TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00396-CV

In the Matter of M. M.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. J-18,723, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is an appeal from a juvenile court order transferring M.M., a juvenile, from

the Texas Youth Commission (TYC) to the custody of the Institutional Division of the Texas

Department of Criminal Justice (TDCJ). On appeal, M.M. asserts that the trial court erred in

admitting into evidence the State’s psychological evaluation in violation of his Fifth Amendment

rights. We affirm the trial court’s order.

On March 23, 2003, the State filed a petition alleging delinquent conduct by M.M.

M.M. pleaded true to the allegation and was found to have engaged in delinquent conduct, to wit,

murder. Following a disposition hearing, M.M. received a forty-year determinate sentence, with a

three-year minimum, in TYC. On November 18, 2005, by letter to the juvenile court pursuant to

Texas Family Code section 54.11, TYC recommended that M.M. be transferred from TYC to TDCJ

for the remainder of his sentence. See Tex. Fam. Code Ann. § 54.11 (West Supp. 2007).
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At the transfer hearing, the trial court heard testimony from Dr. Ann Kelley, a

psychologist with TYC who served as the Director of Clinical Treatment for the Giddings State

School until she left just prior to the hearing to engage in private practice; Dr. Michael Hilgers,

Jacqueline Daiss, and John Etheridge, associate psychologists with TYC at the Giddings State

School; and Leonard Cucolo, a TYC representative serving as a liaison to the court.

At the transfer hearing, Dr. Hilgers testified to an evaluation of M.M. that he

conducted in July 2005 over several days for the purposes of the transfer hearing. Hilgers testified

that he advised M.M. of the purpose of the evaluation and that it might be used at a transfer hearing.

Because “the Court relied in part on the psychological evaluation to make its determination on

whether to transfer Appellant” to TDCJ, M.M. contends that Dr. Hilgers’s psychological evaluation

evidence was admitted into evidence in violation of his Fifth Amendment rights.

At the conclusion of the hearing, the trial court ordered that M.M. be transferred to

TDCJ for the remainder of his sentence. The trial court identified the factors she considered in her

determination. She stated:

In making this determination, the Court may consider the experiences, and the

character of the person before and after commitment to the Texas Youth

Commission. I can also consider the nature of the offense that you have committed,

and the manner in which it was committed. Even if you had done everything, done

all of those reports, your behavior, your actions show a continued pattern of engaging

in being dangerous, in not changing. . . . For the protection of society and for the

offense you have committed, today I transfer you for the remainder of your sentence

to complete it in the Texas Department of Criminal Justice.

This appeal followed.
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DISCUSSION

M.M. challenges the admission of the State’s July 2005 psychological evaluation

conducted for the purposes of the transfer hearing on the ground that it violated his Fifth Amendment

rights against self-incrimination and Article I, Sections 10 and 19 of the Texas Constitution.

Standard of Review

We review a trial court’s decision to transfer a juvenile from TYC to TDCJ under

an abuse of discretion standard. In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006,

pet. denied). In determining whether the trial court abused its discretion, we must consider the entire

record to determine if the trial court acted without reference to guiding rules and principles. Id.

Transfer Proceedings

Section 54.11 ofthe family code provides that when a juvenile is given a determinate

sentence, upon TYC’s request to transfer the juvenile to TDCJ, the trial court is required to hold a

hearing. Tex. Fam. Code Ann. § 54.11. At that hearing, section 54.11(d) allows the court to

consider TYC reports as evidence:

[T]he court may consider written reports from probation officers, professional

court employees, professional consultants, or employees of the Texas Youth

Commission, in addition to the testimony of witnesses.

Id. § 54.11(d). At the conclusion of the hearing, the trial court may either order the return of the

juvenile to TYC or the transfer of the juvenile to the custody of TDCJ for the completion of his

sentence. Id. § 54.11(i).
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In making a determination regarding transfer of a juvenile offender to TDCJ, a trial

court may consider: (1) the experiences and character of the person before and after commitment

to TYC; (2) the nature of the penal offense and the manner in which it was committed; (3) the

abilities of the person to contribute to society; (4) the protection of the victim or the victim’s family;

(5) the recommendations of TYC and the prosecuting attorney; (6) the best interests of the person;

and (7) any other factor relevant to the issue to be decided. Id. § 54.11(k). Evidence of each factor

is not required, and the trial court need not consider every factor in making its decision. In re J.L.C.,

160 S.W.3d 312, 313-14 (Tex. App.—Dallas 2005, no pet.); In re R.G., 994 S.W.2d 309, 312

(Tex. App.—Houston [1st Dist.] 1999, pet. denied).

Admissibility of Psychological Evaluation

M.M. challenges the admission of the psychological evaluation conducted by

Dr. Hilgers because, he contends, it violates his state and federal constitutional rights by compelling

him to supply incriminating evidence without being advised of his rights. M.M. complains only of

the admission of a single psychological evaluation—the one conducted by Dr. Hilgers in July 2005.

Although other evaluations are included with the exhibits, they do not appear to be the subject of

M.M.’s challenge. The State responds that M.M. has failed to preserve this point of error and that,

in any event, it is without merit.

We first address M.M.’s objections as raised at trial. Prior to Dr. Kelley’s testimony,

the State sought to introduce into evidence State’s Exhibits No. 1 and No. 2A through 2E

which had been provided to the defense prior to the hearing. State’s Exhibit No. 1 was a letter

dated January 9, 2006, from Leonard Cucolo to the trial court enclosing a large volume of
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documents—designated State’s Exhibits 2A through 2E—containing summary reports of M.M.’s

progress, case plans, and psychological evaluations completed during M.M.’s commitment to TYC.

The letter stated that the “casework masterfile and security file” had previously been delivered.

M.M. generally objected to the introduction of the documents. His counsel lodged the following

objection:

With regard to these documents, there are matters within these documents which

constitute hearsay. And also I believe constitute violations of Defendant’s right to

cross examination of the witnesses. We’re going to ask the Court to redact or to

ignore those particular sections which are in violation of such, particular pursuant to

cross.

In response, the State argued that the law is clear that TYC records and reports are admissible in

transfer proceedings. The trial court overruled the objection and the exhibits were admitted. After

Dr. Kelley testified to M.M.’s lack of progress and inability to engage in treatment and effect

changes in his behavior, Dr. Hilgers testified. Although Dr. Hilgers had various contacts with M.M.,

he was specifically called to testify about the psychological evaluation he conducted on M.M. over

several days in July 2005 in connection with the possibility of transferring M.M. to TDCJ. When

Dr. Hilgers testified to his discussion with M.M. about the underlying offense for which M.M. was

in TYC, M.M.’s counsel stated:

Your Honor, with regard to case law involving psychologists and psychiatrists talking

to Defendants who aren’t in custody, I believe this would fit the parameters of being

custodial interrogation. And for that reason we ask the Court to strike any further

mention of this interview by this psychologist.
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The trial court overruled the objection, and Hilgers continued his testimony. M.M. made no further

objection during Hilgers’s testimony. On appeal, M.M. does not challenge the exhibits on hearsay

grounds, nor does he challenge the admission of Hilgers’s testimony as he sought to do in the court

below. Rather, he challenges as error, the admission of the evaluation itself.

In order to preserve error for appellate review, there must be a timely and specific

trial objection. See Tex. R. App. P. 33.1; DeBlanc v. State, 799 S.W.2d 701, 718 (Tex. Crim. App.

1990). Moreover, the complaint on appeal must comport with the trial objection, or nothing is

presented for review. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

M.M. has failed to preserve error for appellate review. Because the initial hearsay

objection to the several hundred pages of documents is too general and insufficient to inform the trial

court of the basis of the objection, it fails to preserve any error for review. And because the

objection based on custodial interrogation seeks only to strike any further mention of the interview,

it does not suffice to preserve the challenge to the admissibility of the evaluation itself. Because

M.M.’s objection on appeal does not comport with his objections below, M.M. has failed to preserve

anything for our review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

As the court of criminal appeals explained in Valle v. State, 109 S.W.3d 500, 509

(Tex. Crim. App. 2003),

To preserve error in admitting evidence, a party must make a proper objection and

get a ruling on that objection. In addition, a party must object each time the

inadmissible evidence is offered or obtain a running objection. An error in the

admission of evidence is cured where the same evidence comes in elsewhere without

objection.
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See also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule . . . is

that overruling an objection to evidence will not result in reversal when other such evidence was

received without objection, either before or after the complained-of ruling.”). The complained-of

psychological evaluation was admitted at the beginning of the trial prior to the testimony of

Dr. Kelley. Except for an objection to the “mention of this interview by this psychologist,” M.M.

did not otherwise object to it. At no time did M.M. object on the grounds he now raises on appeal.

Even if M.M. preserved an objection to the admission of the evaluation report and

to Hilgers’s testimony, M.M.’s claim is without merit. A transfer hearing under section 54.11 of

the family code is not considered a “stage of a criminal prosecution.” Under Texas law, a transfer

hearing is not a trial; a juvenile is neither being adjudicated nor sentenced. In re D.L., 198 S.W.3d

at 230; In re J.M.O., 980 S.W.2d 811, 813 (Tex. App.—San Antonio 1998, pet. denied); In re D.S.,

921 S.W.2d 383, 387 (Tex. App.—Corpus Christi 1996, writ dism’d w.o.j.). The transfer hearing

is a “second chance hearing” after the juvenile has already been sentenced to a determinate number

of years. In re D.S., 921 S.W.2d at 387. Because the juvenile is already being punished for his

original conduct in which he was adjudged delinquent, in making this second chance determination,

the legislature has provided that the trial court should be able to consider the juvenile’s behavior

since commitment, and the transfer statute expressly allows consideration of such reports. Id.; see

Tex. Fam. Code Ann. § 54.11(d) (court may consider written reports from professional consultants

and employees of TYC in addition to testimony). Section 54.11(e) specifies the procedures to be

employed in the hearing and further provides:
 M.M. does not challenge the constitutionality of the relevant statutes. 1

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At the hearing, the person to be transferred or released under supervision 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 in the hearing.

Tex. Fam. Code Ann. § 54.11(e). Thus, because a transfer hearing is not a stage of a criminal

prosecution, the hearing does not require the same stringent requirements as a trial in which a

person’s guilt is determined, and the statute expressly provides for the consideration of

the evaluation M.M. now challenges, we hold that the trial court did not err in admitting the

evaluation. In re J.M.O., 980 S.W.2d at 813; In re D.S., 921 S.W.2d at 387. We overrule M.M.’s 1

single point of error.

CONCLUSION

Having overruled M.M.’s point of error, we affirm the trial court’s order.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: February 6, 2008