In the Matter of A.J.J.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00446-CV

IN THE MATTER OF A.J.J., A Juvenile

From the 289th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-JUV-00555

Honorable Carmen Kelsey, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: February 21, 2007

AFFIRMED

A.J.J., a juvenile, appeals the trial court's order of adjudication finding that he engaged in delinquent conduct by committing the offense of assault. In his sole issue on appeal, A.J.J. contends the evidence is factually insufficient to support the order of adjudication. We affirm.

Background

A.J.J. was charged with misdemeanor assault arising out of an after-school fight involving three young men. A.J.J. pled "not true" to the charge and waived a jury trial. On April 27, 2006, the trial court found the charge of assault-bodily injury to be "true," and adjudicated A.J.J. delinquent. A.J.J. was placed on nine months of probation in the custody of his mother, under the supervision of the Bexar County Juvenile Probation Department. A.J.J. timely filed notice of appeal.

Standard of Review

We review adjudications of juvenile delinquency by applying the standards applicable to sufficiency of the evidence challenges in criminal cases. See Tex. Fam. Code Ann. 54.03(f) (Vernon Supp. 2006); In re T.K.E., 5 S.W.3d 782, 784-85 (Tex. App.--San Antonio 1999, no pet.). In a factual sufficiency review, we examine all the evidence in a neutral light to determine whether it is so weak as to make the verdict "clearly wrong and manifestly unjust," or whether, considering the conflicting evidence, 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); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (in a factual sufficiency review, court views "all the evidence without the prism of 'in the light most favorable to the prosecution' and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust"); In re R.P., 37 S.W.3d. 76, 78 (Tex. App.--San Antonio 2000, no pet.). The appellate court must, however, avoid substituting its judgment for that of the fact-finder. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Analysis

In its petition alleging delinquent conduct, the State asserted that A.J.J. assaulted D.S., the complainant, by striking him with his hand. The State was required to prove beyond a reasonable doubt that A.J.J. intentionally, knowingly, or recklessly caused bodily injury to D.S. to support a finding that he committed the alleged misdemeanor assault. See Tex. Penal Code Ann. 22.01(a)(1) (Vernon Supp. 2006). "Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. 1.07(a)(8) (Vernon Supp. 2006). The definition of "bodily injury" encompasses even relatively minor physical contact as long as it constitutes more than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).

At the adjudication hearing, D.S. testified that while he was being hit by C.S., the other assailant, he turned his head and "saw A.J.J. behind [me] and he started hitting [me]." On cross- examination, D.S. again stated that he "saw A.J.J. hitting [me] in the back." Additionally, D.S. testified that he suffered physical pain and injuries from the altercation, including a bruise to his head, scratches on his neck, and swelling underneath his eye. A.J.J. testified at the hearing that he was standing several feet away and "didn't hit [D.S.] anywhere." A bystander, J.H., also testified that he saw the fight from about a block away and never saw A.J.J. approach the complainant; however, J.H. admitted on cross-examination that he did not witness the entire incident and it was possible that A.J.J. hit D.S. when he was not watching.

As the trier of fact, the trial judge was the exclusive judge of the credibility of the witnesses, and, as such, could choose to believe D.S. and disbelieve A.J.J. See In re H.G., 993 S.W.2d. 211, 213 (Tex. App.--San Antonio 1999, no pet.). Based on the record, we hold the evidence is factually sufficient to support the court's finding that A.J.J. committed the offense of assault. Accordingly, we overrule A.J.J.'s sole issue on appeal, and affirm the trial court's judgment.

Phylis J. Speedlin, Justice