in the Interest Of: M.F. ( 2003 )

Opinion issued July 3, 2003

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-00981-CV

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IN THE MATTER OF M.A.F., Appellant  

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 02-05893J

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MEMORANDUM OPINION  

          Appellant, a juvenile, pleaded true to engaging in delinquent conduct by committing the offense of criminal trespass. The trial court found that appellant had engaged in delinquent conduct and was in need of rehabilitation. The trial court ordered that appellant be placed on probation for one year in the custody of the Chief Juvenile Probation Officer. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support the trial court’s order. We affirm.

Facts

          Corporal Deborah Jones, a Harris County Constable, Precinct 3, testified that on June 28, 2002, she was working as an off-duty security officer for a skating rink in Harris County. Jones saw appellant, who appeared upset, standing outside of the girl’s restroom. Jones asked appellant who he was waiting on, and appellant answered, “That bitch better come out of the restroom or I’m going to drag her ass out of there.” Jones went into the restroom and found a little girl crying. The little girl was “scared” of appellant. Jones told appellant to leave the skating rink because appellant “was using profanity and the little girl was scared.”

          After Jones told appellant to leave the building, appellant “just stood there” and said he was “not leaving.” Jones and Deputy Al Cedillo grabbed appellant by the arm and attempted to escort appellant from the building, but appellant jerked his arm away and said “I can leave by myself.” Appellant then “started walking toward the door and he just stopped,” and Jones had to again request that appellant leave the building. Appellant then “started cursing and told [Jones] that he was going to kick [her] ass.” The record reflects that Jones and Cedillo then grabbed appellant by the arm, opened the front door, and forcibly removed him from the building.

Sufficiency of the Evidence

          In his first point of error, appellant contends that the evidence was legally insufficient to support the trial court’s affirmative finding that he engaged in delinquent conduct by committing the offense of criminal trespass.

          In juvenile cases, although they are civil proceedings, a reviewing court applies the criminal sufficiency standards of review. In re L.R., 84 S.W.3d 701, 704 (Tex. App.—Houston [1st Dist.] 2002, no pet.). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. Id.

          To establish criminal trespass, the State must show that a person entered or remained on property of another without effective consent, or he entered or remained in a building of another without effective consent and he (1) had notice that entry was forbidden, or (2) received notice to depart but failed to do so. Tex. Pen. Code Ann. § 30.05(a) (Vernon 2003). Thus, criminal trespass consists of the following elements: (1) a person, (2) without effective consent, (3) enters or remains on the property or in a building of another, (4) knowingly or intentionally or recklessly, (5) when he had notice that entry was forbidden or received notice to depart but failed to do so. Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975); Johnson v. State, 665 S.W.2d 554, 556 (Tex. App.—Houston [1st Dist.] 1984, no pet.).

          In regard to appellant’s legal sufficiency challenge, appellant argued “[i]t is clear by the evidence adduced at [his] trial that when asked to leave he proceed [sic] to the door and that, with the assistance of the deputies, did, in fact, leave.” (emphasis added.) Here, Corporal Jones possessed the authority to enforce security at the skating rink and the owner requested that appellant be removed. When Jones first asked appellant to leave, he “just stood there” and refused to leave. After Jones and Deputy Cedillo attempted to escort appellant out of the building, he stopped at the door but did not exit the building. Jones had to again ask appellant to leave the building. After appellant cursed at and threatened Jones, Jones and Cedillo again grabbed appellant by the arm and had to forcibly remove him from the building. Appellant intentionally remained in the building of another after he received notice to depart but failed to do so. Therefore, we hold that the evidence was legally sufficient to support the trial court’s affirmative finding that appellant engaged in delinquent conduct by committing the offense of criminal trespass.

          We overrule appellant’s first point of error.

          In his second point of error, appellant contends that the evidence was factually insufficient to support the trial court’s affirmative finding that he engaged in delinquent conduct by committing the offense of criminal trespass. However, as a prerequisite to raising a factual sufficiency challenge on appeal in a juvenile case, an appellant must first file a motion for new trial challenging the factual sufficiency of the evidence. Tex. Fam. Code Ann. § 51.17(a); Tex. R. Civ. P. 324(b)(2); In re M.R., 858 S.W.2d 365, 366 (Tex. 1993); In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.). We note that appellant’s amended motion for new trial was filed 31 days after the date the order was signed by the trial court and will not be considered as timely filed. Tex. R. App. P. 21.4(b). A review of the record reveals that appellant did not challenge the factual sufficiency of the evidence in his motion for new trial. Thus, appellant has not preserved his factual sufficiency challenge. Tex. R. App. P. 33.1.

          We overrule appellant’s second point of error.  

Conclusion

          We affirm the order of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Taft, Jennings, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).