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 has privilege against
self-incrimination in interview for dispositional social history report
(00-3-02)
On June 8, 2000, the El Paso Court of Appeals decided an important case in
which it said that a juvenile has a privilege against self-incrimination in a
post-adjudication interview by a probation officer for a social history report
to be used in disposition proceedings. Because the officer did not warn the
juvenile of his constitutional rights, the statements he made to the probation
officer should not have been included in the social history report.
00-3-02. In the Matter of J.S.S., ___ S.W.3d ____, No. 08-99-00121-CV, 2000 WL
739421, 2000 Tex.App.Lexis ___ (Tex.App.—El Paso 6/8/00) [Texas Juvenile Law
176 (4th Edition 1996)].
Facts: J.S.S., a juvenile, appeals from an order committing him to the Texas
Youth Commission following an adjudication of delinquent conduct. J.S.S. waived
his right to a jury trial, and the trial court found, based upon J.S.S.'s plea
of true to the allegations in the petition and his voluntary stipulation of
evidence and written admission, that J.S.S. engaged in delinquent conduct by
possessing more than 50 but less than 2,000 pounds of marihuana. Following a
disposition hearing, the trial court entered a commitment order to the Texas
Youth Commission. On appeal, J.S.S. contends that the trial court erred in
considering the pre-disposition report at the disposition hearing because it was
taken in violation of J.S.S.'s Fifth Amendment right to remain silent. Finding
that a juvenile's Fifth Amendment rights extend through the conclusion of the
disposition hearing and that the use of the incriminating information gathered
during the interview violated J.S.S.'s privilege against self- incrimination, we
reverse and remand for a new disposition hearing.
U.S. Customs agents arrested sixteen-year-old J.S.S., a Mexican citizen and
resident of Cd. Juarez, Chihuahua, Mexico, when they found 72 pounds of
marihuana in a hidden compartment of a vehicle he attempted to drive into the
United States through the Ysleta Port of Entry. The State filed a petition
alleging that J.S.S. engaged in delinquent conduct by possessing more than 50
but less than 2,000 pounds of marihuana. With the consent of J.S.S., a juvenile
court referee held the adjudication hearing in this case. After explaining to
J.S.S. all of his applicable rights and ensuring that he understood them, the
referee approved J.S.S.'s written waiver of those rights and accepted his
judicial admission. That form, entitled "Waiver, Stipulation and
Admission" provides:
I, J.S.S., the juvenile in the above entitled and numbered cause, do hereby in
open Court admit to the allegations of the petition filed in said cause (or to a
lesser included offense), and upon having entered my Admission, hereby waive my
right to a trial by jury, waive the appearance, confrontation and cross
examination of witnesses and further consent to the introduction of this
Stipulation and Admission, and any other documentary evidence in support of the
judgment of the Court. I agree that the evidence may be stipulated and that the
attorney representing the State may make a statement to testimony upon which the
petition was filed and the testimony which would have been produced against me
in the trial of my case should I have demanded a trial, jury or non-jury. I
fully understand that if I admit to the offense or offenses, that I can be
placed on probation until the age of Eighteen (18), or that I may be committed
to the care, custody and control of the Texas Youth Commission, a state
correction facility until the age of 21. I also understand that there has been
no recommendation as to the disposition made either to me or my attorney by any
attorney of the County Attorney's Office. I hereby request the approval and
consent of the Court to the foregoing waiver and consent.
I do now hereby, in open Court, ADMIT all of the allegation(s) (Count(s) I ) of
the petition in this cause and I confess that I committed the offense(s) charged
in the petition (or lesser included offense of ,[) ] waiving the rights to which
I am entitled to under Section 51.09, Texas Family Code, and which rights have
been explained fully by the Court and I understand those rights, particularly
the right to require sufficient evidence to support the judgement [sic] of the
Court, in view of my judicial confession herein made.
Based upon the waiver and stipulation, the court entered an adjudication order
and set the case for a disposition hearing. At some point following the
adjudication hearing, a juvenile probation officer, Amalia Caro-Sanchez,
interviewed J.S.S. while he was in custody. Ms. Caro-Sanchez questioned J.S.S.
not only about his personal circumstances and family environment but also about
the facts of the instant case and his past history. During the disposition
hearing, she testified over objection that J.S.S. told her he had committed the
same offense on two prior occasions and his brother-in-law who hired him to
transport the drugs had paid him $700 for each trip. J.S.S. voluntarily
testified during the disposition hearing. Over objection, the juvenile court
questioned J.S.S. at length about the facts of this offense and the extraneous
offenses. At the conclusion of the disposition hearing, the juvenile court judge
specifically stated that in deciding to send J.S.S. to T.Y.C. rather than
placing him in the Mexican National Children's Program, he took into account
that J.S.S. had committed the same offense on two prior occasions.
Held: Reversed and remanded.
Opinion Text: In Issue One, J.S.S. asserts that the trial court erred in
considering incriminating statements made by him during the pre-disposition
interview because the juvenile probation officer did not warn him of his Fifth
Amendment right to remain silent. J.S.S. relies on both Mitchell v. United
States, 526 U.S. 314, ----, 119 S.Ct. 1307, 1314, 143 L.Ed.2d 424 (1999) and
Estelle v. Smith, 451 U.S. 454, 466, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359 (1981)
in support of his argument. The State responds that a juvenile's Fifth Amendment
rights are extinguished at the conclusion of the adjudication hearing. It also
argues that the privilege against self-incrimination should not be extended to
the disposition hearing due to the difference in the goals of the adult criminal
and juvenile systems. In addressing the issues before us, we will first consider
whether the Fifth Amendment should be extended to the disposition hearing as a
general matter, and then will address the more specific question whether the
Fifth Amendment bars the use of any incriminating evidence gathered during the
pre-disposition interview.
Although the State does not raise this issue, we have considered whether J.S.S.
waived his complaint by testifying during the disposition hearing. When the
juvenile court questioned J.S.S. about the subject matter of his incriminating
statements, defense counsel continued to object. Further, it appears from the
record that J.S.S. took the stand, at least in part, to respond to the
pre-disposition report and the probation officer's recommendation. Under these
circumstances, we do not find waiver. See Leday v. State, 983 S.W.2d 713, 718-19
(Tex.Crim.App.1998)(general rule of waiver or harmless error does not apply if
defendant's testimony, which constituted other evidence of a fact that was
proved over the defendant's objection, was impelled by the state's introduction
of evidence that was obtained in violation of the law); see also Thomas v.
State, 572 S.W.2d 507, 512 (Tex.Crim.App.1976)(the harmful effect of improperly
admitted evidence is not cured by the fact that the defendant sought to meet,
destroy, or explain it by introducing rebutting evidence).
The Fifth Amendment to the United States Constitution prevents a person from
being "compelled in any criminal case to be a witness against
himself." U.S. CONST., Amdt. 5; Mitchell, 526 U.S. at 327, 119 S.Ct. at
1314. In Mitchell, the Supreme Court held that the sentencing proceeding in a
federal criminal prosecution is considered to be part of the "criminal
case" so that the Fifth Amendment's guarantee of the right to remain silent
applies equally to that phase of a criminal case. See Mitchell, 526 U.S. at 327,
119 S.Ct. at 1314. The Supreme Court generally rejected the idea that entry of a
guilty plea completes the incrimination of the defendant, thereby extinguishing
the privilege. Mitchell, 526 U.S. at 327, 119 S.Ct. at 1313-14. So long as
sentence has not yet been imposed, the defendant may have a legitimate fear of
adverse consequences from further testimony. Id., 526 U.S. at 327, 119 S.Ct. at
1314. Any effort by the government to compel the defendant to testify against
his will at the sentencing hearing would contravene the Fifth Amendment. Id.;
Estelle, 451 U.S. at 462, 101 S.Ct. at 1872. Although the Supreme Court only
recently clarified this issue in Mitchell, it has long been the law in Texas
that an adult defendant has a separate and distinct Fifth Amendment privilege
against self-incrimination at the punishment phase of his bifurcated trial, and
therefore, the mere finding of guilt does not terminate the privilege against
self-incrimination. See Wilkens v. State, 847 S.W.2d 547, 553
(Tex.Crim.App.1992)(stating this rule); Brumfield v. State, 445 S.W.2d 732,
737-41 (Tex.Crim.App.1969)(adopting this rule following 1965 enactment of
Article 37.07, which adopted bifurcated trial system applicable to trials of all
felonies and misdemeanors
punishable by imprisonment). Thus, the Fifth Amendment applies with equal force
to the sentencing phase of a case even if the defendant waived his right to
remain silent and testified during guilt- innocence. See Beathard v. State, 767
S.W.2d 423, 431-32 (Tex.Crim.App.1989)(trial court erred in refusing to give the
jury a "no adverse inference" instruction during punishment phase;
even though defendant testified during guilt-innocence, he retained right to
remain silent during punishment phase); Brumfield, 445 S.W.2d at 741
(defendant's constitutional right against self-incrimination violated where
State called defendant to testify at punishment phase regarding prior
convictions; defendant's waiver of right at guilt-innocence by giving testimony
on merits did not constitute waiver of right at punishment phase). A different
rule, however, applies when the adult defendant enters a guilty plea in a
non-capital felony case because the trial becomes a unitary proceeding, and
thus, a separate punishment phase does not exist. In such a case, a written
waiver of the Fifth Amendment right against self-incrimination made in
conjunction with the guilty plea applies to the entire criminal adjudication
proceeding, including the assessment of punishment. Carroll v. State, 975 S.W.2d
630,
632 (Tex.Crim.App.1998). [FN1]
FN1. J.S.S. asserts that Carroll will not withstand scrutiny after Mitchell.
That issue is not directly before us since Carroll is applicable only in adult
criminal cases as there is no parallel rule in juvenile cases that a plea of
true results in a unitary proceeding. Accordingly, we will not address the
continued viability of Carroll.
By asserting that the Fifth Amendment does not apply to the disposition hearing
in a juvenile proceeding because the goals of the adult criminal and juvenile
systems are quite different, the State makes an argument that has been put
forward as justification for denial of constitutional and procedural rights to
juveniles since the inception of the juvenile system in the United States. More
recently, however, a comparison of the aspirations of the juvenile system with
its "grim realities" has caused this argument to be subjected to
intense scrutiny, and on many occasions, has resulted in various constitutional
and procedural rights being extended to juveniles. See Hidalgo v. State, 983
S.W.2d 746, 751-52 (Tex.Crim.App.1999); Lanes v. State, 767 S.W.2d 789, 800
(Tex.Crim.App.1989). At one time, procedural safeguards provided by the
Constitution and Bill of Rights were inapplicable to juvenile proceedings due to
the juvenile system's underlying philosophy that juveniles are in need of the
state's care and guidance. Hidalgo, 983 S.W.2d at 750; Lanes, 767 S.W.2d at
792-94. Juvenile courts were created for treatment and rehabilitation of
juvenile offenders and this focus on the best interest of the child through
treatment set juvenile courts apart from regular criminal courts which directed
their efforts at punishing the offender. Hidalgo, 983 S.W.2d at 750; Lanes, 767
S.W.2d at 792-93. In the process, juveniles were denied many fundamental
constitutional and procedural rights. Hidalgo, 983 S.W.2d at 750. The United
States Supreme Court first recognized the procedural injustice of the juvenile
system in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84
(1966). The following year it decided In re Gault, 387 U.S. 1, 49, 87 S.Ct.
1428, 1455, 18 L.Ed.2d 527 (1967) and held that the Fourteenth Amendment's Due
Process Clause applied to juvenile delinquency proceedings entitling juveniles
to notice of charges, defense counsel, the privilege against self-incrimination,
and confrontation of and cross- examination of witnesses. Hidalgo, 983 S.W.2d at
750-51. [FN2] However, juveniles have not been granted the full array of
protections afforded adults under the Constitution and Bill of Rights. Id. at
751. Instead, the Supreme Court has taken a case-by-case approach to examine the
protection claimed and the effect it would have on the unique framework of the
juvenile justice system. Id. Following the Supreme Court's lead, the Court of
Criminal Appeals articulated a balancing test in Lanes v. State for delineating
which constitutional protections apply to juveniles in juvenile court
proceedings. Hidalgo, 983 S.W.2d at 751. Under this test, the reviewing court
compares the purposes and goals of the juvenile system to the particular right
asserted. Id. Stated differently, the court must examine the impact or degree of
impairment the constitutional protection will have on our juvenile justice
system. Id. at 752. In adopting the Lanes test, the Court of Criminal Appeals
noted that the juvenile system had become more punitive than rehabilitative.
Lanes, 767 S.W.2d at 800. As recognized in Hidalgo, recent amendments to the
Juvenile Justice Code have resulted in a more punishment-oriented system, and
consequently, continue to erode the original justifications for denying
juveniles the same procedural protections as adults. Hidalgo, 983 S.W.2d at 751.
Indeed, two of the express purposes of the current Juvenile Justice Code are to
provide for the protection of the public and public safety and to promote the
concept of punishment for criminal acts. Tex.Fam.Code Ann. § 51.01(1), (2)(A)(Vernon
1996).
FN2. Gault expressly restricted its holding to adjudication proceedings and
reserved opinion on whether the same rights should be extended to the
disposition hearing. Gault, 387 U.S. at 12 and 31 n. 48, 87 S.Ct. at 1436 and
1445 n. 48.
In conducting the Lanes balancing test, we will first examine the State's
assertion that the Legislature has purposefully chosen not to extend the Fifth
Amendment to the disposition hearing so that the juvenile court has available to
it all information necessary to determine whether the child is in need of
rehabilitation, and if so, what disposition is in the child's best interest. We
have found no cases interpreting Section 54.04 in the manner suggested by the
State. Section 54.04 does not expressly provide that a juvenile is not afforded
the Fifth Amendment privilege against self- incrimination during the disposition
hearing. It is only when we compare Sections 54.03 and 54.04 that a difference
becomes apparent. Section 54.03, which governs the adjudication hearing,
requires that the juvenile court provide the child with various admonishments,
including a warning that he has a constitutional privilege against
self-incrimination. See Tex.Fam.Code Ann. § 54.03(b)(Vernon Supp.2000). The
same statute expressly provides that the child need not be a witness against nor
otherwise incriminate himself, and it prohibits the admission of an
extrajudicial statement by the child obtained in contravention of the Juvenile
Justice Code or the state and federal constitutions. See Tex.Fam.Code Ann. §
54.03(e). By contrast, Section 54.04 does not require that the juvenile court
admonish the child of his rights, including the privilege against
self-incrimination, it does not provide for the juvenile's privilege against
self-incrimination, and it does not expressly prohibit the admission of the
juvenile's out-of-court statements taken in violation of the Fifth Amendment or
other relevant constitutional and statutory provisions. That the Legislature
expressly provided for the privilege against self-incrimination in connection
with the adjudication hearing, but did not include a similar provision in
Section 54.04, could be interpreted as indicating a legislative determination
that the Fifth Amendment privilege does not apply during the disposition
hearing. See Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex.1980)(when the
Legislature has carefully employed a term in one section of a statute, and has
excluded it in another, it should not be implied where excluded). On the other
hand, Section 54.04, unlike Section 54.03, does not expressly provide for a
juvenile's right of confrontation and cross- examination, yet none would argue
that a child does not fully retain this right at the disposition hearing. See In
the Matter of J.T.H., 779 S.W.2d 954, 957 (Tex.App.--Austin 1989, no
writ)(rejecting claim that Section 54.04 denied due process rights--due process
is satisfied because the juvenile is represented by counsel, has full
opportunity to cross-examine and present witnesses, and is fully aware of the
nature of the proceedings). In construing a statute, it is presumed that
compliance with the constitutions of this state and the United States is
intended, the entire statute is intended to be effective, and that a just and
reasonable result was intended. Tex.Gov't Code Ann. § 311.021 (Vernon 1998);
Collins v. County of El Paso, 954 S.W.2d 137, 147 (Tex.App.--El Paso 1997, pet.
denied). The Juvenile Justice Code specifically instructs us to construe its
provisions in such a manner as will effectuate the purpose of providing a simple
judicial procedure through which the provisions of Title 3 (the Juvenile Justice
Code) are executed and enforced and in which the parties are assured a fair
hearing and their constitutional and other legal rights are recognized and
enforced. Tex.Fam.Code Ann. § 51.01(6). Further, an appellate court does not
construe a statute in a manner that will lead to a foolish or absurd result if
another alternative is available. Bank One, Texas, N.A. v. Stewart, 967 S.W.2d
419, 438 (Tex.App.-- Houston [14th Dist.] 1998, pet. denied); Estate of Padilla
v. Charter Oaks Fire Ins. Co., 843 S.W.2d 196, 199 (Tex.App.--Dallas 1992, writ
denied). Given the importance of the Fifth Amendment privilege to an
individual's liberty, we decline to construe Section 54.04 as providing that a
juvenile does not have a right against self-incrimination at the disposition
hearing. Having said that, we still must determine whether the right should be
extended to a juvenile.
Application of the Fifth Amendment to the disposition hearing would, according
to the State, have a detrimental impact on the juvenile system in two ways.
First, it would result in a system identical to the criminal system with its
orientation towards punishment rather than rehabilitation. We are unable to
perceive how providing a juvenile with protection against self-incrimination
during the disposition hearing would cause the juvenile courts to focus more on
punishment and less on rehabilitation of the juvenile. It would be improper for
a court to draw an adverse inference from the juvenile's silence, see Mitchell,
526 U.S. at 329, 119 S.Ct. at 1315, and we trust that the juvenile courts will
continue to properly exercise their judicial discretion in deciding an
appropriate disposition. Further, as discussed above, our juvenile system has
become increasingly punishment-oriented in recent years with amendments to the
Juvenile Justice Code, and it is for that reason that a juvenile's Fifth
Amendment privilege has assumed increased significance. See Tex.Fam.Code Ann. §
51.01 (Juvenile Justice Code must be construed to effectuate numerous purposes,
including rehabilitation of the juvenile, protection of the public and public
safety, promoting the concept of punishment for criminal acts, and protecting
the welfare of the community and controlling the commission of unlawful acts by
children).
Second, the State contends that availability of the Fifth Amendment privilege
against self-incrimination during the disposition hearing will unduly restrict
the information available to the juvenile court and detrimentally impact the
juvenile court's ability to provide for the rehabilitation of the child.
Regarding the evidence which may be considered during the disposition hearing,
Section 54.04(b) permits the juvenile court to consider written reports from
probation officers, professional court employees, or professional consultants in
addition to the testimony of witnesses. Tex.Fam.Code Ann. § 54.04(b). For many
years, courts have construed Section 54.04(b) as broadening the pool of
information available for the trial court's consideration at the disposition
hearing, and consequently, have held that the rules of evidence do not apply to
the written reports made admissible pursuant to this section. See In the Matter
of A.F., 895 S.W.2d 481, 485-86 (Tex.App.--Austin 1995, no writ)(rejecting claim
that social history report should have been excluded under various provisions of
the Rules of Civil Evidence); In the Matter of A.N.M., 542 S.W.2d 916, 921 (Tex.Civ.App.--
Dallas 1976, no writ)(rejecting argument that trial court had no authority to
consider record of the adjudication hearing at the disposition hearing); see
also In the Matter of J.R.C., 551 S.W.2d 748, 752 (Tex.Civ.App.--Texarkana 1977,
writ ref'd n.r.e.)(rejecting hearsay challenge to use of social history report
in a transfer to criminal court proceeding); Tyler v. State, 512 S.W.2d 46, 50 (Tex.Civ.App.--Beaumont
1974, no writ)(denying due process challenge to use of a social history report).
We have no quarrel with this interpretation of Section 54.04(b) and fully agree
that the juvenile court should have available to it as much information as
possible to inform its determination of what disposition is appropriate in a
given case. That does not mean, however, that the prosecuting authorities and
juvenile courts should be free to acquire the information at the expense of the
juvenile's Fifth Amendment rights. As the Supreme Court noted in Estelle v.
Smith and later echoed in Mitchell, "[t]he essence of this basic
constitutional principle is 'the requirement that the State which proposes to
convict and punish an individual produce the evidence against him by the
independent labor of its officers, not by the simple, cruel expedient of forcing
it from his own lips.' " Mitchell, 526 U.S. at 326, 119 S.Ct. at 1314,
quoting Estelle v. Smith, 451 U.S. at 462, 101 S.Ct. at 1872. While the child
may be an important source of information, there are many other sources
available who can provide the same information to the investigating officer who
is preparing the pre- disposition evaluation report and social history. Family
members can provide detailed information about the juvenile's parents and
siblings, family and social environment, educational data, religious activities,
employment history, and other relevant background information. A variety of
records, including school records and psychological or psychiatric evaluations,
can be consulted for other pertinent information.
Law enforcement reports may be included in the pre-disposition report to provide
information on the facts of the offense. Of course, the juvenile probation
department has at its disposal its own records pertaining to the juvenile which
may include prior informal adjustments and deferred adjudications. Regardless of
whether the juvenile asserts his Fifth Amendment rights, a juvenile probation
officer or other person preparing the report is permitted to include details
about the child's attitude during personal contacts. Therefore, we reject the
State's argument that extending the Fifth Amendment privilege to the disposition
hearing will substantially impact the quantity and quality of information
available to the juvenile court. Given that the disposition hearing is no longer
focused strictly upon rehabilitation of the juvenile but has become increasingly
punishment-oriented and given our conclusion that extension of the right does
not unduly impair the goals and purposes of the juvenile system, we hold that a
juvenile must be afforded his Fifth Amendment privilege against
self-incrimination from the conclusion of the adjudication hearing through the
conclusion of the disposition hearing.
We now turn our attention to whether the Fifth Amendment applies to the
pre-disposition report. J.S.S. asks us to extend Estelle v. Smith to the portion
of the pre-disposition report containing his admissions regarding the two
extraneous offenses and admitted in evidence against him at his disposition
hearing because he was not advised of his right to remain silent and that any
statement he made could be used against him during the disposition hearing. In
Estelle v. Smith, a Texas capital case, the trial court ordered that Smith
undergo a psychiatric examination to determine whether he was competent to stand
trial. Following a ninety minute examination of the defendant in the Dallas
County Jail, Dr. James P. Grigson concluded that Smith was competent to stand
trial and filed a report with the court stating his findings, including his
determination that Smith was a severe sociopath. Smith was never warned of his
Fifth and Sixth Amendment rights prior to the examination nor was he warned that
any statements made during the examination could be used against him during the
punishment phase of trial. Dr. Grigson testified as the State's sole witness at
the sentencing hearing, basing his testimony on information derived from his
mental status examination of Smith. In testimony pertaining to the future
dangerousness issue, Dr. Grigson told the jury that Smith was a severe sociopath
who would continue to commit similar criminal acts if given the opportunity to
do so, his sociopathic condition would only worsen, no treatment existed to
modify or change his behavior, and he had no remorse or sorrow for what he had
done. The Supreme Court concluded that admission of Dr. Grigson's testimony at
the punishment phase violated Smith's Fifth Amendment privilege against
self-incrimination. [FN3] See Estelle, 451 U.S. at 473, 101 S.Ct. at 1878.
Although a competency exam is ordinarily a neutral proceeding which does not
implicate a defendant's Fifth and Sixth Amendment rights when strictly used to
determine competency, Dr. Grigson's examination of Smith amounted to a custodial
interrogation entitling him to Fifth Amendment protections when information
gleaned from the examination was used against him at the punishment phase to
determine the future dangerousness issue. See Estelle, 451 U.S. at 468-71, 101
S.Ct. at 1875-77; Hidalgo, 983 S.W.2d at 753 (discussing Estelle v. Smith ).
FN3. The Supreme Court also determined that admission of Grigson's testimony
violated Smith's Sixth Amendment right to counsel. Estelle, 451 U.S. at 473, 101
S.Ct. at 1878. J.S.S. has not raised any complaints pertaining to violation of
his Sixth Amendment right to counsel.
Thus, Estelle v. Smith teaches that the availability of the Fifth Amendment
privilege does not turn upon the type of proceeding in which its protection is
invoked, but upon the nature of the statement or admission and the exposure
which it invites. Estelle, 451 U.S. at 468-71, 101 S.Ct. at 1875-77, citing In
re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967). By the
same token, the Supreme Court stated that it did not hold that the same Fifth
Amendment concerns are necessarily presented by all types of interviews and
examinations that might be ordered or relied upon to inform a sentencing
determination. Estelle, 451 U.S. at 469 n. 13, 101 S.Ct. at 1876 n. 13.
There are no reported juvenile cases in which this issue is raised, and there
are only four reported Texas criminal cases discussing whether a defendant must
be warned prior to undergoing questioning by a probation officer for purposes of
preparing a pre-sentence investigation. [FN4] See Garcia v. State, 930 S.W.2d
621 (Tex.App.--Tyler 1996, no pet.); Stewart v. State, 675 S.W.2d 524 (Tex.App.--Houston
[14th Dist.] 1983, pet. ref'd); Edwards v. State, 652 S.W.2d 519 (Tex.App.--Houston
[1st Dist.] 1983, pet. ref'd); Trimmer v. State, 651 S.W.2d 904 (Tex.App.--Houston
[1st Dist.] 1983, pet. ref'd). Each case finds that the Fifth Amendment and
Miranda requirements do not apply to a routine pre-sentence interview so the
failure to warn the defendant prior to the interview is not reversible error and
did not preclude use of the report at sentencing. See Garcia, 930 S.W.2d at 624;
Stewart, 675 S.W.2d at 526; Edwards, 652 S.W.2d at 519-20; Trimmer, 651 S.W.2d
at 905-06. [FN5] All of the cases, except Garcia, involve convictions based upon
pleas of guilty or nolo contendere. Thus, the holdings in Stewart, Edwards, and
Trimmer are valid under Carroll because the defendant's waiver of his or her
Fifth Amendment rights as part of the guilty plea would operate to waive those
same rights for purposes of sentencing. [FN6] However, these cases are
inapplicable here because there is no parallel rule in juvenile cases that a
plea of true to the allegations in the petition results in a unitary proceeding.
To the contrary, the disposition hearing is a separate and distinct proceeding.
See Tex.Fam.Code Ann. § 54.04(a). Even though Garcia involved a bench trial, it
followed Stewart, Edwards, and Trimmer without any discussion of whether a
different rule should apply when the defendant pleads not guilty. The court of
appeals also applied the rule that a trial court is presumed to have disregarded
inadmissible evidence even though the Court of Criminal Appeals dispensed with
that rule in Gipson v. State, 844 S.W.2d 738, 741 (Tex.Crim.App.1992). Garcia,
930 S.W.2d at 624. Accordingly, we respectfully decline to follow Garcia.
FN4. See Tex.Code Crim.Proc.Ann. art. 42.12, § 9 (Vernon Supp.2000)(providing
for presentence investigations).
FN5. Both Trimmer and Edwards rely on Baumann v. United States, 692 F.2d 565
(9th Cir.1982) which refused to extend Estelle v. Smith 's holding to the
pre-sentence interview. One of the reasons offered by the Ninth Circuit for
distinguishing Estelle v. Smith and refusing to apply its rule is that it
involved a bifurcated jury proceeding in a capital case. Baumann, 692 F.2d at
576. We believe that applicability of the Fifth Amendment does not turn upon
whether a particular proceeding involves a jury or whether the defendant is
subject to the death penalty. Therefore, we decline to follow Baumann.
FN6. Other facts support the appellate courts' disposition of these complaints.
In Stewart, the plea papers signed by the defendant included a waiver of the
right against self-incrimination and expressly provided for a pre-sentence
investigation. See Stewart, 675 S.W.2d at 526. In Edwards, the defendant did not
object when the court informed him that he was ordering a pre-sentence
investigation and he failed to object when the court announced at sentencing
that he had received a copy of the report and would consider it. Thus, the
defendant's complaint regarding the trial court's consideration of the report
was waived.
Like the situation in Estelle v. Smith, the juvenile probation officer's
interview of J.S.S. exceeded any arguably neutral purposes when she questioned
him about the facts of the primary offense and the two extraneous offenses and
then testified during the disposition hearing about his incriminating statements
in support of her recommendation to the juvenile court that J.S.S. be committed
to the Texas Youth Commission. See Estelle, 451 U.S. at 467, 101 S.Ct. at 1866.
Under these facts, we conclude that the Fifth Amendment applied to the
pre-disposition interview with J.S.S., and therefore, he should have been warned
of his rights and informed that his statements could be used against him during
the disposition hearing. [FN7] It is undisputed that J.S.S. was not warned prior
to the interview and he did not voluntarily waive his right against
self-incrimination. Because the trial court considered these incriminating
statements in making the decision to commit J.S.S. to T.Y.C. rather than place
him in the Mexican National Children's Program, we find that J.S.S.'s Fifth
Amendment privilege against self-incrimination was violated by the use of this
information against him during the disposition hearing. [FN8] Issue One is
sustained.
FN7. Our opinion should not be read as holding that the Fifth Amendment applies
to all pre-disposition interviews because the facts in a given case may show
that the interview served more neutral purposes, and therefore, did not
implicate the juvenile's Fifth Amendment rights. Rather than focusing on the
type of proceeding involved, we believe the better approach is to examine the
nature of the statement or admission and the exposure which it invites. See
Estelle, 451 U.S. at 468-71, 101 S.Ct. at 1875-77.
FN8. Given our disposition of this issue, we need not address Issue No. Two in
which J.S.S. complains that he did not waive his right in the manner prescribed
by Section 51.09 of the Texas Family Code.
Accordingly, we reverse the disposition order and remand this cause for a new
disposition hearing.