____________________________________________________________________

____________________________________________________________________

____________________________________________________________________

Opinion

E.L.M., a juvenile, was charged with having committed the offense of aggravated robbery. After he pleaded "true" to the charge, the trial court found E.L.M. had engaged in delinquent conduct and held a disposition hearing. After hearing evidence at the disposition hearing, the trial court ordered that E.L.M. be committed to the Texas Youth Commission for an indeterminate period, not to exceed his twenty-first birthday. By one point of error, E.L.M. contends the trial court erred in not granting him a new trial because it was clear his right to have a jury trial was not knowingly and intelligently waived. We affirm.

The State charged E.L.M. with the offense of aggravated robbery. The robbery occurred on or about October 25, 1998 at Jimenez Grocery Store. E.L.M. entered the store, took a gun from his pants, and told the owner to give him the money in the store. E.L.M. was subsequently arrested.

On March 5, 1999, E.L.M. pleaded "true" to the alleged crime. At the conclusion of the disposition hearing, the trial court ordered E.L.M. committed to the Texas Youth Commission. On March 10, 1999, E.L.M. filed a Motion To Set Aside Judgment/Sentence And Motion For Rehearing And/Or New Trial. The trial court heard the motion on March 11, 1999. At the hearing, E.L.M. argued he should get a new trial because he did not waive his right to a jury trial knowingly and intelligently. The trial court denied E.L.M.'s motion.

In a single issue, E.L.M. complains the trial court erred in denying his motion for new trial. E.L.M. contends he did not knowingly and intelligently waive his right to a trial by jury.

Although juvenile proceedings are considered civil proceedings, they are quasi-criminal in nature and are essentially criminal trials involving criminal issues on appeal. In re J.R., 907 S.W.2d 107, 109 (Tex. App.--Austin 1995, no writ). Thus, we will consult criminal statutes and cases, as well as the family code, to resolve the issue on appeal.

The granting or denying of a motion for new trial lies within the sound discretion of the trial court. State v. Gonzalez, 865 S.W.2d 692, 696 (Tex. Crim. App. 1993). Appellate courts ordinarily will not reverse such a decision unless the trial court has abused its discretion. An abuse of discretion occurs when the trial court's decision is so clearly wrong as to lie outside the zone within which reasonable persons disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993); Helton v. State, 909 S.W.2d 298, 301 (Tex. App.--Beaumont 1995, pet. ref'd). At the hearing on the motion for new trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The trial judge may properly consider the interest and bias of any witness and is not required to accept as true, testimony of the accused or any defense witness simply because it is uncontradicted. Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); Messer v. State, 757 S.W.2d 820, 828 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd).

Section 51.09 of the family code provides:

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 1996).

E.L.M. complains the requirements of section 51.09 were not complied with when he entered his plea of "true" because his court-appointed counsel, Roy Garza, did not fully explain to him the full effects of waiving his right to a jury trial. E.L.M. contends he did not knowingly and intelligently waive his right to a jury trial.

The following are relevant statements made between the trial court and E.L.M. during the adjudication hearing.

Court: Do you understand that if I find that those allegations are true, there are certain things I can do in your case?

E.L.M.: Yes, sir.

Court: I can place you on probation and send you home to some relative or some other fit person, or to some foster parents. I can place on you [sic] probation and send you to a public or private institution, or I can place you in the care, custody, or control of the Texas Youth Commission, do you understand that?

E.L.M.: Yes, sir.

Court: All right. And you talked to Mr. Garza about your case?

E.L.M.: Yes, sir.

Court: Are you satisfied with his services and his advice?

E.L.M.: Yes, sir.

Court: You understand that you can have a trial if you want to. You can make the State bring all of the witnesses against you and prove these allegations against you beyond a reasonable doubt. Do you understand that?

E.L.M.: Yes, sir. Yes, sir.

Court: You also have the right to have a jury hear your case, have twelve people come and listen to the evidence and decide whether you did these things or not. Do you understand that?

E.L.M.: Yes.

Court: These are three documents, one entitled Rights, one entitled Stipulation of Evidence, and one entitled Waiver of Trial by Jury.

E.L.M.: Yes, sir.

Court: Did you sign all three of these documents?

E.L.M.: Yes, sir.

Court: Did you understand what they were?

E.L.M.: Yes, sir.

Court: Did Mr. Garza explain them to you?

E.L.M.: Yes, sir.

Court: Okay. All right. When you signed the "Stipulation of Evidence," did you understand that you were making a confession or admitting that you committed those offenses?

E.L.M.: Yes, sir.

Court: All right. How do you plea on this case, true or not true?

E.L.M.: True.

Court: Do you understand that if you plead true and I hear evidence to support the allegations against you, I'll have no choice but to find that you actually did these things? Do you understand that?

E.L.M.: Yes, sir.

Court: Did anybody threaten you in any way?

E.L.M.: No, sir.

Court: Did anybody make you any type of promises?

E.L.M.: No, sir.

Court: Did anybody force you to plead true?

E.L.M.: No, sir.

Court: Are you pleading true freely and voluntarily because the facts as you understand them make you guilty?

E.L.M.: Yes, sir.

Court: All right. The Court finds that you have entered your plea freely and voluntarily and accepts your plea.

Court: All right. It's admitted. This is an agreed recommendation?

Mr. Garza: No, Your Honor. I discussed the recommendation with the family and I would like to address the Court on another --

Court: Go ahead.

Mr. Garza: Your Honor, the recommendation was TYC. We accept full responsibility for our actions. E.[L.M.], Your Honor, is in the position to continue going to counseling and tutoring . . . and we're asking one more chance from this Court, Your Honor.

At the hearing on the motion for new trial, E.L.M. testified that his defense counsel at the adjudication hearing, Roy Garza, had not discussed with him the ramifications of his plea. He testified:

E.L.M.: I believe that I would have gotten probation, sir.

Counsel: Okay. Now, who told you that? Or did anybody tell you that?

E.L.M.: My attorney told me that, sir.

Counsel: Okay. Now, do you know whether -- whether your attorney Roy Garza discussed the plea negotiations or the ramifications of the plea you made with you -- any member of your family?

E.L.M.: No, sir.

Counsel: So when you pled true, did you know what you were doing?

E.L.M.: No, sir.

Counsel: Now, this lawyer, either took you downstairs or here in the presence in the courtroom before the judge came out, he had a whole stack of paper that he had you sign; is that correct, sir?

E.L.M.: Yes, sir.

Counsel: Did you read those documents, sir?

E.L.M.: No, sir.

Counsel: Okay. So why did you sign them?

E.L.M.: Because he said he would get me out on probation, sir.

Counsel: Okay. So you signed those because he said that, right?

E.L.M.: Yes, sir.

Counsel: But you didn't read those, did you?

E.L.M.: No, sir.

Counsel: Did he explain them to you at all?

E.L.M.: In a way, kind of, sir.

Counsel: Did he go item per item on those -- on that piece of paper -- on the piece of papers?

E.L.M.: Like on some of them, sir.

Counsel: And you are asking the Court that because you didn't know what you were signing and because you failed to understand what your attorney was doing, and your attorney failed to provide you with -- with that information for you to make a decision as to what you wanted to do, you are asking the Court to go ahead and grant you a new trial; is that correct?

E.L.M.: Yes, sir.

On cross-examination, E.L.M. testified:

Prosecutor: What exactly did you-all discuss?

E.L.M.: Well, we discussed if he would get -- that he would try to get me out on probation?

Prosecutor: Okay. So he never actually promised you that you would get probation; is that correct?

E.L.M.: No, sir.

Prosecutor: He said he would try. He would ask the Court for probation; is that correct?

E.L.M.: Yes, sir.

Prosecutor: Okay. Well let me ask you this. Did the Judge go over these rights with you last Friday?

E.L.M.: Yes, sir.

Prosecutor: Okay. Did you understand what the Judge was telling you?

E.L.M.: Some of them, sir.

Prosecutor: Okay. Now this -- what does it say right here?

E.L.M.: "Waiver of trial by jury."

Prosecutor: Okay. Now, did the honorable Roy Garza review this document with you?

E.L.M.: Yes, sir.

Prosecutor: Okay. What did you understand this document to mean at that time?

E.L.M.: That if I wanted a trial by jury or not, and what I signed there so the Judge could hear.

Prosecutor: Okay. So you understood you were waiving your trial by jury with this document; is that correct?

E.L.M.: Yes, sir.

While E.L.M. claims that he did not knowingly and intelligently waive his right to a jury trial, his testimony at the adjudication hearing and at the hearing on the motion for new trial conclusively establishes that he did understand he was waiving the right by signing the document entitled "WAIVER OF TRIAL BY JURY."

We conclude E.L.M. was informed of and understood his right to a trial by jury and that he voluntarily waived the right knowing the consequences of such waiver. Accordingly, we hold the trial court did not abuse its discretion by denying E.L.M.'s motion for new trial. We overrule E.L.M.'s sole issue.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 8th day of June, 2000.