      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00483-CV




                                    In the Matter of D. A. O.




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. J-28,882, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               D.A.O. appeals an order modifying disposition and committing him to the Texas

Youth Commission. He contends that the juvenile court’s original disposition order was void and

that this renders the modified order void as well. He also contends that he received ineffective

assistance of counsel. We overrule these contentions and affirm.

               D.A.O. was born on November 18, 1994. The State’s first amended petition alleged

that on or about November 25, 2007, when he was thirteen years old, D.A.O. engaged in delinquent

conduct by committing two acts of aggravated sexual assault of a child and one act of indecency with

a child by contact. The petition sought a determinate sentence and was approved by the grand jury.

See Tex. Fam. Code Ann. § 53.045(a)(5), (12) (West 2008).

               On February 26, 2008, D.A.O. pleaded guilty to the alleged indecency with a child.

In exchange, the State waived the aggravated sexual assault allegations and determinate sentencing.

The parties agreed that D.A.O. would be placed on in-home probation until his eighteenth birthday.
In addition to the usual probationary conditions, it was agreed that D.A.O. would have no contact

with the victim and would enroll in and complete sex offender treatment. Although the record before

us does not include the February 26 adjudication and disposition hearings, the juvenile court’s

printed docket notes reflect that the court accepted the agreement, adjudicated D.A.O. delinquent,

and placed him on in-home probation “until 18th birthday & NO contact w/victim. Complete sex

offender treatment.” See id. § 54.04(d)(1)(A) (West Supp. 2009). The juvenile court’s written

dispositional order of probation, signed on February 29, 2008, conformed to the court’s announced

disposition except that it stated that the probation was to expire on November 18, 2013, which will

be D.A.O.’s nineteenth birthday. This error apparently went unnoticed, as there was no objection,

appeal, or motion to amend.

                On April 6, 2009, the State filed its second amended motion to modify disposition

alleging that D.A.O. had violated the terms and conditions of his probation by being discharged from

his sex offender counseling for nonparticipation, exposing himself to a “video relay operator,” and

failing to attend school. See id. § 54.05(d) (West 2008). The State later agreed to waive the latter

two allegations in exchange for D.A.O.’s admission that he violated his probation by not completing

counseling. At a hearing on May 19, 2009, at which the error in the written disposition order went

unmentioned, the juvenile court found that D.A.O. had violated the terms of his probation and

modified its disposition to commit him to the TYC for an indeterminate period. See id. § 54.05(f).

The court signed its written order to that effect on July 15. It is from this order that D.A.O. appeals.

                D.A.O. contends that the juvenile court’s original disposition order was void because

it exceeded the court’s statutory authority. He notes that having accepted the plea bargain, the court



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was statutorily required to make a disposition in accordance with its terms. Id. § 54.03(j) (West

Supp. 2009). He also notes that with an exception not pertinent here, juvenile probation may not

continue on or after the child’s eighteenth birthday. Id. § 54.04(l). Appellant overlooks, however,

the docket entries from the February 2008 disposition hearing, which reflect that the juvenile court’s

disposition order was in accord with the plea agreement and the cited statutes. Although the written

order stated that D.A.O.’s probation was to continue until November 18, 2013, his nineteenth

birthday, this was inconsistent with the court’s actual order, which was that the probation

would end on his eighteenth birthday. This appears to have been a mathematical error by

the person who prepared the written order for the court’s signature and could have been corrected

nunc pro tunc. See In re E.D., 127 S.W.3d 860, 862 (Tex. App.—Austin 2004, no pet.);

In re M.A.W., 55 S.W.3d 101, 103-04 (Tex. App.—Amarillo 2001, no pet.); see also Forcey v. State,

265 S.W.3d 921, 925 (Tex. App.—Austin 2008, no pet.) (trial court judgment can be modified to

accurately reflect court’s intent). In any event, D.A.O.’s probation would have terminated

automatically when he reached his eighteenth birthday. See Tex. Fam. Code Ann. § 54.05(b)

(West 2008).      D.A.O.’s contention that the February 2008 disposition order was void is

without merit.

                 D.A.O. argues that even if the original disposition order was not void, the error in the

written order nevertheless infected the order modifying disposition. The written order modifying

disposition signed July 15, 2009, commits D.A.O. to the custody of the TYC “for an indeterminate

period of time, not to exceed the time when the child shall attain 19 years of age or until duly

discharged in compliance with provisions of Chapter 61 of the Texas Human Resources Code.” We



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understand D.A.O. to argue that if the original written disposition order had correctly stated that the

probation was to end on his true eighteenth birthday in 2012, the subsequent commitment to the TYC

could not have extended beyond that date. D.A.O. bases this argument on section 54.05(j), which

authorizes the juvenile court to modify disposition of a juvenile placed on probation pursuant to

section 54.04(q) to commit the juvenile to the TYC “for a term that does not exceed the original

sentence assessed by the court or jury.” Id. § 54.05(j). D.A.O.’s reliance on section 54.05(j) is

misplaced, however, because it applies only to juveniles who are placed on probation after receiving

a determinate sentence. See id. § 54.04(q) (West Supp. 2009). Neither D.A.O.’s original in-home

probation nor the later modification committing him to the TYC was a determinate sentence. The

statement in the modification order that D.A.O.’s commitment to the TYC shall “not exceed the time

when [he] shall attain 19 years of age” was simply an acknowledgment that a juvenile committed

to TYC for an indeterminate period must be discharged on his nineteenth birthday, if not sooner.

See Tex. Hum. Res. Code Ann. § 61.084(e) (West Supp. 2009).

                The juvenile court’s original disposition placed D.A.O. on in-house probation until

his eighteenth birthday as called for in his plea bargain with the State. The error in the written order

regarding the date of D.A.O.’s eighteenth birthday did not render the disposition void, and it does

not render void or voidable the order modifying disposition and committing D.A.O. to the TYC.

Issue one is overruled.

                D.A.O.’s second contention is that his attorney at the modification hearing rendered

ineffective assistance. A juvenile is entitled to effective assistance of counsel. In re F.L.R.,

293 S.W.3d 278, 280 (Tex. App.—Waco 2009, no pet.); In re R.D.B., 102 S.W.3d 798, 800 (Tex.



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App.—Fort Worth 2003, no pet.). We review counsel’s effectiveness under the two-pronged

Strickland standard. R.D.B., 102 S.W.3d at 800; see Strickland v. Washington, 466 U.S. 668, 687

(1984). Under this standard, an appellant must show that counsel made such serious errors that he

was not functioning effectively as counsel and that these errors prejudiced the appellant’s defense

to such a degree that he was deprived of a fair trial. Strickland, 466 U.S. at 687; Hernandez v. State,

988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999).

               D.A.O. identifies three alleged errors by counsel, two of which we have effectively

disposed of in overruling his first issue. Appellant contends that counsel erred by failing to object

to the eighteenth birthday error in the original disposition order. But as we have explained, this was

a clerical error that was irrelevant to the modification proceeding. Appellant also contends that

counsel erred by failing to object to the order modifying disposition as violating section 54.05(j).

But as we have explained, that subsection does not apply to D.A.O. Finally, appellant complains that

his attorney erred during the modification hearing by failing to object to testimony by his probation

officer regarding his exposing himself and failing to attend school, violations of probation that the

State had agreed to waive. The record reflects, however, that the court based its determination that

D.A.O. had violated his probation solely on his admitted failure to complete counseling. The court

stated that it was hearing the probation officer’s testimony “to determine what the result will be as

to whether you just continue probation, I change the terms or place of probation or commit you to

the [TYC].” See In re E.D., 127 S.W.3d at 864 (stating that section 54.05 requires two-step

modification hearing); see also Tex. Fam. Code Ann. § 54.05(m) (West 2008) (factors juvenile court




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must consider before modifying disposition to commit child to TYC). Because it does not appear

that the testimony in question was objectionable, no error by counsel is shown.

               D.A.O. has not demonstrated that his counsel at the modification hearing made such

serious errors that he was not functioning effectively as counsel. Issue two is overruled.

               The order modifying disposition and committing D.A.O. to the Texas Youth

Commission is affirmed.




                                              ___________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 19, 2010




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