### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00491- CV

In the Matte r of D.L.

F ROM TH E CO UNTY COURT AT LAW NO . 3 O F B ELL COUNTY NO. 74,5 23, H ONO RAB LE REB ECCA DEP EW, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

D.L

. appea ls from the trial court’s order transfe rring him from custody of the Texas J uvenile Just ice De partment (T J J D) to the Te x as De partment of Criminal J ustice (TD CJ ) to serve the rema inder of a deter

minate ten-y ea r sentenc e. As explained below, we will aff irm the trial court’s tra

nsfer order

.
F actual Summ ary I n Aug ust 2012, when appellant D.L

. was thirteen y ear s old, the State filed a petition alleg ing that he had committed ag g ravated sexual assault ag ainst a child and indece ncy with a child by contac t; the victim was about a y ear y ounger than D.L

. On October 5, 2012, the State filed a Notice of I ntent to Seek Gra nd J ury Certifica tion, and on October 17, the g rand jury found probable

cause that D.L

. had eng ag ed in the alleg ed conduct and “appr oved ” the State’s petition seeking deter minate sentenc ing. See Tex. Fam. Code § 53.045(a)

. About a wee k later, D.L

. and his attorney signe d a Waiver of Gra

nd J ury Approva l, stating that he und er s t ood that “such waiver is an
acc eptanc e of the deter

minate sentenc ing peti t i o n as though approve d by the said g rand jury , asauthorized by Sections 53.045 and 51.09 of the Texas Family Code.” The State aba n d o ned the

alleg ation of ag g ravated sexual assault, and on October 31, D.L

. enter ed a plea of true to the alleg ation of indece ncy with a child by conduct. D.L

. was adjudicate d delinquent and rec eived a deter minate ten -y ea r sentenc e, probate d for ten y ear s. I n J anuar y 2015, D.L .’s probation was revoke d and he was order ed committed to TJ J D for ten y ear s. I n May 2017, the State filed a motion asking that D.L

. be transfe rre d from TJ J D to TDCJ to serve the rema inder of h i s deter minate
sentenc e. A hear ing was held befor e the trial court, and the court signe d an order finding that D.L

.
was still in need of reha

bilitation; that he was at a high risk to re- offe nd; that TJ J D lacke d prog rams to benef it D.L .; tha t D .L

. had “over 200 documented incidents of misconduct while a t TJ J D”; that D.L

. had “fa iled sex offe nder trea tment prog ram on three occa sions”; that he posed “a dang er to staff and y outh”; and that it was in D.L .’s and the public’s best interest that D.L

. be transfe rre d to TDCJ to serve the rema inder of his ten- y ear sentenc e.
Discussion “A juvenile court may not impose a deter minate sentenc e unless (1) the prosec uting attorney ref

ers the petition to the g rand jury ; (2) the g rand jury approve s the petition and cer tifies its approva l; and (3) the g rand jury ’s cer tification is enter ed in the rec ord.” In re J.G. , 195 S.W .3d 161, 1 180 (Tex. App.—San Antonio 2006, no pet.) (citing Tex. Fam. Code § 53.045). Section 53.045 of the famil y code specifie s the offe nses for which a juvenile may be g iven a deter minate sentenc e,

For an explanation of deter minate and indeterminate sentenc ing, see Robert O. Dawson’ s 1 article , The Third Justice System : Th e Ne w J u v enile-Criminal System of Determ inate Sentenc ing For The Y outhful Viol ent Offender I n Texas , 19 St. Mary ’s L .J . 943, 946 & n.3 ( 1988).

2including, as rele vant t o this case , ag g ravat ed s ex ual assault or i ndece ncy with a child by contac t.

Tex. Fam. Code § 53.045(a) (5), (12); see Tex. Penal Code §§ 21.11(a) (indec ency with child by

co n tact); 22.021 (ag g ravated sexual assault). Howeve r, the State “may not ref er a petition t h at alleg es t he child eng ag ed in conduc t that violated Section 22.011(a) (2) [sexual assault of a child] ,
or Sections 22.021(a) (1)( B) and (2)( B) [agg ravated sexual assault of a child], unless the child is more than three y ear s older than the vic tim of the conduct.” Tex. Fam. Code § 53.045(e ).

The S tate allege d that D.L

. committed ag g ravated s exual assaul t an d indece ncy by
contac t ag ainst the same vict i m, who was about one y ear y oung er than D.L

. D.L

. contends that beca use he was not more than three y ear s older than the victim, as require d by section 53.045(e) , the deter minate sentenc e and a ll subsequent order s are void.

I nitially , we note that the rec ord does not ref lect that D.L

. raised this issue befor e the trial court. Although juvenile case s are civil proce eding s, they are also quasi-cr iminal. In re C.O.S. , 988 S.W .2d 760, 765-66 (Tex. 1999); In re A.I. , 82 S.W .3d 377, 379 (Tex. App.—Austin 2002, pet. denied) (“A lthough juvenile matters are civil proce eding s, they are quasi-cr iminal in nature and thus bear differ ent considera tion with rega rd t o issue prese rvation.”) ; see also In re R.L.H. , 771 S.W .2d 697, 702 (Tex. App.—Austin 1989, writ denied) (fundamental error may be raised at any point in proce eding s; “er ror is fundame ntal when it direc tly and adver sely af fe ct s t he public interest as that interest is define d in the statutes and constitution”). In considering err or prese rvation in juvenile case s, the supreme court held that we should apply the same prese rvation rules to juvenile

case s as we do in adult criminal proce eding s, explaining that “ther e are essentially three cate g ories of rig hts and require ment s . ” C.O.S. , 988 S.W .2d at 765. There are rig hts considere d “so

3fundame ntal to the proper functioning of our adjudicator y proce ss that they cannot be forf eited” by

a defe ndant’s inaction—ca lled “absolute rig hts or prohibition s an d s y stemic require ments”; “for feitable ” rig hts, which are rig hts the trial court has a duty to enfor ce when reque sted but that can be waived by a failure to call the trial court’s attention to the err or; and a third cate g ory that are “‘not forf eitable,’ meaning that they cannot be lost by inaction but tha t the y are ‘wa ivable’ if the waiver is affirma tively , plainly , fre ely , and intellige ntly made.” Id . at 765-66 (c leane d up). D.L

. does not addr ess whether he prese rved this issue and attempts to avoid the problem by arguing that the deter minate sentenc e is void. See Ex parte Seidel , 39 S.W .3d 221, 225 (Tex. Crim. App. 2001) (void judgme nt is nullity and may be attacke d by direc t or collater al attack) ; Harris v. S tate , No. 01-04-01174- CR, 2006 WL 488677, at *2 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (me m. op., not designa ted for publication) (“Er

ror ne ed not be preserve d to attack a void judgme nt by direc t a ppeal.” ). Howeve r, “[n] ear ly ever y case that has held a sentenc e not ‘authorized by l aw ’ o r v o i d (such that the alleg ed defe ct could be raised for the first time on appea l) involved the trial court’s assessment of a punishment that was not applicable to the offe nse under the controlling statutes. That is, the p u n i s h m ent assessed was not within the universe of punishments applicable to the offe nse.” Speth v. State , 6 S.W .3d 530, 532 (Tex. Crim. App. 1999) (cle aned up). Her e, the deter minate sentenc e was imposed due to D.L .’s commission of indece ncy with a child by contac t, and a deter minate sentenc e is authorized for such an offe nse. See Tex. Fam. Code. § 53.045(a) (12). Thus, D.L .’s punishment is n o t o u t s ide “the universe of punishments applicable to the offe nse.” See Speth , 6 S.W .3d at 532; see also A.I. , 82 S.W .3d at 381 (sentenc e was void beca use statute did not allow for c ommitm ent to TYC).

4I nstead, we believ e t h is issue is more akin to an alleg ed defe ct in an indictment or

information. A petition under which the State seeks a deter minate sentenc e ag ainst a j u venile operates as an equivalent of an indictment or information. See In re J.G. , 905 S.W .2d 676, 680 (Tex. App.—Texarkana 1995), writ denied , 916 S.W .2d 949 (Tex. 1995 ) (per curiam) (for purposes of transfe rring juvenile to TDCJ , petition approve d by g rand jury functions as indictmen t ); R

. L .H. , 771 S.W .2d at 699-700 (disa g ree ing w ith juvenile’s argument that “petition cannot f unction as an indictment”). I n an adult criminal prosec ution, any defe ct in an indictment or information must be

2 raised befor e trial or is waived. Ramirez v. State , 105 S.W .3d 628, 630 (Tex. Crim. App. 2003); Aguilar v

. State , 846 S.W .2d 318, 320 (Tex. Crim. App. 1993). The issue D.L . complains of does

n o t implicate a fundame ntal, sy stemic, or absolute rig ht, and D.L

. thus has not shown that t h e
asser ted err or rises to the level of constitutional err or. See R.L.H. , 771 S.W .2d at 702 (fundamental

err or is “extremely rar e”)

. We hold that err or, if any can be said to exis t, in the petition’s inclusion of an offe nse for which a deter minate sentenc e could not be imposed was waived by D.L .’s failure
to object. See In re J.O.E. , No. 07-15-00215- CV, 2016 WL 5929600, at *3 (Tex. App.—Amar illo Oct. 11, 2016, no pet.) (def ects in cha

rg ing instrument’s fundame ntal, constitutional re quirements
cannot be waived, but defe cts, err o rs , or irregularities in instrument’s form or substance “a re consi dere d to be of a non-jurisdictional nature and can be waived” ); In re A.D.J. ,

See also In re J.C.F. , No. 03-09-00298- CV, 2010 WL 3431689, at *1 (Tex. App.—Austin 2 Aug

. 31, 2010, no pet.) (mem. op.) (petition must state with rea sonable particula rity time, place , and manner of alleg ed offe nse but need not alleg e offe nse with particula rity of criminal ind i ct m ent); In re J .L. , No. 03-00-00212- CV, 2000 WL 1636888, at *4 (Te x . App.—Austin Nov. 2, 2000, pet. denied) (mem. op.) (in seeking deter minate sentenc e, petition is approve d by g rand jury in same way g rand jury

votes on prese ntment of indictment). 5No. 03-96-00210- CV, 1996 WL 591140, at *3 (Tex. App.—Austin Oct. 16, 1996, writ denied) (per

curiam) (not desig nated for publication) (juvenile waived defe ct in deter minate-sente nce petition by failing to object in trial court to lac k of sig nature s by nine g rand juror s). Howeve r, even if D.L

. had p re s er v ed the issue, we would hold that it was not

reve rsible error for the petit ion to include the aba ndoned allegation. I n In re J.G. , our si ster court addressed a simil ar contention—that beca use “the petition included an offe nse not elig i b l e fo r deter minate sentenc ing, the g rand jury cer tificat i o n i s v o i d , and as such, the trial court had no jurisdiction over the case .” 195 S.W .3d at 180. I n that case , the petition cer tified by the g rand jury alleg ed ag g ravated sexual assault and indece ncy by exposure, but the State abandone d the indece ncy char g e. Id

. The court held that beca use the sexual-assault char g e supported a deter minate sentenc e, the g rand jury

had the authority

to cer tify the petition “with respe ct to” that cha rg e. Id. The c ourt disag ree d with the juvenile’s contention that the g rand jury ’s cer tification was a nullity beca use the petition included the abandone d indece ncy alleg ation, noting that althoug h one of the alleg ed crimes would not have supported a deter minate sentenc e, the other offe nse, on which the State proce eded, did, and holding tha t the require ments of sec tion 53.045 were met. Id.

Simi larly , althoug h this speci fi c q uestion was not direc tly at issue, we believe our decision in In re J.H. is useful to our analy sis. 1 5 0 S

. W

. 3 d 4 77 (Tex. App.—Austin 2004, pet. denied)

. I n that case , J .H. was a ccuse d of nine c ounts of delinquent behavior —ag g ravated s exual assault, indece ncy with a child by contac t, and indece ncy with a child by exposure. Id. at 479. The trial court found six of t he allega tions to be true, and because it found t hat J .H. had “eng ag ed in a violation of the offe nse of ag g ravated sexual assault,” assessed a deter minate sentenc e of twenty -five

6y ear s. Id. at 479-80. J .H. appea led, arguing in part “that the trial court err ed in as s essi ng a

deter mi n at e s en t ence afte r finding that he eng ag ed in two counts of indece ncy with a child by exposure beca

use that offe nse is not among the listed offe nses for which a deter minate sentenc e can be orde red.” Id. at 480. We held:

Ba sed on a plain rea ding of the s tatute, we conclude that even one violation of one penal law listed in section 53.045(a) o f t h e family code is sufficie nt for the imposit ion of a deter

minate sentenc e. Her e, J .H. was found to have eng ag ed in both ag g ravated sexual assault and indece ncy with a child by contac t, both of which a re listed in section 53.045(a)

. That he also eng ag ed in another offe nse—one not listed in section 53.045(a) —does not prohibit the assessment of a deter minate sentenc e.
Id . at 481. D.L

. urg es us to disre g ard J.H. beca use that case did not “dispose of the antec edent question of whether a deter minate sentenc e was authorized in the first p l ac e. ” He attempts to d i stinguish J.G. by arguing that our sister court “appa rently was not asked to consider, nor did it consider, whether , since the L eg islature chose the word ‘petition’ in 53.045(e) , th i s means that a petition cover ed by that subsection may not be ref err ed to the g rand jury for approva l if it also contains an elig ible deter minate s entenc e offense alleg ation.” He emphasizes the us e of the word “petition” in section 53.045, as opposed to “off ense,” which h e ar gues t he legislature would have used had it intended to a llow for inelig ible offe nses to be included w ith eligible of fense s. Reading section 53.045 car efully , as D.L

. urg es us to do, that statute provides that a petition may

be re fer red to the gr and jury and subsequently support a determinate sentence “if t he petition alleg es that the c hild eng ag ed in delinquent conduc t . . . that include d the violation of any of the following provisions,” and then g oes on to list the offe nses elig ible for deter minate sentenc e.
7Tex. Fam. Code § 53.045(a) (empha sis added)

. Section 53.045 does not state that a petition ref err ed
t o t h e g rand jury can only alleg e elig ible offe nses. Considering all of the lang uag e chosen by t h e leg islature, it follows that the petition must include at least one elig ible offe nse but is not limit ed to alleg ing on l y elig ible offe nses. I nstead, logic require s the conclusion that a petition that includes both eligible a

nd ineligible offense s may be refer red to the gra

nd jury , and a de terminate se ntence may be imposed as to the e ligible of fense

. 3 Finally , even if there was prese rved err or in the petition’s listi ng a non-elig ible offe nse, D.L

. has not shown that his substantial rig hts wer e harme d by that inclusion, since he was g iven a deter

minate sentenc e based on the indece ncy alleg ation, which does not require the juvenile
to be more than three y ear s older than the victim of his conduct. See id

. § 5 3

. 0 4 5 (a ), (e ). The alleg ation of ag g ravated sexual assault was abandone d befor e D.L

. enter ed his plea. See In re J.H. , 4 150 S.W .3d at 485-86 (c o u r ts s h o u ld a p p ly c r iminal harm analy sis to deter minate sentenc es, meaning judgme nt must be rev e r s e d u n le ss court deter

mines bey ond rea sonable doubt that constitutional err or did not contribute to adjudication or punishment, b u t o t h er non-constitutional err ors will be disreg arde d unless they

aff ect substantial rig hts). We overrule D.L .’s sole issue on appe al.

The inclusion of a non-elig ible offe nse in a petition ref err ed to and cer

tified by a g rand jury 3 would in no way allow for the imposit ion of a deter minate sentenc e as to that offe nse simply by wont of its inclusion in t he ce rtified petition. D. L

. contends that his Waiver of Gra nd J ury Approva l was of no eff ect beca use it only 4 waived the “rig ht of prese ntation,” but as to the alleg ation of ag g ravated sexual assault, no such rig ht exis ted. Due to our

resolution of the re st of D.L .’s ar g ument, we ne ed not consider this iss ue. 8Conclusion We have overr

uled D.L .’s issue on appea l. We there fore aff irm the trial court’s order of adjudication with a deter m i nate sentenc e and all subsequent order s, including the order transfe rring him to TDCJ for the r emainder of his sentenc e.

__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Aug ust 23, 2018

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