in the Matter of D. D.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00477-CV
In the Matter of D. D.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-20,396, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
OPINION
The State filed an original and first amended petition alleging appellant D.D. engaged in
delinquent conduct by committing the offense of retaliation. Tex. Pen. Code Ann. ' 36.06 (West 2003).
In a bench trial, the court found appellant had engaged in delinquent conduct by committing the offense of
terroristic threat. See Tex. Pen. Code Ann. ' 22.07 (West 2003). In one issue, appellant contends that the
trial court lacked jurisdiction to adjudicate appellant delinquent by committing the offense of terroristic threat
because that offense was neither alleged in the petition nor a lesser-included offense of retaliation. We
sustain appellant=s issue.
The law of lesser-included offenses as developed in criminal cases has been applied to
juvenile adjudication hearings. See In re C.P., 925 S.W.2d 151, 152 (Tex. App.CAustin 1996, writ
denied); In re G.A.O., 854 S.W.2d 710, 715 (Tex. App.CSan Antonio 1993, no writ). A court does not
have jurisdiction to convict a defendant of an offense not charged in an indictment. See Houston v. State,
556 S.W.2d 345, 347 (Tex. Crim. App. 1977); Jacob v. State, 864 S.W.2d 741, 742 (Tex.
App.CHouston [14th Dist.] 1993), aff=d, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995) (discussing
lesser-included offense analysis); Foster v. State, 834 S.W.2d 494, 497 (Tex. App.CHouston [14th Dist.]
1992, no pet.). An exception exists when the conviction is for an offense that is a lesser-included offense of
the charged offense. Jacob, 864 S.W.2d at 742; Foster, 834 S.W.2d at 497. In a bench trial, the court is
authorized to find the appellant guilty of any lesser-included offense for which the State provides the
required proof. Shute v. State, 877 S.W.2d 314, 314 (Tex. Crim. App. 1994); Cunningham v. State,
726 S.W.2d 151, 153 (Tex. Crim. App. 1987).
An offense is a lesser-included offense if it is established by proof of the same or less than
all the facts required to establish the commission of the charged offense. Tex. Code. Crim. P. Ann. art
37.09(1) (West 1981); Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim. App. 1995). If the offense
requires proof of additional matters not alleged, then it is not a lesser-included offense. Id.; Douglas v.
State, 915 S.W.2d 166, 169 (Tex. App.CCorpus Christi 1996, no pet.). Terroristic threat requires proof
of the element that the person making the threat must intend to place the victim in fear of imminent bodily
injury. Tex. Pen. Code Ann. ' 22.07(a)(2) (West 2003). Fear of imminent bodily injury is not an element
of retaliation. Id. ' 36.06(a)(1) (West 2003). Terroristic threat is not a lesser-included offense of
retaliation. Helleson v. State, 5 S.W.3d 393, 396 (Tex. App.CFort Worth 1999, pet. ref=d); Coward v.
State, 931 S.W.2d 386, 389 (Tex. App.CHouston [14th Dist.] 1996, no pet.); Davis v. State, 890
S.W.2d 489, 492 (Tex. App.CEastland 1994, no pet.).1
1
The State in its brief agrees that terroristic threat is not a lesser-included offense of retaliation. See
2
Helleson v. State, 5 S.W.3d 393, 396 (Tex. App.CFort Worth 1999, pet. ref=d); Coward v. State, 931
S.W.2d 386, 389 (Tex. App.CHouston [14th Dist.] 1996, no pet.); Davis v. State, 890 S.W.2d 489, 492
(Tex. App.CEastland 1994, no pet.).
3
Retaliation was the offense alleged in the petition. Appellant was tried for that offense, but
was not found to have committed the alleged offense. The State rested and argued that it had proven
beyond a reasonable doubt that appellant was guilty of the crime with which she was charged. After stating
that the court believed the version of events as told by the complaining witnesses, the court stated that it was
Ahaving a problem@ with whether the offense was retaliation and not terroristic threat. After a nutshell
recapitulation of the evidence, the court said, ASo I=m going to find a misdemeanor offense in this of the
terroristic threat.@ In Aconvicting@ appellant of what it thought was a lesser-included offense, the court
impliedly acquitted appellant of the greater. Sample v. State, 629 S.W.2d 86, 88 (Tex. App. Dallas 1981,
no pet.); see also State v. Atwood, 16 S.W.3d 192, 196 (Tex. App.CBeaumont 2000, pet. ref=d). The
court heard the evidence, and was unwilling to find appellant committed the alleged felony of retaliation but
instead stated that he was going to find a misdemeanor offense. By finding the evidence insufficient to
convict appellant of the felony, the court impliedly acquitted her. Accordingly, an adjudication of
delinquency cannot be based on the pleaded offense of retaliation.
Further, because terroristic threat was not alleged in the petition and is not a lesser-included
offense of retaliation, the court was without jurisdiction to adjudicate appellant delinquent based on that
offense. See Berkley v. State, 473 S.W.2d 346, 347 (Tex. Civ. App.CFort Worth 1971, no writ)
(pleadings failed to state crime upon which adjudication of delinquency could be based); Osborne v. State,
343 S.W.2d 467, 468 (Tex. Civ. App.CAmarillo 1961, no writ) (necessary to prove specific penal code
violation to adjudicate child delinquent). In the absence of jurisdiction, the conviction for terroristic threat
4
was void. See Houston, 556 S.W.2d at 347. As a void conviction, the judgment must be vacated. See
Jacob v. State, 864 S.W.2d at 744.2
We vacate the court=s judgment with regard to the offense of terroristic threat and reverse
and render judgment of acquittal with regard to the retaliation offense.
David Puryear, Justice
Before Justices Kidd, Patterson and Puryear
Vacated in Part; Reversed and Rendered in Part
Filed: March 13, 2003
2
Because the conviction for terroristic threat is void, double jeopardy does not bar re-trial for that
offense. See Hoang v. State, 872 S.W.2d 694, 697-98 (Tex. Crim. App. 1993).
5