                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00480-CV
                             ____________________

                     IN THE MATTER OF C.Z.S.
_________________________________         ______________________

             On Appeal from the County Court at Law No. 5
                     Montgomery County, Texas
                    Trial Cause No. 13-06-06568 JV
____________________________________________              ____________

                          MEMORANDUM OPINION

      A jury found that C.Z.S. engaged in delinquent conduct. The trial court

conducted a disposition hearing and placed C.Z.S. on probation. In five appellate

issues, C.Z.S. challenges (1) the trial court’s jurisdiction; (2) the admission of

testimony from two witnesses; and (3) the legal and factual sufficiency of the

evidence. We affirm the trial court’s judgment.

                                   Jurisdiction

      In issue one, C.Z.S. argues that the trial court never acquired jurisdiction

over him because he was not served with a petition and summons. In a juvenile

case, the trial court must direct issuance of a summons to the juvenile defendant.

                                         1
Tex. Fam. Code Ann. § 53.06(a)(1) (West 2014). “The summons must require the

persons served to appear before the court at the time set to answer the allegations

of the petition[]” and “[a] copy of the petition must accompany the summons.” Id.

§ 53.06(b). The juvenile cannot waive service. Id. § 53.06(e). The record must

affirmatively demonstrate that the juvenile was served with a summons. In re

D.W.M., 562 S.W.2d 851, 853 (Tex. 1978). “A valid officer’s return creates the

presumption of service and regularity, and the burden is on the defendant to show

inadequacy of service.” In re J.I.A., No. 01-12-00791-CV, 2013 Tex. App. LEXIS

15106, at *6 (Tex. App.—Houston [1st Dist.] Dec. 17, 2013, no pet.) (mem. op.).

The record must contain some indication that a copy of the petition was served. Id.

at **6-7.

      The record indicates that C.Z.S. was served with a summons on July 1,

2013. The summons states that a copy of the petition is attached and it commands

C.Z.S. to appear before the trial court and answer the attached petition. C.Z.S.’s

parents were also served. C.Z.S. and his parents subsequently acknowledged

having received a copy of the petition. Because the record contains an officer’s

return that is valid on its face, and the summons indicates that a copy of the

petition was served, service is afforded a presumption of regularity. See id. at *8.

C.Z.S.’s mere assertion that he was not served with a summons and a copy of the

                                         2
petition is insufficient to rebut this presumption. See id. at *9. Because the record

affirmatively demonstrates that C.Z.S. was properly served, we conclude that the

trial court acquired jurisdiction over C.Z.S. See D.W.M., 562 S.W.2d at 853. We

overrule issue one.

                            Sufficiency of the Evidence

      In issues four and five, C.Z.S. contends that the evidence is legally and

factually insufficient to support the jury’s conclusion that he engaged in delinquent

conduct. “We review adjudications of delinquency in juvenile cases by applying

the same standards that we apply to sufficiency of the evidence challenges in

criminal cases.” In re I.A.G., 297 S.W.3d 505, 507 (Tex. App.—Beaumont 2009,

no pet.). In criminal cases, “the Jackson v. Virginia legal-sufficiency 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.” Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010). This Court still applies the factual sufficiency

standard to civil commitment cases under the sexually violent predator statute. See

In re Commitment of Day, 342 S.W.3d 193, 206-13 (Tex. App.—Beaumont 2011,

pet. denied). Juvenile proceedings, while also civil in nature, entitle a juvenile to

double jeopardy protections. In re J.R.R., 696 S.W.2d 382, 384 (Tex. 1985); see

                                          3
generally In re C.H., 412 S.W.3d 67, 75 (Tex. App.—Fort Worth 2013, pet.

denied). In contrast, the SVP statute does not implicate double jeopardy principles.

See Kansas v. Hendricks, 521 U.S. 346, 369-70 (1997); see also In re Commitment

of Fisher, 164 S.W.3d 637, 653 (Tex. 2005).

      Given this distinction, the only standard we will apply, in accordance with

Brooks, is that of legal sufficiency. See Brooks, 323 S.W.3d at 895; see also In re

C.E.S., 400 S.W.3d 187, 194 (Tex. App.—El Paso 2013, no pet.); In re R.R., 373

S.W.3d 730, 734 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); In re

H.T.S., No. 04-11-00847-CV, 2012 Tex. App. LEXIS 10772, at **22-23 (Tex.

App.—San Antonio Dec. 31, 2012, pet. denied) (mem. op.). For this reason, we

need not address issue five challenging factual sufficiency. See Tex. R. App. P.

47.1. Under a legal sufficiency standard, we assess all the evidence in the light

most favorable to the prosecution to determine whether any rational trier of fact

could find the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). We give deference to the jury’s responsibility to fairly resolve

conflicting testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.




                                         4
        The State’s petition alleged that C.Z.S. engaged in delinquent conduct by

committing indecency with a child against R.S. R.S. testified that she wanted to

play with C.Z.S. and C.Z.S. told her he would play if R.S. touched his private

parts. R.S. testified that she touched C.Z.S.’s penis with her fingers. R.S.’s mother

testified that R.S. told her different stories before she admitted that C.Z.S. had

abused her. R.S. testified that she was initially untruthful because she thought she

had done something wrong and did not want to get in trouble. She denied seeing

anything “nasty” at her father’s house and testified that no one told her what to say

at trial.

        Susan Odhiambo, a forensic interviewer, testified that when she interviewed

R.S., R.S. initially denied any abuse. However, after Odhiambo asked R.S. if she

had told her mother about being made to touch someone, R.S. told Odhiambo that

C.Z.S. made her touch his “pee pee.” R.S.’s mother did not believe that C.Z.S.

abused R.S., but she believed that R.S. saw something at her father’s house and

that her father had prompted R.S. to accuse C.Z.S. so as to clear himself from any

wrongdoing. R.S.’s father testified that he had no reason to lie to the court or to

encourage R.S. to lie. C.Z.S.’s mother testified that C.Z.S. told her, in a letter, that

nothing physical occurred, but that he “maybe [he] said something stupid[]” to R.S.

She did not believe that C.Z.S. had anything to do with the allegations against him.

                                           5
      Dr. Lawrence Thompson, a psychologist, testified that it is not unusual for

child abuse victims to give a delayed disclosure. Thompson testified that he has

witnessed times when children have recanted allegations of sexual abuse for

various reasons, such as the abuse did not happen or the child is being pressured to

recant. He explained that when a child knows the perpetrator, the child can be

reluctant to disclose abuse and can be manipulated. Thompson testified that it is

not uncommon for some family members to believe the abuse occurred, while

others believe there was no abuse. He stated that it is not unusual for abused

children to act normal or to fear getting into trouble if they disclose the abuse. As

an example of grooming, Thompson identified an instance when the perpetrator

tells the child to “[d]o this sexual act, and I’ll play with you.”

      In this case, the State alleged that C.Z.S. committed indecency with a child

by (1) engaging in sexual contact with R.S.; and (2) with intent to arouse or gratify

the sexual desire of any person, exposed his anus or any part of his genitals,

knowing R.S. was present.1 See Tex. Penal Code Ann. § 21.11(a)(1), (2)(A) (West

2011). The jury heard R.S. testify that C.Z.S. said he would play with her if she

touched his penis, which she did. She eventually disclosed the abuse to her mother

and to Odhiambo. R.S. explained that she initially failed to disclose what occurred
      1
       The State also alleged attempted indecency with a child, but the jury
declined to find this count true.
                                            6
because she was afraid she had done something wrong and would be in trouble if

she told the truth. The jury heard Thompson explain that it is not uncommon for

child victims to delay a disclosure or to be afraid of getting into trouble for

disclosing the abuse. Thompson’s testimony also demonstrated that an example of

grooming includes a perpetrator promising to play with the child in exchange for

the child engaging in a sexual act.

      The jury was entitled to infer the requisite intent to arouse or gratify sexual

desire from C.Z.S.’s conduct and remarks, and all the surrounding circumstances.

See H.T.S., 2012 Tex. App. LEXIS 10772, at **26-27; see also Scott v. State, 202

S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref’d). Additionally, R.S.’s

testimony alone is sufficient to support a finding of indecency with a child. See In

re A.B., 162 S.W.3d 598, 601 (Tex. App.—El Paso 2005, no pet.). Viewing the

evidence in the light most favorable to the verdict, we find that the jury could

reasonably conclude, beyond a reasonable doubt, that C.Z.S. committed indecency

with a child. See Jackson, 443 U.S. at 318-19; see also Hooper, 214 S.W.3d at 13.

We overrule issue four.

                                Evidentiary Rulings

      In issues two and three, C.Z.S. challenges the admission of testimony from

Thompson and Odhiambo. “A trial court has broad discretion in determining the

                                         7
admissibility of the evidence[.]” Allridge v. State, 850 S.W.2d 471, 492 (Tex.

Crim. App. 1991). We review a trial court’s evidentiary rulings for abuse of

discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). Error

may not be predicated upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected.” Tex. R. Evid. 103(a); see Tex. R. App. P.

44.2(b).

      In issue two, C.Z.S. contends that the trial court abused its discretion by

allowing Thompson to testify because, according to C.Z.S., Thompson’s testimony

was not relevant to whether C.Z.S. had committed the offense. Outside the jury’s

presence, Thompson testified that he had not reviewed documents or interviewed

witnesses in connection with C.Z.S.’s case and had no specific knowledge of the

facts. He explained that the purpose of his testimony was “[t]o provide information

to the jury from my clinical experience, from the research related to child sexual

abuse so that they can apply [it] to this case as they see fit.” Thompson testified

that he would be discussing what an outcry is, that disclosure of sexual abuse is a

process, the effects of child abuse on the victim, how the child victim might testify,

and grooming. C.Z.S. argued that Thompson’s testimony was irrelevant to the facts

of the case. The trial court overruled C.Z.S.’s objections.




                                          8
      Relevant evidence is that which “has any tendency to make a fact more or

less probable than it would be without the evidence” and is a fact of consequence

in determining the action. Tex. R. Evid. 401. “A witness who is qualified as an

expert by knowledge, skill, experience, training, or education may testify in the

form of an opinion or otherwise if the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue.” Tex. R. Evid. 702. Expert testimony regarding the

characteristics commonly displayed by child victims of sexual abuse is admissible.

Tillman v. State, 354 S.W.3d 425, 440 (Tex. Crim. App. 2011); Cohn v. State, 849

S.W.2d 817, 818-19 (Tex. Crim. App. 1993). This type of testimony satisfies Rule

702 because it allows the jury to “assess the credibility of a particular complainant

more fairly by explaining the emotional antecedents underlying the typical victim’s

behavior[.]” Kirkpatrick v. State, 747 S.W.2d 833, 836 (Tex. App.—Dallas 1987,

pet. ref’d). Because Thompson’s testimony was intended to explain the traits of

child sexual abuse victims, we conclude that the trial court did not abuse its

discretion by allowing Thompson to testify. See Tillman, 354 S.W.3d at 440; see

also Cohn, 849 S.W.2d at 818-19; Kirkpatrick, 747 S.W.2d at 836; Tex. R. Evid.

702. We overrule issue two.




                                          9
      In issue three, C.Z.S. maintains that the trial court abused its discretion by

allowing Odhiambo to testify because she was not the first person to hear R.S.’s

outcry. Outside the jury’s presence, Odhiambo testified that R.S. told her that she

had been sexually abused by C.Z.S. C.Z.S. objected to Odhiambo’s testimony on

grounds that she was not the first outcry witness and she did not follow proper

protocol during her interview with R.S. The trial court found Odhiambo to be a

proper outcry witness.

      Assuming, without deciding, that the trial court abused its discretion by

allowing Odhiambo to testify as an outcry witness, we cannot say that the error

affected C.Z.S.’s substantial rights. See Tex. R. Evid. 103(a); see also Tex. R. App.

P. 44.2(b). R.S. testified, without objection, to the details of the alleged offense.

“‘[O]utcry’ testimony is necessarily cumulative of a complainant’s testimony.”

Cordero v. State, 444 S.W.3d 812, 820 (Tex. App.—Beaumont 2014, pet. ref’d)

(quoting Shelby v. State, 819 S.W.2d 544, 551 (Tex. Crim. App. 1991)). Moreover,

“improper admission of evidence is not reversible error if the same or similar

evidence is admitted without objection at another point in the trial.” Chapman v.

State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

Because the admission of Odhiambo’s testimony was harmless, we overrule issue




                                         10
three. Having overruled C.Z.S.’s appellate issues, we affirm the trial court’s

judgment.

      AFFIRMED.
                                            ______________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice

Submitted on May 4, 2015
Opinion Delivered May 28, 2015

Before McKeithen, C.J., Horton and Johnson, JJ.




                                       11
                              DISSENTING OPINION

      Because the majority refuses to address the factual sufficiency challenge that

C.Z.S. raised in issue five of his appeal, I do not agree with that portion of the

court’s opinion. Nevertheless, I concur in the Court’s resolution of issues one

through four of the appeal.

      According to the opinion of the Court, the Court is not required to resolve

C.Z.S.’s factual sufficiency issue, issue five, because a decision to grant a new trial

in a juvenile case implicates the Double Jeopardy Clause, which applies to the

States by virtue of the Due Process Clause. U.S. CONST. amend. V; U.S. CONST.

amend. XIV; Benton v. Maryland, 395 U.S. 784 (1969). Generally, an appellate

court’s decision to award a new trial after conducting a factual sufficiency review

does not violate the defendant’s rights under the Double Jeopardy Clause. Tibbs v.

Florida, 457 U.S. 31, 45 (1982) (explaining that when the appellate court reverses

a conviction after determining that the evidence does not rationally support a

verdict, “the Double Jeopardy Clause does not prevent an appellate court from

granting a convicted defendant an opportunity to seek acquittal through a new

trial”). I disagree with the majority’s assumption that the Double Jeopardy Clause

requires it to ignore the factual sufficiency issue raised by C.Z.S. in his appeal.




                                           1
       In my opinion, we are obligated to conduct a factual sufficiency review in a

case involving an appeal from a juvenile court. Appeals from juvenile courts are

governed by “[t]he requirements governing an appeal . . .          as in civil cases

generally.” Tex. Fam. Code Ann. § 56.01(b) (West 2014). The Rules of Appellate

Procedure require the courts of appeal to “address[] every issue raised and

necessary to final disposition of the appeal.” Tex. R. App. P. 47.1. The Texas

Constitution provides that the courts of appeal “shall be conclusive on all questions

of fact brought before them on appeal or error.” Tex. Const. art. V, § 6. Therefore,

addressing C.Z.S.’s factual sufficiency claim is necessary, as the merits of his

claim cannot be addressed by the Texas Supreme Court. Tex. Gov’t Code Ann. §

22.225(a) (West Supp. 2014) (“A judgment of a court of appeals is conclusive on

the facts of the case in all civil cases.”).

       As directed by the Texas Supreme Court, the courts of appeal are to weigh

all of the evidence for and against the factfinder’s finding when conducting a

factual sufficiency review. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

(Tex. 2001). Unlike the standard of review that applies to the review of a legal

sufficiency issue, a standard that requires the appeals court to indulge in every

inference favorable to the factfinder’s conclusions, in a factual sufficiency review

the court must evaluate all of the evidence admitted during a trial and determine if

                                               2
the jury’s finding, while legally sufficient, is nevertheless still clearly wrong and

unjust. See City of Keller v. Wilson, 168 S.W.3d 802, 812, 819-20 (Tex. 2005);

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

      The majority relies on the Court of Criminal Appeals opinion in Brooks to

avoid resolving C.Z.S.’s factual sufficiency issue. See Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). In addition to Brooks, the majority relies on

three opinions of our sister courts, all of which relied on Brooks without fully

evaluating whether civil standards of review applied in appeals taken from juvenile

courts despite the conclusion reached in Brooks that such a review was unavailable

in a criminal case. See In re C.E.S., 400 S.W.3d 187, 194 (Tex. App.—El Paso

2013, no pet.); In re R.R., 373 S.W.3d 730, 734 (Tex. App.—Houston [14th Dist.]

2012, pet. denied); In re H.T.S., No. 04-11-00847-CV, 2012 Tex. App. LEXIS

10772, at **22-23 (Tex. App.—San Antonio Dec. 31, 2012, pet. denied) (mem.

op.). However, Brooks concerned the appeal of a criminal case, not a case from a

juvenile court. Brooks, 323 S.W.3d at 905 (noting that Brooks was convicted of

possession with the intent to deliver cocaine). And, the opinions issued in In re

C.E.S., In re R.R., and In re H.T.S., except for their stated reliance on Brooks, fail

to explain why they chose not to apply a factual sufficiency standard to the reviews

they conducted. Id. Finally, even though the Legislature has directed the courts on

                                          3
the standards to apply in appeals from juvenile courts, the Texas Supreme Court

has not addressed whether the civil standards for appeals apply in juvenile cases

when those standards are inconsistent with the standards that apply in criminal

cases. See In re L.D.C., 400 S.W.3d 572, 574-75 (Tex. 2013) (acknowledging the

different criminal and civil standards applied to “unobjected-to charge error,” but

concluding the error was not harmful in the juvenile case being appealed under

either standard).

      In my opinion, until the Texas Supreme Court directs otherwise, Texas law

requires that the Court address C.Z.S.’s factual sufficiency claim. 2 In my opinion,

double jeopardy concerns are not raised by reviewing the Appellant’s case utilizing

a factual sufficiency standard of review. Therefore, I disagree with the majority’s

decision to not reach the Appellant’s factual sufficiency issue; instead, in

reviewing issue five, I would adopt the approach to conducting a factual

sufficiency review that we used in In re Commitment of Day, 342 S.W.3d 193,

206-13 (Tex. App.—Beaumont 2011, pet. denied). Regardless of the outcome of

the process, we are obligated to conduct a factual sufficiency review, as C.Z.S. has

not waived his right to have issue five reviewed.

      2
       While in my opinion the factual sufficiency issue that C.Z.S. raises should
be reached in resolving the appeal, I do not intend to imply how the issue, if
addressed, should be resolved.
                                         4
                        _________________________________
                                  HOLLIS HORTON
                                      Justice



Dissent Delivered
May 28, 2015




                    5
