H.R.A., Matter of

• Decision Date: 17 May 1990
• Docket Number: No. 09-89-225,09-89-225
• Citation: 790 S.W.2d 102
• Parties: In the Matter of H.R.A., a Juvenile. CV.
• Court: Texas Court of Appeals

Page 102

790 S.W.2d 102

In the Matter of H.R.A., a Juvenile.

No. 09-89-225 CV.

Court of Appeals of Texas Beaumont.

May 17, 1990.

Susan Ward, Lufkin, for appellant.

John Ross Kay, Asst. County Atty., Lufkin, for State.

OPINION

WALKER, Chief Justice.

This is an appeal from a final judgment of the County Court at Law of Angelina County, Texas sitting as a juvenile court. The trial court granted the State's Original Petition that alleged that appellant engaged in delinquent conduct as a juvenile by having committed the offense of aggravated sexual assault upon a child younger than 14 years of age. Appellant himself was thirteen. The victim was 5 years old. The effect of the trial court's ruling was that appellant was found to be a child in need of rehabilitation and placed on a one year probation. The case was tried before the court, appellant having properly waived his right to a trial by jury. Findings of fact and conclusions of law were filed by the trial court. Appellant lists five points of error upon the part of the trial court. We will consider them in numerical order.

Point of error one alleges that the trial court erred in holding the evidence to be sufficient to support a finding that appellant had engaged in delinquent conduct "based upon a conviction of intentionally and knowingly causing the penetration of the anus of J.R.S. (the victim) by appellant's penis because the State failed to prove penetration." The trial court's "Finding of Fact" number three does indeed state, "That H.R.A. did then and there intentionally and knowingly cause the penetration of the anus of J.R.S., a child, by the penis of H.R.A; ...." In reviewing a factual sufficiency question, this Court must consider and weigh all the evidence in the case. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In a juvenile case, the question is whether the evidence considered as a whole shows that the State sustained its burden of proof beyond a reasonable doubt. In the Matter of D.L.K., 690 S.W.2d 654 (Tex.App.--Eastland 1985, no writ); In the Matter of P.A.S., 566 S.W.2d 14 (Tex.App.--Amarillo 1978, no writ). After examining all of the victim's testimony, we feel the following is the key to deciding this point:

Q. (By the State) What room in the house were you in?

A. (Victim) The bathroom; but first in his room.

Q. In his bedroom and then the bathroom?

A. Yes.

Q. Well, can you show us?

A. (indicating)

Q. That's what happened?

A. Yeah.

Q. Did he simply rub his penis on you, or did he go in your body?

A. No, sir.

Q. He didn't go in your body?

A. No.

Q. Did you have all of your clothes off?

A. Yeah.

Q. Did he have all of his clothes off?

A. Yes, sir.

Q. His shirt was off as well as his trousers?

A. Yes, sir.

Q. Did you have your shirt on or off?

A. Off.

Q. So, both of you didn't have any clothing on at all?

A. Uh-huh.

Q. When this took place, were you lying down or standing up?

A. Laying down.

Q. Lying down?

A. Yes.

Q. Did he put his penis inside your bottom or rub it on the outside?

A. Rub it on the outside.

Q. Did it hurt?

A. Uh-huh.

Q. What did you say when he did that?

A. Nothing much. I didn't really say nothing.

Q. Did you say anything when it hurt?

A. No, sir.

Q. But he never put his penis inside you; is that right?

A. Uh-huh.

Q. Did anything funny happen to his tee-tee or penis when this happened?

A. It was getting browner.

Q. Was it harder or softer, if you know?

A. Harder.

The Court: Did he say browner?

Mr. Kay (the State): J., did you say browner?

The Witness: Yes.

We note at the outset two well settled standards of case law. One deals with the concept of "penetration," which is that although penetration must be proved beyond a reasonable doubt, it does not have to be of any particular depth and any penetration, no matter how slight, is sufficient to satisfy the requirement of TEX.PENAL CODE ANN. sec. 22.021 (Vernon Supp.1987). Johnson v. State, 449 S.W.2d 65, 68 (Tex.Crim.App.1969). See Lynch v. State, 150 Tex.Crim. 57, 199 S.W.2d 780 (1938); and Calhoun v. State, 134 Tex.Crim. 423, 115 S.W.2d 965 (1938). The second standard is that in non-jury trials, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. He is authorized to believe or not to believe any or all testimony of the witnesses for either the State or the defense. Mattias v. State, 731 S.W.2d 936, 939 (Tex.Crim.App.1987). Furthermore, a witness may be believed even though some of his testimony may be contradicted and part of his testimony recorded, accepted, and the rest rejected. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). See, Jackson v. State, 505 S.W.2d 916 (Tex.Crim.App.1974). If evidence exists in the record, we will not sit in judgment upon the weight the trial court chooses to give to such evidence, nor upon the fact that he chooses to accept or reject any part of it. Although the victim testified that appellant did not "go inside [his] body," and that appellant did not put his "penis inside [the victim's] bottom," the victim did testify that appellant's rubbing action "hurt," and that appellant's penis got "browner." As the record reflects that appellant is white, the trial court could rationalize from the victims testimony a painful penetration occurred that caused appellant's penis to be covered with fecal matter after inserting it, however slightly, into the victim's anus. Point of error one is overruled.

Point of error two complains that the trial court erred in failing to grant appellant's "Motion to Dismiss" because the State failed to give appellant notice of the charges against him because the State alleges that appellant's criminal conduct violates a nonexistent penal code section. This point is grounded in the fact that the State's petition cited "Section 22.021(a)(5) of the Texas Penal Code" as the location for the offense of which appellant was being accused. In actuality, the Penal Code was amended in 1987 and, as a result, the paragraphs in sec. 22.021 were re-lettered and re-numbered as well as including substantive changes. Appellant complains that because the State's petition uses the old numbering system and tracks the prior statutory language, appellant was not given notice of the elements of the penal law relied upon by the State in violation of TEX.FAM.CODE ANN. sec. 53.04(d)(1) (Vernon 1985). Section 53.04(d)(1) is set out as follows:

(d) The petition must state:

(1) with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts

Furthermore, the landmark case on juvenile justice, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), sets out the standard on "notice" requirements. In Gault, the Supreme Court stated:

Notice, to comply with due process requirements, must be given sufficiently in advance of a scheduled court proceeding so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.

Gault, supra at 387 U.S. 33-34, 87 S.Ct. at 1446-47.

Appellant's reliance on Johnson v. State, 401 S.W.2d 298 (Tex.App.--Houston 1966, no writ) is totally misplaced. In Johnson, the State's petition attempted to allege criminal conduct by stating, "..., and has also habitually violated the penal ordinances of Huntsville, Walker County, Texas." The appellate court correctly recognized that the petition did not allege which penal ordinance of Huntsville had been habitually violated by the juvenile. The appellate court ruled that the trial court had no jurisdiction to adjudge the juvenile under "such an indefinite global charge." It is clear to us that the appellate court did not mean to mandate that a State's petition lacking the correct number of the Penal Code provision, so long as the wording of the charge itself was alleged with sufficient particularity, divested the trial court of jurisdiction to go forward with the proceeding. We hold in this case that the Penal Code section number, correct or not, was surplusage and had nothing to do with the "notice" requirements set out in sec. 53.04(d)(1) or Gault. See, Huffman v. State, 726 S.W.2d 155, 157 (Tex.Crim.App.1987); Krupa v. State, 750 S.W.2d 258, 261 (Tex.App.--Dallas 1988, pet. ref'd at 775 S.W.2d 644, cert. denied 493 U.S. 936, 110 S.Ct. 329, 107 L.Ed.2d 319); Blevins v. State, 672 S.W.2d 828, 830 (Tex.App.--Corpus Christi 1984, no pet.).

With regard to appellant's complaint that the State's petition tracked elements of the repealed statute, thereby also resulting in a "notice" problem, we find no merit. The only difference in the pre-1987 revision of sec. 22.021 and sec. 22.021 as it exists today is that, prior to revision, sec. 22.021 directed the reader to Penal Code sec. 22.011 which defined the offense "Sexual Assault." Section 22.021 merely set out the five ways the offense of "Sexual Assault" became the offense of "Aggravated Sexual Assault." It appears that when sec. 22.021 was revised in 1987, the sec. 22.011 language was moved over to sec. 22.021 so as to circumvent the practice of having to flip back and forth from one section to the other. The only substantive difference we see is that the revised section removed the need for the State to prove that the victim was not the spouse of the actor at the time of the offense. We feel appellant was accorded fairness and due process by the trial court, and that there was no deficiency with regard to "notice" of the charges appellant was to stand trial for. Point of error two is overruled. We now address point of error number four.

Point of error four complains that the evidence is insufficient to prove that appellant "intentionally or knowingly" caused the victim's penis to contact or penetrate appellant's mouth, and evidence is insufficient to prove that the victim did not consent to this act of oral sex. At the outset here, we agree with the State that sec. 22.021 dispenses...