In re S.C.

• Decision Date: 05 July 2007
• Docket Number: No. 06-06-00053-CV.,06-06-00053-CV.
• Citation: 229 S.W.3d 837
• Parties: In the Matter of S.C.
• Court: Texas Court of Appeals

229 S.W.3d 837

In the Matter of S.C.

No. 06-06-00053-CV.

Court of Appeals of Texas, Texarkana.

Submitted May 9, 2007.

Decided July 5, 2007.

Rehearing Overruled August 14, 2007.

Gary L. Waite, Attorney At Law, Paris, TX, for appellant.

Marilee H. Brown, Lamar County Asst. Dist./County Atty., Paris, TX, for appellee.

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

OPINION

Opinion by Chief Justice MORRISS.

Who started the pushing that morning at Paris High School was disputed. All agreed that S.C. and Cleda Brownfield were at cross purposes before normal school hours began. S.C., then a fourteen-year-old high school freshman, wanted into the school building. Brownfield, a "special services aide, teacher's assistant," was tasked to keep out all students except those having business which specifically authorized early entry.¹ S.C. thought her business justified her early entry; Brownfield ruled to the contrary. The ensuing altercation resulted in S.C. being charged with, tried for, and found guilty by a six-person jury as having engaged in, delinquent conduct by assaulting a public servant.² See TEX. FAM.CODE ANN. § 54.03 (Vernon Supp.2006).

On appeal,³ S.C. contends that the evidence is insufficient because the State did not prove that S.C. was under seventeen years of age; that Brownfield was a school teacher as alleged in the State's petition; or that Paris High School is a governmental entity, a requirement to establish that Brownfield was a public servant. S.C. also argues that she had ineffective assistance of counsel at trial.⁴

We affirm the judgment of the trial court because we hold that (1) S.C. did not contest that she was under seventeen years of age, (2) the evidence is sufficient to establish that Brownfield was a public servant, (3) the evidence is sufficient to establish that Paris High School is a governmental entity, and (4) ineffective assistance of counsel has not been shown.

(1) S.C. Did Not Contest that She Was Under Seventeen Years of Age

S.C.'s first contention is that the proceeding should be reversed because the State provided no evidence that she was a juvenile.⁵ The State's response is that the Texas Family Code requires the State to plead that S.C. is within the jurisdictional age range, but does not require the State to later adduce evidence on that point unless the matter is otherwise put in issue by the juvenile.

This issue is decided for us by the Texas Family Code. The juvenile justice code covers all cases involving the delinquent conduct of a person who is within the definition of a child. TEX. FAM.CODE ANN. § 51.04 (Vernon 2002). A child is a person ten years of age or older and under seventeen years of age. TEX. FAM.CODE ANN. § 51.02(2) (Vernon Supp.2006). Any objection to the trial court's jurisdiction over the child because of age must be raised at the adjudication hearing or discretionary transfer hearing; otherwise, the juvenile waives the right to object later on that basis. TEX. FAM.CODE ANN. § 51.042 (Vernon 2002); see In re E.D.C., 88 S.W.3d 789 (Tex.App.-El Paso 2002, no pet.).

Because it was not raised to the trial court, any complaint about age has been waived, per statutory fiat. We overrule this point of error.

(2) The Evidence Is Sufficient to Establish that Brownfield Was a Public Servant

S.C.'s next contention is that the evidence is insufficient because the State did not prove that Brownfield was a "school teacher," but instead proved only that she was a "teacher's aide." Thus, she argues, the petition's allegations were not met, and we should find the evidence insufficient.

The jury was charged to determine whether S.C. had committed delinquent conduct by committing assault on a public servant. See TEX. PENAL CODE ANN. § 22.01 (Vernon Supp.2006). Among other things, as presented to the jury, that includes "an officer, employee, or agent of government."

The petition alleges that S.C. caused bodily injury to

Cleda Brownfield, a school teacher, and a person said defendant knew was a public servant, while Cleda Brownfield was lawfully discharging an official duty, or in retaliation or on account of exercise of official power or performance of an official duty as a public servant, by pushing Cleda Brownfield.

On appeal, S.C. focuses on a single portion of the petition, the language describing Brownfield as a school teacher. S.C. argues that the evidence does not support a finding that Brownfield was a school teacher, and cites a series of criminal cases involving fatal variances between the allegation and the proof.⁶

This is an allegation of criminal action, the truth of which is determined by the fact-finder. Thus, we apply the analysis used in criminal cases to review alleged charge error, or claims that the evidence is insufficient to support a jury's determination.

In reviewing the legal sufficiency of the evidence, we view all of the 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 a factual sufficiency review, we also view all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Roberts v. State, 220 S.W.3d 521 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).

The Texas Court of Criminal Appeals has mandated that sufficiency of the evidence is to be analyzed under the hypothetically correct jury charge. Gharbi v. State, 131 S.W.3d 481, 483 (Tex.Crim.App. 2003) (allegation which is not statutory element or "an integral part of an essential element of the offense" need not be included in hypothetically correct jury charge); see Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (allegation which is not statutory element need not be included in hypothetically correct jury charge); see also Gollihar v. State, 46 S.W.3d 243, 256 (Tex.Crim.App.2001).

A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Hart v. State, 173 S.W.3d 131, 144 (Tex.App.-Texarkana 2005, no pet.) (quoting Gollihar, 46 S.W.3d at 246). "The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant's `substantial rights' is immaterial." Id. (quoting Gollihar, 46 S.W.3d at 247-48; and referencing Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim.App.1998)).

To determine whether a defendant's "substantial rights" have been prejudiced, we consider two questions: whether the indictment, as written, informed the defendant of the charge against him or her sufficiently to allow such defendant to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. See Dickey v. State, 189 S.W.3d 339, 345 (Tex.App.-Texarkana 2006, no pet.) (citing Gollihar, 46 S.W.3d at 248).

In this instance, the statute criminalizes assault on a public servant. It is not limited to assault on a school teacher. TEX. PENAL CODE ANN. § 22.01(b)(1). It is undisputed that Brownfield was a teacher's aide employed by the Paris Independent School District at the time of the altercation. A "public servant" is "a person elected, selected, appointed, employed, or otherwise designated as ... an officer, employee, or agent of government." TEX. PEN.CODE ANN. § 1.07(a)(41)(A) (Vernon Supp.2006). Thus, the evidence shows that Brownfield was a public servant. See Moore v. State, 143 S.W.3d 305, 311 (Tex. App.-Waco 2004, pet. ref'd).

The petition clearly provides sufficient information for the defendant to prepare an adequate defense at trial. The State was not required to prove the more specific allegation, but only what was required by the hypothetically correct jury charge: that Brownfield was a public servant.

A number of courts have expressly answered the question by concluding that public school teachers fall within the broad definition of "public servant" provided by the current version of Section 1.07(a)(41)(A) of the Texas Penal Code. See In re J.P., 136 S.W.3d 629, 630 (Tex.2004) (juvenile assaulted public servant per Section 22.01(b)(1) by hitting and kicking public school teacher); Moore, 143 S.W.3d at 311 (school superintendent was "public servant" under Section 1.07(a)(41)(A)); In re F.C., No. 03-02-00463-CV, 2003 Tex. App. LEXIS 4709, at *10-11, 2003 WL 21282766, at *3 (Tex.App.-Austin June 5, 2005, no pet.) (mem. op., not designated for publication) (teacher at Dobie Middle School was "public servant" for purposes of Section 22.01(b)(1)); In re J.L.O., No. 03-01-00632-CV, 2002 Tex.App. LEXIS 5730, at *8-9 & n. 1, 2002 WL 1804951, at *3 (Tex.App.-Austin Aug.8, 2002, no pet.) (mem. op., not designated for publication) (education assistant at public school satisfied Texas Penal Code definition, which Legislature intentionally made broad "to extend the law's protection to all school employees"); In re B.M., 1 S.W.3d 204, 207 (Tex.App.-Tyler 1999, no pet.) (public servants include employees of independent school districts).

Accordingly, we conclude that Brownfield's undisputed testimony that she was a "teacher's aide" employed by the Paris Independent School District at Paris High School provided legally and factually sufficient evidence to establish this element of the offense. See In re L.M., 993 S.W.2d 276, 284 (Tex.App.-Austin 1999, pet. denied); In re P.N., No. 03-04-00751-CV, 2006 Tex.App. LEXIS 6878, 2006 WL 2190577 (Tex.App.-Austin Aug. 4, 2006, no pet.) (mem. op., not designated for publication).

(3) The Evidence Is Sufficient to Establish that Paris High School Is...