
    In the Matter of Pedro LOPEZ, a Delinquent Child.
    No. 6119.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 23, 1970.
    Michael A. Mendelson, John E. Serna, El Paso, for appellant.
    Frank B. Walker, Asst. County Atty., El Paso, for appellee.
   OPINION

WARD, Justice.

This is an appeal from an order of the District Court of El Paso County, Texas, sitting as a Juvenile Court, declaring the appellant, a fourteen-year-old male, a juvenile delinquent. Commitment to the Texas Youth Council has been suspended and the child has been placed on probation on certain terms and conditions.

Trial was to the court sitting without a jury, and upon due request, findings of fact and conclusions of law were filed. Following the law of State v. Santana, 444 S.W.2d 614 (Tex.1969), the trial court correctly determined that the child had committed a felony offense by the lesser standard of proof by a preponderance of the evidence. A month following the trial, and while this case was on appeal, the Supreme Court of the United States decided the case of Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; and, on April 20, 1970 (397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594), vacated the judgment in State v. Santana with directions to follow Re Winship.

As this point on proper standard of proof in the present case is a matter of fundamental error, as it was held to be in State v. Santana, supra, we have no other alternative but to remand this case for a new trial.

In view of our disposition of this case, it is not deemed necessary to consider appellant’s other contentions, since it is unlikely that these matters will arise on a retrial except for the matter of the introduction of the appellant’s confession. We do not choose to discuss this point at this time, as it may have been admitted into evidence under the lesser standard.

The judgment of the trial court is reversed and the case is remanded to the District Court, sitting as a Juvenile Court, for a new trial.  