in the Matter of E. F.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00803-CV

In the Matter of E. F.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. J-16,361, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

A jury found that appellant, a juvenile, did engage in delinquent conduct by

committing the offense of capital murder. See Tex. Fam. Code Ann. § 54.03 (West 1996); Tex.

Penal Code Ann. § 19.03 (West 1994). Appellant waived his right to have the jury determine his

disposition, and the juvenile court assessed a 17-year determinate sentence. In two points of error,

appellant argues that the juvenile court erred in failing to properly admonish him pursuant to

section 54.03(b)(2) of the Texas Family Code (1) and in failing to properly instruct the jury regarding

accomplice witness testimony. We will affirm the juvenile court's judgment.

BACKGROUND

On the evening of March 30, 1997, several juvenile boys including appellant, then

13 years of age, and two men gathered together at a convenience store. The two adults, David

Carter and Christopher Reed , began to talk about robbing someone. Subsequently, the group

noticed Jesus Manzanares enter the store. J.L., one of the juveniles, determined that Manzanares

had money on his person. Carter announced that he was going to rob Manzanares and asked

appellant if he "wanted to jack." (2) Appellant replied, "Yeah."

The group watched as Manzanares walked about the store. Manzanares left the

store for a moment. When Manzanares reentered the store shortly thereafter, appellant reported

this information to Carter. C.S., another juvenile, knew where Manzanares lived and told Carter

which direction Manzanares would be headed . Carter then asked appellant to walk with him, and

appellant followed Carter and Reed down the road. Manzanares left the store and walked down

a different street.

When the three encountered Manzanares, Carter pointed a gun at Manzanares and

demanded money . Manzanares repeatedly said the word "no" as he backed up toward appellant.

Carter shot Manzanares. The group then fled, and a ppellant ran to Reed's house where he joined

J.L. and C.S. Manzanares died of the gunshot wound.

The police arrested several juveniles, including appellant, J.L. and C.S., and

charged them with capital murder. (3) At appellant's trial , J.L. and C.S. testified for the State. (4) The

jury found that appellant engaged in delinquent conduct because he committed capital murder as

a co-conspirator. Appellant waived his right to jury sentencing, and the juvenile court assessed

a 17-year determinate sentence.

DISCUSSION

Failure to admonish

In point of error one, appellant argues that the juvenile court erred in failing to

properly admonish him. Specifically, appellant contends that the juvenile court judge failed to

follow the requirements of section 54.03 of the Texas Family Code because the court did not

advise appellant that : (1) a juvenile court adjudication could be admissible during the punishment

phase of any subsequent adult prosecution, and (2) a possible punishment disposition was

probation until the age of 18. See Tex. Fam. Code Ann. § 54.03 (West 1996). (5) However,

appellant did not raise this issue at trial.

In order to properly preserve a complaint for appeal, a party must make the

complaint to the trial court by a timely request, objection, or motion. See Tex. R. App. P.

33.1(a). To circumvent this procedural requirement, appellant argues that the court's failure to

follow section 54.03(b) is fundamental error that can be considered at any point in the proceeding

even if the error was not properly preserved.

In Pirtle v. Gregory , 629 S.W.2d 919 (Tex. 1982), the supreme court discussed the

history of fundamental or unassigned error in Texas jurisprudence:

"Fundamental error" in civil actions arose in Texas under old statutes that stated

that cases on appeal could be reviewed "on an error in law either assigned or

apparent on the face on the record." 2 Gammel, Laws of Texas 1562 (1898); 3

Gammel, Laws of Texas 393 (1898). The practice of appellate courts in

considering unassigned error was the source of much mischief, and when the Texas

Supreme Court promulgated its Rules of Civil Procedure in 1941, old article 1837

was repealed. Since that time, there has been no rule or statute that authorizes

appellate consideration of errors for which there was no trial predicate that

complained of the error. McCauley v. Consolidated Underwriters , 157 Tex. 475 ,

304 S.W.2d 265, 266 (1957); Ramsey v. Dunlop , 146 Tex. 196 , 205 S.W.2d 979,

984 (1947) (Alexander, J., concurring). Fundamental error survives today in those

rare instances in which the record shows the court lacked jurisdiction or that the

public interest is directly and adversely affected as that interest is declared in the

statutes or the Constitution of Texas. State Bar of Texas, Appellate Procedure in

Texas § 11.5 (2d ed. 1979).

Pirtle , 629 S.W.2d at 920 . Since Pirtle , the supreme court has consistently adhered to the rule

that fundamental error only survives where the court lacks jurisdiction or the public interest is

directly and adversely affected. See Central Educ. Agency v. Burke , 711 S.W.2d 7, 8 (Tex.

1986); Texas Indus. Traffic League v. Railroad Comm'n , 633 S.W.2d 821, 823 (Tex. 1982); Cox

v. Johnson , 638 S.W.2d 867, 868 (Tex. 1982); see also Estate of Pollack v. McMurrey , 858

S.W.2d 388, 394 (Tex. 1993) (Gonzalez, J. concurring).

As jurisdiction is not at issue here, we must examine the asserted error's effect on

the public interest. Appellant suggests that the public interest is directly and adversely affected

where the juvenile court fails to properly admonish the juvenile and directs us to several instances

where courts of appeals have found such failure to be fundamental error. These courts have

opined that admonishments under section 54.03 of the Family Code are mandatory and failure to

properly apply them constitutes fundamental error. See In re T.F. , 877 S.W.2d 81, 81-82 (Tex.

App.--Houston [1st Dist.] 1994, no writ); In re R.W. , 884 S.W.2d 502, 502 (Tex. App.--Corpus

Christi 1994, writ denied); In re L.T. , 848 S.W.2d 769, 770 (Tex. App.--Corpus Christi 1993,

no writ); In re O.L. , 834 S.W.2d 415, 420 (Tex. App.--Corpus Christi 1992, no writ); In re

G.K.G. , 730 S.W.2d 182, 183-84 (Tex. App.--San Antonio 1987, no writ); I.G. v. State , 727

S.W.2d 96, 99 (Tex. App.--San Antonio 1987, no writ).

This Court has previously considered whether a juvenile court's failure to properly

admonish a juvenile constitutes fundamental error. See In re R.L.H. , 771 S.W.2d 697, 702 (Tex.

App.--Austin 1989, writ denied). We held that it did not. See id . In deciding R.L.H. , this Court

considered and declined to follow the Fourth Court of Appeals' opinion in I.G. See id . The I.G.

court reasoned that because the Family Code reflected the intent of the legislature that a child

could not be adjudicated as delinquent without being given the prescribed admonishments, the

issue was brought within the public interest. See I.G. , 727 S.W.2d at 99 . We concluded that this

was not a sufficient basis for finding fundamental error, stating that "[t]he standard in I.G. would

create fundamental error in all causes involving any one of thousands of 'important' statutes."

R.L.H. , 771 S.W.2d at 702 . Of equal importance to our decision was the belief that the supreme

court had not made a blanket exception to the law of appellate procedure for all family law

matters. See id. at 702-03 .

Appellant urges us to reconsider our decision in R.L.H. and further argues that this

case is factually distinguishable from R.L.H . In R.L.H. the appellant did not raise his complaint

in his initial brief to this Court, but waited until his motion for rehearing to bring it forward. See

id. at 702 . Here, appellant's complaint is found in his original brief. This slight procedural

difference in facts is of no consequence. In both cases the appellant failed to properly preserve

the complaint for appeal by objecting at trial. It is this lack of preservation that forced the

appellant in R.L.H. , and forces appellant here, to assert that the failure to admonish is fundamental

error. If the failure to properly admonish is not fundamental error, we have nothing to review.

In R.L.H. we noted that "[a] direct, adverse effect on the public interest (i.e.

fundamental error) is most commonly found when authority is improperly claimed or exercised."

Id. at 703 n.6. We cited as examples an instance where a public official was not properly elected, (6)

and where the parties had no justiciable interest in the controversy. (7) See id. In revisiting this

issue we conclude, as we did in R.L.H. , that the supreme court still has not extended fundamental

error to cover juvenile admonishments. Fundamental error remains a "rarity" and a "discredited

doctrine." See American Gen. Fire & Cas. Co. v. Weinberg , 639 S.W.2d 688, 689 (Tex. 1982);

Cox , 638 S.W.2d at 868 .

We also observe that a recent amendment to the Family Code reflects the

legislature's indication that irregularities in admonishing under section 54.03 do not constitute a

direct adverse effect on the public interest as declared by the statutes of this state. See Pirtle , 629

S.W.2d at 920 . The Family Code now specifically provides that to preserve error in admonishing

a juvenile, the complaint must first be submitted to the trial court. (8) Appellant was charged with

an offense occurring before September 1, 1997, the effective date of the amendment; so the

amendment is not directly applicable to the case before us. However, we construe the amendment

as an indication of the legislature's disapproval of those cases that hold an unassigned

admonishment error to be fundamental error.

We continue to hold that the failure of a juvenile court to properly admonish a

juvenile pursuant to section 54.03(b) of the Family Code must be presented to the juvenile court

in order to preserve the complaint for appeal. Such failure must be specifically assigned and is

not fundamental error that can be raised for the first time on appeal. We overrule appellant's first

point of error.

Accomplice witness instruction

In his second point of error, appellant asserts that the juvenile court erred in failing

to properly instruct the jury regarding accomplice witness testimony. Although the court

instructed the jury in his charge about the abstract law concerning accomplice witness testimony,

appellant argues that the juvenile court should have also instructed the jury that J.L. and C.S. were

accomplices as a matter of law. As a result of this omission, appellant contends that the jury did

not know that J.L. and C.S. were accomplices and did not apply the accomplice witness rule to

their testimony.

When the evidence clearly shows that a witness is an accomplice as a matter of law,

the trial court is under a duty to so instruct the jury. See Solis v. State , 792 S.W.2d 95, 97 (Tex.

Crim. App. 1990); Harris v. State , 645 S.W.2d 447, 454 (Tex. Crim. App. 1985). Because both

J.L. and C.S. were charged with the same offense as appellant, and they both admit to engaging

in acts that played a contributing role in the robbery itself, they were accomplice witnesses as a

matter of law. See Holladay v. State , 709 S.W.2d 194, 196 (Tex. Crim. App. 1986) (witness was

accomplice because he had been charged with committing same offense as appellant); Ashford v.

State , 833 S.W.2d 660, 664 (Tex. App.--Houston [1st Dist.] 1992, no pet.) (witness was

accomplice witness as matter of law because he was indicted for same offense as defendant even

though he was not prosecuted for offense with which defendant was charged). We find, therefore,

that the juvenile court erred in failing to instruct the jury that J.L. and C.S. were accomplice

witnesses as a matter of law.

To determine whether reversal is required in this case, we must now review the

court's error in light of Almanza v. State , 686 S.W.2d 157 (Tex. Crim. App. 1984). In that case

the court of criminal appeals stated in pertinent part:

If the error in the charge was the subject of a timely objection in the trial court,

then reversal is required if the error is "calculated to injure the rights of

defendant," which means no more than that there must be some harm to the

accused from the error. In other words, an error which has been properly

preserved by objection will call for reversal as long as the error is not harmless.

Almanza , 686 S.W.2d at 171 (emphasis in original). Because the jury charge was timely objected

to in this case, only some harm must result from the erroneous charge to warrant reversal. To

ascertain the degree of harm, we must consider the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, counsel's arguments, and any

other relevant information revealed by the record of the trial as a whole. Id.

Appellant argues that the jurors did not apply the "accomplice witness rule" to

J.L.'s and C.S.'s testimony because they were not aware that J.L. and C.S. were accomplice

witnesses as a matter of law. This error will result in some harm only if J.L.'s and C.S.'s

testimony did not comply with the accomplice witness rule, as accomplice testimony alone will

not support a conviction. See Holladay , 709 S.W.2d at 196 . Pursuant to the rule, the testimony

of an accomplice witness must be corroborated by independent evidence tending to connect the

accused with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979); see

Holladay , 709 S.W.2d at 196 . In addition, the testimony of an accomplice witness cannot be

corroborated by another accomplice witness. Moron v. State , 779 S.W.2d 339, 401 (Tex. Crim.

App. 1985). We must, therefore, examine J.L.'s and C.S.'s testimony as well as the other

evidence introduced at trial to discern whether this testimony was sufficiently corroborated.

J.L.'s and C.S.'s testimony was similar in many aspects. They both testified about

the events that occurred on March 30, 1997. In particular, J.L. and C.S. asserted that they were

"hanging" with appellant, Carter, and Reed that day at a convenience store when Carter and Reed

began to talk about robbing somebody. J.L. testified that appellant said he was willing to help

them. J.L. provided further that Carter and Reed started to look for someone to rob, and J.L.

determined, with Reed's assistance, that Manzanares had some money. According to J.L.,

Manzanares went outside to the back of the building for a moment. Carter went to see where

Manzanares had gone, but Manzanares reentered the store soon thereafter. J.L. and C.S. testified

that Carter, Reed, and appellant departed before Manzanares; according to both boys, C.S. knew

where Manzanares lived and reported this information to Carter so that they would know which

direction to go. In addition, J.L. and C.S. agreed that Manzanares left the store after this and

began to walk down a different road. C.S. was riding around the area on his bicycle. J.L.

testified that he stayed at the convenience store. C.S. stated that he caught up to the appellant who

was walking slightly behind Carter and Reed, rode around for a short while, and caught up to the

group for a second time. He saw Carter approach Manzanares and ask for money. When

Manzanares repeatedly said "no," C.S. stated that he heard a gunshot and rode off; J.L. testified

that he heard the gunshot as well. J.L.'s and C.S.'s testimony reflects that they joined appellant

later.

After the incident appellant made two statements to the police. Both were

introduced at trial. In these statements, appellant admitted to everything that J.L. and C.S.

testified to and provided even more detail in certain areas.

All that is required to sufficiently corroborate an accomplice witness's testimony

is evidence that tends to connect the accused with the commission of the offense; this evidence

need not directly link the accused to the crime or establish guilt by itself. Ashford , 833 S.W.2d

at 665 ; see also Holladay , 709 S.W.2d at 198 . Appellant's statements clearly satisfy this standard,

corroborating both J.L.'s and C.S.'s testimony. See Ware v. State , 475 S.W.2d 930, 932 (Tex.

Crim. App. 1972) (accused's own statements standing alone sufficiently corroborated testimony

of accomplice witness). In fact, appellant's statements support almost everything that J.L. and

C.S. testified to and clearly connect appellant to the commission of the offense. (9) We find that

appellant, therefore, suffered no harm as a result of the juvenile court's error.

CONCLUSION

We conclude that appellant's first point of error, that the juvenile court failed to

properly admonish appellant, was not properly preserved for appeal. In addition, we find that

although the juvenile court erred in failing to instruct the jury that J.L. and C.S. were accomplices

as a matter of law, this error was harmless because their testimony was sufficiently corroborated

by appellant's own statements. Therefore, we affirm the judgment of the juvenile court.

Lee Yeakel, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed: February 25, 1999

Publish

1. See Tex. Fam. Code Ann. § 54.03 (b)(2) (West 1996).

2. In street slang, "to jack" means to rob someone.

3. Carter and Reed were also arrested. The record, however, does not reflect whether they

were charged or tried for this crime.

4. C.S.'s case was dismissed for insufficient evidence. J.L. was granted testimonial immunity

for his testimony.

5. The Family Code instructs the trial court as follows:

(b) At the beginning of the adjudication hearing, the juvenile court judge

shall explain to the child and his parent, guardian, or guardian ad litem:

(1) the allegations made against the child;

(2) the nature and possible consequences of the proceedings, including

the law relating to the admissibility of the record of a juvenile court adjudication in

a criminal proceeding;

(3) the child's privilege against self-incrimination;

(4) the child's right to trial and confrontation of witnesses;

(5) the child's right to representation by an attorney if he is not already

represented; and

(6) the child's right to trial by jury.

Tex. Fam. Code Ann. § 54.03 (b) (West 1996). It is not in dispute that the juvenile court warned

appellant in partial compliance with the Family Code, namely five of the six required admonitions.

Appellant's complaint is the failure of the court to give the second noted admonishment.

6. See Ramsey v. Dunlop , 205 S.W.2d 979, 983 (Tex. 1947).

7. See Holland v. Taylor , 270 S.W.2d 219, 220 (Tex. 1954).

8. "In order to preserve for appellate or collateral review the failure of the court to provide the

child the explanation required by Subsection (b), the attorney for the child must comply with Rule

52(a) [now Rule 33.1(a)], Texas Rules of Appellate Procedure . . . ." Act of June 19, 1997, 75th

Leg., R.S., ch. 1086, § 10, 1997 Tex. Gen. Laws 4184 ( Tex. Fam. Code Ann. § 54.03 (i) (West

Supp. 1999)).

9. We also note that other witnesses corroborated the testimony of J.L. and C.S. with regard

to the crime itself and appellant's presence with the other participants on the day of the crime.

ts to the police. Both were

introduced at trial. In these statements, appellant admitted to everything that J.L. and C.S.

testified to and provided even more detail in certain areas.

All that is required to sufficiently corroborate an accomplice witness's testimony

is evidence that tends to connect the accused with the commission of the offense; this evidence

need not directly link the accused to the crime or establish guilt by itself. Ashford , 833 S.W.2d

at 665 ; see also Holladay , 709 S.W.2d at 198 . Appellant's statements clearly satisfy this standard,

corroborating both J.L.'s and C.S.'s testimony. See Ware v. State , 475 S.W.2d 930, 932 (Tex.

Crim. App. 1972) (accused's own statements standing alone sufficiently corroborated testimony

of accomplice witness). In fact, appellant's statements support almost everything that J.L. and

C.S. testified to and clearly connect appellant to the commission of the offense. (9) We find that

appellant, therefore, suffered no harm as a result of the juvenile court's error.

CONCLUSION

We conclude that appellant's first point of error, that the juvenile court failed to

properly admonish appellant, was not properly preserved for appeal. In addition, we find that

although the juvenile court erred in failing to instruct the jury that J.L. and C.S. were accomplices

as a matter of law, this error was harmless because their testimony was sufficiently corroborated

by appellant's own statements. Therefore, we affirm the judgment of the juvenile court.

Lee Yeakel, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed: February 25, 1999

Publish

1. See Tex. Fam. Code Ann. § 54.03 (b)(2) (West 1996).

2. In street slang, "to jack" means to rob someone.

3. Carter and Reed were also arrested. The record, however, does not reflect whether they

were charged or tried for this crime.

4. C.S.'s case was dismissed for insufficient evidence. J.L. was granted testimonial immunity

for his testimony.

5. The Family Code instructs the trial court as follows:

(b) At the beginning of the adjudication hearing, the juvenile court judge

shall explain to the child and his parent, guardian, or guardian ad litem:

(1) the allegations made against the child;

(2) the nature and possible consequences of the proceedings, including

the law relating to the admissibility of the record of a juvenile court adjudication in

a criminal proceeding;

(3) the child's privilege against self-incrimination;

(4) the child's right to trial and confrontation of witnesses;

(5) the child's right to representation by an attorney if he is not already

represented; and

(6) the child's right to trial by jury.

Tex. Fam. Code Ann. § 54.03 (b) (West 1996). It is not in dispute that the juvenile court warned

appellant in partial compliance with the Family Code, namely five of the six required admonitions.

Appellant's complaint is the failure of the court to give the second noted admonishment.

6. See Ramsey v. Dunlop , 205 S.W.2d 979, 983 (Tex. 1947).

7. See Holland v. Taylor , 270 S.W.2d 219, 220 (Tex. 1954).

8. "In order to preserve for appellate or collateral review the failure of the court to provide the

child the explanation required by Subsection (b), the attorney for the child must comply with Rule

52(a) [now Rule 33.1(a)], Texas Rules of Appellate Procedure . . . ." Act of June 19, 1997, 75th

Leg., R.S., ch. 1086, § 10, 1997 Tex. Gen. Laws 4184 ( Tex. Fam. Code Ann. § 54.03 (i) (West

Supp. 1999)).

9. We also note that other witnesses corroborated the testimony of J.L. and C.S. with regard

to the crime itself and appellant's presence with the other participants on the day of the crime.