J.M., Matter Of

930 S.W.2d 820, 1996 Tex. App. LEXIS 3925, 1996 WL 493046
Court of Appeals of Texas·Decided August 29, 1996·No. No. 13-95-269-CV·Published·Cited by 2 cases

Opinion

OPINION

YÁÑEZ, Justice.

J.M., Jr., a minor, brings this appeal from a judgment entered adjudicating him a juve[821]*821nile delinquent. Appellant was sentenced to commitment at the Texas Youth Commission by the juvenile court for an indeterminate period of time (not to exceed his 21st birthday), upon the recommendation of the referee who presided at his adjudication and detention hearings. By a single point of error, appellant contends that the trial court committed reversible error at his adjudication hearing because it did not fully admonish him of his rights as required by law. We affirm.

Appellant was charged with the offense of aggravated robbery after he and two other co-defendants allegedly confronted a stranger and, while exhibiting a knife, demanded the person hand over his jewelry. He was arrested shortly after the commission of the offense.

Appellant complains on appeal that he was not afforded his rights under section 54.03(b) of the Texas Family Code, which details the admonishments which must be provided to juveniles at the commencement of any adjudication hearing. Specifically, appellant contends that the trial court did not explain the nature of the charge against him, and it made no attempt to ascertain at any time whether he understood the charge against him.

Section 54.03(b) of the Family Code reads:

(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:
1) the allegations made against the child;
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;
3) the child’s privilege against self-incrimination;
4) the child’s right to trial and confrontation of witnesses;
5) the child’s right to representation by an attorney if he is not already represented; and
6) the child’s right to trial by jury.

Tex.Fam.Codb Ann. § 54.03(b) (Vernon Supp. 1996).

Under ordinary circumstances, these admonitions are mandatory, and the failure of the court to warn the child as required constitutes fundamental error. In re R.W., 884 S.W.2d 502, 502 (Tex.App.— Corpus Christi 1994, writ denied); In re O.L., 834 S.W.2d 415, 420 (Tex.App.—Corpus Christi 1992, no writ); In re T.F., 877 S.W.2d 81, 82 (Tex.App.—Houston [1st Dist.] 1994, no writ); I.G. v. State, 727 S.W.2d 96, 99 (Tex.App.—San Antonio 1987, no writ). Contra In re R.L.H., 771 S.W.2d 697 (Tex. App.—Austin 1989, writ denied). The purpose of the admonishments mandated by section 54.03(b) is to impart information necessary for a minimal understanding of the procedures, purpose, and gravity of an adjudication hearing. In re J.D.C., 917 S.W.2d 385, 386 (Tex.App.—Houston [14th Dist.] 1996, n.w.h.). A court which fails to explain the allegations contained in the petition in plain terms, by stating the offense and its constituent elements, commits error. In re O.L., 834 S.W.2d at 421.

However, the Code also provides that certain rights afforded to the juvenile may be waived. An adjudication hearing may be held before a referee instead of a juvenile court judge if the child and his attorney waive the child’s right to a hearing before a juvenile court judge. Tex.Fam.Code Ann. § 54.10(a)(2) (Vernon Supp.1996). Moreover, the Code 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,” provided certain conditions precedent to the waiver are met.1 We construe this section to allow for the affirmative waiver of the ad[822]*822monishments provided for in section 54.08(b). See I.G. v. State, 727 S.W.2d at 98 n. 1 (suggesting that the only way for juvenile to waive admonishments would be through valid waiver under section 51.09).

We have reviewed the transcript of this cause and concluded that appellant waived his right to a hearing before a juvenile court judge,2 and also waived his entitlement to an admonishment of certain rights listed in section 54.03(b). On the same date as the adjudication hearing, appellant filed with the court a document titled “Juvenile’s Waiver of Rights,” wherein he waived the following rights:

Waiver of Hearing by District Judge: I understand my right to a hearing before the Juvenile Court Judge or a substitute judge. I hereby waive my right to a hearing before said judge and agree that my case be heard by an appointed referee.
Waiver of Reading of Entire Adjudication Petition: I am acquainted with and fully understand the nature of the charge against me as set out in the adjudication petition in this cause. I hereby waive any right to have the petition read to me in its entirety.

Appellant’s handwritten initials appear next to each specific waiver,3 and his signature appears at the bottom of the document. Also attached to the document is a signed statement by appellant’s attorney, Constance Luedicke, verifying that she had read and explained appellant’s rights to him, that appellant understood those rights, and that appellant freely and voluntarily waived those rights with Luedicke’s consent and approval. This document was a valid waiver under section 51.09(a).

The transcript also contains a document entitled “Court’s Written Admonishments to Juvenile,” which names the charged offense, explains the nature and consequences of the hearing, and appellant’s right to remain silent, to a jury trial, to confront witnesses, to an attorney, and finally his right to appeal. This document is signed by juvenile, his attorney,4 and the referee.

At the adjudication hearing, also attended by appellant’s parents, the record reflects that the referee called appellant’s attention to the waiver document, verifying that appellant had in fact executed it. Nonetheless, the referee proceeded to admonish appellant in accordance with section 54.03(b). He explained the range of punishment available upon adjudication of delinquency. The referee explained that, because appellant was charged with an offense classified as a felony under the Penal Code, the court’s finding in the matter could be used against him in the future. He explained to appellant that he had the right to refuse to make any statements, the right to a jury, the right to cross-examine witnesses, and the right to be represented by an attorney. However, instead of explaining the allegations against appellant, the referee again referred to the document.

Court: Okay.

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J.M., Matter Of, 930 S.W.2d 820, 1996 Tex. App. LEXIS 3925, 1996 WL 493046 (Tex. Ct. App. 1996).

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