                                   NO. 07-11-00009-CV

                                IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                   DECEMBER 13, 2011


                          IN THE MATTER OF J.S.R., A CHILD


              FROM THE COUNTY COURT AT LAW OF MOORE COUNTY;

                           SITTING AS A JUVENILE COURT

                 NO. 1455; HONORABLE DELWIN T. MCGEE, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       OPINION


      The juvenile court of Moore County adjudicated appellant J.S.R. delinquent for

committing the offense of retaliation1 and committed him to the custody of the Texas

Youth Commission for an indeterminate period not beyond his nineteenth birthday. On

appeal, J.S.R. challenges the sufficiency of the evidence and asserts the existence of a

material variance in the State’s pleading and proof.    Finding the evidence was not

sufficient to prove the charged offense beyond a reasonable doubt, we will reverse and

render judgment of acquittal.




      1
          Tex. Penal Code Ann. § 36.06(a)(1)(A) (West 2011).
                                        Background


      In its petition, the State alleged:


      On or about the 20th day of October, 2010 [J.S.R.] did then and there, in
      the County of Moore, State of Texas, intentionally or knowingly threaten to
      harm another, to-wit: Rob Groves, by an unlawful act, to-wit: threaten
      bodily harm, in retaliation for or on account of the status of Rob Groves as
      Assistant Principal of Dumas High School suspending said [J.S.R.] from
      school for misconduct.

      At the adjudication hearing, the State’s evidence was developed largely through

the testimony of Mr. Groves. On October 20, 2010, he decided to suspend J.S.R. from

school for a classroom discipline matter, apparently involving J.S.R.’s iPod mp3 player.

The iPod was taken from J.S.R. and delivered to Groves.           J.S.R.’s mother was

summoned to school and she and Groves reviewed the paperwork necessary to effect

the suspension of J.S.R. Groves returned the iPod to J.S.R.’s mother but she asked

him to keep the device. He agreed, and placed it in a drawer.


      J.S.R. was then brought to Groves’ office and the suspension paperwork was

signed. Groves agreed that J.S.R. seemed “fine” with the suspension. But when his

mother told J.S.R. the school would keep his iPod, he shoved his chair, stood up, and

declared, “that’s f’d up.” Groves responded that such language was not allowed in his

office. J.S.R. replied he was not “f-ing scared” of Groves. According to Groves, the

language of J.S.R. grew worse. Groves summoned a school police officer. J.S.R.

removed his coat, threw it on the floor and moved toward Groves at his desk. The

officer entered the office and stepped between Groves and J.S.R. J.S.R. then told

Groves he would catch him “on the street somewhere and f’k [him] up.” The officer then

                                            2
removed J.S.R. to another office. Groves testified that he believed J.S.R.’s statement

was a threat and had the officer not intervened J.S.R. would have assaulted him.


       On cross-examination, Groves agreed that the threat and aggressive movements

by J.S.R. did not occur until J.S.R. learned his iPod would not be returned.           But

according to Groves, J.S.R. threatened him because he brought a police officer into the

office for the purpose of filing a charge against J.S.R. for inappropriate language.


       J.S.R. called a probation officer as his only witness. During his brief testimony,

the officer read the following from a letter he submitted to the prosecutor. “During this

suspension, the child made a threat toward Assistant Principal Rob Groves insinuating

retaliation for suspension.” Neither side asked additional questions of the officer.


       At the conclusion of the hearing the court verbally rendered judgment that the

allegations of the State’s petition were true. The written judgment contained a finding

tracking the allegation of the State’s petition and decreed that J.S.R had engaged in

delinquent conduct. J.S.R. does not challenge the disposition order committing him to

an indeterminate period in the custody of TYC. This appeal followed.


                                         Analysis


       Through two issues, J.S.R. asserts the evidence was insufficient to support the

trial court’s adjudication of delinquency and a material variance exists between the

allegations of the State’s petition and its proof at trial. We begin with the challenge to

the sufficiency of the evidence.



                                             3
      Delinquent conduct is conduct other than a traffic offense that violates a penal

law of Texas or of the United States and that is punishable by imprisonment or

confinement in jail.    Tex. Fam. Code Ann. § 51.03(a)(1) (West Supp. 2011).

Proceedings in juvenile court are quasi-criminal in nature but classified as civil cases.

In re Hall, 286 S.W.3d 925, 927 (Tex. 2009) (orig. proceeding). In general, juvenile

proceedings are governed by the rules of civil procedure and the Family Code. Tex.

Fam. Code Ann. § 51.17 (West Supp. 2011); In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002).

A juvenile is entitled to the essentials of due process because the case disposition may

result in deprivation of the juvenile’s liberty.   In re T.L.K., 316 S.W.3d 701, 702

(Tex.App.--Fort Worth 2010, no pet.) (citing In re J.R.R., 696 S.W.2d 382, 383 (Tex.

1985) (per curiam)).


      Petition requirements in a juvenile proceeding are governed by the Family Code.

L.G.R. v. State, 724 S.W.2d 775, 776 (Tex. 1987). A petition for adjudication “must

state: with reasonable particularity the time, place and manner of the acts alleged and

the penal law or standard of conduct allegedly violated by the acts.” Tex. Family Code

Ann. § 53.04(d)(1) (West 2008). Due process requires that the petition be sufficient to

inform the juvenile of the specific issues he must meet. In re Gault, 387 U.S. 1, 33, 87

S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967).


      When reviewing the sufficiency of the evidence in an adjudication hearing we

apply the criminal law standard because the State bears the same burden of proof as in

a criminal case. In re E.P., 963 S.W.2d 191, 193 (Tex.App.--Austin 1998, no writ); Tex.

Fam. Code Ann. § 54.03(f) (West Supp. 2011). Under that standard we view all of the

                                            4
evidence in the light most favorable to the court’s judgment to determine whether any

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

reasonable doubt. Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) (plurality

op.). See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). The essential

elements of the crime are those defined by the hypothetically correct jury charge. Geick

v. State, No. PD-1734-10, 2011 Tex. Crim. App. Lexis 1342, at *6 (Tex.Crim.App. Oct.

5, 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). We thus

measure the sufficiency of the evidence by the essential elements as defined by the

hypothetically correct charge. Cada v. State, 334 S.W.3d 766, 773 (Tex.Crim.App.

2011). This standard applies to all trials whether by jury or to the bench. Malik, 953

S.W.3d at 240; Campbell v. State, 139 S.W.3d 676, 683 (Tex.App.--Amarillo 2003, pet.

refused). A hypothetically correct jury charge “accurately sets out the law, is authorized

by the indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.”      Malik, 953 S.W.2d at 240.2

“[B]efore something may be an element of the offense in the hypothetically correct jury

charge, it must be ‘authorized by the indictment.’ For example, if the penal offense sets

out various statutory alternatives for the distinct elements of the crime, the jury charge

may contain only those alternative elements that are actually alleged in the indictment.”

Cada, 334 S.W.3d at 773 (footnotes omitted).



      2
       This list of characteristics “is not necessarily exhaustive.” Curry v. State, 30
S.W.3d 394, 404 (Tex.Crim.App. 2000).
                                            5
       “When an indictment facially alleges a complete offense, the State is bound by

the theory alleged in the indictment, as is the reviewing court in its sufficiency analysis.”

Rojas v. State, 986 S.W.2d 241, 246 (Tex.Crim.App. 1998) (citing Montoya v. State, 906

S.W.2d 528, 529 (Tex.Crim.App. 1995)).


       The Court of Criminal Appeals has described Penal Code § 36.06, “Obstruction

or Retaliation” as “a good example of the ‘Chinese Menu’ style of alleging the elements

of a penal offense.” Cada, 334 S.W.3d at 770; see Geick, 2011 Tex. Crim. App. Lexis

1342, at *10-12 (discussing Cada). Several of the elements present alternatives for

charging the offense. Cada, 332 S.W.3d at 770. The elements and alternatives of the

offense are:


       (1) The Defendant

       (2) a. intentionally [or]

          b. knowingly

       (3) a. harms [or]

          b. threatens to harm

       (4) another person

       (5) by an unlawful act

       (6) a. in retaliation for [or]

          b. on account of

       (7) a. the service of another [or]

          b. the status of another

       (8) as a

          a. public servant

                                             6
           b. witness

           c. prospective witness [or]

           d. informant.

Id. The State’s charging instrument must allege at least one item from each numbered

elemental category. Id.


       Elements presenting an option may be plead in the conjunctive and it is sufficient

if the proof at trial establishes any one of the alleged alternative elements beyond a

reasonable doubt. Id. at 770-71. We measure the sufficiency of the evidence by the

specific alternative elements alleged by the State in the charging instrument. Id. at 773-

74. “Thus, if the State pleads one specific element from a penal offense that contains

alternatives for that element, the sufficiency of the evidence is measured by the element

that was actually pleaded, not any other statutory alternative element.” Id. at 774 (citing

Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App. 1999) (holding that the State was

restricted to proof of the one statutory theory of solicitation of capital murder that it had

alleged; evidence insufficient to prove that theory, even though it was sufficient to prove

the unplead statutory alternative)).     Due process requires the State to prove each

element of the offense alleged beyond a reasonable doubt. Id. at 774, 776.3


       Significant here, “[t]he ‘service’ or ‘status’ of the complainant as a ‘public servant,’

. . . are all differing elements of the underlying offense.” Cada, 334 S.W.3d at 770.

“Status” refers to a person’s position or rank in relation to others.” Merriam-Webster’s

       3
         “Under Jackson, the State must prove the statutory elements that it has chosen
to allege, not some other alternative statutory elements that it did not allege.” Cada,
334 S.W.3d at 776.

                                              7
Collegiate Dictionary 1220 (11th ed.).4 “Service” refers to the “occupation or function of

serving.” Id. at 1137. Parenthetically, J.S.R. does not dispute that Groves was a public

servant.5 The State was free to allege alternatively that J.S.R. threatened Groves in

retaliation for his status or his service as an associate principal. Yet the State limited its

proof options at the adjudication hearing by alleging only that J.S.R. acted in retaliation

for Groves’ status. See Cada, 334 S.W.3d at 773-74 (noting sufficiency of evidence is

measured by specific alternative elements alleged in indictment). The record shows

Groves suspended J.S.R. from school as part of Groves’ service as associate principal.

During the suspension procedure, he threatened to harm Groves by an unlawful act,

because Groves kept his iPod or because Groves summoned school police. But no

evidence shows the threatened retaliation was because of Groves’ status as associate

principal. Rather, the retaliatory threat was for Groves’ service as associate principal.6

Because the State did not present any evidence that the threatened retaliatory conduct

was on account of Groves’ status as associate principal, it did not prove each element

of the charged offense beyond a reasonable doubt. We sustain J.S.R.’s first issue.




       4
       The Penal Code does not define the terms service or status. “Where statutory
terms are not defined by the legislature, we ascribe to those terms their ordinary
meaning.” Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App. 1993).
       5
        “Public Servant” means a person elected, selected, appointed, employed, or
otherwise designated as one of the following, even if he has not yet qualified for office
or assumed his duties: (A) an officer, employee, or agent of government. Tex. Penal
Code Ann. § 1.07(41)(A) (West Supp. 2011).
       6
         As the State describes it in its brief, “J.S.R. threatened Groves for his role in
exercising his administrative duties.”
                                              8
       Having found the evidence adduced at the adjudication hearing was legally

insufficient to support judgment for the offense alleged in the State’s petition, our

consideration of J.S.R.’s second issue is unnecessary. 7 Tex. R. App. P. 47.1.


                                    Conclusion


       We reverse the judgment of the trial court and render a judgment of acquittal.

The trial court’s disposition order, which is predicated on the adjudication of

delinquency, is vacated.




                                                        James T. Campbell
                                                             Justice




      7
         Although we do not reach J.S.R.’s second issue asserting the existence of a
material variance, we note that the evidentiary insufficiency we find in this case is
addressed in the Court of Criminal Appeals’ jurisprudence regarding variances. As
Presiding Judge Keller noted in her concurring opinion in Fuller v. State, a variance
involving the State’s failure to prove a statutorily-enumerated element plead in the
indictment is “always material. The State cannot ‘substantially’ prove a statutorily-
enumerated element of the offense; the element is proven or it is not proven. So while
one could call that situation a ‘variance,’ it is not the type of variance that calls for a
materiality determination.” Fuller v. State, 73 S.W.3d 250, 256 (Tex.Crim.App. 2002)
(Keller, P.J., concurring); see Cada, 334 S.W.3d at 774 and 774 n.36.


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