In Re BM

1 S.W.3d 204, 1999 WL 562765
CourtCourt of Appeals of Texas
DecidedJuly 30, 1999
Docket12-98-00311-CV
StatusPublished

This text of 1 S.W.3d 204 (In Re BM) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re BM, 1 S.W.3d 204, 1999 WL 562765 (Tex. Ct. App. 1999).

Opinion

1 S.W.3d 204 (1999)

In the Matter of B. M., A Juvenile.

No. 12-98-00311-CV.

Court of Appeals of Texas, Tyler.

July 30, 1999.

*205 Corey Bankhead, Carthage, for appellant.

Dana Whitmer, Carthage, for appellee.

Panel consists of RAMEY, Jr., C.J., HADDEN, J., and WORTHEN, J.

HADDEN, Justice.

B.M.,[1] a juvenile, appeals from the trial court's adjudication that he engaged in delinquent conduct and the disposition placing him on probation for one year. B.M. challenges the sufficiency of the evidence to support the trial court's findings at both the adjudication and disposition phases of the juvenile proceeding. We will affirm.

Factual Background

On the morning of August 26, 1998, B.M. was a ninth grade student at Carthage High School. He violated the school dress code when he went to school with a red rag in the back pocket of his pants. School Disciplinary Supervisor Charles Lefall ("Lefall") stopped B.M. and asked him for the rag, and B.M. turned over the rag to Lefall. During the lunch break, Lefall encountered B.M. twice, and on both occasions, B.M. asked Lefall to return his rag, but Lefall refused. At the adjudication hearing, Lefall testified that the following conversation took place between himself and B.M. after his second refusal to return the rag:

B.M.: Well, I want my towel.

LEFALL: Well, I told you I'm not going to give it to you.

B.M.: Man, I want my towel.

LEFALL: I told you I am not going to give it to you.

B.M.: Well, I tell you what, I guess I'll just have to get my gun then.

LEFALL: Do what?

B.M.: I'll just get my gun.

LEFALL: What do you plan on doing with it?

B.M.: Well, I'll shoot you.

LEFALL: Well, I hope you don't miss.

B.M.: I won't miss.[2]

In its Original Adjudication Petition, the State alleged that B.M. had engaged in delinquent conduct in that he did then and there intentionally and knowingly threaten to harm Charles Lefall by an unlawful act, to-wit: shooting him with a gun, in retaliation for or on account of the service of Charles Lefall as a public servant.

On September 14, 1998, the trial court conducted adjudication and disposition hearings in this matter. The court filed written findings of fact which included the following:

4. On or about the 26th day of August, 1996, B.M. engaged in delinquent conduct as defined by Texas Family Code § 51.03(a)(1);

*206 5. On or about the 26th day of August, 1996, B.M. committed the offense of Retaliation in violation of Texas Penal Code § 36.06(a)(1)(A);

6. B.M. is in need of rehabilitation;

7. The public is in need of protection from B.M.;

8. B.M. cannot be provided the quality of care and level of support and supervision that he needs to meet the conditions of probation in his home.

At the conclusion of the disposition hearing, the court placed B.M. on probation for a period of one year, including a 90 day boot camp and a 90 day period of intensive supervision probation following boot camp.

THE ADJUDICATION HEARING

In his first and second points of error, B.M. contends that the evidence was legally and factually insufficient to support the trial court's finding that he had engaged in delinquent conduct. Specifically, B.M. asserts that the evidence offered at his adjudication hearing did not establish the elements of retaliation, but at most constituted proof of assault, a Class C misdemeanor as set forth in Texas Penal Code § 22.01(c). We disagree.

1. Standard of Review

In a bench trial, findings of fact are of the same force and dignity as a jury's verdict. In the Matter of T.D., 817 S.W.2d 771, 777 (Tex.App.-Houston [1st Dist.] 1991, writ denied). An appellate court reviews those findings for legal and factual sufficiency by the same standards applied to reviewing evidence in support of a jury's verdict. Id. The Texas Rules of Civil Procedure govern juvenile proceedings, except to the extent that those rules conflict with the Juvenile Justice Code. TEX. FAM.CODE ANN. § 51.17(a) (Vernon 1996). However, the State must prove beyond a reasonable doubt that a child has committed an offense and thereby engaged in delinquent conduct. TEX. FAM.CODE ANN. § 54.03(f) (Vernon 1996). Therefore, when reviewing the evidence in a juvenile proceeding, an appellate court applies, not the civil "no evidence" standard of review, but the more stringent legal sufficiency standard as set forth in Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560 (1979); R.X.F. v. State, 921 S.W.2d 888, 899 (Tex.App.-Waco 1996, no writ).[3]

The standard for reviewing the legal sufficiency of the evidence is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Commonwealth of Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979). See also Richardson v. State, 879 S.W.2d 874, 879 (Tex. Cr.App.1993), cert. denied, 513 U.S. 1085, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995). In a bench trial, the judge, as trier of fact, determines the credibility of the witnesses and can believe or reject all or any part of the testimony. In the Matter of C.D.F. v. State, 852 S.W.2d 281 (Tex.App.-Dallas 1993, no writ). In reviewing a factual sufficiency challenge, the appellate court reviews all of the evidence impartially and *207 sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. In the Matter of A.S., 954 S.W.2d 855, 860 (Tex.App.-El Paso 1997, no pet.); R.X.F., 921 S.W.2d at 900.

2. Applicable Law

Delinquent conduct is "conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail." Tex. Fam.Code Ann. § 51.03(a)(1) (Vernon 1996 & Supp.1999). The offense of retaliation is a third degree felony and is punishable by imprisonment. TEX. PEN.CODE ANN. §§ 12.34(a), 36.06(c) (Vernon 1994). A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service of another as a public servant, witness, prospective witness, or informant. TEX. PEN.CODE ANN. § 36.06(a)(1)(A) (Vernon Supp.1999). Public servants, as defined by the Penal Code, include employees of independent school districts. TEX. PEN.CODE ANN. § 1.07(24), (41) (Vernon 1994); see also Powell v. State, 549 S.W.2d 398, 399 (Tex.Cr.App. 1977).

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Powell v. State
549 S.W.2d 398 (Court of Criminal Appeals of Texas, 1977)
Puckett v. State
801 S.W.2d 188 (Court of Appeals of Texas, 1990)
Richardson v. State
879 S.W.2d 874 (Court of Criminal Appeals of Texas, 1993)
Coward v. State
931 S.W.2d 386 (Court of Appeals of Texas, 1996)
Doyle v. State
661 S.W.2d 726 (Court of Criminal Appeals of Texas, 1983)
C.D.F. v. State
852 S.W.2d 281 (Court of Appeals of Texas, 1993)
R.X.F. v. State
921 S.W.2d 888 (Court of Appeals of Texas, 1996)
S.A.M., Matter Of
933 S.W.2d 744 (Court of Appeals of Texas, 1996)
In re A.S.
954 S.W.2d 855 (Court of Appeals of Texas, 1997)
Matter of T.A.F.
977 S.W.2d 386 (Court of Appeals of Texas, 1998)
In re B. M.
1 S.W.3d 204 (Court of Appeals of Texas, 1999)

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Bluebook (online)
1 S.W.3d 204, 1999 WL 562765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bm-texapp-1999.