IN THE MATTER OF J. M. , III, A CHILD--Appeal from 92nd District Court of Hidalgo County

NUMBER 13-04-226-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF J.M., III, A CHILD

On appeal from the 92nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

 

A jury found that appellant J.M., III, a juvenile, engaged in delinquent conduct by committing the offense of escape.[1] See Tex. Pen. Code Ann. _ 38.06 (Vernon 2003). The trial court entered a judgment of adjudication and disposition, incorporating the jury verdict and committing him to the Texas Youth Commission. By four issues, J.M. argues (1) the evidence is legally and factually insufficient, and (2) the trial court should have dismissed the case on speedy trial and double jeopardy grounds. We affirm.

I. BACKGROUND

The jury heard that J.M. ran to the perimeter fence of the Texas Youth Commission's Joe B. Evins Regional Juvenile Center, accompanied by three juvenile inmates, around 6:45 a.m. on September 29, 2003. Pursued by two correctional officers, the youths proceeded through a cut in the fence that was marked with a plastic container. J.M. and one of the other juveniles fled the scene in a white Suburban that was waiting for them. The other two juveniles were apprehended by the pursuing officers. The following day, J.M. was arrested and returned to the custody of the Texas Youth Commission.

II. SUFFICIENCY

By his first and second issues, J.M. asserts that the evidence was legally and factually insufficient to prove he was in custody pursuant to a lawful order. The State counters that the evidence is sufficient.

A. Standards of Review

 

In the adjudication phase of a juvenile case, the criminal legal and factual sufficiency standards of review are employed. In re J.D.P., 85 S.W.3d 420, 422 (Tex. App.BForth Worth 2002, no pet.). A legal sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).

In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Zuniga v. State, 144 S.W.3d 477, 484 85 (Tex. Crim. App. 2004).[2] However, we approach a factual sufficiency review with appropriate deference, to avoid substituting our judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim App. 2000) (en banc).

 

The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).[3] The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. Tex. Code Crim. Proc. Ann. art. 37.07 ' 1(a) (Vernon Supp. 2004-05) (verdict must be general); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en banc).

B. The Elements of the Offense of Escape

The hypothetically correct jury charge in this case would ask the jury if J.M. (1) on or about September 30, 2003, (2) intentionally and knowingly escaped (3) from custody (4) when he was in custody pursuant to a lawful order of a court. See Tex. Pen. Code Ann. _ 38.06(a)(2) (Vernon 2003). J.M.'s sufficiency argument on appeal focuses on the element of "pursuant to a lawful order of a court." We turn to the record evidence.

C. Sufficiency Analysis

1. The Record

 

Bill Roach testified he was the superintendent of the Evins Regional Juvenile Center of the Texas Youth Commission, a center for the rehabilitation and correction of, at that time, approximately two hundred forty male juveniles. The layout of the facility includes a "candy cane fence" designed for "secure institutions."[4] The purpose of the fence is to "keep people inside the facility." No one "should be leaving the facility," he testified. A person who leaves the facility is considered "an escapee." He identified J.M. as a youth "committed" at Evins. He learned that, on September 29, 2003, J.M. and three juveniles escaped the facility. The fence had been cut vertically three or four feet, and the location of the cut had been marked by a plastic jug. Roach concluded that "there had been outside assistance to cut the fence." He did not give consent to J.M. to leave the secure facility.

The jury heard from two correctional officers who testified that they maintained security of the unit and monitored "inmates" in a "secured correctional facility."[5] Correctional officer Marcos Hurtado testified he observed J.M. and three other juveniles leave the grounds through the cut fence. He pursued the juveniles. J.M. and another juvenile fled in a white Suburban. During cross-examination, Hurtado testified:

Q: Okay. You didn't see any inmates, any students, if you willByou typically call them students there atB

A: Yes.

Q: BT.Y.C., correct?

A: Yes, sir.

 

Q: You don't call them like prison inmates?

A: No, sir.

Correctional officer Richard Silva testified that Evins is a "secure facility for juveniles." One of his duties was "to make sure nobody escapes." He described how the juveniles are closely monitored at all times for their safety and to prevent escape.[6] On cross-examination, Silva testified:

Q: Okay. Now, you had indicated earlier that you had like a call outB trouble?

A: Yeah, 10-98 is a fleeing escapee.

Q: Inmates were fleeing?

A: Yes.

Police officer Rene Hernandez testified that on September 30, 2003, he attempted to stop and then engaged in a vehicle pursuit after a vehicle reported to contain the escaped juveniles. With the assistance of another police officer, officer Hernandez stopped the vehicle. Two young males exited the vehicle and fled the scene. The two, including J.M., were apprehended and arrested.

Alma Ozuna testified she was J.M.'s probation officer on October 1, 2001. On that day, she attended court because J.M.'s then-pending case was on the docket. The disposition of the case resulted in J.M.'s commitment to the care, custody, and control of the Texas Youth Commission. During direct examination, Ozuna testified:

 

Q: Okay. And, at that point, that was October the 1st and was there a documentBthat you reviewed with him?

A: Yes, there was. There was a judgment.

Q: Okay. And did you explain to him that that judgment was going to commit him to the Texas Youth Commission?

A: Yes, I did.

Q: And you went over it with him?

A: Yes, I did.

Q: Was that document signed by a judge?

A: Yes, it was.

Q: Okay. And wasBthere also was a fingerprint attached to that document?

A: Yes, there was.

Q: Was he then transported from the Detention Center to the Texas Youth Commission?

A: He was transported fromBfrom cut to Detention and waited forBto be picked up. He was picked up by T.Y.C. . . . . He was actually transferred to T.Y.C.

During cross-examination, Ozuna testified she did not know how long J.M. was at the Texas Youth Commission.

2. Disposition

 

Viewed in the light most favorable to the verdict and measured against a hypothetically correct jury charge for the offense of escape, the evidence shows that J.M. was in the Evins Regional Juvenile Center, a secured correctional facility for male juveniles as an "inmate." J.M.'s probation officer testified that she reviewed a trial court judgment committing J.M. to the Texas Youth Commission with him on October 1, 2003, the date the judgment was entered. J.M. was transported to the Texas Youth Commission. The superintendent of the Evins facility testified that J.M. was committed to the unit, and he did not give permission to J.M. to leave. We conclude that the evidence, viewed in the proper light, is legally sufficient to prove the element of "custody pursuant to a lawful order of a court." See Tex. Pen. Code Ann. _38.06(a)(2) (Vernon 2003); Jackson, 443 U.S. at 319; Escamilla, 143 S.W.3d at 817. We overrule J.M.'s first issue.

J.M. also argues that the record does not contain a judgment and order of commitment, and, thus, the evidence is factually insufficient to prove the complained of element.[7] Viewed in a neutral light, favoring neither the prosecution nor the defense, and measured against the hypothetically correct jury charge, the evidence shows that J.M. affixed his fingerprint on a judgment explained to him to be a judgment of commitment to the Texas Youth Commission and, pursuant to that judgment, he was committed to the secured correctional facility as an "inmate." We conclude that the evidence supporting the verdict or judgment, considered by itself, is not too weak to support the finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484 85. Thus, we conclude the evidence is factually sufficient. We overrule J.M.'s second issue.

 

III. SPEEDY TRIAL

By his third issue, J.M. argues that the trial court erred by denying his motion to dismiss on speedy trial grounds. The State counters that the delay from arrest and both the charge and trial is not presumptively prejudicial and, thus, does not trigger the Barker factors. See Barker v. Wingo, 407 U.S. 514, 530 (1972) (applying a four-part balancing test in speedy trial claims which reviews (1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice).

A. Presumptive Prejudice

 

The length of the delay is a "triggering mechanism" for analysis of the remaining Barker factors. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999) (en banc). Further analysis is required if the length of the delay is "presumptively prejudicial." Id. at 821 22. Presumptive prejudice is determined from the circumstances of the case. See Barker, 407 U.S. at 530 31; Schenekl v. State, 996 S.W.2d 305, 312 (Tex. App.BFort Worth 1999), aff'd, 30 S.W.3d 412 (Tex. Crim. App. 2000). The length of the delay is measured from the time of arrest until the time of trial. Schenekl, 996 S.W.2d at 312 (citing Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994)). Most delays of eight months or longer are considered presumptively unreasonable and prejudicial. Doggett v. United States, 505 U.S. 647, 651 (1992); see Schenekl, 996 S.W.2d at 312; Pierce v. State, 921 S.W.2d 291, 294 (Tex. App.BCorpus Christi 1996, no pet.). "The delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 531. The delay factor requires a two prong inquiry. Munoz, 991 S.W.2d at 822. First, any speedy trial analysis depends on whether the delay is more than "ordinary." Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (en banc). Second, the longer the delay extends beyond "ordinary," the more prejudicial that delay is to the accused. Id.

B. The Record

J.M. was arrested on September 30, 2003 and formally charged on February 19, 2004 for the offense of escape.[8] J.M. did not request a speedy trial. The initial setting was set for February 23, 2004. The trial court granted the State's opposed motion for continuance on grounds of inability to locate a material witness. The case was reset for March 1, 2004. After a detention hearing and evidentiary pretrial hearings, trial on the merits commenced on March 4, 2004. Thus, the delay from the arrest to the formal charge is four months and nineteen days. The delay from the arrest to trial is five months. The delay from the formal charge to the trial is less than one month.

C. Disposition

 

The time from J.M.'s arrest to trial is five months, the longer of the complained of delays. "It is our opinion that this short period of time could in no way be construed as 'presumptively prejudicial.'" Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973) (finding the span of approximately four months between the bench warrant and trial not to be presumptively prejudicial). Thus, we conclude that J.M.'s constitutional right to a speedy trial was not abridged. See id. Further, J.M. made no request for a speedier determination of his case. Id. This fact alone would make it difficult for J.M. to prove that he was denied a speedy trial. Id. We overrule J.M.'s third issue.

IV. DOUBLE JEOPARDY

By his fourth issue, J.M. argues that the trial court erred by denying his motion to dismiss on double jeopardy grounds. Conceding that the Texas Youth Commission imposed administrative sanctions for the escape, the State responds that disciplinary sanctions are not punishment.

A. The Law

 

The Fifth Amendment provides that "no person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . ." U.S. Const. amend. V.; see Lopez v. State, 108 S.W.3d 293, 295 (Tex. Crim. App. 2003). The United States Supreme Court stated that the Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Lopez, 108 S.W.3d at 295. First, it protects against a second prosecution for the same offense after acquittal. Lopez, 108 S.W.3d at 295-96. Second, it protects against a second prosecution for the same offense after conviction. Id. Last, it protects against multiple punishments for the same offense. Id. In Texas, "No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." Tex. Code Crim. Proc. Ann. art. 1.10 (Vernon 2005).

B. The Record

At a pretrial hearing, J.M. testified that, after the arrest for the escape charge, he was returned to the Evins facility. He was "out of population for a week" in a small roomBa more secure environment. After an administrative "Level III" hearing that lasted approximately an hour, J.M. was ordered to a Behavior Management Program that required he remain in security for sixty to ninety days to see if he improved his behavior. J.M. attested that he was in "security" for a total of forty-five to fifty days and then returned to his normal dorm.

C. Disposition

 

J.M. contests his adjudication on grounds that he has been sentenced to multiple punishments for the same offense. Because the plain meaning of the laws contemplate procedures by a court of competent jurisdiction, we conclude that the double jeopardy clause was neither implicated nor violated by the administrative sanction. The trial court could have reasonably concluded that a disciplinary sanction for an offense committed while J.M. was in custody for another adjudicated offense was not punishment meted out by a "court of competent jurisdiction," within the plain meaning of the federal constitution and article 1.10. See Tex. Code Crim. Proc. Ann. art. 1.10 (Vernon 2005). We overrule J.M.'s fourth issue.

V. CONCLUSION

Having overruled J.M.'s four issues, we affirm the judgment of adjudication and disposition.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 11th day of August, 2005.

 

[1] The first amended petition alleged in part that, on or about September 30, 2003, J.M., III, escaped from the Texas Youth Commission Evins Regional Juvenile Center when he was "in custody pursuant to a lawful order of a court: Judgment on First Amended Second Motion to Modify Disposition (TYC Commitment) and Order of Commitment of the 92nd District Court of Hidalgo County Texas, sitting as a Juvenile Court."

[2] The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484 85. "This standard acknowledges that evidence of guilt can 'preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id. Factual sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient, that is, sufficient under Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (en banc).

[3] A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd). A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by the statutory elements of the offense as modified by the charging instrument. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)). Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence. See Gollihar, 46 S.W.3d at 252. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error. Id. at 255.

[4]Roach described the fence as twenty feet high with a curve like a candy cane.

[5]"'Correctional facility' means a place designated by law for the confinement of a person arrested for, charged with, or convicted of a criminal offense." Tex. Pen. Code Ann. _ 1.07(14) (Vernon 2004-05); see also Tex. Pen. Code Ann. _ 1.07(45) (Vernon 2004-05).

[6] On cross-examination, Silva testified that punishment for breaches of the facility's rules includes placing a juvenile in a "holding cell or six-by-six cell."

[7] The State's attempted efforts to admit documents reflecting the judgment were disallowed upon objection by the defense.

[8] A petition alleging burglary of a building and burglary of a habitation was filed on January 15, 2004. The petition was amended to include the escape charge and filed on February 19, 2004. The State proceeded to trial solely on the escape charge.