L.G., Matter of

• Decision Date: 22 April 1987
• Docket Number: No. 14584,14584
• Citation: 728 S.W.2d 939
• Parties: In the Matter of L.G., Appellant.
• Court: Texas Court of Appeals

Page 939

728 S.W.2d 939

In the Matter of L.G., Appellant.

No. 14584.

Court of Appeals of Texas,

Austin.

April 22, 1987.

Rehearing Denied May 20, 1987.

William W. McNeal, Luling, for appellant.

Jeffrey Van Horn, Dist. Atty., Lockhart, for State.

Before SHANNON, C.J., and BRADY and CARROLL, JJ.

CARROLL, Justice.

Appellant, a sixteen-year-old girl, was found by a jury to have engaged in delinquent conduct by knowingly or intentionally possessing a controlled substance, cocaine. The trial court's order committed appellant to the Texas Youth Commission. We will affirm that part of the court's order adjudicating that appellant engaged in delinquent conduct; however, in all other respects the judgment of the trial court is vacated.

THE CONTROVERSY

Appellant and two other minors were videotaped during school hours on private property near Lockhart High School. The videotape showed appellant and the two other girls engaging in conduct consistent with the ingestion of cocaine. None of the powdery substance apparently consumed by the girls, was recovered by the authorities, so no chemical analysis of any sort was made. Appellant was nevertheless adjudicated delinquent for possessing cocaine based on the testimony by one of the girls that appellant had stated she had some cocaine, and that appellant and the other girls decided to "sniff" or "snort" the cocaine.

The original order of adjudication and disposition filed on August 27, 1985, failed to state any reasons for the trial court's disposition committing appellant to the Texas Youth Commission. Consequently, appellant filed a motion for statement of reasons for disposition. In response, the trial court on December 17, 1985, entered what is entitled "Order of Adjudication and Disposition Nunc Pro Tunc," which specified as reasons for its disposition the following:

1. The conduct made the basis of this juvenile petition involved the use of cocaine, a penalty group I controlled substance.

2. The use of said controlled substance took place during the school hours within a close proximity to the Lockhart High School campus.

3. The use of said controlled substance took place in public view in the presence of other students.

4. The child's acquisition of said controlled substance occurred in a classroom during school hours.

5. The child involved other students in the use of said controlled substance.

After reviewing the order, we found the reasons given for the specific disposition amounted to little more than a recitation of the details of the delinquent conduct engaged in by appellant. We noted in particular the absence of any explanation why appellant was committed to the Texas Youth Commission, especially in light of an extremely favorable juvenile probation report. Hence, we sustained appellant's seventh point of error addressing the adequacy of the reasons stated in the order of disposition, and we remanded the cause to The amended order of adjudication and disposition filed by the trial court is identical to the December 17, 1985 order, with the exception of the following two sentences which we will quote in full:

the trial court with instructions for the trial judge to render a proper disposition order specifically stating the reasons for the disposition chosen and to file that corrected order with this Court. In the Matter of L.G., No. 14,584, Tex.App.--Austin, November 26, 1986 (unpublished opinion).

The court further finds that the best interest of the child and the best interest of society will be served by committing her to the care, custody, and control of the Texas Youth Commission because there exists in the community of Lockhart, Texas, where this conduct occurred, a great public awareness and concern about the problem of drug abuse in both the schools and the community at large. Because of the findings stated above, the court believes that the best interests of society in insuring that conduct of the nature involved in this case is not to be tolerated, particularly in the school system, far outweigh any interests to be served by placing the child on probation. (emphasis added).

We will now address appellant's remaining points of error.

ADJUDICATION OF DELINQUENCY

In appellant's first point of error, she contends the trial court erred in admitting testimony by L.C., an accomplice. Specifically, appellant claims L.C. was not competent to testify that the powdery substance in question was in fact cocaine. A witness may testify at trial that he was told by the accused that a substance in the possession of the accused was a controlled substance, and such testimony is admissible as direct evidence of the defendant's possession thereof. See Bright v. State, 556 S.W.2d 317, 322 (Tex.Cr.App.1977); Stein v. State, 514 S.W.2d 927, 933-34 (Tex.Cr.App.1974). Under these circumstances, the witness is not testifying in the form of an opinion, but rather he is testifying to a statement of fact within his knowledge. See Hernandez v. State, 698 S.W.2d 679 (Tex.Cr.App.1985).

The record here reflects that L.C. testified that she sniffed cocaine with appellant. However, the only basis for her assumption that the substance was cocaine was founded on appellant's statements to her. Consequently, from the record before us, we cannot conclude L.C.'s testimony in this case was opinion testimony. We can only view it as a statement of fact within her knowledge. Moreover, under the Stein holding, the admission by appellant that she had some cocaine is admissible as direct evidence she in fact possessed cocaine. Appellant's first point of error is overruled.

In her second point of error, appellant alleges that much of L.C.'s testimony was improperly elicited through leading questions by the State's attorney. The matter of permitting leading questions rests in the sound discretion of the trial judge, and unless the appellant can show that she was unduly prejudiced by virtue of such questions, no abuse of discretion is shown. Navajar v. State, 496 S.W.2d 61, 64 (Tex.Cr.App.1973); see also Bryant v. State, 367 S.W.2d 684, 685 (Tex.Cr.App.1963) (asking leading questions is seldom grounds for reversal). No undue prejudice has been shown by appellant, nor do we find any in the testimony questioned here. Appellant's second point of error is overruled.

In points of error three and four, appellant challenges the sufficiency of the evidence to support the jury's finding that the powdery substance involved was cocaine. The evidence at trial, as outlined above, consisted of testimony from an accomplice witness as to an out-of-court statement made by appellant that she had some cocaine. Both the admissibility of accomplice witness testimony and out-of-court statements made by the child are specifically addressed by the Family Code. See Tex.Fam.Code Ann. § 54.03(e) (1986). In part, those provisions provide: (1) that an adjudication of delinquent conduct cannot be made upon the testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged The accomplice witness language in § 54.03(e) is in substance identical to article 38.14 of the Code of Criminal Procedure. ¹ Therefore, it is proper to look to the decisions of the Court of Criminal Appeals under article 38.14 as guidelines for the interpretation of § 54.03(e). See In the Interest of A.D.L.C., 598 S.W.2d 383, 385 (Tex.Civ.App.1980, no writ).

delinquent conduct, and the corroboration is not sufficient if it merely shows the commission of the alleged conduct; and (2) that an out-of-court statement made by a child is insufficient to support a finding of delinquent conduct unless it is corroborated in whole or in part by other evidence.

In general, the sufficiency of corroboration for accomplice testimony in cases involving adults is determined by eliminating the accomplice's testimony from consideration and examining the remaining evidence to determine whether there is any evidence of an incriminating nature which tends to connect the accused with the commission of the crime. Hernandez v. State, 578 S.W.2d 731, 732 (Tex.Cr.App.1979). The corroboration need only make the witness' testimony more likely than not. McManus v. State, 591 S.W.2d 505, 514 (Tex.Cr.App.1979).

The corroborative evidence here is found in a videotape recording and certain photographs of the alleged offense taking place. The pictures show appellant and two other girls engaging in some activity while bending over a utility box located in an open field. Testimony from a Lockhart Police Department investigator characterized the activity depicted as being consistent with the ingestion of cocaine. While the photographs do not unquestionably show the ingestion of cocaine," there is no requirement that the corroborating evidence be sufficient in itself to establish guilt.

The photographs and videotape no doubt indicate an activity of an incriminating nature tending to connect appellant with the delinquent conduct with which she is charged. Moreover, the pictures also corroborate the specifics in L.C.'s testimony thereby making her testimony "more likely than not." Consequently, we find L.C.'s testimony admissible under Tex.Fam.Code § 54.03(e). In addition, we also find the same evidence sufficiently corroborates appellant's out-of-court statement that she had some cocaine.

In summary, having concluded that L.C.'s testimony was in all aspects admissible under the Family Code, we now address appellant's sufficiency points of error. In her third point of error, appellant claims there was "no evidence" to support the jury's finding that appellant possessed cocaine. When a child challenges the legal sufficiency of evidence by a no evidence point, the appellate court is required to consider only the evidence and inferences tending to support the findings under attack. In the Matter of A.B.R., 596 S.W.2d 615, 618 (Tex.Civ.App.1980, writ ref'd n.r.e.). Since L.C.'s testimony concerning appellant's out-of-court statements...