1 COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER OF R.F.,

A JUVENILE, §

§

§

§

§ No. 08

- 20

- 0 0 140

- C V

Appeal from the

98th Judicial District Court

of Travis County, Texas

(TC# JV35920 )



### O P I N I O N

Pursuant to his plea of true, Appellant R.F. was adjudicated delinquent for committing

burglary of a habitation with the attempted or actual commission of a felony, namely : sexual

assault. 1 Following a consolidated transfer and registration hearing, t he district court sit t ing as

the juvenile court assessed a determinate sentence of twelve years and placed R.F. into the custody

of the Texas Juvenile Justice Department ( “ TJJD ” )

, with a possible transfer to the Institutional

Division of the Texas Department of Criminal Justice ( “ TDCJ ” )

. T he court also ordered R.F. to

register privately as a sex offender. In his first issue on appeal

, R.F. argues that his determinate

sentence is unlawful because the juvenile court could not impose a determinate sentence for his

1 See T EX .P EN AL C ODE A NN

. § 22.011 ( sexual assault statute); T EX .P EN AL C ODE A NN

. § 30.02 ( burglary of a

habitation statute).2

burglary of a habitation adjudication. In his second issue, R.F. argues that the court committed

procedural error by exclud ing several published articles that he attempted to admit into evidence

during the sex offender

- registration hearing. For the reasons set forth below, we affirm the

juvenile court ’ s judgment supporting R.F. ’ s determinate sentence and the court ’ s order requiring

R.F. to privately register as a sex offender

. 2

I. 

### P ROCEDURAL 

### B ACKGROUND

In its petition alleging delinquent conduct, the State alleged that on or about March 19,

2018, R.F. :

[V] iolated a penal law of this State punishable by imprisonment, to wit: Section

22.011 of the Texas Penal Code (Sexual Assault), in that he did then and there

intentionally or knowingly cause the penetration of the female sexual organ of

[C.R.]

, by the Respondent ’ s sexual organ, without the consent of [C.R.]

. 3

The State further alleged that R.F. :

[V] iolated a penal law of this State punishable by I mprisonment, to wit: Section

30.02 of the Texas Penal Code (Burglary of a Habitation with Attempted or Actual

Commission of a Felony), in that he did then and there knowingly and intentionally

enter a habitation without the effective consent of [C.R.]

, the owner, and therein

attempted to commit or committed a felony, to wit: the sexual assault of [C.R.]

.

Finally, the State alleged that during the same incident, R.F. committed the additional delinquent

conduct of unauthorized use of a vehicle by “intentionally and knowingly operat [ing] a motor

propelled vehicle owned by [C.R.]

, without her effective consent.” 4 Pursuant to a plea agreement

,

R.F. pleaded true to the burglary of a habitation allegation, and t he juvenile court found true the

allegation that R.F. committed burglary of a habitation wit h the attempted or actual sexual assault

2 This case was transferred from our sister court in Austin, and we decide it in accordance with the precedent of that

c ourt to the extent required by T EX .R.A PP .P. 41.3.

3 T o protect the victim ’ s identity, we refer to her by her initials in place of her true name. See T EX .R.A PP .P. 9.10.

4 See T EX .P EN AL C ODE A NN

. § 31.07 ( unauthorized

- use

- of

- a

- motor

- vehicle statute).3

of C.R

. The State waived the sexual assault allegation as part of the plea agreement

, and also

dismissed the petition alleging R.F. ’ s unauthorized use of a motor vehicle

. On June 14, 2018, t he

court assessed a determinate sentence of twelve years

, required R.F. to complete sex offender

treatment, and placed R.F. in the custody of TJJD, with a possible transfer to the TDCJ ’ s

Institutional Division. T he court initially deferred the decision on R.F. ’ s sex offender

- registration

requirements

. On January 23, 2020, a TJJD representative informed the court that R.F. had

completed his sex offender treatment. Shortly thereafter, the trial court held a pretrial evidentiary

hearing on the questions of whether R.F. should be transfer red to the TDCJ ’ s Institutional Division

a nd whether he should be required to register as a sex offender

. As we discuss below, at that

hearing, the trial court decline d to admit into evidence several of R.F. ’ s exhibits offered under the

hearsay rule exception set forth in T EX .R.E VID

. 803(18)

. Following both parties ’ presentation of

testimony and evidence, the court ordered R.F. released to TDCJ ’ s Parole Division and ordered

R.F. to register privately as a sex offender under c hapter 62 of the Texas Code of Criminal

Procedure. I n a subsequent hearing, R.F. unsuccessfully challenged the court ’ s sex offender

registration order on the ground that burglary of a habitation with intent to commit a felony was

not an offense for which an adjudication would require him to register as a sex offender. This

appeal follows.



### II. I SSUES ON 

### A PPEAL

In Issue One, R.F. argues that the juvenile court erred by imposing a determinate sentence

for his burglary of a habitation adjudication because that offense is not included in the list of

eligible offenses for determinate sentences under T EX .F AM .C O DE A NN

. § 53.045(a). In Issue

Two, R.F. argues that during the pretrial evidentiary hearing, the juvenile court abused its

discretion by excluding several scholarly articles that he offered under the hearsay rule exception4

in T EX .R.E VID

. 803(18)

.



### III. D ETERMINATE SENTENCE

Under the Texas Family Code, a juvenile court may impose a determinate sentence if the

fact finder at the adjudication hearing conc ludes that the child engaged in delinquent conduct

involving a violation of a penal law listed in section 53.045(a) of the same code

. T EX .F AM

. C O DE

A NN

. § 54.04(d)(3)

. In turn, section 53.045(a) list s the several offenses for which an adjudicated

juvenile may receive a determinate sentence

, but as R.F. points out, burglary of a habitation is not

one of the listed offenses

. T EX .F AM .C ODE A NN

. § 53.045(a). However, the offense of criminal

attempt of a “3(g)” offense is included on the list, which the State argues supports the trial court ’ s

ruling. And a Third Court of Appeals decision supports the State ’ s argument.

T he Austin court addressed the question of whether a juvenile may receive a determinate

sentence for burglary of a habitation with attempted sexual assault in In Matter of A.C

., No. 03

-

14

- 00804

- CV, 2016 WL 4628065

, at *2 (Tex.App.

-- Austin Aug. 30, 2016, no pet.) (mem. op.).

In that case, the juvenile was adjudicated de linquent for burglary of a habitation with attempted

sexual assault, and the juvenile court assessed a ten

- year determinate sentence and placed the

juvenile on probation

. Id

. at *1. The court subsequently found that the juvenile had violated the

terms and conditions of his probation

, and the court modified his disposition by committing him

to the custody of TJJD for a determinate period of ten years. Id

.

On appeal, the juvenile raised a similar argument to the one presented here: whether

burglary of a habitation with attempted sexual assault was an offense for which the juvenile c ould

receive a determinate sentence under section 53.045(a)

. Id

. at *2. The Austin court of appeals

rejected the juvenile ’ s argument and held that the juvenile could receive a determinate sentence in

that circumstance. Id

. at *3. Applying the canons of statutory construction, the court first5

recognized that section 54.04( d)(3) permits a determinate sentence if “the court or jury found at

the conclusion of the adjudication hearing that the child engaged in delinquent conduct that

included a violation of a penal law listed in Section 53.045(a).” Id

. at *2. (i nternal quotation

marks omitted )

. The court further noted that although burglary of a habitation is not an offense

listed under section 53.045(a), the offense of criminal attempt is listed under section 53.045(a), “if

the offense attempted was

. . . an offense listed by Section 3g(a)(1), Article 42.12, Code of Criminal

Procedure

. ” Id

. [Internal quotations omitted]. Because sexual assault wa s listed as one of the

offenses under former article 42.12

, § 3g(a)(1)

, the court concluded that a juvenile who was found

to have committed delinquent conduct that “ included the offense of attempted sexual assault ”

could receive a determinate sentence under the plain language of section 54.04

. 5 Id

. (emphasis

in original).

In our case, R.F. pleaded true to the State ’ s burglary of a habitation allegation, and the

juvenile court subsequently found that R.F. :

[V] iolated a penal law of this State punishable by I mprisonment, to wit: Section

30.02 of the Texas Penal Code (Burglary of a Habitation with Attempted or Actual

Commission of a Felony), in that he did then and there knowingly and intentionally

enter a habitation without the effective consent of [C.R.], the owner, and therein

attempted to commit or committed a felony, to wit: the sexual assault of [C.R.].

Thus, by finding the State ’ s allegation to be true, the court made a finding that R.F. had engaged

in delinquent conduct that included a violation of a penal offense listed under section 53.045(a),

specifically, sexual assault. See T EX .F AM .C ODE A NN

. § 53.045(a)(5). Under the Austin court ’ s

prior preceden t and the relevant statutes, R.F. ’ s adjudication for burglary of a habitation, along

with the juvenile court ’ s finding that he attempted or actually committed sexual assault during the

5 Although T EX .C ODE C RIM .P ROC

. A NN

. art. 42.12 has since be en recodified at T EX .C ODE C RIM .P ROC

. A NN

.

art. 42A.054, sexual assault is still listed as an offense under the new statute. See T EX .C ODE C RIM .P ROC

. A NN

.

art. 42A.054(a)(8) ; see also T EX .P EN AL C ODE A NN

. § 22.011.6

commission of burglary of a habitation

, authorized R.F. ’ s determinate sentence

. 6 See In Matter

of A.C

., 2016 WL 4628065, at *2

- 3. Accordingly, we reject R.F. ’ s contention that he could not

receive a determinate sentence for his adjudication for burglary of a habitation with sexual assault.

R.F. ’ s Issue One is overruled.



### IV. E XCLUSION OF 

### E VIDENCE

A

. Applicable Law and Standard of Review

1. Registration h earings g enerally

An adjudication of delinquent conduct for burglary of a habitation with attempted sexual

assault generally requires the juvenile to register as a sex offender. See T EX .C ODE

C RIM .P ROC .A NN

. art. 62.001(5) (A) ; T EX .C ODE C RIM .P ROC .A NN

. art. 62.051(a) (generally

requiring the registration of “person who has a reportable conviction or adjudication”); see also In

Matter of A.C ., 2016 WL 4628065, at *2 ( stating that article 62.001(5)(A) defin es “ ‘ reportable

conviction or adjudication ’ to include burglary of habitation with intent to commit [sexual]

assault” )

. Prior to requiring a juvenile to register, the juvenile court must first conduct a hearing

to determine whether the interests of the public require the juvenile to register. T EX .F AM .C ODE

A NN

. § 62.351(a). At the hearing, t he juvenile has the burden to show by a preponderance of the

evidence that: (1) the protection of the public would not be increased by registration of the juvenile;

or (2) any potential increase in the protection of the public resulting from the registration of the

responded is clearly outweighed by the anticipated substantial harm to the juvenile and the

juvenile ’ s family that would result from registration. Id

. §§ 62.351(b), 62.352(a).

6 T his case was transferred from our sister cour t in Austin, and we decide it in accordance with the precedent of that

c ourt

, including its In Matter of A.C

. opinion, to the extent required by T EX .R.A PP .P. 41.3. And, even if we did not

decide the issue in accordance with the Austin court ’ s preceden t

, we see no reason to deviate from that court ’ s analysis

or its interpretation of the relevant statutes in the Family Cod e as they pertain to R.F. ’ s appellate complaint

. See In

Matter of A.C ., No. 03

- 14

- 00804

- CV, 2016 WL 4628065, at *2

- 3 (Tex.App.

-- Austin Aug. 30, 2016, no pet.) (mem.

op.)

.7

Article 62.351(b) provides that a juvenile court may make its determination based on: (1)

the receipt of exhibits; (2) the testimony of witnesses; (3) representations of counsel for the parties;

or (4) the contents of a social history report prepared by the juvenile probation department that

may include the results of testing and examination of the responded by a psychologist, psychiatrist,

or counselor. T EX .C ODE C RIM .P ROC .A NN

. art. 62.351(b). Although article 62.351 does not

explicitly state that the Texas Rules of Evidence apply during registration hearings, generally, the

Rules of Evidence “apply to proceedings in Texas courts,” subject only to certain exceptions that

are inapplicable here. See T EX .R.E VID

. 101(b), (d)

- (g) ; see also T EX .F AM .C ODE A NN

. § 51.17 (c)

(providing that the except as otherwise provided

, “ the Texas Rules of Evidence applicable to

criminal cases

. . . apply in a judicial proceeding under this title” which include delinquency

proceedings); In re S.A.M

., No. 03

- 14

- 00023

- CV, 2014 WL 4548865, at *1

– * 2 (Tex.App.

-- Austin

Sept. 1 1

, 2014, no pet.) (mem. op.) ( in appeal from registration order, the court outlines how the

admi ssion of several documents violat ed the hearsay rule

, but ultimately concluded any error in

admitting the documents w as harmless).

2. Hearsay and Rule 803(18)

Hearsay is an out

- of

- court statement “offered in evidence to prove the truth of the matter

asserted.” Sanchez v. State

, 354 S.W.3d 476, 484 (Tex.Crim.App. 2011), citing T EX .R.E VID

.

801(d) (i nternal quotation marks omitted )

. Hearsay is inadmissible unless it falls into one of the

exceptions in Rules of Evidence 803 or 804. Id

., citing T EX .R.E VID

. 802. Under R ule 803(18),

commonly known as the “ learned treatise ” exception, a statement contained in a treatise,

periodical, or pamphlet is admissible if: (1) the statement is called to the attention of an expert

witness on cross

- examination or relied on by the expert on direct examination; and (2) the

publication is established as a reliable authority by the expert ’ s admission or testimony, by another8

expert ’ s testimony, or by judicial notice. T EX .R.E VID

. 803(18). If the statement is admitted, the

statement may only be read into evidence and cannot be received as an exhibit. Id

.

3. Standard of Review

We review a trial court ’ s determination of whether a hearsay statement is admissible under

R ule 803(18) for an abuse of discretion. See Mauzey v. Sutliff

, 125 S.W.3d 71, 84 (Tex.App.

--

Austin 2003, pet. denied). A trial court only abuses its discretion in admitting or excluding

hearsay evidence if its decision falls outside the zone of reasonable disagreement

, and the court ’ s

ruling will be upheld provided that the trial court ’ s decision “is reasonably supported by the record

and is correct under any theory of law applicable to the case

. ” Ritcherson v. State

, 476 S.W.3d

111, 128

- 29 (Tex.App.

-- Austin 2015 )

, aff ’ d

, 568 S.W.3d 667 (Tex.Crim.App. 2018), quoting Brito

Carrasco v. State

, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005).

B

. Analysis

During the pretrial evidentiary hearing, R.F. offered Respondent ’ s Exhibits 8 through 13,

which are a series of published articles regarding the effects of sex offender registration on

juveniles. The State objected to the exhibits ’ admission on the basis that they contained hearsay,

and R.F. argued that the exhibits were admissible under the learned treatise exception pursuant to

R ule 803(18). The State responded that R.F. had not satisfied the prerequisites of R ule 803(18)

because: (1) an expert had not been questioned about the exhibits on cross

- examination or relied

on the exhibits on direct examination; and (2) an expert had not testified that the exhibits were

reliable authority in their fields, and the court had not taken judicial notice of that fact. The State

further argued that even if R.F. had satisfied R ule 803(18) ’ s requirements, the exhibits could not

be admitted as exhibits under the rule, but could only be read into the record. R.F. responded that

he had not laid the predicate through an expert because the State had not requested his list of expert9

witnesses. The court sustained the State ’ s objection and refused to admit any of the articles

because the “foundational requirements” had not been laid for their admission. R.F. did not

reoffer the exhibits during the subsequent registration hearing. Rather, a t the registration hearing,

R.F. presented testimony from his case manager from TJJD, who provided testimony favorable to

R.F. ’ s case. The court the n afforded R.F. an opportunity to present further evidence, but R.F.

rested his case and did not offer other evidence

.

On appeal, R.F. argues that the juvenile court committed procedural error by excluding the

proffered articles

, and that the court ’ s ac tion amounted to constitutional error because it precluded

him from presenting a defense

. Citing Matter of B.J.H.B

., No. 13

- 18

- 00135

- CV, 2019 WL

5997505, at *3

- * 4 (Tex.App.

-- Corpus Christi Nov. 14, 2019, no pet.) (mem. op.), R.F. contends

that the court ’ s ruling had a “chilling effect” on his ability to meet his burden to demonstrate that

his registration as a sex offender was unwarranted. We find Matter of B.J.H.B.

, however,

distinguishable. In that case

, it was undisputed that the juvenile court did not permit the juvenile

to present testimon y from witnesses to satisfy his burden of proving that he was exempt from

registration under article s 62.351(b) and 62.352(c). Matter of B.J.H.B

., 2019 WL 5997505, at *3.

The Corpus Christi court held that the juvenile court ’ s failure to allow the juvenile to present any

evidence under article 62.352(a) was a n abuse of discretion. Id

. at *4.

In contrast, the juvenile court in this case permitted R.F. to present his TJJD case manager ’ s

testimony

, and the court further allowed R.F. the opportunity to offer other evidence and call other

witnesses. Because the court allowed R.F. to present evidence during the registration hearing to

meet his burden under article s 62.351 and 62.352

, his reliance on Matter of B.J.H.B. is misplaced

.

W e therefore hold that the court did not commit procedural error by excluding the proffered

articles

, and because the court allowed R.F. to present evidence to meet his burden of proof, we10

further hold that the exclusion of the articles did not amount to a constitutional violation by entirely

preclud ing him from presenting a defense. See Potier v. State

, 68 S.W.3d 657, 659

(Tex.Crim.App. 2002) (stating that a trial court can place reasonable restrictions on the defendant ’ s

evidence, and that “[s]uch rules do not abridge an accused ’ s right to present a defense so long as

they are not ‘ arbitrary ’ or ‘ disproportionate to the purposes they are designed to serve ’ ” ), quoting

United States v. Scheffer

, 523 U.S. 303, 308 (1998); Valle v. State

, 109 S.W.3d 500, 507

(Tex.Crim.App. 2003) (stating that “[t]he fact that [an] appellant was not able to present his case

in the form he desired does not amount to constitutional error when he was not prevented from

presenting the substance of his defense

. . . ”).

Moreover, to the extent that R.F. argues that the court should have admitted the articles

under the learned treatise exception

, we conclude that the court did not abuse its discretion by

refusing to do so. U nder R ule 803(18), the proponent of the evidence has the burden to: (1) call

the statement to the attention of an expert witness on cross

- examination, or offer testimony on

direct examination from an expert that he or she relied on the statement; and (2) establish the

statement as reliable authority by the expert ’ s admission or testimony, by another expert ’ s

testimony, or by judicial notice. T EX .R.E VID

. 803(18). In this case, R.F. did not attempt to

introduce the articles through an expert witness ’ s testimony

, and even if he had properly laid the

predicate for the articles ’ admission, he could not have had the articles admitted as exhibits because

they could only have be en read into evidence. Id

. Because R.F. did not satisfy R ule 803(18) ’ s

requirements for the offering and admission of the article s, we hold that the court did not abuse its

discretion by excluding the articles.

R.F. ’ s Issue Two is overruled.11 

### V

. C ONCLUSION

The juvenile court ’ s judgment is affirmed.

JEFF ALLEY, Justice

November 30, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.