in Re S.W., a Child ( 2013 )

Opinion issued November 19, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-01089-CV
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IN RE S.W., a child
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2012-03906J
MEMORANDUM OPINION
Appellant, S.W., appeals the trial court’s finding that he engaged in
delinquent conduct constituting the penal offense of robbery. In his sole issue on
appeal, S.W. argues that the evidence was insufficient to support the trial court’s
finding.
We affirm.
Background
S.W. was charged with robbery regarding an incident that occurred in Harris
County on June 12, 2012. At the bench trial,1 Deborah Lee, the complainant,
testified that she was walking down the street toward a friend’s house “late in the
evening,” or around seven in the evening, when a young man asked her to walk
toward where he was standing in a store parking lot. She testified that, as she
approached him, he “kind of took me and threw me down, tried to snatch my purse
and then he hit me in my head” with his fist. She also testified that she was afraid
and “was thinking I was going to get shot or something. . . . I thought I was gonna
end up getting killed.”
As the young man ran away, one of Lee’s friends rode by on a bicycle.
Upon learning that the man had tried to take Lee’s purse and seeing the direction in
which he was fleeing, the friend rode away to inform the police, who were already
on the street. When Lee caught up to her friend and the police, the police had
caught the young man. Lee testified that she spoke to the police at that time and
recognized the person they had caught as the person who had struck her with his
fist and tried to take her purse. The State asked whether the person who attempted
to take her purse was in the courtroom, and she responded, “I really don’t
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S.W. waived his right to a jury trial.
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recognize him.” She further stated that she could not identify him at trial because
“a lot of things [had] happened to [her] since” the crime occurred.
Officer V. Zaunbrecher testified that, as he was patrolling the area where
Lee was attacked around midnight or one in the morning, he saw a black male
running toward him. The young man passed Officer Zaunbrecher and his partner,
turned on another street, and continued running. He testified that a woman on a
bicycle stopped him and reported that the man running down the street had just
robbed a woman. Officer Zaunbrecher and his partner turned around to stop the
running man, and Lee pointed him out as the male who had robbed her. Officer
Zaunbrecher testified that S.W. told him that he never hurt Lee and that she had
approached him for sex. He also stated that he observed that Lee was injured at the
time: “She had a swollen knot above her right eyebrow” that appeared “fresh.”
Officer Zaunbrecher made an in-court identification of S.W. as the person he
apprehended, whom Lee had identified as the person who had robbed her. He also
made an in-court identification of Lee as the woman who complained about the
robbery and identified S.W. as her attacker. Officer R. Gilchrest, Officer
Zaunbrecher’s partner, testified to substantially the same events as Officer
Zaunbrecher, and he likewise identified S.W. as the young man he had
apprehended and whom Lee had identified as her attacker.
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S.W. testified that he was on his way back home after a visit with his
girlfriend when he was approached by a woman who asked if he had any drugs and
then “approached [him] in a sexual manner.” He stated that he told her he did not
sell drugs, cursed at her, and walked off. S.W. further testified that he never
touched Lee and that he never grabbed her purse or any other property that she
had. He testified that this occurred sometime between eleven and twelve at night.
The trial court found that S.W. engaged in delinquent conduct and
committed him to the Texas Juvenile Justice Department.
Standard of Review
In his sole issue, S.W. argues that the evidence was legally and factually
insufficient to support the trial court’s finding that he engaged in delinquent
conduct constituting the offense of robbery. He argues that we should evaluate
both the legal and factual sufficiency of the evidence.
Juvenile cases are civil proceedings, but are considered “quasi-criminal” in
nature. In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998). Civil and criminal rules
apply at different stages of the same proceeding. In re K.H., 169 S.W.3d 459, 462
(Tex. App.—Texarkana 2005, no pet.); see TEX. FAM. CODE ANN. § 51.17 (Vernon
Supp. 2012) (outlining rules of procedure and evidence that apply in juvenile
proceedings).
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Regarding the sufficiency of the evidence, a trial court adjudicates a juvenile
as delinquent only if it finds beyond a reasonable doubt that the juvenile committed
the offense charged. TEX. FAM. CODE ANN. § 54.03(f) (Vernon Supp. 2012).
Thus, although juvenile cases are civil proceedings, we review challenges to the
sufficiency of the evidence to support a finding that a juvenile engaged in
delinquent conduct using the standards applicable to criminal cases. In re C.J., 285
S.W.3d 53, 55–56 (Tex. App.—Houston [1st Dist.] 2009, no pet.); In re G.A.T., 16
S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
Accordingly, we apply the standard adopted by the Texas Court of Criminal
Appeals to evaluate the sufficiency of the evidence, as set out in Jackson v.
Virginia. See In re M.C.S., 327 S.W.3d 802, 805 (Tex. App.—Fort Worth 2010,
no pet.) (applying Jackson standard in juvenile proceeding in light of Court of
Criminal Appeals’ determination that Jackson standard is only standard for
determining sufficiency of evidence in criminal proceeding); see also In re F.D.M.,
No. 01-11-00426-CV, 2012 WL 1249520, at *2 (Tex. App.—Houston [1st Dist.]
Apr. 12, 2012, no pet.) (mem. op.) (holding, in juvenile proceeding, that “[t]his
Court reviews criminal sufficiency-of-the-evidence challenges under a single
standard of review—the Jackson standard—regardless of whether the appellant
raises a legal or factual sufficiency challenge”).
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When reviewing the sufficiency of the evidence supporting a criminal
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational fact finder could have found the essential elements
of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim.
App. 2011) (holding that Jackson standard is only standard to use when
determining sufficiency of evidence). The fact finder is the exclusive judge of the
facts, the credibility of the witnesses, and the weight to be given to the testimony.
Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The fact finder
may accept one version of the facts and reject another, and it may reject any part of
a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986); Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d) (stating that jury can choose to disbelieve witness even when
witness’s testimony is uncontradicted). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore defer to
that determination.”).
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Sufficiency of the Evidence
S.W. argues that the evidence was insufficient to establish him as the person
who attempted to take Lee’s purse and that it was insufficient to demonstrate that
he maintained control over the purse in a manner that would satisfy the theft
element of the offense of robbery.
A person commits robbery “if, in the course of committing theft . . . and with
intent to obtain or maintain control of the property, he intentionally, knowingly, or
recklessly causes bodily injury to another.” TEX. PENAL CODE ANN. § 29.02(a)(1)
(Vernon 2011). The phrase “in the course of committing theft” means “conduct
that occurs in an attempt to commit, during the commission, or in immediate flight
after the attempt or commission of theft.” Id. § 29.01 (1) (Vernon 2011). Finally,
a person commits theft if that person unlawfully appropriates property with intent
to deprive the owner of the property. Id. § 31.03(a) (Vernon Supp. 2012).
A. Theft
S.W. argues that the evidence was insufficient to establish that he committed
a robbery because he did not take the purse away from Lee and, thus, never
completed the theft. However, proof of a completed theft is not required to
establish the offense of robbery. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.
Crim. App. 2003). Rather, evidence that S.W. caused bodily injury in an attempt
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to commit theft is sufficient to support the judgment against him. See TEX. PENAL
CODE ANN. §§ 29.01, 29.02(a)(1).
Here, Lee testified that the young man threw her down, tried to snatch her
purse, and hit her in the head. She also testified that she was afraid that she was
going to die. The night of the incident, Lee identified S.W. as her attacker. At
trial, Officers Zaunbrecher and Gilchrest also identified S.W. as the person they
apprehended at the scene whom Lee identified as her attacker. Officers
Zaunbrecher and Gilchrest both testified that they observed Lee shortly after the
robbery and that she had a knot swelling above her eyebrow that appeared to have
been inflicted recently. Thus, there was evidence that S.W. caused Lee bodily
injury while attempting to take her purse away from her. See id. §§ 29.01,
29.01(a)(1). Viewing all of the evidence in the light most favorable to the verdict,
we conclude that the trial court could have found the essential elements of robbery
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Adames, 353 S.W.3d at 859.
B. Identity
S.W. also argues that the evidence was insufficient to establish his identity
as the person who robbed Lee.
The State was required to prove that S.W. was the perpetrator of the criminal
offense beyond a reasonable doubt. See Smith v. State, 56 S.W.3d 739, 744 (Tex.
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App.—Houston [14th Dist.] 2001, pet. ref’d); see also In re D.R.T., 339 S.W.3d
208, 210 (Tex. App.—El Paso 2011, no pet.) (stating same in juvenile case). Proof
of identity may be had by direct or circumstantial evidence. In re D.R.T., 339
S.W.3d at 210 (citing Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App.
2009)).
Here, Lee was unable make an in-court identification of S.W. as the person
who robbed her. However, other evidence established S.W.’s identity as the
robber. See Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.—Houston [14th
Dist.] 1993, pet. ref’d) (providing that courtroom identification is not required
when other evidence is presented establishing culpability of defendant); see also
Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.)
(“[T]he absence of an in-court identification is merely a factor for the jury to
consider in assessing the weight and credibility of the witnesses’ testimony.”). Lee
identified S.W. as the person who robbed her immediately following the incident,
after he had been apprehended by the police. She testified that she did not
recognize him at trial because “a lot of things [had] happened to [her]” since the
crime occurred. Officers Zaunbrecher and Gilchrest both identified S.W. in court
as the young man they apprehended at the time of the robbery, and they both
testified that Lee identified S.W. as her assailant at the time the robbery occurred.
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S.W. also argues that Lee’s testimony regarding the time when the robbery
occurred was inconsistent with the testimony of other witnesses. Lee testified that
the incident occurred “late in the evening” and then specified that it happened
around seven in the evening. However, both Officers Zaunbrecher and Gilchrest
testified that the incident occurred sometime between midnight and two in the
morning. S.W. testified that he encountered Lee sometime around eleven or
twelve at night.
S.W. does not explain in his brief how this discrepancy in the testimony
supports his argument that the evidence was insufficient to establish his identity as
the person who robbed Lee. However, we observe that the trial court was the fact
finder, and as such, it was the sole judge of the credibility of the witnesses and the
weight to be given their testimony. See Bartlett, 270 S.W.3d at 150. The trial
court was further entitled to accept one version of the facts—i.e., the version
presented by Officers Zaunbrecher and Gilchrest—and reject another, and it was
entitled to reject any part of a witness’s testimony—i.e., the portion of Lee’s
testimony regarding the time when the robbery occurred. See Sharp, 707 S.W.2d
at 614; Henderson, 29 S.W.3d at 623.
Thus, viewing all of the evidence in the light most favorable to the verdict,
we conclude that the trial court could have found beyond a reasonable doubt that
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S.W. was the person who had robbed Lee. See Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Adames, 353 S.W.3d at 859.
We overrule S.W.’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
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