In the Matter of C. E. T., a Juvenile--Appeal from 327th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-02-00059-CV

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) Appeal from the

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IN THE MATTER OF C.E.T., A Juvenile, ) 327th District Court

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) of El Paso County, Texas

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) (TC# 99,01895)

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MEMORANDUM OPINION

This is an appeal from an Order of Adjudication, finding that C.E.T. engaged in delinquent conduct by committing the offense of assault. C.E.T. raises one issue for review: whether the evidence was legally insufficient to justify the trial court=s order of adjudication. A petition was filed on November 8, 2001, alleging C.E.T. had engaged in delinquent conduct by committing the offense of assault. On November 19, 2001, C.E.T. waived her rights to a hearing before a juvenile court judge and to a jury trial, agreeing to a non-jury trial conducted by a juvenile court referee. C.E.T. pled not true to the offense and the referee conducted a bench trial.

At trial, the complainant D.E. testified that on October 31, 2001, she attended Bel Air High School. During her lunch break, she went to a nearby park to meet with a girl named Alika so that they would talk about the problems that Alika had with her. D.E.=s friend C.S. accompanied her to the park. There were already a lot of people gathered when they arrived. Right away, Appellant C.E.T. and her sister, E.T.T., came up to her. E.T.T. confronted D.E. and accused D.E. of talking about E.T.T.=s gang. D.E. told E.T.T. that she had never heard of her gang and that it was between she and Alika, not with E.T.T. Then E.T.T. began hitting D.E. According to D.E.=s testimony, while E.T.T. was hitting her, C.E.T. came up behind her and grabbed her by her arms. D.E. testified that before C.E.T. grabbed her arms, she was protecting herself and swinging back. D.E. knew that the person holding her arms was C.E.T. because she turned around to look and see who was holding her back. E.T.T. continued to punch D.E. in the face. D.E. could not recall how long C.E.T. held her arms or how she got loose. The next thing she knew she was on the ground and E.T.T. was on top of her, punching her in the face. E.T.T. continued hitting D.E. and then someone yelled Acops@ and everyone started running away.

The State also introduced testimony from witness C.S., D.E.=s friend. According to C.S., she drove D.E. to the park. C.S. remained in her car and observed D.E. and E.T.T. fighting. C.S. did not get out of her car, but had a clear view of everything. C.S. saw E.T.T. hitting D.E. in the face. C.S. testified that she never saw C.E.T. hit anybody, but there was one point where C.E.T grabbed D.E. by the arms. C.S. saw C.E.T. let go of D.E. and then D.E. and E.T.T. fell onto the ground and continued to fight, with D.E. on her back and E.T.T. straddled over her. C.S. honked her horn and said that the cops had come to the park. At that point, E.T.T. got up, D.E. got up, and everybody watching the fight ran. C.S. believed that D.E. and E.T.T. fought standing up for about three to five minutes and that C.E.T. held on to D.E. for about thirty seconds before D.E. and E.T.T. fought on the ground.

Both Appellant C.E.T. and her sister, E.T.T., testified that C.E.T. did not participate in the fight, except to break it up. E.T.T. stated that when D.E. started bleeding, C.E.T. grabbed E.T.T. and stopped the fight. C.E.T. denied grabbing D.E. and holding her so that her sister E.T.T. could hit her.

The referee found that C.E.T. had engaged in the assault. At the disposition hearing, C.E.T. was placed on intensive supervision probation in Project Spotlight until her 18th birthday with an initial placement at the Challenge Attitude Adjustment Program.

Standard of Review

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 must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 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.).

The Law of Parties

The State was required to prove that C.E.T. engaged in delinquent conduct based on her commission of the offense of assault. The State=s Petition Based On Delinquent Conduct in pertinent part, is as follows:

Count 1: That said child engaged in delinquent conduct, to wit: the above named child engaged in conduct other than a traffic offense, which violated a penal law of this State punishable by imprisonment in that heretofore, to wit: on or about the 31st day of October, 2001, and anterior to the presentment of this petition, in the County of El Paso and State of Texas, the said C.E.T., did then and there intentionally, knowingly and recklessly cause bodily injury to D.E. by striking the said D.E. about the head with the hand of the said C.E.T., in violation of section 22.01 of the Texas Penal Code.

Under the law of parties, a person is criminally responsible as a party to an offense committed by the conduct of another if the person acts with an intent to promote or assist in the commission of the offense, and solicits, encourages, directs, aids, or attempts to aid another person to commit the offense. Tex.Pen.Code Ann. ' 7.02(a)(2)(Vernon 2003). In evaluating whether a defendant is a party to an offense, the court may examine the events occurring before, during, or after the offense is committed and may rely on the defendant=s actions showing an understanding and common design to commit the offense. See Marable v. State, 85 S.W.3d 287, 293 (Tex.Crim.App. 2002). Mere presence at the scene of a crime does not implicate an individual as a party. However, participation in a criminal offense may be inferred from the circumstances. Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987). Circumstantial evidence alone may be sufficient to show that an individual is a party to an offense. See Miranda v. State, 813 S.W.2d 724, 732 (Tex.App.--San Antonio 1991, pet. ref=d).

C.E.T. argues that the evidence did not prove each of the elements of the offense alleged in the State=s petition. Specifically, the State failed to prove beyond a reasonable doubt that C.E.T. committed the offense of assault by striking the complainant D.E. about the head with her hand. See Tex.Fam.Code Ann. ' 54.03(f)(Vernon 2002); In the Matter of A.S., 954 S.W.2d at 857-58. C.E.T. asserts that the State never argued that the law of parties applied in this case nor did the referee mention that he found C.E.T. had engaged in delinquent conduct under the law of parties theory. The evidence clearly indicates that C.E.T. did not strike D.E. about the head with her hand. Therefore, we must determine whether the law of parties is applicable.

As in criminal cases, the State in a juvenile case is not required to plead the law of parties in its petition. In the Matter of O.C., 945 S.W.2d 241, 244 (Tex.App.--San Antonio 1997, no writ); see Marable, 85 S.W.3d at 292. A trial court may charge on the law of parties if the evidence supports the charge, even if there is no such allegation in the indictment. Marable, 85 S.W.3d at 292. C.E.T. seems to argue that although the present case was a non-jury trial and thus, did not require a jury charge, the law of parties theory was unavailable to the State because it failed to indicate in the petition or at trial that it was proceeding on this theory. C.E.T. bases her argument on Goff v. State in which the Court of Criminal Appeals noted that a defendant may only be convicted on the basis on his own conduct, not the principal actor, where there is no charge on the law of parties. See Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App. 1996), cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L. Ed. 2d 545 (1997). We disagree with C.E.T.=s contention. A trial court may charge on the law of parties if it is supported by the evidence, it would follow that in the non-jury trial context, the trial court may utilize the law of parties if the evidence presented supports the theory, even though not plead in the State=s petition. See In the Matter of A.C., 949 S.W.2d 388, 391 (Tex.App.--San Antonio 1997, no writ).

Viewing the evidence in the light most favorable to the verdict, there was evidence that C.E.T. came to the park that day and was with her sister E.T.T. when the fight began. C.E.T. remained in the circle of spectators gathered around E.T.T. and D.E. D.E. and C.S. testified to C.E.T. grabbing D.E. and holding her back while E.T.T. continued to punch D.E. in the face with her fist. Despite C.E.T.=s argument to the contrary, this evidence was sufficient to support the State=s allegation as to the manner in which the offense of assault was committed. D.E. also testified that she was unable to protect herself after C.E.T. restrained her. Further, C.S. testified that she stopped the fight by honking her horn and saying the cops were at the park. A reasonable trier of fact could have determined beyond a reasonable doubt that C.E.T. was a party because she assisted the principal actor in the commission of the offense alleged.

We overrule Issue One, and affirm the trial court=s adjudication of delinquency.

March 20, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.