R. E. M. v. State

CADENA, Justice. 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 Section 19.02, Tex.Penal Code Ann. (1974). 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 Proceedings; . . . .” 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 [647] that appellant was accused of the crime of murder “for which he will be ultimately tried as an adult,” and that “subjecting him to questioning while under arrest and incarcerated without the premise of his attorney is a subterfuge . . contrary to his rights . . . The motion concluded with a prayer that the court refuse an order for a diagnostic study or, if such an order had been entered, that it be “recalled.” 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. [648] Section 54.02(d) of the Family Code (1975) provides that, prior to the “transfer” hearing, “the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.” (Emphasis ours) Section 54.02(d) is mandatory. Moreno v. State, 510 S.W.2d 116 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.). It is impossible to read Title 3 of the Family Code, which deals with proceedings commonly termed “juvenile delinquency proceedings,” without reaching the conclusion that its effect is to give to a juvenile offender the right not to be treated as an adult offender unless he is divested of that right by judicial order entered after complying with the requirements set forth in Section 54.02. The necessary conclusion is that, in the absence of an effective waiver by the child, he can be subjected to treatment as an adult only if there has been compliance with the mandatory provisions of Section 54.02. Section 51.09 of the Family Code (1975) provides that, unless a contrary intent appears elsewhere in Title 3, a right guaranteed to a child by Title 3 or by the constitution or laws of Texas or of the United States may be waived in proceedings under that title (which includes “transfer” under Section 54.02) 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 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.” 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 Section 54.02(d) is signed only by the attorney for the child. It cannot be considered as a waiver “made by the child and the attorney for the child.” The same is true of the motion seeking an order prohibiting the questioning of the child without the presence of his attorney. The docket entry of June 7, 1974, reciting that “defendant” waived a diagnostic study does not reflect a waiver made by both the attorney and the child. The docket entry reflects the presence only of the judge, the child’s attorney, and the court reporter. It contains no mention of the presence of the child. The docket entry recites that it was held in chambers, and it is not unusual for attendance at “in chamber” proceedings to be limited to the attorneys and the judge. The hearing was apparently held because of the attitude of appellant’s attorney, reflected in his instructions to appellant that appellant answer no questions unless the attorney was present. Under these circumstances, we cannot presume that appellant was present at the hearing. We deem it significant that the docket entry does not recite a waiver by the child and his attorney. Nor do the events at the “transfer” hearing reflect an effective waiver under Section 51.09. The record affirmatively reflects that appellant’s counsel objected to the hearing in the absence of a diagnostic study. It can hardly be said that this reflects a waiver concurred in by both appellant and his attorney. 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 Section 51.09, waived a right guaranteed by Title 3 of the Family Code. There is no evidence in the record which suggests that a diagnostic study can be made only if the child waives the rights guaranteed him by the constitution of the United States. We are not prepared to hold that, absent such showing, as assertion [649] of a constitutional right is an effective waiver of a statutory right. Absent a showing of compliance with the mandatory requirements of Section 54.02(d), the transfer order is invalid. 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.