in Re S.W., a Child

Opinion

Opinion issued November 19, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-01089-CV ——————————— IN RE S.W., a child

On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2012-03906J

MEMORANDUM OPINION

Appellant, S.W., appeals the trial court’s finding that he engaged in

delinquent conduct constituting the penal offense of robbery. In his sole issue on

appeal, S.W. argues that the evidence was insufficient to support the trial court’s

finding.

We affirm. Background

S.W. was charged with robbery regarding an incident that occurred in Harris

County on June 12, 2012. At the bench trial,1 Deborah Lee, the complainant,

testified that she was walking down the street toward a friend’s house “late in the

evening,” or around seven in the evening, when a young man asked her to walk

toward where he was standing in a store parking lot. She testified that, as she

approached him, he “kind of took me and threw me down, tried to snatch my purse

and then he hit me in my head” with his fist. She also testified that she was afraid

and “was thinking I was going to get shot or something. . . . I thought I was gonna

end up getting killed.”

As the young man ran away, one of Lee’s friends rode by on a bicycle.

Upon learning that the man had tried to take Lee’s purse and seeing the direction in

which he was fleeing, the friend rode away to inform the police, who were already

on the street. When Lee caught up to her friend and the police, the police had

caught the young man. Lee testified that she spoke to the police at that time and

recognized the person they had caught as the person who had struck her with his

fist and tried to take her purse. The State asked whether the person who attempted

to take her purse was in the courtroom, and she responded, “I really don’t

1 S.W. waived his right to a jury trial. 2 recognize him.” She further stated that she could not identify him at trial because

“a lot of things [had] happened to [her] since” the crime occurred.

Officer V. Zaunbrecher testified that, as he was patrolling the area where

Lee was attacked around midnight or one in the morning, he saw a black male

running toward him. The young man passed Officer Zaunbrecher and his partner,

turned on another street, and continued running. He testified that a woman on a

bicycle stopped him and reported that the man running down the street had just

robbed a woman. Officer Zaunbrecher and his partner turned around to stop the

running man, and Lee pointed him out as the male who had robbed her. Officer

Zaunbrecher testified that S.W. told him that he never hurt Lee and that she had

approached him for sex. He also stated that he observed that Lee was injured at the

time: “She had a swollen knot above her right eyebrow” that appeared “fresh.”

Officer Zaunbrecher made an in-court identification of S.W. as the person he

apprehended, whom Lee had identified as the person who had robbed her. He also

made an in-court identification of Lee as the woman who complained about the

robbery and identified S.W. as her attacker. Officer R. Gilchrest, Officer

Zaunbrecher’s partner, testified to substantially the same events as Officer

Zaunbrecher, and he likewise identified S.W. as the young man he had

apprehended and whom Lee had identified as her attacker.

3 S.W. testified that he was on his way back home after a visit with his

girlfriend when he was approached by a woman who asked if he had any drugs and

then “approached [him] in a sexual manner.” He stated that he told her he did not

sell drugs, cursed at her, and walked off. S.W. further testified that he never

touched Lee and that he never grabbed her purse or any other property that she

had. He testified that this occurred sometime between eleven and twelve at night.

The trial court found that S.W. engaged in delinquent conduct and

committed him to the Texas Juvenile Justice Department.

Standard of Review

In his sole issue, S.W. argues that the evidence was legally and factually

insufficient to support the trial court’s finding that he engaged in delinquent

conduct constituting the offense of robbery. He argues that we should evaluate

both the legal and factual sufficiency of the evidence.

Juvenile cases are civil proceedings, but are considered “quasi-criminal” in

nature. In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998). Civil and criminal rules

apply at different stages of the same proceeding. In re K.H., 169 S.W.3d 459, 462

(Tex. App.—Texarkana 2005, no pet.); see TEX. FAM. CODE ANN. § 51.17 (Vernon

Supp. 2012) (outlining rules of procedure and evidence that apply in juvenile

proceedings).

4 Regarding the sufficiency of the evidence, a trial court adjudicates a juvenile

as delinquent only if it finds beyond a reasonable doubt that the juvenile committed

the offense charged. TEX. FAM. CODE ANN. § 54.03(f) (Vernon Supp. 2012).

Thus, although juvenile cases are civil proceedings, we review challenges to the

sufficiency of the evidence to support a finding that a juvenile engaged in

delinquent conduct using the standards applicable to criminal cases. In re C.J., 285

S.W.3d 53, 55–56 (Tex. App.—Houston [1st Dist.] 2009, no pet.); In re G.A.T., 16

S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

Accordingly, we apply the standard adopted by the Texas Court of Criminal

Appeals to evaluate the sufficiency of the evidence, as set out in Jackson v.

Virginia. See In re M.C.S., 327 S.W.3d 802, 805 (Tex. App.—Fort Worth 2010,

no pet.) (applying Jackson standard in juvenile proceeding in light of Court of

Criminal Appeals’ determination that Jackson standard is only standard for

determining sufficiency of evidence in criminal proceeding); see also In re F.D.M.,

No. 01-11-00426-CV, 2012 WL 1249520, at *2 (Tex. App.—Houston [1st Dist.]

Apr. 12, 2012, no pet.) (mem. op.) (holding, in juvenile proceeding, that “[t]his

Court reviews criminal sufficiency-of-the-evidence challenges under a single

standard of review—the Jackson standard—regardless of whether the appellant

raises a legal or factual sufficiency challenge”).

5 When reviewing the sufficiency of the evidence supporting a criminal

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational fact finder could have found the essential elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim.

App. 2011) (holding that Jackson standard is only standard to use when

determining sufficiency of evidence). The fact finder is the exclusive judge of the

facts, the credibility of the witnesses, and the weight to be given to the testimony.

Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The fact finder

may accept one version of the facts and reject another, and it may reject any part of

a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.

1986); Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d) (stating that jury can choose to disbelieve witness even when

witness’s testimony is uncontradicted). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (“When the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the prosecution and therefore defer to

that determination.”).

6 Sufficiency of the Evidence

S.W. argues that the evidence was insufficient to establish him as the person

who attempted to take Lee’s purse and that it was insufficient to demonstrate that

he maintained control over the purse in a manner that would satisfy the theft

element of the offense of robbery.

A person commits robbery “if, in the course of committing theft . . . and with

intent to obtain or maintain control of the property, he intentionally, knowingly, or

recklessly causes bodily injury to another.” TEX. PENAL CODE ANN. § 29.02(a)(1)

(Vernon 2011). The phrase “in the course of committing theft” means “conduct

that occurs in an attempt to commit, during the commission, or in immediate flight

after the attempt or commission of theft.” Id. § 29.01 (1) (Vernon 2011). Finally,

a person commits theft if that person unlawfully appropriates property with intent

to deprive the owner of the property. Id. § 31.03(a) (Vernon Supp. 2012).

A. Theft

S.W. argues that the evidence was insufficient to establish that he committed

a robbery because he did not take the purse away from Lee and, thus, never

completed the theft. However, proof of a completed theft is not required to

establish the offense of robbery. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.

Crim. App. 2003). Rather, evidence that S.W. caused bodily injury in an attempt

7 to commit theft is sufficient to support the judgment against him. See TEX. PENAL

CODE ANN. §§ 29.01, 29.02(a)(1).

Here, Lee testified that the young man threw her down, tried to snatch her

purse, and hit her in the head. She also testified that she was afraid that she was

going to die. The night of the incident, Lee identified S.W. as her attacker. At

trial, Officers Zaunbrecher and Gilchrest also identified S.W. as the person they

apprehended at the scene whom Lee identified as her attacker. Officers

Zaunbrecher and Gilchrest both testified that they observed Lee shortly after the

robbery and that she had a knot swelling above her eyebrow that appeared to have

been inflicted recently. Thus, there was evidence that S.W. caused Lee bodily

injury while attempting to take her purse away from her. See id. §§ 29.01,

29.01(a)(1). Viewing all of the evidence in the light most favorable to the verdict,

we conclude that the trial court could have found the essential elements of robbery

beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Adames, 353 S.W.3d at 859.

B. Identity

S.W. also argues that the evidence was insufficient to establish his identity

as the person who robbed Lee.

The State was required to prove that S.W. was the perpetrator of the criminal

offense beyond a reasonable doubt. See Smith v. State, 56 S.W.3d 739, 744 (Tex.

8 App.—Houston [14th Dist.] 2001, pet. ref’d); see also In re D.R.T., 339 S.W.3d

208, 210 (Tex. App.—El Paso 2011, no pet.) (stating same in juvenile case). Proof

of identity may be had by direct or circumstantial evidence. In re D.R.T., 339

S.W.3d at 210 (citing Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App.

2009)).

Here, Lee was unable make an in-court identification of S.W. as the person

who robbed her. However, other evidence established S.W.’s identity as the

robber. See Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.—Houston [14th

Dist.] 1993, pet. ref’d) (providing that courtroom identification is not required

when other evidence is presented establishing culpability of defendant); see also

Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.)

(“[T]he absence of an in-court identification is merely a factor for the jury to

consider in assessing the weight and credibility of the witnesses’ testimony.”). Lee

identified S.W. as the person who robbed her immediately following the incident,

after he had been apprehended by the police. She testified that she did not

recognize him at trial because “a lot of things [had] happened to [her]” since the

crime occurred. Officers Zaunbrecher and Gilchrest both identified S.W. in court

as the young man they apprehended at the time of the robbery, and they both

testified that Lee identified S.W. as her assailant at the time the robbery occurred.

9 S.W. also argues that Lee’s testimony regarding the time when the robbery

occurred was inconsistent with the testimony of other witnesses. Lee testified that

the incident occurred “late in the evening” and then specified that it happened

around seven in the evening. However, both Officers Zaunbrecher and Gilchrest

testified that the incident occurred sometime between midnight and two in the

morning. S.W. testified that he encountered Lee sometime around eleven or

twelve at night.

S.W. does not explain in his brief how this discrepancy in the testimony

supports his argument that the evidence was insufficient to establish his identity as

the person who robbed Lee. However, we observe that the trial court was the fact

finder, and as such, it was the sole judge of the credibility of the witnesses and the

weight to be given their testimony. See Bartlett, 270 S.W.3d at 150. The trial

court was further entitled to accept one version of the facts—i.e., the version

presented by Officers Zaunbrecher and Gilchrest—and reject another, and it was

entitled to reject any part of a witness’s testimony—i.e., the portion of Lee’s

testimony regarding the time when the robbery occurred. See Sharp, 707 S.W.2d

at 614; Henderson, 29 S.W.3d at 623.

Thus, viewing all of the evidence in the light most favorable to the verdict,

we conclude that the trial court could have found beyond a reasonable doubt that

10 S.W. was the person who had robbed Lee. See Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Adames, 353 S.W.3d at 859.

We overrule S.W.’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Higley, and Massengale.