### TEXAS COUR T OF APPEALS, THIRD DIST RICT, AT AUSTIN

NO. 03-05-00854-CV

In the Matter o f F.F.G.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. J-26,202, HONO RABLE W. JEANNE MEURER, JUDGE PRESIDING

M E M O R A N

D U M O P

I N I O N
F.F.G. appeals from his adjudication as delinquent based on the offense of criminal mischief resulting in pecuni ary

loss in anamount more than $50 but less than $500. See Tex. Pen. Code Ann. § 28.03 (West Supp. 2006). After a djudicat ing F.F .G. delinquent, the trial court placed F.F.G. on nine months’ probation, and ordered him to pay restitution of $408. F.F.G. contends that the evidence presented at trial was factually

insufficient to support the trial court’s adjudication of de li nq ue nc y. We affirm the trial court’s adjudication because F.F.G. did not prope rly preser ve the issue of factual sufficiency

by filing a motion for ne

w trial. Moreover, even if F.F.G. had prop erly preserved the issue , it is appare

nt from the

record that the e vidence was factually

sufficient to justify th e j uv en il e c ou rt ’s ad

ju di ca ti on of

de li nq ue nc y.2 BACKGROUND On March 7, 2005, at approximately 3:50 p.m., Goldia Ea rls was working when she received a call from her sister stating that someone had shattered Earls’s dining room window with a rock. Earls told her sister to call the police, then heade d home.

Once both Earls and the police had arrived at Earls’s home, Ly

dia Martinez—Earls’s next-door neighbor––came over and explained that she had se en the person who threw the ro ck throu gh Earls’s window. Martinez testified that she saw F.F.G., who is a white mal e, standi

ng with three African-American teenagers in a circle outside her kitchen window. Martinez further testified that she saw F.F.G. carrying a rock which he threw through Ea rls’s window, and then the four teenag ers immed

iately ran acr oss the str

eet. Martinez telephoned the police to report the crime. After the police arrived a nd liste ned to Martinez’s account, they suspected F.F.G. because he was part of a group of boy s
m atching Mart inez’s description that they had notice d playing dow n the street. According to her te st im on y, because

F.F.G. lived across the street from both Martinez and Earls, Martinez recognized him and was able to identify hi m as the p erson who threw the rock through Ear ls’s window. Martinez also testi fied tha t Earls was only

a passing acquain tance w hom Martinez did

not know by name; that she had never had a problem with F.F.G. or his mother

before; and

that she did not know F.F.G. by name before the trial, but did recognize him from the ne ighborhood. Both F.F.G.’s mother, Donna Sanders, and his supervisor, Shara Kohrs, testified that F.F.G. spent the day wor

king for Guy Bundy

and Kohrs fixing up a

duplex around the corner from3

Earls’s house. Sanders testified that she dropped F.F.G. off at work that morning and that F.F.G. had received a check for $20 for his day ’s work. However, Sanders was not with her son at the time the rock was thrown through Earls’s window.

Additionally, Kohrs testified that F.F .G. was working for her prepa ring a duplexto be rented, a

nd that she did not see F.F.G. leave the work site. F urther, Kohrs testified that even thou gh she had

not kept F .F.G. in

her sight the entire time, she did not think it possible that F.F.G. could have left without her knowledge.

Kohrs also testi fied tha

t she had b een invol

ved in ver bal alter cations w ith both Ea

rls and Ear ls’s daught

er and that she ha

d previou sly

called the police

on sever al occa sions bec ause Earls’s daughter had thrown rocks throug h Kohrs’s windows. The juvenile court was also presented with evidence of Kohrs’s criminal record.

F.F.G. testified that he did not throw the rock through Earls’s window and did not see the actual perpetrator.

Fi na ll y, the court was presented with evidence that the c ost of repairs to Earls’s broken window totaled $408.
DISCUSSION Preservation of Factual Sufficiency

As a preliminary ma

tter, we must address the state’s argument that F.F.G. failed

to properly pre serve the issue of factual sufficiency by filing a motion for ne w trial.4 Among the rights of adult criminal defend ants is the right to factual sufficiency review of a conviction. Clewis v. State , 922 S.W.2d 126, 136 (Tex. Crim. App. 1996). However, the Texas Family Code mandates tha t juvenile delinquency proc eedings aregoverned by the Texas Rules of Civil Procedure. Tex. Fam. Code Ann. § 51.17(a) (West Supp. 2006). Under Texas Rule of Civ il Proced

ure 324( b)(2), a motion for

a new tri al is requ

ired to pr eserve the issue of fact u a l sufficiency

for appellate review in the civil context. As a result, a juvenile who complains on appeal of the factualsufficiency

of the evidence must have preserved the complaint through a motion for
newtrial. In re M.R. , 858 S.W.2d 365, 366 (Tex. 1993) (pe r curiam); D avila v. S tate , 930 S.W.2d 641, 647 (Tex. App.—El Paso 1996, pet. ref’d).

Becau se F.F.G. failed to file a motion for new trial and therefore failed to preserve the issue of factual sufficiency for review, we must affirm the juvenile court’s a djudication of

F.F.G. as delinquent. Tex. R. App. P. 33.1.
Factual Sufficiency

Even though we hold that the trial court’s adjudication must be affirmed be c ause F.F.G. failed to preserve the issue of factual sufficiency for review, in the inte

rest of ju stice we

will address the quest ion of whe

ther the evidenc e prese

nted was factua lly s ufficie nt to warrant

the trial
co ur t’ s a dj ud ic at io n o f d el in qu en cy.
Standard of Review It is well settled that in juve

nile proc eeding s the State must prove each element of the alleged delin que nt co nd uc t b eyo nd a r ea so na bl e d ou bt to su pp or t a n a dj ud ic at io n o f d el in qu en cy.5

Jackson v. Virgini

a , 443 U.S. 307, 318-1 9 (1979); In re L.M. , 993 S.W.2d 276, 284 (Tex. App.––Austin 1999, no pet.). In a factual sufficiency

review, the revi ewing c ourt “vie ws all the evidence without the prism of ‘i n the light most favorable to the prosecution.’” Clewis , 922 S.W.2d at 129. In such a review, the cour t asks whether a neutral review o f all th e evidence, both for and against the finding, demonstrate s thatthe proof of guilt is too weak or that the contrary evidence is too stron

g to rat ionally support a finding of guilt bey

ond a reasonable doubt. Zuniga v. State , 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). In other words, the question is whe ther th e court was rationally

justified in finding guilt bey ond a reasonable doubt. Id . Appella te court s are notfree to reweigh the evidenc e and set aside the juvenile court’s adjudication merely be cause the reviewing judges determine that a different result is more reasonable. Clewis , 922 S.W.2d at 135. A factual sufficiency

review must employ appr opriate deference to the

fact-f inder’s role as the sole judge of the we ight and

credibi lity

to be giv en to witne ss testimony. Johnson v . State , 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Analysis Under this standard of revi ew, evenif F.F.G. had preserved the issue of f actual sufficiency

for appe al, the e

vidence present ed to the juven

ile cour t was suff icient to r ationally justify the juven ile cour t’s findin g of g uilt bey ond a rea sonable d

oubt in adj udicatin

g F.F .G. delin

quent. To adjudica

te F.F.G. delinquent, the trial court had to find tha

t F.F.G . intention

ally damaged or destroy

ed Earls’s window without her permission. See Tex. Pen. Code Ann. § 28.03. The juvenile court heard evidence tha t Earls never gave F.F .G. permission to destroy her w indow and that Martinez sawF.F.G. throw the rock that broke Earls’s window. This evidence, take n alone,6

is su f ficient to justify the trial court’s a djudication of F.F.G. as delinquent and guilty of criminal mischief beyond a

reasonable doubt. Further mo re, because the testimony of F.F .G.’s witnesses does not rule out the possibility

that F.F .G. could

have broken Earls’s window, we cannot say that the contra

ry evidenc e presented by F.F .G. is so strong that the trial court ’s adjudicat ion cannot be rationally justified. First, F.F.G.’s mother testified tha t she dropped off F.F.G. and picked him up later in the day, at whichtime he had a check for $20. However, there is no evidence in the record that she was exercising any

control over

or supervising F.F.G. around the time that Ear ls’s window was broken. During that unsupervised time, he could have broken the w indow as Martinez testified. Next, Kohrs t estified that she had been supervising F.F .G. all day and tha t it was impossible

for him to hav e b roken the window in q

uestion. H owever , given the rela tively close proximity of F.F.G.’s work site to Earls’s house, Kohrs’s testimony that she did not keep watch over F.F.G. the entire time opens up the possib ility that he mig

ht have ha

d the time to break the window. Rather than p roviding contrary evide nce so strong that the court’s adjudication cannot be rationally justified, the testimony of both F.F.G.’s mother and Kohrs seems to b e compat ible with the State’s theory

of the ca se based

upon Mart

inez’s tes timony

because both witnesses left open the pos sibility

tha t F.F.G . coul d have slip ped awa y from work to bre ak the windo w. Alt hough Martine z’s t estimony was challenged by F.F .G.’s own testimony that he did not throw the roc k throu gh the window, we will defer to the juvenile court’s evaluation of Martinez’s testimony as more credible than F.F.G.’s. Johnson , 23 S.W.3d at 7.

Keeping in mind the deference we are to give to the fact-finder as the sole judge of the weight and

credibility of witness testimony, we hold that the evidence was sufficie nt to rationally7

justify the juvenile court’s adjudication. Because each witness for F .F.G. (other than F.F.G. himself) off ered tes timony that the juvenile court could have viewed as either damaging the witness’s credibi lity

or leaving open the possibility tha t F.F.G. could have committed the crime, and bec ause of Martinez’s independent ey ewitness testimony, we ca nnot say that the proof of g

uilt is so weak or the contrary

evidence so strong that the juvenile court’s finding of guilt beyond

a reasonable doubt cannot be rationally

justified. Therefore, we

would overrule F.F.G.’s point of error a nd affirm the juvenile court’s adjudication of F.F.G. as delinquent and g uilty bey ond a reasonable doubt, had the issue bee n proper ly preserv ed for a

ppeal.
CONCLUSION F.F.G. did not properly prese rve the issue of factual sufficiency for appealby filing
a motion for new trial. And even if the issue had been properly preserved, the proof of guilt was not too weak, nor

was the contrary

evidence presented too strong to rationally support the court’s adjudica tion. As a r

esult, we affirm t he judg ment of the

trial cou rt.

_____________________________________ Bea Ann Smith, Justice Before Justices B. A. Smith, Purye ar and Waldrop Affirmed Filed: October 12, 2006