Opinion filed March 5, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-13-00328-CV
                                    __________

               IN THE MATTER OF J.A.S., A JUVENILE


                       On Appeal from the Juvenile Court
                             Taylor County, Texas
                         Trial Court Cause No. 4502-J


                     MEMORANDUM OPINION
      This is an appeal from a judgment adjudicating a juvenile of delinquent
conduct. The jury found that Appellant, a juvenile, engaged in delinquent conduct
by committing graffiti “on a school,” a state jail felony. See TEX. PENAL CODE
ANN. § 28.08(d) (West 2011). Based in part on the jury’s findings, the trial court
committed Appellant to the Texas Juvenile Justice Department until his nineteenth
birthday or until duly discharged. In a single issue, Appellant argues that the trial
court erred by denying his request for the jury to be charged on the lesser included
offense of graffiti with a pecuniary loss of less than $500, a Class B misdemeanor.
Id. § 28.08(b)(1). We affirm.
                                Background Facts
      Although Appellant does not challenge the sufficiency of the evidence, we
will briefly address the evidence presented at trial. Taylor County Learning Center
(TCLC) is a juvenile justice alternative education program.         TCLC accepts
students that have been expelled from other Taylor County schools and is
mandated by the Juvenile Justice Code. TEX. EDUC. CODE ANN. § 37.011 (West
2012).
      Lynn Broyles, the facility administrator for TCLC, testified that on the
morning of December 12, 2012, Appellant refused to go to class. Appellant then
asked to use the restroom down the hall. After exiting the bathroom, Appellant
reentered the restroom again. When Appellant exited the bathroom the second
time, Broyles noticed a “Sharpie” in his pocket. Broyles asked Appellant why he
had a Sharpie, and Appellant responded that he had done some “tagging” in the
restroom. Broyles then entered the bathroom and saw graffiti above the urinal and
on the wall by the sink. Broyles testified that the marks were difficult to remove.
Nancy Key, the TCLC receptionist, removed the graffiti in March 2013 by using
several “Magic Eraser” cleaning pads.
                                     Analysis
      Appellant was charged with committing graffiti on a school, a state jail
felony. PENAL § 28.08(d). This subsection makes the offense of graffiti a state jail
felony if it is committed “on a school” and the amount of pecuniary loss is less
than $20,000. Appellant argues that the lesser included offense of a Class B
misdemeanor should have been included in the court’s charge.            A Class B
misdemeanor applies when the pecuniary loss is less than $500 and the graffiti is
not committed on a school. Id. § 28.08(b)(1).




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       We apply the Aguilar/Rousseau 1 test to determine whether an instruction on
a lesser included offense should be given to the jury. Cavazos v. State, 382 S.W.3d
377, 382 (Tex. Crim. App. 2012). This is a two-prong test: the first prong is to
determine “if the proof necessary to establish [the elements of] the charged offense
also includes the lesser offense.” Id. If this threshold is met, then we must
consider “whether the evidence shows that if the Appellant is guilty, he is guilty
only of the lesser offense.” Id. With respect to the first prong, “[a]n offense is a
lesser included offense if . . . it is established by proof of the same or less than all
the facts required to establish the commission of the offense charged.” TEX. CODE
CRIM. PROC. ANN. art. 37.09(1) (West 2006). There is no question that the offense
of graffiti on a school alleges all of the elements of the Class B misdemeanor
offense. See PENAL § 28.08(b)(1), (d)(1). Accordingly, Appellant’s issue focuses
on the second prong of the Aguilar/Rousseau test. Under this prong, we must
determine whether there is some evidence that would permit a rational jury to find
that, if the appellant is guilty, he is only guilty of the lesser offense. Cavazos, 382
S.W.3d at 383. This is a question of fact that is based on the evidence at trial. Id.
       A defendant is entitled to an instruction on a lesser included offense if some
evidence from any source raises a fact issue on whether he is guilty of only the
lesser offense, regardless of whether the evidence is weak, impeached, or
contradicted. Id. (citing Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App.
1985)). Anything more than a scintilla of evidence may be sufficient to entitle a
defendant to a charge on a lesser offense. Id. at 385. However, there must be more
than mere speculation that both raises the lesser included offense and rebuts or
negates an element of the greater offense. Id.



       1
        See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State, 682
S.W.2d 556, 558 (Tex. Crim. App. 1985).

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      Appellant premises his contention on the argument that the jury “could have
found that a marking ‘on the bathroom wall of a school’ was not a marking ‘on a
school.’” He also cites the “rule of lenity” discussed in In re M.S., No. 02-11-
00041-CV, 2012 WL 335864, at *3 (Tex. App.—Fort Worth Feb. 2, 2012, no pet.)
(mem. op.), in support of his contention. Under this rule, ambiguities in a penal
provision are resolved in favor of the accused. Ex parte Forward, 258 S.W.3d
151, 157 (Tex. Crim. App. 2008) (Johnson, J., dissenting) (citing Ladner v. United
States, 358 U.S. 169, 178 (1958)). We note at the outset that the Fort Worth Court
of Appeals considered the rule of lenity with respect to the “markings made on a
school” provision in Section 28.08(d)(1). M.S., 2012 WL 335864, at *3. The court
rejected an application of the rule of lenity on the basis that the “on a school”
element of the graffiti statute is unambiguous. Id. We agree with the analysis of
our sister court because “on a school” is not ambiguous. The phrase encompasses
both the actual walls of the facility and those attachments that are incorporated as
part of the school. Id.
      In order to resolve Appellant’s complaint, we must determine whether there
was some evidence in the record that would have permitted a rational jury to find
that, if Appellant was guilty, he was only guilty of committing graffiti on
something other than “on a school.” The evidence shows that Appellant marked
on the bathroom walls of TCLC with an indelible marker. Section 28.08(e)(5)
defines a school as “a private or public elementary or secondary school.” TCLC is
governed by Section 37.011 of the Education Code. Both the Fifth Circuit and a
sister appellate court have determined that alternative education programs are still
schools that provide education, albeit in a stricter disciplinary setting. Nevares v.
San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26–27 (5th Cir. 1997); Stafford
Mun. Sch. Dist. v. L.P., 64 S.W.3d 559, 562–63 (Tex. App.—Houston [14th Dist.]
2001, no pet.). TCLC sends attendance to the Taylor County school system,
                                          4
reports grades every six weeks, and handles truancy issues similar to other Taylor
County schools.        Thus, TCLC is a school under the definition in
Section 28.08(e)(5) of the Penal Code.
      The bathroom wall is clearly “on a school” because it is an actual wall in the
school.   M.S., 2012 WL 335864, at *3.          There is no evidence in the record
rebutting or negating the “on a school” element of the offense. Accordingly,
Appellant’s sole issue is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.



                                                     JOHN M. BAILEY
                                                     JUSTICE


March 5, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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