In re S.M. ( 2006 )

TERRIE LIVINGSTON, Justice,

concurring.

I join in the majority’s opinion and result but respectfully write this concurring opinion only to address the conflict I see between the family code provision that allows the State to introduce written reports from probation officers, professional court employees, and professional consultants at a juvenile’s transfer hearing, and the Sixth Amendment confrontation clause rights. See U.S. Const, amend. VI; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Tex. Fam.Code Ann. § 54.11(d) (Vernon Supp.2006). I do not believe section 54.11(d) comports with the Supreme Court’s directives set forth in Crawford regarding a defendant’s Sixth Amendment right of confrontation against prosecution witnesses or our Court of Criminal Appeal’s opinion in Russeau, which held such incident reports to be testimonial in nature, thereby requiring a right to cross-examine those witnesses. Crawford, 541 U.S. at 36, 124 S.Ct. at 1354; Russeau v. State, 171 S.W.3d 871, 880 (Tex.Crim.App.2005), cert. denied, — U.S. —, 126 S.Ct. 2982, 165 L.Ed.2d 989 (2006).

Section 54.11(d) purports to allow probation officer reports, incident reports, and the like to come in at a juvenile transfer hearing without the testimony of the authoring witness, thereby denying a juvenile’s confrontation right to cross-examine witnesses against him. Tex. Fam.Code ANN. § 54.11(d). While the juvenile is provided an attorney, along with the right to examine all witnesses against him, and to present evidence and argument, he is entitled to only one day’s notice or access to any such materials that will be presented against him. Id. § 54.11(d), (e). I do not see how this is sufficient to safeguard a juvenile’s right to confront and cross-examine these witnesses in any meaningful way.

I recognize that juvenile matters are hybrids; that is, they are generally civil in nature, but they are also potentially punitive in result and treatment. See, e.g., Tex. Fam.Code Ann. § 51.17(a) (Vernon Supp.2006) (applying rules of civil procedure generally except for burden of proof), § 51.17(b) (applying code of criminal procedure to discovery in juvenile matter), § 51.17(c) (applying rules of evidence and code of criminal procedure to juvenile matter); In re J.B.M., 157 S.W.3d 823, 829 (Tex.App.-Fort Worth 2005, no pet.) (Gardner, J., concurring) (noting the similarity in requirements and rights afforded juveniles under the juvenile code to those afforded defendants in criminal matters). The United State Supreme Court has also recognized that a juvenile is entitled to due process protections. In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967). The Gault court held that “confrontation and sworn testimony by witnesses available for cross-examination were essential for a finding of ‘delinquency’ [adjudication] and an order committing [Gault] to a state institution for a maximum of six years [disposition].” Gault, 387 U.S. at 56, 87 S.Ct. at 1459.

As the First Court of Appeals has explained,

The juvenile is guaranteed the same constitutional rights as an adult in a criminal proceeding because juvenile-delinquency proceedings seek to deprive the juvenile of his liberty. Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.

State v. C.J.F., 183 S.W.3d 841, 847 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (op. on reh’g) (citations omitted).

A transfer hearing determines whether a juvenile who has received a determinate sentence is released from the Texas Youth Commission’s custody and released or transferred into the adult system for the remainder of his sentence. Tex. Fam.Code Ann. § 54.11(i),(j). Despite this, another intermediate court has already held that juvenile transfer hearings, like revocation hearings, are not “criminal prosecution[s]” entitling juveniles to Crawford protections. In re D.L., 198 S.W.3d 228, 230 (Tex.App.-San Antonio, 2006, pet. denied). However, I am unable to reconcile the potential magnitude of the result of a transfer hearing with the lack of protection for a juvenile’s right to cross-examine the witnesses who testify against him via untested written reports. For this reason, I respectfully concur.

DAUPHINOT, J. joins.