LM v. State

618 S.W.2d 808, 1981 Tex. App. LEXIS 3669
CourtCourt of Appeals of Texas
DecidedMay 7, 1981
Docket17940
StatusPublished

This text of 618 S.W.2d 808 (LM v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LM v. State, 618 S.W.2d 808, 1981 Tex. App. LEXIS 3669 (Tex. Ct. App. 1981).

Opinion

618 S.W.2d 808 (1981)

L. M., Appellant,
v.
The STATE of Texas, Appellee.

No. 17940.

Court of Civil Appeals of Texas, Houston (1st Dist.).

May 7, 1981.
Rehearing Denied June 18, 1981.

*809 Logene L. Foster, Sugar Land, for appellant.

Fred M. Felcman, Bernard Hobson, Richmond, for appellee.

Before COLEMAN, C. J., and PEDEN and SMITH, JJ.

PEDEN, Justice.

L. M. is charged with the murder of 68-year-old Estanislado Zaragosa, at a time when L. M. was fifteen years and five months of age. She appeals from a judgment in which the juvenile court, sitting without a jury, waived its exclusive original jurisdiction and transferred her case to district court. The appellant contends that the juvenile court did not comply with the mandatory provisions of Section 54.02(d), Texas Family Code, in that the diagnostic study it ordered was so incomplete as to be invalid and that the evidence adduced at the certification hearing was legally or factually insufficient under Section 54.02 to support the order of waiver and transfer. We affirm.

The appellant was charged with a violation of Section 19.02 of the Texas Penal Code. The State alleged in its petition for waiver of jurisdiction and transfer to criminal court that the appellant and others entered Zaragosa's home without his consent, committed theft, and caused his death by hitting him on the head with a pipe.

Section 54.02 of the Family Code provides that the juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court for criminal proceedings if the child is alleged to have committed a felony and was aged fifteen or older at the time of the alleged offense, and if "after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings." (emphasis added) Subsection d states that "[p]rior to the hearing, the juvenile court 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."

In its order waiving juvenile jurisdiction the trial court in our case recited:

a) [T]he Court ... ordered and obtained a diagnostic study, social evaluation, a full investigation of the child, her circumstances and the circumstances of the alleged offense;
b) After full investigation and hearing at which hearing the child, her counsel, *810 mother and father were present in open court, the court finds that the said [L. M.] is charged with the violation of a penal law of the grade of felony, if committed by an adult, to wit: Murder, First Degree Felony, that she was 15 years of age at the time of the commission of the alleged offense, ... and that because of the seriousness of the offense, the welfare of the community requires criminal proceedings;
c) In making that determination the court has considered among other matters:
1. whether the alleged offense was against person or property, with the greater weight in favor given to offense against the person;
2. whether the offense was committed in an aggressive and premeditated manner;
3. whether there is enough evidence upon which the Grand Jury may be expected to return an indictment;
4. the sophistication and maturity of the child;
5. the record and previous history of the child; and
6. the prospects of adequate protection of the public and the likelihood of reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

In addition the trial judge specifically found that based on the social evaluation and other evidence in the record, the appellant was of sufficient sophistication and maturity to be tried as an adult, to have culpability and to assume responsibility for her conduct, and to assist in the preparation of her defense; that the appellant planted the seed of committing a criminal act upon the victim in the minds of the other participants and set the alleged criminal episode in motion with her premeditation and suggestion; that the alleged murder was a callous and wanton act by the alleged participants against the person of another and that the appellant must accept responsibility for the aggression even though she did not strike the fatal blow to the victim; that the appellant has been referred to the juvenile authorities several times in the year prior to the hearing for offenses of increasing seriousness, e. g., truancy to criminal mischief to alleged murder; and that the likelihood of rehabilitation of the child through procedures, services, and facilities available to the juvenile court is very slim, if not nonexistent.

The first point of error is "that the trial court erred in not ordering a valid diagnostic study, social evaluation, and full investigation of the child as required by Tex.Fam. Code Ann. § 54.02(d)."

It is clear that the trial judge did order "a complete diagnostic study, social evaluation, and full investigation of the subject child ..., her circumstances, and the circumstances of the alleged offense" as required by Section 54.02(d). In her argument under this point, the appellant's position is that the State's failure to introduce in evidence the testimony of psychologist Ronald Smith, Ph.D., deprived the court of such a major part of the diagnostic study it ordered as to render the study invalid.

At the request of the juvenile officer, Dr. Smith first examined the appellant during one of his regularly scheduled weekly visits to the juvenile office. He again examined her after having seen the court's order that a complete diagnostic study be done. He did not advise the appellant that anything she related to him during the examinations would not be privileged, and he did release all such information to the juvenile office. At the certification hearing the appellant's attorney called Dr. Smith to testify in support of her motion to suppress his testimony concerning any of his communications with L. M. during the psychological examinations. L. M.'s attorney argued that such communications were confidential under Tex.Rev.Civ.Stat.Ann. art. 5561h and that no exception to the privilege existed. He invoked the privilege of confidentiality and suggested that Dr. Smith could be sued for violation of the appellant's confidentiality. The State first argued that Article 5561h was inapplicable to a certification hearing where the juvenile's communications to a *811 psychologist were offered to assist in determining sophistication and maturity, not mental health, and that even if the statute did apply, the court's order for a diagnostic study brought the communication between L. M. and Dr. Smith within an exception to the rule. Following an unreported discussion in the judge's chambers, the State's attorney stated, "I'm not going to ask him to testify. If there is any slim chance of any type of jeopardy I won't even ask him to testify." The diagnostic study admitted in evidence did not include the psychologist's report, since no written report was offered in evidence and since Dr. Smith was not required to testify.

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Cite This Page — Counsel Stack

Bluebook (online)
618 S.W.2d 808, 1981 Tex. App. LEXIS 3669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lm-v-state-texapp-1981.