In re M.P.

• Citation: 220 S.W.3d 99
• Decision Date: 07 February 2007
• Docket Number: No. 10-06-00008-CV.,10-06-00008-CV.
• Parties: In the Matter of M.P., A Child.
• Court: Texas Court of Appeals

220 S.W.3d 99

In the Matter of M.P., A Child.

No. 10-06-00008-CV.

Court of Appeals of Texas, Waco.

February 7, 2007.

Lane D. Thibodeaux, Law Office of Lane D. Thibodeaux, Bryan, for appellant.

Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

LEAD OPINION

FELIPE REYNA, Justice.

A jury found that M.P. had engaged in delinquent conduct by committing two counts of indecency with a child and one count of aggravated sexual assault of a child. The court committed M.P. to the Texas Youth Commission without a determinate sentence. M.P. contends in his sole issue that the court violated his right of confrontation under the federal and state constitutions, and particularly under Crawford v. Washington, by admitting during the disposition phase a written report prepared by a juvenile probation officer which contains hearsay.

During the disposition phase, the State offered a Juvenile Court Investigation Report prepared by M.P.'s juvenile probation officer, Sha'Vonne Brown-Lewis. The report contains general background information, M.P.'s referral history, the history of services provided by the juvenile department, a narrative of "impressions" reviewing M.P.'s history and briefly stating the probation officer's recommendation that M.P. be committed to TYC, and a concluding section reviewing the dispositional alternatives and providing a list of reasons TYC is the appropriate disposition.

The report is supported by a collection of "over thirty" disciplinary referrals M.P. has received at different schools.¹ These referrals largely consist of brief narratives prepared by the teachers who made the referrals describing the conduct and the actions taken. Some referrals include witness statements. Others include documentary evidence.

M.P. objected when the State offered the report in evidence on the basis that "information both contained in the report and, frankly, the totality of Ms. Brown's testimony" violate Crawford v. Washington and the confrontation clauses of the federal and state constitutions. Counsel specifically identified Brown-Lewis's references to M.P.'s various referrals as a matter of concern.

After taking the matter under advisement, the court advised the parties that it would overrule the objection based on the reasoning of Indiana's Fourth District Court of Appeals in C.C. v. State. 826 N.E.2d 106 (Ind.Ct.App.2005). The court followed the recommendation of Brown-Lewis and committed M.P. to TYC.

Preservation

The State contends that M.P. did not properly preserve this issue for appellate review because he failed to identify for the trial court the particular portions of the report which he considered to be inadmissible.

To preserve a complaint for appellate review, Rule of Evidence 103(a)(1) requires "a timely objection ... stating the specific ground of objection, if the specific ground was not apparent from the context." TEX.R. EVID. 103(a)(1); see also TEX.R.APP. P. 33.1(a)(1)(A). Stated another way, a "timely" and "specific" objection is required. See, e.g., Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 251 (Tex.2004); Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 195 (Tex.App.-Fort Worth 2006, no pet.).

Before and since the adoption of the Rules of Evidence in 1982,² Texas courts in civil appeals have held, "A general objection to evidence as a whole, whether it be oral or documentary, which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible." Brown & Root, Inc. v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 341 (1944) (quoted by Speier v. Webster College, 616 S.W.2d 617, 619 (Tex.1981)); accord In re K.C.P., 142 S.W.3d 574, 583 (Tex.App.-Texarkana 2004, no pet.); Leaird's, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 692 (Tex.App.-Waco 2000, pet. denied).³ This principle is a particular application of the requirement that an objection be "specific."

However, as indicated by the plain language of Rule 103(a)(1), the specificity of an objection is less important when the basis for the objection is "apparent from the context." TEX.R. EVID. 103(a)(1). Thus, Texas courts have found issues adequately preserved for appellate review even when the objections at issue did not meet the stringent requirements of Brown & Root and its progeny. See, e.g., In re E.A.K., 192 S.W.3d 133, 147 n. 24 (Tex. App.-Houston [14th Dist.] 2006, pet. denied); K.C.P., 142 S.W.3d at 578-79; All Saints Episcopal Hosp. v. M.S., 791 S.W.2d 321, 323 (Tex.App.-Fort Worth 1990), writ granted w.r.m., 801 S.W.2d 528 (Tex.1991) (per curiam).

Here, the comments of the prosecutor, defense counsel, and the trial court all indicate that the basis for M.P.'s objection was "apparent from the context." See TEX.R. EVID. 103(a)(1); E.A.K., 192 S.W.3d at 147 n. 24; K.C.P., 142 S.W.3d at 578-79; All Saints Episcopal Hosp., 791 S.W.2d at 323. Therefore, we reject the State's contention that M.P. failed to preserve this issue for appellate review.

Due Process in Juvenile Proceedings

Juvenile delinquency proceedings must provide constitutionally mandated due process of law. In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967); L.G.R. v. State, 724 S.W.2d 775, 776 (Tex.1987); Hidalgo v. State, 983 S.W.2d 746, 751 (Tex.Crim.App.1999); In re J.S.S., 20 S.W.3d 837, 841-42 (Tex.App.-El Paso 2000, pet. denied). However, the process due a juvenile offender does not equate to that due an adult offender in every instance. See Gault, 387 U.S. at 14, 87 S.Ct. at 1436; In re J.R.R., 696 S.W.2d 382, 383-84 (Tex.1985) (per curiam); Hidalgo, 983 S.W.2d at 751-52; J.S.S., 20 S.W.3d at 842.

The Court of Criminal Appeals has adopted a balancing test it distilled from eight foundational decisions of the Supreme Court of the United States "to determine whether and to what degree" a particular constitutional protection must be afforded a juvenile.⁴ Lanes v. State, 767 S.W.2d 789, 794 (Tex.Crim.App.1989); accord Hidalgo, 983 S.W.2d at 751. This test requires an appellate court to "balance[] the function that [the asserted] constitutional or procedural right serve[s] against its impact or degree of impairment on the unique processes of the juvenile court." Lanes, 767 S.W.2d at 794; accord Hidalgo, 983 S.W.2d at 751-52; J.S.S., 20 S.W.3d at 842-44; S.D.G. v. State, 936 S.W.2d 371, 378-79 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

The Court recognized in Hidalgo that the justifications for affording fewer constitutional protections to juveniles than adults have lessened in recent years as the juvenile justice system has become more punitive than rehabilitative.

In adopting this balancing test this Court also announced a desire to "dispel the antiquated and unrealistic resistance to procedural safeguards" in the juvenile court system. We observed that due to the scarcity of treatment programs, professional training, and financial resources the juvenile system had become more punitive than rehabilitative. Rather than ignore these realities we chose to balance the "aspirations of the juvenile court and the grim realities of the system."

Recent amendments to the Juvenile Justice Code change[d] juvenile adjudication and punishment, causing the "grim realities" to be even more salient. As this Court recently recognized in Blake v. State, 971 S.W.2d 451, 460 (Tex. Crim.App.1998), juveniles now face consequences similar to those faced by adults. Most apparent is the fact juveniles may now be subject to a forty-year term of imprisonment. Blake recognized some of the legislative changes making the juvenile system more punitive than rehabilitative:

[T]he legislature expanded the definitions of delinquent conduct, expanded the list of felony offenses that authorize criminal proceedings for juveniles over the age of fourteen, authorized confinement in the Texas Department of Criminal Justice for various grades of felony and habitual felony conduct, categorized certain adjudications as "final felony convictions" that can be used as enhancements for repeat offenders, removed provisions forbidding the maintenance of centralized photograph and fingerprint records, repealed laws about sealing and destruction of juvenile records, and mandated the use of the Texas Rules of Criminal Evidence and the evidentiary provisions of Chapter 38 of the Code of Criminal Procedure instead of their civil counterparts for judicial proceedings involving juveniles.

Blake, 971 S.W.2d at 460 n. 28. These recent legislative changes continue to erode the original justifications for denying juveniles the same procedural protections as adults.

Hidalgo, 983 S.W.2d at 751-52 (other citations and footnote omitted).

Accordingly, we must determine whether the disposition phase of a juvenile delinquency proceeding is the type of proceeding to which the Sixth Amendment right of confrontation⁵ applies. If so, then we must examine the impact the application of that right would have on the juvenile justice system. See id. at 752; J.S.S., 20 S.W.3d at 842.

Sixth Amendment Right of Confrontation

The right of confrontation is one of several rights provided by the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. CONST. AMEND. VI.

In Ohio v. Roberts, the Supreme Court of the United States held that the admission of hearsay evidence did not violate a defendant's Sixth Amendment right of confrontation if the declarant was unavailable to testify and the statement bore adequate indicia of reliability either...