V.C.H. v. State

COHEN, Justice,

dissenting.

I agree with the conclusion of the majority opinion that the appellant has a right to a jury trial on the issue of the competency to proceed to a hearing on discretionary transfer to the District Court, pursuant to Family Code § 55.04; and that the appellant had a right to waive a jury trial at such a competency hearing, pursuant to Family Code § 51.09. I further agree with the majority’s conclusion that the appellant’s right to waive the jury trial belonged to him alone; the State had no right to a jury trial and no right to prevent the appellant from waiving a jury trial and choosing to be tried before the court.

I vigorously disagree with the majority’s conclusion that the appellant never expressed a desire to waive a jury trial. His attorney repeatedly informed the court that the appellant wished to waive a jury trial and have a non-jury trial. The attorney repeatedly informed the court that all that was necessary to accomplish this was to follow the procedure in Family Code § 51.-09. He asked the judge to solicit the waiver from the appellant and to deliver the admonishment contemplated by § 51.09. Nevertheless, the judge refused to do so and forced a jury trial upon the appellant who had a statutory right to waive it and vigorously attempted to waive it in order to secure his statutory right to a court trial. It is true that the appellant, a juvenile, never personally expressed a desire to waive a jury trial. However, he did do everything possible and reasonable to do so. Certainly, the appellant personally had no power to force the judge to admonish him and his attorney, as required by Family Code § 51.09(a)(2). A juvenile has a right to be represented by counsel and he is not required to represent himself or to stand up and personally repeat everything stated by his attorney. The dialogue between appellant’s attorney and the court is long, clear, and specific. A holding that the appellant was not entitled to waive a jury trial in this case because he never personally expressed a desire to do so is tantamount to forcing a juvenile to represent himself, thus depriving him of the right to counsel.

I further disagree with the conclusion of the majority opinion that “the appellant has been afforded a jury trial as required by statute.” There is no statute requiring a jury trial, and the appellant was denied the full protection of § 51.09 which provides that, “... 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.... ”

The majority opinion seems to imply that any error made in denying the appellant his right to a non-jury trial was harmless because he had a fair trial by jury. I cannot conclude that the denial of such a right was harmless. The legislature apparently believed that the right had significant value and expressed this conviction by giving the juvenile the exclusive right to make such a choice. In my opinion, the first point of error should be sustained.

I concur in the majority’s overruling of the appellant’s third point of error on the merits, but believe that the merits should be the sole basis for such action, rather than a holding that the objection was waived, in view of the appellant’s vigorous objection. See statement of facts, vol. 3, pp. 30-67, 73-74.

I concur in overruling the fourth point of error on the merits because of the holding in A.D.P. v. State, 646 S.W.2d 568 (Tex.App.—Houston [1st Dist.] 1982). I would not hold that the error was waived, since the objection on appeal is the same as that made at trial. See statement of facts, vol. 3, p. 18.