In re J.B.M.

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(d)(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, 61 L.Ed.2d 560 (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. 1131,120 S.Ct. 2008, 146 L.Ed.2d 958 (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, 114 S.Ct. 116, 126 L.Ed.2d 82 (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, 61 L.Ed.2d 560 (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, 114 S.Ct. 894, 127 L.Ed.2d 87 (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 reD.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 reJ.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.

DAUPHINOT, J., filed a dissenting opinion in which LIVINGSTON and WALKER, JJ., join.

GARDNER, J., filed a concurring opinion.

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).