COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00041-CV
IN THE MATTER OF M.S.
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1 ----------
Appellant M.S., a child, appeals the trial court’s judgment adjudicating him
delinquent and ordering one year’s probation. We affirm.
BACKGROUND FACTS
Appellant enrolled at Timber Creek High School on Friday, October 15,
2010. On that date, principal Todd Tunnell spoke with Appellant and his mother
about Appellant’s prior placement in an alternative school through Alternative
Education and Placement (AEP). During that conversation, Appellant told
1 See Tex. R. App. P. 47.4. Tunnell that he had completed his time in AEP. Appellant was scheduled to start
regular classes on Monday, October 18, 2010. Before Appellant arrived on
Monday, Tunnell learned that Appellant had not in fact completed his time in
AEP. Upon his arrival at Timber Creek, Appellant was called to the principal’s
office where they discussed the discrepancies in what Appellant had told Tunnell.
During the meeting, Tunnell noticed that Appellant had a ―defensive and
surly‖ attitude. He also noticed that Appellant had ―Pretty Boy‖ written on his
backpack, that he was dressed totally in blue, and that he had a tattoo of three
dots on his hand. Tunnell discussed the tattoo with the school resource officer
and asked if it had any gang implications.
Tunnell told Appellant that he could not attend Timber Creek until he
served the rest of his AEP time in Keller. Tunnell instructed Appellant to wait in
the front office for his mother to pick him up. Appellant left the area he was
instructed to wait in, and Tunnell found him in the hallway talking to students.
Tunnell directed Appellant back to the office. Tunnell recalled walking through
the front office again ―close to noon‖ and noticing that Appellant had left.
Shortly after Appellant left, Tunnell received a report of graffiti on a toilet
paper dispenser in one of the boys’ restrooms. Officer Michael Shunk, a Fort
Worth policeman assigned to Timber Creek, took pictures of the graffiti, which
included ―Pretty Boy Prince‖ written in blue ink and stars and ―Fresh‖ written in
black ink. ―Fresh‖ was written in a different style than ―Pretty Boy Prince.‖
Tunnell thought the graffiti was written with a permanent marker, and Shunk was
2 not able to remove or smear the graffiti with his finger. The graffiti was cleaned
off by the custodial staff, and the markers used to write the graffiti were not
recovered.
Shunk reviewed tape from the school’s video surveillance system. A
person fitting Appellant’s description was seen on the video entering the
restroom at 12:07 and leaving approximately three minutes later. Shunk showed
the video to Tunnell, who identified the person as Appellant.
Shunk had over twenty-four years’ experience with the Fort Worth Police
Department, had been a school resource officer for nine years, and was working
his second year at Timber Creek when this event occurred. He had experience
with graffiti both as a school resource officer and while working in the gang unit.
He was not aware of any graffiti on the dispenser prior to that day. Based on
Shunk’s visual observations of the graffiti on the toilet paper dispenser, as well as
his efforts to remove or smear it, he determined that the markings were made
with a ―permanent indelible marker.‖
At his adjudication hearing, Appellant admitted to writing ―Pretty Boy
Prince‖ on the dispenser but claimed that he used a blue, washable marker. He
denied writing ―Fresh‖ or drawing the stars, although he admitted to having a
black marker in his backpack the morning of the incident. Appellant’s mother
testified that she had first learned of the graffiti incident approximately a week
after it occurred and had searched Appellant’s backpack at that time. She found
3 a washable marker. The judge found Appellant delinquent and placed him on
felony probation for one year. This appeal followed.
DISCUSSION
Factual and Legal Insufficiency
In his first issue, Appellant claims that the evidence is factually insufficient
to support the adjudication of delinquency. Although appeals from juvenile court
orders are generally treated as civil cases, we apply a criminal sufficiency
standard of review to sufficiency of the evidence challenges regarding the
adjudication phase of juvenile proceedings. In re M.C.S., Jr., 327 S.W.3d 802,
805 (Tex. App.—Fort Worth 2010, no pet.). Because factual sufficiency claims in
criminal cases are no longer viable in Texas, see Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010) (holding that the legal sufficiency standard
articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979), is the only standard that a reviewing court should apply in determining
whether evidence is sufficient), we overrule Appellant’s first issue.
In his second issue, Appellant claims that the evidence is legally
insufficient to support the adjudication of delinquency. He argues that no rational
trier of fact could have found that the marker used for the graffiti was an ―indelible
marker‖ as defined in the Texas Penal Code.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
4 elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
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; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Isassi, 330 S.W.3d at 638.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00041-CV
IN THE MATTER OF M.S.
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1 ----------
Appellant M.S., a child, appeals the trial court’s judgment adjudicating him
delinquent and ordering one year’s probation. We affirm.
BACKGROUND FACTS
Appellant enrolled at Timber Creek High School on Friday, October 15,
2010. On that date, principal Todd Tunnell spoke with Appellant and his mother
about Appellant’s prior placement in an alternative school through Alternative
Education and Placement (AEP). During that conversation, Appellant told
1 See Tex. R. App. P. 47.4. Tunnell that he had completed his time in AEP. Appellant was scheduled to start
regular classes on Monday, October 18, 2010. Before Appellant arrived on
Monday, Tunnell learned that Appellant had not in fact completed his time in
AEP. Upon his arrival at Timber Creek, Appellant was called to the principal’s
office where they discussed the discrepancies in what Appellant had told Tunnell.
During the meeting, Tunnell noticed that Appellant had a ―defensive and
surly‖ attitude. He also noticed that Appellant had ―Pretty Boy‖ written on his
backpack, that he was dressed totally in blue, and that he had a tattoo of three
dots on his hand. Tunnell discussed the tattoo with the school resource officer
and asked if it had any gang implications.
Tunnell told Appellant that he could not attend Timber Creek until he
served the rest of his AEP time in Keller. Tunnell instructed Appellant to wait in
the front office for his mother to pick him up. Appellant left the area he was
instructed to wait in, and Tunnell found him in the hallway talking to students.
Tunnell directed Appellant back to the office. Tunnell recalled walking through
the front office again ―close to noon‖ and noticing that Appellant had left.
Shortly after Appellant left, Tunnell received a report of graffiti on a toilet
paper dispenser in one of the boys’ restrooms. Officer Michael Shunk, a Fort
Worth policeman assigned to Timber Creek, took pictures of the graffiti, which
included ―Pretty Boy Prince‖ written in blue ink and stars and ―Fresh‖ written in
black ink. ―Fresh‖ was written in a different style than ―Pretty Boy Prince.‖
Tunnell thought the graffiti was written with a permanent marker, and Shunk was
2 not able to remove or smear the graffiti with his finger. The graffiti was cleaned
off by the custodial staff, and the markers used to write the graffiti were not
recovered.
Shunk reviewed tape from the school’s video surveillance system. A
person fitting Appellant’s description was seen on the video entering the
restroom at 12:07 and leaving approximately three minutes later. Shunk showed
the video to Tunnell, who identified the person as Appellant.
Shunk had over twenty-four years’ experience with the Fort Worth Police
Department, had been a school resource officer for nine years, and was working
his second year at Timber Creek when this event occurred. He had experience
with graffiti both as a school resource officer and while working in the gang unit.
He was not aware of any graffiti on the dispenser prior to that day. Based on
Shunk’s visual observations of the graffiti on the toilet paper dispenser, as well as
his efforts to remove or smear it, he determined that the markings were made
with a ―permanent indelible marker.‖
At his adjudication hearing, Appellant admitted to writing ―Pretty Boy
Prince‖ on the dispenser but claimed that he used a blue, washable marker. He
denied writing ―Fresh‖ or drawing the stars, although he admitted to having a
black marker in his backpack the morning of the incident. Appellant’s mother
testified that she had first learned of the graffiti incident approximately a week
after it occurred and had searched Appellant’s backpack at that time. She found
3 a washable marker. The judge found Appellant delinquent and placed him on
felony probation for one year. This appeal followed.
DISCUSSION
Factual and Legal Insufficiency
In his first issue, Appellant claims that the evidence is factually insufficient
to support the adjudication of delinquency. Although appeals from juvenile court
orders are generally treated as civil cases, we apply a criminal sufficiency
standard of review to sufficiency of the evidence challenges regarding the
adjudication phase of juvenile proceedings. In re M.C.S., Jr., 327 S.W.3d 802,
805 (Tex. App.—Fort Worth 2010, no pet.). Because factual sufficiency claims in
criminal cases are no longer viable in Texas, see Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010) (holding that the legal sufficiency standard
articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979), is the only standard that a reviewing court should apply in determining
whether evidence is sufficient), we overrule Appellant’s first issue.
In his second issue, Appellant claims that the evidence is legally
insufficient to support the adjudication of delinquency. He argues that no rational
trier of fact could have found that the marker used for the graffiti was an ―indelible
marker‖ as defined in the Texas Penal Code.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
4 elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
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; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Isassi, 330 S.W.3d at 638.
A person commits an offense under penal code section 28.08(a)(2) ―if,
without the effective consent of the owner, the person intentionally or knowingly
makes markings, including inscriptions, slogans, drawings, or paintings, on the
tangible property of the owner with an indelible marker.‖ Tex. Penal Code Ann.
5 § 28.08(a)(2) (West 2011). An indelible marker is a ―device that makes a mark
with a paint or ink product that is specifically formulated to be more difficult to
erase, wash out, or remove than ordinary paint or ink products.‖ Id.
§ 28.08(e)(3).
Principal Tunnell testified that he believed that the graffiti was made with a
permanent marker and that it did not come off nor smear when Officer Shunk
tried to remove it with his finger. Officer Shunk likewise clearly testified that the
markings were made by a ―permanent indelible marker.‖ A picture of the graffiti
was admitted into evidence. Appellant testified that he made only the ―Pretty Boy
Prince‖ markings using a blue, washable marker and that the black ―Fresh‖ was
already there. Even where the actual marker used for the graffiti is not
recovered, as is the case here, circumstantial evidence and witness testimony
can support a finding that a marker is indelible. See Harvey v. State, 116 S.W.3d
816, 820–21 (Tex. App.—Fort Worth 2003, no pet.) (upholding finding that a
marker was indelible without the marker being submitted into evidence when two
witnesses testified that the graffiti was made with a ―permanent ink marker‖).
The trial court weighed the conflicting evidence and the credibility of the
witnesses. By its judgment, it resolved the conflict by finding the testimony of the
principal and the police officer to be credible. We shall not re-evaluate that
decision. See Williams, 235 S.W.3d at 750. Viewing the evidence in the light
most favorable to the verdict, we hold that a rational factfinder could have found
that Appellant wrote the graffiti with a permanent marker. The evidence is legally
6 sufficient to support the trial court’s finding that Appellant used an indelible
marker as defined by the statute. We overrule Appellant’s second issue.
Rule of Lenity
In his third issue, Appellant argues that the offense should not have been
found to be a state jail felony because the graffiti was not made ―on a school.‖
See Tex. Penal Code Ann. § 28.08(d)(1). He contends that the rule of lenity
would dictate that the statute be strictly construed in his favor.
The rule of lenity requires that when a criminal statute is ambiguous and
the intent of the legislature cannot be determined by employing statutory
construction cannons, the ambiguity should be resolved ―in favor of lenity.‖ Ex
parte Forward, 258 S.W.3d 151, 157 (Tex. Crim. App. 2008) (Johnson, J.,
dissenting) (quoting Ladner v. United States, 358 U.S. 169, 178, 79 S. Ct. 209
(1958)). It is rarely necessary for Texas courts to rely on the rule of lenity
because most of the Texas Penal Code has been drafted ―with clarity, precision,
and straightforward, well-defined language.‖ Cuellar v. State, 70 S.W.3d 815,
822 (Tex. Crim. App. 2002) (Cochran, J., concurring). The graffiti statute is no
exception. The phrase ―on a school‖ encompasses both the actual walls of the
facility and those attachments that are incorporated as part of the school. See In
re A.F., No. 08-01-00441-CV, 2002 WL 1767567, at *1 (Tex. App.—El Paso Aug.
1, 2002, no pet.) (not designated for publication) (holding that graffiti written on a
cubicle ―affixed to the wall‖ of a school classroom was written ―on a school‖); see
also In re C.M.L., No. 08-99-00210-CV, 2000 WL 678845, at *1 (Tex. App.—
7 El Paso May 25, 2000, no pet.) (not designated for publication) (considering
graffiti written on a paper towel dispenser as part of the graffiti that was done ―on
a community center‖). The statute is unambiguous, thus the rule of lenity is
inapplicable. We overrule appellant’s third issue.
CONCLUSION
Having overruled each of Appellant's issues, we affirm the judgment of the
trial court.
LEE GABRIEL JUSTICE
PANEL: GARDNER, McCOY, and GABRIEL, JJ.
DELIVERED: February 2, 2012