In re T.A.W.

Case Number: 14-05-00554-CV 01/17/2008 Case stored in record room 01/10/2008 Notice sent to Court of Appeals 11/30/2007 Petition for Review disposed proceeding denied 10/30/2007 Case forwarded to Court 10/26/2007 Response to Petition for Review filed 09/28/2007 Supplemental appendix 09/24/2007 Petition for Review filed 09/24/2007 Appendix Filed 09/24/2007 Affidavit of inability to pay Court costs 09/24/2007 Phone call from Clerk's Office SUBSTITUTE MAJORITY OPINION

Appellant's motion for rehearing is overruled, our opinion issued in this case on February 13, 2007 is withdrawn, and the following opinion is issued in its place. *Page 705

T.A.W.¹ appeals his conviction for delinquent conduct² on the grounds that: (1) the trial court lost jurisdiction over the case when appellant turned eighteen; and (2) the jury's finding in favor of probation supercedes its conflicting finding of commitment to the Texas Youth Commission ("TYC"). We affirm.

Background T.A.W. was born on August 22, 1986. On April 15, 2001, the date of the alleged offense, T.A.W. was fourteen years old. The State filed its petition alleging delinquent conduct on May 21, 2004, when T.A.W. was seventeen. T.A.W.'s delinquency trial began in March 2005, when he was eighteen years old.

Jurisdiction of Trial Court T.A.W.'s first issue argues that the trial court lost jurisdiction after his eighteenth birthday because there is no finding or evidence of prosecutorial due diligence prior to trial or during the adjudication and disposition proceedings.

As is relevant here, a juvenile court has exclusive, original jurisdiction over all proceedings involving a person who has engaged in delinquent conduct as a result of acts committed before age seventeen. See Tex. Fam. Code Ann. §§ 51.02 (Vernon Supp. 2006), 51.04 (Vernon 2002). Although a juvenile court does not lose jurisdiction when a juvenile turns eighteen, such jurisdiction is generally limited to either transferring the case under section 54.02(j) or dismissing the case. In re N.J.A., 997 S.W.2d 554, 556 (Tex. 1999). However, a child who objects to the jurisdiction of the court over the child because of the child's age must raise the objection at the adjudication hearing. Tex. Fam. Code Ann. § 51.042(a) (Vernon 2002). A child who does not so object waives any right to object on that ground at a later hearing or on appeal. Id. § 51.042(b). In this case, because T.A.W. made no objection to the jurisdiction of the trial court over him, his first issue presents nothing for our review.³ Accordingly, it is overruled. *Page 706 Jury Findings T.A.W.'s second issue contends that the jury's finding in answer to question 2 constitutes a finding in favor of probation:

Question No. 2: Do you find by a preponderance of the evidence that the Juvenile Respondent, [T.A.W.], in the Juvenile Respondent's home, cannot be provided the quality of care and level of support and supervision that the Juvenile Respondent needs to meet the conditions of probation?

Answer: We do not.

T.A.W. argues that this finding thereby supercedes, as a matter of law, the jury's finding of commitment to TYC for fourteen years because it was a finding that T.A.W.'s home was an appropriate place to meet the conditions of probation.

However, the court's charge on disposition authorized the jury to either sentence T.A.W. to commitment in the TYC or to place him on probation. An affirmative response to question 2 would have been required in order for the jury to place T.A.W. on probation outside his home,⁴ but was not a decisionwhether to place him on probation.

In support of his position, appellant relies on section 54.04(i)(1)(C), requiring a trial court to include in its order of determination an affirmative finding on the issue set forth in question 2 in order to place a child on probation outside the home or to commit the child to the TYC. See Tex. Fam. Code Ann. § 54.04(i)(1)(C) (Vernon Supp. 2006). Although the court included an affirmative finding on this issue in its commitment order (contrary to the jury's negative finding in response to question 2), this finding, regardless of by whom it is made, bears only on the choice between probation inside the home versus probation outside the home, and not on the choice between probation and TYC commitment. In other words, it does not logically follow from the fact that a defendant's home would be a suitable place for conducting probation that probation must be selected. If, as in this case, probation is found to be wholly inappropriate, even outside the home, the fact that it could have been provided in appellant's home, if it had been appropriate, is immaterial.

Because T.A.W.'s second issue does not, therefore, demonstrate that the jury's answer to question 2 precludes the sentence of commitment to the TYC, it is overruled, and the judgment of the trial court is affirmed.

FROST, J., concurring.

¹ In an opinion from the appeal of a juvenile court proceeding, the child is identified by his initials rather than by name. Tex. Fam. Code Ann. § 56.01(j) (Vernon 2002).

² A jury found that appellant committed aggravated sexual assault and sentenced him to commitment at the Texas Youth Commission with a transfer to the Texas Department of Criminal Justice ("TDCJ") for a term of fourteen years.

³ In addition, a juvenile court's jurisdiction is retained if: (1) the petition or motion was filed while the respondent was under eighteen; (2) the proceeding is not complete before the respondent turns eighteen; and (3) the court enters a finding that the prosecutor exercised due diligence in an attempt to complete the proceeding before the respondent turns eighteen. Tex. Fam. Code Ann. § 51.0412 (Vernon 2002). The existence of the first two of these conditions is undisputed. As to the third, T.A.W.'s brief acknowledges that the trial court made a finding of due diligence at the hearing on the motion for new trial. He does not contend or cite authority that this finding was required to be made in any other manner or by any earlier time in the proceeding. T.A.W. also asserts that there is no evidence to support this finding. However, the record reflects that, prior to trial, the State detailed several trial settings at which it had appeared and announced "ready" prior to T.A.W. turning eighteen, and stated that it had exercised due diligence in trying to bring T.A.W. to trial before his eighteenth birthday. For the first of these trial dates, which appears to be prior to T.A.W.'s eighteenth birthday, T.A.W. requested the reset. The numerous other resets, which occurred after T.A.W. turned eighteen, were requested by either T.A.W. or the court. Therefore, his brief does not demonstrate that the trial court did not retain jurisdiction over him under section 51.0412.

⁴ See Tex. Fam. Code Ann. § 54.04(c) (Vernon Supp. 2006).