Carl v. Long v. C. Tony Wright

Carl V. Long v. C. Tony Wright

IN THE

TENTH COURT OF APPEALS

No. 10-01-173-CV

     CARL V. LONG,

                                                                         Appellant

     v.

     C. TONY WRIGHT,

                                                                         Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 00-00-10201-CV

                                                                                                                                                                                                                          

O P I N I O N

                                                                                                                

      Carl Long was accused of manufacturing methamphetamine. In August 1999, the trial court appointed Don Phillips to represent him. Long subsequently hired C. Tony Wright as his lawyer. The docket sheet reflects a pre-trial hearing in October 1999 attended by Wright; Long’s pre-trial motions were denied. Over time, there were numerous disagreements between Long and Wright, and in January 2000, Wright filed a motion to withdraw. However, at a hearing on January 19, Long told the court he wanted Wright to continue to represent him; the court denied the motion to withdraw.

      But Long and Wright continued to have disagreements, and Long eventually filed a grievance against Wright. In addition, plea bargaining broke down between Long and the State. Without issuing an order allowing Wright to withdraw, in April the court reappointed Don Phillips to represent Long.

      Five days before trial in August, Wright filed another motion to withdraw which the court granted. Trial proceeded with court-appointed counsel, Phillips. Long was convicted, and on August 15, 2000, he was sentenced to forty-five years in prison. Another attorney was appointed to represent Long post-trial.

      In December 2000, from his prison cell, Long filed a pro-se civil suit against Wright, alleging inter alia:

      •    Long contracted with Wright for Wright to represent him through trial.

 

      •    The agreed fee was $15,000, payable by September 1, 2001.

 

      •    Long “signed his homestead over to C. Tony Wright for collateral until he could pay Attorney Tony Wright for his services.”

 

      •    Wright did not show up at a pre-trial hearing on January 14, 2000. Although requested to by Long, Wright did not reschedule the hearing.

 

      •    Several months later, Long filed a grievance against Wright. “Tony Wright broke the contract agreement. . . . Carl Long simply wanted Tony Wright to do his job as was agreed upon.”

 

      •    Wright withdrew five days before trial, claiming a conflict of interest. “This is Tony Wright’s excuse so he can steal Carl Long’s homestead.”

 

      •    “No property or money was refunded.”

 

      •    Long is entitled to: (1) return of “his homestead and homeowners deed,” or in the alternative, $15,000, the “agreed upon value of said homestead . . . by nature of the contract,” (2) punitive damages of at least $15,000, and (3) any attorney’s fees that may be incurred.

      Wright filed a general denial and requests for disclosure. Tex. R. Civ. P. 83, 194. In April 2001, the trial court issued an “Order of Dismissal” under chapter fourteen of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ch. 14 (Vernon Supp. 2002). In the order, the court made three fact findings:

      1.   “The complaint fails to show a coherent cause of action”;

 

      2.   “The allegations contained therein are contrary to the Court’s recollection of such events of which the Court takes judicial knowledge”; and

 

      3.   “Such complaint is frivolous.”

Long appeals pro se from this order.

      Chapter fourteen provides that lawsuits in which an inmate files an affidavit of inability to pay, as did Long, or the unsworn declaration allowed for those incarcerated, may be dismissed if the action is frivolous or malicious or if the affidavit or declaration contains false claims. Id. § 14.003(a)(2) (Vernon Supp. 2002); Tex. R. Civ. P. 145; Tex. Civ. Prac. & Rem. Code Ann. ch. 132 (Vernon 1992). The standard of review for a chapter fourteen dismissal is “abuse of discretion.” Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no pet.); Samuels v. Strain, 11 S.W.3d 404, 406 (Tex. App.—Houston [1st Dist.] 2000, no pet.). A trial court abuses its discretion in a chapter fourteen dismissal if it acts arbitrarily or unreasonably. Hickson, 926 S.W.2d at 398; see Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex. App.—Austin 1997, writ denied) (a chapter thirteen case—the equivalent dismissal proceeding for non-inmate litigation; it is an abuse of discretion to dismiss a case that has an arguable basis in fact or law) (citing Hector v. Thaler, 862 S.W.2d 176, 179 (Tex. App.—Houston [1st Dist.] 1993, no writ)). The court may, but is not required to, hold a hearing before dismissing the case. See Tex. Civ. Prac. & Rem. Code Ann. §14.003(c). Here the court did not.

      In determining whether the lawsuit is frivolous or malicious, the court may consider whether or not (1) the action’s realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or in fact, (3) it is clear that the party cannot prove facts in support of the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b). After our review of the record, we find that Long has pled breach of a contract he claims he had with Wright. He has set forth facts underlying his claim and has pled for appropriate remedies. We do not find his pleadings “incoherent.” Furthermore, there is nothing in the record to contradict Long’s allegations. The trial court’s fact-findings do not establish that Long would not prevail at trial. Neither Wright’s general denial nor his brief on appeal address the substance of Long’s allegations. In conclusion, we find no basis in the record on which a trial court could reasonably determine Long’s case to be frivolous.

      However, as Wright points out, Long never filed a separate affidavit or declaration as to whether he had ever filed other suits pro se, as is required by section 14.004. Id. §14.004 (Vernon Supp. 2002). We have held that failure to file this affidavit is fatal, and can be the basis of a dismissal. Hickson, 926 S.W.2d at 399.

      Accordingly, the order of dismissal is affirmed.

                                                                         BILL VANCE

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed January 9, 2002

Do not publish

[CV06]

ustify;line-height:200%'>   In Estelle v. Smith, the Court construed the Sixth Amendment right to counsel quite broadly, beyond the trial on the merits.  451 U.S. 454, 470, 101 S. Ct. 1866, 1876, 68 L. Ed. 2d 359 (1981).

It is central to [the Sixth Amendment] principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.

 

Id. (quoting United States v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 1932, 18 L. Ed. 2d 1149 (1967)).

          Conversely, the Court has construed the Sixth Amendment right to jury trial more narrowly.  Thus, the Court has held that there is no right to jury trial for a petty offense, defined as one in which the punishment assessed is no more than six months.  Lewis v. United States, 518 U.S. 322, 325-26, 116 S. Ct. 2163, 2166-67, 135 L. Ed. 2d 590 (1996) (citing Duncan v. Louisiana, 391 U.S. 145, 159, 88 S. Ct. 1444, 1453, 20 L. Ed. 2d 491 (1968)).

          The Court has also held on several occasions that there is no Sixth Amendment right to have a jury assess punishment.  See, e.g., Morgan v. Illinois, 504 U.S. 719, 725-26, 112 S. Ct. 2222, 2228, 119 L. Ed. 2d 492 (1992); Spaziano v. Florida, 468 U.S. 447, 464, 104 S. Ct. 3154, 3164, 82 L. Ed. 2d 340 (1984); accord Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).

          In Apprendi v. New Jersey and its progeny however, the Court has held that the Sixth Amendment right to jury trial does extend to the punishment phase insofar as the State may seek imposition of a sentence on the basis of findings beyond those “reflected in the jury verdict or admitted by the defendant.”  United States v. Booker, 543 U.S. 220, 232, 125 S. Ct. 738, 749, 160 L. Ed. 2d 621 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004)); see also Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 2439-40, 153 L. Ed. 2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000).

          The Court has also extended at least a sub-part of a defendant’s Sixth Amendment right of confrontation to the punishment phase.  “One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.”  Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d 353 (1970) (emphasis added) (citing Lewis v. United States, 146 U.S. 370, 374-75, 13 S. Ct. 136, 137, 36 L. Ed. 1011 (1892)) (“Out of abundant tenderness for the right secured to the accused by our constitution to be confronted by the witnesses against him, and to be heard by himself or counsel, our court has gone a step further, and held that it must be shown by the record that the accused was present in court pending the trial.”);[6] accord Garcia v. State, 149 S.W.3d 135, 140 (Tex. Crim. App. 2004) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom during his trial.”); Baltierra v. State, 586 S.W.2d 553, 556 (Tex. Crim. App. 1979) (“within the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him”) (emphasis added); Kessel v. State, 161 S.W.3d 40, 45 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d), cert. denied, ___ U.S. ___, 126 S. Ct. 484, 163 L. Ed. 2d 369 (2005) (“One of the most basic rights guaranteed by the Confrontation Clause is the defendant’s right to be present in the courtroom at every stage of his trial.”); In re C.T.C., 2 S.W.3d 407, 410 (Tex. App.—San Antonio 1999, no pet.) (juvenile “has the same constitutional right to be present at the proceedings as a criminal defendant has”).

          Thus, in Kessel the Fourteenth Court of Appeals reversed a defendant’s punishment where the trial court excluded the defendant from the courtroom during the punishment phase.  See Kessel, 161 S.W.3d at 47-49.  And in Garcia, the Court of Criminal Appeals reversed the defendant’s conviction because he did not speak English and no interpreter had been appointed to translate the proceedings for him.  See Garcia, 149 S.W.3d at 145-46; see also Baltierra, 586 S.W.2d at 559; Miller v. State, 177 S.W.3d 1, 8 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

          From these decisions we conclude that the Sixth Amendment right of confrontation applies in some, but not all, respects to the punishment phase of an adult criminal trial.

 

 

Texas Decisions

          No Texas court has expressly determined whether the Sixth Amendment right of confrontation applies during the punishment phase of an adult criminal trial or the disposition phase of a juvenile delinquency proceeding.  Cf. Young v. State, No. 02-04-501-CR, 2005 Tex. App. LEXIS 9498, at *3-4 (Tex. App.—Fort Worth Nov. 10, 2005, no pet.) (not designated for publication) (“We believe the right to counsel applies even at punishment in a bench trial.  And until a higher court instructs us to the contrary, we shall apply the Sixth Amendment in its entirety, even to bench trials.”).  Rather, because the Court of Criminal Appeals and six intermediate courts of appeals have addressed the merits of claims that the right of confrontation was violated at punishment (or have found those claims waived by a failure to object), these courts have at least implicitly concluded that there is a Sixth Amendment right of confrontation at punishment.[7]

          In similar fashion, the Eastland Court of Appeals has implicitly concluded that the Sixth Amendment right of confrontation applies during a hearing on a motion to modify a juvenile disposition when that court addressed the merits of the appellant’s confrontation complaint.  See In re J.R.L.G., No. 11-05-002-CV, 2006 Tex. App. LEXIS 3344, at *2-6 (Tex. App.—Eastland Apr. 27, 2006, no pet.) (mem. op.).

          Conversely, this Court and three others have concluded that a juvenile has no right of confrontation at a discretionary transfer hearing.  See In re S.M., 207 S.W.3d 421, 425 (Tex. App.—Fort Worth 2006, pet. filed); In re D.L., 198 S.W.3d 228, 229-30 (Tex. App.—San Antonio 2006, pet. denied); In re T.D.B., No. 10-05-015-CV, 2006 Tex. App. LEXIS  1491, at *3 (Tex. App.—Waco Feb. 22, 2006, no pet.) (mem. op.); In re C.D.T., 98 S.W.3d 280, 283 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

          And two Texas courts have held that a defendant in a community-supervision revocation proceeding has only a limited right of confrontation under the Due Process Clause of the Fourteenth Amendment rather than under the Sixth Amendment.  See Diaz v. State, 172 S.W.3d 668, 669-72 (Tex. App.—San Antonio 2005, no pet.) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)) (other citations omitted); Smart v. State, 153 S.W.3d 118, 120-21 (Tex. App.—Beaumont, pet. ref’d) (same), cert. denied, ___ U.S. ___, 126 S. Ct. 663, 163 L. Ed. 2d 527 (2005).

Decisions in Other Jurisdictions

          The federal courts of appeals have virtually unanimously concluded post-Crawford that there is no right of confrontation at sentencing.[8]  Courts in at least eleven other states have likewise held that there is no right of confrontation at sentencing.[9]  Courts in two states have held in similar fashion that a juvenile has no right of confrontation during the disposition phase of trial.  C.C. v. State, 826 N.E.2d 106, 111 (Ind. Ct. App. 2005); In re Romeo C., 40 Cal. Rptr. 2d 85, 89-91 (Cal. Ct. App. 1995).  But the high court of only one state has expressly held that the Sixth Amendment right of confrontation applies at sentencing.  Rodgers v. State, No. SC04-1425, 2006 Fla. LEXIS 2542, at *12-13 (Fla. Oct. 26, 2006) (per curiam).

          In some states, courts have not taken definitive positions.[10]  By comparison, the Arizona Supreme Court has recognized a limited right of confrontation at sentencing.  State v. McGill, 140 P.3d 930, 942 (Ariz. 2006) (Confrontation Clause applies to hearsay offered at punishment to prove an aggravating factor but not to hearsay offered in rebuttal of mitigating evidence); see also Dayton v. State, 2005 Alas. App. LEXIS 147, at *8 (Alaska Ct. App. Sept. 8, 2005) (“a judge who is making findings of fact at sentencing proceedings can rely on out-of-court statements described in the pre-sentence report for proof of the matters asserted, unless the defendant offers a testimonial denial of those statements and submits to cross-examination, in which case the State must support its assertions with live testimony.”).

Sixth Amendment Summary

          There is an indisputable Sixth Amendment right to counsel during the punishment phase and an indisputable right to be present during the punishment phase, the latter of which is a part of the Sixth Amendment right of confrontation.  However, there is only a limited Sixth Amendment right to a jury during the punishment phase under Apprendi at its progeny.  And most state and federal courts which have directly addressed the issue have concluded that there is no Sixth Amendment right of confrontation at sentencing.

          Nevertheless, the Court of Criminal Appeals and a significant number of the intermediate appellate courts in Texas have at least implicitly concluded that a defendant has a Sixth Amendment right of confrontation at sentencing by addressing the merits of such claims or concluding that such claims were waived.

          Here, because this is a juvenile proceeding, we need not determine the precise parameters of the Sixth Amendment right of confrontation during the punishment phase of an adult criminal trial.  We do conclude, however, that at a minimum an adult criminal defendant has a constitutional right of confrontation at sentencing: (1) in cases in which the State seeks imposition of a sentence on the basis of findings beyond those “reflected in the jury verdict or admitted by the defendant”; see Booker, 543 U.S. at 232, 125 S. Ct. at 749; McGill, 140 P.3d at 942; and (2) whenever the State calls a witness to testify at punishment.  See Allen, 397 U.S. at 338, 90 S. Ct. at 1058; Garcia, 149 S.W.3d at 140; Baltierra, 586 S.W.2d at 556; Kessel, 161 S.W.3d at 45; C.T.C., 2 S.W.3d at 410.

 

 

Impact on Juvenile Proceedings

          Having determined that there is at least a limited Sixth Amendment right of confrontation during the punishment phase of an adult criminal trial, we now examine the impact the application of that right would have on the juvenile justice system.  See Hidalgo, 983 S.W.2d at 752; J.S.S., 20 S.W.3d at 842.

          The Texas juvenile justice system requires courts to balance the need for public safety and punishment for criminal conduct with the medical, educational and rehabilitative needs and the best interests of the juvenile delinquent, while simultaneously ensuring that his “constitutional and other legal rights” are protected.  See Tex. Fam. Code Ann. § 51.01 (Vernon 2002).  Among other purposes, the juvenile justice system is supposed to:

·                    provide treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child’s conduct;

 

·                    provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions; and

 

·                    achieve the foregoing purposes in a family environment whenever possible, separating the child from the child’s parents only when necessary for the child’s welfare or in the interest of public safety and when a child is removed from the child’s family, to give the child the care that should be provided by parents.

 

Id. § 51.01(2)(C), (3), (5).

          There appears to be only one potential fact issue to be determined during the disposition phase of a juvenile proceeding which may permit a disposition more severe than authorized by findings “reflected in the jury verdict [from the adjudication phase].”[11]  See Booker, 543 U.S. at 232, 125 S. Ct. at 749.  That issue is whether the juvenile engaged in “habitual felony conduct.”  See Tex. Fam. Code Ann. § 54.04(m) (Vernon Supp. 2006).[12]

          Nevertheless, under Apprendi and its progeny, a finding that a juvenile engaged in “habitual felony conduct” is nothing more than a finding that the juvenile has been previously and sequentially adjudicated of at least two prior felonies.  Such a finding does not invoke the Sixth Amendment right to jury trial recognized in Apprendi.  See 530 U.S. at 490, 120 S. Ct. at 2362-63 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis added).

          Because there are no findings to be made in the disposition phase which would invoke the Sixth Amendment right to jury trial recognized by Apprendi and its progeny and because of the importance of effectively addressing the medical, educational and rehabilitative needs and the best interests of the juvenile delinquent as recognized by the Juvenile Justice Code, we conclude that a juvenile has no Sixth Amendment right of confrontation during the disposition phase.  See C.C., 826 N.E.2d at 111; Romeo C., 40 Cal. Rptr. 2d at 89-91.  Such a conclusion preserves the flexibility inherent in the design of the juvenile justice system for ensuring that the needs of each child are adequately addressed in the disposition phase.

          Nevertheless, the Juvenile Justice Code expressly recognizes that a juvenile must be provided a “fair hearing” and his or her “constitutional and other legal rights” must be “recognized and enforced.”  Tex. Fam. Code Ann. § 51.01(6).  Therefore, we hold that a juvenile has a limited right of confrontation under the Due Process Clause of the Fourteenth Amendment rather than under the Sixth Amendment.  Cf. Gagnon, 411 U.S. at 782-86, 93 S. Ct. at 1760-62; Morrissey, 408 U.S. at 487-89, 92 S. Ct. at 2603-04; Diaz, 172 S.W.3d at 670-71; Smart, 153 S.W.3d at 121.

Due Process Right of Confrontation

          The Supreme Court in Morrissey explained that this “process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”  408 U.S. at 489, 92 S. Ct. at 2604; accord Diaz, 172 S.W.3d at 670-71; Smart, 153 S.W.3d at 121.  The Court discussed this due process right of confrontation in more detail in Gagnon.

An additional comment is warranted with respect to the rights to present witnesses and to confront and cross-examine adverse witnesses.  Petitioner’s greatest concern is with the difficulty and expense of procuring witnesses from perhaps thousands of miles away.  While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.  Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.

 

411 U.S. at 782 n.5, 93 S. Ct. at 1760 n.5; accord Diaz, 172 S.W.3d at 671.

          Therefore, the Supreme Court’s jurisprudence regarding the Sixth Amendment right of confrontation, and particularly Crawford, has no application to the disposition phase of a juvenile delinquency proceeding.  See Diaz, 172 S.W.3d at 672; Smart, 153 S.W.3d at 120-21.  Instead, the due process right of confrontation described in Gagnon applies.  Id.; see also People v. Johnson, 18 Cal. Rptr. 3d 230, 232 (Cal. Ct. App. 2004); People v. Turley, 109 P.3d 1025, 1026 (Colo. Ct. App. 2004); Jenkins v. State, 2004 Del. LEXIS 549, at *8-9 (Del. 2004) (not designated for publication); Young v. United States, 863 A.2d 804, 807-08 (D.C. 2004); Peters v. State, 919 So. 2d 624, 626-28 (Fla. Ct. App. 2006, review granted); State v. Rose, 2006 WL 1459803, at *4 (Idaho Ct. App. 2006, review granted); Reyes v. State, 853 N.E.2d 1278, 1281-83 (Ind. Ct. App. 2006); State v. Abd-Rahmaan, 111 P.3d 1157, 1160-61 (Wash. 2005).

          Under the due process right of confrontation described in Morrissey and Gagnon, a defendant has “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”  Gagnon, 411 U.S. at 786, 93 S. Ct. at 1762 (quoting Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604); accord Ex parte Taylor, 957 S.W.2d 43, 44 (Tex. Crim. App. 1997) (per curiam); Diaz, 172 S.W.3d at 670; Smart, 153 S.W.3d at 121.  Thus, the trial court must weigh the defendant’s interest in confronting and cross-examining an adverse witness against the State’s interest in not having to produce that witness, “particularly focusing on the indicia of reliability of the hearsay offered.”  Taylor, 957 S.W.2d at 46 (citing United States v. McCormick, 54 F.3d 214 (5th Cir. 1995)) (other citations omitted).  This determination must be made on a case-by-case basis.  Taylor, 957 S.W.2d at 46; see also Gagnon, 411 U.S. at 788-91, 93 S. Ct. at 1763-64; United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986); Downie v. Klincar, 759 F. Supp. 425, 429 (N.D. Ill. 1991).

Texas Constitution

          M.P. also contends that the admission of the juvenile probation officer’s report violated his right of confrontation under article I, section 10 of the Texas Constitution.

          Article I, section 10 provides in pertinent part, “In all criminal prosecutions the accused   .  .  .   shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor.”  Tex. Const. art. I, § 10.

          Although M.P. observes some textual differences between this provision and the Sixth Amendment, he does not cite any authority which directly supports a proposition that the right of confrontation under the Texas Constitution varies in any appreciable manner from that provided in the Sixth Amendment.  Rather, Texas courts have consistently interpreted these provisions as providing the same protection.  See, e.g., Ex parte Johnson, 654 S.W.2d 415, 421 (Tex. 1983) (orig. proceeding); Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997); Gomez v. State, 183 S.W.3d 86, 91 (Tex. App.—Tyler 2005, no pet.).

          Therefore, assuming without deciding that the protections of article I, section 10 apply to a juvenile offender in any instance, we hold that the right of confrontation under article I, section 10 does not apply to the disposition phase of a juvenile delinquency proceeding just as we have previously determined that the Sixth Amendment right of confrontation does not apply.

 

Application

          Under Morrissey and Gagnon, the trial court must balance the defendant’s interest in confronting and cross-examining an adverse witness with the State’s interest in not having to produce that witness.  Taylor, 957 S.W.2d at 46; see also United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); United States v. Martin, 382 F.3d 840, 844-45 (8th Cir. 2004); Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999); Rose, 2006 WL 1459803, at *5; Reyes, 853 N.E.2d at 1283; Abd-Rahmaan, 111 P.3d at 1161-62.  Here, the trial court erred because it failed to conduct this balancing inquiry.  We must determine whether this error requires reversal.  See In re D.I.B., 988 S.W.2d 753, 758-59 (Tex. 1999).

          According to the Juvenile Justice Code, “[t]he requirements governing an appeal are as in civil cases generally.”  Tex. Fam. Code Ann. § 56.01(b) (Vernon Supp. 2006).  Most courts which have discussed the appropriate harm analysis have concluded that the harm analysis applicable in civil appeals (Rule of Appellate Procedure 44.1) applies to a juvenile delinquency appeal unless the appellant received a determinate sentence.  See In re J.H., 150 S.W.3d 477, 485 (Tex. App.—Austin 2004, pet. denied); In re D.V., 955 S.W.2d 379, 380 (Tex. App.—San Antonio 1997, no pet.); In re D.Z., 869 S.W.2d 561, 565-66 (Tex. App.—Corpus Christi 1993, writ denied); but cf. In re L.R., 84 S.W.3d 701, 707 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (expressly declining to decide what harm analysis applies for a case involving “non-determinate sentencing”).  Because the court did not impose a determinate sentence, we will apply the harm analysis of Rule 44.1.

          Rule 44.1(a) permits reversal for error only if the error: “(1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.”  Tex. R. App. P. 44.1(a).

          Though the issue has apparently not been decided in Texas, numerous courts in other jurisdictions have found such error harmless in cases in which the hearsay evidence was sufficiently reliable.  See, e.g., United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006) (arresting officer’s testimony and offense report); United States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005) (“Hall’s interest in excluding [medical records and statements made for purposes of diagnosis or treatment] was thus weak”); United States v. Morris, 140 F. App’x 138, 142-43 (11th Cir. 2005) (per curiam) (not designated for publication) (written report submitted to probation officer by defendant’s case manager at halfway house which was admissible as business record); State ex rel. Simpson v. Schwarz, 2002 WI App 7, ¶ 22, 640 N.W.2d 527, ¶ 22 (Wis. Ct. App. 2002) (good cause requirement “is always met when the evidence offered in lieu of an adverse witness’s live testimony would be admissible under the Wisconsin Rules of Evidence”); see also United States v. Aspinall, 389 F.3d 332, 344 (2d Cir. 2004) (no balancing required where evidence admissible under recognized hearsay exception); United States v. Redd, 318 F.3d 778, 784-85 (8th Cir. 2003) (upholding district court’s implicit findings with regard to balancing test for “documentary hearsay evidence”); Williams v. Johnson, 171 F.3d 300, 306-07 (5th Cir. 1999) (failure to conduct balancing test harmless because defendant did not dispute parole violation, proved by parole officer’s affidavit, but rather sought to prove reasons for violation).

          Here, the juvenile probation officer’s report was admissible in the disposition phase under a statutory exception to the hearsay rule.  See Tex. Fam. Code Ann. § 54.04(b) (Vernon Supp. 2006).  Thus, the Legislature has determined that such reports have some degree of reliability for purposes of determining the appropriate disposition in a particular case.  In fact, such reports have been required for the disposition phase of juvenile delinquency proceedings since at least 1973.[13]  See Act of May 25, 1973, 63d Leg., R.S., ch. 544, § 1 54.04(b), 1973 Tex. Gen. Laws 1460, 1478.  Our research has disclosed at least one appellate decision which has addressed the reliability of such reports.  See In re JV-512016, 923 P.2d 880 (Ariz. Ct. App. 1996).  There, the court concluded that the juvenile court did not abuse its discretion by accepting (1) hearsay statements regarding extraneous offenses contained in the juvenile probation report and (2) the juvenile’s admissions to a clinician that he had committed these extraneous offenses contained in the clinician’s report “as reliable sources of dispositional fact.”  Id. at 884.

          The report required by section 54.04(b) is very similar to the presentence investigation report required in most felony cases.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 9 (Vernon 2006).  Courts have long held that such reports have sufficient indicia of reliability to aid a court in determining the appropriate sentence.  See, e.g., United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998); United States v. Montoya-Ortiz, 7 F.3d 1171, 1180 (5th Cir. 1993); People v. Otto, 26 P.3d 1061, 1067-69 (Cal. 2001); State v. Crossman, 1994 Tenn. Crim. App. LEXIS 652, at *14-15 (Tenn. Crim. App. 1994); State v. Caldwell, 454 N.W.2d 13, 18 (Wis. Ct. App. 1990); see also Fryer v. State, 68 S.W.3d 628, 630-33 (Tex. Crim. App. 2002) (approving trial court’s consideration of punishment recommendation by victim contained in PSI); Brown v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972) (“To suggest that the judge should not use the information in the probation report because it contains ‘hearsay statements’ is to deny the obvious purpose of the statute.”).

          Finally, we note that numerous courts have found no due process violation arising from a trial court’s consideration of a PSI report so long as the defendant is given a reasonable opportunity to review the report before the hearing and the opportunity to dispute the accuracy of information in the report and present controverting evidence.  See United States v. Inglesi, 988 F.2d 500, 502 (4th Cir. 1993); United States v. Musa, 946 F.2d 1297, 1306-08 (7th Cir. 1991); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 9(d), (e); DuBose v. State, 977 S.W.2d 877, 880-81 (Tex. App.—Beaumont 1998, no pet.) (discussing defendant’s burden to dispute accuracy of information in PSI); Garcia v. State, 930 S.W.2d 621, 623-24 (Tex. App.—Tyler 1996, no pet.) (same); Hernandez v. State, 900 S.W.2d 835, 839 (Tex. App.—Corpus Christi 1995, no pet.) (same); Stancliff v. State, 852 S.W.2d 639, 641 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (same), overruled on other grounds by Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000).

          Section 54.04(b) requires a juvenile court to provide counsel for the child with access to any reports the court will consider before the disposition hearing.  Tex. Fam. Code Ann. § 54.04(b).  To exercise the limited right of confrontation we have recognized herein, a juvenile may subpoena any necessary witnesses to challenge the accuracy of any information contained in any reports to be offered under section 54.04(b).  See In re M.R., 5 S.W.3d 879, 881-82 & n.3 (Tex. App.—San Antonio 1999, pet. denied) (describing limited right of confrontation available for transfer/release hearing under section 54.11 of the Juvenile Justice Code).

Conclusion

          The juvenile probation officer’s report admitted during the disposition phase of M.P.’s trial contains sufficient indicia of reliability to allow us to conclude that the court’s failure to conduct the balancing test required for the admission of hearsay evidence without violating the limited due process right of confrontation described in Morrissey and Gagnon did not “probably cause the rendition of an improper judgment.”  See Kelley, 446 F.3d at 692; Hall, 419 F.3d at 987; Morris, 140 F. App’x at 142-43; Schwarz, 2002 WI App 7, ¶ 22, 640 N.W.2d 527, ¶ 22; see also Aspinall, 389 F.3d at 344.

Therefore, we overrule M.P.’s sole issue and affirm the judgment.

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray issuing a separate opinion)

(Justice Vance dissenting)

Affirmed

Opinion delivered and filed February 7, 2007

[CV06]

---

[1]           The report itself is nine pages, excluding the cover page.  There are about ninety pages of supporting documentation appended to the report.  “Over thirty” referrals appears to be a significant understatement.  “Over sixty” would be more accurate.

[2]           Rule of Evidence 103(a)(1), promulgated by the Supreme Court in 1982 for civil cases, was identical to the quoted portion of the present Rule 103(a)(1).  See Tex. R. Evid. 103(a)(1), 641-642 S.W.2d (Tex. Cases) xxxvi (1982, amended 1988).

 

[3]           A similar rule applies in criminal appeals.

 

The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part.  If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection.

 

Barnes v. State, 876 S.W.2d 316, 329 (Tex. Crim. App. 1994) (quoting Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992)).

[4]           The eight foundational decisions in chronological order: (1) Haley v. Ohio, 332 U.S. 596, 601, 68 S. Ct. 302, 304, 92 L. Ed. 224 (1948) (coerced confession cannot be used against juvenile); (2) Kent v. United States, 383 U.S. 541, 557, 86 S. Ct. 1045, 1055, 16 L. Ed. 2d 84 (1966) (juvenile entitled to procedural protections in transfer hearing); (3) In re Gault, 387 U.S. 1, 31-55, 87 S. Ct. 1428, 1445-58, 18 L. Ed. 2d 527 (1967) (juvenile has due process rights of notice, counsel, confrontation, cross-examination, and privilege against self-incrimination); (4) In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075, 25 L. Ed. 2d 368 (1970) (State must prove allegation of delinquent conduct beyond a reasonable doubt); (5) McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 1986, 29 L. Ed. 2d 647 (1971) (juvenile has no constitutional right to jury trial); (6) Breed v. Jones, 421 U.S. 519, 528-29, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975) (double jeopardy protections apply to juveniles); (7) Schall v. Martin, 467 U.S. 253, 281, 104 S. Ct. 2403, 2419, 81 L. Ed. 2d 207 (1984) (pretrial detention of juvenile does not violate due process); (8) New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S. Ct. 733, 742-43, 83 L. Ed. 2d 720 (1985) (Fourth Amendment does not require probable cause to justify school search).

[5]           In Hidalgo, the Court of Criminal Appeals addressed a juvenile’s Sixth Amendment right to counsel in connection with a court-ordered psychological examination under section 54.02(d) of the Juvenile Justice Code.  See Hidalgo v. State, 983 S.W.2d 746, 748 (Tex. Crim. App. 1999) (citing Tex. Fam. Code Ann. § 54.02(d)).

[6]           In Lewis, the Supreme Court was quoting the High Court of Errors and Appeals of Mississippi.  See Lewis v. United States, 146 U.S. 370, 374-75, 13 S. Ct. 136, 137, 36 L. Ed. 1011 (1892) (quoting Dyson v. State, 26 Miss. 362, 1853 WL 2394, at *15 (Miss. Err. & App. 1853)).

 

[7]           See, e.g., Russeau v. State, 171 S.W.3d 871, 880-81 (Tex. Crim. App. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 2982, 165 L. Ed. 2d 989 (2006); Stringer v. State, 196 S.W.3d 249, 251-52 (Tex. App.—Fort Worth 2006, pet. granted); Nunes v. State, No. 05-04-1741-CR, 2006 Tex. App. LEXIS 2301, at *20 (Tex. App.—Dallas Mar. 27, 2006, pet. ref’d) (not designated for publication); Smith v. State, No. 03-05-399-CR, 2006 Tex. App. LEXIS 2062, at *9-12 (Tex. App.—Austin Mar. 16, 2006, pet. ref’d) (not designated for publication); Ford v. State, 179 S.W.3d 203, 208-09 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d), cert. denied, ___ U.S. ___, 127 S. Ct. 281, 166 L. Ed. 2d 215 (2006); Barela v. State, No. 08-02-492-CR, 2004 Tex. App. LEXIS 8802, at *13-20 (Tex. App.—El Paso Sept. 30, 2004) (not designated for publication), aff’d on other grounds, 180 S.W.3d 145 (Tex. Crim. App. 2005); Salazar v. State, 31 S.W.3d 726, 728-29 (Tex. App.—Corpus Christi 2000), rev’d on other grounds, 86 S.W.3d 640 (Tex. Crim. App. 2002).

 

[8]           See United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006); United States v. Bustamante, 454 F.3d 1200, 1202-03 (10th Cir. 2006); United States v. Littlesun, 444 F.3d 1196, 1199-1201 (9th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 248, 166 L. Ed. 2d 149 (2006); United States v. Brown, 430 F.3d 942, 944 (8th Cir. 2005); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 1604, 164 L. Ed. 2d 325 (2006); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005); United States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 671, 163 L. Ed. 2d 541 (2005); United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239, 242-44 (2d Cir. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 1086, 163 L. Ed. 2d 902 (2006); see also United States v. Statts, 189 F. App’x 237, 238 (4th Cir. 2006) (per curiam) (not designated for publication); United States v. Cabbagestalk, 184 F. App’x 191, 195-96 (3d Cir. 2006) (not designated for publication).

 

[9]           See People v. Arbuckle, 150 Cal. Rptr. 778, 781 (Cal. 1978); People v. Vensor, 116 P.3d 1240, 1243 (Colo. Ct. App. 2005), cert. granted, 2005 Colo. LEXIS 715 (Colo. Aug. 8, 2005); State v. Henderson, 2006 Conn. Super. LEXIS 2395, at *36 n.31 (Conn. Super. Ct. 2004) (not designated for publication); Sivak v. State, 731 P.2d 192, 211 (Idaho 1986); Commonwealth v. Wilcox, 841 N.E.2d 1240, 1248 (Mass. 2006); Holland v. State, 93-DP-00494-SCT, ¶ 48, 705 So. 2d 307, 328 (Miss. 1997); State v. Moore, 2006-Ohio-816, ¶ 8, 2006 Ohio App. LEXIS 732, at *4 (Ohio Ct. App. 2006); McDonald v. Belleque, 138 P.3d 895, 897 (Or. Ct. App.), pet. denied, 143 P.3d 544 (Or. 2006) (unpublished table decision); Moses v. Commonwealth, 498 S.E.2d 451, 455 (Va. Ct. App. 1998); State v. Peters, 2000 WI App 154, ¶ 11 n.10, 615 N.W.2d 655, 659 n.10 (Wis. Ct. App. 2000), rev’d on other grounds, 2001 WI 74, 628 N.W.2d 797 (Wis. 2001).

 

[10]             See Cockerham v. State, 933 P.2d 537, 539 n.10 (Alaska 1997) (existence of right of confrontation at sentencing “is debatable”); State v. Berry, 168 S.W.3d 527, 539-40 (Mo. Ct. App. 2005) (“There is ample doubt and confusion about the application of the Sixth Amendment in this context.”); Ledbetter v. State, 933 P.2d 880, 895 (Okla. Crim. App. 1997) (“Application of the Confrontation Clause to punishment proceedings in capital cases is not clear”); State v. Stephenson, 195 S.W.3d 574, 590-91 (Tenn. 2006) (noting that federal courts hold that right of confrontation does not apply at sentencing, but not expressly taking that position).

[11]          There are numerous findings which may affect a juvenile’s disposition in some manner, but such findings will not alter the applicable “punishment range.”  See, e.g., Tex. Fam. Code Ann. § 54.04(g) (Vernon Supp. 2006) (deadly weapon finding), § 54.0406 (Vernon 2002) (finding that juvenile possessed, used, or exhibited handgun); § 54.041(b) (Vernon Supp. 2006) (restitution), § 54.042 (Vernon Supp. 2006) (license suspension); see also Harris v. United States, 536 U.S. 545, 568-69, 122 S. Ct. 2406, 2420, 153 L. Ed. 2d 524 (2002) (finding which increases minimum punishment need not be submitted to jury under Apprendi); Surredin, 165 S.W.3d 751, 753 n.2 (Tex. App.—San Antonio 2005, no pet.) (same).

 

[12]             Habitual felony conduct is conduct violating a penal law of the grade of felony, other than a state jail felony, if:

 

(1) the child who engaged in the conduct has at least two previous final adjudications as having engaged in delinquent conduct violating a penal law of the grade of felony;

 

(2) the second previous final adjudication is for conduct that occurred after the date the first previous adjudication became final; and

 

(3) all appeals relating to the previous adjudications considered under Subdivisions (1) and (2) have been exhausted.

 

Tex. Fam. Code Ann. § 51.031(a) (Vernon 2002).

               

[13]          Juvenile social histories were first expressly required by statute in 1967 for hearings to transfer a juvenile delinquency proceeding to another county or to waive juvenile court jurisdiction and transfer the child to an adult criminal court in felony cases where the child was 15 or older.  See Act of May 24, 1967, 60th Leg., R.S., ch. 475, § 6(d), 1967 Tex. Gen. Laws 1082, 1083 (repealed 1973).