in the Matter of M.E. ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00051-CV
IN THE MATTER OF M.E.
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FROM THE COUNTY COURT AT LAW OF COOKE COUNTY
TRIAL COURT NO. JV661-13
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant M.E., a juvenile, waived his right to a trial on adjudication and
pleaded true to the State’s allegation that he committed aggravated assault, a
second-degree felony. At the conclusion of the disposition hearing, a jury
sentenced M.E. to a determinate sentence of fifteen years. In four issues, M.E.
argues that the evidence is legally and factually insufficient to support his
sentence, that the sentence violates the Eighth Amendment’s prohibition against
1
See Tex. R. App. P. 47.4.
cruel and unusual punishment, that the trial court erred by allowing each side
only six peremptory strikes during voir dire, and that the trial court abused its
discretion by closing the disposition hearing without good cause. We will affirm.
II. BACKGROUND
On the evening of October 27, 2013, M.E., two other juveniles, and twenty-
year-old S.C. were driving around in a vehicle and drinking alcohol. At some
point, M.E. and S.C. began arguing, M.E. exited the vehicle, S.C. attempted
either to calm M.E. down or to get him back into the vehicle, and M.E. began
beating S.C. The police eventually arrived on the scene and discovered, among
other things, S.C. covered in blood and a broken whiskey bottle on the ground.
Medical personnel transported S.C. to the hospital by a helicopter, where he was
treated for his injuries.
III. EVIDENTIARY SUFFICIENCY
In his first issue, M.E. challenges the legal and factual sufficiency of the
evidence to support his fifteen-year sentence. Unlike appellants in numerous
other juvenile appeals, M.E. does not challenge the sufficiency of the evidence to
support the trial court’s family code section 54.04(i) findings. See Tex. Fam.
Code Ann. § 54.04(i) (West 2014) (listing three determinations that trial court
must make to commit juvenile to the Texas Youth Commission—now the Texas
Juvenile Justice Department (TJJD)); see also In re A.O., 342 S.W.3d 236, 240
(Tex. App.—Amarillo 2011, pet. denied) (challenging sufficiency of evidence to
support section 54.04(i) finding); In re K.K.D., No. 03-03-00702-CV, 2004 WL
2
1792399, at *3 (Tex. App.—Austin Aug. 12, 2004, pet. denied) (same); In re
J.D.P., 85 S.W.3d 420, 426‒27 (Tex. App.—Fort Worth 2002, no pet.) (op. on
reh’g) (same); In re C.C., 13 S.W.3d 854, 858‒59 (Tex. App.—Austin 2000, no
pet.) (same). Instead, M.E. challenges the sufficiency of the evidence only as it
pertains to the length, or severity, of his sentence, which falls squarely within the
legislatively prescribed range of two to twenty years. See Tex. Fam. Code Ann.
§ 54.04(d)(3)(B). We question whether such a sufficiency review is even
possible.2 Nonetheless, to the extent that we may conduct such a review, the
evidence amply supports M.E.’s sentence.
We apply the civil standard of review to sufficiency of the evidence
challenges regarding the disposition phase of juvenile proceedings. In re J.D.P.,
85 S.W.3d at 426. In determining whether there is legally sufficient evidence to
support the finding under review, we consider evidence favorable to the finding if
a reasonable factfinder could and disregard evidence contrary to the finding
unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas,
2
Generally, the factfinder’s sentencing decision is a normative,
discretionary function that does not depend on the resolution of specific facts
and, therefore, is not subject to a sufficiency challenge. Jordan v. State, 256
S.W.3d 286, 291 (Tex. Crim. App. 2008). A punishment that falls within the
legislatively prescribed range, and that is based upon the sentencer’s informed
normative judgment, is generally unassailable on appeal. Ex parte Chavez, 213
S.W.3d 320, 323‒24 (Tex. Crim. App. 2006); see Jarvis v. State, 315 S.W.3d
158, 162 (Tex. App.—Beaumont 2010, no pet.) (“The length of the sentence is
within the legislatively prescribed range, and is not subject to a sufficiency of the
evidence review on appeal.”). We would summarily deny M.E.’s first issue if this
caselaw applied to this juvenile appeal, but because neither side even remotely
approaches the issue, we will not address it.
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228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807,
827 (Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to
support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450
(Tex. 1996).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The evidence shows that M.E. severely beat S.C, causing him serious
bodily injury. S.C. suffered vascular injuries to his face, he lost several teeth and
a lot of blood, and his airway was compromised when authorities arrived at the
scene. A sheriff’s deputy who responded to the call testified that the skin on
S.C.’s chin was “hanging out” and that S.C.’s face was covered in so much blood
that the deputy could not determine where it was coming from. A paramedic
testified that after S.C. was taken away, the amount of blood remaining on the
ground looked like someone had poured out a “two-liter Coke.” On a scale of
one to ten, “one being the least hurt person, ten being the most severely hurt,”
the deputy rated S.C.’s injuries as an eight or nine, and the paramedic rated
them a nine. S.C. returned to the hospital after he was discharged, and tests
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showed that he had a low blood count and glass in his throat. S.C. testified that
he has a scar on his face, missing teeth, difficulty sleeping, and glass impacted in
his face and head.
Further, a Cooke County probation officer testified about M.E.’s criminal
history—in February 2011, he was placed on probation for assault, burglary, and
possession of a delayed-action incendiary device; in December 2012, he was
placed on a new probation term for theft of a firearm, unlawfully carrying a
weapon, and obstruction or retaliation; in June 2013, he tested positive for
amphetamines, methamphetamines, and marijuana; in July 2013, he was
arrested for driving without a license and DUI; and about two months before the
incident in this case, he allegedly pulled a knife on another student.
M.E. argues that S.C. may have participated in the fight offensively, but
S.C. is the one who sustained severe injuries, not M.E. M.E. also points out that
a psychological report that was prepared before his trial recommended that he
attend boot camp, but the probation officer disagreed with the recommendation
because of M.E.’s “history of scary offenses, violent offenses” and because M.E.
has more needs than can be addressed “on the community supervision side of
things.” According to the probation officer, it was in M.E.’s best interest to be
committed to the TJJD‒Institutional Division.
Accordingly, to the extent that we may conduct a sufficiency review of the
severity of M.E.’s sentence, we hold that the evidence is legally and factually
sufficient to support the sentence. We overrule his first issue.
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IV. WAIVED ISSUES
M.E. argues in his second issue that his fifteen-year sentence violates his
Eighth Amendment right to be free from cruel and unusual punishment because it
is grossly disproportionate to the offense charged.
To preserve a complaint for appellate review, a party must have presented
to the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do this,
error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d
711, 712 (Tex. 1991) (op. on reh’g).
M.E. did not object that his sentence was disproportionate to the offense at
the time that it was imposed, nor did he raise this complaint in a post-judgment
motion. We have repeatedly held that this type of claim must be preserved at the
trial court level. See Doyle v. State, No. 02-12-00626-CR, 2014 WL 3028885, at
*1 (Tex. App.—Fort Worth July 3, 2014, no pet.) (mem. op., not designated for
publication) (identifying numerous cases holding so); see also In re L.M.I., 119
S.W.3d 707, 711 (Tex. 2003). We overrule M.E.’s second issue.
M.E. argues in his third issue that the trial court erred by allowing each
side only six peremptory strikes instead of twelve, and he argues in his fourth
issue that the trial court abused its discretion by closing the disposition hearing
without good cause. M.E. did not object to the number of peremptory strikes that
he was afforded at voir dire, nor did he object when the trial court, on at least two
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occasions, indicated that the proceeding was closed. Therefore, M.E. failed to
preserve both of these issues for appellate review. See Tex. R. App. P. 33.1(a).
We overrule M.E.’s third and fourth issues.
Having overruled all of M.E.’s issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MEIER, WALKER, and GABRIEL, JJ.
DELIVERED: December 23, 2014
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