Matter of N.S., No. 10-01-319-CV (Tex. App. 2/11/2004)
| Decision Date | 11 February 2004 |
| Docket Number | No. 10-01-319-CV,10-01-319-CV |
| Parties | IN THE MATTER OF N.S., A JUVENILE |
| Court | Texas Court of Appeals |
Appeal from the 19th District Court, McLennan County, Texas Trial Court # 2000-047-J.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA8 (Chief Justice Gray concurring)
In this appeal we decide what if anything a juvenile court must do when a juvenile offender whom the Texas Youth Commission ("TYC") has referred for transfer to the institutional division of the Texas Department of Criminal Justice ("TDCJ") alleges himself to be incompetent. N.S. contends in his sole issue that the court abused its discretion by failing to appoint a psychiatric expert to evaluate his competency when his counsel raised the issue at the beginning of the transfer hearing.
The State initiated proceedings against N.S. in juvenile court by filing a petition on February 2, 2000 alleging that he had engaged in delinquent conduct by committing the offense of capital murder on or about May 9, 1999. The State filed an application for court-ordered temporary mental health services on February 7 alleging N.S. to be mentally ill. The court signed an order on February 18 finding that N.S. was mentally ill and that he posed a danger to himself and others. The court ordered that he receive temporary inpatient mental health services.
After N.S. was treated and released, he entered a negotiated plea. The court found that N.S. had engaged in delinquent conduct as alleged. Pursuant to the plea agreement, the court assessed a determinate sentence of forty years and committed N.S. to TYC.
TYC referred N.S. to the juvenile court for transfer to TDCJ after he turned sixteen. At the commencement of the transfer hearing, N.S.'s counsel informed the court that he had experienced great difficulty communicating with N.S. and had "serious concerns . . . that [N.S.] [wa]s not able to assist [counsel] in th[e] hearing." Counsel stated, "I can't certif[y] to the court that I think my client understands what's going on." Counsel asked the court to appoint a psychiatrist to determine whether N.S. was competent for the hearing.
The court made a brief recitation of N.S.'s history regarding mental health issues. The court stated:
I believe that there is enough documentation in the record from the mental health professionals that the court of necessity has to rely on to find that there is—there is no probable cause . . . to believe that he has a mental illness, so therefore I'm going to overrule your motion . . . .
The court then asked N.S. a series of basic questions (e.g., "Are you [N.S.]?") to which the court received mostly unintelligible responses.
N.S.'s counsel informed the court that these were the same kind of responses he had obtained from N.S. when he tried to discuss the case with him. The court concluded, "To the court [N.S.'s responses] match the behavior that is detailed in the papers forwarded to the court by [TYC], so I'm going to maintain my ruling here, so let's proceed with the hearing."
At the conclusion of the hearing, the court ordered N.S.'s transfer to TDCJ to serve out the remainder of his sentence.
Based on the date of N.S.'s delinquent conduct, a former version of section 54.11 of the Juvenile Justice Code applied to the transfer hearing.1 That statute provides in pertinent part:
(d) At a hearing under this section the court may consider written reports from probation officers, professional court employees, or professional consultants, in addition to the testimony of witnesses. At least one day before the hearing, the court shall provide the attorney for the person to be transferred or released under supervision with access to all written matter to be considered by the court.
(e) At the hearing, the person to be transferred or released under supervision is entitled to an attorney, to examine all witnesses against him, to present evidence and oral argument, and to previous examination of all reports on and evaluations and examinations of or relating to him that may be used in the hearing.
. . . .
(I) On conclusion of the hearing on a person who is referred for transfer under Section 61.079(a), Human Resources Code, the court may order:
(1) the return of the person to the Texas Youth Commission; or
(2) the transfer of the person to the custody of the institutional division of the Texas Department of Criminal Justice for the completion of the person's sentence.
. . . .
(k) In making a determination under this section, the court may consider the experiences and character of the person before and after commitment to the youth commission, the nature of the penal offense that the person was found to have committed and the manner in which the offense was committed, the abilities of the person to contribute to society, the protection of the victim of the offense or any member of the victim's family, the recommendations of the youth commission and prosecuting attorney, the best interests of the person, and any other factor relevant to the issue to be decided.
Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 46, 1995 Tex. Gen. Laws 2517, 2542 (amended 2001) ) "").
The former section2 55.04 () potentially applies to N.S.'s case.3 That statute provides in pertinent part:
(a) A child alleged by petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision who as a result of mental illness or mental retardation lacks capacity to understand the proceedings in juvenile court or to assist in his own defense is unfit to proceed and shall not be subjected to discretionary transfer to criminal court, adjudication, disposition, or modification of disposition as long as such incapacity endures.
(b) If on motion by a party or the court it is alleged that a child may be unfit to proceed as a result of mental illness or mental retardation, the court shall order appropriate examinations as provided by Section 55.01 of this chapter. The information obtained from the examinations must include expert opinion as to whether the child is unfit to proceed as a result of mental illness or mental retardation.
Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 47, sec. 55.04, 1995 Tex. Gen. Laws 2517, 2545 (amended 1999) ) "").
Section 55.04 expressly applies to "discretionary transfer[s] to criminal court, adjudication[s], disposition[s], [and] modification[s] of disposition[s]." Id. The statute does not on its face seem to apply to section 54.11 transfer hearings. Nevertheless, N.S. contends that due process requires that a juvenile be competent before he can be made to participate in a transfer hearing.
Settled law establishes that 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); In re J.S.S., 20 S.W.3d 837, 841-42 (Tex. App.—El Paso 2000, pet. denied); see also R.X.F. v. State, 921 S.W.2d 888, 895 (Tex. App.—Waco 1996, no writ) ("Our view is that the state can no more deny a juvenile equal protection of the law in a determinate-sentence proceeding than it can an adult in a criminal proceeding."). However, the process due a juvenile delinquent 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); J.S.S., 20 S.W.3d at 842.
In Lanes v. State, the Court of Criminal Appeals 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.4 767 S.W.2d 789, 794 (Tex. Crim. App. 1989); accord Hidalgo v. State, 983 S.W.2d 746, 751 (Tex. Crim. App. 1999). 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.
According to our research, two intermediate appellate courts have employed this test. See 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). We do so as well.
As the Court noted in Lanes, the Legislature codified the purposes of the juvenile justice system in the Juvenile Justice Code. See 767 S.W.2d at 794. Section 51.01 provides:
This title shall be construed to effectuate the following public purposes:
(1) to provide for the protection of the public and public safety;
(2) consistent with the protection of the public and public safety:
(A) to promote the concept of punishment for criminal acts;
(B) to remove, where appropriate, the taint of criminality from children committing certain unlawful acts; and
(C) to provide treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child's conduct;
(3) to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions;
(4) to protect the welfare of the community and to control the commission of unlawful acts by children;
(5) to 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...
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