Hidalgo v. State

(citations omitted). defendant, Harris, ex ruling against the the court at 35 S.W.2d basing it its proffered plicitly recognized After the State has evidence due that was “assumption” an diligence, holding part in on the burden shifts to the attempted to County sheriff had the Bell rebut that evidence and show lack of due effect, Connolly. In the district apprehend diligence. the burden to assumption shifted court’s Recognizing language in Prior diligence. lack of due Connolly to show Langston had been construed to make due Prior, 184; See, e.g., 795 S.W.2d at Sha diligence jurisdictional prerequisite, we fur- 102-03; han, Langston, 800 at 792 S.W.2d explained jurisdic- ther that a trial court has Stover, 554; at 809. 365 S.W.2d long tion probation to revoke so as the State’s motion to revoke was filed and the appeals concluded the State Id. The court of capias prior expiration issued diligence preponder- failed to show due Harris, probationary period. appeals S.W.2d at The court ance of the evidence. (“Any language contrary law, n. in the rec- proper considered applied overruled.”) prior ord, decisions of this court is based on the and reached a conclusion Arcila, supra. affirm. I would

evidence. IV. V. law, identifying applicable

After correct to hold appeals was appeals court of examined the factual The court of basis ap- which no ruling. for the trial court’s The court of that the “determination” the determination appeals peal may be compared first the facts in the in- taken adjudicate guilt on the Langston: probation stant case revoke to those alleged in the State’s ground grounds probationer Langston, Like the Connol- merits, opinion on the motion. In its ly properly the issue of due dili- raised law, the evi- considered followed the gence hearing. at his revocation As in record, reached a conclusion dence Langston, expla- the State has offered no This Court supported by the evidence. delay, nation for the and there is no evi- the Court of judgment of should affirm the hiding dence that the defendant after Appeals. Langston expiration of the term. involved months; lapse of seven a half Con- I dissent. nolly approximately was arrested four and supervisory a half months after his term Nonetheless, expired. precedent

had no

suggests lapse that a shorter shifts the proof: term

burden of Once the has ex- properly

pired and the defendant raises issue, the State bears the burden to diligence.

establish due HIDALGO, Jr., Appellant, Raymond (Tex. Connolly v. 1997). App. appeals The court of — Austin proceeded analyze the evidence in the then Texas. The STATE record: case, dili this evidence due No. 744-97 gence testimony the State presented of Texas. Appeals Court of Criminal by Community Supervision Officer Smith County about a letter that Bell tried to Jan. Connolly May send Further more, any evidentiary support, without

district court concluded that the Bell

County sheriff must have tried to arrest 19,1997,

Connolly before March because it fact, duty

was the sheriffs to do so. In Scharmen, Antonio,

George appel- San lant. Glass, Atty.,

Roderick Asst. Dist. San B. Antonio, Paul, Austin, Atty., Matthew State’s for State.

OPINION HOLLAND, J., opinion delivered the MANSFIELD, PRICE, the Court which WOMACK, KEASLER, J.J., joined. Jr., Raymond Hidalgo, juve Appellant nile, due to challenges his criminal conviction friend, Garcia, friend, error in his transfer from court. He Chris and her John contends he was denied his to the assis security guard Bernal. A intervened and appointed tance of counsel because his attor made them leave. Unaware ney was not notified of the them, Perez, companions following were examination, pursuant conducted to Garcia, apart- and Bernal drove Bernal’s 54.02(d) Code, § of the Juvenile Justice until car, parked. ment and As Perez exited after the exam occurred.1 The Fourth Court coming she noticed a car towards her. As Appeals rejected holding, this contention approached, appellant the car Perez saw le- alia, inter no Sixth Amendment violation aning pointing gun out of a car and a hand attorney arose from give the failure to his Appellant gun towards her. fired the three Hidalgo prior notice of the exam. or four times in Perez and Garcia’s direction. (Tex.App. Antonio — San Perez shot in her left arm and was abdomen. 1997). granted appellant’s petition We for Garcia was not hit. discretionary to address review whether his arrest, appellant At time attorney prior was entitled to notice of the years initially charged fifteen old. He was as exam. juvenile.2 petitioned juvenile

a The State I. appellant court to transfer to criminal court prosecution as an adult.3 The State also On December while at a restau- rant, requesting a motion a filed appellant group companions and a 54.02(d).4 exam, by ju- § allegedly as mandated The fight tried to initiate a with the victim, Perez, boy- granted Charisma the victim’s venile court the State’s motion for a ceedings.” question § 1. The The Juvenile Justice Code is Titles 3 and 4 of 54.02. Fam.Code Tex references, Family statutory presented juvenile the Texas Code. All court is whether there to the indicated, unless otherwise are to "probable the current the child before is cause to believe that Family Texas Code. alleged the court committed the offense and that offense or the because of the seriousness of the 51.02(2), juvenile jurisdic- § 2. Pursuant to court background of the com- of the child the welfare any age tion attaches to child ten or older and munity requires prosecution.” criminal Tex Fam. eighteen engages “delinquent under who 54.02(a)(3). making § this determina- Code indicating super- or conduct conduct a need for juvenile required to consider: tion the court is by vision” as defined the code. Some law vio- alleged against person a whether the offense was lations, however, juris- are under the exclusive person property, with offenses though diction of the criminal court even transfer; weighing whether the more favor person eighteen was under at the time the al- aggressive alleged in an offense was committed leged perjury, offense. These offenses include manner; premeditated whether there is evi- and violations, punishable by traffic offenses fine expected grand jury may be dence on which a only, and certain alcohol violations. Tex. Fam. indictment; sophistication and ma- return an Code § 51.03. child; turity previous histo- record and of the child; adequate prospects ry of the juvenile 3. The transfer of a criminal is public protection and the likelihood sometimes referred to as certification to criminal procedures, use of rehabilitation of the child services, juvenile jurisdiction. court or waiver of All juvenile and facilities available process by of these terms refer to the which the 54.02(f). Fam.Code § For offenses court. Tex jurisdiction relinquishes its over a child legis- January committed on or after and transfers the case to a court of criminal juvenile longer requires court to a lature no jurisdiction prosecution as an adult. S. alleged offense was com- consider whether the Rights Davis, of Juveniles: The Juvenile Justice 4.1, aggressive premeditated man- mitted in an ner, Family § System 4-1 The Texas a is evidence on which or whether there Code refers to transfer as "waiver of grand jury may jurisdiction expected return an indict- discretionary be transfer to crimi- 54.02(f). . purposes § § nal court.” Tex. For ment. 54.02. Fam.Code Fam.Code Tex opinion process we will this refer this 54.02(d) requires prior "transfer.” 4.Section to a hear- juve- ing petition on the State's for transfer of a discretionary power A court’s to trans- nile, and obtain a court "shall order fer a can be where the exercised evaluation, complete diagnostic study, social petition requesting State flies a or motion waiver child, investigation full his circumstances 53.04. When the transfer. Fam.Code transfer, alleged offense.” and the circumstances of the requests State court is 54.02(d). report intended jury This required to "conduct a without proceeding. pro- consider transfer of the child for criminal for use the transfer psychological exam and on March 7th and he claimed that without advance notice his attorney psycholo- 8th was examined could not advise him of the nature gist. psychologist’s report The submit- of the examination.

ted to the court.5 Appeals rejected ap- The Fourth Court of contention, pellant’s distinguishing Estelle report appellant’s psychological First, grounds. and Satterwhite on two Es- exam concerned his development, intellectual adjudicatory telle and Satterwhite involved psychological maturity, personality dynamics, proceedings, non-adjudi- criminal rather than and mental report appel- abilities. The listed catory juvenile proceedings. Hidal- functioning, lant’s overall level of as mea- Second, go, 945 S.W.2d at 319. Scale, sured on the Wechsler in the low- stake in Estelle and Satterwhite were “clear- (80-89) average range intelligence. ly greater magnitude” of a because the ex- indicated he proficient was most ams in those cases were used to determine logical reasoning, and proficient least in so- eligibility penalty. for the death judgment. cial report also contained psychologist’s appeals recognized summaries of the The court of conversa- this Court has appellant Relying tions with not addressed this issue. on concerning performance Lagrone State, 602, (Tex. school; participation special education Crim.App.1997) teachers, appeals the court of programs; conclud relationships fami- with give ed the State’s failure to friends; notice did not ly, history; and medical substance appellant’s rights violate because this abuse; promiscuity; sexual and he how held a does not have a Sixth Amend past present viewed his emotional state. ment to present during have counsel concluded, report among things, other the psychological Hidalgo, exam. appellant had “conduct disorder” and S.W.2d at 319-20. The court reasoned that “dsythymie disorder.”6 “if the Sixth Amendment is not violated when On March court juvenile’s attorney is excluded from the jurisdiction waived and ordered appellant to itself, examination it stands to reason that no be transferred to criminal prosecu- court for constitutional violation occurs an attor when tion as an jury adult. A appellant found ney is not notified examination until guilty attempted capital murder and sen- after it place.” has taken Id. at 320. The fifty years imprisonment. tenced him to rejected appellant’s contention that he needed to consult with counsel to decide II. whether to submit to the on exam the basis appeal, appellant On relied Estelle v. that the mandatory exam is under section Smith, 451 U.S. 54.02(d) Family of the Texas Code. The (1981) L.Ed.2d 359 and Satterwhite v. Court also appellant noted that if had such a 249,108 S.Ct. 100 L.Ed.2d 284 right it was waived the psycholo (1988). Appellant claimed the to failure noti- gist’s report noted was informed of fy attorney prior his to the psychological exam, examination violated his Sixth Amendment he indicated he willing understood and was right to Specifically, assistance of counsel. proceed. 54.02(e) mail, 5. Section authorizes the for the exam certified 54.02(d) report by § to consider the making mandated along petition with the State's first amended a determination on transfer. A record, Noticeably transfer. absent from the may also consider at the transfer however, receipt documenting is the return officers, reports probation profes- written receipt pre- counsel’s of these documents. At a employees, professional sional court or consul- hearing, appellant's attorney trial testified he did testimony tants. The court also hear the not receive notice of the exam until the district 54.02(e). witnesses. attorney's office sent him a facsimile on March facts, light 1995. In of these and the State’s appellant’s

6. The does not reflect that position providing appellant’s attorney with attorney was notified as to when the exam was to advance notice of the exam is neither constitu- occur. The record indicates that on March statutorily required, tional nor we will assume no attorney's appel- the district office sent given. notice was attorney, copy lant’s of the motion and order Appellant urges this Court treatment, to reverse the through interests of the child appeals’ holding court of prior lack of the adult criminal court directed its efforts at notice appellant’s did not violate punishing Sixth consequence the offender. One to assistance of counsel. this distinction was that were de many nied fundamental constitutional and

III. procedural rights: Before this Court can address whether a proceedings Juvenile were defined as civil juvenile’s attorney constitutionally entitled criminal, rendering rather than inapplica- prior notice of a psychologi court-ordered ble the rules of criminal evidence and their exam, cal we must first determine whether appropriate safeguards against admittance the Sixth Amendment’s assistance prejudicial inflammatory evi- applies juveniles. counsel Though it has Thus, system’s dence .... long been Rights settled that the Bill of protective rejection system of the adult applies juvenile proceedings, to what ex procedural came at the cost of the undetermined, tent remains precise and this protections constitutional attendant there- issue has not been to; decided this say a dubious tradeoff —to the least— the U.S. Initially, proce Court.7 and, on, recognized early re- safeguards provided by dural the Constitu satisfactory. sults have been less than Rights tion and the Bill of were inapplicable Lanes, 767 at 792-93 omit- [citations S.W.2d juvenile Lanes, to proceedings. 767 S.W.2d ted]. at 792-94.8 This was due to philosophy the Supreme recognized proce- The the Court underlying juvenile the creation of the court injustice juvenile system dural of in Kent the system juveniles which needing viewed the 1045, States, 541, v. United 383 U.S. 86 S.Ct. guidance. state’s care legislatures and State (1966). Kent, Supreme 16 L.Ed.2d 84 In the juvenile created courts for treatment and Court should not be determined that children rehabilitation of child offenders. Id. at 792- merely procedural rights given denied adults approach 93. The rehabilitative examined juvenile proceedings are character- problems affecting individual offenders and Kent, 560, ized as civil. 383 U.S. at 86 S.Ct. structured individual programs rehabilitation at determina- Identifying 1063. the transfer resolving wayward juvenile’s family, to “the “critically important,” tion as the Court held personal social and problems prepare and to juvenile process oper- a state must juvenile] healthy, productive [the to be [a] ate in notions of accordance with traditional abiding Jeffrey and law Fagan adult[ ].” & process fundamental fairness. Id. The must Deschene, Elizabeth P. Determinants Ju of include assistance of hearing, effective dicial Waiver Decisions Violent Juvenile counsel, the and counsel’s access to child’s Criminology Offenders, 314, 81 CRIM. L & social file. (1990). 318 The focus on individual treat juvenile ment apart regular defining set courts Supreme The Court continued Lanes, appli- criminal courts. 767 protections S.W.2d at 792- fundamental constitutional juvenile juvenile justice system 93. The on in In re focused the best cable to the State, 789, (Tex. systems twenty-two 7. See Lanes v. 767 All but two S.W.2d 791 in at least states. Crim.App.1989). Gault, Supreme Court in by In re juvenile systems states had 1925. courts 1, 1428, U.S. 387 87 S.Ct. 18 L.Ed.2d Bilchik, 527 Shay Prosecuting & Charles W. Thomas (1967) "[njeither determined that the Fourteenth Empir Legal Juveniles in Courts: A Criminal Rights nor the Bill of is for adults Criminology 439, Analysis, ical 451 76 L. & Crim. Ohio, 596, Haley alone." See also v. 332 U.S. (1985). sys separate court Texas established a 601, 302, 304, (1948) 68 S.Ct. 92 L.Ed. 224 1907, juveniles adoption tem for with the Colorado, 49, 1209, Gallegos v. 82 S.Ct. Ronny the Juvenile Court Act. Bill Anderson & (1962)). 8 L.Ed.2d 325 A Gurley, Offender The Juvenile & Texas Law: (1969). juvenile Texas’ first code was 1899, Legislature Handbook In the Illinois enacted the provision enacted 1943 and included a for the juvenile providing system first court act devot juvenile prosecution of offenders in adult crimi entirely adjudication ed to offend th 204, Leg., nal courts. Act of 48 R.S. ch. April ers. See Act of III. Laws 131 (Vernon 1971). §§ By art. 2338-1 1-21. there were

751 Gault, balancing adopting 387 S.Ct. In this test this Court U.S. 18 L.Ed.2d “dispel antiqu- held the Fourteenth also announced a desire to Court applied procedural Amendment’s Due Clause unrealistic Process ated and resistance entitling delinquency proceedings safeguards” system. charges, scarcity children to notice of coun- defense We observed due to sel, self-incrimination, privilege against programs, training, professional treatment juvenile system confrontation of and cross examination resources the financial Gault, punitive U.S. at more than rehabilita- witnesses. had become cases, In subsequent Supreme ignore at 800. than these tive. Id. Rather approach “aspirations continued its case case we chose to balance the realities determining applicability grim constitutional court and the realities of juveniles. grant protections system.” Rather than Id.

juveniles array protections the full under Recent amendments to Juvenile Jus- Rights, the Constitutions and Bill of change juvenile adjudication tice Code Court has examine protection chosen to each punishment, “grim causing the realities” to claimed it effect would have on recently be even more this Court salient. As unique juvenile justice sys- framework State, recognized Blake v. tem. (Tex.Crim.App.1998), juveniles now face consequences similar to those faced (Tex. Lanes apparent the fact adults. Most Crim.App.1989), this was called subject forty-year be to a term of now probable determine whether the cause re imprisonment. quirement of the Fourth Amendment 54.04(d)(3)(A)(i)-(iii). recognized Blake U.S. Constitution and Article 9 of the I changes making some of the applies Texas Constitution ar juvenile system punitive than more rehabili- Relying eight rests. on the Court’s tative: opinions foundation for rights guidance,9 this legislature Court distilled a test for delin expanded definitions [T]he eating protections apply conduct, which delinquent expanded constitutional the list of juveniles to in proceedings. felony offenses pro- that authorize criminal Court, Court Supreme This in juveniles age observed for ceedings over of four- evaluating teen, degree whether and to what each authorized confinement Texas protection constitutional Department extends to of Criminal Justice for vari- proceedings, analysis utilized an comparing grades felony felony ous and habitual purposes conduct, goals juvenile system and categorized adjudications certain particular right felony asserted. This as ‘final that can convictions’ be then purposes examined the Texas repeat used as enhancements for offend- juvenile system probable ers, provisions and re forbidding cause removed quirement, concluding the did not con photograph two maintenance of centralized and or records, flict undermine one fingerprint another. laws repealed about eight (1) Supreme opinions: Haley linquency v. See Tex determination. Fam.Code. Ohio, 596, 601, 304, 302, 54.06.; (5) Pennsylvania, § 332 U.S. 68 92 S.Ct. McKeiver v. 403 U.S. (1948) 528, 1976, (1971) entitling juveniles protec- 224 L.Ed. to 91 S.Ct. 29 L.Ed.2d 647 refus- against ing juveniles right jury delinquency tions coerced confessions. See in to Fam. 51.09.; (2) U.S., 541, determination; 54.03.; see, § § v. Kent 383 U.S. 86 But Code Fam.Code Tex 1045, (1966) Jones, 519, 1779, (6) juve- entitling S.Ct. 16 L.Ed.2d 84 Breed v. 421 95 S.Ct. U.S. (1975) procedural protections entitling juveniles to niles in hear- 44 346 to dou- L.Ed.2d 54.02.; Gault, (3) ings. § protections. See jeopardy See In re ble Tex Fam.Code Tex Fam.Code 1, 49, 54.02(a)(2) (7) Martin, (j)(3)).; § U.S. 387 87 S.Ct. 18 and L.Ed.2d Schall v. (1967) 2403, notice, 253, entitling juveniles 527 counsel, confrontation, to 104 81 467 U.S. S.Ct. L.Ed.2d 207 (1984) recognizing pre-trial cross-examination detention of valid, T.L.O., (8) protection Jersey self-incrimination. See New 469 v. U.S. 105 51.10, 53.01, 53.06, 3.04, (1985) § § § entitling juve- 5 S.Ct. 83 L.Ed.2d 720 54.03.; (4) Winship, In re 90 a niles to diminished Fourth Amendment stan- (1970) Lanes, juve- entitling 25 368 S.Ct. L.Ed.2d dard in school searches. See proof beyond a in niles reasonable doubt de- at 794.

752 records,

sealing proceed- destruction of line” rule to mark when adversarial Gouveia, mandated the use of the Texas Rules ings begin. United States v. 467 evidentiary Criminal Evidence and the 180, 187-89, 2292, 2297-98, U.S. 81 provisions Chapter 38 of the Code of (1984). Instead, L.Ed.2d 146 Criminal Procedure instead of their civil Court has left this determination to state counterparts judicial proceedings in- courts. volving juveniles. This Court has also refused to declare Blake, 971 at leg- S.W.2d n.28. These recent “bright Frye, line rule.” v. See State changes islative origi- continue to erode the 327-28; S.W.2d at Green S.W.2d justifications nal denying juveniles Instead, (Tex.Crim.App.1994).11 procedural protections same as adults.10 determining recognized this Court has Therefore, consistent with holding our particular a critical whether a event Lanes, juvenile proceed- we will examine the stage triggering a Sixth Amendment ing at —thus issue to determine whether it is the depends on whether type proceeding counsel — Sixth Amendment was coping legal requires accused aid with so, designed protect. If we must then problems meeting or his adver- assistance impact degree examine the impairment Green, sary. Frye, supra; S.W.2d protection constitutional will have on our 720-22. justice system.

rv. Appellant relies on Estelle and Satterwhite notify for his contention that the failure to The Sixth provides Amendment attorney of the examination advance prosecutions, “[i]n all criminal the ac right to violated his Sixth Amendment assis- enjoy cused shall ... to have the Estelle, capital tance of counsel. mur- Assistance of Counsel for his defense.” U.S. prosecution, der the trial court ordered Const, Designed remedy amend. any VI. pre-trial psychiatric of the defen- evaluation adversary imbalance system, in our the Sixth competent dant to he was determine whether promises that an accused is enti 456-57, Estelle, to stand trial. 451 U.S. at tled to defense counsel in prose all criminal 101 S.Ct. at The defendant was deter- Frye, cutions. State v. competent subsequently mined convicted (Tex.Crim.App.1995). Under the Federal degree appeal, of first murder. On the de- Constitution, the Sixth Amendment Fifth Sixth complained fendant upon counsel attaches the commencement of rights Amendment violated at the sen- were Illinois, proceedings. Kirby adversarial v. tencing phase 682, 688-90, 1877, of the trial when the court 1881-83, 406 U.S. 92 S.Ct. permitted present testimony the State to right 32 L.Ed.2d 411 The extends to psychiatrist all stages” performed “critical of the who the evalua- proceed criminal ing, just Affirming vacating not the actual trial. tion. Supreme The the order death Court, however, sentence, “bright has not established a agreed. Es- (1991); legislative filing 10. It is evident that this trend towards L.Ed.2d 1075 an information and punishment light public's State, will continue in of the complaint, McCambridge v. 712 S.W.2d of, about, perception anxiety an increase in arraignment, (Tex.Crim.App.1986); 499 Michi- crime, violent crime. Violent Jackson, 625, 629, gan v. U.S. 106 S.Ct. 475 however, has continued to decline. FBI’s Annu- (1986); 631 and an Arti- 89 L.Ed.2d Report, al 1996 & 1997. Crime States in the United “warning hearing,” cle where an arrest 15.17 If this trend continues and State, present, warrant 721 Nehman v. subject punishment are to the similar (Tex.Crim.App.1986). The court, philosophy court as in criminal under- assistance of counsel under the Sixth Amend- lying separate systems the need for two Green, triggered by ment is not an arrest alone. disappears. 720; State, 872 S.W.2d at Garcia v. (Tex.Crim.App.1981); Kirby, 406 U.S. at Examples 11. of actions which have we held 688-91, 1881-83, 92 S.Ct. at 32 L.Ed.2d at 417- pro- mark the initiation of formal adversarial 18; Wade, indictment, United States v. 388 U.S. ceedings filing include: an DeBlanc c.f. 1149(1967). S.Ct. 18 L.Ed.2d (Tex.Crim.App.1990), 799 S.W.2d 701 denied, cert. telle, 468-71, based, 451 U.S. at at 1875- preparation S.Ct. were conducted in for a 77. pending similar transfer motion then state charges. court regarding unrelated state Id. psychological Court held that reports at 700-701. The admitted were over exam did not violate the defendant’s Fifth objection they the defendant’s that violated rights and Sixth Amendment when used rights his Fifth Sixth Amendment be- strictly to competency, determine but did cause ap- he was not Mirandized and his rights violate those when against used him at pointed counsel was not notified of the exam- punishment stage. Id. The Court ex inations. plained by using that prove the evaluation to the defendant’s dangerousness, future appeal On to the United States Third beyond State had moved the neutral Court of Appeals, the court determined Estelle, for which the exam was intended. defendant’s reliance on Estelle was mis 451 U.S. at 101 S.Ct. at 1874 The Court placed. A.R., United States v. 38 F.3d at concluded that once the results of exam Estelle did not hold that a

were used for a objective “much broader exam is the sort of event to which the Sixth plainly adverse” to the defendant to assistance of counsel evaluation interroga amounted to a custodial Rather, attaches. Estelle held that if evi entitling tion the defendant to Fifth Amend acquired dence from the exam is used protections. ment Id. The Court also deter against during the defendant pros a criminal mined the defendant’s Sixth Amendment ecution, the exam pur exceeds the neutral to counsel was violated because the pose for it which was intended and should be State’s later use of the examination at the stage. viewed as a critical Id. at 704. As sentencing proceeding caused the examina such, Appeals the Third Court of concluded tion “to stage be a critical aggregate acquired that because evidence from the proceeding against Estelle, the respondent.” against exam was not used the defendant in 470, 101 451 U.S. at S.Ct. at 1877. prosecution, juve his criminal but Estelle, Unlike appellant is complaining not hearing, nile transfer the defendant was not of the State’s use of psychologist’s report entitled to relief under Estelle. Id. at 705. against him at his prosecution. criminal Ap- inquiry, Rather than end its the Third pellant challenging the use Appeals went on to examine the him at the transfer hear- applicability of the Fifth and Sixth ing.12 Amend- argument A similar was made in ment AR, (3rd proceedings. United For States v. 38 F.3d 699 Cir.1994). guidance, reasoning the court looked to the defendant, juvenile, chal- that, lenged Estelle and conclude like competen- district court’s transfer order on cy hearing, proceeding the basis is intended to that his constitutional were important violated. serve an neutral Relying Estelle, purpose. Id. at Id. The emphasized psychiatric psy- defendant psychiatric maintained the exami- chological nations reports purposes for use in obtained for conducted his transfer hearing, question violated his transfer do not bear on the under the Fifth innocence; and Sixth guilt only Amendment. At the of or but the manner in defendant’s hearing, transfer government proceeds against the state introduced which the accused. psychiatric several psychological reports. Citing the factors13 used to measure whether evaluations, The on reports given which the were a proceeding stage trigger- is a critical Second, appellant’s 12. The record reflects protections it was attach. counsel who admitted the into evidence help- where skilled counsel would be useful in during punishment phase appellant’s crim- ing legal the accused understand the confron- prosecution. inal Third, stage ... tation a critical exists. applies proceeding to counsel if the tests 13. The court relied on the three factors extracted the merits of the accused’s case. by Borg, the Ninth in Circuit v. Menefield A.R., (citing United States v. 38 F.3d at 704 (9 Cir.1989): F.2d 698-99 th 698-99.) Borg, v. 881 F.2d at Menefield First, pursue strategies if failure to or remedies significant rights, results a loss of the Sixth counsel, crit- Supreme acknowledged the ing to assistance of The Appeals reading Third Court of observed its in Kent. To limit importance ical of transfer making Estelle was consistent with established juvenile court’s discretion jurisprudence. Sixth Amendment determination, The court transfer holding, of appeals also observed that its juvenile for courts sét out a series of factors Estelle, language “derogate did not The factors were classified consider. Kent from the accused’s to a fair trial.” danger pub- to the according potential A.R., (citing v. 38 F.3d at 705 United States lic, juvenile offender’s contrasted with 1866). Estelle, 451 U.S. at 101 S.Ct. amenability These factors are to treatment. juvenile waiver law. incorporated into Texas

V. 54.02(f).16 § assist To See Tex. Fam.Code exploring After the purpose of the factors, the law assessing the court in these mechanism, judicial transfer transfer examination a requires a process,14 trial psychi court’s use of training in adolescent specialized doctor with psychological reports, atric and we conclude psychology assessment. and forensic proceeding the Texas serves 54.02(d). provides The exam Fam.Code purpose. legislatures origi State neutral matu- juvenile’s sophistication, insight on the nally process devised the as a means of re rehabilitation, rity, decision- potential for moving persistent juvenile serious offend skills, psycho- ability, metacognitive making generally ers not amenable to rehabilitation sociological other logical development, and system. presence to the adult criminal and cultural factors. system of such the tremendous Appellant contends seen as a threat to the fundamental structure juve had on him as a consequences transfer juvenile system criminally and the less attorney be required that his nile offender sophisticated.15 Transfer was intended to be the exam so that he given prior notice of exceptional philoso used cases. The to the nature and that, could advise phy possible, whenever children exam, the conse as well as protected “should be and rehabilitated rather rejects the Appellant subjected quences of transfer. than to the harshness of the crimi “children, Lagrone reliance system” appeals’ nal all court of children did not hold redeeming.” contending are this Court worth PRESIDENT’SCommis coun entitled to confer with is not sion on Law Enforcement and Administra He also main- (1967). examination.17 sel before the tion of Justice tation?, Essentially, (1992); have three means states devised 25 Conn. Rob- L. Rev. 62-63 transferring juveniles Delinquent to criminal district and Children ert Children Dawson, O. transfer, judicial prosecution: court for adult Supervision: Comments in Need Draftsman's transfer, Code, prosecutorial Family transfer. Texas Title 3 Tex Tech L. transfer, present judicial case involves (1974); Feld, C. Rev. Reference Barry judge may mechanism which a Leg- Adult Prosecution: The Juvenile Offenders independent determining discretion in exercise Asking Ques- islative Unanswerable Alternative particular juvenile. whether to transfer a Under tions, 62 Minn. L.Rev. 517-19 prosecutorial prosecu- transfer mechanism authority tors have unilateral to determine the required each to find 16. The court is not adjudicatory judicial prose- forum. Unlike district a transfer a case to criterion before it can transfer, legislative cutorial transfer is not dis- on the court. The order a transfer cretionary. ju- This mechanism excludes certain any strength of the criteria. combination veniles or certain offenses from Doe, 54.02(f); e.g., States v. see United jurisdiction places juveniles in the adult denied, (5th Cir.), cert. 871 F.2d 1254-55 regardless system independent criminal court 276, 107 L.Ed.2d 257 juvenile’s circumstances indicative of the amena- (1989). juvenile court decide to Should the bility See rehabilitation. jurisdiction, re the court is waive its exclusive 54.02(m). § specific quired reasons to state in its order the 54.02(h). § for waiver. Tex Fam.Code Harris, Douglas e.g., 15. See Does the Texas Juve- Requirement Comport nile Statute with the Waiver Process?, (1995); reading Lagrone appeals’ is 26 Tex Tech L. Rev. 17. The court of Due of Gordon A. Martin, Jr., Lagrone Delinquent incorrect. Court determined and the This may Is Still a Place that a order a defendant to sub- Juvenile Court: There Rehabili- trial court for Green, 327-28; at at In in down- 720-22. appeals tains court of erred the itself, the psychological because the exam the abuses significance of playing the transfer Sixth protect mat- Amendment was devised to though transfer is not a life death ter, similarly present. dev- are not the transfer consequences may the be actually agree. hearing, least one determination is astating. join We at where We made, entitled to juvenile to a is the assistance other state which found transfer 51.10(a)(2); prosecution criminal district for adult counsel. Tex. Fam.Code States, single juvenile the supra. is “the most serious act the Also in Kent v. United perform juvenile oppor- ... waiver hearing, court can because once the has the transfer occurs, pro- jurisdiction the all tunity challenge employed child loses the to methods avail- possibilities tective and rehabilitative the in the the exam and conclusions reached R.G.D., 1, 527 A.2d able.” State v. 108 N.J. appellant’s report.20 As contention (N.J.1987). transferred, Once be advised as to the nature should subject pun- be to exam, child will the retributive agree. of the purpose we Howev- justice system ishment of the criminal in- er, say type the exam itself is the we cannot juve- goal stead of the the rehabilitative that can legal confrontation be understood system. justice nile State’s Should the only consulting with counsel. the after As petition granted, juvenile be transfer the case, administering present the doctor subject stringent punish- will be to more apprizes juvenile of typically evaluation Additionally, ment.18 status loss of rights regard psychological his or her with personal degradation “the and re- results in testing of the examination. and the legitimate opportunity striction of that often Furthermore, because the exam is mandated Despite follow a criminal conviction.”19 statute, by counsel is aware of the need however, consequences, can- tremendous we advise when the State files the his client say not consti- exam itself 54.02(d). petition. transfer Tex. Fam.Code stage triggering tutes a critical Sixth holding today protects Our the individual- protection. juve- philosophy istic and rehabilitative discussed, previously system preserves judicial As it nile whether which, particular depends event is stage process prosecutorial a critical on transfer unlike transfer, requires coping whether the accused examines and consid- aid legal problems meeting specific with or assistance in ers those issues individual adversary. juvenile.21 his See in- Frye, permits State v. transfer Judicial adult, state-sponsored psychiatric may mit to a exam on the child well as an be detained dangerousness twenty-first past birthday, may future when a demon- he cer- defendant lose dangerousness public put disqualified strates an intent on future tain and be civil Moreover, expert testimony violating employment. typical without defen- if sent to a right against likely subjected prison, dant’s Fifth Amendment he 'to self-incrim- adult is to be Lagrone, physical, ination. The La- S.W.2d at 612. even sexual in- abuse older grone excluding mates, also conclude that defense his chances for are rehabilitation dangerous from the future likely significantly. counsel examination to decrease Schomhurst, did not violate the defendant’s counsel. F. Thomas The Waiver Juvenile Revisted, Id. at 612. L.J. Court Jurisdiction: Kent 583, 43 Ind. 586-87 succinctly 18.As one commentator summarized: Harris, supra (citing note 14 830 M. Donna convincing There is evidence that most al., Study Bishop Prosecutorial et Waiver: Case personnel, judges re- themselves Reform, Questionable 35 Crime a Delinq. jurisdiction gard the waiver of the most as (1989)). imposed sanction that severe be only court. Not is ex- 54.02(e) requires report, 20. Section probability posed punishment, of severe well as all written matter considered other confidentiality individuality but the determination, made be disclosed and proceeding replaced by publicity is juvenile’s attorney one at least available to day law; concepts penal and the normative hearing. prior to the transfer which, acquires public child arrest record acquitted, even he is will inhibit his rehabili- if trans- opprobrium attached is the method for tation because of the 21. Judicial transfer by prospective employers; provides for a if convicted fer that before a thereto society terests of both purpose.22 and the appellant intended Because weigh against setting. each other in supply incriminating a neutral forced to evi- neither Use of leads, statements made in the the investigative dence nor we do not exam juvenile’s prosecution disregards criminal the agree appellant’s with contention that the rationale effectively for the exam and trans- interrogation exam amounted to a custodial forms the exam investigation. into criminal entitling him to Fifth and Sixth Amendment Also, juveniles if can not be assured that protections. Furthermore, their statements can against not be used State’s use of the information elicited from them in future criminal prosecutions, they the exam was limited to the transfer determi- will participate not want to in the exam. As nation, find violations we no constitutional such, ability court’s to obtain all consistent with Estelle or Satterwhite. available information gather and to reliable appeals The decision of the evidence would be frustrated. judgment are affirmed. the trial court

VI. KELLER, J., Though recognizes concurring opinion, this Court today that filed JOHNSON, McCORMICK, P.J., counsel purpose serves no functional which J., psychological joined. exam conducted for the neutral purpose of determining whether a MEYERS, J., opinion. dissented without court, should be transferred to criminal we are not potential blind to the injustice. KELLER, J., concurring opinion in filed a In light of the criteria a court is McCORMICK, JOHNSON, which P.J. and required to consider in making its determina- J., joined. transfer, tion on recognize we that it is all inevitable, but any in the course of 54.02(d) requires Sec. court to psychiatric psychological examination, study, complete diagnostic order “a social doctor inquire will into the facts of the al- evaluation, child, investigation of the and full leged juveniles’s offense prior crimi- circumstances, and the circumstances experiences. nal See alleged prior offense” to a transfer hear- 54.02(d) (f). & query permissible Such a asks, ing. Appellant’s ground for review long so as it is not intended to force given “Must defense counsel be advance no- supply incriminating investiga- evidence or juve- tice of a psychological examination of a tive against leads themselves. Failure to nile which is to be later the state in used query limit the permissible to its against its case in adult could juvenile’s lead to a violation of a charges?” majority assumes that notice against self-incrimination or to counsel. given, was not and then focuses on sec-

Though review, part discussing ond ground of the this case contained concerning information question matters other than the of notice. I appellant’s previous delinquency given and criminal would hold that counsel is advance conduct, summary as well as a doctor’s notice of the exam the fact virtue of conversation with regarding the of statutorily required. examination is alleged fense prior delinquent and his con petition Once the transfer filed duct, we cannot say the exam exceeded its appellant, his on notice that if he counsel was because, sent to adult supra criminal court. See "they’re trying say n. 14. I shot some- allegation. body.” deny Prosecutorial and He on to transfer fail to went take juvenile’s previously He into account states that he has been referred life circumstances theft, Department Juvenile for auto bur- which proble- demonstrate a traumatic or habitation, glary marijuana. possession of a history. life matic wrong, He knows that such behavior is knows wrong, possi- and understands the Regarding alleged appellant’s offense and consequences ble of such He behavior. under- prior delinquency, report simply stated: possible up- consequences stands the Raymond reports currently residing that he is coming certification of as well County in the Bexar Juvenile Detention Center participants as the roles of the therein. client, needed to advise his he had better do

so.

I judgment. concur in the Court’s LAWRENCE, al., Appellants,

Martha et

COASTAL MARINE OF SERVICE

TEXAS, INC., Appellee.

No. 09-96-110CV. Texas, Appeals

Court of

Beaumont.

Submitted Oct. 1997.

Decided Dec.

Ordered Published Feb.

Case Details

Case Name: Hidalgo v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 13, 1999

Citation: 983 S.W.2d 746

Docket Number: 744-97

Court Abbreviation: Tex. Crim. App.