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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS







IN THE MATTER OF M.D.T., a
Juvenile.

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No. 08-03-00409-CV

Appeal from the

65th District Court

of El Paso County, Texas

(TC# 03,00827)




O P I N I O N

           This is an appeal from a juvenile proceeding tried to the court.  The court issued an
order of adjudication finding that the juvenile, M.D.T., engaged in delinquent conduct.  The
disposition hearing resulted in the assessment of a two-year community supervision sentence. 
We reform and affirm.
I.  SUMMARY OF THE EVIDENCE
           At about 12:30 p.m. on April 17, 2003, the complainant, a seven-year-old child, went
with two other children after school to M.D.T.’s house.  M.D.T. was a thirteen-year-old
juvenile.  The complainant then went to play at a neighborhood park.  He purportedly threw
some dirt on two children and he was taken back to M.D.T.’s house.  He then entered
M.D.T.’s room while M.D.T. was taking a shower.  The complainant related that M.D.T.
then pulled down his pants and “put his private parts” in the complainant’s bottom, at least
twice.
           At 3 p.m., the complainant’s grandmother, Ms. Bean, came to pick up the complainant
at the house.  Phillip, one of M.D.T.’s brothers, answered the door.  When asked about the
complainant’s whereabouts, he turned and tried to open M.D.T.’s bedroom door.  He did not
respond to Ms. Bean’s inquiry.  The door was locked and Phillip knocked and M.D.T. called
out that he was changing his clothes.  She looked into the kitchen and saw David, one of
M.D.T.’s siblings.  M.D.T.’s mother then approached from the rear of the house and she and
Ms. Bean conversed.  Bean got the impression that the complainant was not in the house but
he soon emerged from M.D.T.’s bedroom and was soon followed out by M.D.T. who was
only wearing black sweat pants.
           When they were alone in the car, Ms. Bean asked the complainant what went on in
the bedroom.  After initially denying that anything had occurred, the complainant stated that
sexual contact had occurred notwithstanding the fact that the complainant had asked M.D.T.
to stop.  The complainant was taken to a hospital for a rape examination which proved
negative; although there was some evidence that no physical damage was shown as M.D.T.
was not fully developed.
           M.D.T. presented a number of witnesses including the complainant’s school principal
who stated that the complainant had a bad reputation for truth and veracity and he had
received a large number of disciplinary referrals.
           Various of M.D.T.’s brothers and sisters testified indicating that they had all been in
M.D.T.’s room at varying times and that no sexual assault had occurred.  His sister testified
that she was in the house when Ms. Bean came to pick up the complainant and the sister
stated that another brother, David, was in the room with M.D.T. and the complainant.  The
brother she referenced testified that he was in M.D.T.’s room the whole time the complainant
was in the room and he never witnessed a sexual assault.  The brother, Phillip, who answered
the door when Ms. Bean arrived stated that Ms. Bean never asked about the complainant’s
whereabouts and denied that anyone attempted to open the door of M.D.T.’s room.  A friend
of the children, Larry Arellano, stated that David was in the room with the complainant and
M.D.T. at all times when the assault could have occurred.  M.D.T.’s mother testified that the
complainant was out of her sight for, at most, fifteen minutes during the operative period
when the assault could have occurred.
II.  DISCUSSION
           In Issue Nos. One and Four, Appellant asserts that the evidence in legally and
factually insufficient to demonstrate that M.D.T. committed the offense of aggravated sexual
assault.  In the State’s petition it was alleged that M.D.T. committed the offense of
aggravated sexual assault by causing the anus of the complainant of a child younger that
fourteen years of age to contact the sexual organ of M.D.T.  In a second count, it was alleged
that M.D.T. committed the offense of indecency with a child by engaging in sexual contact
with a child younger than seventeen years of age with intent to arouse and gratify the sexual
desire of M.D.T.
  When reviewing challenges to the legal sufficiency of the evidence to
establish the elements of the penal offense that forms the basis of the finding that the juvenile
engaged in delinquent conduct, we apply the standard set forth in Jackson v. Virginia, 443
U.S. 307, 320, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560 (1979).  In the Matter of A.S., 954
S.W.2d 855, 858 (Tex. App.--El Paso 1997, no pet.).  Under this standard, an appellate court
must review all the evidence, both State and defense, 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, 443 U.S. at 318-19, 99 S.Ct. at 2789;
Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995).
           In reviewing this factual sufficiency challenge, we view all of the evidence but do not
view it in the light most favorable to the verdict in determining whether the State met its
burden of proof beyond a reasonable doubt.  A.S., 954 S.W.2d at 860; see also Clewis v.
State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Our factual sufficiency review must be
appropriately deferential so as to avoid substituting our judgment for that of the fact finder. 
Clewis, 922 S.W.2d at 133.  Only if the verdict is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust will we conclude that the State failed to
carry its burden.  A.S., 954 S.W.2d at 860.
           Regarding the legal sufficiency of the evidence, we find that the evidence is sufficient
to support the court’s finding that M.D.T. engaged in delinquent conduct.  M.D.T. asserts
that there is insufficient evidence to show that there was illicit sexual contact.  The evidence
adduced at trial clearly indicated that, “He put–he put where they use number one inside my
bottom.”  The complainant indicated that, “number one” was when you go to the bathroom. 
He further indicated that this happened on at least two occasions and had happened several
times in the past.  We find that the evidence is legally sufficient to support the court’s
finding.
           Regarding the factual sufficiency of the court’s finding, we note the State’s evidence
indicated that M.D.T. was alone in the locked bedroom and he pulled down the
complainant’s pants and penetrated his bottom with his penis.  Ms. Bean testified that she
was suspicious of what had occurred in the house and she testified to the actions of those in
the household as being suspicious.  After some inquiry, the complainant told her of the
various illicit incidents.  Countering this evidence, is the testimony of various of M.D.T.’s
siblings and friends to the effect that someone else was in the room at all times and the
incident could not have happened.
           However, this evidence has various inconsistencies.  The evidence is conflicting as
to which siblings were in the bedroom at any given time.  While there was evidence David
was in the room the whole time, the sister testified that she only saw David in the bedroom
after Ms. Bean had picked up the complainant and that she did not know who was in the
bedroom when the door was shut.  Ms. Bean testified that she saw David in the kitchen when
she first came to the house.  While David claimed the bedroom door was never locked during
the operative time, Phillip stated that the bedroom door was locked.  Giving due deference
to the judgment of the fact finder, we do not view M.D.T.’s evidence as being so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust.  The evidence
is factually sufficient.  Issue Nos. One and Four are overruled.
           In Issue No. Five, M.D.T. asserts that the failure of the trial court to administer the
warnings mandated in the Family Code prior to commencing the adjudication hearing
resulted in reversible error.  At the commencement of the adjudication hearing, the court
inquired about the voluntariness of M.D.T.’s written waiver of a right to a jury.  The court
did not make any inquiries about the admonishments contained in Family Code Section
54.03(b).
  However, the record does not reflect that M.D.T.’s attorney made any objection
in the trial court regarding any complaint about these admonishments.  Consequently, he has
failed to preserve error.  In the Matter of C.C., 13 S.W.3d 854, 859-60 (Tex. App.--Austin
2000, no pet.); In re R.J.C., No. 04-01-00686-CV, 2002 WL 31015532 (Tex. App.--San
Antonio Sept. 11, 2002, no pet.) (not designated for publication); In re R.R., No.
08-01-00245-CV, 2002 WL 1859101 (Tex. App.--El Paso Aug. 14, 2002, no pet.) (not
designated for publication).  Issue No. Five is overruled.
           Having overruled Appellant’s Issue Nos. One, Four, and Five, and having found that
we need not address any remaining issues, we affirm the judgment of the trial court as
reformed.
 
                                                                              RICHARD BARAJAS, Chief Justice
December 23, 2004

Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
