                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-09-00332-CV


IN THE MATTER OF M.C.S., JR.


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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                                     OPINION
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      In one point, appellant M.C.S., Jr. contends that the evidence is insufficient

to support the trial court’s judgment of delinquency. We affirm.

                                 Background Facts

      In July 2009, the State filed a petition that accused appellant of violating

section 42.092 of the penal code by setting a bat on fire and therefore cruelly

torturing or killing it.1   The trial court found probable cause to believe that


      1
       See Tex. Penal Code Ann. § 42.092(b)(1) (Vernon Supp. 2010).
The State’s petition indicated that appellant was sixteen years old at the time of
the petition’s filing and contained paragraphs alleging that he also fled from
police and gave an officer a false date of birth.
appellant had engaged in delinquent conduct, ordered that he be detained in a

detention center, and appointed an attorney to represent him.

      On August 10, 2009, the trial court held a hearing on the State’s petition,

which appellant and his mother attended. Toward the beginning of the hearing,

the following conversation occurred:

              THE COURT: Now, according to the pleadings, you’re
      charged with cruelty to animals, a charge that, if you were an adult,
      carries with it possible jail time. As a juvenile, it carries with a
      possibility of being placed on probation or going to the Texas Youth
      Commission. Either one of those things can last at least until your
      18th birthday and even up to your 19th birthday, so you’re entitled to
      a trial. You’re not required to admit to this charge, and you’re not
      going to make anybody angry, you’re not going to change the
      punishment range or mak[e] things worse for yourself by asking for a
      trial.

             You’ve signed waivers saying a trial is not necessary.
      You have agreed that the attorneys can just tell me what the
      evidence is in this case without the need of the formalities of a trial
      and so I’m going to hear the evidence about what happened, it looks
      like, back in July, and if I find it to be true, proceed on with some
      additional evidence to decide whether or not you should be put on
      probation or not and what the conditions should be.[2]

             All right. [Appellant’s counsel], would you waive a full reading
      of the petition?

            [APPELLANT’S COUNSEL]: Yes, Your Honor.

            THE COURT: Let’s proceed.

      2
        Appellant and his trial attorney signed a stipulation of evidence stating
they were informed of and understood appellant’s rights to present and confront
witnesses but that they were voluntarily consenting ―to the stipulation of evidence
in this case.‖ They specifically consented to the ―introduction of testimony by oral
stipulation.‖ They acknowledged in the same document that they understood the
consequences of appellant’s waiving his right to a jury trial.

                                         2
            ....

             [THE STATE]: . . . May it be . . . agreed and stipulated that
      the Respondent did violate section 42.092 of the Texas Penal Code,
      when on or about the 23rd day of July of 2009, in the County of
      Tarrant and State of Texas, he did then and there intentionally or
      knowingly torture, kill, or -- or torture or kill in a cruel manner or
      cause serious bodily injury to an animal, to wit, a bat, by setting it on
      fire and burning it.

              The State is prepared to call Fort Worth police officers who
      would testify that they responded in reference to a disturbance
      where kids were knocking on doors and then running away.
      They noticed a group of youths at the apartment complex.
      They made contact and the group denied having any involvement;
      however, as the officers were leaving, they saw the Respondent light
      something on fire and when they turned around, the Respondent
      took off running. The Respondent was subsequently chased and
      caught, at which time the officers later discovered the object that had
      been burnt by the Respondent was in fact a bat that was in a -- that
      a girl had in a glass jar.

            The officers would also testify that this offense did occur within
      Tarrant County and the State of Texas, and the State would rest.

            [APPELLANT’S COUNSEL]: No objections, judge.

      The trial court then received a placement summary and evidence about

appellant’s social history. It also heard testimony from appellant and his mother.

The trial court adjudicated appellant delinquent, placed him on probation (with

several delineated conditions), and ordered that he complete treatment at the

Texas Adolescent Treatment Center.

      In September 2009, appellant, who was represented by new counsel, filed

a motion for new trial, contending that the evidence is insufficient to support the

trial court’s judgment and that he did not knowingly or voluntarily sign the written


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stipulation of evidence. Appellant’s motion was overruled by operation of law.

Appellant also filed his notice of this appeal.

                              Evidentiary Sufficiency

      Appellant contends that the evidence is insufficient to support the trial

court’s judgment because (1) the stipulation at the hearing does not satisfy the

required statutory elements, (2) he was not properly given statutory warnings,

(3) the written stipulation was involuntary, and (4) he did not orally acknowledge

at the hearing that he agreed to the oral stipulation. Although appeals of juvenile

court orders are generally treated as civil cases, we apply a criminal sufficiency

standard. In re L.A.S., 135 S.W.3d 909, 913–14 (Tex. App.—Fort Worth 2004,

no pet.); In re J.D.P., 85 S.W.3d 420, 422 (Tex. App.—Fort Worth 2002, no pet.).

In reviewing the sufficiency of the evidence, we view all of the evidence in the

light most favorable to the judgment to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).3

      3
        After the briefing and submission of this case, the court of criminal
appeals held that there is ―no meaningful distinction between the . . . legal-
sufficiency standard and the . . . factual-sufficiency standard, and these two
standards have become indistinguishable.‖ Brooks v. State, PD-0210-09, 2010
WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010). Thus, the Jackson standard
is the ―only standard that 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. All other cases to the
contrary . . . are overruled.‖ Id. at *14. Accordingly, we apply the Jackson
standard of review to appellant’s sufficiency complaint.

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Statutory elements

      A person commits the offense of cruelty to nonlivestock animals if the

person intentionally, knowingly, or recklessly ―tortures an animal or in a cruel

manner kills or causes serious bodily injury to an animal.‖ Tex. Penal Code Ann.

§ 42.092(b)(1).   Under section 42.092, an ―animal‖ is a domesticated living

creature or a wild living creature that has been previously captured; the ―term

does not include an uncaptured wild living creature.‖ Id. § 42.092(a)(2).

      Appellant asserts that the oral stipulation quoted above does not show that

the bat was alive when it was set on fire or that it had been previously captured.

But the stipulation particularly states that appellant violated section 42.092 and

uses the term ―animal‖ as the statute does.       Also, the stipulation states that

appellant tortured or killed the bat by setting it on fire and that the bat was in a

glass jar; these facts establish that the bat was previously alive and had been

captured. The record does not contain any contradicting evidence showing that

the bat was dead or had not been captured when it was set on fire. Thus, we

hold that the stipulation comprises sufficient evidence to support the statutory

elements of cruelty to nonlivestock animals. See id. § 42.092(b)(1); Clayton, 235

S.W.3d at 778; see also In re R.L.S., 707 S.W.2d 726, 728 (Tex. App.—

Beaumont 1986, no writ) (holding that a stipulation served as sufficient evidence




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in a juvenile case); In re J.L., 664 S.W.2d 119, 120–21 (Tex. App.—Corpus

Christi 1983, no writ) (overruling a juvenile’s point based on his stipulation).4

Statutory warnings

      Next, appellant contends that he did not receive proper statutory warnings.

The family code provides that at the beginning of an adjudication hearing, the

juvenile court judge shall explain to the child (1) the allegations made against the

child, (2) the nature and possible consequences of the proceedings, including the

law relating to the admissibility of the record of a juvenile court adjudication in a

criminal proceeding, (3) the child’s privilege against self-incrimination, (4) the

child’s right to trial and to confrontation of witnesses, (5) the child’s right to

representation by an attorney if he is not already represented, and (6) the child’s

right to trial by jury. Tex. Fam. Code Ann. § 54.03(b) (Vernon Supp. 2010);

see In re T.W.C., 258 S.W.3d 218, 220 (Tex. App.—Houston [1st Dist.] 2008, no

pet.). Appellant admits that the trial court explained the charge to him and told

him about his possible punishment; however, he contends that the court failed to

warn him about his privilege against self-incrimination in the court’s ―streamlined

and simplified admonishments.‖

      However, section 54.03 of the family code also states that to preserve for

an appeal ―the failure of the court to provide the child the explanation required by

Subsection (b), the attorney for the child must comply with Rule 33.1, Texas

      4
      Appellant concedes that a stipulation may constitute sufficient evidence to
support a juvenile adjudication.

                                          6
Rules of Appellate Procedure, . . . before the child pleads to the petition or

agrees to a stipulation of evidence.‖ Tex. Fam. Code Ann. § 54.03(i) (emphasis

added). Neither appellant nor his trial counsel complained about his statutory

admonishments before appellant agreed to the stipulation of evidence; thus, we

hold that appellant failed to preserve any error related to the admonishments.5

See Tex. R. App. P. 33.1; Tex. Fam. Code Ann. § 54.03(i); In re E.F., 986

S.W.2d 806, 809 & n.8 (Tex. App.—Austin 1999, pet. denied); see also In re

R.W.G., No. 02-02-00083-CV, 2003 WL 1564310, at *2 (Tex. App.—Fort Worth

Mar. 27, 2003, no pet.) (mem. op.) (―At no time . . . did Appellant lodge an

objection to the lack of the required warning. Accordingly, the alleged arguable

error was not preserved.‖).

The written stipulation

      Appellant also contends that ―[t]here is no evidence in the record that [he]

voluntarily signed the stipulation‖ even though the stipulation, which his trial

attorney also signed, states that he ―voluntarily consent[ed] to the stipulation of

evidence in this case.‖ Appellant relies on article 51.09 of the family code, which

states that rights granted to a child by law may be waived if (1) the waiver is

made by the child and the attorney for the child, (2) the child and the attorney

waiving the right are informed of and understand the right and the possible


      5
       We do not express an opinion on whether the trial court’s statement to
appellant that he was not ―required to admit to this charge‖ satisfied the court’s
duty to inform appellant about his privilege against self-incrimination.

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consequences of waiving it, (3) the waiver is voluntary, and (4) the waiver is

made in writing or in court proceedings that are recorded. Tex. Fam. Code Ann.

§ 51.09 (Vernon 2008). Courts review voluntariness by examining the totality of

the circumstances. See In re R.M., 880 S.W.2d 297, 299 (Tex. App.—Fort Worth

1994, no writ).

      Appellant raised the voluntariness issue for the first time in his motion for

new trial. As recently stated by the Amarillo Court of Appeals,

              The granting or denying of a motion for new trial is within the
      discretion of the trial court. In reviewing the trial court’s decision, our
      standard of review is whether the trial court abused its discretion.
      A trial court abuses its discretion when its action or decision is not
      within the zone of reasonable disagreement. A trial judge’s ruling on
      a motion for new trial is presumed to be correct.

In re M.M.L., 241 S.W.3d 546, 560 (Tex. App.—Amarillo 2006, pet. denied)

(citations omitted); see In re R.V., Jr., 8 S.W.3d 692, 693 (Tex. App.—Fort Worth

1999, pet. denied).

      At the hearing on appellant’s motion for new trial, his mother testified that

she did not get to talk with him on the day of the adjudication hearing, that she

did not see the stipulation before he signed it, that neither she nor he understood

the waiver of his rights, and that before the day of the hearing, he had planned to

―tell the judge that he did not do it.‖ She also said that appellant had a learning

disability and that he did ―not deserve a felony‖ because he did not light the bat

on fire and was only ―at the wrong place at the wrong time.‖ But the attorney who

represented appellant at the adjudication hearing said during the motion for new


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trial hearing that she had numerous conversations with appellant’s mother, that

she ensured that appellant understood the documents that he was signing, and

that the State waived two of appellant’s charges when it proceeded with the

cruelty to animals charge.

       Appellant did not testify at the motion for new trial hearing. The attorney

who represented him during that hearing conceded that he could not ―develop as

to whether . . . [appellant] did or did not have knowledge and signed these things

voluntarily and knowingly.‖

       We conclude that the trial court could have reasonably determined that

appellant’s stipulation was voluntary and denied (by operation of law) his motion

for new trial, despite his mother’s testimony, based on the cumulative effect of

(1) the explicit recital of voluntariness in the written stipulation, (2) appellant’s trial

attorney’s testimony that appellant understood what he was signing, and (3) the

trial court’s instruction to him at the adjudication hearing that he was not

―required to admit to this charge‖ and was ―not going to make anybody angry‖ by

asking for a trial. Thus, we hold that the trial court did not abuse its discretion by

denying his motion for new trial. See M.M.L., 241 S.W.3d at 560.

The oral stipulation

       Finally, appellant argues that the oral stipulation presented by the State

during the adjudication hearing was ―so defective that it failed to reveal whether

[he] was knowingly, intelligently, voluntarily and willingly‖ making the stipulation.

Specifically, appellant contends that the trial court should have sought an oral

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response from appellant after the State presented the stipulation and that his

counsel’s ―[n]o objections‖ response was insufficient.

      Appellant relies on our decision in In re M.A.O., in which we recited the

following events that occurred in that case:

      When asked to make a plea as to the burglary of a habitation
      allegation, Appellant pleaded true.    Appellant agreed that he
      understood his rights and that he was pleading true because that
      was what he intended to do and for no other reason. Appellant also
      agreed that he had not been threatened through fear of force,
      promised anything in exchange for his plea of true, or pressured to
      plead through any persuasion or hope of pardon. Appellant
      acknowledged that he was knowingly, intelligently, voluntarily, and
      willingly making his plea of true.

No. 02-03-00262-CV, 2004 WL 1746890, at *1 (Tex. App.—Fort Worth Aug. 5,

2004, no pet.) (mem. op.).         Based on M.A.O. and other cases, appellant

contends that an ―oral in[-]court Stipulation should contain an audible utterance

from the juvenile.‖   [Emphasis added.]        But appellant has not cited authority

showing that such an ―audible utterance‖ must occur to validate a stipulation, and

we have found none. Also, appellant’s argument contravenes section 51.09 of

the family code, which states that a juvenile may waive rights ―in writing or in

court proceedings that are recorded.‖           Tex. Fam. Code Ann. § 51.09(4)

(emphasis added). Therefore, we cannot agree with appellant’s contention that

for his stipulation to be effective, he was required to personally, orally reaffirm it

during the adjudication hearing.

      For all of these reasons, having rejected each of appellant’s arguments,

we overrule his sole point.

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                              Conclusion

     Having overruled appellant’s only point, we affirm the trial court’s

judgment.



                                            TERRIE LIVINGSTON
                                            CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: October 21, 2010




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