in the Matter of B. D. S.

Opinion

Opinion issued June 16, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00762-CV ——————————— IN THE MATTER OF B.D.S.

On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2013-06337J

MEMORANDUM OPINION

Appellant B.D.S., a juvenile, appeals from the trial court’s judgment in

which it found that she had engaged in delinquent conduct constituting the penal

offense of graffiti. See TEX. PENAL CODE ANN. § 28.08 (Vernon 2014) (setting out

offense of graffiti); see also TEX. FAM. CODE ANN. § 51.03 (Vernon 2014)

(defining delinquent conduct as “conduct . . . that violates a penal law of this state or of the United States punishable by imprisonment or confinement in jail”). The

trial court placed Appellant on probation for one year and released her to the

custody of her mother. In one issue on appeal, Appellant asserts that the evidence

was legally insufficient to support the judgment because the State failed to prove

that she had engaged in the alleged delinquent conduct.

We affirm.

Background

On November 11, 2013, 13-year-old Appellant and three other girls—S.Y.,

A.R., and J.E.—went into the bathroom at their middle school to fix their makeup.

Appellant and S.Y. used an indelible marker to write on the bathroom wall. After

they wrote on the wall, a teacher walked into the restroom. The teacher sent the

four girls to the principal’s office.

S.Y. admitted to writing on the wall, but Appellant denied it. Each of the

four girls wrote a statement while in the principal’s office. S.Y., A.R., and J.E.

each said in their statements that Appellant had written on the wall.

The State filed a petition, alleging that Appellant had committed the state-

jail felony offense of writing on a school wall with an indelible marker, causing a

loss of less than $20,000. See TEX. PENAL CODE ANN. § 28.08(a)(2), (d).

Appellant waived her right to a jury, and the adjudication hearing was tried before

2 the bench. See TEX. FAM. CODE ANN. § 54.03 (Vernon 2014) (providing for

adjudication hearing to determine if juvenile engaged in delinquent conduct).

At trial, the State presented the testimony of J.E., S.Y., and A.R. J.E.

testified that she was in the bathroom with the other three girls. She stated that

A.R. had the marker, but it was Appellant’s idea to write on the wall. J.E. testified

that Appellant first wrote on the wall and then S.Y. wrote on the wall.

J.E. also testified that S.Y.’s nickname is “Little GiGi” and that Appellant’s

nickname is “Giggles.” During its examination of J.E., the State offered a

photograph of the writing on the wall. Included in the writing were the words

“Little GiGi” and “Gigglesz.”

In her testimony, J.E. stated that S.Y. also wrote on the wall. J.E. admitted

that she had implicated only Appellant in her written statement. J.E. testified that

S.R. was her friend, but Appellant was only an acquaintance.

At trial, S.Y. admitted to writing some of the graffiti but denied writing part

of it. S.Y. acknowledged that, in her written statement, she had stated that

Appellant also wrote on the wall. However, at trial, S.Y. testified that she did not

know whether Appellant had written on the wall. She stated that she had

implicated Appellant in her written statement because she had felt pressured by the

principal to do so.

3 In her testimony, A.R. stated that she brought the marker into the bathroom

and had laid it on the sink. She stated that she did not see who took the marker or

who wrote on the wall. She specifically testified that she did not see Appellant

write on the wall.

A.R. acknowledged that she had stated in her written statement that

Appellant, J.E., and S.Y. had written on the wall. A.R. testified that she had

implicated the other girls because she was scared. She indicated that the principal

made her feel that “something bad was going to happen” if she did not say who

had written on the wall. A.R. acknowledged that she and Appellant were friends.

Appellant did not testify at trial. During closing argument, Appellant

asserted that the State had not met its burden to show that she had written on the

wall because J.E.’s, S.Y.’s, and A.R.’s testimony was not reliable or trustworthy.

Appellant averred that the girls’ statements were “all over the place.” Appellant

pointed out that there were inconsistencies between the girls’ written statements

and their testimony at trial. Appellant also pointed out that all the girls had been

suspects at the time they gave their written statements. Each girl had testified that

she had felt threatened and pressured by the principal to implicate other girls.

After hearing the evidence, the trial court found that Appellant had engaged

in delinquent conduct. It placed Appellant on one year’s probation and released

Appellant to her mother’s custody. This appeal followed.

4 Sufficiency of the Evidence

In her sole issue, Appellant asserts that the evidence was legally insufficient

to support the judgment because the State failed to prove, beyond a reasonable

doubt, that she had engaged in the alleged delinquent conduct constituting the

offense of graffiti on a school.

A. Standard of Review

Although they are civil proceedings, juvenile cases 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 S.W., No. 01–

12–01089–CV, 2013 WL 6097794 at *2 (Tex. App.—Houston [1st Dist.] Nov. 19,

2013, no pet.) (mem. op.); see also TEX. FAM. CODE ANN. § 51.17 (Vernon 2014)

(outlining rules of procedure and evidence applying to juvenile proceedings).

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). Accordingly, 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 S.W., 2013 WL 6097794 at *2; In re C.J., 285 S.W.3d 53, 55–56 (Tex. App.—

Houston [1st Dist.] 2009, no pet.). Thus, we apply the standard adopted by the

Texas Court of Criminal Appeals to evaluate the sufficiency of the evidence, as set

5 out in Jackson v. Virginia. In re S.W., 2013 WL 6097794 at *2 (citing 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)).

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). We can hold evidence to be insufficient

under the Jackson standard in two circumstances: (1) the record contains no

evidence, or merely a “modicum” of evidence, probative of an element of the

offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

6 to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). In short, 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). An appellate court presumes

that the fact finder resolved any conflicts in the evidence in favor of the verdict and

defers to that resolution, provided that the resolution is rational. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; see also Clayton v. State, 235 S.W.3d at 778.

In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B. Analysis

The State was required to prove that Appellant was the perpetrator of the

criminal offense beyond a reasonable doubt. See In re S.W., 2013 WL 6097794 at

*3. Appellant asserts that the evidence was insufficient to establish her identity as

a person who wrote on the bathroom wall.

7 At trial, J.E. testified that she saw Appellant and S.Y. write on the bathroom

wall with the marker. J.E. also testified that Appellant’s nickname is Giggles. A

photograph of the graffiti shows that it contains the writing “Gigglesz.” S.Y. and

A.R. testified that they did not see Appellant write on the wall; however, they

admitted that, in their written statements, made on the day of the incident, they had

stated that Appellant had written on the wall.

On appeal, Appellant argues that J.E.’s testimony cannot support the finding

that Appellant wrote on the wall because J.E.’s testimony is “consistently false

[when compared] with the story of the other testifying witnesses.” Appellant

points out that J.E. testified that a campus police officer and the principal were in

the room with her when she wrote her statement; however, the campus police

officer testified that she was not in the room. Appellant also points out that J.E.’s

testimony is not consistent with the testimony of S.Y. because S.Y. testified that

she did not know whether Appellant had written on the wall. Appellant further

asserts that J.E.’s testimony differed from A.R.’s testimony because A.R.

acknowledged that she had indicated in her written statement that J.E. had written

on the wall. J.E., however, denied writing on the wall or being asked to write on

the wall.

Lastly, Appellant asserts that it is possible that J.E.’s identification of

Appellant may have been coerced. Appellant acknowledges that J.E. did not state

8 that she felt pressured to identify Appellant. Nonetheless, Appellant asserts that

J.E. may have felt pressured because S.Y. and A.R. testified that they had felt

threatened by the principal to identify Appellant.

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 of 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 J.E.—and reject

another, and it was entitled to reject any part of a witness’s testimony—i.e., the

portion of S.Y.’s and A.R.’s testimony in which they indicated Appellant did not

write on the wall. See In re S.W., 2013 WL 6097794 at *2 (citing 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)).

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

Appellant wrote on the bathroom wall of the school. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Adames, 353 S.W.3d at 859; In re S.W., 2013 WL 6097794 at

*4. We hold that the evidence was sufficient to support the judgment of the trial

court.

We overrule Appellant’s sole issue.

9 Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.