In Re MCS, Jr.

327 S.W.3d 802, 2010 Tex. App. LEXIS 8495, 2010 WL 4138554
CourtCourt of Appeals of Texas
DecidedOctober 21, 2010
Docket02-09-00332-CV
StatusPublished
Cited by2 cases

This text of 327 S.W.3d 802 (In Re MCS, Jr.) 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 MCS, Jr., 327 S.W.3d 802, 2010 Tex. App. LEXIS 8495, 2010 WL 4138554 (Tex. Ct. App. 2010).

Opinion

327 S.W.3d 802 (2010)

In the Matter of M.C.S., JR.

No. 02-09-00332-CV.

Court of Appeals of Texas, Fort Worth.

October 21, 2010.

*803 Richard A. Gladstone, Fort Worth, TX, for M.C.S., Jr.

Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney, Chief of Appellate Section, Kimberly Colliet Wesley & Charles Vanover, Assistant Criminal District Attorneys, Fort Worth, TX, for State.

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

In one point, appellant M.C.S., Jr. contends that the evidence is insufficient to support the trial court's judgment of delinquency. We affirm.

Background Facts

In July 2009, the State filed a petition that accused appellant of violating section 42.092 of the penal code by setting a bat on fire and therefore cruelly torturing or killing it.[1] The trial court found probable cause to believe that appellant had engaged in delinquent conduct, ordered that he be detained in a detention center, and appointed an attorney to represent him.

*804 On August 10, 2009, the trial court held a hearing on the State's petition, which appellant and his mother attended. Toward the beginning of the hearing, the following conversation occurred:

THE COURT: Now, according to the pleadings, you're charged with cruelty to animals, a charge that, if you were an adult, carries with it possible jail time. As a juvenile, it carries with a possibility of being placed on probation or going to the Texas Youth Commission. Either one of those things can last at least until your 18th birthday and even up to your 19th birthday, so you're entitled to a trial. You're not required to admit to this charge, and you're not going to make anybody angry, you're not going to change the punishment range or mak[e] things worse for yourself by asking for a trial.
You've signed waivers saying a trial is not necessary. You have agreed that the attorneys can just tell me what the evidence is in this case without the need of the formalities of a trial and so I'm going to hear the evidence about what happened, it looks like, back in July, and if I find it to be true, proceed on with some additional evidence to decide whether or not you should be put on probation or not and what the conditions should be.[2]

All right. [Appellant's counsel], would you waive a full reading of the petition?

[APPELLANT'S COUNSEL]: Yes, Your Honor.
THE COURT: Let's proceed.
. . . .
[THE STATE]: . . . May it be . . . agreed and stipulated that the Respondent did violate section 42.092 of the Texas Penal Code, when on or about the 23rd day of July of 2009, in the County of Tarrant and State of Texas, he did then and there intentionally or knowingly torture, kill, or — or torture or kill in a cruel manner or cause serious bodily injury to an animal, to wit, a bat, by setting it on fire and burning it.

The State is prepared to call Fort Worth police officers who would testify that they responded in reference to a disturbance where kids were knocking on doors and then running away. They noticed a group of youths at the apartment complex. They made contact and the group denied having any involvement; however, as the officers were leaving, they saw the Respondent light something on fire and when they turned around, the Respondent took off running. The Respondent was subsequently chased and caught, at which time the officers later discovered the object that had been burnt by the Respondent was in fact a bat that was in a — that a girl had in a glass jar.

The officers would also testify that this offense did occur within Tarrant County and the State of Texas, and the State would rest.

[APPELLANT'S COUNSEL]: No objections, judge.

The trial court then received a placement summary and evidence about appellant's social history. It also heard testimony from appellant and his mother. The trial court adjudicated appellant delinquent, *805 placed him on probation (with several delineated conditions), and ordered that he complete treatment at the Texas Adolescent Treatment Center.

In September 2009, appellant, who was represented by new counsel, filed a motion for new trial, contending that the evidence is insufficient to support the trial court's judgment and that he did not knowingly or voluntarily sign the written stipulation of evidence. Appellant's motion was overruled by operation of law. Appellant also filed his notice of this appeal.

Evidentiary Sufficiency

Appellant contends that the evidence is insufficient to support the trial court's judgment because (1) the stipulation at the hearing does not satisfy the required statutory elements, (2) he was not properly given statutory warnings, (3) the written stipulation was involuntary, and (4) he did not orally acknowledge at the hearing that he agreed to the oral stipulation. Although appeals of juvenile court orders are generally treated as civil cases, we apply a criminal sufficiency standard. In re L.A.S., 135 S.W.3d 909, 913-14 (Tex. App.-Fort Worth 2004, no pet.); In re J.D.P., 85 S.W.3d 420, 422 (Tex.App.-Fort Worth 2002, no pet.). In reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).[3]

Statutory elements

A person commits the offense of cruelty to nonlivestock animals if the person intentionally, knowingly, or recklessly "tortures an animal or in a cruel manner kills or causes serious bodily injury to an animal." Tex. Penal Code Ann. § 42.092(b)(1). Under section 42.092, an "animal" is a domesticated living creature or a wild living creature that has been previously captured; the "term does not include an uncaptured wild living creature." Id. § 42.092(a)(2).

Appellant asserts that the oral stipulation quoted above does not show that the bat was alive when it was set on fire or that it had been previously captured. But the stipulation particularly states that appellant violated section 42.092 and uses the term "animal" as the statute does. Also, the stipulation states that appellant tortured or killed the bat by setting it on fire and that the bat was in a glass jar; these facts establish that the bat was previously alive and had been captured. The record does not contain any contradicting evidence showing that the bat was dead or had not been captured when it was set on fire. Thus, we hold that the stipulation comprises sufficient evidence to support the statutory elements of cruelty to nonlivestock animals. See id. § 42.092(b)(1); Clayton, 235 S.W.3d at 778; see also In re R.L.S.,

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Bluebook (online)
327 S.W.3d 802, 2010 Tex. App. LEXIS 8495, 2010 WL 4138554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcs-jr-texapp-2010.