Hidalgo v. State

• Decision Date: 13 January 1999
• Docket Number: No. 744-97,744-97
• Citation: 983 S.W.2d 746
• Parties: Raymond HIDALGO, Jr., Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 746

983 S.W.2d 746

Raymond HIDALGO, Jr., Appellant, v. The STATE of Texas.

No. 744-97

Court of Criminal Appeals of Texas.

Jan. 13, 1999.

George Scharmen, San Antonio, for appellant.

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

OPINION

HOLLAND, J., delivered the opinion of the Court in which MANSFIELD, PRICE, WOMACK, and KEASLER, J.J., joined.

Appellant Raymond Hidalgo, Jr., a juvenile, challenges his criminal conviction due to error in his transfer from juvenile court. He contends he was denied his right to the assistance of counsel because his appointed attorney was not notified of the psychological examination, conducted pursuant to § 54.02(d) of the Juvenile Justice Code, until after the exam occurred. ¹ The Fourth Court of Appeals rejected this contention holding, inter alia, no Sixth Amendment violation arose from the failure to give his attorney prior notice of the exam. Hidalgo v. State, 945 S.W.2d 313 (Tex.App.--San Antonio 1997). We granted appellant's petition for discretionary review to address whether his attorney was entitled to prior notice of the exam.

I.

On December 25, 1997, while at a restaurant, appellant and a group of companions allegedly tried to initiate a fight with the victim, Charisma Perez, the victim's boyfriend, Chris Garcia, and her friend, John Bernal. A security guard intervened and made them leave. Unaware appellant and his companions were following them, Perez, Garcia, and Bernal drove to Bernal's apartment and parked. As Perez exited the car, she noticed a car coming towards her. As the car approached, Perez saw appellant leaning out of a car and pointing a hand gun towards her. Appellant fired the gun three or four times in Perez and Garcia's direction. Perez was shot in her left arm and abdomen. Garcia was not hit.

At the time of his arrest, appellant was fifteen years old. He was initially charged as a juvenile. ² The State petitioned the juvenile court to transfer appellant to criminal court for prosecution as an adult. ³ The State also filed a motion requesting a psychological exam, as mandated by § 54.02(d). ⁴ The juvenile court granted the State's motion for a psychological exam and on March 7th and 8th appellant was examined by a psychologist. The psychologist's report was submitted to the juvenile court. ⁵

The report from appellant's psychological exam concerned his intellectual development, psychological maturity, personality dynamics, and mental abilities. The report listed appellant's overall level of functioning, as measured on the Wechsler Scale, in the low-average (80-89) range of intelligence. The report indicated he was most proficient in logical reasoning, and least proficient in social judgment. The report also contained summaries of the psychologist's conversations with appellant concerning performance at school; participation in special education programs; relationships with teachers, family, and friends; medical history; substance abuse; sexual promiscuity; and how he viewed his past and present emotional state. The report concluded, among other things, appellant had a "conduct disorder" and "dsythymic disorder." ⁶

On March 28, 1995, the juvenile court waived jurisdiction and ordered appellant to be transferred to criminal court for prosecution as an adult. A jury found appellant guilty of attempted capital murder and sentenced him to fifty years imprisonment.

II.

On appeal, appellant relied on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) and Satterwhite v. State, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Appellant claimed the failure to notify his attorney prior to the psychological examination violated his Sixth Amendment right to assistance of counsel. Specifically, he claimed that without advance notice his attorney could not advise him of the nature and purpose of the examination.

The Fourth Court of Appeals rejected appellant's contention, distinguishing Estelle and Satterwhite on two grounds. First, Estelle and Satterwhite involved adjudicatory criminal proceedings, rather than non-adjudicatory juvenile transfer proceedings. Hidalgo, 945 S.W.2d at 319. Second, the rights at stake in Estelle and Satterwhite were "clearly of a greater magnitude" because the exams in those cases were used to determine eligibility for the death penalty.

The court of appeals recognized this Court has not addressed this issue. Relying on Lagrone v. State, 942 S.W.2d 602, 612 (Tex.Crim.App.1997) the court of appeals concluded the State's failure to give notice did not violate appellant's rights because this Court held a juvenile does not have a Sixth Amendment right to have counsel present during the psychological exam. Hidalgo, 945 S.W.2d at 319-20. The court reasoned that "if the Sixth Amendment is not violated when a juvenile's attorney is excluded from the examination itself, it stands to reason that no constitutional violation occurs when an attorney is not notified of the examination until after it has taken place." Id. at 320. The court rejected appellant's contention that he needed to consult with counsel to decide whether to submit to the exam on the basis that the exam is mandatory under section 54.02(d) of the Texas Family Code. The Court also noted that if appellant had such a right it was waived because the psychologist's report noted appellant was informed of his rights and the purpose of the exam, and he indicated he understood and was willing to proceed.

Appellant urges this Court to reverse the court of appeals' holding that lack of prior notice did not violate appellant's Sixth Amendment right to assistance of counsel.

III.

Before this Court can address whether a juvenile's attorney is constitutionally entitled to prior notice of a court-ordered psychological exam, we must first determine whether the Sixth Amendment's right to assistance of counsel applies to juveniles. Though it has been long settled that the Bill of Rights applies to juvenile proceedings, to what extent remains undetermined, and this precise issue has not been decided by this Court or the U.S. Supreme Court. ⁷ Initially, procedural safeguards provided by the Constitution and the Bill of Rights were inapplicable to juvenile proceedings. Lanes, 767 S.W.2d at 792-94. ⁸ This was due to the philosophy underlying the creation of the juvenile court system which viewed juveniles as needing the state's care and guidance. State legislatures created juvenile courts for treatment and rehabilitation of child offenders. Id. at 792-93. The rehabilitative approach examined problems affecting individual offenders and structured individual rehabilitation programs to resolving "the wayward juvenile's family, social and personal problems and to prepare [the juvenile] to be [a] healthy, productive and law abiding adult[ ]." Jeffrey Fagan & Elizabeth P. Deschene, Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders, 81 CRIM. L & CRIMINOLOGY 314, 318 (1990). The focus on individual treatment set juvenile courts apart from regular criminal courts. Lanes, 767 S.W.2d at 792-93. The juvenile court focused on the best interests of the child through treatment, and the adult criminal court directed its efforts at punishing the offender. One consequence of this distinction was that juveniles were denied many fundamental constitutional and procedural rights:

Juvenile proceedings were defined as civil rather than criminal, rendering inapplicable the rules of criminal evidence and their appropriate safeguards against admittance of prejudicial and inflammatory evidence.... Thus, the juvenile system's protective rejection of the adult system came at the cost of the procedural and constitutional protections attendant thereto; a dubious tradeoff--to say the least--and, as was recognized early on, the results have been less than satisfactory.

Lanes, 767 S.W.2d at 792-93 [citations omitted].

The Supreme Court recognized the procedural injustice of the juvenile system in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). In Kent, the Supreme Court determined that children should not be denied procedural rights given adults merely because juvenile proceedings are characterized as civil. Kent, 383 U.S. at 560, 86 S.Ct. at 1063. Identifying the transfer determination as "critically important," the Court held a state juvenile transfer process must operate in accordance with traditional notions of fundamental fairness. Id. The process must include a hearing, effective assistance of counsel, and counsel's access to the child's social file.

The Supreme Court continued defining fundamental constitutional protections applicable to the juvenile justice system in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Court held the Fourteenth Amendment's Due Process Clause applied to juvenile delinquency proceedings entitling children to notice of charges, defense counsel, the privilege against self-incrimination, confrontation of and cross examination of witnesses. Gault, 387 U.S. at 49, 87 S.Ct. at 1455. In subsequent cases, the Supreme Court continued its case by case approach for determining the applicability of constitutional protections to juveniles. Rather than grant juveniles the full array of protections under the Constitutions and Bill of Rights, the Court has chosen to examine each protection claimed and the effect it would have on the unique framework of the juvenile justice system.

In Lanes v. State, 767 S.W.2d 789 (Tex.Crim.App.1989), this Court was called on to determine whether the probable cause requirement of the Fourth Amendment of the U.S. Constitution and Article I § 9 of the Texas Constitution applies to juvenile arrests. Relying on the Supreme Court's eight foundation opinions on juvenile rights for guidance, ⁹ this Court distilled a test for delineating which constitutional protections apply to juveniles in juvenile court proceedings....