in the Matter of E. B. S., a Child ( 2019 )

Opinion issued February 19, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00005-CV
———————————
IN RE E.B.S., A CHILD
On Appeal from the County Court at Law No. 1
Galveston County, Texas
Trial Court Case No. 17-JV-0093
MEMORANDUM OPINION
Appellant, E.B.S., a juvenile, appeals from an order adjudicating her
delinquent for committing the offense of threatening to exhibit or use a firearm on
school property.1 After a disposition hearing, the trial court placed appellant on
1
See Act of May 23, 2007, 80th Leg., R.S., ch. 704, § 1, 2007 Tex. Gen. Laws 1331,
1331, amended by Act of May 24, 2017, 85th Leg., R.S., ch. 795, § 1, 2017 Tex.
juvenile probation for twelve months. In her sole issue, appellant challenges the
legal sufficiency of the evidence to support the jury’s finding that she committed the
offense.
We affirm.
Background
In its first amended petition, the State alleged that appellant engaged in
delinquent conduct as follows:
[O]n or about the 6th day of March, 2017 in Galveston County, Texas,
[E.B.S.] did then and there, in a manner intended to cause alarm to
[M.B.] and/or [V.K.] and/or [T.O.] and/or [J.D.], intentionally threaten
to exhibit and/or use a firearm at Dickinson High School, a public
school, against the peace and dignity of the State, such alleged conduct
constituting a Third Degree Felony pursuant to 37.125 of the Texas
Education Code.
At the time of the conduct at issue, appellant was fifteen years old.
At the adjudication hearing, complainant M.B. testified that she and appellant
were classmates in their ninth-grade English class at Dickinson High School
(“DHS”). M.B. testified that, on March 6, 2017, she, appellant, and complainant
T.O. went to the school library together. While they were walking back to class,
appellant told M.B. and T.O. that she was “going to shoot up the school.” M.B.
Sess. Law Serv. 3349, 3349–50 (current version at TEX. EDUC. CODE ANN.
§ 37.125). We apply the version of the statute in effect at the time of the commission
of the offense. See Act of May 24, 2017, 85th Leg., R.S., ch. 795, § 2, 2017 Tex.
Sess. Law Serv. 3349, 3350.
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testified that she was not worried about it until appellant also said that she had access
to a gun. M.B. told appellant that she was “crazy for doing something like that
because she could go to jail for it.” Appellant replied that “that was the point” and
laughed. M.B. noted that appellant’s laughter was not “the joking type.” M.B.
testified that she was alarmed and feared for her life. She was concerned that
appellant was “going to shoot up the school” and would shoot her or her friends.
M.B. further testified that, when she, appellant, and T.O. arrived back in class,
appellant sat down, asked how to spell certain students’ names, which included
complainant J.D., and wrote something in a book. Appellant told M.B. that she
would let her know when she was “going to shoot the school” and added that it would
occur during her Spanish class because students in that class had been rude to her.
M.B. did not report the matter to school officials because she was afraid that
appellant would discover that she had told. Rather, M.B. reported appellant’s
statements to her mother by text. M.B. also told another classmate, complainant
V.K., who was J.D.’s best friend, to warn J.D. that appellant had listed her as
someone whom she would shoot. After class, M.B. also went to find J.D.
T.O., who was also a student in appellant’s English class, testified that, on
March 6, 2017, while she, appellant, and M.B. were walking back to class from the
library, appellant was humming a song that appellant said was “about shooting the
school up.” At first, T.O. thought that appellant was joking. However, T.O. felt
3
nervous and feared for her life after appellant stated that, if given the chance, she
would shoot certain people, including J.D. She noted that she was the most afraid
that she had ever been. When T.O. and M.B. asked appellant whether she would kill
them, she replied that she would not because she liked them. When another student
opened the door to their classroom, however, appellant said, “Yes, him I would kill.”
T.O. further testified that, once she, appellant, and M.B. returned to class,
appellant said that, on the day that the shooting was to take place, T.O. would hear
appellant running down the hallway, hear the “sound of the gun going against the
locker,” and hear appellant saying, “I’m coming for you.” T.O. believed that
appellant intended to alarm her, and she feared for her safety and for that of the other
students. T.O. decided that, after class, she would report the matter to school
officials. However, before she got to the office, another student had reported it.
V.K., who was also a student in appellant’s English class, testified that when
appellant, M.B., and T.O. returned from the library on March 6, 2017, appellant
stated that she was “going to shoot up the school” and that she did not care whether
she went to jail. V.K. noted that she had known appellant since elementary school,
knew her well enough to discern when she was joking and when not, and V.K.
believed that appellant was not joking and intended to scare her. Immediately after
class, V.K. told J.D. about appellant’s threat. Although V.K. went to the principal’s
office because she was scared, she did not report the matter.
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J.D., who was a student in appellant’s ninth-grade Spanish class, testified that
she had known appellant since the sixth grade. J.D. and her friends sometimes had
disagreements with appellant. On March 6, 2017, V.K. told J.D. about appellant’s
threat to bring a gun to school and to use it on her. J.D. took the comments seriously,
felt that appellant intended to scare her, and felt that her life was in danger. She
reported appellant’s comments to school officials.
DHS assistant principal, Joseph Trahan, testified that, on March 6, 2017, he
received a phone call from a concerned parent about a gun threat on campus. Trahan
obtained statements from M.B., T.O., V.K., and J.D., who each reported similar facts
regarding a threat to the campus involving a gun and a “possible hit list.,” i.e., the
list that appellant had made in class. After Trahan contacted law enforcement, he
called appellant to his office, where he searched her bag for weapons and a female
assistant principal searched appellant’s person. No weapons were found. Appellant
gave Trahan the following statement, which the trial court admitted into evidence:
What I said I me[a]nt as a joke. I had no intention of harming anyone.
What I said is that I would help but it was a joke. I said I would help if
anyone had the idea but it was a joke. I don’t want to harm anyone. I
don’t like violence. I said I would help if anyone had the idea to shoot
up the school.
Trahan asked appellant for the reported “hit list,” and she pulled a spiral
notebook from her bag and showed it to him. In the notebook, which the trial court
admitted into evidence, she had written the following note:
5
F–Freddy’s coming to get ya.
U–You are screwed.
N–Nowhere you can hide at all!
From the Fazbear Arcade
People I hate:
1. [J.D.]
2. [D.G.]
3. [J.M.]
Trahan noted that the names of the students on the list matched those given by
complainants as students whom appellant had threatened to shoot.
Trahan further testified that, based on his investigation, he believed that
appellant had made threats to bring a firearm to school and use it, and that she did
so with a serious intent to alarm people. Trahan noted that, after his investigation,
appellant’s mother notified him that appellant had been subjected to bullying at
school. Trahan testified that he, along with other school officials, fully investigated
the matter and determined that “[n]o bullying had occurred.” Trahan imposed, as a
disciplinary measure against appellant, three days’ suspension and 30 days’
placement at the district’s alternative campus. He further referred the matter to law
enforcement officials.
Appellant testified that, while walking back to class from the library with
M.B. and T.O. on March 6, 2017, she was humming a song, which she identified as
“Psychosocial,” by Slipknot. She testified that when M.B. and T.O. asked her a
question about shooting students, she just named a list of people, including J.D., who
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were in her Spanish class. Appellant explained that these people were “messing
with” her, talked about her and her friends, and caused a lot of trouble. She denied
having said that she would bring a gun to school and shoot people. With respect to
her written statement to Trahan, she explained that M.B. and T.O. had brought up
shooting students at the school and she, thinking that they were joking, had agreed
to help. Appellant testified that she wrote the names in her notebook during a game
with friends long ago. She testified that she had never had access to a gun.
During cross-examination, appellant admitted having said that she would
“shoot up the school” and the specific people she had named. She testified, however,
that she made up the threats because she did not like the kids who had picked on her.
She meant it as a joke and never meant to scare anyone.
After the hearing, the jury found “true” that appellant had engaged in
delinquent conduct as alleged. And, the trial court adjudicated appellant delinquent.
After a disposition hearing, the trial court placed appellant on juvenile probation for
twelve months. Appellant moved for a new trial, which the trial court denied.
Sufficiency of the Evidence
In her sole issue, appellant argues that the evidence is legally insufficient to
support the jury’s finding that she intended to alarm the complainants by her threats
to bring a gun to school and to shoot students.
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Nature of the Proceedings and Standard of Review
“The Legislature enacted the Juvenile Justice Code as a separate system for
the prosecution, adjudication, sentencing, and detention of juvenile offenders to
protect the public and provide for the wholesome moral, mental, and physical
development of delinquent children.” In re Hall, 286 S.W.3d 925, 927 (Tex. 2009);
TEX. FAM. CODE ANN. § 51.01(1), (2), (3). The Code covers the proceedings in all
cases involving a child’s delinquent conduct. TEX. FAM. CODE ANN. § 51.04(a).
Juvenile courts generally have exclusive original jurisdiction over proceedings
involving a child’s delinquent conduct by a person who was a child at the time that
the person engaged in the conduct. In re Hall, 286 S.W.3d at 927. Generally, a
“child” is defined under the Code as a person who is ten years of age or older and
under seventeen. TEX. FAM. CODE ANN. § 51.02(2). Delinquent conduct is defined
as, inter alia, “conduct, other than a traffic offense, that violates a penal law of this
state or of the United States punishable by imprisonment or by confinement in jail.”
Id. § 51.03(a)(1).
In a juvenile proceeding, the trial court first conducts an adjudication hearing
for a fact-finder to determine whether the juvenile engaged in delinquent conduct.
Id. § 54.03. If the fact-finder determines that the juvenile engaged in delinquent
conduct, then the trial court conducts a disposition hearing. Id. § 54.03(h).
“Disposition is akin to sentencing and is used to honor the non-criminal character of
8
the [juvenile] proceedings.” In re B.D.S.D., 289 S.W.3d 889, 893 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied) (internal quotations omitted). An order of
adjudication or disposition generally does not constitute a criminal conviction. See
TEX. FAM. CODE ANN. § 51.13(a); In re B.D.S.D., 289 S.W.3d at 893.
The Texas Supreme Court has classified juvenile adjudication proceedings as
“quasi criminal” because, although proceedings under the Family Code are generally
governed by the Texas Rules of Civil Procedure, an exception is made for the burden
of proof to be borne by the State in adjudicating a child to be delinquent. In re
D.J.C., 312 S.W.3d 704, 711 (Tex. App.—Houston [1st Dist.] 2009, no pet.); see
also TEX. FAM. CODE ANN. § 51.17(a), (c); In re B.L.D. & B.R.D., 113 S.W.3d 340,
351 (Tex. 2003); In re D.A.K., 536 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.]
2017, no pet.) (noting that, although juvenile-court proceedings are classified as
civil, they are “quasi-criminal” in nature). The burden of proof at an adjudication
hearing is the beyond-a-reasonable-doubt standard applicable to criminal cases.
TEX. FAM. CODE ANN. § 54.03(f). Further, the standards applicable in criminal
matters are used to assess the sufficiency of the evidence underlying a finding that a
juvenile engaged in delinquent conduct. See In re D.A.K., 536 S.W.3d at 847.
Accordingly, in reviewing the legal sufficiency of the evidence, we examine
all of the evidence in the light most favorable to the verdict to determine whether a
rational trier of fact could have found the essential elements of the offense beyond a
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reasonable doubt. In re R.R., 373 S.W.3d 730, 734–35 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct.
2781, 2788–89 (1979)); see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). The fact-finder is the sole judge of the weight and credibility of the
evidence and may choose to believe or disbelieve any portion of the witnesses’
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v.
State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see
also In re R.D., 486 S.W.3d 130, 133 (Tex. App.—Fort Worth 2016, no pet.). Thus,
we may not re-evaluate the weight and credibility of the evidence and substitute our
own judgment for that of the fact-finder. In re R.D., 486 S.W.3d at 133 (citing
Issassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). Rather, we determine
whether the necessary inferences are reasonable based upon the cumulative force of
the evidence when viewed in the light most favorable to the verdict. Id.; see also
Williams, 235 S.W.3d at 750; Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d). We presume that the fact-finder resolved
conflicting inferences in favor of the verdict and defer to that determination. In re
I.F.M., 525 S.W.3d 884, 887 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt of
10
an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d);
see also In re C.J., 285 S.W.3d 53, 55 (Tex. App.—Houston [1st Dist.] 2009, no
pet.).
Analysis
The version of Texas Education Code section 37.125 that applied to
appellant’s offense provided, in pertinent part, as follows:
(a) A person commits an offense if, in a manner intended to cause
alarm . . . to another person . . . , the person intentionally . . .
threatens to exhibit or use a firearm:
(1) in or on any property, including a parking lot, parking
garage, or other parking area, that is owned by a private or
public school; . . . .
See Act of May 23, 2007, 80th Leg., R.S., ch. 704, § 1, 2007 Tex. Gen. Laws 1331,
1331 (amended 2017) (current version at TEX. EDUC. CODE ANN. § 37.125(a)(1))
(emphasis added). Thus, to establish that appellant committed an offense, the State
was required to prove that she, (1) in a manner intended to alarm another person, (2)
intentionally threatened to exhibit or use a firearm (3) on school property. See id.
Here, appellant does not dispute that she intentionally threatened to exhibit or
use a firearm on school property. See id. Rather, she asserts that the evidence does
not support the first element, emphasized above, that she made such threats in a
manner intended to cause alarm to another person, i.e., the complainants. See id.
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Generally, a defendant’s intent may be inferred from circumstantial evidence,
including her acts, words, and conduct. In re R.D., 486 S.W.3d at 134 (citing
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)). The term, “alarm,”
is not defined in section 37.125. However, “alarm” has been generally defined as
“fear or terror resulting from a sudden sense of danger.” Lovett v. State, 523 S.W.3d
342, 347 (Tex. App.—Fort Worth 2017, pet. ref’d) (quoting Alarm, WEBSTER’S
THIRD NEW INT’L DICTIONARY (2002)).
In In re R.D., the Fort Worth court of appeals examined whether threats were
made in a manner “intended to cause alarm” to another person, under section 37.125.
486 S.W.3d at 134. There, a campus security officer, having concluded that the
student was skipping class, brought the student to the on-campus intervention
teacher. Id. at 132. As the officer held the student by both arms, the student declared
to the officer, “I’m going to get you. I’m going to kill you.” Id. According to the
teacher, after the officer sat the student down and left, the student continued, “I swear
on my momma. I’m going to bring something here, bring a gun here and kill him.”
Id. After the teacher and another student cautioned the student to stop, the student
continued saying that he was going to “get” the officer. Id. The student then left the
room and ignored repeated requests that he return. Id.
The teacher testified that, although the officer had heard the student’s initial
threat to kill him, the officer was not present when the student stated that he was
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going to bring a gun to school and do so. Id. The teacher stated that he was not
afraid of the student and did not know whether he was carrying a weapon. Id. The
student testified that he was not skipping class, as the officer had alleged, and that
the officer’s conduct made him upset. Id. The student denied having directly
threatened the officer or that he had access to a gun. Id. He asserted that he never
intended for the officer to hear his comments. Id. Based on the evidence, the trial
court adjudicated the student delinquent. Id.
On appeal in R.D., the court concluded that it was reasonable to infer that the
student was angry with the officer and that the student’s statements, coupled with
the fervor in which he repeated them, followed by his flight from the classroom,
gave rise to a reasonable inference that the student knew that his actions and words
would be communicated to the officer. Id. at 135. Thus, it was reasonable to infer
that the student intended for his threats to be conveyed and that they were intended
to cause alarm. Id. The court held that the cumulative force of the evidence
supported the trial court’s finding that the student intended to alarm the officer when
he repeatedly stated that he was going to “kill” him by bringing a gun on school
grounds and shooting him. Id.
Here, M.B. testified that, while she, appellant, and T.O. were walking back to
class from the school library, appellant told them that she was “going to shoot up the
school” and had access to a gun. M.B. told appellant that she was “crazy for doing
13
something like that because she could go to jail for it.” Appellant replied that “that
was the point” and laughed. M.B. noted that appellant’s laughter was not “the joking
type.” M.B. testified that she was alarmed and feared for her life. She was
concerned that appellant was “going to shoot up the school” and would shoot her or
her friends. When they arrived back in their classroom, appellant asked M.B. how
to spell two students’ names, J.D. and D.G., and wrote something in a book.
Appellant then told her that she would let her know when she was “going to shoot
the school,” and added that it would occur during her Spanish class because students
in that class had been rude to her. M.B. did not report the matter to school officials
because she was afraid that appellant would discover that she had told. Rather, M.B.
reported appellant’s statements to her mother by text. M.B. also told V.K., who was
J.D.’s best friend, to warn J.D. that appellant had listed her as someone whom she
would shoot. After class, M.B. also went to find J.D.
T.O. testified that, at first, she thought that appellant was joking. However,
after appellant named specific students, i.e., J.D. and D.G., that she intended to
shoot, T.O. felt nervous and feared for her life. She noted that it was the most afraid
that she had ever been. T.O. testified that appellant told her that, on the day that the
shooting was to occur, T.O. would hear appellant running down the hallway, hear
the “sound of the gun going against the locker,” and hear appellant saying, “I’m
coming for you.” T.O. believed that appellant intended to alarm her, and she feared
14
for her safety and for that of the other students. T.O. decided that, after class, she
would report the matter to school officials. However, before she got to the office,
another student had already reported it.
V.K. testified that she had known appellant since elementary school, knew her
well enough to discern when she was joking and when not, and V.K. believed that
appellant was not joking and intended to scare her. Immediately after class, V.K.
told J.D. about appellant’s threat. V.K. testified that she then went to the principal’s
office because she was scared but did not report the matter at that time.
J.D. testified that she took appellant’s comments seriously, felt that appellant
intended to scare her, and felt that her life was in danger. She reported appellant’s
comments to school officials.
Trahan testified that he obtained statements from M.B., T.O., V.K., and J.D.,
and that they each reported similar facts regarding a threat to the campus involving
a gun. Further, based on his investigation, he believed that appellant had made her
threats to bring a firearm to school and use it with a serious intent to alarm people.
Appellant testified that she made up the threats because she did not like certain
students who had picked on her and that she meant her threats as a joke and never
meant to scare anyone. In her statement to Trahan, she stated:
What I said I me[a]nt as a joke. I had no intention of harming anyone.
What I said is that I would help but it was a joke. I said I would help if
anyone had the idea but it was a joke. I don’t want to harm anyone. I
15
don’t like violence. I said I would help if anyone had the idea to shoot
up the school.
Again, a defendant’s intent may generally be inferred from circumstantial
evidence, including her acts, words, and conduct. In re R.D., 486 S.W.3d 130 at
134. Here, like in R.D., appellant repeated her threats to “shoot up the school” to
M.B., T.O., and V.K. Appellant told M.B. and T.O. that she had access to a gun and
explained to T.O. how she planned to execute the day of the shooting. Appellant
specified that she intended to shoot students in her Spanish class because they had
been rude to her, and she named specific students whom she intended to shoot,
including J.D., who was in her Spanish class. M.B., T.O., and V.K. each testified
that appellant communicated her threats in a serious manner that they believed was
intended to, and did, scare or alarm them. Further, like in R.D., although J.D. did
not hear firsthand appellant’s threat to shoot her, the jury could have reasonably
inferred that appellant knew that her threat to shoot J.D. would be communicated to
her by her classmates, particularly her best friend, V.K. See id. at 135. And, J.D.
testified that she took appellant’s comments seriously, felt that appellant intended to
scare her, and felt that her life was in danger. The cumulative force of the evidence
supports the jury’s finding that appellant intended to alarm each of the complainants
when she repeatedly threatened to bring a gun to school and shoot students. See id.
Appellant argues that the evidence that she intended to alarm is insufficient
because she meant her threats as a joke and never meant to scare anyone. However,
16
the jury could have chosen to believe the testimony of M.B., T.O., V.K., and J.D.
and to disbelieve appellant’s testimony that she made her threats in jest and did not
intend to alarm the complainants. See Sharp, 707 S.W.2d at 614 (noting that fact-
finder is sole judge of weight and credibility of evidence and may choose to believe
or disbelieve any portion of witnesses’ testimony); Jenkins, 870 S.W.2d at 628.
Appellant further argues that the evidence is insufficient to show intent to
alarm M.B. or T.O. because the evidence does not show that she was “angry or
causing trouble to anyone when the subject of the shooting arose.” Appellant
testified, however, that she made the threats because students in her Spanish class,
including J.D., were “messing with” her, talked about her and her friends, and caused
a lot of trouble. From this testimony, the jury could have reasonably inferred that
appellant was upset with these students.
Appellant also suggests that the evidence is insufficient to show intent to
alarm because she did not target M.B., T.O., or V.K. Section 37.125 requires only
that a threat to exhibit or use a firearm be communicated in a manner intended to
cause alarm to “another person,” i.e., the complainant. See Act of May 23, 2007,
80th Leg., R.S., ch. 704, § 1, 2007 Tex. Gen. Laws 1331, 1331 (amended 2017).
Section 37.125 does not require that the threat be directed at the complainant.
Viewing the evidence in the light most favorable to the verdict, we conclude
that the jury could have found beyond a reasonable doubt that appellant, in a manner
17
intended to cause alarm to another person, intentionally threatened to exhibit or use
a firearm on school property. See id.; In re R.D., 486 S.W.3d at 135; see also
Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89; Williams, 235 S.W.3d at 750.
Accordingly, we hold that the evidence is legally sufficient to support the trial
court’s adjudication of appellant as delinquent.
Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. See TEX. R. APP. P. 47.2(b).
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