Coffin v. State

alleged, developed Accordingly, join be for the judgment reasons in the of the the margin I am in convinced that the evidence court. insufficient,

this cause is and that the court appeals mainly

of came to its conclusions on premature bases of its reliance Reeves State, supra,

v. acceptance and of its of testi mony and exhibits that to illuminate failed Christopher COFFIN, Appellant, evidentiary relevant matters must applicable examined under provisions of the v. to sufficiency Act determine of evidence Texas, Appellee. STATE of jury in order for a to an convict accused of No. 832-93. possession twenty-eight with intent to deliver grams or amphetamine. more of See and Texas, of Appeals Court Criminal of State, compare Dowling v. S.W.2d 103 885 En Banc. State, (Tex.Cr.App.1992); v. Blackmon 786 12, Oct. 467, (Tex.App at 470-473 —Houston 1990) refused; State, PDR [1st] Herndon 510, (Tex.App. 767 S.W.2d at 512-513 —Fort 1989), Worth PDR refused. (F) adulterant, terial, mixture, quinine compound, a diluent or such as preparation.” or mannitol, mannite, hydrochloride, dextrose, or "amphet- identify Those two sections serve to lactose, cutting substance," used or intended use in for yet amine” as "controlled neither controlled substance!.]” ger- mentions “adulterants As and dilutants.” Contrary here, to the contention State that sub- appear mane terms do not even in (15)(F) attempt section did not to define either defining by basic sections to reference offenses "adulterant,” every “diluent” or we found that i.e.', 4.044(a); 4.03(a) penalty groups, §§ through product mentioned shares the common charac- e.g.: being "cutting agent,” teristic of and thus in- knowing- person “[A] commits an offense if he meaning syn- dicative of the [or of "diluent” its manufactures, delivers, ly intentionally or “adulterant,” onym being "dilutant”] and both possesses with intent to deliver manufacture or "in similar the sense that can 'cut’ a either con- Penalty Group a controlled substance listed in substance;” therefore, giv- trolled "the definition 2." probative Legis- en those terms remains as Indeed, only fixing respective punishments in lature's use of the terms elsewhere in the Act.” defining punish- fixing and in basic offenses Id., resorting defining at 859. After other respective aggravated ments for accord- offenses sources, the Court declared those definitions cou- ing to "the amount of the controlled substance 1.02(15)(F) pled tion, id., §with its formed own defini- by aggregate weight,” Legislature ... did the 860, "comports legislative at which “including any allude to or dilu- adulterants intent,” id., at added to the matter viz: course, meaning, of that there tants” — be substance controlled with the intent to increase “any” of either included—and in case of quantity product bulk or of increase the "pure amphetamine” knowing- intentionally and Id., affecting activity. without at its 860. Thus ly "any.” there-will not be See S.F. 40. XVIII the essence of our definition in McGlothlin is Therefore, the of sub- "controlled definition substantially statutorily provid- the same as that stance” does not include and dilu- "adulterants by 1.02(15)(F). Legislature § ed tants;" "any” primari- whether there are relates Finally, appeals opined; the court of ly determining applicable range punish- of "Moreover, phrase since the ‘controlled sub- according particular ments amount of the stance' includes adulterants and dilutants controlled substance with or without "adulter- in the context Controlled Sub- definition stances To ants or dilutants.” make that determination Act, no variation exists between the requires forthright comprehensive "expert testi- proof presented indictments and at trial. A mony present prove properly a criminal plain reading of the that the statute reveals use State, supra, the Act." violation McGlothin v. phrase “controlled substance" the in- 859; at cf. Reeves v. 806 S.W.2d dictment includes and dilutants. adulterants (absent showing (Tex.Cr.App.1990) 543-545 facts See ... Reeves v. 743 S.W.2d in- remainder material consisted of substance (Tex.App. granted pet. Worth —Fort Id., quantity prod- tended to increase bulk or rehearing)." final at-. uct, amphetamine, contrary, cannot be said remainder To "controlled means a substance” dilutant). Penalty Groups through adulterant or "substance" listed in Act, 1.02(4); Group opinion § Penalty emphasis throughout here lists am- All 4.02(c)(3),

phetamine "any contained ma- is mine otherwise unless indicated. Dick (Court-appointed),

Luis C. Labrado Guaderrama, Bruce W. Stengel, David C. Weathers, Paso, appellant. El Simmons, Atty., Former Dist. Steve W. Paso, Morgan, Atty., El Debra Asst. Dist. Austin, Huttash, Atty., for the Robert State’s State. APPELLANT’S PETITION

OPINION ON DISCRETIONARY REVIEW FOR CLINTON, Judge. the of-

Appellant, a minor at the time of adult, fense, trial as an was certified to stand jury convicted of murder. The assessed punishment forty years confinement punishment phase penitentiary. At the sought to introduce a tran- of trial the State testimony script of adduced at the psychologist, Dr. certification Walker, in the Richard who had died interim. hearsay objection, appellant’s To the State Tex.R.Cr.Evid., 804(b)(1), Rule interposed prior arguing that Walker’s longer avail- because he was no admissible able.1 The trial court ruled opportunity, afforded an had been had a similar motive to cross-examine Walk- hearing, and allowed er at the certification testimony. prior appeal the original submission on direct appeals court of held that use Walker’s punishment phase prior testimony at the did Amendment con not violate Sixth requi rights because it met the frontation reads, 804(b)(1) proceeding, party against part: if the whom relevant different Rule offered, opportu- had an (b) is now Hearsay exceptions. following are develop nity motive to the testimo- excluded if the declarant is unavailable as and similar direct, cross, ny by a witness: or re-direct examination. (1) testimony. Testimony Former as or a witness at another of the same 804(b)(1). (Tex. sites of Rule Coffin v. youths. concert with other Then the State App. Paso, 08-87-00294-CR, No. deliv called Dr. Walker witness stand. His —El May however, holding, ered In so testimony, relatively brief. Walker had appeals the court explicitly did not address interviewed three weeks before the appellant whether had had a “similar motive” September 1986. From a to cross-examine at Walker the certification complete battery psychological of tests Walk- hearing. This Court granted ap therefore appellant er concluded that showed no evi- pellant’s petition discretionary first for re psychotic thinking. dence of Walker testi- view, summarily and remanded the cause to appellant fied distinguish right could the court of appeals to ques consider that wrong, capable comprehending of- tion. Coffin v. (Tex.Cr.App., No. him, proceedings against age-appro- and was 1011-90, delivered Unhappy June priate in functioning. Finally the State to have the cause again, before it the court of asked following: Walker the appeals expressly nevertheless decided the “Q. Now, if in boy fact this was found motive, issue of concluding similar time —this guilty murder, of the offense of what is in published opinion appellant “would —that your opinion length as to what of time have challenging” the same interest in Walk boy would be needed to rehabilitate this punishment phase er’s as he for that crime? had at the certification Coffin lengthy, maybe A. It would be and at this (Tex.App.-— at 610 point in perhaps complicated by time 1993). Again El Paso it affirmed factors, lengthy number of but it would be granted appellant’s conviction. We second point, at this assuming you what said petition discretionary for review to examine I say change young evidence would in this the issue of similar motive in some detail. man’s life easily does not come for him. 200(c)(2). Tex.R.App.Pro., Rule

Q. you Could be a little specific more I. lengthy? with Lengthy? A. I attempt want to wouldn’t A psychological pattern to take this kind of Appellant’s certification occurred try change period it under a September 1986. At that time years. couple several I would be a juvenile court was authorized to waive its therapy grad- of extensive and some jurisdiction original exclusive and transfer follow-up.” ual decrease in appellant to the district court for criminal if, alia, cross-examination, proceedings appellant only inter “the touched briefly upon subject determines that of rehabilitation: because of the seriousness of the offense background or the of the child “Q. really say You’re anything able community the welfare of the requires crimi- rehabilitation, about isn’t that correct? proceedings.” Code, nal Family V.T.C.A. rehabilitation, you’re plac- A. terms of 54.02(a)(3). Among the non-exclusive stat- ing inme a double bind in the sense that I utory considerations that inform the have, know, you don’t going what are juvenile court’s decision prospects are “the question, rehabilitate? That I adequate protection public and the pattern don’t know. I can tell from the likelihood of by rehabilitation of the child use easy young here that this is not an man to services, procedures, and facilities current- change. rigid, He tends to be he tends ly available to the court.” V.T.C.A. unfortunately, mostly he’ll listen to his to— 54.02(f)(6). Code, § Family own voice. At the certification the State first Q. testing? Is this taken from the presented appellant its evidence that mur- Yes, you A. can see it on the tests.” by dered one Jaime striking Alvarez him in the forehead with crowbar while Alvarez This is the later offered incapacitated by trial, Appellant punishment phase alcohol. Dr. State wantonly killing committed this having random Walker died the interim. ideal be a residential presented testimony of A. To me the Next the State Briones, that deals adoles- psychiatrist, who had treatment center with Dr. David adolescents, days cents, or five mid-adolescents or late examined some four did, great- daily therapists, in far with before Walker and testified and this is a contact daily er detail. Briones confirmed that counselors who re- contact with model, psychotic, “perhaps daily was not but that contact with structure his role psychotic.” can organizations gives [he] severe stress become school and other diagnosed appellant suffering tranquility He as from: very good him a sense if he receives organization in his life. And dysthymic “... with a lot of de- disorder years may impact. an many it have pressive symptomatology which feel is said, turn that corner As I he has to long-standing due to stress with a severe along somewhere the line and become turmoil, family, parental intrapersonal and problems of the he has. aware gone on for or four and this at least three Q. treatment cen- Are there residential years. He fits the criteria for conduct ters in Texas? disorder, aggressive. This socialized and mentioned, superimposed, as I on a de- Yes, A. are. I think most of them there veloping character structure with isolated although that private, are there are some perhaps impulsive schizoid features and funded, many. public but not too are prob- features. He has a substance abuse Q. you recommending place be a Would lem, marijuana alcohol; I think he key and— where he’s under lock and sporadically point drinks alcohol Weh, A. he— drinking. possible excess There is a atten- Q. go —not out in the commu- allowed tion deficit disorder ... neu- evidenced nity? ropsychological testing....” Well, legal you’re saying A. if from the whether, prove appellant Asked should it did aspect he has to have that available for cause, commit the murder in this “the likeli- sake, society’s guess, I na- because of the appellant, hood of rehabilitation of’ Dr. crime, psychiatric a ture of the but from replied: Briones beginning might viewpoint, at the he need Well, my opinion, given “A. in that’s in a close environment because of his be longstanding treatment, data that we have and the later reluctance to admit to but problems, nature of the I think we are probably on he wouldn’t.

dealing years. say with several I would years strictly supervised least four in a Q. [appellant] placed were a situa- It long-term highly settings [sic]. structured any getting sort of tion where he is possibility I think there is a that —two prognosis? therapy, would be the what one, things present: have to avail- be Well, pretty negative for A. it would be ease, care, ability of kind of residential any restructuring problems two, and number he has to make an attitu- —re- problems structuring personality change. really dinal His idea is it’s certainly I think it that he has. don’t personal problems not his so much as cir- disorder; help dysthymic I don’t would his cumstances, including prog- and that’s not if get any he better he doesn’t think would accepted internally nosis. He has not a lot get get treatment. I think he should behavior, responsibility psy- for his his it even if he is incarcerated somewhere behavior, chological psychological prob- his along the line. lems, problems. the nature of It’s going long to take a time for him to look at that and deal with it.” Q. you treat- When talk about residential cross-examination, testified, Briones inter center, long period of time are ment how

alia: about, talking more or less? we Well, years in say I at least four

“Q. you high- A. When said he needed then ly you treatment center and setting what did mean? residential structured perhaps well, well, say many way it’s hard to my opin- how he’s more —in — that — this, years ion, for all of easily susceptible but several he’s peer to severe type follow-up pressure. of center and then a perhaps intensive, boys’ less like a ranch Q. guilty place If he were found in a something might like that be indicated. penitentiary, subjected wouldn’t he be I capable going don’t think he should be peer pressure? open back to the environment before sev- sure, yes, part A. I’m that’s of the envi- years. eral prison setting. ronment in Q. you saying So that he should not Q. your progno- And would would be [sic] society community or in the for sev- placed if setting?- sis he was in that sort of years? eral A. I think he would have massive difficul- know, A. Not what I the circum- guessing ties there. am almost if he stances. got in that situation he would be trans- psychiatric

ferred to a I’m unit. almost Q. center, prison very In a residential treatment he sure of it. But of course a is a people, would be other isn’t that cor- different environment. The doctors there pressure, rect? are under a lot of but at he least separated regular would be from the in- A. Yes. mates.” Q. you any opinion regard- And do have ing people violence with other in that sort The State’s last witness was Manuel Tor- setting? res, juvenile probation a El officer with the County Department. Paso Juvenile Probation A. Whether he would be violent towards questioned On direct examination the State in setting? others that kind of I don’t appellant’s prospects Torres about for reha- you’re think I taking things so. think two bilitation, given the resources available to the away: You taking are the volatile home juvenile justice system. situation, you taking and the other one alcohol, away drugs and which is another “Q. you Are familiar with the facilities source of what regres- causes lot of his that are available if in fact this is alcohol, I think sion. without the the fami- adjudicated delinquent in child this case? ly drugs, you situation don’t have a lot Yes, ma’am, A. I am. potential aggression, my opinion. for Q. And what are these facilities? Q. put any place If he were other than placement Project A. We at have Cross- center, a residential treatment a foster roads, placement in a foster home under private home or some other institution care, foster and we commitment to have away family from drugs, it would the Texas Youth Commission. purpose? achieve the same Now, Q. care, placements these in foster getting A. I’m not sure because he’s part probation? are these treatment; any ongoing depends formal it Yes, A. ma’am. going him who treat and how problem often. I think he has a severe Q. probation. Tell us about What is the which has to be addressed with intensive period probation longest in the treatment. justice system? supervised probation,

A. have from We year, up six months to a not to exceed a Q. peer pressure Would to commit an year, it unless the Court extends for you offense be the kind of stress were longer period of time. talking wherey [appellant] [sic] about be- Q. longest And what is the that a psychosis? comes close to placed probation, supervised can be Well, psychosis, A. I’m not 'the sure of unsupervised? type respond but he’s the that will or be pressure peer Up age intimidated if A. to the of 18. it’s Q. So, Q. really, What about nothing commitment to TYC? there is that can be age What is the limit on person that? done for this under justice system? However, Up age A. to the of 21. my knowledge, A. Not to that’s correct.” youngster only kept there for two years. part, appellant presented For his two wit- nesses at the certification The first Q. you How do know that? Ramirez, psychiatrist. Dr. Arthur Ra- policy A. There is a Yuoth Texas mirez reiterated that had abused that, type [sic] Commission no matter what drugs and alcohol and suffered a conduct committed, of offense have been . added, however, disorder. He that because period maximum youngster that a will be appellant’s youth, personality had not kept years. there is two “crystallized,” “certainly and that he is ame- Q. you speak And somebody did with change, nable to there is no about regarding TYC this? it.” opined Ramirez treatment for Yes, spoke A. Mary Taggart, family therapy should involve as Program Youth Supervisor for the Texas psychotherapy. juve- well as individual Youth Commission who indicated to me point nile court at one asked Ramirez wheth- juveniles referred to them for serious opinion er he based his on the “medical mod- only offenses will remain at TYC two “justice model,” el” opposed as years. Ramirez acknowledged that correct. Q. Torres, Mr. after youngster is re- Lastly, Lozito, appellant called Frank TYC, leased type what of services are Chief Probation Officer the West Texas offered to them from TYC? Regional essentially Area. Lozito testified A. None that I know of. department that his “never” recommends probation cases, in for adults murder but Q. If the jurisdiction Court was to retain jury give that if a probation were to to a juvenile of this adjudicated and he was year boy fifteen old who was tried as an child, delinquent any would of these facili- adult, probation system would “have to” provide placement ties a viable for rehabil- supervise him. appellant Counsel for in- juvenile? itation of this quired: No, ma’am, A. they would not. “Q. If he were not to reside in his home Q. And what is the likelihood of rehabili- by or ordered the Court not to reside in juvenile? tation of this home, you placement? have a A. There is none.” A. We have the Court Residential Treat- cross-examination, Torres reiterated his put there; people ment Center that we opinion appellant could not be rehabili- only thing that’s the we have as far as juvenile justice tated within the system. concerned, any facilities are we don’t have type of'facility. other “Q. Torres, you Mr. basing your are rec- Q. you putting Would feel comfortable appellant ommendation [that be certified to 15-year-old in setting? that sort of stand trial as an just adult offender] on the No, nature of the seriousness of the offense? A. I wouldn’t. only you Is that the factor that have taken Q. why? And

under consideration? Simple A. age, reason is because of the juvenile justice type A. And the type fact that the of offense and the of offend- system residing particular does not have the time to work ers youngster with a age once he reaches the center. jurisdiction all 18 as we lose at that Q. you Would have concern for the 15-

time. year-old’s welfare? Yes,

Q. A. I would.” placed probation But if he’s there is also no time to work with him? hearing, proclaim- At the conclusion of the A. ing society That’s correct. that “the time has come in our evidence, took Appellant rested. then justice prece- take

where the model has to application for support ... ... of his [and] dence over the medical model the stand safety upper- testifying never be- public felony probation, and interest become he had minds[,]” felony certi- most in our court offense and fore been convicted of any fied to be tried as an adult. its by terms and condi- that he could abide effect, pursuant order to that might written trial probation the tions of Code, 54.02(h), Family remaining the court including V.T.C.A. under impose, choose to expressly appellant: facility found custody community based of a rehabilitated, counseling at his attending psychological nor

“cannot be treated Thus, again “the best expense. his best interests be served with the own once will defen- currently public available to as well as the resources that are interest of County, inquiry, El see Article the Juvenile Court of Paso was a focus of dant” V.A.C.C.P., 3a(a), Texas, 42.12, or state-wide as those §§ either on a local basis 3 & basis, psychiatric primarily because of the September read as of and October provisions tried, long-term including that he is need of appellant was when treatment, must be of a which treatment appellant’s best interest conflict between nature, sophisticated which cannot be de- society. and that juvenile justice present livered within the again appellant called Dr. Ramirez to Once * * * system. public not be ade- will punishment Again at the the witness stand. proce- quately protected by the use testified that phase, Ramirez dures, services, and facilities available problem and a conduct dis- substance abuse court, as the is in order, sociopathic; psychotic or but long-term and rehabili- need of treatment treatable, he had problems that his were but unlikely that tative and it is services them; that his treatment for never received adequately rehabilitated or will crystallized, and personality had not adult procedures, treated use of such services Again capable of rehabilitation. that he was. and facilities.” individual treatment he recommended both juvenile court apparent it is that the Thus therapy. family He testi- appellant, the child in weighing the best interest of in El there exist Paso Coun- fied further that prob- obtaining adequate treatment for his appel- ty community facilities where based “protection public.” against lems probation. placed if lant could be treated 54.02(f)(6), § supra. that context cross-examination, long asked how when certainly account court must have taken into take, replied: Ramirez would rehabilitation testimony from and Briones that Drs. Walker would the ideal. The ideal “I will describe through treatment appellant’s rehabilitation treatment him be in a residential be for years, together with take a number of would adolescents, disturbed adolescents center for testimony probation or- Torres’ that choice, my year. If I had for six months to a only year, that TYC has a dinarily lasts and prosecutor I would do.” The that’s what releasing charges two policy of its within again: asked of the years, conclude that the resources to rehabilitate “Q. long will it take How inadequate to ensure system were him? once appellant could be rehabilitated before year. A. months to a Six public. It again general into the released okay? un- and certainly appellant, Q. behooved he be all well have And will circumstances, contradict, im- der these good potential on has a A. He would—He testimony de-emphasize any that peach or that. lengthy process. his rehabilitation would be

B. disagree then with the oth- Q. You would it could take several er doctors who said phase appellant’s punishment At the long years, very time?2 trial, guilt phase all the State reintroduced proceedings the certifica- referring mony such as evidently at earlier prosecutor to testi- Yes, disagree A. indicating with that. Dr. Walker’s statements that the lengthy.” time for rehabilitation would be Q. But if it did take several and a State, supra, granted at 610. We time, very long you that aware after he Coffin appellant’s petition discretionary review has probationary served one third of his question order to examine more sentence he can probation? be released off depth. judgment will affirm the We No, sir, A. I am not aware of that. appeals. Q. longer required No go to treat- ment? II. No, sir,

A. I am not aware of that. Q. longer required No to seek rehabilita- 804(b)(1) require Rule does not help? tion and self prior testimony in order for to be admitted No, sir, A. I am not aware of that. exception hearsay as an oppo to the rule the Q. So, out, if money his —If the runs nent of the evidence have had an identical parents run money out of challenge testimony before he has motive to at gets been rehabilitated or prior proceeding he off released as he now has at trial. It probation serving after requires only one third of he have had a “similar” year “[Njeither probationary period ten he proceed and hasn’t motive. the form of the rehabilitated, case, been go ing, theory then he could out nor the nature of repeat crime, type this same sought the relief need be the same.” M. Graham, couldn’t he? Federal Practice and Procedure: (Interim 1992), § Evidence Edition at possibility A. That is there.” “[Ojnly particular 784.4 issue as to which apparent Thus it is how testimony was first offered must be sub long it would take to rehabilitate stantially upon similar to the issue which operative became an punishment issue at the offered in the current action.” Id. See also trial, phase just as it previously had been Strong, J. McCormick on Evidence certification To rebut Ra- (4th 1992), opportunity, ed. at 315. As with mirez’ could be re- similar vel non motive must be determined year, habilitated six months to a the State basis, case-by-case according transcript offered a of Dr. previous Walker’s particular facts circumstances. Cf. Rus hearing.3 from that Appellant ob- sell v. (Tex.Cr.App. 604 S.W.2d 914 jected point that “the heating of this 1980)(for purposes of Sixth Amendment con very different point than the of this guarantee, frontation determination whether my cross-examination of Dr. Richard opportunity defendant had to cross-examine very Walker will be different and we are not prior proceeding witness at a fact-bound opportunity afforded that to do so with this Salerno, inquiry). See also United States v. testimony just being presented in this docu- —, —, 505 U.S. at 112 S.Ct. ment.” The trial court overruled 2509, (1992) (Blaek 255, 120 L.Ed.2d at 264 objection, expressly finding appellant had mun, J., concurring); United States v. DiNa “opportunity and similar motive” to 909, (C.A.2 1993). poli, 8 F.3d at 914 cross-examine Walker at the certification purpose juvenile The ultimate of a certifi- elaboration, course, Without the appeals hearing greatly, court of cation differs of from agreed on remand that at the purpose punishment proceeding certification the of a fol- hearing appellant challenge “had a lowing guilty motive to in verdict the trial of an adult psychologist psy- tion since no other interpreting or 4. Cases and commentaries Fed yet punishment chiatrist had testified at the hear- eral Rules of Evidence are instructive in our all, ing likely opinion at much less offered an as to similarly provisions construction of worded duration of rehabilitation. Montgomery our own rules. 372, v. 810 S.W.2d (Tex.Cr.App. n. 2 & n. 2 3. The record does not reveal whether the State 1991) (opinions original submission and on any attempt testimony by made calling to rebut Ramirez’ motion); rehearing on Court’s own Jones punish- Dr. Briones to the stand at the (Tex.Cr.App. 843 S.W.2d at 490 phase. ment period A juvenile must decide to rehabilitate his client. shorter

offender. The court against militated juvenile trial rehabilitation would have whether a offender should stand system juvenile justice adult, conclusion that according criteria such as as an to 54.02(f). appellant could not reform while at same punish- §in those laid out At insulating public. him from the trial, time phase ment the factfinder must de- impose ap- cide what sentence to within similarly That it would have behooved whether, plicable range, if the defendant and appellant to refute notion counsel for qualifies, justice the ends of and best long take that his rehabilitation would public interest of the and the defendant coun- punishment phase lengthy trial clear. A is probation. sel in favor of Within these obvi- certainly period of rehabilitation would tend however, ously parameters, different sets jury recommending pro to dissuade the certainly possible substantially it is that simi- bation, that would increase the risk to since lar can arise. We have set out the issues might an public appellant commit punish- circumstances of the certification and large probation other offense while at hearings in cause in detail in ment some could be reformed. before his behavior order to illustrate that there is a basis the Thus, proceeding involved an issue of each from which the trial court could rea- record appellant might exposed whether sonably appellant have ruled that harbored a posed signifi still public at a time when he similar motive to cross-examine Dr. Walker great danger. Appellant cant had at least as hearing the latter. at the former as he did at testimony that his reha a motive to discount lengthy at the certification bilitation would be apparently of the strate- It was one State’s Indeed, while at hearing as he did at trial. persuade to gies at the certification hearing appellant did not the certification justice juvenile juvenile court that specifically attack Walker’s assessment system custody have and control would not him, to rehabilitate he long how it would take period of time over for a sufficient ability general to question did Walker’s strategy This to effect his rehabilitation. (viz: prospects for rehabilitation assess his in the of Drs. Walker and evident testimonies say anything really to about “You’re not able Briones that it would take number correct?”). rehabilitation, isn’t appellant, in combination with to rehabilitate juvenile pro- testimony that neither Torres’ argues Dr. testi- Appellant Walker’s custody of bation nor TYC could maintain spe- mony within the related rehabilitation years. longer than two juvenile justice system; cific context obviously receptive judge penal of the adult that within the context questions strategy, judging by his thereof, to this rehabilitation, length system (distinguishing the “medical Dr. Briones meaning; entirely on an different take model”), “justice pro- model” from the appellant had no motive (“the time has regarding nouncement from the bench Walker at the certification justice society model penal system come in our where long it would take the how the medical precedence disagree appel- to take over has him. We rehabilitate model”), finding inade- premise, and his written order however. Neither lant’s factual Walker, Briones, public eventually “the Ramirez tes- quate protection to the because nor long-term length treatment of rehabili- any respect is in need of as to tified available within either specifically rehabilitative services” not tation system. justice justice system penal the adult system. Under within the Rather, length of circumstances, apparently testified to each it would have behooved optimal therapeutic an given rehabilitation challenge to the basis appellant counsel for testimony Because Walker’s long time environment.5 that it would take opinion for easily appellant. have un- sought trial court could specifically The the State It is true that length question directed to long to be opinion take to derstood of how it would Walker's rehabilitation, possible given thera- the best of all appellant [he] “if in fact was found rehabilitate guilty environments, appellant’s con- peutic if in fact We do not murder[.]” of the offense of disorder, etc., however, ask, serious that he killed long was so necessarily . how it duct to take this testimony, as Walker's other penal system man. In context of to rehabilitate take for the would generic, was thus specifically not tailored The trial court is the institutional ar length ju- hearsay of rehabilitation biter of within either the whether is admissible under system, exceptions general venile or the to the rule of adult it was relevant to exclusion testimony objection upon such under Tex. question appellant get whether should R.Cr.Evid., Thus, Rule 802. whether evi probation at punishment phase in much 804(b)(1) dence comes under Rule is a way the same and to the same extent that it resolve, question for the trial court to review had been relevant earlier to the appeal only on able under an abuse of discre juvenile justice system whether the would State, Montgomery tion standard. Cf. v. have time to reform him. The trial court (Tex.Cr.App.1991) at 390-93 justified finding was appellant’s that mo- (Opinion rehearing mo Court’s own was, challenge least, tive to very it at the tion) (questions admissibility of evidence similar. Tex.R.Cr.Evid., under Rules 403 and Appellant argues also to have at 404(b) court, assigned trial re tacked Drs. Walker and Briones’ conclusions appeal only viewed on for abuse of discre lengthy tion). rehabilitation would be appellate court should not con hearing certification review; have been useless duct a de novo its role is limited case, strength of the State’s determining supports whether the record Here, that to have only ruling. done so would trial have dam court’s the record does aged credibility support ruling before the indeed the trial court. court’s By suggest seems to motive to cross-examine that to challenge Walker at the certification experts’ testimony was would have punish at least similar to his motive at the been a bad tactical having decision. But 804(b)(1). phase, purposes ment for of Rule it, similar choosing motive and not to act on therefore, say, We cannot that the trial court reason, even if for a sound tactical is not the objection erred to overrule to the same having as no similar motive at all. See prior testimony. admission of Walker’s Salerno, United States v. supra, 505 U.S. at —, 112 S.Ct. at 120 L.Ed.2d at 266 Accordingly, judgment of the court of (Stevens, J., dissenting); and cf. United appeals is affirmed. DiNapoli, supra, States v. at 914 n.& 5 (“Though availability ways of substantial OVERSTREET, J., concurs the result. challenging pur that were not MALONEY, J., concurs with note: For by sued pertinent an examiner is the reasons stated me in Jones v. inquiry, ‘similar motive’ especially when such (Tex.Cr.App.1992), 843 S.W.2d 487 I concur techniques appear far promising more com judgment of the Court. pared undertaken, to the cross-examination only unused methods are one factor to be considered.”). 804(b)(1) CAMPBELL, J., Rule prior participating. admits hearsay objection over a if there BAIRD, Judge, dissenting. opportunity and similar motive to cross- prior examine the witness at proceeding. Appellant was convicted of murder and By terms, its applicability exception forty years sentenced to confinement. The opponent does not turn on whether the actu Appeals Court of affirmed. Coffin ally opportunity. availed himself of that To Paso, (Tex.App. No. 08-87-00294-CR —El sure, be that he did not opportunity take the May previously delivered We may be one indicator that he lacked a similar granted appellant’s petition discretionary motive. DiNapoli, supra. United States v. review to determine whether the former tes- it, however, do not We consider timony psychologist of a at a trans- conclusive one. properly fer admitted at trial port

well as that of Briones question. and Ramirez at the certifi- of the State's likely pur- cation this seems the more 804(b)(1).1 criminal appellant to district court for We re- ferred under Tex.R.Crim.Evid. proceedings. Appeals to manded to the Court of determine appellant a similar motive to whether punish- the prior died to trial. At Walker juve- psychologist at the cross-examine phase, the offered testi- ment State Walker’s hearing. No. nile transfer v. Coffin mony juvenile hearing to rebut from the (Tex.Cr.App. delivered 1011-90 June Appel- appellant’s application probation. 1992). remand, Appeals the Court of contending objected purpose lant appellant’s to cross-examine the held motive juvenile hearing pun- from the was different psychologist transfer phase the murder trial and that ishment he held at trial. was similar to the motive would be his cross-examination of Walker (Tex.App.— v. judge The trial overruled ob- Coffin different. majority does El Paso Because the jection former testi- and admitted Walker’s grasp in the not the inherent differences mony. purposes testimony intro- for which this duced, respectfully II. dissent. A SIMILAR MOTIVE

I. testimony hearsay exception of The former 804(b)(1) protect confron designed is Rule THE FACTS permitting admission tation interests while he Appellant was a at the time reliability evidence. To ensure the reliable offense. The State committed the instant evidence, party against whom of such petitioned to waive its ex- oppor testimony must have had an is offered jurisdiction appellant to clusive and transfer develop tunity as well as a similar motive proceedings. for criminal a district court testi testimony at the time of the earlier See, Code, § Family 54.02. At the Texas Roberts, 56, 65-66, mony. 448 U.S. Ohio v. transfer Dr. Richard W. (1980). 2531, 2539, 65 L.Ed.2d 597 100 S.Ct. Walker, Jr., psychologist, a clinical testified. Supreme cases illustrate Court Several appellant stated that he examined Walker . In requirement opportunity and motive intelligence psy- and conducted several Texas, 380 U.S. 85 S.Ct. Pointer v. appel- chological tests. Walker determined (1965), complainant testi 13 L.Ed.2d 923 emotionally capa- intellectually and lant was Although present, examining an trial. fied at understanding legal pro- nature of ble of by counsel and represented not Pointer was ceedings against capable him and was The complainant. did not cross-examine assisting legal own defense. Walker complainant’s held the later use of the Court appellant’s rehabilitation further testified right confron testimony Pointer’s violated couple lengthy, requiring would be afforded, through not because he was tation therapy follow-up of extensive residential counsel, opportunity adequate to cross- an therapy. appellant cross-examined When examine the witness. of his interview with Walker on the extent Green, 149, 90 399 U.S. interview In appellant, admitted his Walker California (1970), and Rob extensive, 26 L.Ed.2d that much S.Ct. appellant was not erts, upheld the Supreme Court supra the administration of of his time involved the preliminary ques- use of former psychological tests. When Green, determined the Court concerning ability testify tioned Walker’s given under “cir rehabilitation, the witness’ statement Walker answered those that closely approximating easily change. The cumstances not Id., typical trial.” 399 U.S. jurisdiction and trans- surround juvenile court waived party against 804(b)(1) proceeding, whom if the different states: 1. Rule offered, opportu- now had an following Hearsay exceptions. The develop nity the testimo- similar motive to is unavailable as excluded if the declarant direct, cross, examination. ny or redirect witness: by Chapter depositions is controlled (1) use of testimony. Testimony given as a Former Procedure. Code of Criminal 39 of the Texas of the same or witness at another 165, 90 at The S.Ct. witness was under Several other cases demonstrate how the judicial proceeding purpose type oath in a and Green’s issues raised and of the hearing may a cross-examination affect determination whether was not limited party a had the same or similar motive and scope or nature of his cross-examination. In Roberts, opportunity to cross-examine a witness. In the defendant called a witness at a (6th Taplin, United States v. 954 F.2d 1256 preliminary hearing permit she had show Cir.1992), prosecutor introduced a co- parents’ ted Roberts to use her checks and testimony defendant’s from a giving credit cards. The witness denied Taplin’s suppress. motion to The Sixth Cir- permission despite Roberts Robert’s detailed testimony cuit held admission such questioned examination which the witness’ 804(b)(1) Taplin violated Rule because did possible denial and the reasons for such a not have a similar motive to cross-examine Green, Relying denial. the Court “found pre-trial hearing. his co-defendant at the In guarantees trustworthiness the accou testimony order for at be admissible preliminary hearing terments of the itself.” subsequent proceeding, proceedings must Roberts, U.S. 100 S.Ct. at 2542. identity reflect a “substantial of issues.” In all Supreme three cases the fo- Court Taplin’s at trial Since issue involve- trial-type cused on the pro- conditions of the offense, Taplin ment in the no had incentive ceeding, the “accouterments” of trial circum- develop testimony such the co-defen- stances. The Court did pur- not discuss the pre-trial hearing. dant at the At this hear- pose particular or function of proceeding ing, testimony the co-defendant’s was direct- surprising itself. This is not pur- since the materially ed to an issue which did not affect pose preliminary of a hearing is to determine Id., Taplin. 954 F.2d at 1259. probable whether there is cause to believe Powell, In United States 894 F.2d 895 defendant committed the offense. (7th Cir.1990), upheld the Seventh Circuit Therefore, fairly scope questioning wide judge’s the trial exclusion of former testimo- generally However, permissible. pur- co-defendant, ny by plea guilt, at a pose a proceeding may sometimes serve to partially which exonerated Powell. The scope limit the of cross-examination. In oth- prosecutor Court held the did not have the words, er a more narrow focus also same motive to cross-examine the eo-defen- dictate a narrow motive to wit- prosecutor’s dant at the earlier See, nesses. Page, Barber v. 390 U.S. interest was to demonstrate the voluntari- 1318, 1322, 88 S.Ct. 20 L.Ed.2d 255 plea ness of the underlying and the factual (1968) (A preliminary hearing which is limit- support prosecutor basis to it. Thus the ed to a probable determination of cause is no incentive to cross-examine the co-defen- ordinarily a “much searching exploration less concerning dant Powell’s involvement merits.”). into the Id., offense. 894 F.2d at 901. subsequent We addressed the use of testi Russell, Powell, Taplin, pur- mony limited-purpose hearing from a in Rus pose particular proceeding of the at which sell v. (Tex.Cr.App. S.W.2d 914 elicited, together the former 1980). Although we noted that some examin specific pro- with the issues relevant to that ing may provide complete trials and ade ceeding, determined whether a similar mo- quate opportunity to cross-examine a wit fully tive to cross-examine the witness exist- ness, we Thus, held nature of Russell's examin ed. our determination must be made trial, ing practice both in statutorily and as ease-by-case on a review.

designed, permit complete did not a full and cross-examination so as to ensure the relia III. Russell, bility testimony. of the former THE FORMER HEARING Therefore, S.W.2d at 921. we held the mate riality previous hear Family The Texas Code allows the ing, jurisdic- as well as the facts and circumstances in original court to its exclusive waive particular case were determinative. Id. tion court if: and transfer child district

152

1) juvenile society of the and are best alleged the child is to have violated interests penal grade felony; by transferring the ease to a district law of the of served proceedings. court for criminal In the Mat 2) age the child was 15 of or older at Honsaker, (Tex.App.— 539 198 ter S.W.2d alleged the time he is to have committed of State, 1976); and, Dallas B.R.D. v. 575 adjudication hearing no the offense and 1979). (Tex.App. Corpus 126 Christi S.W.2d concerning has been conducted that of- — fense; and juvenile At the transfer the 3) investigation hearing full the after and prove juvenile’s is not to the State’s burden juvenile court there is determines Compare, guilt beyond a doubt. reasonable probable the cause to believe child State, (Tex.Cr.App. v. 820 S.W.2d 154 Geesa the committed the offense court 1991). before Rather, only “present the State must alleged of and that because the seriousness permit to the evidence that will court background of of the offense or the deciding to exercise its discretion community of the re- child the welfare whether or not to make the transfer to the quires proceedings. criminal ofM.I.L., 601 district court.” Matter S.W.2d 1980). 175, (Tex.App. Corpus 177 Christi 54.02(a). § The must Tex.Fam.Code State — juvenile making determination the this juvenile petition requesting the court to file a court shall consider: jurisdiction waive its exclusive and the child parents notice of the and his are entitled to (1) alleged offense was whether allegations place time as well as the and against person property, greater or any hearing held. Tex.Fam.Code to be weight to of- favor of transfer 54.02(b), 53.04, 53.05, 53.06, §§ and 53.07. against person; fenses juvenile any hearing, court shall Prior to “the (2) alleged whether the offense was com- complete diagnostic study, order and obtain a aggressive premeditated mitted in an evaluation, investigation social and full manner; child, circumstances, circum- and the (3) there is evidence on which a whether alleged stances of the offense.” Tex.Fam. may an grand jury expected be to return 54.02(d). Code indictment; juve hearing, the At the transfer (4) maturity of the sophistication judge is not our criminal nile constrained child; 54.02(e). (Juvenile § rules. Tex.Fam.Code (5) previous history of the the record and reports in addi judge consider written child; and See, testimony presented). Matter tion to (6) adequate protection of prospects D.W.L., (Tex.App. 828 S.W.2d 520 —Houston public likelihood of the rehabil- and the 1992) (Juvenile judge may con [14th Dist.] procedures, by use of itation of the child hearsay as well as written and sider evidence services, currently available and facilities State, testimony); oral KW.M. v. 598 S.W.2d to the court. 1980) (Tex.App. [14th Dist.] 660 —Houston 54.02(f). (Juvenile’s ju- Although § right against Fifth Amendment Tex.Fam.Code these judge must consider each of infringed when a venile self incrimination is factors, juvenile judge required is not investigation juvenile judge orders a full factor or even to give equal weight to each diagnostic study or such is considered when and, factor has been established hearing); A.D.P. v. find that each the transfer State, may be transferred to district (Tex.App. before the case 646 S.W.2d 568 —Houston C.C.G., 1982) (Juveniles 15 805 S.W.2d have to court. Matter do not [1st Dist.] M.D.B., 1991); Matter warned, psychological (Tex.App. Tyler prior to court-ordered — (Tex.App. right 417 testing they have a and clinical —Houston 1988); v. 738 S.W.2d any [14th Dist.] statements made C.W. remain silent and and, admissible). 1987); (Tex.App. A.T.S. This is because the may be —Dallas (Tex.App.— juvenile transfer is not 694 S.W.2d purpose of a may, innocence, juvenile judge juvenile’s guilt or Fort Worth to determine discretion, juvenile to dis- in his transfer the to determine whether the punishment, but See, § strength triet ment. Tex.Penal Code Ann. 1.02. court on the combina- 54.02(f) However, Finally, way appel- § tion of if assumes that factors. this no juvenile judge consideration of the had the Walker. finds the lant same motive 54.02(f) require factors the transfer of the in the in- At the transfer court, finding case, relevancy district will of evidence concern- stant proof of an ing be reversed absent abuse of appellant’s the of rehabilitation likelihood D.W.I., services, discretion. Matter 828 S.W.2d “procedures, was limited to those (Tex.App. [14th Dist.] juve- currently to the and facilities available —Houston 1992).2 54.02(f). § court.” The record before nile us does not demonstrate whether our crimi- IV. justice system provides proce- nal the same dures, which were avail- services or facilities DISCUSSION juvenile result, appel- to the As a able court. procedures, underlying policies, lant had no motive to cross-examine Walker juvenile purposes of a transfer concerning appellant’s “lengthy” need re- dramatically different than a criminal trial. availability habilitation of such reha- and the juvenile hearing, juvenile aIn transfer the justice system.3 bilitation criminal within.our judge’s guilt juve- focus is not on nile, Given the inherent differences between the but on whether the interests of the juvenile system justice sys- criminal and our juvenile society by can be better met tem, inapplicability of the constitutional transferring juvenile to district court for defendant, Honsaker, protections guaranteed a and the proceedings. criminal 539 S.W.2d and, 201; B.R.D., statutory the consideration limitation on 575 S.W.2d at 131. The juvenile rehabilitation transfer hear- at the proof State’s burden of trans- ing, I did not have a substantially would hold fer is lower than explore similar motive to issue only “present criminal trial. The must State way punishment phase it was used at the permit to the court evidence that will majority his murder trial. Because the dis- court to exercise its discretion....” Matter M.I.L., agrees, respectfully dissent. at 177. S.W.2d While the majority is judge correct that rehabilitation, must consider the likelihood of 54.02(f)(6),

§ only it is within context of juvenile justice system. Id. The likeli- appellant’s

hood of through rehabilitation

procedures, currently services and facilities justice system

available the criminal

not an issue. Compare, Tex.Fam.Code 54.02(f). Therefore, overlap there while the issues are relevant

between which phase

punishment of a criminal trial and a only transfer this is because always punish-

rehabilitation is relevant to D.W.I., Appeals 2. Court of I would Fourteenth also note that Walker’s con- applied an abuse standard re cerning appellant’s of discretion rehabilita- likelihood of view. This is the of review we have standard juvenile system tion within the was but one of the See, adopted pre-trial proceedings. for most six be considered factors which must (Tex.Cr. Freeman v. 723 S.W.2d juvenile judge. the other inherent dif- This with However, App.1986). appeals other courts of system ferences between the and our juvenile judge's findings have reviewed the under justice directly system criminal also have a common civil standard of review: whether the affected motivation cross-examine juvenile judge’s against great findings are so Walker. weight preponderance of the evidence as to K.D.S., See, manifestly unjust. Matter (Tex.App. [1st 302-303 —Houston Dist.]

Case Details

Case Name: Coffin v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 12, 1994

Citation: 885 S.W.2d 140

Docket Number: 832-93

Court Abbreviation: Tex. Crim. App.