In re R. E. J.

PEDEN, Justice. This is an appeal from an order finding appellant, a child, to have engaged in the delinquent conduct of burglary and committing him to the Texas Youth Council. The only evidence linking the appellant to the burglary was an oral confession admitted over his objection. This suit was filed after Title III of Vernon’s Texas Family Code became effective on September 1, 1973, so its provisions for procedure and admission of evidence governed this proceeding. Appellant’s second point of error is that the Juvenile Court erred in admitting testimony of the police officer, John T. Gonzales, concerning appellant’s oral confession, in absence of compliance with Section 51.09 of the Family Code, V.T.C.A. Officer Gonzales’ testimony was that while the appellant was in custody he was given the “Miranda warning” and was asked if he understood his rights, and that appellant indicated he did. The officer then questioned appellant, without counsel present, concerning the burglary and obtained the oral confession admitted at the trial. We sustain this point. Section 51.09 of the Family Code provides : “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 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 of and understand the right and the right possible consequences of waiving it; “(3) the waiver is voluntary; and “(4) the waiver is made in writing or in court proceedings that are recorded.” Section 54.03(e) of the Family Code provided: “. . . An extrajudicial statement which was obtained without fulfilling the requirements of this title or of the constitution of this state or the United. States, may not be used in an adjudication hearing.” Both the United States Constitution and the Texas Constitution provide protection [349] from self-incrimination. In the case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L. Ed.2d 527 (1967), the U. S. Supreme Court applied the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to juveniles. The Miranda warning of the right to counsel, the right to have counsel furnished, the right to remain silent and the warning that anything said may and will be used against the accused are mandatory, both in the state and federal prosecutions. While the record shows that appellant was informed of his right to counsel and right to remain silent, it also shows that he was not joined by his attorney in waiving his right to remain silent and it shows that the waiver was not made in writing or in a recorded court proceeding. There is nothing in the record indicating that the state did not fully develop its case. The appellant’s oral confession was the only evidence of his involvement in the burglary. Since that oral confession should have been excluded, we order the trial court’s judgment reversed and rendered.