In re J.B.M. , 157 S.W.3d 823 ( 2005 )

LEE ANN DAUPHINOT, Justice,

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.¹ Our sister court has recently confirmed that holding.² 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for the reasons set out here, we conclude that the Supreme Court’s pronouncement on the issue has since been superceded by developments in our current juvenile system.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.³ 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.⁴ Because of this difference in purpose, juveniles were denied many rights, both procedural and substantive, that were routinely afforded adults.⁵

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.⁶ 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.”⁷ We believe this change has eroded the original logic for denying juveniles the same procedural protections as adults.⁸ 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,⁹ did the Court of Criminal Appeals acknowledge a right to factual sufficiency review of a conviction.

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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.¹⁰

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.¹¹

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.¹² 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.¹³ 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.¹⁴

Additional support for applying rule 21.2 to juvenile cases can be found in In re M.A.F.¹⁵ 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.¹⁶ 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.

LIVINGSTON and WALKER, JJ., join.

1 . 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)].

2 . In re D.T.C., 30 S.W.3d 43, 51 (Tex.App.Houston [14th Dist.] 2000, no pet.).

3 . In re J.S.S., 20 S.W.3d 837, 841 (Tex.App.-El Paso 2000, pet. denied).

4 . Id.

5 . Id.; Hidalgo v. State, 983 S.W.2d 746, 751-52 (Tex.Crim.App.1999).

6 . Tex Fam.Code Ann. § 51.01(1), (2)(A), and (4) (Vernon [2002]).

7 . Lanes v. State, 767 S.W.2d 789, 791 (Tex.Crim.App.1989).

8 . In re J.S.S., 20 S.W.3d at 842; Hidalgo, 983 S.W.2d at 751.

9 . 922 S.W.2d 126, 136 (Tex.Crim.App.1996).

10 . Tex. Fam.Code Ann. § 51.01(6).

11 . In re J.L.H., 58 S.W.3d 242, 245-46 (Tex.App.-El Paso 2001, no pet.).

12 . See Clewis, 922 S.W.2d at 136.

13 . 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.).

14 . 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.”).

15 . 966 S.W.2d 448, 449-50 (Tex.1998).

16 . Id.; Tex R.Apr. P. 30(b)(7), 707-708 S.W.2d (Tex. Cases) xlix (1986, amended 1997 and renumbered as 21.3(f)).