A.S., Matter of

• Decision Date: 11 September 1997
• Docket Number: No. 08-96-00348-CV,08-96-00348-CV
• Citation: 954 S.W.2d 855
• Parties: In the Matter of A.S., A Juvenile.
• Court: Texas Court of Appeals

Page 855

954 S.W.2d 855

In the Matter of A.S., A Juvenile.

No. 08-96-00348-CV.

Court of Appeals of Texas El Paso.

Sept. 11, 1997.

Sharon Letson Weathers, Midland, for appellant.

Russell W. Malm, County Attorney, Midland, for appellee.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

McCLURE, Justice.

A.S., a juvenile, appeals from an order adjudging him delinquent and committing him to the Texas Youth Commission. A.S. challenges the legal and factual sufficiency of the evidence to support the jury's finding that he committed the offense of burglary of a building. He also asserts that the juvenile court abused its discretion by deviating from the progressive sanction guidelines. We affirm the adjudication order but reverse the disposition order and remand for further proceedings.

SUMMARY OF THE FACTS

At approximately 3:25 a.m. on October 25, 1995, Corporal James White of the Midland Police Department was dispatched to the Midland Park Mall because a burglar alarm at the Beall's Department Store had been set off. White arrived at the mall in about three minutes. He walked to the rear of Beall's and saw a male individual, later identified as the co-defendant R.C.C., standing in an open doorway of a power room and looking into the parking lot. After looking in White's direction, R.C.C. walked back into the room. Believing he had been seen, White walked to the door. White looked into the room and asked A.S. and R.C.C. what they were doing. R.C.C., who was extremely nervous and sweating, told White that they were with maintenance and were checking the lights. A.S. also appeared nervous. After a brief conversation, both R.C.C. and A.S. suddenly ran past White out of the room. White managed to grab R.C.C., but A.S. escaped and ran around the building. R.C.C. and White struggled in the parking lot while White attempted to restrain him. At one point, R.C.C. began to push White back towards the power room door rather than attempting to escape into the parking lot. Alarmed by this action, White instinctively looked over his shoulder and saw a crowbar coming down at him. The crowbar struck White on the left shoulder causing his arm to immediately become completely numb. White threw R.C.C. to the ground with his right hand and he turned to face his attacker, later identified as Marcos Sanchez. White drew his weapon and warned Sanchez to drop the crowbar. Despite White's command to stop, Sanchez continued to move towards him with the crowbar raised. Believing Sanchez was going to hit him again, White fired a single shot, striking Sanchez in the chest. Sanchez later died from the gunshot wound. R.C.C. was taken into custody immediately. A.S. was found later that same morning and taken into custody. White required extensive surgery to his shoulder as a result of the blow from the crowbar.

The petition filed by the State alleged that A.S. engaged in delinquent conduct by committing the offenses of felony murder, burglary of a building, and aggravated assault on a public servant. The charge permitted the jury to find A.S. committed each of these offenses either as a primary actor or as a party. The jury found that A.S. did not commit felony murder or aggravated assault on a public servant, but found that he committed the offense burglary of a building.

SUFFICIENCY OF THE EVIDENCE

In Point of Error No. One, A.S. alleges that the evidence is legally insufficient to support the jury's finding that he committed the offense of burglary of a building. Before addressing the merits of this issue, we must determine whether we will apply the civil "no evidence" standard or the legal sufficiency standard required in criminal cases.

Consistent with the Fourteenth Amendment guarantee of due process of law, no person may be convicted of a criminal offense and denied his liberty unless his criminal responsibility for the offense is proved beyond a reasonable doubt. Alvarado v. State, 912 S.W.2d 199, 206-07 (Tex.Crim.App.1995), citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). As a matter of due process, the case against a juvenile must also be proved beyond a reasonable doubt. Winship, 397 U.S. at 368, 90 S.Ct. at 1075. Consequently, the Juvenile Justice Code requires that the State prove beyond a reasonable doubt that the child has engaged in delinquent conduct or conduct indicating a need for supervision. TEX.FAM.CODE ANN. § 54.03(f) (Vernon 1996); see In the Matter of M.M.R., 932 S.W.2d 112, 113 (Tex.App.--El Paso 1996, no writ); In the Matter of G.M.P., 909 S.W.2d 198, 201-02 (Tex.App.--Houston [14th Dist.] 1995, no writ); In the Matter of C.D.F. v. State, 852 S.W.2d 281, 284 (Tex.App.--Dallas 1993, no writ); In the Matter of S.D.W., 811 S.W.2d 739, 749 (Tex.App.--Houston [1st Dist.] 1991, no writ). In Jackson v. Virginia, the United States Supreme Court found that the "no evidence" standard is inadequate to protect against misapplications of the constitutional standard of reasonable doubt, and rejected it in favor of the rule that criminal convictions violate due process of law unless supported by sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560 (1979). Under this standard, an appellate court must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789; Alvarado, 912 S.W.2d at 207. The Court of Criminal Appeals first applied the Jackson standard in Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App.1981), but did not finally reject the "no evidence" standard until it decided Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).

In the past, this Court, like others, has applied the civil "no evidence" standard in reviewing challenges to the legal sufficiency of the evidence to establish that the juvenile committed an offense, and therefore, is a delinquent child. See e.g., M.M.R., 932 S.W.2d at 113; In the Matter of C.F. v. State, 897 S.W.2d 464, 472 (Tex.App.--El Paso 1995, no writ); see also In the Matter of L.G., 728 S.W.2d 939, 943 (Tex.App.--Austin 1987, writ ref'd n.r.e.); In the Matter of M.R., 846 S.W.2d 97, 99 (Tex.App.--Fort Worth 1992), writ denied, 858 S.W.2d 365 (Tex.1993). Under this approach, the appellate court is required to consider only the evidence and inferences tending to support the findings under attack and disregard all evidence and inferences to the contrary. M.M.R., 932 S.W.2d at 113; C.F., 897 S.W.2d at 472; L.G., 728 S.W.2d at 943. If there is any evidence of probative force to support the jury's finding, the point must be overruled and the finding upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951)(per curiam); M.M.R., 932 S.W.2d at 113; C.F., 897 S.W.2d at 472. Lately, some appellate courts have rejected this approach and have instead applied the Jackson v. Virginia standard. See R.X.F. v. State, 921 S.W.2d 888, 899 (Tex.App.--Waco 1996, no writ); In the Matter of P.L.W. v. State, 851 S.W.2d 383, 387 (Tex.App.--San Antonio 1993, no writ). The Waco Court of Appeals reasoned that the civil "no evidence" standard, which was specifically rejected in Jackson, does not provide constitutionally sufficient review of the legal sufficiency of the evidence to support the finding that the juvenile committed an offense. R.X.F., 921 S.W.2d at 899; see P.L.W., 851 S.W.2d at 387. Like the San Antonio and Waco Courts of Appeals, we are persuaded that the Jackson v. Virginia standard must be applied in a juvenile case when reviewing challenges to the legal sufficiency of the evidence to establish the elements of the penal offense that forms the basis of the finding that the juvenile engaged in delinquent conduct or conduct indicating a need for supervision. ¹

A person commits the offense of burglary of a building if, without the effective consent of the owner, he enters a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft. TEX.PENAL CODE ANN. § 30.02(a)(1)(Vernon 1994). The petition alleged that A.S. committed the felony offense of burglary of a building by entering the Midland Park Mall with the intent to commit theft. The jury found that A.S., either as an individual or as a party, engaged in delinquent conduct by committing the offense of burglary of a building, namely, Midland Park Mall.

A.S. first alleges that the evidence is insufficient to show that the Midland Park Mall is a building. A "building," as defined by the Texas Penal Code, is any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. TEX.PENAL CODE ANN. § 30.01(2). A.S. is correct that no witness specifically testified that the Midland Park Mall is a "building" under the definition provided in section 30.01(2). However, witnesses referred throughout the trial to the mall as a building. Approximately eleven photographs of the burglarized premises, including several photographs offered by the co-defendant R.C.C. without objection by A.S., were admitted into evidence for the jury's consideration. These photographs depict an enclosed brick structure which has doors capable of being closed and locked. Other evidence showed that this structure contains retail department stores such as Beall's, Dillard's, and Sears, thereby providing evidence that the structure is used for the purpose of trade. We conclude that the evidence is legally sufficient to show that the Midland Park Mall is a building.

Appellant next alleges that the evidence is insufficient to establish that the building was not open to the public at the time he entered it. While no witness directly testified that the building was...