In re B.P.H.

• Decision Date: 15 August 2002
• Docket Number: No. 2-01-241-CV.,2-01-241-CV.
• Parties: In the Matter of B.P.H.
• Court: Texas Court of Appeals

83 S.W.3d 400

In the Matter of B.P.H.

No. 2-01-241-CV.

Court of Appeals of Texas, Fort Worth.

August 15, 2002.

COPYRIGHT MATERIAL OMITTED

The Britten Law Firm and Lacy D. Britten, Fort Worth, for appellant.

Tim Curry, Criminal District Attorney; Charles Mallin, Chief, Appellate Division; Anne E. Swenson and Elizabeth A. Berry, Assistant District Attorneys of Tarrant County, for appellee.

PANEL B: DAY, LIVINGSTON, and GARDNER, JJ.

OPINION

ANNE GARDNER, Justice.

INTRODUCTION

This is a juvenile appeal from an adjudication of delinquent conduct. The juvenile court found thirteen-year-old B.P.H. (hereafter "Appellant") engaged in delinquent conduct by committing the offenses of false report and retaliation and granted him probation not to exceed twelve months.¹ In four points, Appellant complains: (1) the trial court erred by denying his motion to quash; (2) the evidence is legally and factually insufficient to prove intent to commit retaliation; (3) the evidence is legally and factually insufficient to prove A.M. was a witness as required by the retaliation statute; and (4) the trial court erred by signing and entering findings of fact and conclusions of law that do not comport with the judgment. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

T.U., a fourteen-year-old student at Colleyville Middle School, testified that, on or about Friday, February 16, 2001, during fourth period English class, she overheard Appellant and a fellow classmate, C.P., talking about making cocktail bombs and other "Columbine-like activity."² Shortly afterward, Appellant placed a spiral notebook on T.U.'s desk opened to a page that had a map of the upstairs classrooms of the school drawn on it. The map detailed Appellant and C.P.'s plan to kill several students and teachers. During class, Appellant, C.P., and T.U. exchanged notes discussing the boys' plans to attack the school. After English class, T.U. confronted Appellant and C.P. about their plans. C.P. threatened T.U., saying that if she told anyone about the map, he would shoot her.

Tuesday, February 20, 2001, after a holiday weekend, T.U. was walking by C.P. during Advisory period when C.P. said, "Boom, boom, goes Bubbles," or "Uh-oh, Bubbles is dead.³ A.M., also a fourteen-year-old student at Colleyville Middle School, testified that, during lunch, he engaged in a conversation with Appellant and C.P. about "a hit list." Appellant told A.M. that he and C.P. were planning to kill a bunch of people on TAAS testing day in March.

After lunch, A.M. was picking up attendance cards from the classrooms when he saw Appellant and C.P. together again. They were upstairs leaning against a wall and talking about the hit list and the map. A.M. saw C.P. working on the hit list and Appellant working on the map. According to A.M.'s testimony, Appellant then took out a knife and told A.M., "if you tell, I'm going to kill you and your mother and your father."

T.U. testified that, later that same day, she noticed Appellant and C.P. coming from the direction of her locker. T.U. opened her locker and discovered another map and a list of names. The list of names was labeled the "K-Group." T.U., now more scared than before, took the map and the list to give to the vice-principal, Mike Fitzwater. After T.U. was in Fitzwater's office, A.M. entered and told the vice-principal about Appellant and C.P.'s plan and Appellant's threat to kill him and his family if he told.

Officer Cheryl Ingalsbe, of the Colleyville Police Department, the school resource officer, was already in Fitzwater's office during both T.U.'s and A.M.'s discussions with Fitzwater. After listening to T.U. describe Appellant and C.P.'s plan to kill people in school, Officer Ingalsbe went to locate the two boys. She found Appellant in his math class but, because C.P. was truant from class and could not be found, Officer Ingalsbe called C.P.'s mother at work.

Officer Ingalsbe then took Appellant to the Colleyville Police Department and placed him in an interview room. Shortly thereafter, C.P.'s mother arrived with C.P. With both Appellant and C.P. together in the interview room, Officer Ingalsbe began her paperwork on the two juveniles. While Appellant and C.P. were together they were laughing and "cutting up." Officer Ingalsbe had not yet began to ask them questions when Appellant started describing the plan. Appellant said they were going to wait until Officer Ingalsbe was in a DARE class in the sixth grade hallway, then they were going to go into the office and "take out" the office staff so they could not call her. After they were finished with the office staff, they were going to go upstairs and finish killing people and taking hostages from the list. Appellant said they were going to rape the hostages before they released them. As Officer Ingalsbe finished her pre-questioning paperwork, Appellant and C.P. were still laughing. Appellant asked Officer Ingalsbe if he was going to be in the news and stated he "always wanted to be on television."

On February 21, 2001, the juvenile court held a detention hearing wherein it found probable cause for delinquency and ordered Appellant detained in the Tarrant County Juvenile Detention Center. Five days later, the juvenile court ordered electronic monitoring and home detention for Appellant. On April 12, 2001, the State filed its Second Amended Petition alleging Appellant retaliated against both T.U. and A.M., made a false report, and made a terroristic threat towards both T.U. and A.M.

Prior to the adjudication hearing before the court, Appellant filed a motion to quash the false report allegation; the trial court denied the motion. After a one-day trial, on April 20, 2001, the juvenile court found beyond a reasonable doubt that, having committed the offenses of false report and retaliation, Appellant was delinquent.⁴ The juvenile court assessed punishment at twelve months' probation. Appellant filed a motion for new trial alleging the evidence was factually insufficient to support the offenses of false report and retaliation, and that the trial court erred by failing to grant the motion to quash. The trial court denied Appellant's motion. Appellant timely filed a notice of appeal.

ANALYSIS

Motion to Quash

In Appellant's first point, he contends the trial court erred by denying his motion to quash the false report allegation in the State's second amended petition. Appellant argues the trial court should have granted his motion because the State failed to specify to whom the alleged false report was made and the nature of the offense which Appellant was alleged to have communicated. Appellant insists the State's failure to provide this information does not provide fair notice and is in violation of the Texas Family Code and due process. We disagree.

A motion to quash should be granted only where the language regarding the accused's conduct is so vague or indefinite that it fails to give the accused adequate notice of the acts he allegedly committed. Smith v. State, 895 S.W.2d 449, 453 (Tex.App.-Dallas 1995, pet. ref'd). We will uphold the trial court's denial of a motion to quash as long as it did not abuse its discretion. Id.; Williams v. State, 834 S.W.2d 613, 615 (Tex.App.-San Antonio 1992, no pet.).

In a juvenile proceeding, petitions for an adjudication hearing are governed by the family code. L.G.R. v. State, 724 S.W.2d 775, 776 (Tex.1987). Accordingly, the petition must state "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." TEX. FAM.CODE ANN. § 53.04(d)(1) (Vernon 1996). This provision is mandatory. In re D.W.M., 562 S.W.2d 851, 852 (Tex.1978); M.A.V., Jr. v. Webb County Court at Law, 842 S.W.2d 739, 745 (Tex.App.-San Antonio 1992, writ denied); see also In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967) (holding that due process requires reasonably particular notice in juvenile cases). Notably, this standard is less stringent than the statute applicable to criminal indictments. In re A.B., 868 S.W.2d 938, 940 (Tex.App.-Fort Worth 1994, no writ).

Despite the civil nature of juvenile proceedings, the Supreme Court of Texas has recognized a juvenile's right to the essentials of due process and fair treatment. L.G.R., 724 S.W.2d at 776; In re J.R.R., 696 S.W.2d 382, 383-84 (Tex.1985). Due process requires that a juvenile must be informed of the specific issues he is to meet. Gault, 387 U.S. at 33, 87 S.Ct. at 1446; Carrillo v. State, 480 S.W.2d 612, 615 (Tex.1972); M.A.V.,. 842 S.W.2d at 745. It is not, however, essential that the petition allege an offense with the particularity of a criminal indictment. A.B., 868 S.W.2d at 940; M.A.V.,. 842 S.W.2d at 745. The charge need only be reasonable and definite. M.A.V., 842 S.W.2d at 745; Robinson v. State, 204 S.W.2d 981, 982 (Tex.Civ. App.-Austin 1947, no writ).

Appellant argues that the State had to plead more specific facts in order to provide him with adequate notice. Reasonable particularity, as contemplated by the family code and due process, is satisfied if the State presents allegations in accordance with the penal code; the State is not required to plead additional facts unless they are essential to proper notice. In re A.A., 929 S.W.2d 649, 654 (Tex.App.-San Antonio 1996, no writ); see C.F. v. State, 897 S.W.2d 464, 471 (Tex.App.-El Paso 1995, no writ) (finding petition sufficient for notice in juvenile adjudication for indecency with a child because it identified acts allegedly committed and identified relevant part of penal code violated).

The relevant part of the State's Second Amended Petition provides:

PARAGRAPH THREE: And it is further presented that said child has engaged in delinquent conduct in that the child violated a penal law of this State punishable by imprisonment, towit: Section 42.06 of the Texas Penal Code when on or about the 17th day of February, 2001, in the County of...