concluding that, “at a minimum,” a criminal defendant should have confrontation rights at sentencing: “(1) in cases in which the State seeks imposition of a sentence on the basis of findings beyond those ‘reflected in the jury verdict or admitted by the defendant’; and (2) whenever the State calls a witness to testify at punishment”
How later courts described this case
- concluding that, “at a minimum,” a criminal defendant should have confrontation rights at sentencing: “(1) in cases in which the State seeks imposition of a sentence on the basis of findings beyond those ‘reflected in the jury verdict or admitted by the defendant’; and (2) whenever the State calls a witness to testify at punishment”
- concluding that a juvenile should be afforded the Sixth Amendment 4 The offense for which M.J.-M. had received the determinate sentence involved his attempt to get into a gang. 4 confrontation right in the disposition phase of a juvenile proceeding
- stating Juvenile Justice Code expressly recognizes that juveniles must be provided “fair hearing” and his “constitutional and other legal rights” must be “recognized and enforced”
- holding “juvenile has a limited right of confrontation under the Due Process Clause of the Fourteenth Amendment rather than under the Sixth Amendment”
Written by the judges who cited it.
The opinion
BILL VANCE, Justice,
dissenting.
I agree with Justice Reyna’s preservation determination and his application of the due process right of confrontation, 1 but I respectfully disagree with the blanket conclusion that a juvenile has no Sixth Amendment right of confrontation during the disposition phase.
In Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Supreme Court resuscitated the Sixth Amendment’s Confrontation Clause. As Justice Reyna recognizes, Texas courts have applied it in the punishment phase. Ante at 105-06; e.g., Russeau v. State, 171 S.W.3d 871, 880-81 (Tex.Crim.App.2005), cert, denied, — U.S.-, 126 S.Ct. 2982 , 165 L.Ed.2d 989 (2006) (applying Crawford to introduction of prison incident and disciplinary reports and concluding that their introduction violated Confrontation Clause). And at least one other state’s highest court has expressly applied Crawford to the punishment phase. See Rodgers v. State, 948 So.2d 655, 663 (Fla.2006).
I would extend those holdings to a juvenile adjudication’s disposition phase. 2 The juvenile system has “become more punitive *116 than rehabilitative.” Hidalgo v. State, 983 S.W.2d 746, 751 (Tex.Crim.App.1999). Juveniles now face consequences similar to adults; for example, they can be subject to a forty-year term of imprisonment. Id. (citing Tex. Fam.Code Ann. § 54.04(d)(3)(A)). As a result, I believe that the balancing test employed to determine the constitutional protection afforded to a juvenile in a disposition hearing should tilt toward providing constitutional protections such as the Sixth Amendment confrontation right articulated in Crawford :
The juvenile is guaranteed the same constitutional rights as an adult in a criminal proceeding because a juvenile-delinquency proceeding seeks to deprive the juvenile of his liberty. In re Win-ship, 397 U.S. 358, 359 , 90 S.Ct. 1068, 1070 , 25 L.Ed.2d 368 (1970). Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. In re Gault, 387 U.S. at 13, 87 S.Ct. at 1436.
State v. C.J.F., 183 S.W.3d 841, 847 (Tex.App.-Houston [1st DistJ 2005, pet. denied) (citations omitted); see In re J.S.S., 20 S.W.3d 837, 841-44 (Tex.App.-El Paso 2000, pet. denied) (applying Fifth Amendment privilege against self-incrimination to juvenile disposition phase); see also In re S.M., 207 S.W.3d 421, 425-26 (Tex.App.Fort Worth 2006, no pet. h.) (Livingston, J., concurring) (noting conflict between Family Code section 54.11(d) and Crawford’s Confrontation Clause protections and “the potential magnitude of the result of a transfer hearing with the lack of protection for a juvenile’s right to cross-examine the witnesses who testify against him via untested written reports”).
Because I believe that a juvenile should be afforded the Sixth Amendment confrontation right in the disposition phase and that the disciplinary referrals containing teachers’ narratives are testimonial statements (and thus indistinguishable from the incident and disciplinary reports in Rus- seau), I would find a Confrontation Clause violation by the trial court’s admission of the disciplinary referrals and then proceed to a Confrontation-Clause error harm analysis. 3 See McClenton v. State, 167 S.W.3d 86, 94-95 (Tex.App.-Waco 2005, no pet.); see also Davis v. State, 203 S.W.3d 845, 849-53 (Tex.Crim.App.2006).
I respectfully dissent.
. Justice Reyna is the designated author under our Internal Administrative Rules. Chief Justice Gray’s opinion is a concurring opinion.
. " '[Djisposition is a euphemism for sentencing [] and is used to honor the non-criminal character of the proceedings.’ ” In re K.T., 107 S.W.3d 65, 67 (Tex.App.-San Antonio 2003, no pet.) (quoting In re C.S., 804 A.2d 307 , 309 n. 2 (D.C.App.2002)).
. Because I believe that a juvenile should be afforded the Sixth Amendment confrontation right in the disposition phase, and because of the quasi-criminal nature of juvenile proceedings, I would not apply the harm analysis for civil appeals. I note that one court has applied a criminal harm analysis in a non-deter-mínate juvenile appeal. See In re K.W.G., 953 S.W.2d 483, 488 (Tex.App.-Texarkana 1997, pet. denied). Meanwhile, the supreme court and others have reserved the question. See In re D.I.B., 988 S.W.2d 753, 756 (Tex.1999); In re L.R., 84 S.W.3d 701, 707 (Tex.App.-Houston [1st Dist.] 2002, no pet.).