By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Juvenile court did not abuse discretion in
permitting State to re-open to present identification testimony (99-4-08)
On July 7, 1999, the Waco Court of Appeals held that the juvenile court did
not abuse its discretion in permitting the State to re-open its case to present
testimony identifying the respondent as the perpetrator of the offense alleged
in the petition.
99-4-08. In the Matter of J.A.H., 996 S.W.2d 933 (Tex.App.—Waco 7/7/99)[Texas
Juvenile Law 172 (4th Edition 1996)].
Facts: The court below sitting as a juvenile court found that Appellant J.A.H.
had engaged in delinquent conduct by committing the offense of injury to a
child. See Tex. Fam.Code Ann. § 54.03 (Vernon 1996 & Supp.1999); Tex.
Pen.Code Ann. § 22.04(a)(3), (f) (Vernon 1994). In the disposition hearing, the
court made the findings required by section 54.04(c) of the Family Code and
committed J.A.H. to the Texas Youth Commission without a determinate sentence.
See Tex. Fam.Code Ann. § 54.04(c), (d)(2) (Vernon 1996 & Supp.1999).
J.A.H.'s appellate counsel filed a motion to withdraw from representation of
J.A.H. with a supporting Anders brief. See Anders v. California, 386 U.S. 738,
744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). We notified J.A.H. and his
mother that J.A.H. had the right to respond to counsel's motion and brief, but
no response has been filed. See In re D.A.S., 973 S.W.2d 296, 299 (Tex.1998) (orig.proceeding);
Wilson v. State, 955 S.W.2d 693, 696-97 (Tex.App.--Waco 1997, order). We now
address the potential issue identified by counsel and conduct an independent
review of the record "to decide whether the case is wholly frivolous."
Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
The State alleged four offenses in its original petition: two counts of injury
to a child; one count of assault; and one count of criminal mischief of property
valued at $500 or more, but less than $1,500. See Tex. Pen.Code Ann. §§
22.01(a), 22.04(a)(3), (f), (Vernon 1994), § 28.03(a)(1), (b)(3)(A) (Vernon
1994 & Supp.1999). Before the court read the allegations to J.A.H., the
State waived three of the allegations and proceeded on only the remaining
injury-to-a-child charge. The court admonished J.A.H. as required by section
54.03(b) of the Family Code. See Tex. Fam.Code Ann. § 54.03(b) (Vernon 1996).
J.A.H. and his attorney signed a written jury waiver as required by sections
51.09 and 54.03(c) of that code. Id. § 51.09 (Vernon Supp.1999), 54.03(c)
(Vernon 1996). Although duly cited to appear, J.A.H.'s mother failed to appear
for the adjudication and disposition hearings. Id. § 51.115(c) (Vernon 1996)
("If a [parent] fails to attend a hearing, the juvenile court may proceed
with the hearing.").
The victim S.Z. was seven-years-old at the time of the offense and at trial. He
testified that a person named "Jerard" and another boy threw rocks and
a knife at him and his cousins. One of the rocks hit S.Z. in the head. His head
hurt "[a] lot. A long time." S.Z. did not identify J.A.H. in court as
one of the persons who threw rocks at him. An investigating officer testified
that he had responded to a disturbance call and found "Jerard" and
another boy at the scene. During the course of the investigation, Jerard and the
other boy told the officer they threw rocks at S.Z. and his cousins because the
latter had thrown rocks at them first. S.Z. returned to the scene with his
mother and identified the boys taken into custody by the officer as his
assailants. The officer described S.Z.'s injuries as "a large knot on his
head with a small cut." The officer did not identify J.A.H. in court as the
person whom he had arrested.
In argument, counsel for J.A.H. asked the court to dismiss the case because the
State had failed to prove that J.A.H. was the person who had committed the
offense. The court then permitted the State to present additional testimony. See
Tex.R. Civ. P. 270. S.Z. returned to the stand and identified J.A.H. as the
person who assaulted him. After receiving this additional testimony, the court
found that J.A.H. had engaged in delinquent conduct.
During the disposition phase, the State presented evidence from several
witnesses that J.A.H. was abusive to other children and adults, had been
detained in the juvenile detention center for various offenses on several
occasions, and had bitten, kicked and made sexual comments toward detention
center staff members while in custody. J.A.H. testified he had learned his
lesson and wouldn't "get in trouble no more." The court determined
that J.A.H.'s mother could not provide the quality of care and level of support
and supervision needed to enable him to meet the conditions of probation. See
Tex. Fam.Code Ann. § 54.04(c). Accordingly, the court committed him to the
Texas Youth Commission without a determinate sentence. Id. § 54.04(d)(2).
Held: Affirmed.
Opnion Text: Counsel identifies one potential issue which questions whether the
court abused its discretion in permitting the State to present additional
testimony. The Rules of Civil Procedure permit the trial court in a bench trial
to receive additional evidence at any time "[w]hen it clearly appears to be
necessary to the due administration of justice." Tex.R. Civ. P. 270.
As counsel correctly states, we review a court's decision to permit additional
evidence under an abuse of discretion standard. Ex parte Stiles, 950 S.W.2d 444,
446 (Tex.App.--Waco 1997, no pet.). A trial court's discretion to permit
additional evidence "should be exercised liberally to allow both parties to
fully present their case." Id.; accord In re A.F., 895 S.W.2d 481, 484 (Tex.App.--Austin
1995, no writ). In deciding whether to permit additional evidence, a trial court
may consider: (1) whether the movant showed due diligence in obtaining the
evidence; (2) whether the additional evidence is decisive; (3) whether reopening
will cause undue delay; and (4) whether reopening "will cause an
injustice." A.F., 895 S.W.2d at 484; accord Stiles, 950 S.W.2d at 446-47.
This Court has recently concluded that in Anders appeals involving a question of
whether the trial court abused its discretion we shall "decide on a
case-by-case basis whether such issues may be appropriately characterized as
'frivolous.' " Coronado v. State, 996 S.W.2d 283, 287 (Tex.App.--Waco 1999,
order) (per curiam). The potential issue in Coronado's case was whether the
trial court had abused its discretion in denying his motion to withdraw his
guilty plea. Id., at 285. We determined that Coronado's appeal was not frivolous
after finding no Texas cases reviewing such a ruling in the Anders context and
after distinguishing the facts of Coronado's case from the facts of a Fifth
Circuit Anders decision reviewing such a ruling and finding the appeal
frivolous. Id., at 286 - 287.
Unlike Coronado's case however, the Court of Criminal Appeals has reviewed a
trial court's decision to permit the State to reopen and present additional
evidence in an Anders case. See Cox v. State, 494 S.W.2d 574, 575
(Tex.Crim.App.1973). Thus, we will conduct an independent review of the record
and determine whether we agree with counsel that J.A.H's appeal "lacks any
basis in law or fact." Taulung v. State, 979 S.W.2d 854, 857 (Tex.App.--Waco
1998, no pet.) (quoting McCoy v. Court of Appeals, 486 U.S. 429, 438 n. 10, 108
S.Ct. 1895, 1902 n. 10, 100 L.Ed.2d 440 (1988)).
After having reviewed the record in light of the factors identified in A.F. and
Stiles, we cannot say the court abused its discretion in permitting the State to
present additional evidence. See A.F., 895 S.W.2d at 484; accord Stiles, 950
S.W.2d at 446-47.
We have reviewed the record and have found no errors of arguable merit. See
Wilson, 955 S.W.2d at 698. Accordingly, we grant counsel's motion to withdraw
and affirm the judgment. Id.