YEAR 2005 CASE SUMMARIES

By
The Honorable Pat Garza
Associate Judge
386th District Court
San Antonio, Texas

2005 Summaries     2004 Summaries     2003 Summaries     2002 Summaries     2001 Summaries     2000 Summaries     1999 Summaries

A petition which fails to allege an express reference to the Penal Code section number of the offense is not fatal.[In the Matter of B.S.A.](06-2-14)

On April 13, 2006, the Austin Court of Appeals held that although the Family Code says that the petition must state "the penal law or standard of conduct allegedly violated by the acts," if the petition alleges all of the elements of an offense, omission of an express reference to the Penal Code section is not fatal.

¶ 06-2-14. In the Matter of B. S. A., MEMORANDUM, No. 03-04-00319-CV, 2006 Tex.App.Lexis 3048 (Tex.App.— Austin, 4/13/06).

Facts: B.S.A. appeals from his adjudication as delinquent based on the underlying offense of indecency with a child by contact. See Tex. Pen. Code Ann. § 21.11 (West 2003). After a plea of "not true," appellant was adjudicated delinquent by a jury and placed on community supervision.

In his first issue, appellant asserts that he was denied due process of law because the petition for adjudication was inadequate. He contends that it is mandatory for the petition to state the penal law allegedly violated, which this one failed to do. See Tex. Fam. Code Ann. § 53.04(d)(1) (West 2002). n1

Held: Affirmed

Memorandum Opinion: The Texas Family Code governs petitions for adjudication in a juvenile proceeding. L.G.R. v. State, 724 S.W.2d 775, 776, 30 Tex. Sup. Ct. J. 213 (Tex. 1987); In re B.P.H., 83 S.W.3d 400, 405 (Tex. App.--Fort Worth 2002, no pet.). The petition must state "with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts." Tex. Fam. Code Ann. § 53.04(d)(1). A juvenile has the right to the essentials of due process and fair treatment. L.G.R., 775 S.W.2d at 776; B.P.H., 83 S.W.3d at 405. Due process requires that a juvenile must be informed of the specific allegations against him. In re Gault, 387 U.S. 1, 33, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). This standard is less stringent than that applicable to criminal indictments, however. In re A.B., 868 S.W.2d 938, 940 (Tex. App.--Fort Worth 1994, no writ); M.A.V., Jr. v. Webb County Court at Law, 842 S.W.2d 739, 745 (Tex. App.--San Antonio 1992, writ denied). The charge need only be reasonable and definite. M.A.V., 842 S.W.2d at 745; Robinson v. State, 204 S.W.2d 981, 982 (Tex. Civ. App.--Austin 1947, no writ).

Although the family code says that the petition must state "the penal law or standard of conduct allegedly violated by the acts," cases have held that if the petition alleges all of the elements of an offense, omission of an express reference to the penal code section is not fatal. See In re J.R.C., 551 S.W.2d 748, 754 (Tex. Civ. App.--Texarkana 1977, writ ref'd n.r.e.); In re P.B.C., 538 S.W.2d 448, 450-51 (Tex. Civ. App.--El Paso 1976, no writ). If the State errs in its citation of the penal code section, the petition is not invalidated. The error is disregarded, and the juvenile stands charged with the offense the elements of which were pled. See In re H.R.A., 790 S.W.2d 102, 104-05 (Tex. App.--Beaumont 1990, no writ). In the converse situation, pleading the citation to the penal law violated may repair a deficiency in pleading all of the elements of the offense if the penal law citation enables the juvenile to discern each of the elements of the offense. See C.F. v. State, 897 S.W.2d 464, 471 (Tex. App.--El Paso 1995, no writ); see generally Robert O. Dawson, Texas Juvenile Law 123 (6th ed. 2004); 29 Thomas S. Morgan & Harold C. Gaither, Jr., Texas Practice: Juvenile Law & Practice § 102 (1999).

J.R.C. analyzes a petition similar to the one at issue in this case. n2 The petition stated that J.R.C. "did intentionally and knowingly cause the death of W C C by strangling her by means unknown at this time." 551 S.W.2d at 754. The petition did not state the particular penal code section violated. Id. The court compared the language of the petition to the language of the penal code section defining the offense of murder. See Tex. Pen. Code Ann. § 19.02 (West 2003). It held that the petition described the standard of conduct violated and it was not necessary to designate the section of the penal code which condemns such conduct. Id.

In this case, the penal code violation underlying the adjudication was the offense of indecency with a child by contact:

The petition in this case alleged that appellant:

The petition in this case alleges each element of the offense of indecency with a child by contact, just as the petition in J.R.C. alleged each element of murder. n3 It specifies the type of contact involved and the date and time of the offense. Appellant does not inform us in what way he was unable to ascertain the offense with which he was charged or lacked adequate notice to prepare his defense. Appellant contends that a petition which merely alleges that the child engaged in delinquent conduct because he violated a law of the grade of felony would not be sufficient. See C.F., 897 S.W.2d at 471. However, the petition in this case is not as vague as is the example of an overly vague petition given in C.F.; the current petition tracks the elements of a specific offense, is reasonable and definite, and satisfies due process concerns. We overrule appellant's first issue.

Delinquent Conduct

In his second issue, appellant contends that there is no evidence to prove appellant's acts constituted delinquent conduct. n4 Appellant once again contends that the petition is inadequate and that "presumably the delinquent conduct at issue involved the violation of a penal law . . . ." Appellant argues that the State failed to prove that appellant's conduct violated a penal law. n5 Appellant relies on In re D.D. D.D., however, dealt with an adjudication based on the offense of misdemeanor terroristic threat, which was not alleged in the petition. 101 S.W.3d 695, 697 (Tex. App.--Austin 2003, no pet.). Neither was this offense a lesser included offense of the offense that was alleged in the pleading, felony retaliation. Id. Similarly, in Osborne v. State, the child was adjudicated delinquent based on seduction by a promise to marry and "carnal knowledge" of a female child under age twenty five. 343 S.W.2d 467-68 (Tex. App.--Amarillo 1961, no writ). The female child testified that appellant had not promised to marry her before they had intercourse. The court held that there was no evidence that the appellant committed the offense with which he was charged. Id.

In contrast, in this case, the State proved appellant committed the offense of indecency with a child, the offense pled in the petition. Delinquent conduct is conduct, other than a traffic offense, that violates a penal law punishable by imprisonment or by confinement in jail. See Tex. Fam. Code Ann. § 51.03(a) (West Supp. 2005). By proving the offense, the State proved a violation of a penal law. By definition, appellant's acts constituted delinquent conduct. We overrule appellant's second issue.

In his third issue, appellant contends that the trial court's instruction to the jury that "the commission of the offense of Indecency with a Child is delinquent conduct" is error because it relieved the State of its burden to prove that the acts alleged in the petition constituted delinquent conduct. We first address whether this issue was preserved for review.

In order to complain on appeal, a party must make the complaint to the trial court by a timely request, objection or motion. Tex. R. App. P. 33.1(a); see In re M.D.T., 153 S.W.3d 285, 288 (Tex. App.--El Paso 2004, no pet.). Fundamental error, however, may be raised at any time whether or not a timely objection was made at the trial court level. In re B.L.D., 113 S.W.3d 340, 350-51, 46 Tex. Sup. Ct. J. 978 (Tex. 2003) (fundamental error "discredited doctrine" but has been applied in juvenile cases because of "quasi-criminal" nature); R.A.M. v. State, 599 S.W.2d 841, 844-45 (Tex. Civ. App.--San Antonio 1980, no writ). Fundamental error is an error calculated to injure the rights of the appellant to the extent that the appellant has not had a fair and impartial trial. See Ross v. State, 487 S.W.2d 744, 745 (Tex. Crim. App. 1972); Otting v. State, 8 S.W.3d 681, 688 (Tex. App.--Austin 1999, pet. ref'd, untimely filed) (applying harm analysis from Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). n6

Appellant admits that he did not preserve error, but contends that the trial court committed fundamental error because the jury charge improperly removed the State's burden to prove that appellant committed delinquent conduct. The charge told the jury that to find that the child had engaged in delinquent conduct, it had to find that the child committed the offense with which he was charged, indecency with a child. The charge then told the jury that the commission of the offense was delinquent conduct. It then went on to track the elements of the offense of indecency with a child, and told the jury it had to find those elements beyond a reasonable doubt.

As discussed in issue two, delinquent conduct is a violation of a penal law, other than a traffic offense, punishable by imprisonment or by confinement in jail. See Tex. Fam. Code Ann. § 51.03(a). The State must prove beyond a reasonable doubt that a child has committed such an offense "and thereby engaged in delinquent conduct." In re B.M., 1 S.W.3d 204, 206 (Tex. App.--Tyler 1999, no pet.). Once the State met the burden of showing a penal code violation, it satisfied its burden to prove delinquent conduct. We overrule appellant's third issue.

Conclusion: We have overruled all of appellant's issues. Accordingly, we affirm the trial court's judgment.

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