In Re EF

986 S.W.2d 806, 1999 Tex. App. LEXIS 1225, 1999 WL 92270
CourtCourt of Appeals of Texas
DecidedFebruary 25, 1999
Docket03-97-00803-CV
StatusPublished

This text of 986 S.W.2d 806 (In Re EF) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re EF, 986 S.W.2d 806, 1999 Tex. App. LEXIS 1225, 1999 WL 92270 (Tex. Ct. App. 1999).

Opinion

986 S.W.2d 806 (1999)

In the Matter of E. F.

No. 03-97-00803-CV.

Court of Appeals of Texas, Austin.

February 25, 1999.

*807 Linda Icenhauer-Ramirez, Icenhauer-Ramirez & Hubner, P.C., Austin, for appellant.

Ronald Earle, Dist. Atty., Karyn D. Scott, Asst. Dist. Atty., Austin, for appellee.

Before Justices JONES, KIDD and YEAKEL.

LEE YEAKEL, Justice.

A jury found that appellant, a juvenile, did engage in delinquent conduct by committing the offense of capital murder. See Tex. Fam. Code Ann. § 54.03 (West 1996); Tex. Penal Code Ann. § 19.03 (West 1994). Appellant waived his right to have the jury determine his disposition, and the juvenile court assessed a 17-year determinate sentence. In two points of error, appellant argues that the juvenile court erred in failing to properly admonish him pursuant to section 54.03(b)(2) of the Texas Family Code[1] and in failing to properly instruct the jury regarding accomplice witness testimony. We will affirm the juvenile court's judgment.

BACKGROUND

On the evening of March 30, 1997, several juvenile boys including appellant, then 13 years of age, and two men gathered together at a convenience store. The two adults, David Carter and Christopher Reed, began to talk about robbing someone. Subsequently, the group noticed Jesus Manzanares enter the store. J.L., one of the juveniles, determined that Manzanares had money on his person. Carter announced that he was going to rob Manzanares and asked appellant if he "wanted to jack."[2] Appellant replied, "Yeah."

The group watched as Manzanares walked about the store. Manzanares left the store for a moment. When Manzanares reentered the store shortly thereafter, appellant reported this information to Carter. C.S., another juvenile, knew where Manzanares lived and told Carter which direction Manzanares would be headed. Carter then asked appellant to walk with him, and appellant followed Carter and Reed down the road. Manzanares left the store and walked down a different street.

When the three encountered Manzanares, Carter pointed a gun at Manzanares and demanded money. Manzanares repeatedly said the word "no" as he backed up toward appellant. Carter shot Manzanares. The group then fled, and appellant ran to Reed's house where he joined J.L. and C.S. Manzanares died of the gunshot wound.

The police arrested several juveniles, including appellant, J.L. and C.S., and charged them with capital murder.[3] At appellant's trial, J.L. and C.S. testified for the State.[4] The jury found that appellant engaged in delinquent conduct because he committed *808 capital murder as a co-conspirator. Appellant waived his right to jury sentencing, and the juvenile court assessed a 17-year determinate sentence.

DISCUSSION

Failure to admonish

In point of error one, appellant argues that the juvenile court erred in failing to properly admonish him. Specifically, appellant contends that the juvenile court judge failed to follow the requirements of section 54.03 of the Texas Family Code because the court did not advise appellant that: (1) a juvenile court adjudication could be admissible during the punishment phase of any subsequent adult prosecution, and (2) a possible punishment disposition was probation until the age of 18. See Tex. Fam.Code Ann. § 54.03 (West 1996).[5] However, appellant did not raise this issue at trial.

In order to properly preserve a complaint for appeal, a party must make the complaint to the trial court by a timely request, objection, or motion. See Tex.R.App. P. 33.1(a). To circumvent this procedural requirement, appellant argues that the court's failure to follow section 54.03(b) is fundamental error that can be considered at any point in the proceeding even if the error was not properly preserved.

In Pirtle v. Gregory, 629 S.W.2d 919 (Tex. 1982), the supreme court discussed the history of fundamental or unassigned error in Texas jurisprudence:

"Fundamental error" in civil actions arose in Texas under old statutes that stated that cases on appeal could be reviewed "on an error in law either assigned or apparent on the face on the record." 2 Gammel, Laws of Texas 1562 (1898); 3 Gammel, Laws of Texas 393 (1898). The practice of appellate courts in considering unassigned error was the source of much mischief, and when the Texas Supreme Court promulgated its Rules of Civil Procedure in 1941, old article 1837 was repealed. Since that time, there has been no rule or statute that authorizes appellate consideration of errors for which there was no trial predicate that complained of the error. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 984 (1947) (Alexander, J., concurring). Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas. State Bar of Texas, Appellate Procedure in Texas § 11.5 (2d ed.1979).

Pirtle, 629 S.W.2d at 920. Since Pirtle, the supreme court has consistently adhered to the rule that fundamental error only survives where the court lacks jurisdiction or the public interest is directly and adversely affected. See Central Educ. Agency v. Burke, 711 S.W.2d 7, 8 (Tex.1986); Texas Indus. Traffic League v. Railroad Comm'n, 633 S.W.2d 821, 823 (Tex.1982); Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982); see also Estate of Pollack v. McMurrey, 858 S.W.2d 388, 394 (Tex. 1993) (Gonzalez, J. concurring).

As jurisdiction is not at issue here, we must examine the asserted error's effect on the public interest. Appellant suggests that the public interest is directly and adversely affected where the juvenile court fails to properly admonish the juvenile and directs *809 us to several instances where courts of appeals have found such failure to be fundamental error. These courts have opined that admonishments under section 54.03 of the Family Code are mandatory and failure to properly apply them constitutes fundamental error. See In re T.F., 877 S.W.2d 81, 81-82 (Tex.App.—Houston [1st Dist.] 1994, no writ); In re R.W., 884 S.W.2d 502, 502 (Tex. App.—Corpus Christi 1994, writ denied); In re L.T., 848 S.W.2d 769, 770 (Tex.App.— Corpus Christi 1993, no writ); In re O.L., 834 S.W.2d 415, 420 (Tex.App.—Corpus Christi 1992, no writ); In re G.K.G. v. State,

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Related

Central Education Agency v. Burke
711 S.W.2d 7 (Texas Supreme Court, 1986)
Texas Industrial Traffic League v. Railroad Commission of Texas
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McCauley v. Consolidated Underwriters
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Ashford v. State
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Almanza v. State
686 S.W.2d 157 (Court of Criminal Appeals of Texas, 1985)
Cox v. Johnson
638 S.W.2d 867 (Texas Supreme Court, 1982)
Harris v. State
645 S.W.2d 447 (Court of Criminal Appeals of Texas, 1983)
Pirtle v. Gregory
629 S.W.2d 919 (Texas Supreme Court, 1982)
Holladay v. State
709 S.W.2d 194 (Court of Criminal Appeals of Texas, 1986)
Holland v. Taylor
270 S.W.2d 219 (Texas Supreme Court, 1954)
Ramsey v. Dunlop
205 S.W.2d 979 (Texas Supreme Court, 1947)
Ware v. State
475 S.W.2d 930 (Court of Criminal Appeals of Texas, 1972)
I.G. v. State
727 S.W.2d 96 (Court of Appeals of Texas, 1987)
G.K.G. v. State
730 S.W.2d 182 (Court of Appeals of Texas, 1987)
R.L.H., Matter Of
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In re O.L.
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986 S.W.2d 806, 1999 Tex. App. LEXIS 1225, 1999 WL 92270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ef-texapp-1999.