In re K.H.

• Decision Date: 26 July 2005
• Docket Number: No. 06-04-00103-CV.,06-04-00103-CV.
• Citation: 169 S.W.3d 459
• Parties: In the Matter of K. H., a Child.
• Court: Texas Supreme Court

169 S.W.3d 459

In the Matter of K. H., a Child.

No. 06-04-00103-CV.

Court of Appeals of Texas, Texarkana.

Submitted March 25, 2005.

Decided July 26, 2005.

COPYRIGHT MATERIAL OMITTED

Tim Cone, Gilmer, for Appellant.

William M. Jennings, District Attorney, Ray Bowman, Assistant District Attorney, Longview, for Appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

K. H., a twelve-year-old boy, appeals from his adjudication for the offense of retaliation. A jury found that K.H. engaged in delinquent conduct, and at a later disposition hearing, the trial court committed K.H. to the Texas Youth Commission. K.H. contends on appeal the evidence is legally and factually insufficient to prove he committed the criminal act.

Proceedings brought under the Texas Juvenile Justice Code, Title 3 of the Texas Family Code, are hybrid actions. They are brought as civil proceedings, but are "quasi-criminal" in nature.¹ As noted by the San Antonio court in In re K.T., 107 S.W.3d 65, 67 (Tex.App.-San Antonio 2003, no pet.), the language used to describe the proceedings are euphemisms to describe juvenile proceedings that are parallel to criminal proceedings: the adjudication is the trial, while the disposition is equivalent to a sentencing proceeding. Nonetheless, the result of applying euphemisms, however well-intended, can be confusing.

Under the applicable statutes and caselaw, civil and criminal rules apply at different stages of the same proceeding. Section 51.17 of the Family Code provides that the Texas Rules of Civil Procedure shall apply, the Texas Code of Criminal Procedure and the applicable criminal caselaw shall govern the discovery process, and the Texas Rules of Evidence (as applied to criminal cases) shall be used during the judicial proceeding. TEX. FAM.CODE ANN. § 51.17 (Vernon Supp.2004-2005). Section 54.03 of the Family Code provides that the burden of proof in an adjudication hearing is the criminal burden: beyond a reasonable doubt. TEX. FAM.CODE ANN. § 54.03 (Vernon Supp.2004-2005). If the trier of fact determines the juvenile engaged in delinquent conduct, a separate disposition hearing is conducted subsequent to the adjudication hearing. TEX. FAM.CODE ANN. §§ 54.03(h), 54.04 (Vernon Supp.2004-2005). It is clear that, in reviewing the disposition portion of the proceeding, we determine whether the trial court abused its discretion in the disposition of the juvenile. We do not disturb the juvenile court's disposition order in the absence of an abuse of discretion. In re H.R.C., 153 S.W.3d 266, 269 (Tex.App.-El Paso 2004, no pet.); In re J.D.P., 85 S.W.3d 420, 426 (Tex.App.-Fort Worth 2002, no pet.); In re J.R., 907 S.W.2d 107, 110 (Tex.App.-Austin 1995, no writ); In re E.F., 535 S.W.2d 213, 215 (Tex.Civ.App.-Corpus Christi 1976, no writ).

The result of this patchwork arrangement is, predictably, a certain lack of clarity among courts reviewing different stages of the process about the standards to be applied. It is within this context that we address an appeal brought solely on the adjudication portion of the process.

In reviewing the adjudication itself, and the findings made as a result of the adjudication, most courts apply a criminal legal/factual sufficiency review. Even though the appeal of juvenile court orders are generally treated as civil cases, adjudications of delinquency in juvenile cases are statutorily based on the criminal standard of proof. See TEX. FAM.CODE ANN. § 54.03(f). Thus, an adjudication should be reviewed by applying the same standards applicable to sufficiency of the evidence challenges in criminal cases. In re J.B.M., 157 S.W.3d 823 (Tex.App.-Fort Worth 2005, no pet.); In re N.M.K., 137 S.W.3d 696, 697 (Tex.App.-Eastland 2004, no pet.); In re Z.L.B., 115 S.W.3d 188, 190 (Tex.App.-Dallas 2003, no pet.); In re M.C.L., 110 S.W.3d 591, 594 (Tex.App.-Austin 2003, no pet.).

When both legal and factual sufficiency are challenged, we first determine whether the evidence is legally sufficient to support the verdict. Rivera v. State, 59 S.W.3d 268, 273 (Tex.App.-Texarkana 2001, pet. ref'd). It is only if we find the evidence legally sufficient that we then consider the factual sufficiency challenge. In other words, if we find the evidence legally insufficient, we need not address the factual sufficiency challenge.²

In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000).

In this case, K.H. was charged with the offense of retaliation pursuant to Section 36.06 of the Penal Code. That statute provides, in relevant part, as follows:

(a) A person commits an offense if he intentionally or knowingly. . . threatens to harm another . . .:

(1) in retaliation for or on account of the . . . status of another as a:

(A) . . . witness, prospective witness, . . .; or

(B) person . . . who the actor knows intends to report the occurrence of a crime; or

(2) to prevent or delay the service of another as a:

. . . .

(B) person . . . who the actor knows intends to report the occurrence of a crime.

TEX. PEN.CODE ANN. § 36.06 (Vernon Supp.2004-2005).

The State's evidence showed that K.H. possessed a gun on school premises and displayed that gun to C. J., and told C.J. he would use the gun if C.J. told anyone about it. The evidence further showed that, while the gun had the appearance of a firearm, it was, in fact, an inoperable pellet gun.

The State's petition accused K.H. of threatening to harm C.J. "in retaliation for or on account of the status of [C.J.] as a person who was a witness to a crime, the same being a Third Degree felony if committed as an adult." Alternatively, the State accused K.H. of threatening to harm C.J. "to prevent and delay the service of [C.J.] as a person who [K.H.] knew intended to report the occurrence of a crime, the same being a Third Degree felony if committed as an adult." The jury charge explicitly sets out both options and then goes on to authorize the jury to find K.H. guilty beyond a reasonable doubt, "as alleged in the Petition."

As we will discuss later, the first accusation is not actionable under the retaliation statute. The statute does not contemplate that the offense occurs if an actor threatens a person because such person is a witness to a crime, but instead because the person is a witness at trial. However, we first address the contention common to both accusations.

In his argument under both accusations, K.H. contends that, because each of the underlying accusations alleged he had committed a crime, and because there was no evidence he had committed such a crime, the State failed to meet its burden of proof and the evidence cannot support the finding in the adjudication that he was guilty. We agree.

The question raised under both the first and second accusations is whether the statute requires the state to show that the actor actually committed a crime, or if it was sufficient that the person thought the act reported was a crime. Neither party has directed us to any cases directly on point, and we have found none.³

The plain language of the statute applies solely to the occurrence of "a crime." It does not implicate an act that a person might reasonably believe to be a crime. The evidence is undisputed that K.H. took an inoperable pellet gun to school. K.H. was not charged with a crime in connection with this act, and there was no suggestion or any proof that the act was, in fact, a crime. The State's petition did not identify "the crime."

The crime suggested by the State in its closing argument to the jury is possessing a weapon on the premises of a school, a violation of TEX. PEN.CODE ANN. § 46.03 (Vernon Supp.2004-2005). While that offense is one punishable as a third degree felony, it expressly describes a firearm as the kind of gun prohibited on school premises. A firearm is "any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use." TEX. PEN.CODE ANN. § 46.01(3) (Vernon 2003). James Mathis, the police officer who seized the pellet gun from K.H.'s backpack, agreed in his testimony that the pellet is propelled from this gun by compressed air. K.H. clearly did not violate this statute.

"The crime" also could not have been unlawfully carrying a handgun, in violation of TEX. PEN.CODE ANN. § 46.02 (Vernon 2003), as a handgun is defined as "any firearm that is designed, made, or adapted to be fired with one hand." TEX. PEN.CODE ANN. § 46.01(5) (Vernon 2003).

The State suggests in its brief K.H. could have been charged with the offense of disorderly conduct and correctly writes, "It is disorderly conduct, and a crime, to display a firearm or other deadly weapon in a public place in a manner calculated to alarm." See TEX. PEN.CODE ANN. § 42.01(a)(8) (Vernon Supp.2004-2005). "Deadly weapon" is defined as:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

TEX. PEN.CODE ANN. § 1.07(a)(17) (Vernon Supp.2004-2005).

As stated above, the gun in this case clearly was not a firearm. And, while the State may have been able to prove K. H.'s gun was "capable of causing . . . serious bodily injury,"⁴ the record in this case is devoid of any such evidence. The State cites Corte v. State, 630 S.W.2d 690, 691-92 (Tex.App.-Houston [1st Dist.] 1981, pet. ref'd), for the proposition that even an unloaded pellet gun can be a deadly weapon. In that case, however, the First court pointed out that an investigator testified the gun used "was capable of...