## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 23

- 00035

- CR

___________________________

On Appeal from the 158th District Court Denton County, Texas Trial Court No. F19

- 3271

- 158

Before Bassel, Womack, and Wal lach , JJ. M emorandum Opinion by Justice Womack 

### M ICHAEL 

### H ENRY 

### III , Appellant

V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION I . I NTRODUCT IO N In a single issue, Appellant Michael Henry III , who was a juvenile at the time of the events g

ivi ng rise to this case, argues that the crimin al district court lacked jurisdiction to place him on deferr ed

- adjudicat ion probatio n
— and to sub sequently
sentenc e him to twenty yea rs in prison

— for the second

- degree felony offense of aggr avated assault with a deadly weapon because the juvenile court neve r mad e a probable cause finding that Henry had committed tha t par ticular offense , there by rendering its waiver of exclusive jurisdiction invalid

. See Tex. Fam . Code Ann. § 54.02(a) (3) ; see also Nix v. S tate , 65 S.W. 3d 664, 667

– 68 (Tex. Crim. App. 2001) (s tating that void

- judgment exception applies in the deferred

- adjudication cont ext)

. B ecause a ju

venile court waives jurisdiction with respect to conduct, not a par ticular

c harge, w e affirm. I I . B ACKGROUND In Apr i l 2019, H enry and a gr oup of his fri en ds h ad a verbal and physical alter cation with anot her group of boys ou tside one of the boys ’ homes

. After t he fight initially brok e up, Henry ’ s group left , but they returned about ten minutes later. Once the fight resumed, Henry pulled out a gun and fired it in the direction of multiple peo ple , including H. C

. 1

1 Because H.C. was a juvenile at the time Henry ’ s offense was committed , we use an al ias to refer to him

. See Te x. R. App. P. 9.8.3

The State filed a petition agains t Henry in juvenile court alleging that he had engaged in deadly conduct , a third

- degree felon y, by firing a gun “ at or in the direction of

” H.C

. See T ex. Penal Code Ann. § 22.05

. Because Henry ’ s alleged deadly

- conduct offense wa s a felony and he was at least fifteen years old at the ti me that it was committed , t he State requested the discre tionary trans fer of Henry ’ s case to criminal district court

. S ee Tex. Fam. C ode Ann. § 54.02(a)

. I n July 2019, the juvenile court hel d a transfer he aring to determine whether there was probable cause to believe that Henry h ad committed the alleged deadly

conduct offense and whether , given the offense ’ s ser ious ness and Henry ’ s b ackg round, criminal proceedings w ere required. See id. § 54.02( a)(3). The juvenile court found that the re was prob able cause , waived jurisdiction, and transferred Henry ’ s case to cri minal district cou rt. After Hen ry ’ s case was transferred to t he distri ct court , a grand jury issued a true bill of indictmen t charging Hen ry with the second

- d egree f elony offense of aggravat ed assault with a deadly weapon bas e d on his firing of the gun at H.C. du rin g the April 2019 fight

. 2 S ee T ex. Penal Code Ann. § 22. 02(b )

.

2 T he indictment alternati vely alleged that Hen ry had “intentionally or knowingly threatened [H .C.] with imminent bodily injury by pointing or discharging a firearm” at him or in his direction or that Henry h ad “ intent ionally, know ingly, or r eckl e ssly cause [d] bodily injury to [H.C. ] by striking [H.C. ] with [his] hand or slamming [H.C. ] ” and that he had used or ex hibit ed a deadly weapon

— a firearm

— durin g the commission o f the assault.4

In June 2020, Henry , pursuant to a plea bargain, pleaded guilty to the aggravated

- assault

- with

- a - deadly

- weapon charge

. Under the terms of his plea agreement, Henry re ceived d eferred adjudication and was place d on f ive year s ’ probation. 3 I n Mar ch 20 22, the State , alleging multiple p robation violations, filed a motion to proceed with adjudication of guilt

. 4 In February 2023, the dis trict court held a hearing on the State ’ s petition. The dis trict court found a nu mber of the Sta te ’ s allegations to be true ; adjudicated Henry guilty ; and after a punishment hearing , senten ced Henry to twen ty years in prison. This appeal followed

. II I . D ISCUSSION In a single issue, Hen r y contends tha t because the juvenile court neve r made a probable cause finding tha t he had committed the second

- degree felony offense of ag gravated assau lt with a deadly weapon, it s waiver of exclusive jurisdiction was inv alid, and as a re sult, the district court lacked jurisdiction to place him on deferr ed

adjudicat ion probatio n
— and ult imatel y to sentence him to twenty yea rs in prison

— for that offense

. S ee Tex. Fam . Code Ann. § 54.02(a) (3)

. Henry ’ s argument lacks

me rit.

3 Henry was al so required to pay a $500 fine.

4 The State am end e d it s motion twice before it was he ard by t he dist rict court.5

The Texas Family Code provides that the designate d juvenile court of each county has exclusive ori ginal jurisdicti o n over p roceedings involving juvenile defendants. See id. § § 51.04(a ), 54.02(a). There fore, any person a ccused of engaging in

“ delinquent conduct , ” including violating a Texas penal law punishable by impri sonment or confinement in jail, b etween hi s tent h and seventeenth birthday s is subject to the exclusive original juris diction of a juvenile court. See id. § § 51.03(a)(1)

– (2) , 51.04(a) ; Bell v. State , 649 S.W.3d 867 , 885 (T ex. App.

— Hou ston [1 st Dist.] 202 2, pet. ref ’ d).

“ But the right of a juvenile of f ender to remain outside the jurisdiction of the crim inal district cou rt is not absolute. ” Bell , 649 S.W.3d at 885 (citing Ex parte Arango , 518 S.W.3d 916, 920 (Tex. App.

— Houston [1st Dist.] 2017, pet. ref ’ d) )

. If

— as in th e present case — certain condition s are met, a juvenile court may, after an evidentiary hearing, waive i ts exclusive original jurisdiction and transfer a juvenile defendant to an appropriate criminal district court for criminal proceedings

. See Tex. Fam. Code Ann

. § 54.02; Bell

, 649 S.W.3 d at 885

– 86

. It is well

- settled that a juvenile court waives jurisdic tion with respect to conduct, not with respect to a particular charge. Livar v. State , 929 S.W.2d 573, 574

– 75 (Tex. App.

— Fort Worth 1996, pet. ref ’ d) ; accord Eguade v. State , No. 08

- 15

- 0 0268

- CR, 2017 WL 3224863, at *3 (Tex. App.

— El Paso July 31, 2017, pet . ref ’ d) (mem. op., not designated for publication) ; Herndon v. State , No. 05

- 11

- 00248

- CR , 2012 WL 2362528 , at *1 (T ex. App.

— Dallas June 22, 2012, no pet. ) (not designated f or6

publicat io n

) ; see also Cornealius v. State , 870 S.W.2d 169, 176 (Tex. App.

— Houst on [14th Dist.] 1994), aff’d

, 900 S.W.2d 731 (Tex. Crim. App. 1995) (“When the juvenile court waives jurisdiction and transfers a juvenile to the criminal district c ourts, the juvenile c o urt is transferring the underlying conduct of the offense or offenses .” (citing Dixon v. State , 639 S.W.2d 9, 10 (Tex. App.

— Dallas 1982, no pet.))).

“ [B] ecause a juvenile court waives jurisdiction with respect to conduct, a juvenile

court ’ s transfer orde r is n ot required to apprise the defendant of the specific crimes for which he might be charged

. ” Herndon , 2012 WL 2362528 , at *1 (citing Tatum v. State , 534 S.W.2d 678, 680 (Tex. Crim. App. 1976) ). Th us, on ce a juvenile court waives juri sdiction, the di s trict cour t to which the c ase is transferred ha s jurisdiction to adju dicate any offense arising from the same conduct for which the juvenile cour t waived jurisdiction. Livar , 929 S.W.2d at 5 75 (citing Brosky v. State , 915 S.W.2d 120, 126 (Tex. App.

— Fort W orth 1996, pet. ref ’ d) ) ; see also Eguade , 2017 WL 3224863, at *3

. Here, the conduct for which the juvenile court waived jurisdiction was Henry ’ s shooting “ at or in the direction of ” H.C. during the April 2019 fight. Because Henry ’ s aggravated

- assa ult

- w

ith

- a - deadly

- weapon charge was based on this conduct , the district cour t had jurisdiction to adjudicate t his offense. See Livar , 929 S.W.2d at 5 75

. T hat Henry was ultimately charged in the dist rict cou rt with a differ ent offense

—

a ggrav ated assault with a deadly weapon

— tha n the one th at the juvenile co urt found probable cause to believe Henry had committed

— deadly conduct

— is of no moment7

b ecause both offenses ar ose from the same conduc t. See id. ; c f. Sa fian v. State , 543 S.W.3d 216 , 22 2 (Tex. Crim. App. 2 0 18) ( “ Deadly conduct,

. . . as a matter of law, is a lesser

- included offense of aggravated assault by the use of a deadly weapon . ” )

. Indeed, the State ’ s petition for discretionary trans fer anti cipated tha t Henry may ultimately be charged with a dditional o r different offenses in the dist r ict court by sp ecifically requ est

ing that the juvenile court t ransfer Henry ’ s case to the district court

“ for criminal procee dings concerning ” the alleged de adly conduct offense and “ all criminal conduct occurring in said c riminal ep isode (s). ” Thus, Henry ’ s argume nt that the district court lacked jurisdiction to adjudic ate his aggravated

- a ssault

- with

- a - deadly

weapon offense is meritless. We overrule Henry ’ s sole issue. I V . C O NCLUS ION Having overruled H enry ’ s sole iss u e, we affirm the t rial court ’ s judgment. /s/ Dana Womack Dana Wo mack Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered : October 12 , 20 23