                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00035-CV

                   IN THE MATTER OF S.G., A JUVENILE


                           From the 74th District Court
                            McLennan County, Texas
                            Trial Court No. 2008-217-J


                                      OPINION


      S.G., a juvenile, was found to have engaged in delinquent conduct by committing

the offense of Indecency with a Child by Contact by the trial court in a non-jury trial.

TEX. FAM. CODE ANN. § 54.03 (Vernon 2006); TEX. PEN. CODE ANN. § 21.11 (Vernon 2003).

S.G. complains that the evidence is factually insufficient to find that he engaged in

delinquent conduct, that the trial court’s questioning of his expert witness was

erroneous, and that the record contains no waiver of a jury trial. Because we find the

record contains no affirmative waiver of a jury trial in accordance with the Texas Family

Code, we reverse and remand for a new trial.

Waiver of Jury Trial

      Texas Family Code Section 54.03(c) states: “Trial shall be by jury unless jury is

waived in accordance with Section 51.09.” TEX. FAM. CODE ANN. § 54.03(c) (emphasis
added). Section 51.09 of the Texas Family Code establishes the methodology for a

juvenile to waive his rights, including that to a jury trial. TEX. FAM. CODE ANN. § 51.09

(Vernon 2007). Section 51.09 states:

               Unless a contrary intent clearly appears elsewhere in this title, any
        right granted to a child by this title or by the constitution or laws of this
        state or the United States may be waived in proceedings under this title if:

          (1) the waiver is made by the child and the attorney for the child;

         (2) the child and the attorney waiving the right are informed of and
        understand the right and the possible consequences of waiving it;

          (3) the waiver is voluntary; and

          (4) the waiver is made in writing or in court proceedings that are recorded.

TEX. FAM. CODE ANN. § 51.09 (Vernon 2007) (emphasis added).

        The record in this case is silent as to the waiver of a jury trial. There is neither a

written waiver in the record nor any oral waiver on the record as required by Section

51.09. Id. Additionally, the judgment adjudicating S.G. makes no mention of a jury trial

being waived or otherwise.

        The State argues that any error stemming from this failure has not been

preserved in the trial court. See TEX. R. APP. P. 33.1. See also TEX. FAM. CODE ANN. §§

54.03(b) & (i) (Vernon 2008). S.G. does not dispute that no objection was lodged in the

trial court, but argues that an affirmative waiver is required regardless of the failure of

the trial court to explain his rights to him. Thus, we must first determine whether the

failure to object to the lack of a written or oral jury trial waiver must be preserved at the

trial court or may be raised for the first time on appeal.


In the Matter of S.G.                                                                    Page 2
Preservation of Error

        The Texas Supreme Court addressed the issue of the necessity of preservation of

error for purposes of appeal in juvenile cases in In re C.O.S. In re C.O.S., 988 S.W.2d 760

(Tex. 2001). In re C.O.S. involved improper admonishments in a juvenile proceeding

prior to the 1997 amendment to Section 54.03, which added (i), which now requires that

an objection must be made to the trial court’s failure to give admonishments pursuant

to Section 54.03(b) prior to the start of testimony. See Act of May 27, 1987, 70th Leg.,

R.S., ch. 385, § 8, 1987 Tex. Gen. Laws 1891, 1894; Act of May 26, 1987, 70th Leg., R.S., ch.

386, § 3, 1987 Tex. Gen. Laws 1899, 1900, amended by Act of June 2, 1997, 75th Leg., R.S.,

ch. 1086, § 10, 1997 Tex. Gen. Laws 4179, 4184-85 (current version at TEX. FAM. CODE

ANN. §§ 54.03(b) & (i)). However, we do not construe S.G.’s complaint to be based on

the failure to properly give admonishments pursuant to Section 54.03(b), but the trial

court’s failure to comply with the mandates in Section 54.03(c).

        In re C.O.S. holds that there are three categories of rights and requirements used

in determining whether error may be raised for the first time on appeal. See In re C.O.S.,

988 S.W.2d at 765-767.      The first set of rights are those that are considered so

fundamental that implementation of these requirements is not optional and cannot,

therefore, be waived or forfeited by the parties. See id. at 765; Marin v. State, 851 S.W.2d

275, 279 (Tex. Crim. App. 1993). The second category of rights is those that must be

implemented by the system unless expressly waived. See In re C.O.S., 988 S.W.2d at 766;

Marin v. State, 851 S.W.2d at 278-279. The third set of rights is those that the trial court

has no duty to enforce unless requested. See In re C.O.S., 988 S.W.2d at 765; Marin v.

In the Matter of S.G.                                                                  Page 3
State, 851 S.W.2d at 279. The law of procedural default applies to this last category,

wherein the failure to speak waives these forfeitable rights. See In re C.O.S., 988 S.W.2d

at 767 (quoting Marin v. State, 851 S.W.2d at 279).

        The right to a jury trial in a juvenile case fits into the second category. See In re

C.D.H., 273 S.W.3d 421, 424-425 (Tex. App.—Texarkana 2008, no pet.) (citing Aldrich v.

State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003)). See also Bessey v. State, 239 S.W.3d

809, 812 (Tex. Crim. App. 2007) (waivable-only right cannot be forfeited by inaction

alone). This second category includes rights or requirements embodied in a statute that

directs a trial court in a specific manner. See In re C.O.S., 988 S.W.2d at 766. See also In re

J.L.S., 47 S.W.3d 128, 130 (Tex. App.—Waco 2001, no pet.). The Supreme Court held in

C.O.S. that “when a statute directs a juvenile court to take certain action, the failure of

the juvenile court to do so may be raised for the first time on appeal unless the juvenile

defendant expressly waived the statutory requirement. In re C.O.S., 988 S.W.2d at 766;

In re J.L.S., 47 S.W.3d at 130.

        Thus, we find that this error may be raised for the first time on appeal.

Harm Analysis

        We apply the civil harm standard when reviewing the adjudication phase of an

indeterminate juvenile sentencing proceeding. See In re C.P., 998 S.W.2d 703 (Tex.

App.—Waco 1999, no pet.). Under the civil harm standard, an error requires reversal

only if it probably caused the rendition of an improper judgment or probably prevented

the appellant from properly presenting the case to this Court. See TEX. R. APP. P. 44.1(a).



In the Matter of S.G.                                                                    Page 4
        A harm analysis is required except in very limited circumstances. In re D.I.B., 988

S.W.2d 753, 758 (Tex. 2001). This is true even in cases where the error involved “defies

analysis by harmless error standards” or “the data is insufficient to conduct a

meaningful harmless error analysis.” In re D.I.B., 988 S.W.2d at 759.

        This case presents particular difficulties in determining harm. The interplay

between the criminal and civil standards in juvenile cases is particularly problematic

here when determining which rule of appellate procedure governs the determination of

harm.1 Juvenile cases are most similar to criminal cases in their procedure; however,

juvenile appeals are to be governed by civil rules of appellate procedure as far as

practicable. In re D.I.B., 988 S.W.2d at 756. Also, there is little authority to guide our

decision in a case where the record is completely devoid of any reference of any kind to

a jury trial by anyone, including the trial court.

        It is true that the failure to object to the trial court’s failure to give the required

explanations waives the ability to complain about the error for appeal; however, this

failure is a factor in our harm analysis. See Smith v. State, 223 S.W.3d 690, 696 (Tex.

App.—Texarkana 2007, no pet.) (defendant was aware of right to jury based on written

waiver in punishment phase of trial where waiver was marked out and judgment

recited jury was waived so error was harmless). See Johnson v. State, 72 S.W.3d 346, 349

(Tex. Crim. App. 2002) (where judgment recites jury trial waived, defendant is

presumed to be aware of right to jury trial absent showing otherwise based on

1 The criminal standard for nonconstitutional error is: “Any other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). If the error affects
substantial rights, then, it is not harmless. VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App.
2007).

In the Matter of S.G.                                                                               Page 5
presumption of regularity of judgments). See also In re M.E.W., No. 01-93-01152-CV,

1995 Tex. App. LEXIS 458 at *5 & 6 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (not

designated for publication) (no harm from improper Section 51.09 waiver when

adjudication order did not include the offenses that served as the basis for the

complaint of improper waiver). See also VanNortrick v. State, 227 S.W.3d 706, 709, 714

(Tex. Crim. App. 2007) (burden of proof to establish harm does not rest on either party;

harmful error requires reversal when record is silent as to defendant’s immigration

status and no admonishments given regarding the effect of conviction and deportation).

In the trial before the court, the trial court’s only “explanation” required by Section

54.03(b) given to S.G. was “the charge is indecency with a child by contact.” The trial

court did offer to read the petition; however, the reading of the petition was waived by

counsel for S.G. The trial court never asked S.G. if he agreed to this waiver.

        We also include in our inquiry the conduct of the bench trial itself. During the

bench trial, the trial court spent a significant amount of time questioning Dr. Aaron

Pierce, who was an expert testifying on behalf of S.G. The trial court’s questions sought

clarification of Dr. Pierce’s evaluations and opinions, and arguably could have resulted

in the alteration of Dr. Pierce’s opinions. While the interrogation of Dr. Pierce might not

constitute reversible error standing alone, it certainly would have been impermissible

for the trial court in a jury trial. See Morrison v. State, 845 S.W.2d 882, 886 n.10 (Tex.

Crim. App. 1992).

        The trial court was under a duty to commence a trial by jury unless that right

was properly, affirmatively waived by the juvenile and his counsel. The trial court

In the Matter of S.G.                                                                Page 6
erred in conducting a bench trial with no affirmative waiver as required by Section

51.09. Further, the judgment makes no reference to a waiver of a jury trial. We hold

that the trial court’s error probably did result in the rendition of an improper judgment.

We sustain this issue.

Conclusion

        We find that the record does not affirmatively establish that S.G. and his attorney

waived S.G.’s right to trial by jury as required by Texas Family Code Sections 51.09 and

54.03. We reverse and remand this cause to the trial court for a new trial. Because we

are remanding this cause for a new trial, we do not address S.G.’s other issues.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and Remanded
Opinion delivered and filed October 14, 2009
[CV06]




In the Matter of S.G.                                                                Page 7
