In re Q.D.M.

45 S.W.3d 797, 2001 Tex. App. LEXIS 3968
CourtCourt of Appeals of Texas
DecidedJune 14, 2001
DocketNo. 09-00-499 CV
StatusPublished
Cited by13 cases

This text of 45 S.W.3d 797 (In re Q.D.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Q.D.M., 45 S.W.3d 797, 2001 Tex. App. LEXIS 3968 (Tex. Ct. App. 2001).

Opinion

OPINION

WALKER, Chief Justice.

This is an appeal from a dispositional order dated October 3, 2000, committing appellant, Q.D.M., to an indeterminate stay at the Texas Youth Commission (TYC). The record before us reflects that on February 8, 2000, appellant was adjudicated as having engaged in delinquent Conduct by Having committed the offense of “Evading Detention Using a Vehicle-Class A Misdemeanor.” For that particular adjudication, and on that same day, appellant was placed on probation until he reached eighteen years’ of age. As a condition of this probation, appellant was initially placed at a facility named, “Daytop Residential Treatment Facility” for an unspecified length of time. The record further reflects that prior to having been adjudicated delinquent for the evading detention offense, appellant has been adjudicated on October 12, 1999, for having committed the misdemeanor offense of “Possession of Marijuana in a Drug Free Zone.”

On August 9, 2000, the State filed a Motion to Modify Disposition alleging that appellant violated the terms of his February 8, 2000, probation by committing several non-jailable, administrative-type violations. It was this motion that resulted in the dispositional order placing appellant in the TYC facility from which the instant appeal lies. Appellant presents two issues for our consideration, viz:

Issue 1: Did the court err in modifying disposition of Juvenile-Appellant by committing Juvenile Appellant to the Texas Youth Commission (“TYC”) under authority of a statute that is inapplicable to modifications, where Juvenile Respondent (sic) is not eligible for commitment to TYC under the statute which ought to have been applied, and where the State failed to plead in its Motion to Modify prerequisites for commitment to TYC (under both the erroneously applied statute and the statute which should have been applied)?
[799]*799Issue 2: Is § 54.04(j) of the Juvenile Justice Code unconstitutionally void for vagueness?

We partially dispose of appellant’s first issue by pointing out that the record does not indicate appellant objected to any defects in the State’s pleadings or to any misapplication of the statutory modification scheme prior to or during the modification proceedings. As such, appellant has not preserved those issues for appellate review and we overrule Issue 1 to that extent. Tex.R.App.P. 33.1(a). While appellant also failed to complain of the lack of authority by the trial court of commit appellant to TYC under the applicable statutory scheme, we will address that portion of Issue 1 for reasons set out below. Because our treatment of Issue 1 will be dispositive of the appeal we will not reach the question presented under Issue 2.1

Both parties agree that the provision in question is contained in Tex.FaM.Code Ann. § 54.05(j) (Vernon Supp.2001),2 which reads as follows:

(j) The court may modify a disposition under Subsection (f) that is based on a finding that the child engaged in delinquent conduct that violates a penal law of the grade of misdemeanor if:
(1) the child has been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony or misdemeanor on at least two previous occasions; and
(2) of the previous adjudications, the conduct that was the basis for the adjudications occurred after the date of another previous adjudication.

The State does not contest the fact that based upon this specific provision the trial court committed appellant to TYC.3

Before examining § 54.05(j) to determine whether it gave the trial court the authority to commit appellant to TYC, we must address appellant’s failure to raise this issue initially with the trial court. Juvenile justice matters are considered civil proceedings, but quasi-criminal in nature. In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999). As such, different considerations obtain with regard to preservation of issues for appellate review. Id. In the purely civil context, it has been observed that “fundamental error” survives today in those rare instances in which the record shows the trial court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas. Id., citing to. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). When confronted with a preservation of error situation in C.O.S., the Court found decisions of the Court of Criminal Appeals to be instructive in the area. Id., at 767.

Under either the state of federal constitutions, a sentence assessed to a criminal defendant not authorized by law is void. See Heath v. State, 817 S.W.2d 335, 339 (Tex.Crim.App.1991). This has been the law in Texas for well over a century. Id., citing to Fowler v. State, 9 Tex. Ct.App. 149 (1880) (punishment below statutory minimum held to be incapable of [800]*800supporting a conviction). Consequently, it has been “long held” that a defect which renders a sentence void may be raised at any time. Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App.1996), citing to Heath, 817 S.W.2d at 336. See also Ex parte Mclver, 586 S.W.2d 851, 854 (Tex.Crim. App.1979) (Habeas corpus relief will issue to a person in custody under a sentence which is void because the punishment is unauthorized). We therefore find an abundance of authority from our highest appellate courts in support of our addressing the issue of unauthorized sentence raised by appellant for the first time on appeal.

In determining whether appellant’s commitment to TYC was unauthorized by § 54.05(j), we must examine the provision itself. The Court of Criminal Appeals has described their approach to statutory construction as follows:

[W]e look to the literal text of the statute for its meaning, and we give effect to the plain meaning unless the language is ambiguous or application of the statute’s plain language would lead to an absurd result that the legislature could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). In analyzing the language of a statute, we assume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. State v. Hardy, 963 S.W.2d 516, 520 (Tex.Crim.App.1997). We also give effect to the more specific provisions over more general provisions. Tex. Gov’t.Code § 311.026.

Campbell v. State, No.2031-99, 2001 WL 219145, — S.W.3d. - (Tex.Crim.App. March 7, 2001).

Appellant’s position before us is that § 54.05Q) permits commitment to TYC following modification of a previous disposition only upon the finding of at least three

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45 S.W.3d 797, 2001 Tex. App. LEXIS 3968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-qdm-texapp-2001.