Tyler v. State

• Decision Date: 13 June 1974
• Docket Number: No. 7593,7593
• Parties: Elious TYLER, Jr., a delinquent child, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 46

512 S.W.2d 46

Elious TYLER, Jr., a delinquent child, Appellant, v. The STATE of Texas, Appellee.

No. 7593.

Court of Civil Appeals of Texas,

Beaumont.

June 13, 1974.

Ronald L. Walker, Beaumont, for appellant.

W. A. Tatum, Beaumont, for appellee.

DIES, Chief Justice.

The appellant, Elious Tyler, a juvenile, was charged with theft of personal property of a value less than $50. In accordance with the requirements of V.T.C.A., § 54.04, Title 3 of the Texas Family Code, two distinct hearings were had. In the first--the adjudication hearing--the juvenile affirmed the charges in writing and was adjudged to have engaged in delinquent conduct within the meaning of § 51.03 of the Family Code. No complaint is made of this proceeding .

At a subsequent disposition hearing, appellant was committed to the care, custody, and control of the Texas Youth Council. It is this hearing of which appellant complains in this review. His sole point of error is that § 54.04(b) denies his constitutional right to be confronted by and to cross-examine witnesses against him. The section challenged provides:

'(b) At the disposition hearing, the juvenile court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. Prior to the disposition hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in disposition. The court may order counsel not to reveal items to the child or his parent, guardian, or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.'

In this disposition hearing, the court permitted the probation officer to testify regarding the contents of the 'Analysis of the Factors' which contained opinions of a psychologist. The psychologist did not appear.

In enacting § 51.01, Title 3 of the Family Code, the legislature (Acts 1973, 63rd Leg., p, 1460, ch. 544, effective September 1, 1973) declared its purpose to be:

'(1) to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions;

'(2) to protect the welfare of the community and to control the commission of unlawful acts by children;

'(3) consistent with the protection of the public interest, to remove from children committing unlawful acts the taint or criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation;

'(4) to achieve the foregoing purposes in a family environment whenever possible, reparating the child from his parents only when necessary for his welfare or in the interest of public safety and when a child is removed from his family, to give him the care that should be provided by parents; and

'(5) to provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.'

We have set out in full the 'public purpose' of Title 3 of the Family Code, because we think it clearly demonstrates the reasons our legislature has determined that children should be treated with some difference than adults in criminal matters. The motives behind these differences are noble, intended to shield children from the consequences of criminal trials, convictions, and punishment. The procedure emanates from compassion, and society's hope that gentleness, understanding, and rehabilitation to the young offender will prevent the same person, on reaching adulthood, from criminal conduct. Indeed, we reject the contention that § 54.04(b), above set out, deprives a child of a basic constitutional right. If we are to apply all our rules and procedures of criminal law to children, we might as well abolish Title 3 and treat them in the same fashion as adults. We believe this action would be regressive. We are confident that the approach of Title 3 is another step by mankind in its effort to find a better and a more just way of life.

Appellant cites us In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed .2d 527 (1967), and Landry v. State, 504 S.W.2d 580 (Tex.Civ.App., Beaumont, 1973, error ref. n.r.e.). The Landry case arose before § 54.04(b) became effective, and when the statute did not require separate hearings on adjudication and disposition. Gault (387 U.S. 1, 87 S.Ct. at 1436, 18 L.Ed.2d at 538) declares:

'We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile 'delinquents.' For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. See Note 48 infra. We consider only the problems presented to us by this case. These relate to the proceedings by which a determination is made as to whether a juvenile is a 'delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution. As to these proceedings, there appears to be little current dissent from the proposition that the Due Process Clause has a role to play.'

See Note 48 in the opinion saying in part:

'The problems of pre-adjudication treatment of juveniles, and of post-adjudication disposition, are unique to the juvenile process; Hence what we hold in this opinion with regard to the procedural requirements at the adjudication stage has no necessary applicability to other steps of the juvenile process.' (Id. at 387 U.S. 1, 87 S.Ct. at 1145, 18 L.Ed.2d at 548, emphasis supplied)

And, 387 U.S. 1, 87 S.Ct. on p. 1443, 18 L.Ed.2d on p. 546 of the opinion:

'(N)or do we here rule upon the question whether ordinary due process requirements must be observed with respect to hearings to determine the disposition of the delinquent child.' (emphasis supplied)

See also McKeiver v. Pennsylvania, 403 U.S. 528, 29 L.Ed.2d 647, 91 S.Ct. 1976 (1971), holding that a jury trial is not a constitutional right of a juvenile (there charged with robbery, larceny, and receiving stolen property).

Leach v. State, 428 S.W.2d 817 (Tex.Civ.App., Houston--14th Dist., 1968, no writ), cited by appellant, was decided before the effective date of § 54.04(b) and does not concern the sole point in this appeal. We agree with the statement, which appellant cites from Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 92 L.Ed. 224, 229 (1948) as follows:

'Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.'

Here there is no complaint that appellant was not accorded due process in the adjudication hearing. In the disposition hearing, there is good reason to give the judge the latitude afforded by § 54 .04(b) to consider all factors in deciding what disposition to make. Any possible danger to the child is removed by the requirement that the court provide the attorney for the child with all written matter to be considered by the court in disposition. We conclude that § 54 .04 of Title 3 of the Family Code is not unconstitutional as denying due process; we overrule appellant's point of error and affirm the judgment of the trial court.

Affirmed.

KEITH, Justice (concurring).

I join in the majority opinion which upholds the constitutionality of Family Code, § 54.04(b), V.T.C.A., against the attack made--that the minor was denied his constitutionally protected right of confrontation by witnesses and his concomitant right of cross-examination of such witnesses.

The narrow question of constitutional law presented is new in the sense that it arises under a new statute; it is not new in the context of being a new question of constitutional right. The Family Code so recently adopted has brought to this field of the law the well-known bifurcated trial. In the adjudicatory hearing (§ 54.03), the full panoply of constitutional rights of due process of law are all afforded the minor. ¹ However, in the disposition hearing (§ 54.04), a different rule applies.

A logical starting point in our study of the constitutional question presented is the federal criminal system. Presentence reports have long been used there, as well as in many state courts, in determining the punishment to be assessed After the defendant has been found guilty of the offense charged. Indeed, the practice is embodied in Federal Rules of Criminal Procedure, Rule 32(c)(2). ²

R. Lehrich, in 'Presentence Reports,' 47 F .R.D. 225, 228 (1969), has this comment upon such reports:

'Although the presentence report contains much information about the defendant that is vital to the determination of his sentence, his prison treatment, and his parole, it has been held many times in the federal courts that neither the defendant nor his counsel has any right to examine the report for possible errors that might be rebutted.'

Note that the accused may not, as a matter of right, even look at the report, much less cross-examine the authors of the statements therein contained.

Justice Black, not known for his disregard of the constitutional rights of persons accused of crime, was the author of the leading case upon the subject: Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). ³ Justice Black noted that 'most of the information now relied upon by judges (which is found in the reports of the probation workers) to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination.' (337 U.S. at 250,...