By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Having prosecutor read petition instead of
court admonition not harmful error (99-3-27)
On June 30, 1999, the San Antonio Court
of Appeals held that having the prosecutor read the petition to the juvenile in
the presence of the court was not harmful error although it failed to comply
with the statutory requirement that the court must personally admonish the
juvenile.
99-3-27. In the Matter of C.M.N., UNPUBLISHED, No. 04-97-00907-CV, 1999 WL
552823, 1999 Tex.App.Lexis ___ (Tex.App.--San Antonio 6/30/99)[Texas Juvenile
Law (4th Ed. 1996)].
Facts: A jury found that C.M.N. engaged in delinquent conduct by committing
aggravated robbery.
After a disposition hearing, the jury assessed a determinate sentence of three
years to be served in the Texas Youth Commission with transfer to the Texas
Department of Criminal Justice-Institutional Division. In her first issue, C.M.N.
alleges that the court failed to properly admonish her. In the second issue,
C.M.N. urges that the evidence is factually insufficient to support the finding
of delinquent conduct. In the third issue, C.M.N. alleges that the State's
closing argument was improper.
Evelyn Inostroza, assistant manager of Kwik-N-Neat cleaners, testified that on
the morning of March 18, 1997, she was on duty when she observed what appeared
to be two boys wearing jackets sitting at the bus stop. One of the two boys
actually was a girl, C.M.N., who Inostroza mistakenly assumed was a boy. C.M.N.
was wearing a Texas A & M jacket and the boy with her was wearing a
"Sox" jacket. After sitting at the bus stop for a few minutes,
Inostroza observed the two youths walking to the side of the cleaners and begin
talking and pointing to the cleaners. The youth who was wearing the
"Sox" jacket, came into the cleaners and asked about the price for
cleaning jeans; however, he had no clothes with him. After being told the price,
the boy returned to the bus stop and began talking to the other youth, who was
later identified as C.M.N. About five minutes later, the boy wearing the
"Sox" jacket returned to the cleaners and asked to use the phone.
After using the phone, the boy exited the cleaners and joined C.M.N. on the side
of the cleaners and conversed with her. After the conversation, the boy wearing
the "Sox" jacket entered the cleaners, threatened Inostroza with a
knife, and demanded money. After Inostroza gave the boy some money, a customer
drove up to the cleaners, causing the boy to run away. Inostroza called the
police and told them that two boys had robbed her. After a few minutes, the
police arrived at the cleaners accompanied by C.M.N. She was wearing a Texas A
& M jacket and was carrying a "Sox" jacket. Inostroza identified
C.M.N. as one of the suspects although she had initially thought C.M.N. was a
boy. The State alleges that C.M.N. committed aggravated robbery as a party to
the offense.
Held: Affirmed.
Opinion Text: In her first issue, C.M.N. asserts that the court erred by failing
to admonish her pursuant to section 54.03 of the Family Code. Specifically,
C.M.N. contends that the trial court failed to explain the allegations made
against her as required by section 54.03(b)(1). Tex. Fam.Code Ann. 54.03(b)(1)
(Vernon 1996). The court gave the following admonishments concerning the nature
of the allegations:
[COURT]: You do additionally have other rights, including you have a right to
understand the nature and possible consequences of these proceedings. I'll have
the State, in a moment, read out loud, in open Court, what you're charged
with....
The long and short on this matter is I need for you to understand the nature of
the charge. I'll have them read it out loud, then I'll ask you whether the
charge is true or not....
Any reason to believe that [C.M.N.] does not understand the nature of the
charges against her and have a basic understanding of her rights regarding the
charge and/or disposition?
[DEFENSE COUNSEL]: No, sir.
[COURT]: Okay. What's the charge against [C.M.N.]?
[STATE]: The State alleges that on or about March 18th, 1997, in Bexar County,
Texas, [C.M.N.], hereinafter referred to as Respondent, did then and there
knowingly and intentionally threaten and place Evelyn Inostroza, hereinafter
called complainant, in fear of imminent bodily injury and death by using and
exhibiting a deadly weapon, namely a knife; that in the manner of its use and
intended use was capable of causing death and serious bodily injury while the
said Respondent was in the course of committing theft of property, namely lawful
currency of the United States, from said complainant, the owner of said
property, and without the effective consent of the said complainant, and said
acts were committed by the said Respondent with the intent then and there to
obtain and maintain control of the said property.
[COURT]: Aggravated robbery?
[STATE]: Yes, sir.
[COURT]: Did you hear the charge against you, [C.M.N.]?
[DEFENSE COUNSEL]: Yes, sir.
[C.M.N.]: Yes, sir.
[COURT]: True or not true?
[C.M.N.]: Not true.
Section 54.03(b)(1) directs the trial court to explain to the child the
allegations made against the child and that duty cannot be delegated to the
prosecutor. See In re K.L.C., 990 S.W.2d 242, 243 (Tex.1999). Because the trial
court had the prosecutor read the allegations against C.M.N., the trial court
failed to satisfy section 54.03(b)(1). C.M.N. asserts that the court's failure
to satisfy section 54.03(b)(1) constitutes fundamental reversible error. See In
re I.G., 727 S.W.2d 96, 99 (Tex.App.-San Antonio 1987, no writ). The Texas
Supreme Court, however, recently held that courts of appeals should conduct a
harm analysis when the trial court fails to give the required admonishments. See
In re D.I.B., 988 S.W.2d 753, 759 (Tex.1999). [FN2]
FN2. The court noted that the only issue before the court was whether an
appellate court should conduct a harm analysis when a trial court fails to
explain the potential use of the juvenile record in a future criminal case and,
therefore, did not decide whether harm analysis was appropriate for failure to
give other admonishments required by section 54.03(b). In re D.I.B., 988 S.W.2d
at 759. In a subsequent case, the court, however, conducted a harm analysis with
regard to the failure to explain the allegations as required by section
54.03(b)(1). See K.L.C., 990 S.W.2d at 244.
Reviewing the record for harm, we note that the judge told C.M.N. that he needed
to make sure that she understood the charges against her and asked C.M.N.'s
counsel if there was any reason to believe that C.M.N. did not understand the
charges against her to which counsel responded "no." At the court's
direction, the prosecutor read the allegations from the petition in the presence
of the judge, C.M.N. and her attorney. The aggravated robbery allegations in the
petition specifically and clearly alleged that C.M.N. placed the complainant in
fear of bodily injury by using and exhibiting a knife in the course of
committing theft of currency. After the prosecutor read the allegations, the
court asked C.M.N. if she heard the charges against her and she answered
"yes, sir" and pled not true. Under similar facts, the Texas Supreme
Court found that the reading of the allegations in the petition by the
prosecutor at the direction and in the presence of the trial court was not
harmful error because the allegations in the petition were sufficiently clear
and direct to explain the allegations against the juvenile. See K.L.C., 990
S.W.2d at 244. Likewise, we find that the reading of the allegations in the
petition by the prosecutor was not harmful. We overrule the first issue.