                                 MEMORANDUM OPINION
                                        No. 04-08-00710-CV

                                  IN THE MATTER OF E.D.A.R.


                     From the 289th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008-JUV-01117
                            Honorable Carmen Kelsey, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 1, 2009

AFFIRMED

           This is an appeal from the trial court’s adjudication and disposition orders following a

contested hearing on the State’s petition alleging Appellant E.D.A.R. engaged in delinquent

conduct by committing criminal mischief. E.D.A.R. argues the trial court erred in entering its

order of adjudication because the evidence was factually insufficient to support the conviction.

We affirm the judgment of the trial court.

                                      FACTUAL BACKGROUND

           On November 7, 2007, B.M., a juvenile, was at his residence when his scooter and the

exterior of his residence were spray-painted. As B.M. opened the front door, he recognized

Appellant E.D.A.R. and called out to him as E.D.A.R. and two other juveniles fled the scene.
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Upon further examination, not only were the front of the residence and the scooter painted with

spray paint, but the scooter also had wires pulled out causing further damage. E.D.A.R. was

subsequently charged with criminal mischief.

                                     STANDARD OF REVIEW

       “The Texas Family Code places juvenile delinquency proceedings in civil courts but

requires that their adjudication be based on the standard of proof used in criminal cases.” In re

M.C., 237 S.W.3d 923, 926 (Tex. App.—Dallas 2007, no pet.) (citing TEX. FAM. CODE ANN.

§§ 51.17, 54.03(f) (Vernon 2008)); see also In the Matter of A.C., 949 S.W.2d 388, 390 n.1 (Tex.

App.—San Antonio 1997, no writ).         Consequently, the State must prove its allegations of

delinquency in juvenile cases beyond a reasonable doubt. TEX. FAM. CODE ANN. § 54.03(f)

(Vernon 2008).

       Appellate courts apply the same standards of review to challenges of the sufficiency of

the evidence in the adjudication of a juvenile as in criminal cases. See In re J.W., 198 S.W.3d

327, 330 (Tex. App.—Dallas 2006, no pet.). In the present case, E.D.A.R. challenges only the

factual sufficiency of the evidence. In a factual sufficiency review, we consider all the evidence

in a neutral light and only reverse if: (1) the evidence is so weak as to make the verdict “clearly

wrong and manifestly unjust,” or (2) the verdict is “against the great weight and preponderance

of the evidence.” Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

                                      CRIMINAL MISCHIEF

       The State’s petition alleged that E.D.A.R. damaged and destroyed tangible property,

specifically a house and a scooter, by spray-painting the house and scooter and disconnecting

wires on the scooter. A person commits the offense of criminal mischief if he damages or

destroys another person’s tangible property without that person’s consent. TEX. PENAL CODE




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ANN. § 28.03(a)(1) (Vernon Supp. 2008). When the pecuniary loss is more than $500, but less

than $1,500, as charged in the information here, a person commits a Class A misdemeanor. See

id. § 28.03(b)(3)(A)(i). Although he does not contest either the damages or the amount of

damages, E.D.A.R. contends the evidence is factually insufficient to show, beyond a reasonable

doubt, that he committed the charged offense.

       A. Testimony Before the Trial Court

       B.M. testified that when he heard the sound of someone shaking a can of spray paint and

paint being sprayed, he opened the door and saw E.D.A.R. spraying the back license plate on his

scooter. B.M. explained that when he opened the door, he identified E.D.A.R. and E.D.A.R.

looked up, saw him, and then “made a run for it.” B.M. further explained that: he knew

E.D.A.R. prior to the incident, he was standing approximately three yards from E.D.A.R. when

he opened the door, there are floodlights on the front of the house and by where the cars are

parked, and he was one-hundred percent sure that E.D.A.R. was the individual standing in front

of him that night.

       B.M.’s father, R.M., testified that B.W., another juvenile, came by the house with his

mother the following day.      B.W. apologized to R.M. explaining that he only watched as

E.D.A.R. spray-painted. R.M. further testified that B.W.’s mother told him that she would

contact E.D.A.R.’s father to take care of the damages.

       The defense presented both E.D.A.R.’s mother and step-father as alibi witnesses

testifying that E.D.A.R. was at home watching the television on the evening in question.

E.D.A.R.’s step-father explained that he did not go to bed until 11:30 p.m. and that E.D.A.R. was

not allowed out of the house after his 7:00 p.m. curfew.




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B. Discrepancies in the Testimony

        E.D.A.R. contends there is a significant amount of testimony that should undermine our

confidence in the trial court’s determination. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim.

App. 2003) (concluding that a factual sufficiency review requires the court of appeals to consider

“the most important evidence that the appellant claims undermines the [fact-finder’s] verdict.”).

E.D.A.R. points to several witnesses with regard to discrepancies in the testimony.

        Although B.M. testified that he saw two other individuals with E.D.A.R. that evening, the

police report only indicated there was one other individual. B.M. also testified that when he

looked out his front door, he saw E.D.A.R. spray-painting his scooter, but the police report

indicates that he first discovered the damage upon returning to his house. With regard to both

questions, B.M. remained confident in his responses explaining that the police report was not a

different version of the events, but was simply missing some details.

        With regard to the damages, B.M. testified the scooter was standing, with the kickstand in

place. Yet, during the cross-examination of Fred Trott, the owner of the mechanic’s shop that

repaired the scooter, the scooter “had been lying on its side, oil all over it, it tipped over, . . . and

some of the wires had been pulled out of it.” He further testified that the scooter being on its

side caused “the gas to leak into the engine and plugged it up.” Although E.D.A.R. argues this

testimony is in direct conflict with B.M.’s version of the events, he fails to consider Trott’s

inability to testify when or for how long the scooter had been on its side.

        E.D.A.R. also highlights the inconsistency between B.W.’s identification of E.D.A.R. as

the individual spray-painting that evening and his mother’s and step-father’s alibi. Yet, once

again, the testimony taken in the best light, reveals that between 11:30 p.m. and 4:30 a.m. no one

could account for E.D.A.R.’s whereabouts.                E.D.A.R.’s step-father corroborated R.M.’s




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testimony that B.W.’s mother came over the following morning to remedy the damage; but

refused to “fix the problem” without evidence E.D.A.R was involved.

C. Analysis

       In this case, the trial court was faced with two conflicting versions of the incident—

B.M.’s identification of E.D.A.R. at his residence and E.D.A.R.’s mother’s and step-father’s

testimony that E.D.A.R. never left their house. Just as the trial court was not required to believe

B.M.’s identification, the trial court also was not required to credit the mother and step-father’s

version. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (opining that

resolving any conflicts in the evidence is within the exclusive province of the fact-finder);

Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). Given the conflicts in the

testimony and the obvious relationship between E.D.A.R. and his mother and step-father, the

trial court could have discredited the alibi defense.

       Based on a neutral review of all of the evidence both for and against the trial court’s

determination, we find the record fails to show that the proof of E.D.A.R.’s guilt is so obviously

weak as to undermine confidence in the trial court’s verdict, or that the proof of guilt is greatly

outweighed by contrary proof. We, therefore, conclude the evidence is factually sufficient to

sustain the conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule E.D.A.R.’s sole

issue on appeal.


                                                   Rebecca Simmons, Justice




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