In re S.J.

940 S.W.2d 332, 1997 Tex. App. LEXIS 729
CourtCourt of Appeals of Texas
DecidedFebruary 12, 1997
DocketNo. 04-96-00282-CV
StatusPublished
Cited by18 cases

This text of 940 S.W.2d 332 (In re S.J.) 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 S.J., 940 S.W.2d 332, 1997 Tex. App. LEXIS 729 (Tex. Ct. App. 1997).

Opinion

OPINION

HARDBERGER, Chief Justice.

Introduction

This is an appeal from an order modifying the probation of the appellant child, S.J. S.J. was initially placed on probation for the offense of burglary of a vehicle. The State claimed that S.J. violated his probation by committing the offense of aggravated robbery and moved to modify S.J.’s probation. Following a bench trial, the court found that S.J. did violate his probation and committed him to the Texas Youth Commission. S.J. appeals from the Amended Order of Commitment entered on December 18,1995.

In four points of error, S.J. claims that (1) the trial court erred by failing to admonish him pursuant to section 54.03(b)(2) of the Texas Family Code; (2) the evidence is factually insufficient to support a finding that he violated the conditions of his probation; (3) the trial court erred in conversing with the State during the State’s closing argument; and (4) the trial court erred by refusing to correct the Amended Order of Commitment by deleting unnecessary language. We affirm the judgment as reformed.

Admonishments

In his first point of error, S.J. claims that the trial court erred by failing to admonish him pursuant to section 54.03(b)(2) of the Texas Family Code. Section 54.03(b)(2) provides:

(b) At the beginning of the adjudication hearing, the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem:
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(2) the nature and possible consequences of the proceedings, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding.

Tex.Fam.Codb AnN. § 54.03(b)(2) (Vernon 1996). S.J. claims that the trial judge did not comply with this provision because nothing in the record shows that S.J. was aware of the “nature and possible consequences of the proceedings.” S.J. concedes that there is no requirement that the admonishments required for acceptance of guilty pleas be given at a hearing on a motion to modify, because the original admonitions from the adjudication hearing carry over into the disposition. See Tex.Fam.Code Ann. § 54.03(b) (requiring admonishments only in adjudication hearings). However, S.J. claims that the record is devoid of any admonitions given at any point in the proceedings against him.

S.J.’s complaints regarding the lack of admonitions at the prior adjudication proceeding constitute a collateral attack on the final judgment of adjudication issued previously by the trial court. S.J., in this appeal of a probation revocation, asks this court to render the underlying adjudication void based on the trial court’s failure to admonish S.J. in the original adjudication proceeding. Nevertheless, this court has jurisdiction to consider S.J.’s complaints regarding the lack of admonishments in the adjudication proceeding because a total failure to admonish a child accused of delinquent conduct is fundamental error, I.G. v. State, 727 S.W.2d 96, 99 (Tex.App.—San Antonio 1987, no writ), and an original conviction may be collaterally attacked on appeal from an order revoking probation if fundamental error was committed. Huggins v. State, 544 S.W.2d 147, 148 (Tex.Crim.App.1976) (citing Ramirez v. State, 486 S.W.2d 373 (Tex.Crim.App.1972)).

Our review of this point of error is complicated, though, by the incomplete record presented in this appeal. A record was made at the hearing on the motion to modify, and it does not reflect that any admonishments were given. However, it appears that no record was made at the prior proceedings, although the record is contradictory. The record first reflects that S.J. waived his right to have the adjudication and disposition pro[335]*335ceedings recorded. However, the record also names the court reporter scheduled to record the disposition hearing. If no record was made of the initial proceedings, it is impossible to determine if admonishments were given previously.

The burden is on the appellant to ensure that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d). A presumption exists as to the regularity of conviction proceedings and the resulting judgment, absent a showing to the contrary. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex.Crim.App.1986). In keeping with this presumption, we would normally be required to presume in this case that admonitions were given in the adjudication proceedings because the record fails to demonstrate that none were given. S.J. argues, however, that the presumption should not arise in this case because the lack of a record at the prior proceedings constitutes error pursuant to section 54.09 of the Texas Family Code, which provides that “[a]ll judicial proceedings under this chapter except detention hearings shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means.” See Tex.Fam.Code Ann. § 54.09 (emphasis added). This assertion in itself, though, constitutes a collateral attack on the final judgment rendered in the adjudication proceeding. Accordingly, S.J.’s complaint regarding the lack of a record in the adjudication proceedings is subject to our review in this appeal of a probation revocation only if the trial court’s failure to have the proceedings recorded would constitute fundamental error. See Huggins, 544 S.W.2d at 148.

We need not decide whether a trial court’s failure to have the adjudication proceedings recorded constitutes fundamental error, however, because even assuming such a failure is fundamental error, no such error occurred in this case. The appellant in the case before us waived his right to have the adjudication and disposition proceedings recorded. S.J., joined by Ms attorney, executed a “Waiver of Right to Have Court Proceedings Recorded.” The Texas Family Code expressly provides for the waiver by juveniles of the rights granted them under the Code:

(a) 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 tMs state or the Umted States may be waived in proceed-Mgs under tMs title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waivmg 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 m writmg or in court proceedings that are recorded.

Tex.Fam.Code Ann. § 51.09(a)(l)-(4). The waiver signed by S.J. complied with the provisions of this section.

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Matter of SJ
940 S.W.2d 332 (Court of Appeals of Texas, 1997)

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Bluebook (online)
940 S.W.2d 332, 1997 Tex. App. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sj-texapp-1997.