Brown, Ex Parte Sulia Lawrence

In the Court of Criminal
Appeals of Texas
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No. PD-0034-20
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EX PARTE SULIA LAWRENCE BROWN,
Appellant

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On State’s Petition for Discretionary Review
From the Second Court of Appeals
Tarrant County
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YEARY, J., filed a dissenting opinion.

I disagree with the Court’s ultimate decision to dismiss the State’s
petition for discretionary review in this case as improvidently granted.
I believe there is merit to the State’s first ground for review; moreover,
even if I thought the State’s first ground lacked merit, I would remand
the case to the court of appeals to address the State’s second ground in
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the first instance. For these reasons, I respectfully dissent.
I. BACKGROUND
Appellant was accused of “delinquent conduct,” namely, the
offense of aggravated sexual assault of a child younger than fourteen,
committed when he himself was only twelve years old. About two weeks
after the State filed its petition for adjudication, the juvenile court found
Appellant unfit to proceed, and all proceedings in the juvenile court were
stayed. The State never subsequently sought grand jury approval to
assess a determinate sentence, as required by Section 54.04(d)(3) of the
Family Code. See TEX. FAM. CODE § 54.04(d)(3) (requiring grand jury
approval of “delinquent conduct” petition that seeks determinate
sentencing). When Appellant turned 18, while still never having been
adjudicated in the juvenile system, the trial court transferred him to
adult criminal court pursuant to Section 55.44(a) of the Family Code.
See TEX. FAM. CODE § 55.44(a) (requiring juvenile court to transfer
juvenile case to criminal court by the offender’s 18th birthday if he has
been found unfit to proceed in juvenile proceedings and remains so).
But Appellant has proven incompetent to stand trial as an adult
as well, and he has remained in the custody of a mental-health
residential facility. When Appellant reached his 19th birthday, he filed
an application for writ of habeas corpus arguing that he may no longer
be detained in the residential facility. Now that Appellant’s case is
pending in criminal court, the question of how long he may be detained
in the interest of restoring competency to stand trial is governed by
Article 46B.0095 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. art. 46B.0095(a) (providing that an adult offender
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may not be committed for purposes of competency restoration “for a
cumulative period that exceeds the maximum term provided by law for
the offense for which [he] was to be tried”).
Appellant argued that, because the State never obtained grand
jury approval of its petition seeking determinate sentencing as a
juvenile offender, he could not be committed beyond his 19th birthday.
See TEX. HUM. RES. CODE § 245.151(d) (requiring discharge of juveniles
not subject to determinate sentencing “on the person’s 19th birthday”).
The State, in contrast, contended that the “maximum term provided by
law” was forty years—the longest period of time he could be punished as
an adult offender for aggravated sexual assault of a child (a first-degree
felony) committed when he was a juvenile, under Section 55.44(b) of the
Family Code. See TEX. FAM. CODE § 55.44(b) (limiting the punishment of
a juvenile offender tried as an adult under Section 55.44(a) to the
maximum he could have received as a determinate sentence had he been
adjudicated while still in juvenile court).
The criminal district court agreed with the State’s interpretation
of Article 46B.0095(a), and it denied Appellant habeas corpus relief. The
court of appeals reversed, however, agreeing with Appellant’s argument
that Appellant could not have been assessed a determinate sentence at
all in the juvenile justice system in the absence of grand jury approval
of the State’s petition seeking an adjudication of delinquent conduct
with a determinate sentence. Ex parte Brown, 591 S.W.3d 705, 712–13
(Tex. App.—Ft. Worth 2019).
We granted the State’s petition for discretionary review in order
to determine how Article 46B.0095(a) should apply in these
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circumstances. And it is unclear to me, now, what was so “improvident”
about our having granted the State’s petition in the first place.
II. THE STATE’S FIRST GROUND FOR REVIEW 1
A. Article 46B.0095(a), Code of Criminal Procedure
Article 46B.0095(a) speaks expressly to the question of how long
an adult criminal offender may be committed in the expectation that
mental health treatment might restore his competency to stand trial. It
answers that question in a fairly straightforward way, by prohibiting
his commitment “for a cumulative period that exceeds the maximum
term provided by law for the offense for which the defendant was to be
tried[.]” TEX. CODE CRIM. PROC. art. 46B.0095(a) (emphasis added). This
plainly refers to the high end of the range of punishment set out in the
penal provision under which the adult offender was charged.
This Court practically said as much in Ex parte Reinke, 370
S.W.3d 387 (Tex. Crim. App. 2012). There, the Court unanimously held
that enhancement provisions that affect only the punishment range, but
do not raise the level of the offense charged, do not factor into the
equation. Id. at 389. Thus, the word “offense,” for purposes of applying

1 The State’s first ground for review reads, in its entirety:

Article 46B.0095 of the Texas Code of Criminal Procedure allows
for commitment of an incompetent defendant for the “maximum
term provided by law for the offense for which the defendant was
to be tried.” The maximum term for a juvenile adjudicated for a
first-degree felony offense is forty years if the State obtains
grand jury approval for a determinate sentence. What, then, is
“the maximum term provided by law” for determining the length
of mental-health commitment for a juvenile who is accused of a
crime severe enough to be determinate-sentence eligible but is
found unfit to proceed before a grand jury could make a
determinate-sentence finding?
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the above-quoted language from Article 46B.0095(a), means the
statutory provision under which the adult offender “was to be tried” if
not for his incompetency to stand trial. Only when an enhancement
provision actually elevates the grade of the offense, not just the
punishment to which the offender is susceptible, does it affect “the
maximum term provided by law for the offense for which the defendant
was to be tried.” See id. (“We hold that, for the purpose of competence to
be tried, unless the legislature explicitly states that an enhancement
increases not only the punishment range but also the level of the
charged offense, the level of the offense alleged in the indictment is not
altered by the allegation of prior offenses as enhancements.”) (footnote
omitted); TEX. CODE CRIM. PROC. art. 46B.0095(a). It is simply a matter
of looking to the punishment provision of the penal statute and
consulting Chapter 12 of the Penal Code, when appropriate, to identify
the apex of the applicable range of punishment for the statutory offense
for which the defendant would have been prosecuted, but for his
incompetency.
B. Section 55.44(a), Family Code
In my view, Article 46B.0095(a) has the same straightforward
meaning when applied to a still-incompetent juvenile offender who is
transferred into the adult criminal justice system under Section 55.44(a)
of the Family Code. TEX. FAM. CODE § 55.44(a). If he has not yet attained
competency to be adjudicated for certain determinate-sentence eligible
penal offenses by the time of his eighteenth birthday, 2 then his pending

2 That is to say, those offenses enumerated in Section 53.045 of the
Family Code as eligible for determinate sentencing, including the offense
Appellant was alleged to have committed in the State’s petition for
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juvenile proceedings “shall” be transferred to a criminal court. 3 Then,
under Subsection (b) of Section 55.44, the criminal court “shall . . .
institute proceedings under Chapter 46B” of the Code of Criminal
Procedure—the clear implication being that, should his competency
eventually be restored pursuant to that chapter, he may then “stand
trial,” just like an adult offender, for the offense that he had committed
as a juvenile. TEX. FAM. CODE § 55.44(b). 4

adjudication, namely, aggravated sexual assault of a child younger than 14
under Section 22.021 of the Penal Code. TEX. FAM. CODE § 53.045(5); TEX.
PENAL CODE § 22.021(a)(1)(B).

3 Section 55.44(a) of the Family Code reads:

(a) The juvenile court shall transfer all pending proceedings
from the juvenile court to a criminal court on the 18th birthday
of a child for whom the juvenile court or a court to which the
child’s case is referred has ordered inpatient mental health
services or residential care for persons with an intellectual
disability if:

(1) the child is not discharged or currently on
furlough from the facility before reaching 18 years
of age; and

(2) the child is alleged to have engaged in
delinquent conduct that included a violation of a
penal law listed in Section 53.045 and no
adjudication concerning the alleged conduct has
been made.

TEX. FAM. CODE § 55.44(a). Section 53.045(a)(5) of the Family Code lists
aggravated sexual assault among the penal offenses that may constitute
delinquent conduct for purposes of this provision. TEX. FAM. CODE §
53.045(a)(5).

4 Section 55.44(b) of the Family Code, in turn, reads:
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Once the incompetent determinate-sentence-eligible juvenile
offender has been transferred into criminal court, there is nothing in the
language of Article 46B.0095(a) even to suggest that it should operate
any differently in making the determination of how long he may be
committed in the interest of obtaining competency to stand trial as an
adult offender. The answer to that question remains purely a function
of “the maximum term provided by law for the offense for which he was
to be tried” had he been competent. TEX. CODE CRIM. PROC. art.
46B.0095(a) (emphasis added). The maximum term provided by law for
the offense for which Appellant was to be tried—aggravated sexual
assault of a child under fourteen years of age—is 99 years to life. See
TEX. PENAL CODE § 22.021(e) (aggravated sexual assault of a child is a
first-degree felony); id, § 12.32(a) (identifying the high end of the range
of punishment for a first-degree felony as “life or for any term of not
more than 99 years”).
C. Section 54.02, Family Code
But does Section 54.02 of the Family Code somehow affect this

(b) The juvenile court shall send notification of the transfer of
a child under subsection (a) to the facility. The criminal court
shall, before the 91st day after the date of the transfer, institute
proceedings under Chapter 46B, Code of Criminal Procedure. If
those or any subsequent proceedings result in a determination
that the defendant is competent to stand trial, the defendant
may not receive a punishment for the delinquent conduct
described in Subsection (a)(2) that results in confinement for a
period longer than the maximum period of confinement the
defendant could have received if the defendant had been
adjudicated for the delinquent conduct while still a child and
within the jurisdiction of the juvenile court.

TEX. FAM. CODE § 55.44(b).
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straightforward application of Article 46B.0095(a) to Appellant’s case
because he was only twelve years old at the time that he committed his
determinate-sentence-eligible offense? See TEX. FAM. CODE § 54.02
(governing the juvenile court’s waiver of jurisdiction and discretionary
transfer of a juvenile offender to district court for criminal proceedings).
Both the district court and the court of appeals in this case alluded to
Section 54.02 of the Family Code for the proposition that Appellant
simply could not be assessed the same punishment as an adult, since he
could never have been transferred to the criminal court’s jurisdiction
pursuant to that Section. See Findings of Fact and Conclusions of Law
of the District Court, at 6 (observing that Appellant was too young an
offender to be eligible to be certified as an adult and transferred to
criminal court under Section 54.02, Subsections (a)(2), (h), & (j)(2) of the
Family Code); Brown, 591 S.W.3d at 708 (citing Section 54.02 for the
proposition that Appellant’s “age alone kept him from ever being tried
as an adult”); see also State’s Brief at 18 n.1 (arguing that Appellant
may not receive the maximum adult penalty for a first-degree felony
because of the operation of Section 54.02).
The answer is no. Section 54.02 has no effect. Nothing in Section
54.02 of the Family Code explicitly prohibits punishing a twelve-year-
old determinate-sentence-eligible juvenile offender as an adult offender,
as the courts below believed. It simply prohibits a juvenile court from
waiving its jurisdiction over such a juvenile offender and exercising its
discretion to transfer him to adult criminal court for trial.
But the juvenile court did not exercise discretion to transfer
Appellant to the jurisdiction of the criminal court pursuant to Section
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54.02. Instead, Appellant’s transfer to criminal court was mandated by
Section 55.44(a). The limitations of Section 54.02 simply have no
application in this context. It is true, of course, that Section 55.44(b)
places its own limitation on the punishment of a juvenile offender who
has been transferred into criminal court pursuant to its own provisions,
as I explain in the next section. But Section 55.44(b) does not prohibit
punishing him as an adult altogether, as Section 54.02 does; and its
limitation (on his transfer to adult court for regular criminal
proceedings, as opposed to on the possible range of punishment he may
receive) is not based on the fact that he was only twelve years old at the
time of the offense.
D. Section 55.44(b), Family Code
Under Section 55.44(b), the determinate-sentence-eligible
juvenile offender who is transferred to criminal court under Section
55.44(a), and later attains competency to stand trial and is tried and
convicted in criminal court, may not be punished to the full extent of a
comparable adult offender. Subsection (b) of Section 55.44 of the Family
Code provides that he “may not receive a punishment” for the
determinate-sentence-eligible offense he committed as a juvenile “that
results in confinement for a period longer than the maximum period of
confinement [he] could have received” had his offense been adjudicated
while he was still in the juvenile court. TEX. FAM. CODE § 55.44(b).
Accordingly, the State argues that Appellant may be committed for up
to forty years, which is the longest period of time he could possibly be
confined as punishment for a first-degree felony under a determinate
sentence as a delinquent juvenile offender. TEX. FAM. CODE §
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54.04(d)(3)(A)(ii). 5 The State’s argument thus mistakenly presupposes
that Section 55.44(b) “provides” the “law for the offense” for which
Appellant “was to be tried,” as a function of Article 46B.0095(a).
Appellant shares this mistaken presupposition. But he argues
that the forty-year maximum sentence under Section 54.04(d)(3)(A)(ii)
is conditioned by Section 54.04(d)(3) upon a grand jury approval of the
petition for adjudication of the juvenile. See TEX. FAM. CODE § 53.04(a)
(providing for a petition for an adjudication hearing for a child alleged
to have engaged in delinquent conduct); § 53.045(a)(5) (authorizing the
prosecutor to refer a petition alleging aggravated sexual assault to the
grand jury); § 54.04(d)(3) (requiring grand jury approval of a Section
53.045 petition before authorizing the prosecutor to pursue determinate-
sentencing punishment under Section 54.04(d)(3)(A)). Because there
was no grand jury approval of the petition in this case, Appellant argues,
the forty-year maximum period that the State argues he could be
confined for, under Section 55.44(b), exceeds “the maximum period of
confinement [he] could have received” had he “been adjudicated for the
delinquent conduct while still a child and within the jurisdiction of the
juvenile court.” TEX. FAM. CODE § 55.44(b). The court of appeals
essentially endorsed this argument. Brown, 591 S.W.3d at 712–13.
But that presupposition is unwarranted. The issue is not what
punishment he “could have received” in juvenile court, had he never
been transferred to criminal court but was instead timely adjudicated in
the juvenile court system. He is no longer in juvenile court. Appellant

5 Under this provision, a juvenile court may assess a determinate
sentence of “not more than 40 years if the [delinquent] conduct constitutes . . .
a felony of the first degree[.]” TEX. FAM. CODE § 54.04(d)(3)(A)(ii).
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has not attained competency under Chapter 46B of the Code of Criminal
Procedure, and, according to the parties, he probably never will. Now
that he has been transferred to criminal court, the question is only how
long he may be committed, in the interest of attaining competency, to be
tried there—as an adult. Article 46B.0095(a) of the Code of Criminal
Procedure answers that question in the same way for the juvenile
offender who has been mandatorily transferred to adult criminal court
under Section 55.44(a) as it does for the ordinary adult offender: by
reference to “the maximum term provided by law for the offense for
which” the formerly juvenile offender “was to be tried[,]” albeit pursuant
to his transfer to the adult system under Section 55.44(a) of the Family
Code—here, 99 years to life. (emphasis added).
It would be inconsistent with the language of Article 46B.0095(a)
to tie the limit of Appellant’s confinement for purposes of attaining
competency (as the court of appeals did) to the length of time that he as
a unique individual—in this case an offender who committed his offense
as a 12-year-old juvenile—could be sentenced to serve for the offense for
which he was to be tried. This Court seems to have previously rejected
that approach to the meaning of Article 46B.0095(a). See Reinke, 370
S.W.3d at 389 (deciding that the level of the offense is not altered by
punishment enhancement provisions that merely alter the range of
punishment in a given case.). And the court of appeals seems to have
failed to understand the proper import of that decision in the context of
this case.
Just as we would not consider sentence enhancements for adult
offenders, we should not consider sentence limitations for juvenile
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offenders. Unless a provision changes the actual level or grade of the
offense, what matters is the objective limits provided by law for “the
offense” for which the person was to be tried. Courts need not struggle
to find the limits or the potential enhancements of punishment that
might be imposed on any unique, individual offender. They only need to
resort to the range of punishment provided by law for the offense at
issue.
And it simply does not matter whether a grand jury has approved
the charges brought against Appellant in the juvenile delinquent-
conduct petition. See TEX. FAM. CODE § 54.04(d)(3) (requiring grand jury
approval of a juvenile petition seeking determinate sentencing for
Section 53.045 offenses). Should he ever attain competency to stand trial
in the adult criminal court for his determinate-sentence-eligible offense,
and the State should commence to put him to trial, he may then invoke
his right under Article II, Section 10 of the Texas Constitution to be tried
only on an indictment returned by a grand jury. See TEX. CONST. art. I,
§ 10 (“and no person shall be held to answer for a criminal offense, unless
on an indictment of a grand jury”). For now, the question is simply how
long he may be committed in order to attain his competency to be tried
in criminal court in the first place. Article 46B.0095(a) answers that
question without reference to any provision of the Family Code,
including Section 54.04(d)(3)’s requirement of grand jury approval for a
juvenile delinquency petition that alleges a determinate-sentence-
eligible offense listed in Section 53.045 of the Family Code. The district
court did not err to deny habeas corpus relief in this case, and this Court
should reverse the judgment of the court of appeals that it did.
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III. THE STATE’S SECOND GROUND FOR REVIEW 6
Because I would affirm the district court’s denial of habeas corpus
relief on the basis of the State’s first ground alone, I need not address
the State’s second ground for review. But if I were to reject the State’s
first ground, I would remand the case for the court of appeals to address,
in the first instance, the merits of the State’s second ground.
In its second ground, the State complains that the court of appeals
failed even to address its secondary argument on appeal: that, under the
circumstances, the State should be excused from obtaining grand jury
approval, because the stay of the juvenile proceedings that the district
court implemented because of Appellant’s incompetency prevented the
State from seeking grand jury approval of its petition for juvenile
delinquent adjudication. State’s Brief at 24. Indeed, the court of appeals
expressly declined to address this argument. See Brown, 591 S.W.3d at
709 n.6 (“The parties dispute the stay’s scope and whether the State
could have worked around the stay with the juvenile court’s permission,
but we do not resolve those issues. Whatever the reason, the State did
not obtain grand-jury approval.”).
Rather than address the merits of this ground for the first time
on discretionary review, the Court should remand the case with
instructions to the court of appeals to address it in the first instance,
subject to our discretionary review later, if necessary. It seems to me

6 The State’s second ground for review reads: “Should the Second Court
of Appeals have considered the State’s defense that it was prohibited from
pursuing a determinate-sentence finding from the grand jury because the
juvenile was found unfit to proceed and the judicial proceedings were stayed
as a matter of law?”
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that the proper resolution of the State’s second ground is far from
obvious. Under those circumstances, this Court has customarily
declined to review an issue that the court of appeals did not resolve. See
Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013)
(observing that, in its discretionary review capacity, this Court reviews
“decisions” of the courts of appeals, and it does not ordinarily review
issues not yet addressed in the lower appellate court, although “there
are exceptions to this practice, and when the proper resolution of the
remaining issue is clear, we will sometimes dispose of the case in the
name of judicial economy”).
For these reasons, I respectfully dissent to the Court’s dismissal
of the State’s petition for discretionary review as improvidently granted.

FILED: October 12, 2022
PUBLISH