Mаrty Houston LOVELL, Appellant, v. The STATE of Texas, Appellee.
No. 49963.
Court of Criminal Appeals of Texas.
July 23, 1975.
511
We hold that the negligence of the District‘s employee in operating its truck while acting within the scope of his employment was incidental to the maintenance activities and operations of the District. The plaintiff is entitled to collect, and the District is authorized to pay, the judgment from maintenance funds derived by the District from any source, including those heretofore or hereafter obtained from any maintenance tax which received voter approval. It follows that the District is entitled to make payments in subsequent fiscal years as provided in Section 11 of Article 6252-19, and that it is authorized in the future to purchase liability insurance from maintenance funds as provided in Section 9 of said Act.
For the reasons stated above, the judgment of the court of civil appeals is affirmed.
Ed Paynter, Dist. Atty. and Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State‘s Atty. and David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
GREEN, Commissioner.
This is an appeal from a conviction for injury to a child. The punishment, assessed by the jury, is 14 years.
The sufficiency of the evidence is not challenged.
In his first ground of error, appellant contends the trial court committed reversi
The record reflects that on February 10, 1974, the date the confession was made, appellant was a child, aged 16 years.1 On such dаte, Officer Jim W. Johnson of the Abilene Police Department received a call from a nurse at Hendrick Memorial Hospital. As a result of the call Officer Johnson went to the hospital where he spoke with Dr. Herman Schaffer, appellant and appellant‘s wife, then viewed the battered baby. Officer Johnson gave appellant his Miranda warnings at the hosрital, and drove him directly to the police station where he warned him again.2
At the police station, appellant, without the aid, advice or presence of counsel, signed a “waiver” of his rights and made a statement which was reduced to writing and introduced at the trial as State‘s Exhibit # 6.
During the trial and before allowing the statement into evidence, the trial court cоnducted a hearing, outside the presence of the jury, to determine the issue of the admissibility of appellant‘s confession. The evidence at the hearing reflected, and the court found, that appellant was duly advised of his constitutional and statutory rights, including the right to be represented by counsel, and that he knowingly and voluntarily waived those rights and made the confessiоn. No lawyer was present representing appellant, and at that time he was not represented by counsel, retained or appointed.
At the trial appellant objected to the admission of the confession in evidence on the ground that he was a child under seventeen years of age when he gave the confession, and was not represented by counsel as required by Title 3 of the Family Code, and that, consequently, his waiver of counsel was void and the confession was inadmissible. The objection was overruled, and the confession was admitted.
On appeal, appellant contends that his waiver of his rights, including the right to be represented by legal counsel, was void at its inception by virtue of
“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 this state or of the United States may be waived in proceedings under this title if:
“(1) the waiver is made by the child and the attorney for the child;
“(2) the child and the attorney waiving the right are informed and understand the right and the possible consequences of waiving it . . . .”
V.T.C.A., Family Code, Title III, Section 51.09(1), (2) .
We find no contrary intent exprеssed anywhere in Title III in regard to the waiver of right to silence and right to counsel.
Miranda teaches that a heavy burden rests upon the prosecution to prove that a person in custody “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U.S. at 475, 86 S. Ct. at 1628. The Court in Miranda3 relied upon Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), in which
Prior to the enаctment of the Family Code, a minor could waive his right to counsel before making an extrajudicial statement. Moreno v. State, Tex.Cr.App., 511 S.W.2d 273; Garza v. State, Tex.Cr.App., 469 S.W.2d 169; In re Garcia, 443 S.W.2d 594 (Tex.Civ.App.—El Paso, 1969).
Title III of the Family Code was enacted in 1973 with the stated purpose of assuring a fair hearing in which the constitutional and other legal rights of the parties are recognized and enforced.
The record reflects appellant “waived” his rights prior to the court‘s action in waiving its juvenile jurisdiction and transferring him to the appropriate court for criminal proceedings. The Family Code provides that, on transfer for criminal proceedings, the child shall be dealt with as an adult in accordance with the Texas Code of Criminal Prоcedure, 1965.
Nor does the court‘s transference revive the “waiver” executed by appellant. The Legislature deliberately chose the lan
Moreover, were we to construe Section 54.02(h) in the manner sought by the State, the State could henceforth circumvent Section 51.09 merely by having the child transferred to a criminal court. This would make the Family Code protections meaningless and run counter to the presumptions that, in enacting a statute, the entire statute is intended to be effective, a just and reasonable result is intended, and a result feasible of execution is intended. See
Since the Family Code itself will not permit waiver of the child‘s rights by implication, the confession is admissible only if
The Code Construction Act applies to the Family Code and
Pursuant to the Code Construction Act, supra, we hold Section 51.09 of the Texas Family Code prevails as an exception to
The State contends that appellant waived the error in the admission into evidence of the confession because, in attempting to show appellant was intoxicated оr insane at the time of the offense, appellant‘s counsel brought out the same testimony he alleged was error. The attempt at the insanity defense, even though logically inconsistent, did not, by itself, preclude denial of the allegations in the indictment.
In the cases cited by the State in support of its position, the evidence admitted elsewhere without objection is the same or sub
Appellant‘s confession is as follows:
“My name is Marty Houston Lovell, I am 16 years of age and I live at 1934 Burger, Abilene, Texas.
“Approx. 3 or 4 days ago I spanked my 7 week old son, Mathew Lovell, because he was crying.
“I can‘t remember the exact date or time. I hit him оn the butt about 3 times. I spanked him again the next day or so. I kept spanking him, I don‘t know why. I also hit him on the back yesterday.
“My wife got on to me and said she would leave me if I spanked him again, this was in the afternoon. Brenda (my wife) went over to Sandy Brown‘s house, 1958 Fannin, to call Jack Landrum and left him with me and he [M.H.L.] started crying and I hit him in the face. His nose started bleeding and he stopped breathing. My wife сame in and I told her he had stopped breathing and went to call the safety cruiser. She don‘t know about me hitting him. I didn‘t tel- her. I returned to the house and she told me to go call Dr. Shaffer and when I got back to the house they had taken him to the hospital.
“This is a true and correct statement given of my own free will and accord on this day Feb. 10, 1974.”
In the instant case, the statements which the State submits constitute waiver of appellant‘s error are as follows:
Officer Johnson testified without objection:
“Q Well, did he make any statement to you at that very time that at the time he hit this child in the face or whether or not he was under the influence of glue?
“A No, sir.
“Q He didn‘t make any statement at all?
“A He said he—at the time that I asked him was he high on the glue, the words I used, when he hit the child, he said, no, he wasn‘t.
“Q So, he told you that he was not high on glue at the time?
“A Right.
. . . . . .
“Q Now, Officer Jоhnson, I don‘t want to misstate this, but you have indicated previously that at the Police Station after this confession, State‘s Exhibit # 6, was given to you that in a conversation with this Defendant he stated that at the time he struck this child he was not under the influence of anything?
“A Yes, sir, he did.”
Appellant‘s counsel elicited from defense witnesses Dr. Rickman and Dr. Day:
“Q All right. Would you assume that Marty, at that point in time, would have any kind of rational con-control over his acts in what he did to the child?
“A Having gone that far, very likely not.
“Q Doctor, in your opinion do you have an opinion as to whether or not Marty Lovell would have done it had it not been for the glue?
“A My opinion is that it would have been far less likely. Of course, I can‘t state with certainty either way.
. . . . . .
“Q All right . . . what I‘m trying to get at . . . at the time the child was struck, is whether or not Marty was under the influenсe of drugs or not could . . . .”
Mr. Day in reading his report to the Juvenile Court testified as to statements appellant had made to him.
“He has one older brother, age twenty-six, and that he and his wife were sniffing glue at the time—sniffing glue and that he didn‘t know what he was doing when—that he was another person when he spanked his baby.”
On direct examination, Dr. Day testified:
“Q Doctor, do you have an opinion as to whether or not, if you assumе that he had been sniffing glue at the time—prior to the time that he struck the child, whether or not the act of sniffing glue, or the effect of sniffing the glue would lessen what control he did have?
“A Yes.”
The above statements are not tantamount to testimony of the same facts and details found in the confession. It should be clear that the general waiver rule is based on the introduction of other evidence of the same facts without objection and not merely the introduction of some evidence on the same subject. Here the questions and testimony are directed to the appellant‘s state of mind, his use or non-use of glue or drugs, a fact not mentioned anywhere in the confession. The questions for the most part would admit appellant struck the child, but the confession relates several instances of the child being struck over a three day period. It was appellant‘s attempt to meet, explain and destroy the erroneously admitted evidence to rebut its incriminating effect. Under such circumstances there is no waiver of objection to the erroneously admitted evidence. Nicholas v. State, supra; Alvarez v. State, supra.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.
DOUGLAS, Judge (concurring).
The majority is correct in thаt part of the opinion which holds that the confession of the juvenile without the aid of counsel is inadmissible. Also correct is that part of the opinion which shows testimony elicited by appellant‘s counsel is not tantamount to the same facts and details found in the confession. The rest of the opinion about introducing evidence to combat illegally introduced еvidence is unnecessary to the opinion and is dictum.
ROBERTS, Judge (concurring).
I concur in the opinion of the Court which I reluctantly agree correctly states the law applicable to this case. I only wish to add a few comments on the status of married juveniles in Texas.
In the case at bar, appellant was protected as a “child” under
“Except as expressly provided by statute or by the constitution, every person who has been married in accordance with the law of this state, regardless of age, has the power and capacity of an adult . . . .” (Emphasis added)
This provision has been given broad effect. See, for example, Ex Parte Williams, 420 S.W.2d 135 (Tex.1967) construing
“. . . all persons under twenty-one years of age who have never been married, except persons under that age whose disabilities have been removed generally, except as to the right to vote, in accordance with the laws of this state.” (Emphasis added)
Pittman v. Time Securities, 301 S.W.2d 521 (Tex.Civ.App., San Antonio, 1957, no writ history) held that Sec. 3(t), supra, had general application and that males under twenty-one who were married were adults for all purposes, not just for purposes of the Probate Code. Pittman was followed by Ward v. Lavy, 314 S.W.2d 381 (Tex.Civ.App., Eastland, 1958, no writ) and Travelers Indemnity Co. v. Mattox, 345 S.W.2d 290 (Tex.Civ.App., Texarkana, 1961, err. ref‘d, n. r. e.).
“Persons who are married, regardless of their age, have the status of adults.” Op.Atty.Gen., 1973, H-85 (rendered August 13, 1973).
Texas thus has a broad scheme of statutory and decisional law emanсipating all married “children” under the age of eighteen years, except as to the right to vote which was controlled by
I note that the 64th Legislature has wisely moved to mitigate the more extreme aspects of Sec. 51.09. It recently enacted S.B. 247 which now permits a “child” to waive his Fifth Amendment rights and confess in the absence of a lawyer. Except for a few other minor changes, S.B. 247 leaves the unique effect of Sec. 51.09 intact. And, of course, Sec. 51.09 remains as an exception to the rule that marriage emancipates a “child.”
For these reasons, I concur.
Ricky Scot CRANFIL, Appellant, v. The STATE of Texas, Appellee.
No. 49922.
Court of Criminal Appeals of Texas.
July 16, 1975.