Opinion issued April 30, 2019




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-18-00898-CV
                             ———————————
                            IN THE MATTER OF B.M.



                On Appeal from the County Court at Law No. 2
                          Fort Bend County, Texas
                    Trial Court Case No. 18-CJV-021629


                            CONCURRING OPINION

      In Kent v. United States, 383 U.S. 541 (1966), the Supreme Court determined

that children1 in juvenile proceedings should not be denied procedural rights given

to adult criminal defendants merely because juvenile proceedings are characterized


1
      See TEX. FAM. CODE ANN. § 51.02(2) (defining child); In re Hall, 286 S.W.3d 925,
      927 (Tex. 2009) (“Child is defined to include persons less than eighteen years old.”
      (internal quotations omitted)).
as civil. See Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App. 1999) (citing

Kent, 383 U.S. at 560). While identifying the determination to transfer a child from

juvenile court to criminal court for prosecution as an adult “as ‘critically important,’

the [Supreme] Court held [that] a state juvenile transfer process must operate in

accordance with traditional notions of fundamental fairness.” Id. (quoting Kent, 383

U.S. at 560). And that “[t]he process must include a hearing, effective assistance of

counsel, and counsel’s access to the child’s social file.” Id. (emphasis added).

       Further, in In re Gault, 387 U.S. 1 (1967), the Supreme Court held that the

Fourteenth Amendment’s Due Process Clause applied to juvenile proceedings

“entitling children to notice of charges, defense counsel, the privilege against

self-incrimination, confrontation of and cross[-]examination of witnesses.”

Hidalgo, 983 S.W.2d at 750–51 (citing In re Gault, 387 U.S. at 49); see also In re

Gault, 387 U.S. at 13 (“[N]either the Fourteenth Amendment nor the Bill of Rights

is for adults alone.”).

       The Supreme Court has also determined that, as compared to adults, children

under eighteen years of age lack of maturity, have “an underdeveloped sense of

responsibility,” and are “more vulnerable or susceptible to negative influences and

outside pressures, including peer pressure.” Roper v. Simmons, 543 U.S. 551, 569

(2005) (internal quotations omitted).      In the Roper majority opinion, Justice

Kennedy further noted that “[t]hese qualities often result in impetuous and


                                           2
ill-considered actions and decisions” by a child. Id. Moreover, the Court explained

that children “have less control, or less experience with control, over their own

environment” and their character “is not as well formed as that of an adult”; their

personality traits are “more transitory, less fixed.” Id. at 569–70. Based on these

differences, the Court found suspect any conclusion that a child falls among the

worst offenders because a child’s “irresponsible conduct is [simply] not as morally

reprehensible as that of an adult.” Id. at 561, 570 (internal quotations omitted); see

also Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (“[T]he Court has already

endorsed the proposition that less culpability should attach to a crime committed by

a juvenile than to a comparable crime committed by an adult. . . . Inexperience, less

education, and less intelligence make the teenager less able to evaluate the

consequences of his . . . conduct while at the same time he . . . is much more apt to

be motivated by mere emotion or peer pressure than as an adult.”).

      Texas courts have also recognized that children are different from adult

criminal defendants and warrant additional protections. See In re Hall, 286 S.W.3d

925, 927 (Tex. 2009) (“The Legislature enacted the Juvenile Justice Code as a

separate system for the prosecution, adjudication, sentencing, and detention of

juvenile offenders to protect the public and provide for the wholesome moral,

mental, and physical development of delinquent children. This separate system

often provides enhanced procedural protections to juvenile offenders, who, because


                                          3
of youth, ordinarily lack the mental and emotional maturity needed to . . . maintain

an adequate defense.” (internal citations omitted)); Henderson v. State, 962 S.W.2d

544, 562 (Tex. Crim. App. 1997) (“[The] State has a legitimate, and in fact

compelling, interest in protecting the well-being of its children. . . . Children are

deemed to warrant protection because of their inexperience, lack of social and

intellectual development, moral innocence, and vulnerability.”); Lanes v. State, 767

S.W.2d 789, 791–800 (Tex. Crim. App. 1989) (including historical discussion of

juvenile justice policy and noting “rehabilitation and child protection remain as the

pervasive and uniform themes of the Texas juvenile system”); In re S.G.R., 496

S.W.3d 235, 238 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“Children

ordinarily are not subject to criminal proceedings like adults.”); In re J.G., 905

S.W.2d 676, 680–81 (Tex. App.—Texarkana 1995), writ denied, 916 S.W.2d 949

(Tex. 1995) (“[A] juvenile is not similarly situated to an adult . . . . [T]he juvenile

justice system is arranged with a special emphasis on the welfare of the child . . . .”);

In re E.Q., 839 S.W.2d 144, 145–46 (Tex. App.—Austin 1992, no writ) (“The [S]tate

has an interest in providing for the care, protection, and development of its

children . . . . The civil juvenile justice system was established in part to insulate

minors from the harshness of criminal prosecutions, to promote rehabilitation over

punishment, and to eliminate the taint of criminal conviction after incarceration by

characterizing such actions as delinquent rather than criminal.”); see also TEX. FAM.


                                           4
CODE ANN. § 51.01 (purposes of Juvenile Justice Code include “provid[ing]

treatment, training, and rehabilitation that emphasizes the accountability and

responsibility of both the parent and the child for the child’s conduct” and

“provid[ing] for the care, the protection, and the wholesome moral, mental, and

physical development of children coming within its provisions”). Thus, “[t]he

transfer of a [child] from juvenile court to criminal court for prosecution as an adult

should be regarded as the exception, not the rule; the operative principle is that,

whenever feasible, children and adolescents below a certain age should be protected

and rehabilitated rather than subjected to the harshness of the criminal system[.]”

Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (third alteration in

original) (internal quotations omitted); see also Lanes, 767 S.W.2d at 796 (“The

Texas juvenile system . . . seeks to avoid the taint of criminality in order to prevent

recidivism and promote rehabilitation. The best method of avoiding attachment of

a criminal taint is keeping the child completely out of the [criminal] system.”).

      Furthermore, because proceedings in juvenile court are quasi-criminal in

nature, they are subject to numerous due process restrictions mirroring those at play

in a full criminal trial. In re A.J.S., 442 S.W.3d 562, 565 (Tex. App.—El Paso 2014,

no pet.); see also In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); Smith v. Rankin,

661 S.W.2d 152, 153 (Tex. App.—Houston [1st Dist.] 1983, orig. proceeding). A

child “is guaranteed the same constitutional rights as an adult in a criminal


                                          5
proceeding because a juvenile-delinquency proceeding seeks to deprive [him] of his

liberty.” State v. C.J.F., 183 S.W.3d 841, 847 (Tex. App.—Houston [1st Dist.] 2005,

pet. denied); see also In re M.S., 940 S.W.2d 789, 790 (Tex. App.—Austin 1997, no

writ) (“A juvenile proceeding, which may deprive a child of his liberty for a number

of years, is comparable in seriousness to a criminal prosecution. . . . [F]or that

reason, many of the due process protections applicable to criminal proceedings apply

also to juvenile proceedings, such as the right to appeal and the right to assistance of

counsel.”); see, e.g., TEX. FAM. CODE ANN. §§ 51.10, 56.01.

        A transfer hearing, such as the one in this case, is not held for the purpose of

determining a child’s guilt or innocence; it is held for the purpose of establishing

whether the child’s and society’s best interests are met by maintaining custody of

the child in the juvenile system or by transferring the child to criminal court for trial

as an adult. See TEX. FAM. CODE ANN. § 54.02 (transfer hearing); State v. Lopez,

196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet. ref’d); In re A.A., 929 S.W.2d

649, 653 (Tex. App.—San Antonio 1996, no writ). Notably, the law requires that a

child in a Texas juvenile court has effective representation at a transfer hearing. See

TEX. FAM. CODE ANN. § 51.10 (child entitled to representation by counsel at transfer

hearing and may not waive right to counsel); Strickland v. Washington, 466 U.S.

668, 685–86 (1984) (“That a person who happens to be a lawyer is present at trial

alongside    the   accused . . . is   not   enough   to   satisfy   the   constitutional


                                            6
command. . . . [T]he right to the assistance of counsel . . . envisions counsel[]

playing a role that is critical to the ability of the adversarial system to produce just

results. An accused is entitled to be assisted by an attorney, whether retained or

appointed, who plays the role necessary to ensure that the trial is fair.”); Hidalgo,

983 S.W.2d at 750 (child entitled to effective assistance of counsel at transfer

hearing). Inexplicably, in the instant case, the record reveals that B.M., a minor

child, was not represented by a zealous advocate at his transfer hearing.2

      At a transfer hearing, the juvenile court is the sole fact finder. In re D.W.L.,

828 S.W.2d 520, 525 (Tex. App.—Houston [14th Dist.] 1992, no writ). However,

in his damaging opening statement at the transfer hearing, B.M’s court-appointed

counsel immediately told the juvenile court: “[W]e do not dispute any of the facts

alleged by the State of Texas at this time, Judge, nor do I believe we ever will.”

Then, about his own client, B.M.’s counsel announced to the court: “[N]ow it’s time

to pay the piper.”3 This statement, which is often employed by the State in arguing


2
      The Texas Disciplinary Rules of Professional Conduct state that “[a]s [an] advocate,
      a lawyer [must] zealously assert[] [his] client’s position under the rules of the
      adversary system.” Tex. Disciplinary Rules Prof’l Conduct preamble ¶ 2, reprinted
      in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A. And “a lawyer should act with
      competence, commitment and dedication to the interest of [his] client and with zeal
      in advocacy upon [his] client’s behalf.” Tex. Disciplinary Rules Prof’l Conduct R.
      1.01 cmt. 6. Not surprisingly, “[l]oyalty is an essential element in [a] lawyer’s
      relationship to [his] client.” Tex. Disciplinary Rules Prof’l Conduct R. 1.06 cmt. 1.
3
      Pay the piper, MCGRAW-HILL’S DICTIONARY OF AMERICAN IDIOMS AND PHRASAL
      VERBS (2005) (defining “pay the piper” as “fac[ing] the results of one’s actions; to
      receive punishment for something” (emphasis added)).

                                            7
that an adult criminal defendant must be severely punished, alone is contrary to

B.M.’s interest. See, e.g., Lopez v. State, 318 S.W.3d 910, 913–14 (Tex. App.—

Corpus Christi–Edinburg 2010, no pet.) (trial court adjudicated adult criminal

defendant guilty of felony offense of murder and two separate felony offenses of

aggravated assault after State argued “it’s time to pay the piper for what [defendant]

did”); Monroe v. State, No. 01-99-00791-CR, 1999 WL 1208523, at *1 (Tex. App.—

Houston [1st Dist.] Dec. 16, 1999, no pet.) (not designated for publication) (trial

court used phrase “pay the piper” when revoking adult criminal defendant’s

community supervision and sentencing him to confinement for ten years); Engle v.

State, No. 09-93-155 CR, 1993 WL 389202, at *1–2 (Tex. App.—Beaumont Sept.

29, 1993, pet. ref’d) (not designated for publication) (jury sentenced adult criminal

defendant to confinement for ninety-nine years after State used phrase “now it’s time

to pay the piper” in closing argument); Collins v. State, No. B14-90-00614-CR, 1991

WL 119182, at *1, *4–5 (Tex. App.—Houston [14th Dist.] July 3, 1991, pet. ref’d)

(not designated for publication) (during punishment phase of trial, after adult

criminal defendant found guilty of two separate felony offenses of aggravated sexual

assault of child, State argued that defendant “got to pay the [p]iper today”).

      Beyond that, during the entire transfer hearing, B.M.’s counsel only raised

two objections to the evidence presented by the State against B.M. and barely

cross-examined any of the State’s witnesses. More specifically, over the course of


                                          8
two days, the State elicited testimony from eleven witnesses, but B.M.’s counsel

failed to ask eight of these witnesses—the majority of which were there to provide

evidence to support the juvenile court’s probable-cause findings—any questions at

all. See In re Gault, 387 U.S. at 31–55 (child has due process rights of notice,

counsel, confrontation, cross-examination, and privilege against self-incrimination).

Of the remaining three witnesses, counsel asked a total of fourteen questions.4 Most

disturbingly, the one question that B.M.’s counsel posed to Fort Bend County

Sheriff’s Office Detective D. Williams, who provided significant evidence to

support the juvenile court’s probable-cause findings and who also gave the sole

evidence of the confession of B.M.’s alleged accomplice, was whether he was

“around [Dr.] Blasey Ford” “[t]hirty-six years ago.”5 Still yet, B.M.’s counsel

expressly declined to cross-examine Sugar Land Police Department Officer J.




4
      These three witnesses, of which B.M.’s counsel only asked fourteen total questions,
      made up approximately seventy-four percent of the testimony elicited by the State
      on the second day of the transfer hearing.
5
      B.M.’s transfer hearing occurred soon after the Senate Judiciary Committee’s
      hearing related to, then, United States Supreme Court nominee Judge Brett
      Kavanaugh. See Bloomberg Government, Kavanaugh hearing: Transcript, WASH.
      POST,      (Sept.     27,      2018),    https://www.washingtonpost.com/news/
      national/wp/2018/09/27/kavanaugh-hearing-transcript/?utm_term=.585a33bdbbef.
      Dr. Blasey Ford alleged that Justice Kavanaugh sexually assaulted her
      approximately thirty-six years ago when he was seventeen years old. Prior to his
      confirmation by the Senate, Dr. Blasey Ford testified against Justice Kavanaugh
      before the Senate Judiciary Committee. See id.

                                           9
Hatfield, the only other law enforcement officer called to testify at the transfer

hearing, because he was “not old enough to know [Dr.] Blasey Ford.”6

      Counsel eventually rested B.M.’s case without presenting any witnesses or

evidence on behalf of his client. And then counsel again conceded in his closing

argument to the juvenile court that the State had established probable cause for five

of the seven aggravated robberies that the State alleged his client had committed.

Surprisingly, counsel went further to tell the juvenile court that the State “did a great

job” establishing probable cause.

      Why does it matter that B.M.’s counsel’s conceded probable cause and failed

to substantively question any of the State’s witnesses who were at the transfer

hearing to provide probable-cause evidence against B.M.? Because in order for the

juvenile court to waive its exclusive original jurisdiction and transfer B.M. to

criminal court to stand trial as an adult, the juvenile court was required to find “that

there [was] probable cause to believe that [B.M.] . . . committed the [aggravated

robbery] offense[s] alleged” by the State. See TEX. FAM. CODE ANN. § 54.02(a)

(emphasis added) (juvenile court also required to find “that because of the

seriousness of the offense[s] alleged or the background of [B.M.] . . . the welfare of



6
      See id. Unfortunately, these were not the only comments B.M.’s counsel made
      about Dr. Blasey Ford during his client’s “critically important” transfer hearing. See
      Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App. 1999) (internal quotations
      omitted).

                                            10
the community require[d] criminal proceedings.”). Significantly, it was the State’s

burden to establish probable cause, and yet, B.M.’s own counsel helped the State

meet its burden in the instant case.7 See Moon, 451 S.W.3d at 45 (State’s burden);

In re Honsaker, 539 S.W.2d 198, 201 (Tex. App.—Dallas 1976, writ ref’d n.r.e.)

(State’s burden to show probable cause exists to believe child committed offense

alleged); see also U.S. v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991) (“A lawyer

who informs the [fact finder] that it is his view of the evidence that there is no

reasonable doubt regarding the only factual issues that are in dispute has utterly

failed to ‘subject the prosecution’s case to meaningful adversarial testing.’” (quoting

U.S. v. Cronic, 466 U.S. 648, 659 (1984)); Osborn v. Shillinger, 861 F.2d 612, 625

(10th Cir. 1988) (“[A]n attorney who adopts and acts upon a belief that his client

should be convicted ‘fail[s] to function in any meaningful sense as the Government’s

adversary.’” (second alteration in original) (quoting Cronic, 466 U.S. at 666)).

      In Texas, we hold attorneys to the highest standards of ethical conduct
      in their dealings with their clients. The duty is highest when the

7
      Considering that B.M.’s counsel conceded probable cause during the transfer
      hearing, it is also concerning that the only issue that B.M.’s court-appointed
      appellate counsel raised on appeal was whether the evidence was legally sufficient
      to support the trial court’s findings of probable cause that B.M. committed seven
      separate felony offenses of aggravated robbery, as alleged by the State. See TEX.
      R. APP. P. 47.1 (appellate court may only address issues raised by party and
      necessary to final disposition); Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim.
      App. 1991) (no power to issue advisory opinion on issues not advanced by party on
      appeal); see also Evitts v. Lucey, 469 U.S. 387, 396–97 (1985); Ward v. State, 740
      S.W.2d 794, 800 (Tex. Crim. App. 1987) (recognizing right of effective assistance
      of counsel on appeal).

                                           11
       attorney . . . takes a position adverse to his . . . client’s interest[]. As
       Justice Cardozo observed, “[a fiduciary] is held to something stricter
       than the morals of the marketplace. Not honesty alone, but the punctilio
       of an honor the most sensitive, is then the standard of behavior.”[8]
       Accordingly, a lawyer must conduct his . . . business with inveterate
       honesty and loyalty, always keeping [his] client’s best interest in mind.

Hoover v. Slovacek LLP v. Walton, 206 S.W.3d 557, 560–61 (Tex. 2006) (fourth

alteration in original). B.M.’s counsel’s approach of agreeing with the State’s case,

sitting almost completely silent while eleven witnesses, over two days, testified

against his client, and making insensitive, irrelevant, and inappropriate “jokes” and

comments during a “critically important” proceeding involving a child, is not

indicative of a “commitment and dedication to the interest of [his] client” and

zealous “advocacy upon [his] client’s behalf” that is expected by the lawyers in this

State. See Tex. Disciplinary Rules Prof’l Conduct R. 1.01 cmt. 6, reprinted in TEX.

GOV’T CODE ANN., tit. 2, subtit. G, app. A; see also Lopez v. Munoz, Hockema &

Reed, L.L.P., 22 S.W.3d 857, 867 (Tex. 2000) (Gonzales, J., concurring and

dissenting) (“Fundamentally, a lawyer should always act in [his] client’s best

interest[].”).




8
       See Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

                                           12
                                            Julie Countiss
                                            Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Countiss, J., concurring.




                                       13
