COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-299-CV
IN
THE MATTER OF J.B.M.
------------
FROM
COUNTY COURT AT LAW NO. 1 OF DENTON COUNTY
OPINION *
I. INTRODUCTION
Appellant
J.B.M., a juvenile, appeals from his adjudication of delinquency. In three
points, J.B.M. complains that the evidence supporting the jury’s finding was
legally and factually insufficient to show he attempted to commit sexual
assault, and that the trial court erred in overruling his motions to quash the
State’s pleading. We affirm.
II. FACTUAL AND PROCEDURAL
BACKGROUND
On
June 22, 2003, the alleged victim, eighteen-year-old R.S., lived in the
Elizabeth Garden Apartments in Roanoke, Texas with her boyfriend and ten-
month-old daughter. Around midnight on June 22nd, R.S. had gone outside to sit
at a picnic table on the apartment grounds with her boyfriend and another
couple. At one point, R.S. went back to her apartments and ran in to J.B.M., who
she recognized as a fellow resident of the apartment. According to R.S., J.B.M.
flirted with her and “acted like he was going to try to kiss me. He came to me
a little bit, and I pulled away.” R.S. then went back up to her apartment.
After retrieving something from her apartment, R.S. returned to the picnic area
without seeing J.B.M.
About
2:00 a.m. on June 23rd, after R.S. and her boyfriend had returned to their
apartment, R.S. went outside to check the mail then went back out to the picnic
area, where she again saw J.B.M. They talked for two or three minutes and R.S.
asked J.B.M. for a cigarette; he stated that he had some in his apartment. She
followed him back to the apartment, intending only to get the cigarette and
return to the picnic area. According to R.S., after they entered the apartment,
J.B.M. told her that he liked her and started to try to kiss her. She testified
that she pushed him away, but he kept trying to pull her back to him and kiss
her. J.B.M. then pulled her to the floor and was on top of her. While R.S. was
on the floor, J.B.M. had his legs wrapped around on top of her ankles, held her
down with one arm, put his other arm underneath her shirt, and continued to kiss
her face and neck. According to R.S., as she struggled, her legs started to
spread open because of the way J.B.M. had his legs on hers. R.S. then asked
J.B.M. if he was trying to rape her, and J.B.M. got very offended, denied that
was what he was doing, but did not let her up. R.S. testified that she believed
that he was trying to have sex with her. R.S. said she was being “loud enough
for [J.B.M.] to get the point” that she wanted him to stop, but acknowledged
that she did not yell or scream. The attack ended when J.B.M.’s next door
neighbor knocked on the door and J.B.M., who appeared startled, jumped up from
the floor. R.S. then ran for the door, and told the neighbor what had happened.
The neighbor walked R.S. back to her apartment where she told her boyfriend, who
called the police. On cross-examination, R.S. admitted that she told the police
in her report that after she got off the floor and before she opened the door,
J.B.M. kept pulling her back and saying “I wasn’t trying to rape you” and
“I was just playing around.”
On
July 22, 2003, the State filed its petition against J.B.M. alleging that he
committed attempted sexual assault. J.B.M. pleaded not true, a jury found the
allegation to be true, and the trial court ordered that J.B.M. be committed to
the Texas Youth Commission for an indeterminate period not to exceed his 21st
birthday. This appeal followed.
III. THE STATE’S PETITION
In
his third point, J.B.M. complains that the State’s petition should have been
quashed because it failed to indicate how he was going to effect a sexual
assault, and it did not allege the requisite mental state. Under the Texas
Family Code, the petition must state “with reasonable particularity the time,
place, and manner of the acts alleged and the penal law or standard of conduct
allegedly violated by the acts.” Tex.
Fam. Code Ann. § 53.04(a)(1) (Vernon 2004). This standard is less
stringent than the standard applicable to criminal indictments in that it
requires only that the juvenile be given notice of the offense charged. In re
A.B., 868 S.W.2d 938, 940 (Tex. App.—Fort Worth 1994, no writ).
Furthermore, when a defendant is charged under the criminal attempt statute, the
State is only required to plead the elements of an criminal attempt offense,1 and need not allege the constituent elements of the
underlying offense. Id. Here, the State’s petition alleged the
following:
That on or about the 22nd of June, 2003, in Denton County, Texas said [J.B.M.]
did violate a penal law of this State, punishable by Imprisonment to-wit: Section 15.01 of
the Texas Penal Code, in that the said child did then and there, with specific
intent to commit the offense of Sexual Assault, of [R.S.], do an act, to-wit:
holding [R.S.] down, kissing [R.S.], spreading [R.S.’s] legs, and reaching
under [R.S.’s] shirt, which amounted to more than mere preparation that tended
but failed to effect the commission of the offense intended.
Because
the State’s petition tracks the language of the criminal attempt statute and
states the offense allegedly attempted, J.B.M. received fair notice of the
offense charged. Id. at 940-41. Accordingly, the trial court did not err
in overruling J.B.M.’s motion to quash the petition. We overrule J.B.M.’s
third point.
IV. LEGAL SUFFICIENCY
In
his first point, J.B.M. complains that the evidence is legally insufficient to
support the jury’s finding that he engaged in delinquent conduct. Although the
appeal of juvenile court orders are generally treated as civil cases, we apply
the criminal legal sufficiency standard of review to adjudication proceedings in
juvenile cases. See In re J.D.P., 85 S.W.3d 420, 422 (Tex. App.—Fort
Worth 2002, no pet.). Under the legal sufficiency standard, we view all the
evidence in the light most favorable to the verdict in order 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 (1979); Burden v. State, 55 S.W.3d 608, 612
(Tex. Crim. App. 2001). This standard gives full play to the responsibility of
the trier of fact to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson,
443 U.S. at 319, 99 S. Ct. at 2789. When performing a legal sufficiency review,
we may not sit as a thirteenth juror, re-evaluating the weight and credibility
of the evidence and, thus, substituting our judgment for that of the fact
finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1131 (2000). Instead, as a reviewing court, we only ensure
the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 244
(Tex. Crim. App.), cert. denied, 510 U.S. 837 (1993); In re D.T.C.,
30 S.W.3d 43, 50 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
The
State alleged that J.B.M. engaged in the delinquent conduct of attempted sexual
assault. Under the criminal attempt statute of section 15.01(a) of the Texas
Penal Code, the State was required to show that J.B.M., with specific intent to
commit sexual assault, did an act amounting to more than mere preparation that
attempts but fails to effect the commission of a sexual assault, which elements
are found in section 22.011(a)(1) of the Texas Penal Code. Tex. Penal Code Ann. §§ 15.01(a),
22.011(a)(1) (Vernon 2004). See Mendez v. State, No. 05-03-01710-CR, 2004
WL 1738889, at *3 (Tex. App.—Dallas Aug. 4, 2004, no pet. h.) (not designated
for publication). J.B.M. contends that the evidence at trial, specifically the
testimony of the victim, shows only an assault and is legally insufficient to
show his intent to commit a sexual assault.
In
a case where the charge is attempted sexual assault, intent may be inferred from
the accused’s actions, words, and conduct. Lindsey v. State, 764 S.W.2d
376, 378 (Tex. App.—Texarkana 1989, no pet.). In the instant case, J.B.M.
isolated R.S. in his apartment under the guise of retrieving a cigarette after
R.S. earlier denied his physical advances. R.S. testified that J.B.M. kept
pulling her to him, kissing and touching her, pulled her to the ground,
restrained her, reached under her shirt, and caused her legs to spread. R.S.
also testified that she thought J.B.M. was trying to have sex with her.
It
is not required that J.B.M. do every act short of completing the actual offense;
the fact that the offense was not completed does not negate J.B.M.’s intent. See
Lindsey, 764 S.W.2d at 379; Hackbarth v. State, 617 S.W.2d 944, 946
(Tex. Crim. App. 1981); Moreno v. State, 872 S.W.2d 1, 3 (Tex.
App—Houston [1st Dist.] 1993, no pet.). Because it is within the province of
the jury to resolve such conflicts, we find, viewing all the evidence in the
light most favorable to the verdict, that any rational trier of fact could have
found the essential elements of the offense of attempted sexual assault beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789 (1979). Accordingly, we overrule J.B.M.’s first point.
V. FACTUAL SUFFICIENCY
In
his second point, J.B.M. complains that the evidence is factually insufficient
to support the jury’s finding that he engaged in delinquent conduct.
In
1993, the Texas Supreme Court held that raising a factual sufficiency challenge
in a motion for new trial is a prerequisite to raising a factual sufficiency
challenge on appeal in a juvenile case, citing the Texas Family Code provision
providing that the Rules of Civil Procedure would apply to juvenile proceedings
except where there was a conflict within Title 3 of the Family Code. In re
M.R., 858 S.W.2d 365, 366 (Tex. 1993), cert. denied, 510 U.S. 1078
(1994). Since that ruling, the court of criminal appeals has acknowledged that a
factual sufficiency review is appropriate in adult criminal cases. See Clewis
v. State, 922 S.W.2d 126, 136 (Tex. Crim. App. 1996). Further, from 2001 to
date we have applied a criminal standard of review to legal and factual
sufficiency challenges of juvenile adjudication hearings. See In re J.S.,
35 S.W.3d 287, 291 (Tex. App.—Fort Worth 2001, no pet.) (legal sufficiency); In
re A.C., 48 S.W.3d 899, 903 (Tex. App.—Fort Worth 2001, pet. denied)
(factual sufficiency). Additionally, the Rules of Appellate Procedure, which
govern motions for new trial in criminal cases, do not require a motion for new
trial. See Tex. R. App. P.
21. As a result, since the supreme court’s decision in In re M.R.,
there has developed a split in the courts of appeals as to whether a motion for
new trial raising a factual sufficiency challenge is still required to challenge
on appeal the factual sufficiency of the evidence in a juvenile adjudication
hearing. See In re J.A.A., No. 10-03-012-CV, 2003 WL 23120184, at *1
(Tex. App.—Waco Dec. 31, 2003, no pet.) (mem. op.) (indicating a motion for
new trial raising a factual sufficiency challenge is required); In re
E.U.M., 108 S.W.3d 368, 371-72 (Tex. App.—Beaumont 2003, no pet.)
(determining a motion for new trial raising a factual sufficiency challenge is
required); In re J.L.H., 58 S.W.3d 242, 245-46 (Tex. App.—El Paso 2001,
no pet.) (concluding that a motion for new trial raising a factual sufficiency
challenge is not required); In re D.T.C., 30 S.W.3d 43, 51 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (indicating that a motion for new
trial raising a factual sufficiency challenge is required).
We
believe the precedent set forth by the Texas Supreme Court in In re M.R.
is still controlling. See 858 S.W.2d at 366. In that decision, the court
disapproved of the court of appeals’ decision not requiring a motion for new
trial as a prerequisite for a factual sufficiency review, noting that the Family
Code provided that the Texas Rules of Civil Procedure were to govern and Rule
324 required a motion for new trial. Id. Further, in that opinion the
supreme court instructed us that when in juvenile cases the Family Code
specifically provides that the Rules of Civil Procedure apply, caution should be
used when relying on “adult criminal cases and criminal procedure rules.” See
id. Accordingly, we hold that as a prerequisite to raising a factual
sufficiency challenge on appeal from a juvenile adjudication hearing, an
appellant must first file a motion for new trial challenging the factual
sufficiency of the evidence. See Tex.
R. Civ. P. 324(b)(2); In re M.R., 858 S.W.2d at 366; In re
J.A.A., No. 10-03-012-CV, 2003 WL 23120184, at *1; In re E.U.M.,
108 S.W.3d at 371-72; In re D.T.C., 30 S.W.3d at 51; but see In
re J.L.H., 58 S.W.3d at 245-46. Because J.B.M. did not file a motion for new
trial, nothing is presented for our review and his second point is overruled.
VI. CONCLUSION
Having
overruled all of J.B.M.’s points, we affirm the trial court’s judgment.
BOB
MCCOY
JUSTICE
EN
BANC
DAUPHINOT,
J. filed a dissenting opinion in which LIVINGSTON and WALKER, JJ. join.
GARDNER,
J. filed a concurring opinion.
DELIVERED:
February 3, 2005
CONCURRING OPINION
I
join in the majority opinion, including the holding that a complaint in a motion
for new trial is still required to preserve error as to factual sufficiency of
evidence on appeal in a juvenile adjudication proceeding. I agree we are bound
by the decision of the Supreme Court of Texas in In re M.R., 858 S.W.2d
365, 366 (Tex. 1993), cert. denied, 510 U.S. 1078 (1994). See Lubbock
County, Texas v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.
2002) (explaining that, once the supreme court announces a proposition of law,
the decision is considered binding precedent and it is not for a court of
appeals to abrogate or modify such established precedent).
I
write only to note my concern that continuing to hold juveniles to the technical
preservation of error rule for appeal of factual sufficiency issues in civil
cases, when no such requirement exists in adult criminal cases, ignores the
reality of the metamorphosis of the juvenile system to one “barely
distinguishable from our adult criminal system.” In re J.L.H., 58
S.W.3d 242, 246 (Tex. App.—El Paso 2001, no pet.); see also In re D.A.S., 973
S.W.2d 296, 299 (Tex. 1998) (recognizing consequences of adjudication of
delinquency and loss of liberty by juvenile may be comparable to felony
conviction); In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998) (recognizing
that juvenile cases are quasi-criminal in nature).
I
believe the 1993 decision of the supreme court in In re M.R. remains
viable despite subsequent developments in juvenile law. Certainly, by the
adoption of the Juvenile Justice Code as Title 3 to the Texas Family Code in
1995, the legislature moved away from the traditional rehabilitation model for
treatment toward accountability and punishment, responding to the growing social
problem of more and younger juvenile offenders committing more numerous and
serious crimes. See Act of May 31, 1995, 74th Leg., R.S., ch. 262, § 14,
1995 Tex. Gen. Laws 2517, 2524, 2646.2 The
legislature added and has continued to add an increasing number of provisions
and exceptions for application of criminal standards and criminal rules. The
Texas Rules of Evidence applicable to criminal cases now apply in juvenile
delinquency proceedings, as does chapter 38 of the Code of Criminal Procedure. Tex. Fam. Code Ann. § 51.17(c) (Vernon
Supp. 2004-05). Discovery is now conducted pursuant to the Code of Criminal
Procedure and case decisions in criminal cases. Id. § 51.17(b).
A
comprehensive section of the Juvenile Justice Code now even prescribes certain
procedures comparable to those provided in the rules of appellate procedure
applicable to adult criminal cases, for appeals in juvenile proceedings. Tex. Fam. Code Ann. § 56.01 (Vernon
2002). That section specifies that a juvenile has the right to appeal and the
right to counsel on appeal as well as the right to appointment of an attorney
for the appeal because of indigency. Id. § 56.01(c), (d). Similar to the
procedure mandated for adults who appeal from plea-bargained convictions, a
disposition in accordance with an agreement between the State and a juvenile who
pleads or agrees to a stipulation of evidence precludes an appeal by the
juvenile except as to matters raised by written motion filed before the plea
proceeding or with permission of the trial court. Id. § 56.01(n). Upon
entering an appealable order in a juvenile case, the trial court must advise the
child and the child’s parent or guardian ad litem of the child’s rights to
appeal and to counsel. Id. § 56.01(e). Significantly, if the child or
the child’s parent or guardian expresses a desire to appeal, the statute
requires “the attorney who represented the child before the juvenile court”
to file the notice of appeal and inform the court whether that attorney will
handle the appeal. Id. § 56.01(f).
The
difficulty is that, while moving toward treating juvenile adjudications of
delinquency as adult criminal convictions and providing for criminal standards
and procedure in certain instances, the legislature has nevertheless retained
the statutory language requiring that juvenile proceedings shall be governed by
the Texas Rules of Civil Procedure. Tex.
Fam. Code Ann. § 51.17(c). As well, it has continued to specify that
appeals in juvenile cases “shall be as in civil cases generally.” Tex. Fam. Code Ann. § 56.01.
As
our sister court recognized in In re J.L.H., because juvenile proceedings
more closely resemble criminal than civil proceedings, most attorneys defending
juveniles – and now charged with continuing to represent the child through the
filing of a notice of appeal – possess greater knowledge of the criminal rules
than civil procedure. Those attorneys, typically criminal defense lawyers, will
also necessarily continue to represent the juveniles during the same period for
filing a motion for new trial. Criminal defense lawyers are familiar with the
rule of appellate procedure not requiring a motion for new trial in a
criminal case to preserve error for factual insufficiency of evidence. See
Tex. R. App. P. 21. But those
lawyers are not likely to be on intimate terms with the civil rule providing
just the opposite, requiring a challenge to factual sufficiency of the evidence
to support a jury finding to be raised by motion for new trial, as evidenced by
the number of appellate decisions finding waiver of factual sufficiency because
no motion for new trial was filed pursuant to Rule 324(b)(2) of the Texas Rules
of Civil Procedure. Tex. R. Civ. P.
324(b)(2).
The
specific issue here is perplexing, as seen from the split in the courts of
appeals on the issue as described by the majority. And it is merely one instance
of the patchwork quilt that now comprises juvenile law, presenting lawyers and
judges with the daunting task of searching through family code statutes,
criminal substantive decisional law, criminal rules of evidence, civil trial
rules, and civil appellate rules, as well as both criminal and civil decisional
law interpreting those diverse and scattered statutes, legal principles, and
rules.
The
supreme court could resolve the issue by abrogating its holding in In re M.R.
in light of the evolution of juvenile law in recent years, although it appears
that decision was based primarily on statutory interpretation of the family code
requiring application of the civil rules in juvenile cases, and those provisions
have not changed. Alternatively, the legislature could amend section 56.01 to
provide that no motion for new trial is necessary to preserve error as to
factual sufficiency of evidence in a jury case. That would be a simple answer to
this issue. What we have now is a procedural trap.
We
are holding juveniles to adult accountability subject in many cases to adult
punishment, without fully providing for corresponding remedies and protections
including adequate appellate review on the merits. Eliminating the technicality
of requiring preservation of error for factual sufficiency of evidence in a
motion for new trial would be a step toward reaching the stated goal of the
Juvenile Justice Code with respect to appeals for juveniles of providing a
“simple judicial procedure through which . . . the parties are assured of a
fair hearing and their constitutional and other legal rights recognized and
enforced.” Tex. Fam. Code Ann.
§ 51.01(6).
ANNE
GARDNER
FROM
THE COUNTY COURT AT LAW NO. 1 OF DENTON COUNTY
DISSENTING OPINION
I
dissent from the majority’s holding that J.B.M. failed to preserve his factual
sufficiency challenge. When confronted with this same issue, our sister court in
El Paso provided the following explanation for holding that a juvenile does not
need to challenge the factual sufficiency of the evidence supporting
adjudication in a motion for new trial in order to later raise the issue on
appeal:
Initially, we note that the State contends J.L.H. waived her factual sufficiency
challenges by failing to file a motion for new trial. Indeed, the Texas Supreme
Court held in 1993 that TEX. R. CIV. P. 324(b), requiring a motion for new trial
be filed in order to complain of factual sufficiency on appeal, applies to
juvenile proceedings.3 Our sister court has
recently confirmed that holding.4
Nevertheless, for the reasons set out here, we conclude that the Supreme Court's
pronouncement on the issue has since been superceded by developments in our
current juvenile system.
At
one time, the safeguards afforded adults in criminal proceedings did not apply
to juvenile proceedings.5 The juvenile system
was originally created for treatment and rehabilitation of children, and focused
on the best interest of the child. This distinguished the juvenile courts
from adult criminal courts, which direct their efforts primarily toward
punishment.6 Because of this difference in
purpose, juveniles were denied many rights, both procedural and substantive,
that were routinely afforded adults.7
The
juvenile system's philosophy of treatment and rehabilitation has metamorphosed,
however, into one much focused on punishment that is in many ways barely
distinguishable from our adult criminal system. Three of the purposes
expressed in the Juvenile Justice Code are to provide for the protection of the
public and public safety, to promote the concept of punishment for criminal
acts, and to protect the welfare of the community and to control the commission
of unlawful acts by children.8 The "grim
reality" of today's juvenile system is a far cry from the days of its
creation as a "system wherein juveniles were rehabilitated rather than
incarcerated, protected rather than punished—the very antithesis of the adult
criminal system."9 We believe this change
has eroded the original logic for denying juveniles the same procedural
protections as adults.10 We therefore
recognize that the juvenile system is, in many ways, more closely related to
criminal than civil proceedings and it follows that most advocates practicing in
the juvenile system will possess greater expertise in criminal than civil
procedure.
Moreover,
we note that in 1993 when the Supreme Court found a motion for new trial must be
filed to preserve factual sufficiency in a juvenile case, there was no general
factual sufficiency review in adult criminal cases. Only in 1996, with Clewis
v. State,11 did the Court of Criminal Appeals
acknowledge a right to factual sufficiency review of a conviction.
.
. . .
We
think the time has come . . . to acknowledge that juvenile law is much more
criminal than civil in nature. In examining the drift of juvenile law from
its civil roots to its criminal present, we conclude it makes no sense to
require procedural hurdles of juveniles which adults need not meet in parallel
circumstances. If anything, juveniles should be afforded more opportunity for
appellate review of their claims, consistent with the stated purpose of the
Juvenile Justice Code that it be construed:
to provide a simple judicial procedure through which the provisions of this
title are executed and enforced and in which the parties are assured a fair
hearing and their constitutional and other legal rights recognized and enforced.12
We therefore conclude that a juvenile need not file a motion for new trial
raising factual sufficiency of the evidence in order to raise that issue on
appeal.13
As
the El Paso court points out, at the time M.R. was decided, we did not
have factual sufficiency review in criminal cases. For the past eight years,
however, we have.14 Since the advent of Clewis,
this court has held that the criminal law standard for factual sufficiency of
the evidence applies to evidence supporting adjudication of a juvenile.15 As both Texas Rule of Appellate Procedure
21.2 and the Texas Court of Criminal Appeals make clear, no motion for new trial
is necessary to preserve factual sufficiency issues in a criminal case.16
Additional
support for applying rule 21.2 to juvenile cases can be found in In re M.A.F.17 In M.A.F., which was decided five years after M.R.,
the Texas Supreme Court held that the predecessor of rule 21.3(f), former rule
30(b)(7), applies to evidence improperly received by a jury after it retires to
deliberate at the adjudication stage of a juvenile trial.18
That is, the Texas Supreme Court has, albeit in a different context, already
held that the criminal rules regarding motions for new trial, not the civil
rules, apply in juvenile cases.
Because
I see no reason for this court to take inconsistent positions, because I agree
with the rationale of the El Paso Court of Appeals, and because I believe that
the Texas Supreme Court has indicated that the criminal rules regarding motions
for new trial should apply in juvenile cases, I would hold that J.B.M.’s
failure to file a motion for new trial complaining that the evidence was
factually insufficient to support his adjudication did not forfeit his factual
sufficiency complaint on appeal. I would therefore address the merits of his
complaint. Because the majority refuses to do so, I respectfully dissent.
LEE
ANN DAUPHINOT
LIVINGSTON
and WALKER, JJ. join.
NOTES
* Majority by Justice McCoy; Concurrence by Justice Gardner;
Dissent by Justice Dauphinot
MAJORITY OPINION NOTES
1.
The elements of criminal attempt are as follows: (1) a person; (2) with specific
intent to commit an offense; (3) does an act amounting to more than mere
preparation; (4) that tends but fails to effect the commission of the offense
intended. Tex. Penal Code Ann.
§ 15.01(a) (Vernon 2004).
CONCURRING
OPINION NOTES
2.
See generally, Justice Ed Kinkeade, Appellate Juvenile Justice in
Texas — It’s a Crime! Or Should be, 51 Baylor L. Rev. 17, 26-27 (1999).
Judge Kinkeade, a former justice on the 5th Court of Appeals in Dallas, is now a
United States District Judge for the Northern District of Texas.
DISSENTING OPINION NOTES
3.
In re M.R., 858 S.W.2d 365, 366 (Tex.1993) [,cert. denied, 510
U.S. 1078 (1994)].
4.
In re D.T.C., 30 S.W.3d 43, 51 (Tex. App.—Houston [14th Dist.] 2000, no
pet.).
5.
In re J.S.S., 20 S.W.3d 837, 841 (Tex. App.—El Paso 2000, pet. denied).
6.
Id.
7.
Id.; Hidalgo v. State, 983 S.W.2d 746, 751-52 (Tex. Crim. App.
1999).
8.
Tex. Fam. Code Ann. § 51.01(1),
(2)(A), and (4) (Vernon [2002]).
9.
Lanes v. State, 767 S.W.2d 789, 791 (Tex. Crim. App. 1989).
10.
In re J.S.S., 20 S.W.3d at 842; Hidalgo, 983 S.W.2d at 751.
11.
922 S.W.2d 126, 136 (Tex. Crim. App. 1996).
12.
Tex. Fam. Code Ann. § 51.01(6).
13.
In re J.L.H., 58 S.W.3d 242, 245-46 (Tex. App.—El Paso 2001, no pet.).
14.
See Clewis, 922 S.W.2d at 136.
15.
In re J.D.P., 85 S.W.3d 420, 422 (Tex. App.—Fort Worth 2002, no pet.); In
re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.); In
re A.P., 59 S.W.3d 387, 392 (Tex. App.—Fort Worth 2001, no pet.).
16.
Tex. R. App. P. 21.2 (providing that in
criminal cases, motion for new trial is prerequisite to presenting point on
appeal only when necessary to adduce evidence not in the record); Washington
v. State, 127 S.W.3d 197, 203 (Tex. App.—Houston [1st Dist.] 2003, pet
dism’d as untimely filed); see Moff v. State, 131 S.W.3d 485, 488-89
(Tex. Crim. App. 2004) (“A defendant need not file a motion for directed
verdict or a motion for new trial to preserve an appellate claim concerning the
sufficiency of the evidence to prove his guilt. He need not object to the
admission of evidence in the trial court to preserve this issue. He need
not claim, in the trial court, that the method by which the State proved an
element of the offense was deficient or defective. In short, a claim
regarding sufficiency of the evidence need not be preserved for appellate review
at the trial level, and it is not forfeited by the failure to do so.”).
17.
966 S.W.2d 448, 449-50 (Tex. 1998).
18.
Id.; Tex. R. App. P.
30(b)(7), 707-708 S.W.2d (Tex. Cases) xlix (1986, amended 1997 and renumbered as
21.3(f)).