IN THE MATTER OF P. A. P., A JUVENILE--Appeal from Juvenile Court of Live Oak County

NUMBER 13-05-400-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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  IN THE MATTER OF P. A. P., A JUVENILE

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On appeal from the Juvenile Court of Live Oak County, Texas.

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  MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

This is an appeal of a judgment adjudicating appellant, P.A.P., a juvenile, delinquent based on a finding of true to the charge of assault causing bodily injury to a disabled person. See Tex. Pen. Code Ann. ' 22.04(a) (Vernon Supp. 2005).[2] Appellant was sentenced to a forty-five to sixty day program at Adam's House substance abuse treatment facility, intensive supervision probation with electronic monitoring for three to six months, and then probation until his eighteenth birthday. By two issues, appellant complains of the sufficiency of the evidence. We affirm.

I. Facts

In this case, there is testimony that, at first, there was a "shoving match" between appellant and the victim, started by the victim. Words were exchanged. The victim testified that later, when he was asked to leave the trailer home where he was visiting friends, appellant "just started hitting me and stuff and started hitting me while I was on the ground." Appellant hit him in the head and nose with his fists and started kicking him while he was on the ground. He told appellant to stop, but appellant did not listen. The victim testified that while being hit, he was trying to protect himself and did not fight back.

An eye witness testified that appellant was standing in the front yard telling the victim to come outside and calling him names "like retarded . . . disabled." She testified that the victim was not trying to fight appellant. After her brother asked the victim to leave their home, she saw appellant and the victim fighting. The victim was hit in the head by appellant's knee, and appellant kicked the victim from his head to his waist. The victim was lying on the ground crying and screaming "Stop! Stop! Stop!" She testified that appellant kept kicking the victim until a neighbor arrived and helped the victim up and inside the trailer home.

The neighbor, a second eyewitness, testified that he ran outside when someone told him "they were beating up [the victim] outside." He saw appellant and appellant's brother standing over the victim and punching and kicking him on his upper body, for a couple of seconds. The victim was "crying, screaming, telling them to stop." The eyewitness testified that he pushed appellant off the victim, picked the victim up, told him to get inside, and told appellant and his brother to leave.

Another neighbor testified that she saw the victim earlier that day and that he was arguing with appellant's brother and saying he wanted to "jump" appellant and his brother. She also testified that when the victim left her house that afternoon, he went next door and started drinking. She did not see the fight.

Appellant's brother testified that the victim hit appellant, that he saw the victim "push in between [appellant], and then [appellant] hit him back, and then it was just on." According to appellant's brother, the victim was trying to bear hug appellant who was trying to get the victim off of him and that is when the victim fell to the ground. Appellant's brother testified that at the end, the victim was saying he was sorry, asking if appellant was okay, and claiming that appellant started the fight. Appellant's brother also testified that they left so that appellant could go to work. They did not call the police and did not seek medical assistance.

The eyewitnesses testified as to the following injuries: "[i]t seemed like B like red marks everywhere on [the victim's] face"; the victim was bleeding "[f]rom his nose and his mouth;" and there were injuries "[a]round his eyes; a couple of bumps on his head." The police officer who responded to the call for assistance testified that when he first observed the victim sitting on the couch, he noticed "blood around his mouth from both nostrils. He had blood on one ear. Both temples were swollen, and there were a couple of lacerations on his neck and on his head in his scalp area."

Evidence regarding the victim's disability included the victim's testimony that he was twenty-two years old, does not know how to read, lives with his family, is unable to provide himself with food, shelter, or medical care because of his disability, and has a mental disability. The victim's father also testified that his son has always lived with one of his parents, has never lived on his own, and has been mentally disabled since birth. He, too, testified that his son is unable to provide himself with food, shelter or medical care. The victim's father testified that "[b]ecause of his disability [his son] needs somebody to always . . . help him." Additionally, Merl Moore, an education diagnostician, testified that she evaluated the victim in 1994, 1996, and again in 1999. Over appellant's objection as to the remoteness of the testing, Ms. Moore testified that based on her evaluations and tests performed on the victim, he was a trainable mentally retarded child with a score of 42. According to Ms. Moore, this score qualifies as a mental disease or defect. The results of the Vineland Adaptive Behavior Scale revealed that the victim's social skillsBincluding how he gets along with people, how he communicates, and how he performs his daily life skillsBwere functioning at about a nine-year-old level.

II. Standard 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.BFort Worth 2002, no pet.). When we review a legal sufficiency of the evidence point of error, we view all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Coleman v. State, 131 S.W.3d 303, 307 (Tex. App.BCorpus Christi 2004, pet. ref'd).

Evidence is factually insufficient only when the evidence as to an element is so obviously weak as to undermine confidence in the fact-finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Coleman, 131 S.W.3d at 307. "We are not bound to view the evidence in the light most favorable to the prosecution and may consider the testimony of all the witnesses." Coleman, 131 S.W.3d at 307 (citing Johnson, 23 S.W.3d at 10 12). It is appropriate to disagree with the fact finder's determination only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice. Id. at 307-08 (citing Johnson, 23 S.W.3d at 10 12). "Otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence." Id. at 308.

We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (applying principle to legal sufficiency review); Coleman, 131 S.W.3d at 307 (same); Adi v. State, 94 S.W.3d 124, 141 (Tex. App.BCorpus Christi 2004, pet. ref'd) (applying principle to factual sufficiency review). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof. Malik, 953 S.W.2d at 240.

II. Analysis

By his first issue, appellant generally contends that the evidence is factually insufficient to prove that he committed the offense of assault causing bodily injury to a disabled person, as charged. The State's petition alleged, in part, as follows: "[appellant], while a minor, did then and there intentionally or knowingly cause bodily injury to [the victim], a disabled individual, by hitting and kicking [the victim] in the face." See Tex. Pen. Code Ann. ' 22.04(a) (Vernon Supp. 2005). Reviewing the evidence set out above in a neutral light and giving due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence, we cannot conclude that the evidence is so obviously weak as to undermine confidence in the fact-finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11; Coleman, 131 S.W.3d at 308. Thus, we conclude the evidence is factually sufficient to establish appellant committed the offense of assault causing bodily injury to a disabled person. Appellant's first issue is overruled.

By his second issue, appellant challenges the legally sufficiency of the evidence to establish that the victim was a disabled person "who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter or medical care for himself." Tex. Pen. Code Ann. ' 22.04(c)(3) (Vernon Supp. 2005). Appellant contends that we should strike the victim's testimony as a matter of law because, as a severely mentally retarded person, (1) he is incompetent to testify, (2) the trial court did not conduct a competency determination sua sponte, and (3) the State did not rebut the presumption in Texas Rule of Evidence 601 that a mentally disabled person is presumptively incompetent to testify. See Tex. R. Evid. 601.

However, the victim was not the sole witness to testify regarding his disability. His father and Ms. Moore, the education diagnostician who evaluated the victim, also provided testimony. The victim's father testified that his son was unable to provide himself with food, shelter, or medical care, and that he had been disabled since birth. Ms. Moore evaluated the victim and testified that he was a mentally retarded child, with a score of 42 that qualified as a mental disease or defect. She also testified that the victim functioned at a nine-year-old level when he was tested in the mid-to-late 1990's.[3] Therefore, even if we were to disregard the victim's testimony, viewing the remaining evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the victim was disabled. See Jackson, 443 U.S. at 318-19; Coleman, 131 S.W.3d at 307. Thus, the evidence is legally sufficient to establish the victim's disability. Appellant's second issue is overruled.

The judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 23rd day of March, 2006.

[1]See Tex. R. App. P. 47.4.

[2]Section 22.04(a)(3) provides, in relevant part, that "[a] person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act . . . causes to a . . . disabled individual . . . bodily injury." Tex. Pen. Code Ann. ' 22.04(a)(3) (Vernon Supp. 2005). This section defines "disabled individual" as "a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter or medical care for himself." Id. ' 22.04(c)(3).

[3]Appellant also appears to be arguing that the trial court erred in admitting Ms. Moore's testimony because it involved evaluations that were remote in time. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Because this argument is inadequately briefed, it will not be considered.