G.M.P., Matter of

• Decision Date: 21 September 1995
• Docket Number: No. 14-94-00549-CV,14-94-00549-CV
• Citation: 909 S.W.2d 198
• Parties: In the Matter of G.M.P. (14th Dist.)
• Court: Texas Court of Appeals

Page 198

909 S.W.2d 198

In the Matter of G.M.P.

No. 14-94-00549-CV.

Court of Appeals of Texas Houston (14th Dist.).

Sept. 21, 1995.

Randy Schaffer, Houston, for appellants.

Alan Curry, Houston, for appellees.

Before MURPHY, C.J., and YATES and FOWLER, JJ.

OPINION

FOWLER, Justice.

Our original opinion in this case is withdrawn and this one substituted for it.

This is an appeal from an adjudication of juvenile delinquency for the offense of aggravated sexual assault. Appellant brings seven points of error, asking us to consider whether the evidence is sufficient to sustain the jury's verdict, whether the trial court erred in its rulings on several evidentiary matters, and whether trial counsel rendered ineffective assistance. Because the trial court's errors in the evidentiary rulings probably caused the rendition of an improper verdict, we reverse and dismiss the case for the juvenile court no longer has jurisdiction to hold an adjudication hearing.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, appellant, G.M.P., contends that the adjudication of delinquency is "contrary to the great weight and preponderance of the evidence." The State first argues that appellant had to file a motion for new trial challenging the factual sufficiency of the evidence in order to bring such a complaint on appeal. See In re M.R., 858 S.W.2d 365, 366 (Tex.1993). Appellant did so, thus preserving his complaint for appellate review.

Turning to appellant's point of error, we are faced initially with the question of what standard of review is appropriate in a juvenile adjudication proceeding when reviewing the sufficiency of the evidence. The legislature has deemed that a juvenile adjudication proceeding is primarily civil in nature, although certain aspects of an adjudication proceeding are criminal in nature. Vasquez v. State, 739 S.W.2d 37, 42 (Tex.Crim.App.1987); Robinson v. State, 707 S.W.2d 47, 48-49 (Tex.Crim.App.1986); In re J.R.R., 696 S.W.2d 382, 383 (Tex.1985). For example, because an adjudication of delinquency may result in the juvenile's being deprived of liberty, the juvenile is entitled to certain constitutional protections, as he would be in a criminal trial. Id. (holding a juvenile is afforded protection from double jeopardy). See also TEX.FAM.CODE ANN. § 51.09 (Vernon Supp.1995) (providing that the statement of a juvenile is admissible only when a magistrate has informed him of his constitutional rights); TEX.FAM.CODE ANN. §§ 51.10, 56.01 (Vernon 1986 & Supp.1995) (providing that a juvenile has the right to an attorney, and to have one appointed for him if his family is indigent). Cf. In re D.Z., 869 S.W.2d 561, 566 (Tex.App.--Corpus Christi 1993, writ denied) (stating an order of adjudication is not a conviction of a crime).

The legislature has also mandated that in a juvenile adjudication proceeding the juvenile is presumed innocent unless the State proves its case beyond a reasonable doubt. TEX.FAM.CODE ANN. § 54.03(f) (Vernon 1986). Thus, although the Texas Rules of Civil Procedure govern juvenile adjudication proceedings, TEX.FAM.CODE ANN. § 51.17 (Vernon 1986), and the requirements governing appeals are as in civil cases generally, TEX.FAM.CODE ANN. § 56.01(b) (Vernon 1986), because of the quasi-criminal nature of the proceedings, some appellate courts have applied the standard of review utilized in criminal cases, as articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See In re P.L.W., 851 S.W.2d 383 (Tex.App.--San Antonio 1993, no writ). This inquiry is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993).

Other courts, however, articulate the standard that in juvenile cases, we must view the evidence as a whole to determine whether the State met its burden of proof beyond a reasonable doubt. See In re M.R., 846 S.W.2d 97, 101 (Tex.App.--Fort Worth 1992), writ denied per curiam, 858 S.W.2d 365 (Tex.1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 894, 127 L.Ed.2d 87 (1994); In re S.D.W., 811 S.W.2d 739, 749 (Tex.App.--Houston [1st Dist.] 1991, no writ); In re H.R.A., 790 S.W.2d 102, 103 (Tex.App.--Beaumont 1990, no writ); In re D.L.K., 690 S.W.2d 654, 655 (Tex.App.--Eastland 1985, no writ); In re P.A.S., 566 S.W.2d 14, 16 (Tex.Civ.App.--Amarillo 1978, no writ). We choose to follow this second line of cases.

The afternoon of Monday, January 18, 1993, A.B. ¹ picked up K.B., her ten-year-old son, also the complainant in this case, at the home of a friend. The friend's mother, Mrs. J., told A.B. she was concerned that appellant had behaved inappropriately toward her sons and toward K.B. Appellant is a neighbor of the Bs. and Js., and was sixteen years old at the time of the incident. On the way home, A.B. initiated a discussion with K.B. about inappropriate touching in private areas, and asked him if anyone had ever touched him that way. He denied it at first, but when his mother persisted because she sensed he was not telling the truth, he said that appellant had touched him that way. Later, K.B. told his mother that appellant had licked his rectum, tried to penetrate his rectum with his penis and finger, sucked K.B.'s penis, and wanted K.B. to suck his penis. K.B. said that appellant had promised him $1000 and an arcade game if he would let appellant do those things and not tell anyone. A.B. called the police, who advised her to take K.B. to a hospital for a rape examination. She and K.B.'s father took K.B. to a hospital, but after waiting six hours without being seen, went home and took K.B. to their family doctor the next day. The doctor found no evidence of trauma associated with sexual assault.

A.B. tried to find out when the sexual assault occurred, but K.B. was unsure about the exact date. At first, on that Monday, he said it happened "yesterday," but A.B. knew it could not have happened then because K.B. was with her on Sunday. Eventually, the Bs. narrowed it down to a two to three day time span, with Friday, January 15th the most likely day, as K.B. was out of school and home that day. A.B. testified that although K.B. is a fifth-grader of above average intelligence, he has trouble distinguishing the days of the week. A.B. also testified that K.B. had lied about appellant before: he had falsely accused appellant of running over his foot with a four wheel motorcycle.

K.B. testified that the incident happened "Friday, January 13th--15th." He was off school because of the Martin Luther King holiday, and went to appellant's house with B.J., ² a friend. Appellant said "I guess I'll see you later" to B.J., and B.J. left. K.B. and appellant went to appellant's room. K.B. said appellant's room was on the ground floor, and contained a couch, a bed, a coffee table, and a television hooked up to stereo speakers. The two boys watched television at first, and then appellant told K.B. to go behind the couch and pull down his pants. Appellant then initiated sexual contact with K.B. During the encounter, K.B. said he saw a clock in the room which showed the time was 3:12, and he told appellant he had to go home. Appellant promised K.B. $1000 and a video arcade game, and told him not to tell anyone. K.B. later told his brother he was going to get a video arcade game, although he did not tell him why. On Monday night, K.B. told his mom what happened.

The investigating police officer, Detective Alphonso Amato, testified that after interviewing K.B., he concluded the incident occurred on January 15th.

In his defense, Appellant presented evidence from several witnesses, including his family, friends, and employers, that on Friday, January 15th, he was occupied for the entire day and could not have been home at the time K.B. said the incident happened. Appellant testified on his own behalf that he was away from home the entire day on January 15th from seven in the morning to seven at night, and that he did not have sexual contact with K.B. or offer him money or an arcade game.

In addition, R.P., appellant's father, testified that appellant's room did not contain a coffee table or a clock, as described by K.B. The defense also put on the testimony of K.B.'s family doctor, who stated that he examined K.B. on the 21st of January and found no bruising, tearing, abrasions, or abnormal tenderness, which are usually associated with sexual assault.

In rebuttal, the State first called Mrs. J., who testified that on Monday, January 18th, appellant was at her house with K.B. and her sons, B.J. and H.J. A prior incident with one of her sons had made Mrs. J. uneasy about appellant, and she felt concerned when she saw K.B. sitting on appellant's lap while they were watching television. She also testified that appellant gave her sons a video arcade game sometime in January.

The State then called H.J. to testify about the prior incident referred to by his mother. Appellant was a friend of H.J.'s older brother, B.J. One night appellant was spending the night at the Js.' house, and was sleeping on the floor in B.J.'s room with H.J., and H.J.'s twin brother K.J. H.J. testified that in the night, appellant touched him on the knee and asked if he could touch him somewhere else (H.J. said appellant wanted to touch his "private parts"). Appellant said he would give H.J. things so he would not tell anyone. H.J. refused to let appellant touch him, and got into bed with his brother B.J. Appellant later gave the boys an arcade game.

Resolving conflicts and contradictions in the evidence is left for the trier of fact. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986); Walker v. State, 846 S.W.2d 379, 383 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd). See also Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex.1982). The jury...