COURT OF
APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO. 2-03-112-CV
IN
THE MATTER OF M.D.H.
------------
FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ON REHEARING
After
reviewing Appellant M.D.H.’s motion for rehearing, we deny the motion. We also
withdraw our December 18, 2003 opinion and judgment and substitute the
following.
Appellant
was charged in cause number 74033-J with misdemeanor assault on a family member
and resisting arrest. The State’s pleadings, in reference to the resisting
arrest charge, stated that Appellant used force against a peace officer, “to
wit: pulling away from him.” Prior to the adjudication hearing, the State
waived the assault charge, and Appellant stipulated to the State’s evidence on
the resisting arrest charge. The trial court noted, on the record, that the
misdemeanor assault charge was dropped and that it would “consider the
evidence only as it relates to the second paragraph, the evading arrest
offense.” The trial court, sitting without a jury, found that Appellant
engaged in delinquent conduct by resisting arrest. At the disposition hearing,
the trial court reviewed Appellant’s social history report, and determined
that Appellant had two previous delinquency adjudications, both for misdemeanor
assault/family violence. Appellant was on probation for the second prior offense
when she committed the present offense of resisting arrest. The trial court
committed Appellant to an indeterminate sentence in the Texas Youth Commission (TYC).
In five issues, Appellant complains of the legal and factual sufficiency of the
evidence to support the adjudication and disposition of her case and asserts
that the trial court erred in considering evidence regarding her two prior
delinquent adjudications. We affirm.
STANDARD OF REVIEW
In
the adjudication phase of a juvenile case, the criminal legal and factual
sufficiency standards of review are employed. In re J.D.P., 85 S.W.3d
420, 422-23 (Tex. App.—Fort Worth 2002, no pet.); In re G.A.T., 16
S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). In
reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict. Cardenas v.
State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000); Narvaiz v. State,
840 S.W.2d 415, 423 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975
(1993). The critical inquiry is whether, after so viewing the evidence, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.
Crim. App.), cert. denied, 522 U.S. 844 (1997). 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 v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2788-89 (1979).
In
reviewing the factual sufficiency of the evidence to support a conviction, we
are to view all the evidence in a neutral light, favoring neither party. Johnson
v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922
S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence is factually insufficient if it
is so weak as to be clearly wrong and manifestly unjust or the adverse finding
is against the great weight and preponderance of the available evidence. Johnson,
23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all
the evidence, both for and against the finding, demonstrates that the proof of
guilt is so obviously weak as to undermine confidence in the verdict, or the
proof of guilt, although adequate if taken alone, is greatly outweighed by
contrary proof. Id. In performing this review, we are to give due
deference to the fact finder's determinations. Id. at 8-9; Clewis,
922 S.W.2d at 136. Consequently, we may find the evidence factually insufficient
only where necessary to prevent manifest injustice. Johnson, 23 S.W.3d at
9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
In
the disposition phase of a juvenile case, we review the evidence under the civil
standard. J.D.P., 85 S.W.3d at 426. In reviewing the legal sufficiency,
we therefore consider only the evidence and inferences tending to support the
findings under attack and set aside the judgment only if there is no evidence of
probative force to support the findings. Id.; see In re A.S.,
954 S.W.2d 855, 858 (Tex. App.—El Paso 1997, no pet.); In re S.A.M.,
933 S.W.2d 744, 745 (Tex. App.—San Antonio 1996, no writ). In reviewing
Appellant's factual sufficiency claim, we consider and weigh all the evidence
and set aside the judgment only if the finding is so against the great weight
and preponderance of the evidence as to be manifestly unjust. J.D.P., 85
S.W.3d at 426; In re T.K.E., 5 S.W.3d 782, 784 (Tex. App.—San Antonio
1999, no pet.); In re K.L.C., 972 S.W.2d 203, 206 (Tex. App.—Beaumont
1998, no pet.); A.S., 954 S.W.2d at 862.
Appellant,
in her second issue, argues that, when reviewing a factual sufficiency challenge
where the burden of proof at trial was beyond a reasonable doubt, courts should
view the evidence in a neutral light and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Appellant contends that we should apply the standard of review set forth
by the Texas Supreme Court for parental termination cases, which asks whether
the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the State’s claims. See In re C.H., 89
S.W.3d 17, 25-26 (Tex. 2002). The supreme court was clear, however, that this
standard applies to parental-right terminations, for which the burden of proof
at trial is clear and convincing evidence. Id. We decline Appellant’s
invitation to adopt a new standard of review for juvenile adjudications, and
instead, follow the standards this court has followed in the past. Weiner v.
Wasson, 900 S.W.2d 316, 320 (Tex. 1995) (for reasons of efficiency,
fairness, and legitimacy, a court must adhere to its precedents); In re C.J.H.,
79 S.W.3d 698, 702-03 (Tex. App.—Fort Worth 2002, no pet.); In re J.S.,
35 S.W.3d 287, 292 (Tex. App.—Fort Worth 2001, no pet.); Conner v.
ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 422 (Tex.
App.—Houston [14th Dist.] 1997, no writ).
Discussion
In
Appellant’s first and third issues, she argues that the evidence was legally
and factually insufficient to support a conviction for resisting arrest.
Appellant was adjudicated delinquent after the trial court found that she was
guilty of resisting arrest as defined by section 38.03 of the Texas Penal Code:
(a)
A person commits an offense if he intentionally prevents or obstructs a person
he knows is a peace officer or a person acting in a peace officer’s presence
and at his direction from effecting an arrest, search, or transportation of the
actor or another by using force against the peace officer or another.
Tex. Penal Code Ann. § 38.03(a) (Vernon 2003).
Although
Appellant signed a “Stipulation of Evidence,” she argues that she did not
stipulate to the entire record and asks us to disregard portions of the record.
In Appellant’s stipulation, she consented to the stipulation of evidence in
cause number 74033-J, and expressly waived the appearance, confrontation, and
cross-examination of witnesses. The stipulation is signed by Appellant, as well
as her attorney. During the adjudication portion of the hearing and after the
State produced evidence that Appellant attempted to strike an officer,
Appellant’s counsel argued that she stipulated only to pulling away from the
police officer. When Appellant attempted to tell the court her version of the
facts, the court explained:
[MDH],
let me tell you, I understand you’re trying to tell me your side of the story,
but if we’re going to stipulate to the evidence today, then the only evidence
that I can consider is what the District Attorney has just told me. That’s
what I need to consider is what those witnesses would say is what happened from
their perspective, and that’s the evidence that I can consider in finding
whether or not you broke the law. Do you understand that?
[APPELLANT]:
Yes, ma’am.
THE
COURT: And is that how you want to proceed today?
[APPELLANT’S
ATTORNEY]: Can I have just a minute, Your Honor?
THE
COURT: You may.
(Off-the-record
discussion here.)
THE
COURT: All right. Is that how you want to proceed today, with me considering
what the D.A.’s evidence is?
In
light of Appellant’s signed Stipulation of Evidence and her statements at
trial, we will consider all of the State’s evidence presented at trial.
In
further attempts to have this court disregard evidence that Appellant attempted
to strike the officer, Appellant argues, for the first time in her reply briefs,
that the pleadings do not support an adjudication on anything more than pulling
away because the pleadings do not include claims that Appellant struck at the
officer. Thus, according to Appellant, any adjudication on “unpled
allegations” would be void for lack of supporting pleadings. In the
alternative, Appellant argues, again for the first time in her reply briefs,
that the information beyond pulling away from the officer was simply res gestae
of the offense and could not form the basis of an adjudication.
A
reply brief may not be used to raise new complaints. Tex. R. App. P. 38.03; Barrios
v. State, 27 S.W.3d 313, 321-22 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d.), cert. denied, 534 U.S. 1024 (2001); Gabriel v. Snell,
613 S.W.2d 810, 813 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ). The
Texas Rules of Appellate Procedure do not allow an appellant to include in a
reply brief a new issue in response to some matter pointed out in the
appellee’s briefs but not raised by appellants original brief. In re A.M.,
101 S.W.3d 480, 486 (Tex. App.—Corpus Christi 2002, no pet.). Appellant claims
that these new issues fall within the ambit of her first issue—that “the
stipulated evidence is legally insufficient to support a conviction for
resisting arrest.” We disagree. Although Appellant’s original argument under
her first issue was based on her claims that the stipulated evidence was limited
to pulling away, there is no mention of void pleadings or res gestae. Only after
the State’s reply brief pointed out that Appellant stipulated to all of the
evidence as it relates to the offense of resisting arrest, did Appellant raise
these new claims. Consequently, we do not address Appellant’s defective
pleading arguments; instead, we address only the issues asserted in
Appellant’s original brief.2
The
stipulated evidence reflects that two Hurst police officers were dispatched to a
residence in Hurst, Texas, on February 11, 2003, regarding a domestic
disturbance. The officers arrived and observed Appellant’s sister, Miranda,
lying on the floor crying. Miranda, pregnant at the time, told the officers that
Appellant kicked her in the crotch area. Miranda was transported to the
hospital, and the officers informed Appellant that she was under arrest.
Appellant stated that she was not going and began screaming. As one of the
officers reached out for Appellant’s arm, she jerked it away and attempted to
strike the officer with her hand. The struggle moved outside the residence, and
the officers were eventually able to subdue Appellant and place her under
arrest. The stipulated evidence establishes that Appellant intentionally
prevented the officers from arresting her by pulling away and by striking at one
of the officers. Under these facts, there was factually and legally sufficient
evidence to show that Appellant resisted arrest. Tex. R. App. P. 38.03; Torres
v. State, 103 S.W.3d 623, 626-27 (Tex. App.—San Antonio 2003, no pet.)
(discussing contradictory caselaw and concluding that “a person who uses force
in order to shake off an officer’s detaining grip, whether by pushing or
pulling, may be guilty of resisting arrest”); Hopper v. State, 86
S.W.3d 676, 679 (Tex. App.—El Paso 2002, no pet.); Haliburton v. State,
80 S.W.3d 309, 313 (Tex. App.—Fort Worth 2002, no pet.) (“kicking at”
officer was sufficient to support resisting arrest conviction); In re
Hartsfield, 531 S.W.2d 149, 152 (Tex. Civ. App.—Tyler 1975, no writ)
(finding that juvenile used force to resist arrest was shown beyond a reasonable
doubt by arresting officer's uncontradicted testimony that, when the juvenile
started swinging at him, the officer protected his face and body by warding off
the blows with his arms). We overrule Appellant’s first and third issues.
In
Appellant’s fourth and fifth issues, she complains that the trial court erred
in admitting evidence regarding her two prior delinquent adjudications because
the State failed to plead support for committing Appellant to TYC. Under the
Texas Family Code, the trial court can commit a juvenile to TYC for committing a
misdemeanor when the court finds the juvenile “has been adjudicated as having
engaged in delinquent conduct violating a penal law of the grade of misdemeanor
on at least two previous occasions.” Tex. Fam. Code Ann. § 54.04(s)(1) (Vernon Supp. 2004).
Appellant claims that the State failed to give her notice in its pleadings that
it was going to seek to enhance her punishment by alleging two prior
misdemeanors. Appellant cites section 53.04(d)(5), a notice provision applying
to habitual felony conduct, to assert that the State was required “by
the spirit of [the] section” to provide notice in the case at hand of
Appellant’s misdemeanor convictions. Appellant argues that the trial
court violated her due process rights under the United States Constitution and
notice requirements of the Texas Family Code in considering evidence of the two
prior adjudications. U.S. Const. amends. V, VI, XIV, § 1; Tex. Fam. Code Ann. §§ 54.04(d)(2), 54.04(s),
54.04(t). We do not address the merits of Appellants fourth and fifth issues
because she did not preserve her complaint with a timely and specific objection.
See Tex. R. App. P. 33.1.
Appeals
in juvenile delinquency proceedings are governed by the rules of civil
procedure. Tex. Fam. Code Ann. § 51.17(a). To preserve error for
appellate review, an appellant must make a timely, specific objection, and
obtain an adverse ruling. Tex. R. App. P. 33.1; In
re B.L.D., 113 S.W.3d 340, 345 (Tex. 2003); In re J.F.C., 96 S.W.3d
256, 287 (Tex. 2002) (Schneider, J., dissenting). However, appellate courts may
consider unpreserved error that is fundamental. J.F.C., 96 S.W.3d at 287;
McCauley v. Consol. Underwriters, 304 S.W.2d 265, 266 (Tex. 1957). In J.F.C.,
the court stated:
Substantively,
public-interest-based fundamental error is rare, implicated only when our most
significant state public interests are at stake. The meaning of the ‘public
interest’ that is adversely affected must be extremely circumscribed, or the
exception would swallow the rule. Thus, it cannot be enough to allege that an
error violates a party's constitutional rights.
96
S.W.3d at 292. Both the Texas Supreme Court and the United States Supreme Court
have held that constitutional arguments that are not preserved in the lower
courts may be waived. In re L.M.I., 119 S.W.3d 707, 777 (Tex. 2003)
(citing Webb v. Webb, 451 U.S. 493, 496-97, 101 S. Ct. 1889, 1891-92
(1981)) (holding that constitutional error was waived, even though petitioner
repeatedly used the phrase “full faith and credit,” because petitioner did
not cite to the federal constitution or to any cases relying on the Full Faith
and Credit Clause of the federal Constitution); Tex. Dep’t of Protective
& Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (holding
constitutional claim that paternity suit should not be barred by statute of
limitations is waived by failing to raise the issue before the trial court).
The
record reflects that Appellant did not make an objection to the trial court’s
review of her prior delinquency adjudications at any time during the
adjudication or disposition phases of the trial. Prior to admitting
Appellant’s social history into evidence, the trial judge said the following
to Appellant’s counsel: “[B]ecause I’ve been referring to it so much,
I’m going to admit a copy of the social history and the psychological [report]
as the Court’s Exhibit Number One. [Are] there any objections to that?”
Appellant’s counsel replied, “No, Your Honor.” Accordingly, Appellant has
waived our review of these issues. We overrule Appellant’s fourth and fifth
issues.
Conclusion
Having
overruled all of Appellant’s issues, we affirm the trial court’s judgment.
DIXON
W. HOLMAN
JUSTICE
PANEL
F: HOLMAN, GARDNER, and WALKER, JJ.
WALKER,
J. concurs without opinion.
DELIVERED:
February 26, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
2.
Appellant argues, again for the first time in her reply briefs, that this court
should consider whether pulling away, standing alone, is legally and factually
sufficient to show the offense of resisting arrest. Notwithstanding
Appellant’s attempts to raise new issues in her reply briefs, the stipulated
evidence includes evidence that Appellant both pulled away and struck at the
officer. We, therefore, do not address whether either act, standing alone, would
satisfy the requirements of § 38.03. Tex. R. App. P. 38.03.