In the Matter of J.S.S., 08-99-00121-CV

• Decision Date: 08 June 2000
• Docket Number: No. 08-99-00121-CV,08-99-00121-CV
• Citation: 20 S.W.3d 837
• Parties: (Tex.App.-El Paso 2000) IN THE MATTER OF J.S.S., A JUVENILE
• Court: Texas Court of Appeals

Page 837

20 S.W.3d 837 (Tex.App.-El Paso 2000)

IN THE MATTER OF J.S.S., A JUVENILE

No. 08-99-00121-CV

COURT OF APPEALS, EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

June 8, 2000

Rehearing Overruled July 6, 2000

Appeal from 327th District Court of El Paso County, Texas (TC# 9900275)

Disposition reversed and remanded.

Before Panel No. 2, Barajas, C.J., McClure, and Chew, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice

J.S.S., a juvenile, appeals from an order committing him to the Texas Youth Commission following an adjudication of delinquent conduct. J.S.S. waived his right to a jury trial, and the trial court found, based upon J.S.S.'s plea of true to the allegations in the petition and his voluntary stipulation of evidence and written admission, that J.S.S. engaged in delinquent conduct by possessing more than 50 but less than 2,000 pounds of marihuana. Following a disposition hearing, the trial court entered a commitment order to the Texas Youth Commission. On appeal, J.S.S. contends that the trial court erred in considering the pre-disposition report at the disposition hearing because it was taken in violation of J.S.S.'s Fifth Amendment right to remain silent. Finding that a juvenile's Fifth Amendment rights extend through the conclusion of the disposition hearing and that the use of the incriminating information gathered during the interview violated J.S.S.'s privilege against self-incrimination, we reverse and remand for a new disposition hearing.

FACTUAL SUMMARY

U.S. Customs agents arrested sixteen-year-old J.S.S., a Mexican citizen and resident of Cd. Juarez, Chihuahua, Mexico, when they found 72 pounds of marihuana in a hidden compartment of a vehicle he attempted to drive into the United States through the Ysleta Port of Entry. The State filed a petition alleging that J.S.S. engaged in delinquent conduct by possessing more than 50 but less than 2,000 pounds of marihuana. With the consent of J.S.S., a juvenile court referee held the adjudication hearing in this case. After explaining to J.S.S. all of his applicable rights and ensuring that he understood them, the referee approved J.S.S.'s written waiver of those rights and accepted his judicial admission. That form, entitled "Waiver, Stipulation and Admission" provides:

I, J.S.S., the juvenile in the above entitled and numbered cause, do hereby in open Court admit to the allegations of the petition filed in said cause (or to a lesser included offense), and upon having entered my Admission, hereby waive my right to a trial by jury, waive the appearance, confrontation and cross examination of witnesses and further consent to the introduction of this Stipulation and Admission, and any other documentary evidence in support of the judgment of the Court. I agree that the evidence may be stipulated and that the attorney representing the State may make a statement to testimony upon which the petition was filed and the testimony which would have been produced against me in the trial of my case should I have demanded a trial, jury or non-jury.

I fully understand that if I admit to the offense or offenses, that I can be placed on probation until the age of Eighteen (18), or that I may be committed to the care, custody and control of the Texas Youth Commission, a state correction facility until the age of 21. I also understand that there has been no recommendation as to the disposition made either to me or my attorney by any attorney of the County Attorney's Office.

I hereby request the approval and consent of the Court to the foregoing waiver and consent.

I do now hereby, in open Court, ADMIT all of the allegation(s) (Count(s) I ) of the petition in this cause and I confess that I committed the offense(s) charged in the petition (or lesser included offense of ,[)] waiving the rights to which I am entitled to under Section 51.09, Texas Family Code, and which rights have been explained fully by the Court and I understand those rights, particularly the right to require sufficient evidence to support the judgement [sic] of the Court, in view of my judicial confession herein made.

Based upon the waiver and stipulation, the court entered an adjudication order and set the case for a disposition hearing. At some point following the adjudication hearing, a juvenile probation officer, Amalia Caro-Sanchez, interviewed J.S.S. while he was in custody. Ms. Caro-Sanchez questioned J.S.S. not only about his personal circumstances and family environment but also about the facts of the instant case and his past history. During the disposition hearing, she testified over objection that J.S.S. told her he had committed the same offense on two prior occasions and his brother-in-law who hired him to transport the drugs had paid him $700 for each trip. J.S.S. voluntarily testified during the disposition hearing. Over objection, the juvenile court questioned J.S.S. at length about the facts of this offense and the extraneous offenses. At the conclusion of the disposition hearing, the juvenile court judge specifically stated that in deciding to send J.S.S. to T.Y.C. rather than placing him in the Mexican National Children's Program, he took into account that J.S.S. had committed the same offense on two prior occasions.

PRE-DISPOSITION REPORT

In Issue One, J.S.S. asserts that the trial court erred in considering incriminating statements made by him during the pre-disposition interview because the juvenile probation officer did not warn him of his Fifth Amendment right to remain silent. J.S.S. relies on both Mitchell v. United States, 526 U.S. 314, ---, 119 S.Ct. 1307, 1314, 143 L.Ed.2d 424 (1999) and Estelle v. Smith, 451 U.S. 454, 466, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359 (1981) in support of his argument. The State responds that a juvenile's Fifth Amendment rights are extinguished at the conclusion of the adjudication hearing. It also argues that the privilege against self-incrimination should not be extended to the disposition hearing due to the difference in the goals of the adult criminal and juvenile systems. In addressing the issues before us, we will first consider whether the Fifth Amendment should be extended to the disposition hearing as a general matter, and then will address the more specific question whether the Fifth Amendment bars the use of any incriminating evidence gathered during the pre-disposition interview.

Although the State does not raise this issue, we have considered whether J.S.S. waived his complaint by testifying during the disposition hearing. When the juvenile court questioned J.S.S. about the subject matter of his incriminating statements, defense counsel continued to object. Further, it appears from the record that J.S.S. took the stand, at least in part, to respond to the pre-disposition report and the probation officer's recommendation. Under these circumstances, we do not find waiver. See Leday v. State, 983 S.W.2d 713, 718-19 (Tex.Crim.App. 1998)(general rule of waiver or harmless error does not apply if defendant's testimony, which constituted other evidence of a fact that was proved over the defendant's objection, was impelled by the state's introduction of evidence that was obtained in violation of the law); see also Thomas v. State, 572 S.W.2d 507, 512 (Tex.Crim.App. 1976)(the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy,or explain it by introducing rebutting evidence).

The Fifth Amendment to the United States Constitution prevents a person from being "compelled in any criminal case to be a witness against himself." U.S.Const., Amdt. 5; Mitchell, 526 U.S. at 327, 119 S.Ct. at 1314. In Mitchell, the Supreme Court held that the sentencing proceeding in a federal criminal prosecution is considered to be part of the "criminal case" so that the Fifth Amendment's guarantee of the right to remain silent applies equally to that phase of a criminal case. See Mitchell, 526 U.S. at 327, 119 S.Ct. at 1314. The Supreme Court generally rejected the idea that entry of a guilty plea completes the incrimination of the defendant, thereby extinguishing the privilege. Mitchell, 526 U.S. at 327, 119 S.Ct. at 1313-14. So long as sentence has not yet been imposed, the defendant may have a legitimate fear of adverse consequences from further testimony. Id., 526 U.S. at 327, 119 S.Ct. at 1314. Any effort by the government to compel the defendant to testify against his will at the sentencing hearing would contravene the Fifth Amendment. Id.; Estelle, 451 U.S. at 462, 101 S.Ct. at 1872. Although the Supreme Court only recently clarified this issue in Mitchell, it has long been the law in Texas that an adult defendant has a separate and distinct Fifth Amendment privilege against self-incrimination at the punishment phase of his bifurcated trial, and therefore, the mere finding of guilt does not terminate the privilege against self-incrimination. See Wilkens v. State, 847 S.W.2d 547, 553 (Tex.Crim.App. 1992)(stating this rule); Brumfield v. State, 445 S.W.2d 732, 737-41 (Tex.Crim.App. 1969)(adopting this rule following 1965 enactment of Article 37.07, which adopted bifurcated trial system applicable to trials of all felonies and misdemeanors punishable by imprisonment). Thus, the Fifth Amendment applies with equal force to the sentencing phase of a case even if the defendant waived his right to remain silent and testified during guilt-innocence. See Beathard v. State, 767 S.W.2d 423, 431-32 (Tex.Crim.App. 1989)(trial court erred in refusing to give the jury a "no adverse inference" instruction during punishment phase; even though defendant testified during guilt-innocence, he retained right to remain silent during punishment phase); Brumfield, 445 S.W.2d at 741 (defendant's constitutional right against self-incrimination violated where State called defendant to testify at punishment phase regarding prior convictions; defendant's waiver of right at guilt-innocence by giving testimony on merits...