a factor in our harm analysis. See Smith v. State, 223 S.W.3d 690, 696 (Tex.
App.—Texarkana 2007, no pet.) (defendant was aware of right to jury based on written
waiver in punishment phase of trial where waiver was marked out and judgment
recited jury was waived so error was harmless). See Johnson v. State, 72 S.W.3d 346, 349
(Tex. Crim. App. 2002) (where judgment recites jury trial waived, defendant is
presumed to be aware of right to jury trial absent showing otherwise based on
1 The criminal standard for nonconstitutional error is: “Any other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). If the error affects
substantial rights, then, it is not harmless. VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App.
2007).
In the Matter of S.G. Page 5
presumption of regularity of judgments). See also In re M.E.W., No. 01-93-01152-CV,
1995 Tex. App. LEXIS 458 at *5 & 6 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (not
designated for publication) (no harm from improper Section 51.09 waiver when
adjudication order did not include the offenses that served as the basis for the
complaint of improper waiver). See also VanNortrick v. State, 227 S.W.3d 706, 709, 714
(Tex. Crim. App. 2007) (burden of proof to establish harm does not rest on either party;
harmful error requires reversal when record is silent as to defendant’s immigration
status and no admonishments given regarding the effect of conviction and deportation).
In the trial before the court, the trial court’s only “explanation” required by Section
54.03(b) given to S.G. was “the charge is indecency with a child by contact.” The trial
court did offer to read the petition; however, the reading of the petition was waived by
counsel for S.G. The trial court never asked S.G. if he agreed to this waiver.
We also include in our inquiry the conduct of the bench trial itself. During the
bench trial, the trial court spent a significant amount of time questioning Dr. Aaron
Pierce, who was an expert testifying on behalf of S.G. The trial court’s questions sought
clarification of Dr. Pierce’s evaluations and opinions, and arguably could have resulted
in the alteration of Dr. Pierce’s opinions. While the interrogation of Dr. Pierce might not
constitute reversible error standing alone, it certainly would have been impermissible
for the trial court in a jury trial. See Morrison v. State, 845 S.W.2d 882, 886 n.10 (Tex.
Crim. App. 1992).
The trial court was under a duty to commence a trial by jury unless that right
was properly, affirmatively waived by the juvenile and his counsel. The trial court
In the Matter of S.G. Page 6
erred in conducting a bench trial with no affirmative waiver as required by Section
51.09. Further, the judgment makes no reference to a waiver of a jury trial. We hold
that the trial court’s error probably did result in the rendition of an improper judgment.
We sustain this issue.
Conclusion
We find that the record does not affirmatively establish that S.G. and his attorney
waived S.G.’s right to trial by jury as required by Texas Family Code Sections 51.09 and
54.03. We reverse and remand this cause to the trial court for a new trial. Because we
are remanding this cause for a new trial, we do not address S.G.’s other issues.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Reversed and Remanded
Opinion delivered and filed October 14, 2009
[CV06]
In the Matter of S.G. Page 7