In The Matter of A.G.L.--Appeal from 314th District Court of Harris County

Opinion issued December 15, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00622-CV

IN THE MATTER OF A.G.L., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 0306310J

MEMORANDUM OPINION

Appellant, a juvenile, appeals the trial court s modified order of disposition committing him to the Texas Youth Commission. In two points of error, appellant contends that the evidence was legally and factually insufficient to support the trial court s modified order of disposition. We affirm.

BACKGROUND

Appellant was placed on probation on August 25, 2003, for committing the offense of engaging in organized criminal activity. The probation was conditioned, among other things, on appellant: (1) not violating the laws of Texas or the United States, (2) paying restitution in the amount of $108.35, and (3) completing 20 hours of community service.

On the evening of December 26, 2003, appellant went to the home of Jesse Smith and engaged her in a conversation under the auspices of selling candy to raise money for his high school. During this conversation, Smith heard her garage door opening, and she stepped outside her door to see someone stealing her vehicle out of her garage. Smith later testified that, in her opinion, appellant had engaged her in the conversation to divert her attention so that his friend, later identified by appellant as Pascual Rodarte, could break into her house, take her keys, and steal her car. Meanwhile, Smith s neighbor, Paul Fernandez, recognized a suspicious car outside Smith s house, and he recorded the license plate number.

Smith reported the theft to the police, and Houston Police Officer E. Monreal responded to the call. Monreal spoke with Smith about the incident and Fernandez informed Monreal of the license plate number he had recorded. The suspicious vehicle belonged to Erika Lopez, who had loaned the vehicle to Pascual Rodarte on the day of the incident. Lopez often loaned her car to Rodarte or appellant. Appellant was questioned by police and admitted that he went to Smith s front door while Rodarte went around the back of the house. Subsequently, Smith identified appellant from a photo lineup as the person who tried to sell her candy while her car was being stolen from her garage. The police arrested appellant and charged him with theft. See TEX. PEN. CODE ANN. 31.03 (Vernon 2003).

On February 9, 2004, the State filed a motion to modify the disposition of appellant s first offense (organized criminal activity). The State alleged that appellant violated his probation by (1) violating Texas law; (2) not completing the court ordered amount of community service; and (3) not paying the court ordered restitution. On April 1, 2004, the trial court conducted a hearing on the State s motion to modify disposition and held that appellant violated his probation and should be remanded to the Texas Youth Commission. This appeal followed.

DISCUSSION

In two points of error, appellant contends that the evidence was legally and factually insufficient to warrant a finding that he violated the conditions of his probation. Specifically, appellant argues that the evidence was insufficient to find that he violated the laws of Texas, failed to perform the mandated community service, and failed to pay the court ordered restitution. Because we hold that the evidence is legally and factually sufficient to show by a preponderance of the evidence that appellant violated the laws of the State of Texas, we need not address the other two alleged violations. See In re S.H., 846 S.W.2d 103,106 (Tex. App. Corpus Christi 1992, no writ) (holding that because appellant did not challenge one of the trial court s dispositive findings, the order revoking probation must be affirmed regardless of the merits of the challenged claim).

A trial court may modify its original or a prior disposition if it finds by a preponderance of the evidence that a child violated a reasonable and lawful order of the court. Tex. Fam. Code Ann. 54.05(f) (Vernon Supp. 2004-2005). Juvenile courts are vested with broad discretion in determining the suitable disposition of children found to have engaged in delinquent conduct, and this is especially true in the hearings to modify disposition. In re J.M., 25 S.W.3d 364, 367 (Tex. App. Fort Worth 2000, no pet.). Absent an abuse of discretion, we will not disturb the juvenile court s ruling. In re A.S., 954 S.W.2d 855, 861 (Tex. App. El Paso 1997, no pet.). In conducting this review, we use a two pronged analysis: (1) did the trial court have sufficient information upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? In re M.A.C., 999 S.W.2d 442,446 (Tex. App. El Paso 1999, no pet). The traditional sufficiency of the evidence review comes into play when considering the first question. Id.

Legal Sufficiency

In his first point of error, appellant contends that the evidence was legally insufficient to support the trial court s determination that he violated his probation by committing a new offense. Specifically, appellant contends the evidence is legally insufficient to show that he was guilty, as a party, of the theft of Smith s car. // When a juvenile challenges the legal sufficiency of the evidence, we consider only the evidence that tends to support the trial court s findings and disregard all evidence and inferences to the contrary. In re L.R., 67 S.W.3d 332, 338-39 (Tex. App. El Paso 2001, no pet.); In re H.G., 993 S.W.2d 211, 213 (Tex. App. San Antonio 1999, no pet.). If more than a scintilla of evidence exists to support the questioned finding, the legal sufficiency challenge must be overruled. In re L.R., 67 S.W.3d at 339.

In this case, the evidence supporting the trial court s ruling that appellant was a party to the theft of Smith s car was largely circumstantial, but still quite strong. The evidence reveals that Lopez loaned Rodarte her car on the day of the incident and that same car was later identified at Smith s house at the time the incident took place. Lopez often loaned her car to Rodarte and appellant. Furthermore, appellant admitted that he went to Smith s house and engaged her in a conversation while Rodarte went around the back of the house. Smith testified at trial that, in her opinion, appellant engaged her in the conversation to distract her while Rodarte went around back to steal the car. Smith positively identified appellant at trial, and in a photo lineup, as the boy who had come to her house pretending to sell candy on the day of the incident. Smith s vehicle was eventually recovered from the home of Erika Lopez, the woman who had loaned her car to Rodarte.

Appellant contends that there is no direct evidence linking him to the crime of theft under the law of parties. Appellant specifically argues that the trial court found him in violation of the law solely based on: (1) his presence at the scene of the incident and; (2) Smith s speculative testimony as to why appellant was at her house. Appellant is correct in asserting that there is little direct evidence supporting the trial court s finding; however, it is well settled in Texas that circumstantial evidence alone may be used to prove that one is a party to an offense. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985); In re L.A.S., 135 S.W.3d 909, 915 (Tex. App. Fort Worth 2004, no pet.). In determining whether one is a party to an offense, it is proper to look to events occurring before, during and after the commission of the offense. Cordova, 698 S.W.2d at 111. Additionally, while mere presence at the scene of a crime is not enough by itself to prove a person s guilt, it is a circumstance tending to prove guilt, which, when combined with other facts, may be used to establish that a person was a party to an offense. In re L.A.S., 135 S.W.3d at 915; Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987).

In this case, appellant and Rodarte were loaned the same car that was identified by Fernandez at the scene of the incident. Appellant was present at the scene of the incident and later admitted that he talked to Smith while Rodarte went around the back of the house at the time Smith s car was stolen. Appellant had no candy with him at the time. Smith s car was recovered from the home of the woman who had loaned her car to Rodarte. Given these facts, there was more than a scintilla of evidence establishing that appellant was a party to the theft of Smith s car. Accordingly, we overrule appellant s first point of error.

Factual Sufficiency

In his second point of error, appellant contends that the evidence was factually insufficient to support the trial court s finding that he violated his probation by violating Texas law. A factual sufficiency review in a juvenile case requires a neutral examination of all of the evidence to determine whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re L.R., 79 S.W.3d at 339. We may not pass upon the credibility of the witnesses nor will we substitute our judgment for that of the trial court, even if the evidence would clearly support a different result; rather, if competent evidence of probative force supports the challenged finding, we will sustain it. Id.

Appellant specifically contends that there is no evidence to support the finding that he violated Texas law by being a party to the theft of Smith s car. Appellant argues that the record provides a non-criminal reason for his being present at Smith s house, and because the State failed to disprove this stated reason for his presence, it failed to meet its burden. Appellant also argues that the State offered no evidence of his nefarious intent other than Smith s speculative testimony as to why she thought appellant was at her house.

Appellant s argument boils down to the proposition that his presence at the scene of the incident could give rise to a number of inferences, and the State did not produce any evidence to corroborate the trial court s finding that appellant was present at the scene as a party to the theft of Smith s car. We disagree. Appellant admitted that he went to Smith s house with Rodarte. Appellant further admitted that, as he was talking to Smith, Rodarte went around the back of the house. Smith testified that as she was talking to appellant, she saw her car being stolen out of her garage, and that, in her opinion, appellant had engaged her in the conversation to distract her from the ensuing theft. Given this evidence, we hold that the finding in question was not so against the great weight and preponderance of the evidence as to be manifestly unjust. See id. at 705. Accordingly, we overrule appellant s second point of error.

CONCLUSION

Because the trial court had sufficient evidence upon which to exercise its discretion, and the record shows no abuse of that discretion, we affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.