      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-05-00854-CV




                                       In the Matter of F.F.G.




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



                             MEMORANDUM OPINION


                F.F.G. appeals from his adjudication as delinquent based on the offense of criminal

mischief resulting in pecuniary loss in an amount more than $50 but less than $500. See Tex. Pen.

Code Ann. § 28.03 (West Supp. 2006). After adjudicating 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

delinquency. We affirm the trial court’s adjudication because F.F.G. did not properly preserve the

issue of factual sufficiency by filing a motion for new trial. Moreover, even if F.F.G. had properly

preserved the issue, it is apparent from the record that the evidence was factually sufficient to justify

the juvenile court’s adjudication of delinquency.
                                        BACKGROUND

               On March 7, 2005, at approximately 3:50 p.m., Goldia Earls 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 headed home.

               Once both Earls and the police had arrived at Earls’s home, Lydia Martinez—Earls’s

next-door neighbor––came over and explained that she had seen the person who threw the rock

through Earls’s window. Martinez testified that she saw F.F.G., who is a white male, standing 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 Earls’s window, and then the four

teenagers immediately ran across the street.

               Martinez telephoned the police to report the crime. After the police arrived and

listened to Martinez’s account, they suspected F.F.G. because he was part of a group of boys

matching Martinez’s description that they had noticed playing down the street. According to her

testimony, because F.F.G. lived across the street from both Martinez and Earls, Martinez recognized

him and was able to identify him as the person who threw the rock through Earls’s window.

Martinez also testified that Earls was only a passing acquaintance whom 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 neighborhood.

               Both F.F.G.’s mother, Donna Sanders, and his supervisor, Shara Kohrs, testified that

F.F.G. spent the day working for Guy Bundy and Kohrs fixing up a duplex around the corner from


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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 preparing a duplex to

be rented, and that she did not see F.F.G. leave the work site. Further, Kohrs testified that even

though 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 testified that she had been involved in verbal altercations with both Earls

and Earls’s daughter and that she had previously called the police on several occasions because

Earls’s daughter had thrown rocks through 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.

               Finally, the court was presented with evidence that the cost of repairs to Earls’s

broken window totaled $408.


                                          DISCUSSION

Preservation of Factual Sufficiency

               As a preliminary matter, we must address the state’s argument that F.F.G. failed to

properly preserve the issue of factual sufficiency by filing a motion for new trial.




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                Among the rights of adult criminal defendants 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 that juvenile delinquency proceedings are governed by the Texas

Rules of Civil Procedure. Tex. Fam. Code Ann. § 51.17(a) (West Supp. 2006). Under Texas Rule

of Civil Procedure 324(b)(2), a motion for a new trial is required to preserve the issue of factual

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

of the factual sufficiency of the evidence must have preserved the complaint through a motion for

new trial.   In re M.R., 858 S.W.2d 365, 366 (Tex. 1993) (per curiam); Davila v. State,

930 S.W.2d 641, 647 (Tex. App.—El Paso 1996, pet. ref’d).

                Because 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 adjudication 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 because

F.F.G. failed to preserve the issue of factual sufficiency for review, in the interest of justice we will

address the question of whether the evidence presented was factually sufficient to warrant the trial

court’s adjudication of delinquency.



        Standard of Review

                It is well settled that in juvenile proceedings the State must prove each element of the

alleged delinquent conduct beyond a reasonable doubt to support an adjudication of delinquency.

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Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); In re L.M., 993 S.W.2d 276, 284

(Tex. App.––Austin 1999, no pet.). In a factual sufficiency review, the reviewing court “views all

the evidence without the prism of ‘in the light most favorable to the prosecution.’” Clewis,

922 S.W.2d at 129. In such a review, the court asks whether a neutral review of all the evidence,

both for and against the finding, demonstrates that the proof of guilt is too weak or that the contrary

evidence is too strong to rationally support a finding of guilt beyond a reasonable doubt. Zuniga v.

State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). In other words, the question is whether the

court was rationally justified in finding guilt beyond a reasonable doubt. Id. Appellate courts are

not free to reweigh the evidence and set aside the juvenile court’s adjudication merely because the

reviewing judges determine that a different result is more reasonable. Clewis, 922 S.W.2d at 135.

A factual sufficiency review must employ appropriate deference to the fact-finder’s role as the sole

judge of the weight and credibility to be given to witness testimony. Johnson v. State, 23 S.W.3d

1, 7 (Tex. Crim. App. 2000).


        Analysis

                Under this standard of review, even if F.F.G. had preserved the issue of factual

sufficiency for appeal, the evidence presented to the juvenile court was sufficient to rationally justify

the juvenile court’s finding of guilt beyond a reasonable doubt in adjudicating F.F.G. delinquent.

                To adjudicate F.F.G. delinquent, the trial court had to find that F.F.G. intentionally

damaged or destroyed Earls’s window without her permission. See Tex. Pen. Code Ann. § 28.03.

The juvenile court heard evidence that Earls never gave F.F.G. permission to destroy her window

and that Martinez saw F.F.G. throw the rock that broke Earls’s window. This evidence, taken alone,



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is sufficient to justify the trial court’s adjudication of F.F.G. as delinquent and guilty of criminal

mischief beyond a reasonable doubt.

               Furthermore, 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 contrary evidence

presented by F.F.G. is so strong that the trial court’s adjudication cannot be rationally justified.

First, F.F.G.’s mother testified that she dropped off F.F.G. and picked him up later in the day, at

which time 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 Earls’s window was broken.

During that unsupervised time, he could have broken the window as Martinez testified.

               Next, Kohrs testified that she had been supervising F.F.G. all day and that it was

impossible for him to have broken the window in question. However, given the relatively 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 possibility that he might have had the time to break the window.

               Rather than providing contrary evidence so strong that the court’s adjudication cannot

be rationally justified, the testimony of both F.F.G.’s mother and Kohrs seems to be compatible with

the State’s theory of the case based upon Martinez’s testimony because both witnesses left open the

possibility that F.F.G. could have slipped away from work to break the window. Although

Martinez’s testimony was challenged by F.F.G.’s own testimony that he did not throw the rock

through 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 sufficient to rationally

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justify the juvenile court’s adjudication. Because each witness for F.F.G. (other than F.F.G. himself)

offered testimony that the juvenile court could have viewed as either damaging the witness’s

credibility or leaving open the possibility that F.F.G. could have committed the crime, and because

of Martinez’s independent eyewitness testimony, we cannot say that the proof of guilt 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 and affirm the

juvenile court’s adjudication of F.F.G. as delinquent and guilty beyond a reasonable doubt, had the

issue been properly preserved for appeal.


                                          CONCLUSION

               F.F.G. did not properly preserve the issue of factual sufficiency for appeal by 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

adjudication. As a result, we affirm the judgment of the trial court.




                                                      _____________________________________

                                                      Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Waldrop

Affirmed

Filed: October 12, 2006




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