Opinion issued December 17 , 2013

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 12 - 00791 - CV

——————————— IN THE MATTER OF J.I .A.
On Appeal from the 313 th District Court Harris County, Texas Trial Court Ca se No. 2009 - 01632J

MEMORANDUM OPINION The juvenile court adjudicated that a ppellant , J.I.A. , engaged in delinquent conduct after he pleaded true to committing the offense of aggravated sexual assault of a child under fourteen years of age

. 1 In two issues, a ppellant c ontends

1 See T EX
. P ENAL C ODE A NN
. § 22.021 ( Vernon Supp. 2013 ).2 that the ju venile court lacked jurisdiction to adjudi cate his conduct and he was not affor ded the requisite notice of the modification proceedings. We affirm. Background A ppellant, pursuant to an agreed punishment recommendation with the State , pleaded true to having engaged in delinquent conduct by commit ting the offense of aggravated sexual assault of a child

. A fter a hearing, the juvenile court entered its order of adjudication and made an affirmative finding that appellant was in need of rehabilitation

. In accord with appe llant’s agreement , t he juvenile court assessed hi s punishment at probation until his eighteenth birthday , ordered that he be committed to the custody of the H arris County Chief Juvenile Probation Officer (“CJPO”) , ordered that he participate in sex

- offender counseling, and deferred its de termination on whether he would be required to register as a sex offender. 2 Although t h e juvenile court granted permission to appeal its order of adjudication , 3 appellant did not appeal

. A year later , the State moved for a modification disposition ( referred to by the parties as a “Reopen”) , alleging that appellant had committed two new

2 A trial court may defer its decision regarding whether to require a juvenile to register as a sex offender

. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 62.352 (Vernon Supp. 2013 ). 3 See T EX
. F AM
. C ODE A NN
. § 56.01(n) (Vernon Supp. 2013 ) ; I n re A.M.L ., No. 14

- 06

- 00874

- CV, 2007 WL 1290527 , at *2 (Tex. App.

— Houston [14th Dist.] May 3, 2007, no pet.) (mem. op.).3 mi sdemeanor offenses

. A ppellant stipulated to the State’s evidence and signed a judicial confession , admitting to having committed the offenses

. In accord with appellant’s punishment agreement with the State , the juvenile court assessed his punishment at probation for one year . Subsequently , the State again moved for a modification disposition ( referred
to by the parties as a “2nd Reopen”) , alleging that appellant had vi olated the terms of probation by failing to report to his juvenile probatio n officer as required, attend

s chool and sex

- offender counseli ng as ordered, and abide by the curfews imposed by the court

. After a deputy constable tried unsuccessfully to serve appellant and his mother with the State’s second petition for modification , service was “re

issued. ” The return shows that the deputy successfully served appellant, who wa s in state jail custody, and hi s mother

. O ne day before appellant’s eighteenth birthday, the juvenile court held a hearing, at wh ich he appeared with counsel, on the State’s second petition for modification. In its modification order, t h e trial court revoked appellant’s probation , but made no further disposition in the case other than ordering appellant
to publicly register as a sex offender

. 4

4 When, as here, a juvenile court defers its decision regarding sex - offender registration, it “ retains discretion and jurisdiction” to require regi stration at any time during treatment or on the successful or unsuccessful completion of treatment. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 62.352(c); see also In re J.D.G ., 141 S.W.3d 319, 322 (Tex. App.

— Corpus Christi 2004, no pet.) (holding that juvenile4 Jurisdiction In his first issue , appellant argues that the juvenile court lac ked jurisdiction to render its original a djudication o rder because “the record does not affirmatively show that [ he ] was served with the petition and citation ” in the original proceeding. He argues, thus, that the juvenile court’s subsequent modification o rder requiring him to register as a sex offender is “void.” Assuming without deciding that appellant may raise in an appeal from a modification order the issue of failure of service in the underlying adjudication proceeding, we conclude that appellant nevertheless cannot prevail on the record before us. 5

court may require sex

- offender re gistration immediately prior to completion of probationary period)

. 5 See T EX
. F AM
. C ODE A NN
. §

. 56.01(b) (Vernon Supp. 2013) (providing “appeal of the adjudication may be sought notwithstanding that the adjudication order was signed more than 30 days befo re” notice of appeal was filed)

. But see In re G.C.F. , 42 S.W.3d 194, 196 (Tex. App.

— Fort Worth 2001, no pet.) (holding , in appeal from modification, that Family Code section 56.01(b) allows appeal from issues relating to adjudication with timely appeal from disposition, but does not provide “indefinite right to appeal issues arising in the adjudication phase”). Compare I n re X.B. , 369 S.W.3d 350, 354 (Tex. App.

— Texarkana 2012, no pet.) (holding, in appeal from modification order, that in absence of service of summons and petition in original adjudication, trial court lacked jurisdiction to issue adjudication, disposition, and modification orders, and concluding that such orders are void and may be collaterally attacked), with In re D.E.P. , 512 S.W.2d 789 , 791 (Tex. Civ. App.

— Houston [14th Dist.] 1974, no writ) (concluding that juvenile defendant could not, in appeal from m odification, raise failure of service in underlying adjudication proceeding, which was not appealed, because such constituted impermissible collateral attack).5 In proceedings before a juvenile court, due process requires notice that would be deemed c onstitutionally adequate in a civil or criminal proceedin g, and such notice must be given sufficiently in advance of trial to give the accused a reasonable amount of time to prepare. In re Gault , 387 U.S. 1, 33, 87 S. Ct. 1428, 1446 (1967 ). Texas Family Code s ection 53.06 provides that a juvenile court “shall dire ct issuance of a summons” to the child named in the petition , among others

. See T EX
. F AM
. C ODE §

. 53.06(a) (Vernon 2008 )

. “ A copy of the petition must accompany the summons , ” and “[t] he summons must require the persons served to appear before the court at the time set to answer the allegations of the petition.” Id. §

. 53.06(b). A juvenile may not waive service of process by written stipulation or voluntary appearance at trial. See T EX
. F AM
. C ODE A NN
. § 53.06(e) (“A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.”)

. A juveni le court lacks jurisdiction if the record does not contain an affirmative showi ng of servi ce on the juvenile, notwithstanding the juvenile’ s appearance at trial. In re D.W.M ., 562 S.W.2d 851, 85 3 (Tex. 1978)

. A valid officer’s return creates the presumption of service and regularity, and the burden i s on the defendant to show inadequacy of s ervice. See Polanco v. State , 914 S.W.2d 269, 271 (Tex. App.

— Beaumont 1996, pet. ref’d) (citing Sau ve6 v. State , 638 S.W.2d 608, 610 (Tex. App.

— Dallas 1982, p et. ref’d)). Although section 53.06 does not require that the summons or the return expressly sta te that a
copy of the petition was delivered , there must be some indication in the record that a copy of the petit ion was served on the defendant

. Polanco , 914 S.W.2d at 271. Here, with respect to the adjudication proceedings , t he record shows that on February 27, 2009, a citation was issued for appellant

. The citation recited that a
copy of the petition was attached , and it commanded the officer serving the citation to deliver to appellant “[a] true copy of this writ, together wit h a true copy of the petition.” The summons directed appellant to appear at a hearing on March 5, 2009 at 9:30 a.m. to be held on the “5th floor, Juvenile Justice Center, Houston, Texas

. ” An d it recited that appellant was to answer the allegations “as fully set out in the accompanying true copy of the petition” of “Kristen E. Moore, Plaintiff.” The return shows that Harris County Constable’s Office Deputy Perez served appellant in person at 10:01 a.m. on “3/2/09” at the Ha rris County Jail. In addition , t he records of the Harris County Justice Information Management System, which are contained in t he clerk’s record before us , show that appellant was detained from Februa ry 19, 2009 until March 2, 2009, when he was served

. Further, i n his stipulation to the evidence and judicial confession , executed in the adjudicat ion proceeding, appellant agre ed that he was “served with a summons and petition in this case.” See Light v. State , 15 S.W.3d 104, 107

– 087 (Tex. Crim. App. 2000) (stating that juvenile’s admission that he was personally served constitutes evidence to be considered in determining whether record sufficiently shows proper service). We conclude that appellant was served in compliance with the requirements of the Fami ly Code. See T EX
. F AM
. C ODE A NN
. § 53.06(a)

– (b). When, as here, the record contains an officer’s return that is valid on its face , and the citation served i ndicates that a copy of the petition w as served, service is afforded a presumption of regularity. S ee S au ve , 638 S.W.2d at 610 ; see also In re S.D.H. , No. 01

- 96

- 00732

- CV, 1997 WL 81173, at *2 (Tex. App.

— Houston [1st Dist.] Feb. 27, 1997, no writ) (not designated for publication)

. To rebut this presumption, a defendant must offer corroborating facts to establish that he did not receive a copy of the petition. See Polanco , 914 S.W.2d at 271 ; see also In re S.D.H. , 1997 WL 81173, at *2 (presuming regularity of return and concluding tha t there was no evidence in record that defendant did not actually receive petition )

. A ppellant’s assertion that he was not served with a copy of the petition , standing alone , is in sufficient to rebut the presumption

. To support his argument, appellant relies primarily on In re X .B ., 369 S.W.3d 350 (Tex. App.

— Texarkana 2012, no pet.)

. In X.B

. , the appellate court held that “ the original adjudication proceeding contained fundamental error ” in that the respondent juvenile was never served w ith summons and petition

. Id. at 354. As such, the juvenile co urt was8 without jurisdiction to enter its adjudication, disposition, and modificati on orders. Id. at 355. The appellate court concluded that “[a]fter revi ewing the record in its entirety,” it could “ find no indication [the responde nt juvenile ] was served with a copy of the summons or petition ” in the original adjudication proceeding. Id. at 353 (emphasis added). Further, the State “concede[d] that [the respondent juvenile] was not served with a summons or petition, [and] t hus consequently, the [juvenile] court never obtained personal jurisdiction over the child .” Id. at 354. Here, unlike in X.B ., the record affirmatively shows that appellant was served with the summons and petition in the or iginal adjudication proceedin g . See T EX
. F AM
. C ODE A NN
. §

. 53.06(a)

- (b). Accordingly, we overrule appellant’s first issue. Notice In his second issue , appellant argues that he was not “ provided with reasonable notice of the allegations contained in the second pet ition to modify, as required by [ Texas Family Code ] section 54.05(d), ” because the cause number listed on the summons was “200901632J Reopen,” rather than “200901632J 2nd Reopen .” (Emphasis added.) And he asserts that the record does not establish that the petition was served. The Family Code provides that “[r]easonable notice of a hearing to modify disposition shall be given to all parties.” T EX
. F AM
. C ODE A NN
. §

. 54.05(d)9 (Vernon Supp. 2013 ). T h e defendant in a modification hearing is not entitled to service of proces s , but only to “ r easonable notice.” See id

. ; In re D.E.P ., 512 S.W.2d 789, 791 (Tex. Civ. App.

— Houston [14th Dist.] 1974, no writ)

. R educed due

- process requirements apply to a hearing to modify disposition in a juvenile case because full procedural safeguards have already been accorded in the initial adjudication and disposition proceedings

. In re S.J

. , 940 S.W.2d 332, 339 (Tex. App.

— San Antonio 1997, no writ); In re J.K.A. , 855 S.W.2d 58, 61

– 62 (Tex. App.

— Houston [14th Dist.] 1993, writ denied) ; Murphy v. State , 860 S.W.2d 639, 643 (Tex. App.

— Fort Worth 1993 , no writ ) (“ The hearing to modify disposition is not a new adjudication of delinquency .”). Here , the State filed as cause number “2009

- 01632J

- Reopen” its first petition to modify the trial court’s disposition, alleging that appellant violated the terms of probation by commi tting two new law violations. And t he trial court’s October 26, 2010 modification order reflects cause number “2009

- 01632J

Reopen.” T he State then filed its second petition for modification as cause number “2009

- 01632J

- 2nd Reopen,” alleging that appellant violated the terms of probation by committing v arious technical violations, such as , “ failing to attend school. ” At the hearing on the Sta te’s second petition for modification, appellant objected to the proceedings on the ground of improper servic e. The State responded that10 appellant “was served on the petition in the second reopened.” The juvenile court overruled appellant’s objection and found that appellant “was served . . . for the 2009

- 1 632J Reopened case.” The juvenile court’s July 30, 2012 modification order add ressed the allegations in the State’s second petition for modification and reflects cause number “2009

- 01632J

- Reopen.” The record shows that appellant was served wi th citation regarding the proceedings in the second modification . The deputy constable ’s return shows that appellant was served in person on June 29, 2012. Appellant concedes that he wa s served on June 29, 2012, t he summons indic ates that he was to answer the “ petition . . . [in] cause no. 200901632J reopen filed herein on the 23rd day of September, 2011 ,” the citation “states that the petition filed on September 23, 2011 was delivered to the constable, ” and the summons commands the constable to deliver “a true copy of the petition” to appellant. (Emphasis added.) Although appellant asserts that he was without reasonable notice of the charges against him in the State’s second petition for modification , the record contains an officer’s return that is valid on its face, and the citation served indicates that a copy of the petition was served . Thus, here , service is afforded a presumption of regularity. S ee S au ve , 638 S.W.2d at 610; see also In re S.D.H. , 19 97 WL 81173, at *2. To rebut this presumption, appellant is required to offer corroborating facts to establish that he did not receive a copy of the petition. See11 Polanco , 914 S.W.2d at 271 ; see also In re S.D.H. , 1997 WL 81173, at *2 (presuming regularity of return and concluding that there was no evidence in record that appella nt did not actually receive petition )

. In P.L. v. State , the defendant argued that because the “ N otice s ” recite d only that the “petition

— not specifically the ‘Original P etition’ or the ‘ First Amended Petition’

— [ wa s ] attached ,” there was “ no proof that he was served as required with the First Amended Petition, the pleading upon which the case proceeded. ” 130 S.W.3d 514, 515 (Tex. App.

— Dallas 2004, no pet.). The court sta ted that its review of the record did “ not identify any evidence that the First Amended Petition

was not served upon appellant” ; the defendant “ ha[d] not testified that he did not

rec eive the First Amended Petition ” ; a nd t here wa s “ no evidence that the Original Petition was re

- issued and attached to the Second Notice. ” Id. Th us, th e court concluded that the State had demonstrated that the First Amended Petition was attached and the defendant “ ha[d] offered no more than mere speculation that it
was not. ” Id. Here, as in P.L ., appellant has offered no more than mere speculation that the State’s second petition for modification was not attached. Moreover , r easonable notice is presumed when , as here, a juvenile’s attorney appears, does not file a motion for continuance, and the juvenile and parent are present and fully advised by the juvenile court as to the issues before it. See In re. D.E.P ., 512 S.W.2d at 791. Here, t he record shows that appellan t’s trial counsel,12 along with appellant and his mother, appeared at the hearing on the State’s second petition for modification. Appellant’s counsel stated at the hearing that he understood that they were there on the State’s second pet ition for modificat ion and he was “on n otice on the proper charges. ” Counsel did no t seek a continuance , but instead , proceeded with the hearing

. To the extent that appellant argues that he was unable to distinguish the citation pertaining to the State’s second petition f or m odification from that of the first modification , the citation in the second modification expressly refers to and incorporates by reference “the petition of Anna Emmons, plaintiff” filed on September 23, 2011, which appellant acknowledged in the trial c ourt is dated one year after the first petition for modification had been fully resolved. We conclude that appellant was afforded reasonab le notice of the charges against him in the second modification proceeding

. Accordingly, w e overrule appellant’s second issue

. Conclusion We affirm the trial court’s judgment.

Terry Jennings Justice Panel cons ists of Justices Jennings, Sharp, and Brown

.