in the Matter of J. M. ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00027-CV
In the Matter of J. M.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-31,485, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION
The district court, sitting as a juvenile court, adjudicated appellant J.M. delinquent
after finding that he committed the offense of aggravated sexual assault of a child. See Tex. Fam.
Code § 54.03(f); Tex. Penal Code § 22.021(a)(1)(B). The court imposed a ten-year determinate
sentence and placed appellant on probation for ten years. See Tex. Fam. Code §§ 53.045(a)(5),
54.04(d)(3), (q). The juvenile court also entered an order transferring appellant’s probation to an
adult criminal district court, see id. § 54.051, as well as an order requiring appellant to register
privately as a sex offender, see Tex. Code Crim. Proc. arts. 62.001(5)(A), 62.352. In two points of
error on appeal, appellant contends that the juvenile court lacked jurisdiction to adjudicate him
delinquent, place him on probation under a determinate sentence, transfer that probation to adult
court, and enter the order requiring him to register as a sex offender. Having reviewed the record,
we affirm the juvenile court’s judgment of adjudication, order imposing determinate sentence
probation, and sex-offender registration order. We dismiss appellant’s appeal of the transfer order
for lack of jurisdiction.
BACKGROUND1
Appellant was born on December 14, 1992. On May 3, 2010, when appellant was
seventeen years old, the State filed its original petition alleging, in two separate paragraphs, that
appellant had engaged in delinquent conduct by committing the felony offense of aggravated sexual
assault of a child when appellant was sixteen years old. On May 24, 2010, at an announcement
hearing, the parties appeared in court, updated the court on appellant’s status, and advised the court
that a sex-offender evaluation would be conducted on appellant. On July 12, 2010, at a setting for
the adjudication hearing, the parties informed the court that the evaluation had been done and that
the parties were engaged in plea negotiations and anticipated a plea. The case was reset for a plea
on August 10, 2010.
On August 10, 2010, the parties appeared at the plea hearing and, pursuant to the plea
bargain, the State abandoned Paragraph III of the petition (containing one of the allegations that
appellant had engaged in delinquent conduct by committing the offense of aggravated sexual assault
of a child) and waived the determinate sentence. Appellant pleaded true to the remaining paragraph,
Paragraph IV, admitting his guilt to the aggravated sexual assault of a child alleged in that
paragraph.2 The court accepted appellant’s plea and made an oral finding that appellant was a child
1
Because the parties are familiar with the facts of the case and its procedural history, we
provide only a general overview of the procedural history here. We provide additional factual and
procedural background in the opinion as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
2
Also as part of the plea-bargain agreement, the State recommended that appellant be placed
on probation at home until his eighteenth birthday and be required to complete sex-offender
treatment. The parties also agreed that any decision requiring appellant to register as a sex offender
would be deferred.
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who had engaged in delinquent conduct. The disposition hearing immediately followed, during
which the court heard testimony from a juvenile probation officer and reviewed the court summary
and appellant’s sex-offender evaluation. At the conclusion of the disposition hearing, the court
rejected the plea agreement and ordered a “judicial confession.”3 The court then reset the case for
December 13, 2010 (the day before appellant’s eighteenth birthday), and advised appellant that at
that hearing the court would, based on the evidence heard, either adjudicate appellant delinquent or
accept a Rule 11 agreement and continue the informal probation.
On December 13, 2010, the parties appeared at the adjudication hearing. They
updated the juvenile court on appellant’s progress in therapy (“treatment is moving slowly but
steadily”) and advised the court that appellant needed more time in therapy. The parties entered into
a Rule 11 Agreement, which the record reflects the court accepted,4 and appellant was continued on
the informal probation. Thereafter, the record reflects that a series of review hearings
followed—affording appellant the opportunity to complete therapy and successfully complete the
informal probation—until he was ultimately adjudicated delinquent for aggravated sexual assault of
a child on May 24, 2012. The court then set the disposition hearing for July 25, 2012, giving
appellant time to “get his act together” before the court made the decision of whether a determinate
3
Although not provided for in the Family Code, a “judicial confession” is apparently a type
of deferred prosecution or pretrial diversion program used by juvenile courts in Travis County. The
juvenile enters a plea of true to an offense and admits his guilt; the court, however, defers an
adjudication finding and places the juvenile on an informal probation. If the juvenile successfully
completes the conditions of the informal probation, the petition alleging delinquent conduct will be
dismissed. If the juvenile is not successful, the court enters an adjudication finding and proceeds
to disposition.
4
The record reflects that the Rule 11 Agreement was not filed until January 27, 2011, the
date of the next review hearing.
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sentence would be imposed and whether appellant would have to register as a sex offender. Again,
the record reflects that a series of disposition and review hearings followed—to again afford
appellant the opportunity to complete therapy, this time in order to avoid a determinate sentence
and sex-offender registration. Finally, after a contested disposition hearing conducted on
November 12, 2013, the juvenile court entered an order imposing a ten-year determinate sentence
and placing appellant on probation for ten years. The court ordered appellant to register privately
as a sex offender and transferred his probation to adult criminal court.
DISCUSSION
State’s Challenge to Appellate Jurisdiction
Initially, we address the State’s contention that appellant’s appeal of these orders
should be dismissed for want of jurisdiction because the notice of appeal was untimely filed. All of
these orders were signed by the juvenile court on November 21, 2013. As a general rule, juvenile
appeals proceed under the rules governing civil cases. See Tex. Fam. Code § 56.01(b) (“The
requirements governing an appeal are as in civil cases generally.”). Accordingly, in this case,
appellant’s notice of appeal was due within 30 days from the signing of these orders, or by
December 21, 2013. See Tex. R. App. P. 26.1 (providing that notice of appeal in civil case must
generally be filed within 30 days after judgment is signed). Appellant’s notice of appeal was filed
on December 23, 2013. However, under the rule regarding the computation of time, if the last day
of the time period is a Saturday, Sunday, or legal holiday, “the period extends to the end of the next
day that is not a Saturday, Sunday, or legal holiday.” Tex. R. App. P. 4.1(a). We observe that
in 2013, December 21st was a Saturday, and the next business day was Monday, December 23rd,
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the day on which appellant’s notice of appeal was filed. Thus, the State’s jurisdictional argument
based on an untimely notice of appeal fails.
Challenge to Jurisdiction of Juvenile Court
In his first issue, appellant claims that the juvenile court was without jurisdiction after
his eighteenth birthday to adjudicate him delinquent, place him on determinate sentence probation,
transfer his probation to adult criminal court, and order him to register privately as a sex offender.
As is relevant here, a juvenile court has exclusive, original jurisdiction over all
proceedings involving a person who has engaged in delinquent conduct as a result of acts committed
before age seventeen. See Tex. Fam. Code §§ 51.02, .04. Although a juvenile court does not lose
jurisdiction when a juvenile turns eighteen, such jurisdiction is generally limited to either transferring
the case under section 54.02(j) or dismissing the case. In re N.J.A., 997 S.W.2d 554, 556 (Tex.
1999); see Tex. Fam. Code § 54.02(j) (setting forth circumstances under which juvenile court can
waive jurisdiction and transfer appropriately aged juvenile to criminal court for criminal
proceedings). However, the Family Code provides an exception to this rule, which applies to
incomplete proceedings. See Tex. Fam. Code § 51.0412; In re V.A., 140 S.W.3d 858, 859 (Tex.
App.—Fort Worth 2004, no pet.). Under section 51.0412 of the Family Code, a juvenile court
retains jurisdiction over the juvenile, without regard to the age of the juvenile, if: (1) the petition or
motion was filed while the juvenile was under eighteen; (2) the proceeding is not complete before
the juvenile turns eighteen; and (3) the court enters a finding that the prosecutor exercised due
diligence in an attempt to complete the proceeding before the juvenile turns eighteen. Tex. Fam.
Code § 51.0412. In his brief, appellant argues that the trial court lost jurisdiction after his eighteenth
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birthday because there is no evidence of prosecutorial due diligence prior to trial or during the
adjudication and disposition proceedings.
However, a child who objects to the jurisdiction of the court over the child because
of the child’s age must raise the objection at the adjudication hearing. See Tex. Fam. Code
§ 51.042(a). A child who does not so object “waives any right to object to the jurisdiction of the
court because of the age of the child” on appeal. See id. § 51.042(b). In this case, appellant did not
object to the jurisdiction of the juvenile court over him because of his age at the adjudication
hearing. Consequently, he has waived his complaint that the trial court lacked jurisdiction over him
after he turned eighteen to adjudicate him delinquent, impose determinate sentence probation, or
order him to register privately as a sex offender. Accordingly, we overrule appellant’s first issue.
Appeal of Order Transferring Probation
In his second issue, appellant contends that the trial court erred when it transferred
his determinate sentence probation to the adult criminal court because the hearing regarding the
transfer of appellant’s probation was not conducted before appellant’s eighteenth birthday. See id.
§ 54.051(b). Thus, he argues, the order transferring his probation to adult criminal court should
be vacated.
Section 56.01 of the Family Code sets out a child’s right to appeal a juvenile court’s
order and specifically lists the orders from which the child may appeal. See id. § 56.01. An order
entered under section 54.051 of the Family Code transferring a child’s determinate sentence
probation to an appropriate district court is not one of the orders enumerated in the statute. See id.
§ 56.01(c). Thus, applying the plain language of the statute, the juvenile court’s order transferring
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determinate sentence probation to an appropriate adult criminal district court is not an appealable
order. See In re J.H., 176 S.W.3d 677, 679 (Tex. App.—Dallas 2005, no pet.) (dismissing appeal
for lack of jurisdiction after concluding that “the trial court’s order transferring determinate sentence
probation to an appropriate criminal district court is not an appealable order”); see also In re W.E.H.,
No. 02-10-00234-CV, 2011 WL 1901986, at *1 (Tex. App.—Fort Worth May 19, 2011, no pet.)
(mem. op.) (dismissing appeal of transfer order for lack of jurisdiction); In re T.D.S.,
No. 14-11-00005-CV, 2011 WL 2474056, at *1 (Tex. App.—Houston [14th Dist.] June 23, 2011,
pet. denied) (mem. op.) (same); In re B.L.C., No. 08-10-00186-CV, 2010 WL 3784972, at *1 (Tex.
App.—El Paso Sept. 29, 2010, no pet.) (mem. op.) (same). We therefore overrule appellant’s second
issue and dismiss his attempted appeal of the order transferring his determinate sentence probation
to an adult criminal district court for lack of jurisdiction.
CONCLUSION
Because appellant waived his objection to the juvenile court’s jurisdiction based on
his age by failing to object at the adjudication hearing, we affirm the juvenile court’s judgment of
adjudication, order imposing determinate sentence probation, and order requiring private
sex-offender registration. Because an order transferring a juvenile’s determinate sentence probation
to adult criminal district court is not an appealable order, we dismiss appellant’s attempted appeal
of this order for lack of jurisdiction.
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__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed in Part; Dismissed for Want of Jurisdiction in Part
Filed: May 21, 2015
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