REM v. StateREM v. State
- Reporters:
- ,
- Before:
- Cadena
Appellant here assails the order of the juvenile court of Bexar County certifying him for trial as an adult and transferring the case to the criminal district court.
Appellant was born on April 17, 1957. On April 19, 1974, when appellant was 17 years of age, a petition seeking a declaration that appellant was a delinquent child was filed by the district attorney. The petition alleged that on April 8, 1974, at which time appellant was under the age of 17, appellant “intentionally and knowingly caused the death of Leonard G. Sella by shooting the said Leonard G. Sella with a pistol.” The petition alleged that the crime charged was a felony under
On April 19, 1974, Hon. James E. Barlow, sitting as juvenile judge, entered an order that Richard Moreno “make a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances and the circumstances of the alleged offense and that said report be filed in the papers of this cause.” The order recited that appellant was above the age of 15 at the time of the commission of the alleged felony, and that the order was entered because it appeared to the court that “because of the seriousness of the offense and the background of the offender, the welfare of the community may require Criminal Proceeding;....”
On April 22, 1974, appellant filed a “motion in limine” alleging that the order for diagnostic study constituted “a deprivation of the rights of the child under the” federal and state constitutions. The motion alleged
On May 7, 1974, appellant‘s counsel, after alleging that appellant was in custody against his will on a charge of murder, sought an order requiring that appellant be questioned only in the presence of his attorney. The motion recited that counsel had instructed appellant to “speak to no one.”
The docket of the juvenile court reflects that on June 7, 1974, a hearing was held in the judge‘s chambers for the purpose of determining whether appellant “would voluntarily comply with Judge James Barlow‘s order to submit himself to a `complete diagnostic study, social evaluation and full investigation of the child.” The docket entry recites: “Diagnostic study waived by Defendant.” This entry states that a court reporter and appellant‘s attorney were present.
The “transfer” hearing was held on August 12, 1974. At the outset, the court instructed appellant that he had the right to remain silent and to be confronted by the witnesses against him. The court then inquired whether appellant had been asked to subject himself to a diagnostic study and social evaluation and had “failed to do so.” Appellant answered in the affirmative. The district attorney and counsel for appellant then entered into a stipulation that the report of the medical examiner concerning the cause of death of the alleged victim could be admitted in evidence. After such report had been marked as an exhibit and received as evidence, appellant‘s counsel objected to proceeding with the hearing in the absence of “a social evaluation, a diagnostic study, and a full investigation of this child....” Counsel stated that he had “steadfastly refused to let the defendant, in a murder case, ... answer any questions or say anything about it, but there is nothing contained in the law that says a diagnostic study has to be made from the defendant himself .... The law is clear that there must be a diagnostic study and there is none.” The State replied that counsel for appellant had “respectfully submitted that his client should not be forced into giving any psychological and psychiatric information to anyone” and that, therefore, the court had ruled on June 7, 1974, that appellant had waived his right to a diagnostic study.
After appellant‘s counsel pointed out the procedure established by law for waiver of his rights by a child, the trial judge announced that appellant‘s objection was overruled.
The court, after hearing evidence, entered an order waiving the jurisdiction of the juvenile court, certifying appellant for trial as an adult, and transferring the case to a criminal district court of Bexar County. This order recites, among other things:
1. Prior to the hearing, the court had ordered and obtained a social evaluation and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
2. Prior to the hearing, the court had ordered a diagnostic study of the child, “but said study was not obtained as counsel... objected to the order and instructed the child not to cooperate in obtaining the diagnostic study.”
3. Appellant “is of sufficient sophistication and maturity to have intellingently, knowingly and voluntarily waived all constitutional and statutory rights heretofore waived by” him.
By his first, second and fifth points appellant asserts that the trial court erred in ordering him tried as an adult without having obtained a diagnostic study, social evaluation, and investigation of the child, his circumstances and the circumstances of the alleged offense.
It is clear that a waiver may be effective only if concurred in by both the child and his attorney. The “motion in limine” objecting to an order complying with the provisions of
Nor do the events at the “transfer” hearing reflect an effective waiver under
We must, then, consider whether the child‘s refusal, on the advice of his attorney, to answer questions without the presence of his attorney, constituted an effective waiver. As the court instructed appellant, he had an absolute right to remain silent. The state‘s contention amounts to no more than an assertion that by claiming a constitutional right appellant, despite the clear language embodied in
Absent a showing of compliance with the mandatory requirements of
Since the record before us establishes that, during the pendency of this appeal, appellant has reached the age of 18 and is no longer subject to the jurisdiction of the juvenile court, we must consider the proper order to be entered in this case. If this loss of jurisdiction in the court a quo makes the case moot, then under established Texas procedure, the proper order is one dismissing all proceedings pending in the juvenile court. However, under the rule announced in Hight v. State, 483 S.W.2d 256 (Tex. 1972), the mere fact that appellant has reached age 18 has nothing to do with whether the case is moot. As the Supreme Court said in Hight, the loss of jurisdiction by the juvenile court “only prevents a remand” to the juvenile court if the order of transfer is held to be invalid. 483 S.W.2d at 257. None of the facts relied on by the Supreme Court in Hight as justifying a holding of mootness are present in this case.
The proper order, therefore, is one vacating the order of the juvenile court waiving jurisdiction and transferring appellant‘s case to a criminal district court for trial of appellant as an adult.
The judgment of the trial court is vacated.
MOTION FOR REHEARING
We adhere to our original opinion that appellant did not waive the right he is here asserting. We merely add, at this point, that there is nothing in the record to suggest compliance with the statutory requirement that, in order for a waiver to be effective, it is necessary that the child and the attorney waiving the right be informed of and understand the right and the possible consequences of waiving it.
In our original opinion, we merely vacated the order waiving the juvenile court‘s jurisdiction and transferring appellant to criminal district court for trial as an adult, without remanding the cause to juvenile court for the purpose of determining whether he should be prosecuted as an adult. This refusal to remand was based on the fact that appellant had reached his 18th birthday and that therefore, the juvenile court had lost jurisdiction. Our conclusion that appellant‘s age prevented a remand to juvenile court was based on the opinion of the Texas Supreme Court in Hight v. State, 483 S.W.2d 256 (Tex.1972). The problem relating to the proper disposition of the case was disposed of in rather summary fashion by merely referring to the Hight holding. We are now convinced that the problem merits further consideration.
Prior to 1965 the statute,
A provision for waiver of juvenile court jurisdiction and certification of a child offender for prosecution as an adult was first added to
Even after the 1967 amendment to Sec. 6 of former
At the time that cases such as Hultin, Peterson and Whitaker were decided, our Penal Code made the criminal jurisdiction of the district court dependent on age at the time of trial, rather than at the time of the commission of the offense.
However, the same session of the legislature which adopted Title III of the Family Code, with its accompanying amendment of
This inconsistency between Title III of the Family Code and
The 1973 Penal Code passed each house of the legislatures and was signed by the governor before Title III of the Family Code. However, Title III of the Family Code, with its conforming amendment of
It must be borne in mind that the Penal Code adopted in 1973 repealed
We conclude that the adoption of Title III of the Family Code in 1973, including the conforming amendment of
The problem which we face here, due to the fact that appellant has reached his 18th birthday and is, according to the literal language of the Family Code, no longer subject to juvenile court jurisdiction, was faced by the Supreme Court of the United States in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). After pointing out that the hearing relating to waiver of juvenile court jurisdiction is a “critically important” proceeding determining vitally important rights of the juvenile (383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d at 94), the Court noted that the petitioner had reached age 21 and was no longer amenable to the jurisdiction of the juvenile court. The petitioner argued that the only proper order was the vacation of the orders in the inferior courts, but the Court said it did not consider it appropriate to grant such “drastic” relief and, instead, remanded the case to the district court for a de novo hearing on the question of jurisdiction. 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d at 97.
Again, in Kemplen v. State of Maryland, 428 F.2d 169 (4 Cir. 1970), the problem was the proper disposition, by the appellate court, of a case in which the minor had become of age at the time the waiver proceedings were held to be invalid. It was decided that the proper remedy was the “... reconstruction in the Maryland courts, or failing that in the United States District Court, of the circumstances bearing on the waiver question and a determination nunc pro tunc or what the juvenile court judge would probably have done in light of all the information then available that might reasonably have been proffered by competent counsel.” 428 F.2d at 178.
The 1975 amendment to
It cannot reasonably be concluded that the legislature intended that where the state has acted diligently and has, by the timely filing of a petition for waiver of juvenile court jurisdiction, thus affording the child offender all of the rights to which he is entitled, the offender must go free because, by the time an appellate court determines that the transfer order is, for some reason, invalid, he has become of age. This result was the one described by the Supreme Court of the United States in Kent as “drastic.” Under Texas Law, a child who commits a crime is entitled to a full due process hearing before the exclusive
Our holding is that once the jurisdiction of the juvenile court has been timely invoked by the filing of a petition for waiver of that court‘s jurisdiction and transfer of the alleged offender to the district court for prosecution as an adult, the jurisdiction of the juvenile court continues until there has been a final disposition of the question of waiver of jurisdiction, whatever be the age of such alleged offender at the time of such final disposition.
The order of the juvenile court waiving its jurisdiction over appellant and certifying him for trial as an adult is set aside and the cause is remanded to that court for further proceedings in accordance with the provisions of
In all other respects the state‘s motion for rehearing is overruled.