# J.S.C., Matter Of

> Court of Appeals of Texas · February 18, 1994 · 875 S.W.2d 325

URL: https://www.frixlaw.com/law-library/cases/5085682

## Case

- **Full name:** In the Matter of J.S.C.
- **Court:** Court of Appeals of Texas
- **Decided:** February 18, 1994
- **Citations:** 875 S.W.2d 325
- **Precedential status:** Published
- **Opinion:** Concurrence by Yanez
- **Judges:** Kennedy, Yanez
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5085682

## How later opinions describe it (automated extraction)

- holding that there was Ano error in . . . the use of records even though [they] . . . may not be admissible as evidence at an adjudication hearing@
- holding that there was “no error in . . . the use of records even though [they] . . . may not be admissible as evidence at an adjudication hearing”
- holding that there was “no error in ... the use of records even though [they] ... may not be admissible as evidence at an adjudication hearing”

## Opinion text

YANEZ, Justice,
concurring.
I concur in the disposition of this case but write to address an issue of concern. The majority disposes of appellant’s first point of error by which he complains of the lack of a personal interview with any of the evaluating specialists. Indeed, the question of whether the investigation and diagnostic study were sufficiently complete absent a personal interview between the accused and the reporting specialist has been resolved adversely to appellant in In re R.E.M., 541 S.W.2d 841 , 844-45 (Tex.Civ.App.—San Antonio 1976, writ ref'd n.r.e.). The Sixth Amendment does not require that the accused have counsel present during a psychiatric interview. Estelle v. Smith, 451 U.S. 454 , 472 n. 15, 101 S.Ct. 1866 , 1877 n. 15, 68 L.Ed.2d 359 (1981); see also Cook v. State, 741 S.W.2d 928, 944 (Tex.Crim.App.1987), vacated on other grounds, 488 U.S. 807 , 109 S.Ct. 39 , 102 L.Ed.2d 19 (1988), cert. denied — U.S.-, 112 S.Ct. 1705 , 118 L.Ed.2d 413 (1992); Powell v. State, 742 S.W.2d 353, 364 (Tex.Crim.App.1987) (Onion, J. dissenting), vacated on other grounds, 487 U.S. 1230 , 108 S.Ct. 2891 , 101 L.Ed.2d 926 (1988), modified, 767 S.W.2d 759, 762 (Tex.Crim.App.1989); Bennett v. *331 State, 766 S.W.2d 227, 231 (Tex.Crim.App.1989), vacated on other grounds, 486 U.S. 249 , 108 S.Ct. 1792 , 100 L.Ed.2d 284 (1988), cert. denied, 492 U.S. 911 , 109 S.Ct. 3229 , 106 L.Ed.2d 578 (1989), citing Stultz v. State, 500 S.W.2d 853 (Tex.Crim.App.1973). Nor does the Texas Family Code expressly extend any such right to a child under the juvenile court’s jurisdiction. The reports required under § 54.02 are considered investigatory in nature rather than adversarial. See In re R.G.S., 575 S.W.2d 113, 117 (Tex.Civ.App.—Eastland 1978, writ ref'd n.r.e.), dismissed, 445 U.S. 956 , 100 S.Ct. 1639 , 64 L.Ed.2d 231 (1980). Still, that the present complaint continues to visit the courts, as it did in R.E.M., illustrates the need for guidance from the legislature.
Dr. Williams admitted that he remembered discussing the possibility of counsel’s attending the interview. He also testified that appellant would not answer his questions because his attorney advised him not to. Appellant’s refusal and counsel’s discussion with Dr. Williams were sufficient to put the doctor on notice that appellant was represented by counsel and that counsel desired to be present at the interview. Thus, the choice facing Dr. Williams was either to notify appellant’s attorney and attempt a personal interview with the attorney present or to do such an evaluation as he did — one based upon distant observation of the child and indirect, attenuated information from third parties.
Dr. W.K. Joe, a psychologist, also attempted to interview appellant and also received appellant’s polite refusal to answer questions unless the attorney were present. Unlike Dr. Williams, Dr. Joe made no recommendation on certification because of his inability to interview appellant personally. Dr. Joe stated that, while not common, it would be possible to conduct an evaluation of the child with a confederate (such as an attorney) in the room. A third party’s presence would affect his evaluation, but he could not speculate on whether the effect would be detrimental or beneficial. Dr. Joe opined that with the attorney present, he probably would have gained a more sufficient basis for his evaluation.
The two experts’ testimony clearly demonstrates the conflict and its need for resolution. As discussed in R.E.M., a doctor may evaluate the child as best he can when the child declines to participate in a personal interview. The lack of a personal interview will not automatically render the evaluation inadequate. Indeed, the judicial process must advance and may not be effectively blocked by the child’s own behavior. However, the child who obeys his attorney’s instructions to remain silent does so at his peril. See R.E.M., 541 S.W.2d at 845 (the child was found to be “capable of cooperating with his attorney since he was following his instructions to the letter”).
Based upon past case law, I do not believe that the trial court abused its discretion in determining that Dr. Williams’s diagnostic study was sufficient. See Turner v. State, 796 S.W.2d 492, 497 (Tex.App.—Dallas 1990, no writ); In re R.L.H., 646 S.W.2d 499, 502 (Tex.App.—Houston [1st Dist.] 1982, no writ). The juvenile court’s satisfaction with Dr. Williams’s report is consistent with R.EM., and I would not disturb that determination on the record presented. Nor do I quarrel with the majority’s decision that the juvenile court properly transferred appellant based upon the consideration factors under section 54.02(f).
The statute mandates that the juvenile court order a complete diagnostic study. Tex.Fam.Code Ann. § 54.02(d). The juvenile will be represented by counsel at that time, and counsel will frequently direct the juvenile not to answer the doctor’s questions. See Tex.Fam.Code Ann. § 51.10 (Vernon 1986). Thus, the present impasse develops, and will continue to repeat itself, automatically. A doctor who will not coordinate with defense counsel is relegated to doing a third-hand evaluation. He or she will ultimately provide the court with a report which may be legally sufficient, but is certainly not very helpful. The goals and policies which our Family Code intended to effect are not furthered by such a practice. The Family Code requires the diagnostic study and full investigation in order to assist the trial judge in making the very significant determination of whether to transfer the child to the district *332 court for criminal proceedings. The judge will base the determination upon the child’s background, among other things, as well as his sophistication and maturity. Information on these factors will frequently be supplied, at least in part, by the psychiatrist’s personal interview. When the situation arises, as it frequently must, in which the juvenile will not answer without his attorney present, allowing counsel to attend the interview would ultimately lead to better results, and the juvenile courts would have the benefit of more substantial studies to guide them in their decisions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5085682. Public record. Not legal advice.