                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                   '
                                                                 No. 08-10-00273-CV
                                                   '
                                                                     Appeal from
 IN THE MATTER OF I.L., A JUVENILE                 '
                                                                  65th District Court
                                                   '
                                                              of El Paso County, Texas
                                                   '

                                                   '               (TC # 09,00648)


                                            OPINION

        I.L. was adjudicated delinquent after a jury found that he had engaged in delinquent

conduct by committing assault causing bodily injury. Following a hearing, the trial court issued

a final judgment without disposition. On appeal, I.L. complains of charge error and evidentiary

sufficiency. For the reasons that follow, we affirm.

                                   FACTUAL BACKGROUND

        On April 23, 2009, the students in Jose Montoya’s art class at Desert Wind Middle

School were given their routine bathroom break. The class was made up of both 7th and 8th

grade students. Appellant was in 8th grade at the time and I.M., the victim, was in 7th grade.

        While the students took their break, Montoya went across the hall to the teachers’ facility.

When he returned to the classroom he noticed I.M. at the back of the class, “not his normal self.”

Montoya spoke with the boy, who told him, “The guys threw me in the trash can.” I.M. was

visibly upset, crying, in distress, and in pain.

        Montoya took Appellant and two other boys--E.C. and D.G.--outside the classroom. The

trio admitted to throwing I.M. in the trash can. Appellant claimed they did it because I.M. was
“little.” The boys also said it was a joke and they were just playing. Montoya gave the boys a

chance to apologize, but Appellant simply said, “I’m sorry, because you’re just such a little shit.”

In Montoya’s opinion, Appellant showed no remorse for his actions and even laughed while he

apologized. Montoya then headed to file a report when Marco Tristan, the Dean of Instruction,

walked down the hallway. Tristan took the three boys down to his office.

       Once inside his office, Tristan asked the boys what happened. The boys were “very

apologetic.” Appellant claimed he had been the main instigator and asked Tristan to dismiss the

other two boys. Tristan also spoke with I.M. As a result of their conversation, Tristan decided

that I.M. had not been playing. He called I.M.’s mother, the parents of the three boys, and the

Socorro Independent School District’s Police Department.

       The following day, Officer Jorge Murillo of the Socorro Independent School District

Police Department went to Desert Wind Middle School to investigate the incident. He spoke

with I.M.’s parents and also with I.M. directly. Officer Murillo testified that he observed red

marks on the back of I.M.’s neck as well as a scratch on the left side of his stomach.

       I.M.’s mother testified that her son was physically injured as a result of the incident. The

boy’s neck and waist area were hurt, and there were marks and bruises on his neck and hand.

There was also swelling and it took three days for her son to recover.

       I.M. testified that when he left the classroom, the restroom was full and he waited

outside. Appellant, E.C., and D.G., grabbed him by his neck and pushed him head first into a

trash can. I.M. resisted by putting his hands on the edge, but the three boys overpowered him.

He fell down, hit his head, and heard his neck pop. As he tried to pull himself out, the boys

shoved him down a second time. He again hit his head and heard his neck pop. At one point, the




                                               -2-
trash can was knocked over. The scenario was repeated yet a third time. During the incident, the

boys were laughing at him and he was crying.

       The defense called E.C. and D.G. as witnesses. E.C. testified that he, Appellant, D.G.,

and I.M. were playing with a soccer ball in Montoya’s class just before the restroom break.

According to E.C., the boys were all playing around and having a good time. No one was angry

at I.M. or trying to hurt him. E.C. testified that the boys grabbed I.M. and put him inside the

trash can, but he reiterated that all of the boys, including I.M. were “playing,” and that no one

punched or kicked the trash can during the incident. E.C. also testified that he did not intend to

hurt I.M. when he pushed him into the trash can. D.G.’s testimony essentially tracked that of

E.C.   All of the boys were engaged in horseplay in Montoya’s classroom just before the

bathroom break. D.G. had no ill will against I.M. and had no reason to want to hurt him.

       Appellant testified in his own defense, claiming that all four boys were horsing around

with a soccer ball prior to their break. He heard someone say, “Let’s--let’s throw [I.M.] to the

trash can.” Appellant admitted that he grabbed I.M. by the legs and threw him into the trash can

but he did not intend to hurt him. He did not see I.M. crying, but he knew the boy was upset

during the incident. Appellant apologized, but he denied cussing when doing so.

                               PROCEDURAL BACKGROUND

       On August 21, 2009, the State filed a petition alleging that Appellant engaged in

delinquent conduct. The live pleading at trial alleged Appellant:

       [D]id then and there intentionally, knowingly or recklessly cause bodily injury to
       [I.M.] by throwing the said [I.M.] into a trash can, in violation of Section 22.01 of
       the Texas Penal Code.

The case proceeded to a jury trial.




                                               -3-
       After hearing all the evidence, the jury found Appellant engaged in delinquent conduct by

committing assault causing bodily injury against I.M. and adjudicated Appellant as delinquent.

The presiding judge signed and filed an order of adjudication consistent with the jury’s verdict

and set a disposition hearing. After considering the evidence and the pre-disposition report, the

court found that Appellant’s parents “provide strong family support” and were able to provide

Appellant with “suitable supervision at home.” It determined that Appellant was not in need of

rehabilitation and issued a final judgment without disposition.

       On appeal, Appellant raises two issues. In Issue One, he complains of charge error. In

Issue Two, he challenges the legal sufficiency of the evidence to prove he acted with the

requisite mental state.

                                       CHARGE ERROR

       In Issue One, Appellant contends that the abstract portion of the jury charge wrongfully

included the full statutory definition of “recklessly,” one of the three possible mental states for

assault causing bodily injury. According to Appellant, the definition should have been limited to

the language relating to the “result of conduct” and that, as submitted, the charge allowed the

jury to adjudicate him delinquent for engaging in reckless behavior (a conduct-oriented charge)

rather than recklessly injuring the complainant (a result-oriented charge). Appellant contends

this amounts to fundamental and reversible error.

                                       Standard of Review

       Appellate review of charge error involves a two-step process. Abdnor v. State, 871

S.W.2d 726, 731 (Tex.Crim.App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25-26

(Tex.Crim.App. 2009). First, we must determine whether error occurred. Abdnor, 871 S.W.2d

at 732. If so, we must then evaluate whether sufficient harm resulted from the error to require



                                               -4-
reversal. Id. at 731-32.

                                       Was There Error?

       We begin our inquiry by examining whether there was error in the charge. The petition

alleged that Appellant committed assault by “intentionally, knowingly, or recklessly” causing

bodily injury to I.M. in violation of Section 22.01 of the Texas Penal Code. The full statutory

definitions of “intentionally,” “knowingly,” and “recklessly” provide:

       (a) A person acts intentionally, or with intent, with respect to the nature of his
       conduct or to a result of his conduct when it is his conscious objective or desire to
       engage in the conduct or cause the result.

       (b) A person acts knowingly, or with knowledge, with respect to the nature of his
       conduct or to circumstances surrounding his conduct when he is aware of the
       nature of his conduct or that the circumstances exist. A person acts knowingly, or
       with knowledge, with respect to a result of his conduct when he is aware that his
       conduct is reasonably certain to cause the result.

       (c) A person acts recklessly, or is reckless, with respect to circumstances
       surrounding his conduct or the result of his conduct when he is aware of but
       consciously disregards a substantial and unjustifiable risk that the circumstances
       exist or the result will occur. The risk must be of such a nature and degree that its
       disregard constitutes a gross deviation from the standard of care that an ordinary
       person would exercise under all the circumstances as viewed from the actor’s
       standpoint.

TEX.PENAL CODE ANN. § 6.03(a), (b), & (c)(West 2011). Here, the abstract portion of the

charge limited the definitions of “intentionally” and “knowingly” to the result-of-conduct

language:

       A person acts intentionally, or with intent, with respect to a result of his conduct
       when it is his conscious objective or desire to cause the result.

       A person acts knowingly, or with knowledge, with respect to a result of his
       conduct when he is aware that his conduct is reasonably certain to cause the
       result. [Emphasis in original].

However, the charge included the full statutory definition of “recklessly.” In other words, the

definition included the phrase “with respect to circumstances surrounding his conduct or the


                                               -5-
result of his conduct.” [Emphasis added].

         On appeal, Appellant’s complaint is based on the italicized text. He maintains that the

italicized language should have been excluded because, as written, the charge allowed the jury to

adjudicate him delinquent for engaging in reckless behavior (a conduct-oriented charge) rather

than recklessly injuring the complainant (a result-oriented charge). We agree.1

         There are three conduct elements which may be involved in any offense: (1) the nature

of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct.

See Hughes v. State, 897 S.W.2d 285, 295 n.14 (Tex.Crim.App. 1994), cert. denied, 514 U.S.

1112, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995); Cook v. State, 884 S.W.2d 485, 487

(Tex.Crim.App. 1994). As the Court of Criminal Appeals laid out in Hughes and Cook, a proper

jury charge limits the definitions of the applicable culpable mental states to include only the

language regarding the relevant conduct elements. See Hughes, 897 S.W.2d at 295-96; Cook,

884 S.W.2d at 491-92.

         In Cook, the defendant was charged with murder and convicted of the lesser included

offense of voluntary manslaughter. Cook, 884 S.W.2d at 485, 487. The definitions of the

applicable mental states--“intentionally” and “knowingly”--included the full statutory

definitions. Id. The defendant objected to the charge, arguing that because murder is a result-of-

conduct offense, the definitions of the culpable mental states should have been limited to the

result language only. Id. at 486. The Court of Criminal Appeals agreed and held that because

murder is a result-of-conduct offense, the trial court erred in refusing to limit the definitions of

the culpable mental states. Id. at 491-92.

1
  Initially we note that I.M. was charged with a criminal offense. Therefore, it is within this context that we review
whether the juvenile court erred in submitting the jury charge. See e.g. In the Matter of D.C.S., No. 10-03-00393-
CV, 2004 WL 2406763, at *1 (Tex.App.--Waco Oct. 27, 2004, no pet.)(mem. op.)(not designated for
publication)(“Evaluating the substance of a criminal jury charge under the body of law to review a civil jury charge
does not work.”)

                                                        -6-
       Similarly, in Hughes, a jury convicted the defendant of capital murder of a peace officer

based on a jury charge which included the following definitions of the applicable mental states:

       A person acts ‘intentionally,’ or with intent, with respect to the nature of his
       conduct or to a result of his conduct when it is his conscious objective or desire to
       engage in the conduct or cause the result.

       A person acts ‘knowingly,’ or with knowledge, with respect to the nature of his
       conduct or to circumstances surrounding his conduct when he is aware of the
       nature of his conduct or that the circumstances exist. A person acts knowingly, or
       with knowledge, with respect to a result of his conduct when he is aware that his
       conduct is reasonably certain to cause the result. [Emphasis in original].

Hughes, 897 S.W.2d at 294. The appellant complained that the italicized portions allowed the

jury “to find criminal liability from the knowledge of conduct or circumstances surrounding the

conduct (ie; intent to pull trigger) rather than from the consequences or results of the conduct

(intent to cause death of deceased).” Id. at 295. The Court of Criminal Appeals looked to the

indictment and found that the offense could be viewed to include two of the three conduct

elements: (1) the result-of-conduct element (appellant intentionally or knowingly caused the

death of the deceased); and (2) the circumstances surrounding the conduct (appellant knew the

deceased was a peace officer). Id. at 295. But because the offense did not contain a nature-of-

conduct element, the court found the trial court erred by failing to limit the definitions of the

culpable mental states to the result and circumstances of conduct elements. Id. at 296, citing

Cook, 884 S.W.2d at 491-92.

       Assault causing bodily injury is a result-oriented offense.         Therefore, the proper

definitions of the culpable mental states (intentionally, knowingly, recklessly) should be limited

to include only the result of conduct element. See Hughes, 897 S.W.2d at 295; Cook, 884

S.W.2d at 489 n.3. Accordingly, the trial court erred. See Hughes, 897 S.W.2d at 296; Cook,

884 S.W.2d at 491-92. We must now analyze the error for harm. See Ngo v. State, 175 S.W.3d

738, 743 (Tex.Crim.App. 2005).

                                               -7-
                                          Harm Analysis

       Under both the civil and criminal rules of procedure, a party must make a timely, specific

objection and obtain a ruling on that objection to preserve error for appeal. See TEX.R.APP.P.

33.1. Both versions provide that unpreserved charge error will not require reversal unless it rises

to the level of fundamental error. See In the Matter of A.A.B., 110 S.W.3d 553, 558 (Tex.App.--

Waco 2003, no pet.), citing State v. Santana, 444 S.W.2d 614, 615 (Tex. 1969) and Casteel-

Diebolt v. Diebolt, 912 S.W.2d 302, 304 (Tex.App.--Houston [14th Dist.] 1995, no writ)(cases

recognizing that, in a civil trial, when an appellant fails to properly preserve errors in the charge

by objection or request, he may still obtain a reversal of a civil judgment on the basis of such

error if he can demonstrate that the error amounts to “fundamental error.”); see also Almanza v.

State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(op. on reh’g)(in a criminal case, an appellant

who failed to object to a flawed instruction must demonstrate the error was “fundamental

error.”). Under the civil rules, an error is fundamental when it “directly and adversely affects the

interest of the public generally, as that interest is declared in the statutes or Constitution of this

state.” In the Matter of A.A.B., 110 S.W.3d at 558, citing Ramsey v. Dunlop, 146 Tex. 196, 202,

205 S.W.2d 979, 983 (1947), cited by Santana, 444 S.W.2d at 615; accord In re C.O.S., 988

S.W.2d 760, 765 (Tex. 1999). Conversely, in criminal cases, error is fundamental only if it was

so egregious and created such harm that the appellant was denied a fair and impartial trial. See

Almanza, 686 S.W.2d at 171.

       Unless there is a conflict within the Texas Family Code, juvenile proceedings are

governed by the Texas Rules of Civil Procedure. TEX.FAM.CODE ANN. § 51.17(a)(West

2008); In the Matter of M.R., 858 S.W.2d 365, 366 (Tex. 1993); In the Matter of M.P., 126

S.W.3d 228, 230 (Tex.App.--San Antonio 2003, no pet.). Since there is no specific provision



                                                -8-
governing jury charges in juvenile cases, the Rules of Civil Procedure govern. See In the Matter

of M.P., 126 S.W.3d at 230, citing In the Matter of A.A.B., 110 S.W.3d 553, 555-56 (Tex.App.--

Waco 2003, no pet.); In re D.I.B., 988 S.W.2d 753, 756 (Tex. 1999)(noting that juvenile

delinquency proceedings are to be governed by the civil rules of appellate procedure as far as

practicable.).

        But juvenile proceedings are not wholly civil proceedings; they are considered “quasi-

criminal in nature.” In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999); In the Matter of L.D.C., 357

S.W.3d 124, 129 (Tex.App.--San Antonio 2011, pet filed); In the Matter of G.M.P., 909 S.W.2d

198, 201 (Tex.App.--Houston [14th Dist.] 1995, no writ).         The Texas Supreme Court has

acknowledged that the general rules applicable in adult civil proceedings cannot be uniformly

applied in juvenile proceedings. In re D.I.B., 988 S.W.2d at 756; see also In re C.O.S., 988

S.W.2d at 765 (expressing concern with the problems in applying different preservation rules in

juvenile delinquency proceedings than in adult criminal proceedings and stating, “Our general

rules requiring preservation in the trial court are just that, general rules, and cannot be applied

across the board in juvenile proceedings.”); Santana, 444 S.W.2d at 615 (noting that “juvenile

proceedings are not designed to be conducted as ordinary adversary proceedings”). The court in

C.O.S. also noted that it is “unwise and problematic to apply one preservation rule in adult,

criminal proceedings and another, stricter rule in juvenile cases.” In re C.O.S., 988 S.W.2d at

767. Thus, the court found that precedent from analogous adult criminal proceedings may be

instructive in juvenile cases. See id. at 765-67; see also In re D.I.B., 988 S.W.2d at 756 (looking

to adult criminal jurisprudence to determine when a harm analysis should be performed in

juvenile delinquency proceedings).

        The difficulty in applying the law based on this interaction between the civil and criminal



                                               -9-
rules is apparent in situations where, as here, the reviewing court must determine whether to

perform a harm analysis under the civil or criminal standard for reversible error. 2 See In re

L.D.C., 357 S.W.3d at 131. Courts of appeals have repeatedly noted the lack of guidance. See In

re L.D.C., 357 S.W.3d at 131-32, 132 n.2 (stating, “Neither the Rules of Civil Procedure nor the

Texas Family Code provide clear guidance as to whether to apply a civil harm analysis or a

criminal harm analysis for juvenile jury charge error,” and citing several opinions discussing the

problem.); see also In the Matter of A.C., No. 11-09-00164-CV, 2011 WL 3925516, at *6

(Tex.App.--Eastland Sept. 8, 2011, pet. denied)(recognizing the discrepancies between courts in

choosing whether to apply civil or criminal rules to the harm analysis); In re M.P., 126 S.W.3d at

231-32 (noting disagreement between the courts of appeals as to the proper harm analysis for

jury charge error in juvenile delinquency proceedings but holding that the court did not have to

choose between a criminal and a civil harm analysis because the result in the case would be the

same under both). The differing approaches illustrate the problematic nature of quasi-criminal

status. Several intermediate courts have chosen to apply Article 36.19 of the Texas Code of

Criminal Procedure and Almanza to determine whether charge error has been preserved in

juvenile delinquency proceedings.           See In the Matter of K.W.G., 953 S.W.2d 483, 488

(Tex.App.--Texarkana 1997, pet. denied)(applying the Almanza egregious harm standard to a

juvenile delinquency proceeding because “charging errors affect the substantive rights of

juveniles”); In the Matter of B.S.A., No. 03-04-00319-CV, 2006 WL 954095, at *3 (Tex.App.--

Austin Apr. 13, 2006, no pet.)(mem. op.)(using the Almanza harm analysis to analyze whether

unpreserved error was “fundamental error”); In the Matter of C.M., No. 11-02-00150-CV, 2003

WL 1414436, at *2 (Tex.App.--Eastland Mar. 20, 2003, no pet.)(mem. op.)(applying Almanza


2
  The standard of analyzing harm from a charge error in a criminal setting was set out in Almanza v. State, 686
S.W.2d 157, 171 (Tex.Crim.App. 1984).

                                                    - 10 -
egregious harm standard to jury charge error). However, the Waco court in In re A.A.B., 110

S.W.3d 553 (Tex.App.--Waco 2003, no pet.), applied a civil harm analysis to charge error, thus

disavowing their earlier opinion in In the Matter of M.E.R., 995 S.W.2d 287 (Tex.App.--Waco

1999, no pet.) in which they analyzed preservation of jury charge error under the Almanza

standard.3 See In re A.A.B., 110 S.W.3d at 555-59; In re M.E.R., 995 S.W.2d at 291.

        Appellant failed to object to the definition of “recklessly” either during the charge

conference or at any other point during trial.4 Under Texas Rule of Appellate Procedure 33.1, he

has preserved nothing for appeal. 5 He attempts to avoid this procedural default by classifying the

error as fundamental.

        The burden is higher for an appellant trying to reverse a civil judgment based on

unpreserved error, than for an appellant in a criminal matter. In light of the Supreme Court’s

concerns in applying one rule in adult criminal proceedings and another, stricter rule in juvenile

cases, we choose to conduct our harm analysis under the criminal standard set forth in Almanza.

See In re C.O.S., 988 S.W.2d at 767.

        We have already determined there was error in the jury charge. Under Almanza, an

appellant who did not preserve error, as here, must show he suffered “fundamental error.”

Almanza, 686 S.W.2d at 171. An error is “fundamental” only if it was so egregious and created

3
  Among others, the following courts have applied the Almanza, criminal harm analysis to jury charge error in a
juvenile delinquency proceeding: In re A.C., 2011 WL 3925516, at *6; In the Matter of A.E.B., 255 S.W.3d 338, 350
(Tex.App.--Dallas 2008, pet. dism’d)(jury charge error, which was subject to a timely objection was analyzed for
harm using the Almanza standard); In re E.F., 986 S.W.2d 806, 808-09, 810 (Tex.App.--Austin 1999, pet.
denied)(same). In re K.W.G., 953 S.W.2d at 488 (applying Almanza to alleged unpreserved charge error).
4
  During the charge conference, Appellant objected to the definitions of “intentionally” and “knowingly” as defined
in the abstract portion of the jury charge. The trial court sustained Appellant’s objections and adjusted the
definitions of “intentionally” and “knowingly” accordingly. However, Appellant did not object to the definition of
“reckless” at any point during the charge conference. Likewise, a review of the remainder of the record reveals no
such objection either orally or in writing.
5
   We note that Rule 33.1 applies to both criminal and civil cases, since Appellant did not make any objection at
trial, he failed to preserve error under either the criminal or civil rules.


                                                      - 11 -
such harm that the appellant was denied a fair and impartial trial. Id. In assessing harm arising

from charge error, we must determine the actual degree of harm in light of: (1) the entire jury

charge; (2) the state of the evidence, including the contested issues and weight of probative

evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the

record of the trial as a whole. Almanza, 686 S.W.2d at 171.

       First, we look to the charge as a whole. The Hughes court determined the trial court

erred by including the full statutory definitions of “intentionally” and “knowingly” in the abstract

portion of a capital murder jury charge. Hughes, 897 S.W.2d at 295-96. However, the court

looked to the application portion and concluded that:

       [B]ecause the facts, as applied to the law in the application paragraph, pointed the
       jury to the appropriate portion of the definitions, no harm resulted from the
       court’s failure to limit the definitions of culpable mental states to result and
       circumstances of conduct.

Hughes, 897 S.W.2d at 295-96. Because error had been preserved, the court was reviewing the

charge for “some” harm under Almanza. Id. at 296. Here, as in Hughes, the trial court properly

limited the definition of recklessness in the application paragraph. The application paragraph

provided that the jury was to adjudicate Appellant as delinquent only if he “intentionally,

knowingly or recklessly cause[d] bodily injury to [I.M.] . . . .” Thus, although the jury was

provided a definition that recklessness can also occur with regard to the circumstances of the

conduct, the jury was also instructed that it could only adjudicate Appellant guilty if he was

reckless with respect to the result of his conduct. Certainly, if the trial court’s failure to limit the

definition of recklessness in the abstract portion of the charge when it is properly limited

elsewhere does not rise to the level of “some harm” then it most definitely does not rise to the

level of egregious harm. See Hughes, 897 S.W.2d at 296; Collins v. State, No. 09-04-407-CR,

2005 WL 3074154, at *6-7 (Tex.App.--Beaumont Nov. 16, 2005, no pet.); see also, Medina v.

                                                 - 12 -
State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999)(stating that where the application paragraph in a

charge correctly instructs the jury, an error in the abstract paragraph is not egregious).

         However, out of an abundance of caution, and in light of Dougherty v. State, No. PD-

1411-05, 2006 WL 475802, at *1 (Tex.Crim.App. Mar. 1, 2006)(per curiam)(not designated for

publication), we will continue our harm analysis to include consideration of all four Almanza

factors.6 See Almanza, 686 S.W.2d at 171.

         The second factor we must consider is the state of the evidence. See Almanza, 686

S.W.2d at 171. The State’s evidence appropriately focused on the result of Appellant’s conduct.

The State’s questioning revolved around the nature and degree of I.M.’s injury and Appellant’s

participation in the actual act of pushing I.M. into the trash can. The fact that Appellant

purposefully picked up I.M. and forced him head first into the trash can (more than once) is

appropriate evidence for the State to present in order to meet its burden of proof. Likewise, as to

the third Almanza factor, the State’s argument focused on Appellant’s mental state in causing the

result of his conduct, rather than on the nature of his conduct. See Almanza, 686 S.W2d at 171.

Finally, we look to “any other relevant information.” See Almanza, 686 S.W2d at 171. Once

again we find nothing supporting Appellant’s contention of egregious harm.

         After analyzing the error in light of all four Almanza factors, we conclude that Appellant

has not suffered egregious harm. We overrule Issue One.




6
  In Dougherty, a per curium, unpublished opinion issued after Hughes and Patrick, the Court of Criminal Appeals
held that an appellate court improperly limited its harm analysis when it determined that the abstract portion of the
charge did not cause egregious harm because the application paragraph was correct without consideration of the
remaining Almanza factors. See Dougherty v. State, No. PD-1411-05, 2006 WL 475802, at *1.

                                                       - 13 -
                                   LEGAL SUFFICIENCY

       In Issue Two Appellant, challenges the legal sufficiency of the evidence to support the

adjudication and subsequent disposition.

                                      Standard of Review

       Although juvenile appeals are categorized as civil proceedings, we use the same

standards applicable in criminal appeals when reviewing the sufficiency of the evidence to

support a finding that a juvenile engaged in delinquent conduct. See In the Matter of D.R.T., 339

S.W.3d 208, 210 (Tex.App.--El Paso 2011, no pet.); In re H.G.G.D., 310 S.W.3d 43, 45

(Tex.App.--El Paso 2010, no pet.); In the Matter of M.D.T., 153 S.W.3d 285, 287 (Tex.App.--

El Paso 2004, no pet.). Accordingly, in analyzing Appellant’s legal sufficiency challenge, we

review the evidence in the light most favorable to the verdict and determine whether “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” See Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010)(holding that the

Jackson legal-sufficiency standard is the only standard a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal offense that

the State is required to prove beyond a reasonable doubt); see also Jackson v. Virginia, 443 U.S.

307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re D.R.T., 339 S.W.3d at 209-10.

       As a reviewing court, we do not resolve any conflict of fact, or re-evaluate the weight of

any evidence or credibility of any witnesses. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.

2000); In re H.G.G.D., 310 S.W.3d at 46, citing Adelman v. State, 828 S.W.2d 418, 422

(Tex.Crim.App. 1992). Instead, our duty is to determine whether both the explicit and implicit

findings of the jury are rational by viewing all of the evidence admitted at trial in a light most

favorable to the verdict. Adelman, 828 S.W.2d at 422. If the record supports conflicting



                                              - 14 -
inferences, we presume that the fact finder resolved any inconsistencies in favor of the verdict,

and we defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.

2007); Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000); Matson v. State. 819 S.W.2d

839, 843 (Tex.Crim.App. 1991). This standard is applicable for both direct and circumstantial

evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim.App. 1991), overruled on other

grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000).

        In addition, we determine the sufficiency of the evidence based on a hypothetically

correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Thomas v.

State, 303 S.W.3d 331, 333 (Tex.App.--El Paso 2009, no pet.). A correct jury charge is one that

(1) accurately sets out the law; (2) is authorized by the indictment; (3) does not unnecessarily

restrict the State’s theories of liability; and (4) adequately describes the particular offense for

which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App. 2001);

Malik, 953 S.W.2d at 240; Thomas, 303 S.W.3d at 333. The hypothetically correct jury charge,

as applicable to the offense of assault causing bodily injury, would state whether Appellant

intentionally, knowingly, or recklessly caused bodily injury to the victim. See TEX.PENAL

CODE ANN. § 22.01(a)(1)(West 2011).

        Appellant was charged and adjudicated under Section 22.01(a)(1) of the Texas Penal

Code which provides that a person commits assault by intentionally, knowingly, or recklessly

causing bodily injury to another. TEX.PENAL CODE ANN. § 22.01(a)(1). Therefore, the State

was required to prove beyond a reasonable doubt that: (1) I.M. suffered bodily injury; and (2)

that Appellant intentionally, knowingly, or recklessly caused such a result. See id. Appellant

does not contest the sufficiency of the evidence to prove bodily injury. 7 Rather, Appellant


7
    Although Appellant does not specifically challenge the sufficiency of the evidence to prove that Appellant
inflicted bodily injury, we note that the evidence was in fact sufficient to prove this element beyond a reasonable

                                                      - 15 -
argues that the State failed to prove that Appellant caused the bodily injury with the requisite

mental state, i.e. that Appellant either intentionally, knowingly, or recklessly caused the resulting

injury.

          A culpable mental state is almost always proven by circumstantial evidence.                             See

Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991); Gant v. State, 278 S.W.3d 836,

839 (Tex.App.--Houston [14th Dist.] 2009, no pet.); Pitonyak v. State, 253 S.W.3d 834, 844

(Tex.App.--Austin 2008, pet. ref’d). Proof of knowledge or intent may be inferred from both

direct evidence and from evidence of the circumstances surrounding the act. See Brown v. State,

122 S.W.3d 794, 800 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 938, 124 S.Ct. 1678, 158

L.Ed.2d 359 (2004); Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996). Further, in

determining culpability for an offense, a jury may consider events occurring before, during, and

after the offense. See Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App. 1980); Patrick v.

State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995); Pitonyak, 253 S.W.3d at 844; Ramirez v.

State, 229 S.W.3d 725, 729 (Tex.App.--San Antonio 2007, no pet.). A jury may infer intent

from the acts, words, and conduct of the accused, as well as from the extent of the injuries and

the relative size and strength of the parties.                   Lindsey v. State, 501 S.W.2d 647, 648

(Tex.Crim.App. 1973); Patrick, 906 S.W.2d at 487. In other words, a jury can infer knowledge


doubt.

         Bodily injury is defined as “physical pain, illness, or any impairment of physical condition,” and is proven
by evidence that the victim suffered “some” pain. TEX.PENAL CODE ANN. § 1.07(a)(8); Lane v. State, 763
S.W.2d 785, 786-87 (Tex.Crim.App. 1989). A jury may use their common sense and apply their common
knowledge, observations, and experience to draw reasonable inferences about whether or not an act results in pain.
Id. Consequently, the victim of an assault need not expressly testify that he suffered pain at the hands of the accused
before the jury can reasonably infer the existence of pain. Id.

          Here, there was testimony from several witnesses testified that that I.M. had red marks and swelling, was in
pain and was crying as a result of the incident. The State also entered photographs of I.M.’s injuries into evidence,
which were consistent with the physical altercation. Accordingly, based on the jury’s common understanding of
pain, it could infer I.M. suffered “physical pain” as a result of the incident. Randolph v. State, 152 S.W.3d 764, 774
(Tex.App.--Dallas 2004, no pet.).

                                                        - 16 -
or intent from the acts, conduct, and remarks of the accused and from the surrounding

circumstances. Gant, 278 S.W.3d at 839.

        Appellant testified that he purposefully picked up I.M. and pushed him head first into a

trash can. By his own admission, Appellant intended the conduct. As we have noted, however,

assault is a result of conduct offense. Dolkart v. State, 197 S.W.3d 887, 893 (Tex.App.--Dallas

2006, pet. ref’d); Ford v. State, 38 S.W.3d 836, 844-45 (Tex.App.--Houston [14th Dist.] 2001,

pet. ref’d). As such, the essential focus of the statute is to punish the defendant for causing the

specified result--the bodily injury. Dolkart, 197 S.W. 3d at 893; see also Brooks v. State, 967

S.W.2d 946, 948-49 (Tex.App.--Austin 1998, no pet.)(stating that to be guilty of assault by

bodily injury, one must intend the result of the conduct, not just the conduct itself). That said,

“Texas law, like that of all American jurisdictions, presumes that a criminal defendant is sane

and that he intends the natural consequences of his acts.” Ruffin v. State, 270 S.W.3d 586, 591-

92 (Tex.Crim.App. 2008). Here, Appellant not only acknowledged that he purposefully put I.M.

into the trash can, but that he did so more than once.

        While there was testimony that I.M. was playing around with the other boys, I.M. himself

testified that he was not playing and that he was crying throughout the entire incident. There was

also evidence that I.M. was struggling and that the boys were laughing at him. Appellant

testified that I.M. was smaller than the others and that they threw him into the trash can because

he was little.

        And according to the testimony of I.M. and Montoya, when given the opportunity to

apologize, Appellant did so by using curse words.        The jury is the sole judge of witness

testimony and the weight to give such testimony. As fact finder, the jury was free to believe or

disbelieve any or all of any witness testimony, and in conducting our review we presume that the



                                               - 17 -
jury resolved any conflicts in the evidence in favor of the verdict. See Brown v. State, 122

S.W.3d 794, 800 (Tex.Crim.App. 2003); Moreno v. State, 702 S.W.2d 636, 641 (Tex.Crim.App.

1986); Moore v. State, 54 S.W.3d 529, 539 (Tex.App.--Fort Worth 2001, pet. ref’d)(cases

recognizing that intent is a question of fact and, therefore, within the sole purview of the jury).

       Viewing the evidence in the light most favorable to the verdict, we find a rational jury

could have reasonably inferred from Appellant’s acts, conduct, and remarks and from the

surrounding circumstances that he possessed the requisite culpable mental state to support a

conviction for assault causing bodily injury. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789;

Clayton, 235 S.W.3d at 778. Accordingly, we hold that the evidence is legally sufficient to

support Appellant’s conviction. We overrule Issue Two and affirm the trial court’s judgment.



August 8, 2012                         ________________________________________________
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.




                                                - 18 -
