Opinion
No. 02-03-112-CV
Delivered: December 18, 2003.
Appeal from the 323rd District Court of Tarrant County.
Swanda Swanda, P.C., and Dean Swanda, Attorney for Appellant.
Tim Curry, Criminal District Attorney; Charles M. Mallin, Anne Swenson, David M. Curl, and Rebecca Mcintire, Attorneys for Appellee.
Panel F: HOLMAN, GARDNER, and WALKER, JJ.
MEMORANDUM OPINION
See Tex.R.App.P. 47.4.
Appellant M.D.H. was charged with misdemeanor assault on a family member and resisting arrest. Prior to the adjudication hearing, the State waived the assault charge, and Appellant stipulated to the State's evidence on the resisting arrest charge. The trial court, sitting without a jury, found that Appellant engaged in delinquent conduct by resisting arrest. At the disposition hearing, the trial court reviewed Appellant's social history report, and determined that Appellant had two previous delinquency adjudications, both for misdemeanor assault/family violence. Appellant was on probation for the second prior offense when she committed the present offense of resisting arrest. The trial court committed Appellant to an indeterminate sentence in the Texas Youth Commission (TYC). In five issues, Appellant complains of the legal and factual sufficiency of the evidence to support the adjudication and disposition of her case. We affirm.
STANDARD OF REVIEW
In the adjudication phase of a juvenile case, the criminal legal and factual sufficiency standards of review are employed. In re J.D.P., 85 S.W.3d 420, 422-23 (Tex. App.-Fort Worth 2002, no pet.); In re G.A.T., 16 S.W.3d 818, 828 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim. App.), cert. denied, 522 U.S. 844 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89 (1979).
In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. In performing this review, we are to give due deference to the fact finder's determinations. Id. at 8-9; Clewis, 922 S.W.2d at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
In the disposition phase of a juvenile case, we review the evidence under the civil standard. J.D.P., 85 S.W.3d at 426. In reviewing the legal sufficiency, we therefore consider only the evidence and inferences tending to support the findings under attack and set aside the judgment only if there is no evidence of probative force to support the findings. Id.; see In re A.S., 954 S.W.2d 855, 858 (Tex. App.-El Paso 1997, no pet.); In re S.A.M., 933 S.W.2d 744, 745 (Tex. App.-San Antonio 1996, no writ). In reviewing Appellant's factual sufficiency claim, we consider and weigh all the evidence and set aside the judgment only if the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. J.D.P., 85 S.W.3d at 426; In re T.K.E., 5 S.W.3d 782, 784 (Tex. App.-San Antonio 1999, no pet.); In re K.L.C., 972 S.W.2d 203, 206 (Tex. App.-Beaumont 1998, no pet.); A.S., 954 S.W.2d at 862.
Appellant, in her second issue, argues that, when reviewing a factual sufficiency challenge where the burden of proof at trial was beyond a reasonable doubt, courts should view the evidence in a neutral light and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Appellant contends that we should apply the standard of review set forth by the Texas Supreme Court for parental termination cases, which asks whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the State's claims. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). The supreme court was clear, however, that this standard applies to parental-right terminations, for which the burden of proof at trial is clear and convincing evidence. Id. We decline Appellant's invitation to adopt a new standard of review for juvenile adjudications, and instead, follow the standards this court has followed in the past. J.D.P., 85 S.W.3d at 422; In re C.J.H., 79 S.W.3d 698, 702-03 (Tex. App.-Fort Worth 2002, no pet.); In re J.S., 35 S.W.3d 287, 292 (Tex. App.-Fort Worth 2001, no pet.). We overrule Appellant's second issue.
Discussion
In Appellant's first and third issues, she argues that the evidence was legally and factually insufficient to support a conviction for resisting arrest. Appellant was adjudicated delinquent after the trial court found that she was guilty of resisting arrest as defined by section 38.03 of the Texas Penal Code: (a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
Tex. Penal Code Ann. § 38.03(a) (Vernon 2003).
Although Appellant signed a "Stipulation of Evidence", she argues that she did not stipulate to the entire record and asks us to disregard portions of the record. Appellant's testimony at trial, however, makes it clear that she did stipulate to the entire record:
THE COURT: I understand you're trying to tell me your side of the story, but if we're going to stipulate to the evidence today, then the only evidence that I can consider is what the District Attorney has just told me. That's what I need to consider is what those witnesses would say is what happened from their perspective, and that's the evidence that I can consider in finding whether or not you broke the law. Do you understand that?
[APPELLANT]: Yes, ma'am.
THE COURT: And is that how you want to proceed today?
[APPELLANT'S ATTORNEY]: Can I have just a minute, Your Honor?
THE COURT: You may.
(Off-the-record discussion here.)
THE COURT: All right. Is that how you want to proceed today, with me considering what the D.A.'s evidence is?
[APPELLANT]: Yes, ma'am.
In light of Appellant's signed Stipulation of Evidence and her testimony at trial, we will consider all of the State's evidence presented at trial.
The stipulated evidence reflects that two Hurst police officers were dispatched to a residence in Hurst, Texas, on February 11, 2003, regarding a domestic disturbance. The officers arrived and observed Appellant's sister, Miranda, lying on the floor crying. Miranda, pregnant at the time, told the officers that Appellant kicked her in the crotch area. Miranda was transported to the hospital, and the officers informed Appellant that she was under arrest. Appellant stated that she was not going and began screaming. As one of the officers reached out for Appellant's arm, she jerked it away and attempted to strike the officer with her hand The struggle moved outside the residence, and the officers were eventually able to subdue Appellant and place her under arrest. The stipulated evidence establishes that Appellant intentionally prevented the officers from arresting her by pulling away and by striking at one of the officers. Under these facts, there was factually and legally sufficient evidence to show that Appellant resisted arrest. See id. We overrule Appellant's first and third issues.
In Appellant's fourth and fifth issues, she complains that the trial court erred in admitting evidence regarding her two prior delinquent adjudications because the State failed to plead support for committing Appellant to TYC. Under the Texas Family Code, the trial court can commit a juvenile to TYC for committing a misdemeanor when the court finds the juvenile "has been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of misdemeanor on at least two previous occasions." Tex. Fam. Code Ann. § 54.04(s)(1) (Vernon Supp. 2004). Appellant claims that the State failed to give her notice in its pleadings that it was going to seek to enhance her punishment by alleging two prior misdemeanors. As a result, Appellant argues that the trial court violated her due process rights under the United States Constitution and notice requirements of the Texas Family Code in considering evidence of the two prior adjudications. U.S. Const. amends. V, VI, XIV, § 1; Tex. Fam. Code Ann. §§ 54.04(d)(2), 54.04(s), 54.04(t). We do not address the merits of Appellants fourth and fifth issues because she did not preserve her complaint with a timely and specific objection. See Tex.R.App.P. 33.1.
Appeals in juvenile delinquency proceedings are governed by the rules of civil procedure. Tex. Fam. Code Ann. § 51.17(a). To preserve error for appellate review, an appellant must make a timely, specific objection, and obtain an adverse ruling. Tex.R.App.P. 33.1; In re B.L.D., 113 S.W.3d 340, 345 (Tex. 2003); In re J.F.C., 96 S.W.3d 256, 287 (Tex. 2002) (Schneider, J., dissenting). However, appellate courts may consider unpreserved error that is fundamental. J.F.C., 96 S.W.3d at 287; McCauley v. Consol. Underwriters, 304 S.W.2d 265, 266 (Tex. 1957).
Substantively, public-interest-based fundamental error is rare, implicated only when our most significant state public interests are at stake. The meaning of the `public interest' that is adversely affected must be extremely circumscribed, or the exception would swallow the rule. Thus, it cannot be enough to allege that an error violates a party's constitutional rights.
J.F.C., 96 S.W.3d at 292. Both the Texas Supreme Court and the United States Supreme Court have held that constitutional arguments that are not preserved in the lower courts may be waived. In re L.M.I., 46 Tex. Sup.Ct. J. 1164, 2003 WL 22145240, at *3 (Tex. Sept. 18, 2003) (citing Webb v. Webb, 451 U.S. 493, 496-97, 101 S.Ct. 1889, 1891-92 (1981)) (holding that constitutional error was waived, even though petitioner repeatedly used the phrase "full faith and credit," because petitioner did not cite to the federal constitution or to any cases relying on the Full Faith and Credit Clause of the federal Constitution); Tex. Dep't of Protective Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (holding constitutional claim that paternity suit should not be barred by statute of limitations is waived by failing to raise the issue before the trial court).
The record reflects that Appellant did not make an objection to the trial court's review of her prior delinquency adjudications at any time during the adjudication or disposition phases of the trial. Prior to admitting Appellant's social history into evidence, the trial judge asked Appellant's counsel, "because I've been referring to it so much, I'm going to admit a copy of the social history and the psychological [report] as the Court's Exhibit Number One. Is there any objections to that?" Appellant's counsel replied, "No, Your Honor." Accordingly, Appellant has waived our review of these issues. We overrule Appellant's fourth and fifth issues.
Conclusion
Having overruled all of Appellant's issues, we affirm the trial court's judgment.