R______ E______ M______ v. State
| Decision Date | 30 June 1976 |
| Docket Number | No. 15645,15645 |
| Parties | R_ _ E_ _ M_ _, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Eugene H. Lieck, San Antonio, for appellant.
Ted Butler, Crim. Dist. Atty., Douglas C. Young, Asst. Dist. Atty., San Antonio, for appellee.
Appellant seeks reversal of an order of the juvenile court of Bexar County transferring the murder charge against him to the district court so that he may be tried as as adult for such offense.
A previous order of the juvenile court transferring appellant for trial as an adult for this same offense was reversed by this Court on the ground that, prior to the hearing on the State's motion to transfer, the juvenile court had not obtained a diagnostic study as required by Sec. 54.02(d) of the Tex.Family Code. 1 R.E.M. v. State, 532 S.W.2d 645 (Tex.Civ.App., San Antonio 1975, no writ).
We consider first appellant's point 1, asserting that the juvenile court lacked jurisdiction to entertain the transfer motion, since, prior to the time that the motion for transfer was filed, the State had filed its petition seeking to have appellant adjudged delinquent for the same offense.
Under Sec. 54.02(a)(1) and Sec. 54.02(a)(2) of the Tex.Family Code, the juvenile court may 'waive' its exclusive jurisdiction over juvenile offenders and transfer a child to district court for prosecution as an adult if the child is alleged to have committed an offense of the grade of felony when he was fifteen years of age or older 'and no adjudication hearing has been conducted concerning that offense.' Since no adjudication hearing has been held in juvenile court concerning the offense in question, this provision of the Family Code presents no problem.
The offense in question was allegedly committed on April 8, 1974. The petition seeking to have appellant adjudged delinquent was filed on April 19, 1974. The motion for transfer was filed on May 6, 1974. As far as possible application to this case is concerned, the State concedes that we must look to Article 30(c), Tex.Penal Code Ann. (1973), which provided:
A person who has been alleged in a petition for an adjudication hearing to have engaged in delinquent conduct . . . may not be prosecuted for or convicted of any offense alleged in the juvenile court petition or any offense within the knowledge of the juvenile court judge as evidenced by anything in the record of the juvenile court proceedings. 2
It is appellant's contention that the provision in the Penal Code had the effect of depriving the juvenile court of jurisdiction to transfer appellant to district court for trial as an adult, since such Penal Code provision precluded prosecution or conviction of appellant for the offense of murder alleged in the adjudication petition previously filed in juvenile court.
Appellant's contention is without merit. The Penal Code provision on which appellant relies did no more than to make available a plea in the nature of double jeopardy as a defense to a prosecution in criminal court. It does not deprive the juvenile court of jurisdiction to certify appellant for prosecution as an adult. We agree with the conclusion reached in Stockton v. State, 506 S.W.2d 918, 919 (Tex.Civ.App., Waco 1974, no writ), where it was said,
Section 54.02(d) requires that the juvenile court, 'Prior to the hearing' on the State's motion to transfer, 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.'
After the first transfer order had been set aside by this Court, the juvenile judge, on March 18, 1976, ordered 'a complete diagnostic study and social evaluation' of appellant. Appellant contends that, since this order did not call for 'full investigation of the child, his circumstances, and the circumstances of the alleged offense,' there has been no compliance with the requirements of Sec. 54.02(d). We overrule this contention.
When the motion for transfer was originally filed in 1974, the juvenile judge promptly ordered the preparation of all items mentioned in Sec. 54.02(d). Except for the diagnostic study, these reports were made and delivered to the juvenile judge. Nothing in the statute requires a duplication of the reports and investigations which had been made originally. The juvenile judge, had, in fact, 'ordered and obtained' the investigation which was not mentioned in the second order.
As a result of the court's order for a complete diagnostic study, Dr. Sherman, county child psychologist, and Dr. Cameron, county psychiatrist, interviewed appellant. After Dr. Sherman had introduced himself to appellant, appellant said, Appellant refused to take psychometric tests and refused to answer any questions. As a result, it was impossible for Dr. Sherman to draw any conclusions as to appellant's 'present mental status or psychological makeup.'
Dr. Cameron reported that appellant told him he would like to cooperate, but that his attorney had instructed him to answer no questions. According to Dr. Cameron, appellant was embarrassed 'because he did not and would not answer even the most simple and innocuous questions,' other than to give such personal data as his name, age, height, weight, and place of birth. Dr. Sherman testified that he could not 'perform a psychological evaluation' if the person to be evaluated refused to cooperate 'in regard to having an interview or as to taking any tests.'
Based upon his observation of appellant, Dr. Cameron reported that appellant 'appeared to be a rather alert, personable individual who was in good contact with his surroundings,' who evidence no 'overt neurotic or psychotic symptomatology' and who 'is apparently able to cooperate with his attorney because he was following his instructions to the letter.' He added that appellant 'appears competent and must be presumed so until otherwise established.'
In setting aside the first transfer order, we relied on the fact that the juvenile court had not obtained the 'complete diagnostic study' required by the statute. But our conclusion to reverse was based on the absence of evidence showing that appellant's refusal to cooperate and submit to interviews precluded the making of such a study. 532 S.W.2d at 648. The record now before us shows that attempts were in fact made to effect a diagnostic study, and that the limited nature of the study was due solely to appellant's refusal to cooperate. Under these circumstances, we conclude that the reports of Dr. Sherman and Dr. Cameron, and particularly the report of Dr. Cameron, constitute as complete and adequate a 'diagnostic study' as was possible under the circumstances, and that a bona fide effort was made to comply with the statute. We are not inclined to hold that the statute requires the accomplishment of that which is impossible due to appellant's attitude.
Over appellant's objection, the court admitted into evidence the transcript of the testimony offered at the previous hearing which resulted in the entry of the first transfer order which we set aside. Appellant contends, and we agree, that the admission of such transcript requires reversal.
It is the settled rule in this State that testimony of a witness given at a prior trial of the same case or substantially the same issues, at which prior hearing there was opportunity for cross-examination, may be introduced in evidence at a subsequent trial 'where it is shown that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.' Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509, 510 (Tex.1966). The State admits that there is no showing that any of the conditions precedent to the admission of the testimony given at the first hearing existed.
We see no reason why the rule should not be applied in a hearing for the purpose of determining whether a youthful offender is going to be deprived of the protection afforded by the...
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