J.S.C., Matter of

• Decision Date: 18 February 1994
• Docket Number: No. 13-93-305-CV,13-93-305-CV
• Citation: 875 S.W.2d 325
• Parties: In the Matter of J.S.C.
• Court: Texas Court of Appeals

Page 325

875 S.W.2d 325

In the Matter of J.S.C.

No. 13-93-305-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 18, 1994.

Rehearing Overruled April 21, 1994.

Ronald Piperi, E. Kent Ellis, Houston, for appellant.

John C. Dickerson, III, Melissa Abshire, Matagorda County Attorney's Office, Bay City, Jim Vollers, Austin, for appellee.

Before KENNEDY, GILBERTO HINOJOSA and YANEZ, JJ.

OPINION

KENNEDY, Justice.

J.S.C. is charged with capital murder of two juveniles, committed when J.S.C. was sixteen years old. He appeals from an order by which a juvenile court waived its exclusive, original jurisdiction and transferred his case to criminal district court. Appellant seeks a reversal and remand of the matter to juvenile court and to have further proceedings against him addressed in juvenile court. By four points of error, appellant complains that the juvenile court improperly transferred its jurisdiction because it reached its decision without first obtaining and considering a diagnostic study of appellant as required by Texas Family Code section 54.02(d). We affirm the trial court's order.

The State alleged in its petition for waiver of jurisdiction that J.S.C., during the same criminal transaction, intentionally and knowingly caused the death of one woman by stabbing her with a knife, and intentionally and knowingly caused the death of a second woman by stabbing her with a knife while in the course of committing and attempting to commit aggravated sexual assault.

Texas Family Code section 54.02(a) provides that the juvenile court may waive its exclusive, original jurisdiction and transfer a child to the appropriate district court for criminal proceedings if the child is alleged to have committed a felony and was aged fifteen or older at the time of the alleged offense. Tex.Fam.Code Ann. § 54.02(a) (Vernon Supp.1994). When considering whether to transfer its jurisdiction, the court must conduct a full investigation and hearing. Id. The juvenile court then determines whether there is probable cause to believe that the child committed the offense alleged, and, that because of the seriousness of the offense, or, the background of the child, the welfare of the community requires criminal proceedings. Id. (emphasis added). Texas Family Code section 54.02(d) provides that before the transfer hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense. Tex.Fam.Code Ann. § 54.02(d) (Vernon 1986). In making its decision, the juvenile court shall consider, among other matters:

1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person; 2) whether the alleged offense was committed in an aggressive and premeditated manner; 3) whether there is evidence on which a grand jury may be expected to return an indictment; 4) the sophistication and maturity of the child; 5) the record and previous history of the child; and 6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Tex.Fam.Code Ann. § 54.02(f) (Vernon 1986).

Absent a showing of an abuse of discretion, the trial court's findings will not be disturbed. In re D.W.L., 828 S.W.2d 520, 525 (Tex.App.--Houston [14th Dist.] 1992, no writ); In re D.J.R., 565 S.W.2d 392, 395 (Tex.App.--Fort Worth 1978, no writ).

Pursuant to section 54.02, the court ordered, obtained and considered a certification investigation report. Typically, the certification report includes a psychiatric report, a psychological report, and a report by a probation department caseworker. See In re W.R.M., 534 S.W.2d 178, 180 (Tex.Civ.App.--Eastland 1976, no writ). Included in the certification report were reports by a psychiatrist, a psychologist, and appellant's juvenile probation officer. The court obtained these studies and reports before the hearing.

In its order, the court stated that, among other things, it had considered the factors set forth in Family Code section 54.02(f). After conducting a full investigation and hearing arguments of counsel, the court determined that there was probable cause to believe that appellant committed the offenses of capital murder as alleged. The court waived its exclusive, original jurisdiction for the following reasons: 1) the alleged offenses were against persons; 2) the alleged offenses were committed in an aggressive and premeditated manner; 3) there appears to be evidence upon which a grand jury may be expected to return an indictment; 4) the sophistication and maturity of the juvenile are such that he understands the allegations against him, and he is able to assist his attorney in his defense; 5) the child will not likely be rehabilitated through the juvenile system; 6) without effective rehabilitation through the juvenile system, the public will not be adequately protected; and 7) without adequate protection of the public, the welfare of the community requires criminal proceedings against the juvenile. The court's waiver order then states, "After conducting such full investigation, including evidence and argument of counsel, this Court finds that the welfare of the community requires criminal proceedings that there is probable cause to believe that the child committed the offenses of capital murder."

By point one, appellant asserts that the court did not obtain and consider a complete diagnostic study of appellant as required by the Family Code. By point four, appellant contends that the trial court abused its discretion when transferring its jurisdiction. Appellant asserts that the diagnostic study was incomplete because it did not include an interview with appellant. Appellant specifically asserts that the court should have determined that the psychological evaluation received was unsatisfactory. Appellant suggests that the proper action was for the court to order a new psychological evaluation, and reset the hearing to be conducted only when a satisfactory evaluation had been made, obtained, and considered by the court.

The testimony at the hearing reflects that Dr. Williams, a psychiatrist, attempted to interview appellant on three occasions. Dr. Williams explained that upon each attempt, appellant politely declined to answer his questions. Dr. Williams recalled that appellant told him that his attorney advised him not to answer any of the doctor's questions. Dr. Williams reviewed medical and school records that were sent to him regarding appellant. Dr. Williams also spoke with people at the Brazoria County Juvenile Detention Center. Dr. Williams also observed appellant for between an hour and ninety minutes at the detention center. Based on the information collected, Dr. Williams opined that appellant was "quite sophisticated and mature for his age." Based upon the records received, the persons interviewed and what Dr. Williams observed, he testified that he had gathered all of the information necessary for his conclusions. He also stated that he spent much more time on this case because he was unable to interview appellant. Additionally, he determined that appellant knew the difference between right and wrong.

Appellant's attorney, during cross-examination, asked Dr. Williams about a telephone conversation the two had in which the attorney discussed the possibility of being present when the doctor interviewed appellant. Dr. Williams recalled the conversation and testified that he had told the attorney that he "had no objection to [him] being [at the interview] when [he] asked me." The doctor continued, "[t]o the best of my recollection, I said I did not object if you were there." Additionally, Dr. Williams said that he did not notify appellant's attorney when he attempted the interviews because the attorney never asked that he be informed when the interviews would take place and never stated that he wanted to be present. The attorney suggested to Dr. Williams that each time he attempted an interview perhaps appellant had answered that he did not want to speak with the doctor without his attorney present. The doctor responded that appellant never told him that. The doctor also stated that appellant never told him that he would talk to the doctor if his attorney were present. Appellant did not testify at the hearing and there is no evidence that appellant ever stated that he wanted his attorney present at the interviews.

Dr. Joe, the psychologist, attempted to interview appellant on three occasions. Dr. Joe testified that on those occasions, upon introducing himself, appellant responded that "he had been advised by his attorney not to take any tests or answer any questions at that time." Dr. Joe also reviewed school and medical records which helped him to gain some sense of the overall perspective of the appellant's ability to function intellectually. Dr. Joe noted by reviewing appellant's achievement test summaries, he determined that appellant was functioning at the average range or above average range of intelligence. Dr. Joe stated that because of the limited perspective he had of appellant he was not comfortable making an overall recommendation. Upon further questioning, Dr. Joe stated that he did not see any reason that appellant should not be certified as an adult.

Both doctors testified that generally an attorney is not present when they conduct interviews with juveniles whom the State is requesting be tried as adults.

James Hicks, the juvenile probation officer for Matagorda County, testified at the hearing that he was ordered by the court to make a social evaluation, and full investigation of the child and his circumstances, and the circumstances of the alleged offense. He filed his report before the hearing.

At the hearing, Hicks testified about the information he...