By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Juvenile’s right to confront witnesses
denied at determinate sentence release/transfer hearing (99-4-25)
On November 3, 1999, the San Antonio Court of Appeals held that the juvenile
respondent was denied his right to confront witnesses by the refusal of the
juvenile court to grant a requested continuance in the release/transfer hearing
to enable counsel to subpoena persons who had contributed information to the TYC
written report.
99-4-25. In the Matter of M.R., ___ S.W.2d ___, No. 04-99-00136-CV, 1999 WL
994009, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 11/3/99)[Texas Juvenile
Law 356 (4th Edition 1996)].
Facts: A jury found M.R. delinquent for committing aggravated sexual assault and
assessed a fifteen-year determinate sentence. This court affirmed the
adjudication. See In re M.R., No. 4-96-00283-CV (Tex.App.--San Antonio July 31,
1998, no pet.) (not designated for publication). The trial court subsequently
conducted a release/transfer hearing and ordered M.R. to be transferred on his
eighteenth birthday to the Texas Department of Criminal Justice--Institutional
Division (TDCJ-ID) to serve the remainder of the fifteen-year determinate
sentence. M.R. appeals the transfer order, contending he was denied the right to
confront the witnesses against him at the release/transfer hearing.
On Thursday, February 18, 1999, M.R.'s counsel received a message on his
answering machine directing him to appear in court as counsel for M.R. on
Monday, February 22, 1999. At 9:05 a.m. on February 22, counsel filed a verified
motion for continuance, stating that he was not ready because he had not met M.R.
and that he would be unable to appear that afternoon because he had previously
been ordered to appear in another court on another case at that time. Counsel
also asserted:
Respondent's attorney was not provided with any documentation intended to be
offered at Respondent's hearing prior to February 22, 1999. Consequently,
Respondent has not had the opportunity to determine what witnesses were
consulted in the preparation of any reports. Respondent therefore will need time
to secure the attendance of witnesses through subpoena, as is his right. See
J.M.O., In the Matter of, 980 S.W.2d 811, 813-14 (Tex.App.--San Antonio 1998,
writ denied). Failure to allow Respondent to ascertain and subpoena such
witnesses will deny him the right to secure and confront witnesses as guaranteed
by the due process and due course of law provisions of the Constitutions of the
United States of America and the State of Texas, respectively.
The documentation referenced in the motion for continuance was a copy of a
report prepared by a TYC "court liaison," Leonard Cucolo. The report
contained Cucolo's summaries of a doctor's psychological evaluation of M.R., as
well as summaries of M.R.'s treatment record and behavior while he was in TYC
custody. The report concluded with TYC's recommendation that M.R. be transferred
to the TDCJ-ID to serve the remainder of his sentence. Despite the short notice
of the hearing and the conflicting setting in another court, counsel attempted
to secure witnesses for the release/transfer hearing by requesting Cucolo to ask
the people who provided the information in his report to appear at the hearing.
The parties appeared in court the following day. M.R.'s counsel announced
"not ready" "for the reasons set forth in [the] motion for
continuance, which, for the record, was overruled yesterday." The trial
court overruled the announcement of not ready and proceeded with the hearing.
The State's only witness was Cucolo, who testified to the matters contained in
his report. During Cucolo's direct testimony, M.R.'s counsel objected, arguing
that the testimony violated M.R.'s right to confrontation because Cucolo was
testifying to information he had received from other people. The trial court did
not rule on this objection. None of the persons who provided the information in
Cucolo's report appeared for the hearing. [FN1] When M.R.'s counsel concluded
his cross-examination of Cucolo, he renewed his right-to-confrontation objection
and requested that the court "not regard this man's testimony to the extent
that it's based on other witnesses who are not present here today." The
court responded, "So noted."
On appeal, M.R. argues that his right to confront the witnesses against him was
violated by the procedures followed in the trial court.
Held: Reversed and remanded.
Opinion Text: The State argues that the confrontation issue is not preserved for
review because M.R. failed to obtain a ruling on his objection at the hearing.
The State overlooks M.R.'s argument that he raised the confrontation issue in
his verified motion for continuance and in his announcement of not ready at the
hearing, which was essentially an oral renewal of the motion for continuance.
The court ruled on the confrontation issue by denying the motion for continuance
and announcement of not ready. We therefore conclude that the question of
whether the denial of these motions violated M.R.'s right to confrontation is
preserved for our review. Cf. McBride v. Johnson, 118 F.3d 432, 438-39 (5th
Cir.1997) (holding that a parolee adequately invoked his right to confront a
witness, even though he did not object to hearsay testimony at a parole
revocation hearing, because the parolee clearly expressed his desire to have the
witness present at the hearing).
The purpose of the release/transfer hearing was for the trial court to decide
whether to recommit M.R. to the TYC for an indeterminate time not to exceed
three years, transfer him to the TDCJ-ID to serve the remainder of the fifteen-
year determinate sentence, or discharge him. See Act of June 15, 1991, 72nd
Leg., R.S., ch. 574, § 3, 1991 Tex. Gen. Laws 2053, 2053-54, amended by Act of
May 31, 1995, 74th Leg., R.S., ch. 262 § 46, 1995 Tex. Gen. Laws 2517, 2542
(current version at Tex. Fam.Code Ann. § 54.11(i) (Vernon 1996)). In making
this decision, the trial court may consider "written reports from probation
officers, professional court employees, or professional consultants, in addition
to the testimony of witnesses." Tex. Fam.Code Ann. § 54.11(d) (Vernon
1996). At least one day before the hearing, the court must provide the
juvenile's counsel with access to all written matter to be considered by the
court. See id. The juvenile 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 at the hearing. See id. § 54.11(e).
We have held that because a release/transfer hearing is not part of the
guilt/innocence determination, due process requirements are not as stringent as
those in an actual trial. See In re J.M.O., 980 S.W.2d 811, 813 (Tex.App.-- San
Antonio 1998, pet. denied). We have recognized, however, that a juvenile has a
limited right of confrontation at a release/transfer hearing. See id. at 813-14.
In J.M.O., we rejected the argument that the juvenile's right of confrontation
was violated when the court allowed a TYC official to testify to hearsay
contained in a written summary of the juvenile's behavior at TYC. Noting that
the juvenile received a copy of the summary report before the hearing, we stated
that "[s]hould there be a question regarding the genuineness of the
[underlying] reports, the juvenile's attorney may call the authors of the
reports for the purpose of cross-examination." J.M.O., 980 S.W.2d at 813.
We concluded, "This process adequately provides for the confrontation
rights of the juvenile." Id.
M.R.'s counsel attempted to protect his client's rights in accordance with our
holding in J.M.O. Provided with a copy of the report only one day before the
hearing, counsel filed a verified motion for a continuance, invoking his
client's right to confrontation, citing J.M.O., and stating his obvious need for
more time to identify the persons supplying the information in the report and to
secure their presence at the hearing. [FN3] The denial of this motion and the
announcement of not ready prevented M.R. from exercising his right of
confrontation. As counsel cogently argues in his appellate brief:
[M.R.] was quite literally denied the chance to confront his accusers. It would
have made no difference if [M.R.] had been tried in absentia and the judge had
simply read [Cucolo's report] to himself. This situation contravenes the spirit
of due process.
We do not hold that live testimony from the persons supplying information in a
TYC summary report is always required at a release/transfer hearing. Cf. Gagnon
v. Scarpelli, 411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)
(noting that in some parole revocation proceedings, there is no adequate
alternative to live testimony, but in other cases, conventional substitutes for
live testimony, such as affidavits and depositions, may be appropriate). In this
case, however, the State relied solely on Cucolo's testimony, which was based on
the opinions and reports of others, and M.R. timely asserted his right of
confrontation. The denial of the continuance deprived M.R. of any chance of
securing witnesses or arranging any other means to enforce his right of
confrontation. Considering these circumstances, the trial court's order
transferring M.R. to TDCJ-ID must be reversed. See Petrick v. State, 832 S.W.2d
767, 770-71 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd); cf. Williams, 171
F.3d at 307 n. 8 (holding that parolee has a right to elicit testimony from his
parole officer at a parole revocation hearing if he makes a pre-hearing request
for the witness's presence, the evidence sought bears directly on the alleged
parole violation or mitigation, and the State's interests do not rise to the
level of good cause to deny the request). The judgment is reversed and the cause
is remanded for further proceedings consistent with this opinion.
FN1. Cucolo testified during cross-examination that he was unable to contact the
psychologist because she recently had a death in her family, he did not try to
contact another person because she was no longer with TYC, and he asked another
person to appear but she declined because of a conflicting engagement.
FN3. Securing the witnesses may not be easy. The typical sources of information
for a TYC release/transfer report will be the employees and consultants of the
school that has custody of the juvenile. Neither the school nor its employees
will necessarily be in the county where the hearing is held. Out-of-county
employees would likely be beyond the range of the trial court's subpoena powers
in an ordinary civil case. See Tex.R. Civ. P. 176.3(a) (providing that a person
may not be required by subpoena to appear in a county that is more than 150
miles from where the person resides or is served). Under the Code of Criminal
Procedure, a defendant charged with a felony or a misdemeanor punishable by
confinement is entitled to subpoena out-of-county witnesses. See Tex.Code Crim.
Proc. Ann. art. 24.16 (Vernon 1989). Although this statute has not expressly
been made applicable to determinate sentencing cases, the right of confrontation
should not hinge on the existence of subpoenas when the witnesses are employed
by the State and a pre-hearing request is made for their attendance. See
Williams v. Johnson, 171 F.3d 300, 306 n. 6 (5th Cir.1999). In this regard, this
case reveals yet another imbalance in the "troubled marriage of civil and
criminal law" created by the Juvenile Justice Code. In re T.K.E., No.
4-98-00651-CV, slip op. at 1 (Tex.App.-- San Antonio, Sept. 8, 1999, no pet. h.)
(Rickhoff, J., concurring).
[Editor’s Comment: Contrary to the statement in footnote 3, this case does not
illustrate a troubled marriage between the juvenile and criminal systems. That
is because Family Code Section 53.07(e) has provided since 1973: "Witnesses
may be subpoenaed in accordance with the Texas Code of Criminal Procedcure,
1965." Troubled marriage, indeed!]