MODIFY and AFFIRM; and Opinion Filed September 20, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00568-CV
IN THE MATTER OF M.L.
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JD-71935-W
MEMORANDUM OPINION
Before Justices O’Neill, Lang-Miers, and Evans
Opinion by Justice Lang-Miers
M.L., a juvenile, appeals from the trial court’s order committing him to the Texas
Juvenile Justice Department. In two issues, appellant generally complains that the trial court’s
order improperly ordered him and his grandmother to pay $50 to Dallas County for DNA fees.
We modify the trial court’s order to delete the order to pay $50 to Dallas County for DNA fees
and affirm the order as modified.
The State alleged, and the trial court found, that appellant was a child engaged in
delinquent conduct by committing the offense of injury to a child, a violation of section 22.04 of
the penal code. The trial court placed appellant on probation until his eighteenth birthday. Later,
the State filed a motion to modify disposition alleging that appellant violated three conditions of
his probation. Appellant pleaded true to the alleged probation violations, and the trial court
ordered him committed to the Texas Juvenile Justice Department. The trial court also ordered
appellant and his grandmother to pay $50 to Dallas County for DNA fees. Appellant asserts that
the trial court erred by ordering him and his grandmother to pay $50 for DNA fees. We agree.
Under some circumstances, a trial court is required to order a juvenile adjudicated as a
child engaged in delinquent conduct to provide a DNA sample as a condition of probation. TEX.
FAM. CODE ANN. § 54.0409 (West Supp. 2012). When the requirement applies, the trial court
also must order the child and any parent or other person responsible for the child’s support to pay
a fee (either $50 or $34) to help defray the costs of any analysis that is performed on DNA
samples provided by children. See id. § 54.0462(a)(1), (b).
The offense of injury to a child falls within the category of offenses for which a DNA
sample and fee must be ordered (1) if the conduct was committed intentionally and knowingly
and is punishable as a first degree felony, or (2) if it is shown that the juvenile used or exhibited
a deadly weapon during the commission of the offense. See id. § 54.0409(a)–(b); TEX. CODE
CRIM. PROC. ANN. § 3g(a)(1)(I) (West Supp. 2012). To be punishable as a first degree felony, the
conduct must have caused serious bodily injury to the child victim. See TEX. PENAL CODE ANN.
§ 22.04(e).
In this case, the State alleged that the child victim suffered bodily injury, not serious
bodily injury, as a result of appellant’s conduct; the trial court did not make a finding that the
child victim suffered serious bodily injury; and there is nothing in the record before us to show
that appellant’s conduct caused serious bodily injury to the child victim. Additionally, the trial
court did not make a finding, and the record does not show, that appellant used or exhibited a
deadly weapon during the commission of the offense. Based on the record before us, we
conclude that the offense for which appellant was adjudicated did not fall within the category of
offenses requiring the trial court to order the child to submit a DNA sample. Consequently, the
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trial court erred by ordering appellant and his grandmother to pay $50 to Dallas County as DNA
fees.
We resolve appellant’s first issue in his favor. Our resolution of this issue makes it
unnecessary to address appellant’s second issue. We modify the trial court’s February 28, 2013
order modifying disposition with commitment to the Texas Juvenile Justice Department to delete
the order to pay $50 to Dallas County for DNA fees. We affirm the order as modified.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
130568F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE MATTER OF M.L. On Appeal from the 304th Judicial District
Court, Dallas County, Texas
No. 05-13-00568-CV Trial Court Cause No. JD-71935-W.
Opinion delivered by Justice Lang-Miers,
Justices O’Neill and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
the order to pay $50 to Dallas County for DNA fees is DELETED.
It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.
Judgment entered this 20th day of September, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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