M.R., Matter of

• Decision Date: 22 December 1992
• Docket Number: No. 2-91-243-CV,2-91-243-CV
• Parties: In the Matter of M.R.
• Court: Texas Court of Appeals

Page 97

846 S.W.2d 97

In the Matter of M.R.

No. 2-91-243-CV.

Court of Appeals of Texas,

Fort Worth.

Dec. 22, 1992.

Rehearing Overruled Feb. 16, 1993.

T.A. Menikos, Law Offices of T.A. Menikos, Arlington, for appellant.

Tim Curry, Crim. Dist. Atty., Lynn Allison, Barbara Medley, Jana Allison, Asst. Dist. Attys., Fort Worth, for appellee.

Before WEAVER, C.J., and MEYERS and DAY, JJ.

OPINION

WEAVER, Chief Justice.

A jury found that appellant, a minor, had engaged in delinquent conduct by committing murder in violation of TEX.PENAL CODE ANN. § 19.02 (Vernon 1989) during a drive by shooting in which one person was killed. In accordance with the jury's verdict, the trial court ordered commitment to the Texas Youth Commission for a period not to exceed twenty-five years with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice.

We affirm.

On the night of the drive by shooting, a group of persons were gathered in front of the residence of Ofelia Davila. Ofelia's boyfriend, Marco Martinez, arrived after having been told by Ofelia previously that evening that she no longer wished to see him. Ofelia's nephew confronted Marco and the two men began fighting. After the fight was broken up, Marco and Ofelia left and went to appellant's residence. Marco's brother, Juan, was there. Marco told Juan and appellant about the incident with Ofelia's nephew. Juan and appellant then got into a black Fiero. Juan was driving and appellant was on the passenger side. The black Fiero drove by Ofelia's residence within five to ten minutes after Ofelia and Marco left her house. When the vehicle initially drove by, shots were fired from the passenger side of the Fiero into the crowd of people gathered in front of the residence. The Fiero then made a U-turn and more shots were fired into the crowd when the vehicle again drove by. Witnesses testified that on the second pass, the shots were fired from the passenger side of the car, with the gunman sitting on the passenger-side window and shooting over the car's roof. One of the persons gathered in front of the residence, Rafael Melendez, another nephew of Ofelia, was struck by a bullet during the first drive by and died later that night from gunshot-inflicted wounds. Shortly after the shooting, a black Fiero was seen heading toward appellant's residence.

The State filed a delinquency petition alleging that appellant, then fourteen years of age, had engaged in delinquent conduct by murdering Melendez. Appellant was found to be delinquent and in need of rehabilitation by a jury, and was committed to the Texas Youth Commission for a period not to exceed twenty-five years with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice upon his eighteenth birthday. Appellant raises two points of error on appeal.

Appellant's first point of error alleges that the trial court erred in denying appellant's motion for a directed verdict and motion for acquittal because the evidence was both legally and factually insufficient to support a finding of delinquency. Appellant contends that the evidence was insufficient to permit a jury to find that appellant was the person in the car who did the shooting, that appellant intended to kill Melendez, and that appellant intended to shoot Melendez with a firearm.

We first address appellant's "no evidence" challenge. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). When a child challenges the legal sufficiency of the 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 re L.G., 728 S.W.2d 939, 943 (Tex.App.--Austin 1987, writ ref'd n.r.e.), citing In re A.B.R., 596 S.W.2d 615, 618 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.). See also Sherman v. First National Bank, 760 S.W.2d 240, 242 (Tex.1988) (per curiam); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951) (per curiam). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King's Estate, 244 S.W.2d at 661-62.

A "no evidence" point of error must and may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 288 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361 (1960).

The record is devoid of any direct evidence to support the jury's delinquency finding, but it does contain circumstantial evidence to support it. In support of its allegation that appellant was delinquent, the State offered evidence that several minutes before the shooting, appellant was seen entering the passenger side of the black Fiero. Four witnesses testified that the shots came from the passenger side of the black Fiero. There was testimony that the owner of the Fiero, Juan Martinez, only allowed family members to drive the automobile, that Martinez entered the driver's side at the same time appellant entered the passenger side, and that appellant was not a member of Martinez's family. We find that this circumstantial evidence constitutes some evidence supporting the jury's delinquency finding.

We next turn to the factual sufficiency of the evidence. Point of error one argues, in the alternative, that there was "insufficient evidence as a matter of law" to support the jury's delinquency finding. The State asserts that the wording of this point of error raises a legal sufficiency challenge, but not a factual sufficiency challenge. Specifically, the State argues that the effect of using the phrase "as a matter of law" immediately following the words "insufficient evidence" is to raise a no evidence challenge instead of an insufficient evidence challenge. Under the circumstances of this appeal, we disagree.

Points of error are to be liberally construed in order to obtain a just, fair and equitable adjudication of the rights of the litigants. Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex.1986), quoting Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). TEX.R.APP.P. 74(p). In construing points of error, we look not only to the wording of the point of error, but also to the argument under the point to determine as best we can the intent of the party. Pool, 715 S.W.2d at 633. It is obvious from the wording of appellant's first point of error that appellant intended it to raise a factual sufficiency challenge as well as a legal sufficiency challenge. The wording of the point of error itself raised "insufficient evidence" in the alternative. The argument made under the point of error sets forth evidence from the entire record to support a factually insufficient allegation. We construe point of error one as raising an insufficient evidence challenge.

The State also asserts that if point of error one raises a factual sufficiency challenge, the matter was not preserved for appeal because appellant did not file a motion for new trial. In dicta, our sister court of appeals would reach inapposite results on the issue of the applicability of Texas Rule of Civil Procedure 324(b)'s requirement of a motion for new trial to preserve complaints of factual sufficiency in juvenile delinquency proceedings. See In re R.J.W., 770 S.W.2d 103, 105 (Tex.App.--Houston [1st Dist.] 1989, no writ); In re S.D.W., 811 S.W.2d 739, 749 (Tex.App.--Houston [1st Dist.] 1991, no writ).

Juvenile proceedings are governed, as far as practicable, by the rules of civil procedure, and are civil in nature. Brenan v. Court of Civil Appeals, Fourteenth Dist., 444 S.W.2d 290, 292 (Tex.1968). TEX.FAM.CODE ANN. § 51.17 (Vernon 1986). The rules of civil procedure provide that, in order to preserve a factual sufficiency point of error, a motion for new trial complaining of the insufficiency must be filed. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991). TEX.R.CIV.P. 324(b)(2).

While delinquency proceedings are civil in nature, the protections and due process requirements are similar to those in adult criminal prosecutions. The strict standards applied in criminal law are also applicable to protect the juvenile in these civil, yet quasi-criminal, proceedings. In re R.J.W., 770 S.W.2d at 105; In re D.B., 594 S.W.2d 207, 209 (Tex.Civ.App.--Corpus Christi 1980, no writ).

The prerequisite for appealing factual sufficiency in civil cases, filing a motion for new trial to challenge the sufficiency of the evidence to support the jury findings, is necessarily related to the burden of proof in a civil trial. In re R.J.W., 770 S.W.2d at 105; George v. State, 506 S.W.2d 275, 278 (Tex.Civ.App.--Houston [1st Dist.] 1974, no writ). However, in a delinquency proceeding, the State is required to prove the elements of the crime beyond a reasonable doubt, as in an adult prosecution, and not by a preponderance of the evidence. In re R.J.W., 770 S.W.2d at 105. A motion for new trial is not required to challenge the sufficiency of the evidence in a criminal appeal. Id. It reasonably follows that, because the burden of proof in a delinquency proceeding is the same as in a criminal prosecution, a motion for new trial should not be required to challenge the sufficiency of the evidence. Id. But see contra In re S.D.W., 811 S.W.2d at 749. It was unnecessary for the R.J.W. Court to resolve this issue because the appellate court found sufficient evidence for the jury to have found beyond a reasonable doubt that appellant committed the...