in the Matter of M.L.

Opinion

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

–2– 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

–3– 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.

–4–