                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00051-CV


IN THE MATTER OF M.E.


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          FROM THE COUNTY COURT AT LAW OF COOKE COUNTY
                     TRIAL COURT NO. JV661-13

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant M.E., a juvenile, waived his right to a trial on adjudication and

pleaded true to the State’s allegation that he committed aggravated assault, a

second-degree felony.    At the conclusion of the disposition hearing, a jury

sentenced M.E. to a determinate sentence of fifteen years. In four issues, M.E.

argues that the evidence is legally and factually insufficient to support his

sentence, that the sentence violates the Eighth Amendment’s prohibition against

      1
      See Tex. R. App. P. 47.4.
cruel and unusual punishment, that the trial court erred by allowing each side

only six peremptory strikes during voir dire, and that the trial court abused its

discretion by closing the disposition hearing without good cause. We will affirm.

                                  II. BACKGROUND

       On the evening of October 27, 2013, M.E., two other juveniles, and twenty-

year-old S.C. were driving around in a vehicle and drinking alcohol. At some

point, M.E. and S.C. began arguing, M.E. exited the vehicle, S.C. attempted

either to calm M.E. down or to get him back into the vehicle, and M.E. began

beating S.C. The police eventually arrived on the scene and discovered, among

other things, S.C. covered in blood and a broken whiskey bottle on the ground.

Medical personnel transported S.C. to the hospital by a helicopter, where he was

treated for his injuries.

                            III. EVIDENTIARY SUFFICIENCY

       In his first issue, M.E. challenges the legal and factual sufficiency of the

evidence to support his fifteen-year sentence. Unlike appellants in numerous

other juvenile appeals, M.E. does not challenge the sufficiency of the evidence to

support the trial court’s family code section 54.04(i) findings. See Tex. Fam.

Code Ann. § 54.04(i) (West 2014) (listing three determinations that trial court

must make to commit juvenile to the Texas Youth Commission—now the Texas

Juvenile Justice Department (TJJD)); see also In re A.O., 342 S.W.3d 236, 240

(Tex. App.—Amarillo 2011, pet. denied) (challenging sufficiency of evidence to

support section 54.04(i) finding); In re K.K.D., No. 03-03-00702-CV, 2004 WL

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1792399, at *3 (Tex. App.—Austin Aug. 12, 2004, pet. denied) (same); In re

J.D.P., 85 S.W.3d 420, 426‒27 (Tex. App.—Fort Worth 2002, no pet.) (op. on

reh’g) (same); In re C.C., 13 S.W.3d 854, 858‒59 (Tex. App.—Austin 2000, no

pet.) (same). Instead, M.E. challenges the sufficiency of the evidence only as it

pertains to the length, or severity, of his sentence, which falls squarely within the

legislatively prescribed range of two to twenty years. See Tex. Fam. Code Ann.

§ 54.04(d)(3)(B).   We question whether such a sufficiency review is even

possible.2 Nonetheless, to the extent that we may conduct such a review, the

evidence amply supports M.E.’s sentence.

      We apply the civil standard of review to sufficiency of the evidence

challenges regarding the disposition phase of juvenile proceedings. In re J.D.P.,

85 S.W.3d at 426. In determining whether there is legally sufficient evidence to

support the finding under review, we consider evidence favorable to the finding if

a reasonable factfinder could and disregard evidence contrary to the finding

unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas,

      2
        Generally, the factfinder’s sentencing decision is a normative,
discretionary function that does not depend on the resolution of specific facts
and, therefore, is not subject to a sufficiency challenge. Jordan v. State, 256
S.W.3d 286, 291 (Tex. Crim. App. 2008). A punishment that falls within the
legislatively prescribed range, and that is based upon the sentencer’s informed
normative judgment, is generally unassailable on appeal. Ex parte Chavez, 213
S.W.3d 320, 323‒24 (Tex. Crim. App. 2006); see Jarvis v. State, 315 S.W.3d
158, 162 (Tex. App.—Beaumont 2010, no pet.) (“The length of the sentence is
within the legislatively prescribed range, and is not subject to a sufficiency of the
evidence review on appeal.”). We would summarily deny M.E.’s first issue if this
caselaw applied to this juvenile appeal, but because neither side even remotely
approaches the issue, we will not address it.

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228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807,

827 (Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to

support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450

(Tex. 1996).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

      The evidence shows that M.E. severely beat S.C, causing him serious

bodily injury. S.C. suffered vascular injuries to his face, he lost several teeth and

a lot of blood, and his airway was compromised when authorities arrived at the

scene. A sheriff’s deputy who responded to the call testified that the skin on

S.C.’s chin was “hanging out” and that S.C.’s face was covered in so much blood

that the deputy could not determine where it was coming from. A paramedic

testified that after S.C. was taken away, the amount of blood remaining on the

ground looked like someone had poured out a “two-liter Coke.” On a scale of

one to ten, “one being the least hurt person, ten being the most severely hurt,”

the deputy rated S.C.’s injuries as an eight or nine, and the paramedic rated

them a nine. S.C. returned to the hospital after he was discharged, and tests

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showed that he had a low blood count and glass in his throat. S.C. testified that

he has a scar on his face, missing teeth, difficulty sleeping, and glass impacted in

his face and head.

      Further, a Cooke County probation officer testified about M.E.’s criminal

history—in February 2011, he was placed on probation for assault, burglary, and

possession of a delayed-action incendiary device; in December 2012, he was

placed on a new probation term for theft of a firearm, unlawfully carrying a

weapon, and obstruction or retaliation; in June 2013, he tested positive for

amphetamines, methamphetamines, and marijuana; in July 2013, he was

arrested for driving without a license and DUI; and about two months before the

incident in this case, he allegedly pulled a knife on another student.

      M.E. argues that S.C. may have participated in the fight offensively, but

S.C. is the one who sustained severe injuries, not M.E. M.E. also points out that

a psychological report that was prepared before his trial recommended that he

attend boot camp, but the probation officer disagreed with the recommendation

because of M.E.’s “history of scary offenses, violent offenses” and because M.E.

has more needs than can be addressed “on the community supervision side of

things.” According to the probation officer, it was in M.E.’s best interest to be

committed to the TJJD‒Institutional Division.

      Accordingly, to the extent that we may conduct a sufficiency review of the

severity of M.E.’s sentence, we hold that the evidence is legally and factually

sufficient to support the sentence. We overrule his first issue.

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                                IV. WAIVED ISSUES

      M.E. argues in his second issue that his fifteen-year sentence violates his

Eighth Amendment right to be free from cruel and unusual punishment because it

is grossly disproportionate to the offense charged.

      To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do this,

error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d

711, 712 (Tex. 1991) (op. on reh’g).

      M.E. did not object that his sentence was disproportionate to the offense at

the time that it was imposed, nor did he raise this complaint in a post-judgment

motion. We have repeatedly held that this type of claim must be preserved at the

trial court level. See Doyle v. State, No. 02-12-00626-CR, 2014 WL 3028885, at

*1 (Tex. App.—Fort Worth July 3, 2014, no pet.) (mem. op., not designated for

publication) (identifying numerous cases holding so); see also In re L.M.I., 119

S.W.3d 707, 711 (Tex. 2003). We overrule M.E.’s second issue.

      M.E. argues in his third issue that the trial court erred by allowing each

side only six peremptory strikes instead of twelve, and he argues in his fourth

issue that the trial court abused its discretion by closing the disposition hearing

without good cause. M.E. did not object to the number of peremptory strikes that

he was afforded at voir dire, nor did he object when the trial court, on at least two

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occasions, indicated that the proceeding was closed. Therefore, M.E. failed to

preserve both of these issues for appellate review. See Tex. R. App. P. 33.1(a).

We overrule M.E.’s third and fourth issues.

      Having overruled all of M.E.’s issues, we affirm the trial court’s judgment.


                                                   PER CURIAM

PANEL: MEIER, WALKER, and GABRIEL, JJ.

DELIVERED: December 23, 2014




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