By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Failure to appoint guardian ad litem was
harmless error (00-2-20)
On April 27, 2000, the Austin Court of Appeals held that the failure of the
juvenile court to appoint a guardian ad litem when the respondent’s parents
did not appear at the adjudication hearng was harmless error in view of the
appearance and friendly support of his aunt and uncle.
00-2-20. In the Matter of J.A.S., UNPUBLISHED, No. 03-99-00327-CV, 2000 WL
490717, 2000 Tex.App.Lexis ___ (Tex.App.-Austin 4/27/00)[Texas Juvenile Law 102
(4th Edition 1996)].
Facts: We are asked to determine whether a trial court must appoint a guardian
ad litem for a juvenile when the juvenile appears for a delinquency hearing
without his parents. Because J.A.S.'s aunt and uncle attended the hearing with
the juvenile, we conclude the failure to appoint a guardian ad litem was not
reversible error.
Pamela Griffin arrived at her home and observed J.A.S. climbing out of a window
leaving her house. While attempting to apprehend J.A.S., Griffin saw a second
juvenile, C.L., behind the fence near the back of the property. C.L. told the
police that J.A.S. was involved and showed the police where J.A.S. lived. J.A.S.
admitted being in Griffin's home without permission and without permission to
remove property. The 98th District Court, sitting as the Juvenile Court of
Travis County, adjudicated J.A.S. to have engaged in delinquent conduct by
committing the offense of burglary of a habitation. See Tex.Pen.Code Ann. §
30.02 (West Supp.2000), Tex.Fam.Code Ann. § 51.03 (West Supp.2000) and placed
J.A.S. on probation for one year. J.A.S. raises two issues on appeal.
Held: Affirmed.
Opinion Text: Section 51.11(a) provides that "[i]f a child appears before
the juvenile court without a parent or guardian, the court shall appoint a
guardian ad litem to protect the interests of the child." Tex.Fam.Code Ann.
§ 51.11(a) (West 1996). J.A.S. contends that the appointment of a guardian is
mandatory and that his adjudication should be reversed because the trial court
did not appoint a guardian for him. It is undisputed that J.A.S. attended the
hearing with his aunt and uncle, not with his parents. J.A.S.'s uncle and aunt
are not his legal guardians. The State concedes that the trial court did not
technically comply with section 51.11, but argues that the error was harmless.
Despite the mandate to appoint a guardian in section 51.11, the failure to
appoint a guardian has been found to be harmless error. See Flynn v. State, 707
S.W.2d 87, 89 (Tex.Crim.App.1986). In that case, Flynn, a juvenile, appeared in
court without his parents but with his aunt, Placida Tenorio. Although Tenorio
had raised Flynn from birth, she had not adopted him and was not his legal
guardian. The trial court proceeded with the adjudication without appointing a
guardian for Flynn. The court of criminal appeals concluded that the trial court
erred by failing to appoint a guardian; however, the court determined the error
was harmless. Id. at 89. According to the court, the "basic principle of
[the Family] code is that every child who appears before a juvenile court must
have the assistance of some friendly, competent adult who can supply the child
with support and guidance." Id. (quoting Robert O. Dawson, Delinquent
Children and Children in Need of Supervision, 5 Tex.Tech L.Rev. 511, 529
(1974)). Because Tenorio, the individual who raised Flynn all his life, was a
mother figure for Flynn, and because no one was more likely to render him
friendly support and guidance, the court concluded that the "spirit, if not
the letter of the statute was met" and held the error was harmless. Flynn,
707 S.W.2d at 89.
J.A.S. relies on In re A.G.G., 860 S.W.2d 160 (Tex.App.--Dallas 1993, no writ),
in which the court of appeals reached the opposite result. A.G.G. attended his
delinquency hearing accompanied by his grandmother, not his parents. Id. at 162.
The trial court did not appoint a guardian and proceeded with the adjudication.
See id. The grandmother not only failed to render friendly support and guidance,
but testified against A.G.G. Id. The court of appeals reversed the adjudication
based on the trial court's failure to appoint a guardian. Id.
Unlike A.G.G., J.A.S.'s uncle and aunt did not testify against J.A.S. Of the
various relatives mentioned during J.A.S.'s hearing, only his uncle and aunt
attended the hearing. At the conclusion of the trial, the trial judge asked
J.A.S.'s uncle where J.A.S. should be placed during probation. The uncle wanted
J.A.S. to stay with him and his wife, not J.A.S.'s mother. [FN3] According to
the court summary prepared by a probation officer, shortly before the
delinquency hearing, J.A.S. lived with this mother, brother and grandparents.
However, due to his mother's incarceration, J.A.S. had lived the previous five
years with his mother's cousin. J.A.S.'s mother only returned home to care for
J.A.S. in March 1999. [FN4] J.A.S.'s uncle also stated that he was concerned
with J.A.S.'s well-being if he continued to live with his mother. J.A.S.'s aunt
stated that J.A.S.'s mother knew about J.A.S.'s delinquency hearing, yet she
failed to appear. J.A.S.'s uncle believed J.A.S. needed a stable home which he
and his wife could provide. J.A.S.'s uncle and aunt demonstrated concern for his
well-being and a willingness to assist in his care and in effect acted as his
guardian ad litem although not formally appointed. As in Flynn, we conclude the
trial court's error in failing to appoint a guardian for J.A.S. was harmless. We
overrule J.A.S.'s first issue.
FN3. Ultimately, the trial court placed J.A.S. in the care of his mother and
grandparents for the period of probation.
FN4. The delinquency hearing occurred in April 1999.
In his second issue, J.A.S. challenges the legal sufficiency of the evidence in
support of the judgment. In determining a legal sufficiency challenge in a
criminal conviction, we must determine after reviewing all the evidence in a
light most favorable to the verdict whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Krueger v. State, 843 S.W.2d 726,
727 (Tex.App.--Austin 1992, pet. ref'd). A person commits the offense of
burglary if, without the effective consent of the owner, he: (1) enters a
habitation, or a building (or any portion of a building) not then open to the
public, with intent to commit a felony, theft, or an assault; or (2) remains
concealed, with intent to commit a felony, theft, or an assault, in a building
or habitation; or (3) enters a building or habitation and commits or attempts to
commit a felony, theft, or an assault. Tex.Pen.Code Ann. § 30.02(a) (West
Supp.2000). A burglarious entry may be shown by circumstantial evidence.
Gilbertson v. State, 563 S.W.2d 606, 608 (Tex.Crim.App.1978).
A person is criminally responsible for the conduct of another if "acting
with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the
offense." Tex.Pen.Code Ann. § 7.02(a)(2) (West 1994). Evidence that the
actor is physically present at the commission of the offense and encourages the
commission of the offense by words or other agreement is sufficient to support a
conviction under the law of parties. Burdine v. State, 719 S.W.2d 309, 315
(Tex.Crim.App.1986). The evidence must show that at time of the offense, the
parties were acting together and each contributing some part towards the
execution of their common purpose. Id. Events occurring before, during and after
the commission of the offense, as well as the defendant's actions which show an
understanding and common design to commit the offense are considered. Id.
The evidence in the light most favorable to the conviction reveals that when
Pamela Griffin returned home, she saw J.A.S. jumping out of a window in her
house. Although she called him by name, he ran. Griffin's son apprehended
another juvenile, C.L., near Griffin's backyard. C.L. showed Griffin's son where
items stolen from the Griffin home were hidden. C.L. told the police about
J.A.S.'s involvement and identified where J.A.S. lived.
When the police apprehended J.A.S., he was upset and crying. J.A.S. testified
that he had been in the Griffin home prior to the offense and knew some of its
contents. He admitted going into the house with C.L., but denied breaking the
window or taking any items from the house. He testified that he did not tell C.L.
to steal anything, but admitted that he did not have permission to be in the
Griffin home and that the purpose of being in the home was to take property from
it. C.L. admitted that he and J.A.S. broke the window and entered the home to
steal Playstation games and accessories. Griffin had not given J.A.S. or C.L.
permission to enter her home and she had not given them permission to remove any
property.
We disagree with J.A.S.'s contention that there must be direct evidence that he
planned the burglary or assisted C.L. in locating the room with the Playstation.
We may rely on evidence of J.A.S.'s understanding and common design to commit
the offense. See Burdine, 719 S.W.2d at 315.
The evidence supports the conclusion that J.A.S. was present at the time of the
commission of the offense and encouraged the commission of the offense by
providing information about the contents of the Griffin home and accompanied C.L.
inside the house with knowledge that C.L. entered the home with the purpose of
stealing property. The evidence is sufficient to demonstrate a common
understanding and design to commit the offense. A reasonable trier of fact could
have concluded the two juveniles acted together, each contributing to the
execution of their common plan-removal of property from the Griffin home. We
overrule J.A.S.'s second issue.