Family Code does not require that a respondent give prior notice of intent to assert the defense of lack of responsibility due to mental illness or mental retardation.[In the Matter of A.W.B.](10-1-8B)

On February 2, 2010, the Amarillo Court concluded that the Family Code does not require that a respondent give notice of intent to assert the defense of lack of responsibility due to mental illness or mental retardation, and as a result, the trial court abused its discretion in sustaining the State's objection to doctor's report regarding juvenile's mental condition.

10-1-8B. In the Matter of A.W.B., No. 07-08-0345-CV, ___ S.W.3d ___, 2010 WL 364250 (Tex.App.-Amarillo, 2/2/10).

Facts:On September 10, 2007, Jane Doe, a four year old, was taken by her grandmother, Gwen, to gymnastics class at Ready, Set, Go, in Plainview, Texas. Gwen left Jane Doe with A.W.B., a 16 year old, because Gwen thought that A.W.B. worked for Ready, Set, Go and Jane Doe appeared to know A.W.B. As Gwen returned to her car, she noticed A.W.B. and Jane Doe walking up a stairway that did not lead to Jane Doe's classroom. Gwen followed the two to an upstairs room and, upon entering the room, Gwen saw Jane Doe standing in front of A.W.B. with her face near A.W.B.'s crotch. A.W.B. noticed Gwen, jumped, and pulled up his pants. Gwen confronted A.W.B.'s mother, who worked for Ready, Set, Go, regarding what she had seen and then immediately took Jane Doe to her mother, Audra. When Gwen arrived, Audra heard Jane Doe screaming and crying, so she ran over to the vehicle to see what was wrong. Audra attempted to console Jane Doe and, eventually, she asked Jane Doe what had happened. Jane Doe told her that A.W.B. put his private in her mouth. Following this report, Audra called the police about the incident.

As part of the police investigation of the report, A.W.B. gave a statement. In this statement, A.W.B. admitted that he pulled his pants down and showed Jane Doe his front. However, A.W.B. claimed that he never put a hand on her at all. This statement was admitted into evidence during the subsequent adjudication hearing.

The State filed a Petition alleging that A.W.B. had engaged in delinquent conduct. By this petition, the State alleged that A.W.B. had (1) committed aggravated sexual assault of a child by intentionally or knowingly causing the penetration of Jane Doe's mouth by A.W.B.'s sexual organ, (2) committed attempted aggravated sexual assault on Jane Doe, (3) caused Jane Doe to touch A.W.B.'s genitals, and (4) intentionally and knowingly exposed his genitals to Jane Doe. All four of these allegations relate to the single incident occurring on September 10, 2007.

Prior to the adjudication hearing, A.W.B.'s counsel filed a motion for psychological evaluation of A.W.B. The motion requested a psychological examination pursuant to section 51.20 of the Texas Family Code because A.W.B.'s counsel believed that A.W.B. has or may have significant limitations in his ability to form the requisite intent to commit the alleged delinquent conduct ... alleged by the State. SeeTEX. FAM. CODE ANN. § 51.20 (Vernon 2008). This motion was granted by the trial court and Dr. Richard Wall was appointed to conduct a psychological examination of A.W.B. Dr. Wall performed this evaluation on October 1, 2007.

During the adjudication hearing, Gwen testified regarding what she observed at Ready, Set, Go on September 10, 2007. Over A.W.B.'s hearsay objection, Audra testified that Jane Doe told her that A.W.B. had put his private in her mouth. Dr. Wall also testified regarding his examination of A.W.B. However, the trial court sustained the State's relevancy objection to the report Dr. Wall prepared in conjunction with his psychological examination of A.W.B. At the close of the adjudication hearing, the trial court found each of the State's four allegations true and proceeded to disposition. At the close of the disposition hearing, the trial court ordered A.W.B. committed to the Texas Youth Commission for an indeterminate period not to exceed A.W.B.'s 19th birthday. A.W.B. timely filed notice of appeal of both the adjudication and disposition.

Held:Adjudication affirmed in part vacated in part, Disposition affirmed

Opinion:By A.W.B.'s second issue, we are left with a challenge to the trial court's decision to exclude the report of Dr. Wall's psychological examination of A.W.B. When A.W.B. offered Dr. Wall's report for admission into evidence, the State objected on the basis that the report was ordered under a statute that allows for only a general psychological evaluation and, as such, it was not relevant to any issue before the trial court in the adjudication hearing. A.W.B. responded that Dr. Wall's report addresses whether A.W.B. was capable of forming the intent that is an element of two of the offenses alleged by the State and, therefore, it is relevant defensive evidence. The trial court sustained the State's objection to the report. After the trial court excluded Dr. Wall's report, Dr. Wall began to testify regarding Asperger's Disorder, which is a condition that Dr. Wall diagnosed A.W.B. to have. During his testimony, the State again objected to the relevancy of the testimony. Following the State's objection, the trial court asked A .W.B.'s counsel if this testimony was being offered as an insanity defense. Counsel stated that, in effect, it was. The trial court asked counsel if notice had been given of an insanity defense. Counsel said no. The trial court then sustained the objection.

Initially, we note that section 55.51 does not require that a respondent give notice of intent to assert the defense of lack of responsibility due to mental illness or mental retardation. See§ 55.51. Furthermore, our review of Dr. Wall's report, which was admitted into evidence during the disposition hearing, leads us to conclude that the report was relevant to the issues before the trial court during adjudication and that there was no valid basis for exclusion of the evidence. Therefore, we conclude that the trial court abused its discretion in sustaining the State's objection to the report.

As to the State's objection to Dr. Wall's testimony, however, at the time that the trial court sustained the objection, Dr. Wall was testifying regarding studies done on chimpanzees as a means to explain Asperger's Disorder to the court. After reviewing this testimony, we conclude that the State's relevancy objection was well taken. Further, at no point during Dr. Wall's testimony was Dr. Wall asked if A.W.B. had a mental illness or mental retardation that would prevent him from being responsible for his actions. The most that can be taken from Dr. Wall's testimony is that A.W.B. suffers from Asperger's Disorder and that this condition limits A.W.B.'s ability to understand abstract subtleties. Further, no offer of proof was requested to allow Dr. Wall to articulate his opinion regarding whether A.W.B. was not responsible for his actions due to mental illness or mental retardation.

While we have concluded that the trial court abused its discretion in excluding Dr. Wall's report from evidence in the adjudication hearing, we must determine whether this error harmed A.W.B. For the trial court's error to be reversible, we must determine that the error probably caused the rendition of an improper judgment or probably prevented A.W.B. from properly presenting the case to this Court. SeeTEX. R. APP. P. 44.1(a). Dr. Wall's report states that, The problematic incident which currently brings [A.W.B.] to the court's attention does not reflect any integrated attempt to gain any sexual gratification. It was simply an un-integrated piece of behavior with no goal. Taking this statement as true, it fails to establish the requisites for the mental illness or mental retardation defense found in section 55.51. Nothing in the report identifies Asperger's Disorder as a mental illness that would meet the statutory definition. Additionally, while the report states that A.W.B. did not act with the intent to gain sexual gratification, the report falls short of concluding that A.W.B. was not responsible for his actions. Evidence was presented that A.W.B. was aware that what he was doing was wrong. Audra testified that A.W.B. told Jane Doe that if she told anyone about the incident that she would get in trouble. Further, when A.W.B. noticed Gwen, he jumped and pulled up his pants.

Conclusion:While A.W.B.'s inability to form the requisite intent to satisfy his sexual desires is relevant to the proof of a couple of the offenses alleged by the State, it is not, of itself, sufficient to vitiate A.W.B.'s responsibility for committing the offense of aggravated sexual assault of a child, which does not require a specific intent to arose or gratify sexual desire. Even accepting Dr. Wall's erroneously excluded report to be true, it is insufficient to establish the statutory defense found in section 55.51, it did not present a defense to aggravated sexual assault of a child, and sufficient evidence exists in the record to establish that A.W.B. was aware that his actions were wrong and, therefore, that he was responsible for those actions.

For the foregoing reasons, we overrule A.W.B.'s second issue.