Landry v. State

504 S.W.2d 580, 1973 Tex. App. LEXIS 2037

• Court: Court of Appeals of Texas
• Decided: December 13, 1973
• Docket: 7529
• Status: Published

Opinions

DIES, Chief Justice.

Daniel Landry, a juvenile, was charged with carrying a prohibited weapon, a pistol, on March 26, 1973. On June 27, 1973, the Juvenile Court of Jefferson County committed him to the care, custody, and control of the Texas Youth Council, as authorized by Art. 5143d, Vernon’s Ann.Civ. St. From this order of commitment, the juvenile brings this appeal.

Among his points, the juvenile complains there was no sworn testimony at his trial proving the offense of carrying a prohibited weapon. We sustain this point and remand the cause for a new trial.

The following transpired at trial:

“BY THE COURT:

“Okay, you may step down. All right, now, [court appointed counsel], have you explained to Daniel his rights in this matter, that he doesn’t have to say anything in Court, today; that he may have a jury to determine whether or not he was guilty of carrying this prohibited weapon and to determine whether or not he was a juvenile delinquent?

“[COURT APPOINTED COUNSEL]:

“Judge, I’ve explained this quite fully to Daniel, and to Mrs. Landry. They take no issue of the fact, whatsoever, that Daniel did have in his possession a pistol. Uh, it’s our understanding that the probation department has recommended in this case that the child be sent to the Texas Youth Council. He does not feel that is justified in this case; Mrs. Landry doesn’t feel like it’s justified. Daniel, himself says that he did not know it was against the law to carry a pistol around. He found the pistol in the house, in his home. It belonged to someone that was visiting in the home and he picked it up and carried it out. And—

“BY THE COURT:

“All right, . . . let’s go ahead and take the adjudication stage and when we get to the disposition, we’ll certainly be glad to hear more.

“[COURT APPOINTED COUNSEL]:

“All right.

“BY THE COURT:

“Now, he does wish to affirm the allegations in the petition ?

“[COURT APPOINTED COUNSEL]:

“Yes, sir, Judge.

“BY THE COURT:

“By way of explanation, do you think —do you have anything you’d like to tell the Court, Daniel, at this time, by way of explanation of why you had this pistol?

“BY THE JUVENILE:

“A I thought it was a blow gun—

“Q You thought it was a what ?

“A I thought it was a cap pistol.

“Q A cap pistol? Is that what you said?

“A I thought it was a blow gun.

“Q A blow gun?

“A Yes, sir.”

In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), it was held that juvenile delinquency proceedings which may lead to commitment in a state institution must measure up to the essentials of due process and fair treatment. Specifically required are:

“(1) [Wjritten notice of the specific charge or factual allegations, given to the child and his parents or guardian sufficiently in advance of the hearing to permit preparation;

“(2) [Notification to the child and his parents of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child;

“(3) [Application of the constitutional privilege against self-incrimination; and

“(4) [A]bsent a valid confession, a determination of delinquency and an order of commitment based only on sworn testimony subjected to the opportunity for cross-examination in accordance with constitutional requirements.”

See Bihms v. State, 491 S.W.2d 740 (Tex. Civ.App., Beaumont, 1973, no writ).

Here there is no sworn testimony to prove the offense of carrying a prohibited weapon as required by Gault, supra. These trials are not informal hearings, and the only way an appellate court can review the evidence to determine if the juvenile has been accorded his constitutional rights, is for the record to reveal completely the state’s case.

The order of commitment is reversed and a new trial ordered. This cause was tried on June 27, 1973, before the effective date of Family Code, Title 3, relating to Delinquent Children and Children in Need of Supervision. Acts 63rd Leg., 1973, Ch. 544, p. 1460, effective September 1, 1973. The holding in the majority opinion and the views expressed in the concurring opinion were made in construing the statutes in effect at the time of the hearing and were not made with respect to the new statute which did not then govern the rights of the minor.

Reversed and remanded.