Texas Judiciary Online - HTML Opinion

In support of his = position,=20 appellant relies on section 54.04(i)(1)(C), requiring a trial = court to=20 include in its order of determination an affirmative finding on = the issue=20 set forth in question 2 in order to place a child on probation = outside the=20 home or to commit the child to the TYC. See Tex. Fam. Code Ann. = ' 54.04(i)(1)(C) = (Vernon Supp.=20 2006). Although the court included an affirmative finding on = this=20 issue in its commitment order (contrary to the jury=3Ds negative finding in = response=20 to question 2), section 54.04 does not expressly require this = finding to=20 be included in the determination order where a jury, rather than = the trial=20 court, sentences a defendant. See id. ' = 54.04(d)(3).

More importantly, = however,=20 whether or not such a finding must be included in the order, its = content=20 bears only on the choice between probation inside the home versus=20 probation outside the home, and not on the choice between = probation and=20 TYC commitment. In other words, it does not logically follow = from=20 the fact that a defendant=3Ds home is a suitable = place for=20 conducting probation that probation must be selected. If, as = in this=20 case, probation is found to be wholly inappropriate, the fact that = it=20 could have been provided in appellant=3Ds home, if it had = been=20 appropriate, is immaterial.

Because = T.A.W.=3Ds second issue does = not,=20 therefore, demonstrate that the jury=3Ds answer to question = 2=20 precludes its sentence of commitment to the TYC, it is overruled, = and the=20 judgment of the trial court is affirmed.

/s/ =20 Richard H. Edelman

Justice

Judgment rendered and = Opinion=20 filed February 13, 2007.

Panel consists of = Justices=20 Anderson, Edelman, and Frost.

^{^[1]} =20 In an opinion from the appeal of a juvenile court proceeding, the = child is=20 identified by his initials rather than by name. Tex. Fam..Code Ann. = ' 56.01(j) (Vernon = 2002).

^{^[2]} =20 A jury found that appellant committed aggravated sexual assault = and=20 sentenced him to commitment at the Texas Youth Commission with a = transfer=20 to the Texas Department of Criminal Justice (ATDCJ@) for a term of fourteen = years.

^{^[3]} =20 In addition, a juvenile court=3Ds jurisdiction is retained if: (1) the = petition or=20 motion was filed while the respondent was under eighteen; (2) the=20 proceeding is not complete before the respondent turns eighteen; = and (3)=20 the court enters a finding that the prosecutor exercised due = diligence in=20 an attempt to complete the proceeding before the respondent turns=20 eighteen. Tex. = Fam. Code=20 Ann. ' 51.0412 (Vernon 2002). The = existence of the=20 first two of these conditions is undisputed. As to the = third,=20 T.A.W.=3Ds brief acknowledges that the trial = court made a=20 finding of due diligence at the hearing on the motion for new = trial. =20 He does not contend or cite authority that this finding was = required to be=20 made in any other manner or by any earlier time in the = proceeding. =20 T.A.W. also asserts that there is no evidence to support this=20 finding. However, the record reflects that, prior to trial, = the=20 State detailed several trial settings at which it had appeared and = announced Aready@ prior to T.A.W. turning eighteen, and = stated that=20 it had exercised due diligence in trying to bring T.A.W. to trial = before=20 his eighteenth birthday. For the first of these trial dates, = which=20 appears to be prior to T.A.W.=3Ds eighteenth birthday, T.A.W. requested = the=20 reset. The numerous other resets, which occurred after = T.A.W. turned=20 eighteen, were requested by either T.A.W. or the court. = Therefore,=20 his brief does not demonstrate that the trial court did not retain = jurisdiction over him under section 51.0412.

^{^[4]} =20 See Tex. Fam. = Code=20 Ann. ' 54.04(c) (Vernon Supp.=20 = 2006).