                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §              No. 08-07-00101-CV

                                                 §                 Appeal from the

 IN THE MATTER OF R.A., A                        §              289th Judicial District
 JUVENILE
                                                 §             of Bexar County, Texas

                                                 §             (TC# 2006-JUV-01730)

                                                 §

                                          OPINION

       This is an appeal from a conviction for aggravated sexual assault and indecency with a

child. Appellant argues on appeal that the evidence was legally and factually insufficient to

support the conviction. Appellant also argues that his constitutional right to be free from double

jeopardy was violated by the filing of the present case. We affirm.

       C.K., the ten-year-old complainant, lived with her grandmother Ellen Cross. In March

2005, she spent spring break at her mother Jennifer Armstrong’s house along with

Ms. Armstrong’s husband, Rodney Armstrong, and his five children. Appellant is C.K.’s

fourteen-year-old stepbrother.

       Ms. Cross testified that in April 2005, C.K. made an outcry. C.K. told Ms. Cross that on

March 15, 2005, Appellant came into the livingroom where C.K. was sleeping and got on top of

her in the middle of the night. Appellant told C.K. he was going to give her a massage. He then

touched C.K.’s genital area under her shorts. He opened C.K.’s legs, spread them back, and

pulled her shorts to the side. C.K. testified that Appellant put his “middle part” in her “middle

part.” At trial, C.K. demonstrated what a “middle part” was and demonstrated the motion
Appellant made during the incident. C.K.’s demonstration and explanations indicated that

Appellant had inserted his penis into her vagina during the assault. C.K. tried to escape but

Appellant held her down on the couch.

       After the assault, Appellant got a washrag and cleaned C.K.’s genital area. C.K. did not

yell during the attack because her mother had told her not to yell in the house, and C.K. feared

getting her stepbrother in trouble. The next morning, C.K. noticed blood on her underwear. She

told her mother about the bleeding, but did not describe the incident with Appellant, again

because she was afraid Appellant would get in trouble.

       Dr. Nancy Kellogg, an abuse and neglect specialist, examined C.K. on May 12, 2005.

C.K. told Dr. Kellogg about the incident with Appellant. Dr. Kellogg testified that C.K. was not

yet sexually developed, and that the bleeding could not have been attributed to a menstrual cycle.

Although C.K. showed no physical signs of the assault at the time Dr. Kellogg examined her, the

doctor noted that more than two months had passed since the incident, and any injuries may have

healed. Dr. Kellogg concluded that C.K. had been sexually abused based on the history of

bleeding and C.K.’s description of the incident.

       Appellant was charged with aggravated sexual assault and indecency with a child on

June 28, 2006. A bench trial was held in the 289th Judicial District Court, Bexar County, with

the Honorable Carmen Kelsey presiding. The court found the charges to be true and held

disposition hearings on December 19, 2006, and January 4, 2007. At the conclusion of the

hearings, the trial court sentenced Appellant to probation until his eighteenth birthday and

released him to his father’s custody.

       In Issues One through Four, Appellant challenges the legal and factual sufficiency of the


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evidence, arguing that the State failed to establish that Appellant committed the alleged offenses

beyond a reasonable doubt. Specifically, Appellant asserts that C.K.’s history of behavioral

issues, including hallucinations, caused her story to be so questionable as to be unbelievable.

Furthermore, Appellant argues that C.K.’s tendency to react to various situations with anger

further undermines her testimony. Moreover, Appellant argues the fact the alleged offenses were

committed in a small house, but went unnoticed by the six people residing there raises further

questions regarding C.K.’s allegations.

        Although juvenile appeals are categorized as civil cases, when reviewing challenges to

the sufficiency of the evidence supporting a finding that a juvenile engaged in delinquent

conduct, appellate courts utilize the same standards applicable in criminal appeals. See In the

Matter of M.D.T., 153 S.W.3d 285, 287 (Tex.App.--El Paso 2004, no pet.). When reviewing the

legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-

89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). We do

not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses,

as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421

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

findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light

most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any

inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d

839, 843 (Tex.Crim.App. 1991).


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       In a factual sufficiency review, we consider all the evidence in a neutral light. Grotti v.

State, 273 S.W. 3d 273, 283 (Tex.Crim.App. 2008), citing Roberts v. State, 220 S.W.3d 521, 524

(Tex.Crim.App. 2007). Evidence is factually insufficient if: (1) the evidence supporting the

verdict is so weak that the verdict seems clearly wrong and manifestly unjust; or (2) the evidence

supporting the verdict is outweighed by the great weight and preponderance of contrary evidence,

rendering the verdict clearly wrong and manifestly unjust. Id. A new trial will only be granted

when the reviewing court determines, on an objective basis, that the great weight and

preponderance of the evidence contradicts the jury’s verdict. Watson v. State, 204 S.W.3d 404,

417 (Tex.Crim.App. 2006).

       A person commits the offense of aggravated sexual assault of a child if he intentionally or

knowingly causes the sexual organ of a child younger than fourteen years of age to contact or

penetrate the mouth, anus, or sexual organ of the actor, or another person, or causes the

penetration of the mouth of a child by the sexual organ of the actor. See TEX .PEN .CODE ANN .

§ 22.021(a)(1)(B)(ii)(iii) & (2)(B)(Vernon Supp. 2009).

       A person commits the offense of indecency with a child if, with a child younger than

seventeen years and not the person’s spouse, whether the child is of the same or opposite sex, the

person engages in sexual contact with the child or causes the child to engage in sexual contact.

See TEX .PEN .CODE ANN . § 21.11(a)(Vernon 2003). The penal code defines “sexual contact” in

Section 21.11 as the following acts, if committed with the intent to arouse or gratify the sexual

desire of any person:

       (1)     any touching by a person, including touching through clothing, of the anus,
               breast, or any part of the genitals of a child; or



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       (2)     any touching of any part of the body of a child, including touching through
               clothing, with the anus, breast, or any part of the genitals of a person.

TEX .PEN .CODE ANN . § 21.11(c).

       In Issues One and Two, Appellant contends that the evidence is legally insufficient to

support the trial court’s delinquency finding. Appellant’s argument focuses on C.K.’s credibility

given her history of behavioral problems, and evidence that the assault went unnoticed by several

adults who were also present in the house at the time of the incident. In essence, Appellant

argues that evidence of the surrounding circumstances, and the victim’s behavioral history make

her testimony completely incredible. Appellant implicitly admits that C.K.’s testimony is some

evidence of the elements of the offenses charged. Therefore, to sustain Issues One and Two, this

Court would have to engage in an evaluation of witness credibility and review the victim’s

testimony in a negative light. That would be contrary to the standard for a legal sufficiency

review, and we decline to do so. See Adelman 828 S.W.2d at 421. It was within the purview of

the fact finder to believe all, or any part of any witness’s testimony, including C.K.’s. See id.

Viewed in the light most favorable to the verdict, C.K.’s account of the assault, the evidence of

her outcry to Ms. Cross, and Dr. Kellogg’s testimony provide a rational basis for a trier of fact to

conclude that Appellant committed the charged offenses. Issues One and Two are overruled.

       In Issues Three and Four, Appellant argues that the evidence is factually insufficient to

support the trial court’s finding of delinquency because the evidence supporting the verdict is

outweighed by the great weight and preponderance of contrary evidence, rendering the verdict

clearly wrong and manifestly unjust.

       Again, Appellant bases his argument on evidence of the circumstances surrounding the



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assault and C.K.’s behavioral history. Regarding the physical surroundings at the time of the

assault, Appellant points to testimony by C.K.’s mother and grandmother that the house where

the assault occurred is small, 1,288 square feet. Ms. Armstrong testified that everything can be

heard in the house at night because it is a wooden house on pier and beam. She also testified that

she and her husband walk around the house at least twice during the night. In addition, there is

evidence that eight people present at the house during the incident.

       Furthermore, Appellant argues that C.K.’s problematic behavioral history calls her

credibility into serious question. Evidence presented at trial demonstrated that C.K. has a history

of kicking, spitting, and screaming when she becomes angry. C.K.’s school principal, Nancy

Neugebauer, testified that during the 2005 school year, C.K. was restrained several times because

of her anger reactions. The principal explained that occasionally it takes two people to hold C.K.

down. C.K. has thrown books, tables, and chairs at people trying to restrain her. However,

Ms. Neugebauer also testified that despite her behavior, when confronted, C.K. is ultimately a

truthful child. Ms. Neugebauer also stated that in her opinion, C.K.’s mental issues make her

more vulnerable to being a victim of sexual abuse.

       During trial, C.K. admitted that along with her physical outbursts, she sometimes sees

and hears things that are not there. Dr. Kellogg testified that at the time of the assault, C.K.’s

medical records indicated she was being treated for depression, attention deficit disorder, and

possibly schizophrenia. The doctor explained that C.K. indicated that she sometimes saw or

heard things that were not real, but refused to provide more details. The doctor also explained

that during their interview, C.K. was clear and consistent with her account of what happened, and

although she seemed embarrassed to talk about the genital to genital contact, C.K. was ultimately


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cooperative. Dr. Kellogg described C.K.’s demeanor as “consistent” with the events she was

talking about. Dr. Kellogg diagnosed C.K. as having been sexually abused.

       Appellant concludes that based on C.K.’s history and the presence of people in the house

at the time of the assault, the trial court’s findings were against the great weight and

preponderance of the evidence. While the record does contain evidence contrary to the court’s

findings, it does not so clearly outweigh the evidence supporting the court’s findings that the

adjudication is manifestly unjust. A factual sufficiency review should be deferential to the fact

finder’s verdict. Watson 204 S.W.3d at 417. It was the fact finder’s duty to determine credibility

and give weight to testimony. Id. Therefore, the evidence supporting the verdict is not

outweighed by the great weight and preponderance of contrary evidence, rendering the verdict

clearly wrong and manifestly unjust. See id. As a result, having reviewed the evidence in a

neutral light, the evidence is factually sufficient to support the court’s findings. Issues Three and

Four are overruled.

       In Issue Five, Appellant asserts that the trial court erred in denying his pretrial motion,

“Special Plea of Double Jeopardy and of Malicious Prosecution.” Following C.K.’s outcry, the

Armstrong children, including Appellant, were removed from their home by Child Protective

Services (CPS). At Appellant’s juvenile delinquency trial, Judge Peter Sakai, who presided over

the CPS case, testified that the CPS case had been short-lived and was ultimately dismissed by

non-suit. Wallace Tarver, attorney for Mr. Armstrong, Sr. in the CPS case, testified that

Appellant and the rest of the children were removed from their home by CPS as part of CPS’s

protocol. Appellant was placed in a home for troubled male adolescents for five months until the

CPS suit was dismissed. Cedric Payton, director of administration at the home, testified that


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Appellant received weekly therapy during the five months he was there.

       Appellant filed a pretrial motion of “Special Plea of Double Jeopardy and of Malicious

Prosecution” and it was denied. Appellant contends that CPS’s removal of Appellant from his

home constituted punishment for the alleged charges. Appellant therefore argues that his

constitutional right to be free from double jeopardy was infringed by this prosecution.

       The Fifth Amendment states that “[n]o person shall . . . be subject for the same offense to

be twice put in jeopardy of life or limb . . . .” U.S. CONST . amend. V; see also Lopez v. State,

108 S.W.3d 293, 295 (Tex.Crim.App. 2003). Because delinquency proceedings may result in

deprivation of liberty, a juvenile is guaranteed the same constitutional rights as an adult in a

criminal proceeding. In the Matter of R.S.C., 940 S.W.2d 750, 751 (Tex.App.--El Paso 1997, no

writ). The United States Supreme Court has held that a protection from the Fifth Amendment

guarantee against double jeopardy consist of protection against multiple punishments for the

same offense. Lopez, 108 S.W.3d at 295-96, citing North Carolina v. Pearce, 395 U.S. 711, 717,

89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

       “Jeopardy” generally refers to the risk traditionally associated with a criminal prosecution

and is not present in proceedings that are not “essentially criminal.” Breed v. Jones, 421 U.S.

519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975). The double jeopardy clause does not bar

both a remedial civil proceeding and a criminal prosecution based on the same conduct. State v.

Solar, 906 S.W.2d 142, 146 (Tex.App.--Fort Worth 1995, pet. ref’d); see also Malone v. State,

864 S.W.2d 156, 159 (Tex.App.--Forth Worth 1993, no pet.)(holding that protecting abused and

neglected children does not trigger jeopardy to bar subsequent criminal prosecution of father for

aggravated sexual assault). “In certain ‘rare cases,’ a civil proceeding may be considered


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punitive for double jeopardy purposes if the penalty ‘cannot fairly be said solely to serve a

remedial purpose, but rather can only be explained as also serving either a retributive or deterrent

purposes.’” Ex Parte Cantu, 913 S.W.2d 701, 705 (Tex.App.--San Antonio 1995, pet. ref’d),

quoting United States v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487

(1989). “To determine if a given civil sanction constitutes punishment, we assess the penalty

imposed and the purposes served by it.” Cantu, 913 S.W.2d at 705.

       Appellant contends that CPS’s removal of Appellant from his home after C.K.’s outcry

constituted punishment that can only serve a retributive or deterrent purpose. We disagree. The

goal or purpose of CPS’s investigation in this instance was remedial in nature and it is related “to

the State’s interest in protecting abused and neglected children . . . .” See Malone, 864 S.W.2d at

159; Ex Parte Cantu, 913 S.W.2d at 706. Similarly, Appellant’s removal from his home served

the limited purpose of protecting the children of the house from abuse based on C.K.’s

allegations. Therefore, CPS’s action cannot be classified as punishment towards Appellant.

Appellant fails to cite authority showing that CPS’s removal actions constituted punishment or a

penalty for purposes of double jeopardy, and we have been unable to locate Texas precedent so

holding. Issue Five is overruled.

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

October 21, 2009
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J. (Not Participating)




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