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MATTHEW D POWELL Criminal District Attorney Lubbock County

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MATTHEW D POWELL Criminal District Attorney Lubbock County Powered By Docstoc
					                                NO. 11-0514

                    IN THE SUPREME COURT OF TEXAS

                        SITTING AT AUSTIN, TEXAS
____________________________________________________________________________

                         IN THE MATTER OF A.O.,

                                 A Juvenile
____________________________________________________________________________

            RESPONSE TO PETITIONER’S PETITION FOR REVIEW
____________________________________________________________________________

 FROM THE SEVENTH COURT OF APPEALS, SITTING AT AMARILLO, TEXAS
          HONORABLE BRIAN QUINN, CHIEF JUSTICE, PRESIDING
         (OPINION BY HONORABLE BRIAN QUINN, CHIEF JUSTICE)
              (SEVENTH COURT OF APPEALS NO. 07-10-0194-CV)
             (LUBBOCK COUNTY TRIAL CAUSE NO. 2009-763,299)
____________________________________________________________________________


                                         MATTHEW D. POWELL
                                         Criminal District Attorney
                                         Lubbock County, Texas

                                   BY:   JEFFREY S. FORD
                                         Assistant Criminal District Attorney
                                         Lubbock County, Texas
                                         State Bar No. 24047280
                                         P. O. Box 10536
                                         Lubbock, Texas 79408
                                         Phone: (806) 775-1100
                                         ATTORNEY FOR THE STATE
                                              TABLE OF CONTENTS

                                                                                                                           PAGE

TABLE OF CONTENTS ..................................................................................................... i

INDEX OF AUTHORITIES ............................................................................................... ii

STATEMENT OF THE CASE ................................................................................... …...iv

STATEMENT OF FACTS..................................................................................................1

SUMMARY OF THE ARGUMENT..................................................................................1

ARGUMENT……………………………………………………………………………...2

PRAYER ............................................................................................................................. 8

CERTIFICATE OF SERVICE……………………………………………………………9




                                                                  i
                            INDEX OF AUTHORITIES

U.S. SUPREME COURT CASE LAW

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)……………………..6

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)…………….3, 7

Santana v. Texas, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970)………………….6

TEXAS CASE LAW                                                                PAGE

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plur. op.)………………passim

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), overruled by Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010)…………………………………………2, 3, 5-8

In re A.O., __S.W.3d__, No. 07-10-0194-CV, 2011 WL 1878640 (Tex. App.—Amarillo
May 17, 2011, pet. filed July 5, 2011) (designated for publication)…………………..iv, 1

In re C.H.L.W., No. 11-10-00131-CV, 2011 WL 1745082 (Tex. App.—Eastland May 5,
2011, no pet.) (not designated for publication)…………………………………………...4

In re C.M.G., 180 S.W.3d 836 (Tex. App.—Texarkana 2005, pet. denied)………………5

In re D.R.T., 339 S.W.3d 208 (Tex. App.—El Paso 2011, no pet.)……………………….4

In re E.P., 963 S.W.2d 191 (Tex. App.—Austin 1998, no pet.)…………………………..5

In re G.A.T., 16 S.W.3d 818 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)……..5

In re I.A.G., 297 S.W.3d 505 (Tex. App.—Beaumont 2009, no pet.)…………………….5

In re J.A.G., No. 02-10-00235-CV, 2011 WL 2436756 (Tex. App.—Fort Worth June 16,
2011, no pet.) (not designated for publication)…………………………………………...4

In re J.D.P., 85 S.W.3d 420 (Tex. App.—Fort Worth 2002, no pet.)…………………….5

In re L.A.S., 135 S.W.3d 909 (Tex. App.—Fort Worth 2004, no pet.)……………………5

In re L.R., 84 S.W.3d 701 (Tex. App.—Houston [1st Dist.] 2002, no pet.)…………….5-6

                                         ii
In re M.C.L., 110 S.W.3d 591 (Tex. App.—Austin 2003, no pet.)……………………….5

In re M.C.S., Jr., 327 S.W.3d 802 (Tex. App.—Fort Worth 2010, no pet.)……………3, 4

In re M.L.C., No. 11-09-00081-CV, 2011 WL 322448 (Tex. App.—Eastland Jan. 27,
2011, no pet.) (not designated for publication)…………………………………………..4

In re M.M.L., 241 S.W.3d 546 (Tex. App.—Amarillo 2006, pet. denied)………………..5

In re R.D., __S.W.3d__, No. 08-07-00100-CV, 2011 WL 1005561 (Tex. App.—El Paso
Mar. 16, 2011, no pet.) (designated for publication)……………………………………..4

In re Z.L.B., 115 S.W.3d 188 (Tex. App.—Dallas 2003, no pet.)………………………...5

Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008)………………………………..6

Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006)……………………………...6

Rollerson v. State, 227 S.W.3d 718 (Tex. Crim. App. 2007)……………………………..6

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006)………………………………..6

TEXAS RULES AND STATUTES

TEX. FAM. CODE ANN. § 54.03(f)…………………………………………………………6

TEX. R. APP. P. 53.7(d)…………………………………………………………………...iv

TEX. R. APP. P. 56.1(c)……………………………………………………………………8




                                      iii
                                STATEMENT OF THE CASE

       The State filed a State’s Original Adjudication Petition (the second one filed in the

case) on February 8, 2010, alleging that Petitioner committed the offense of burglary of a

building. The adjudication hearing was held in the 99th District Court of Lubbock

County, sitting as a juvenile court, from March 24 to March 25, 2010. The jury returned

a finding of “We Find True” to the accusation of burglary of a building. Judge Les Hatch

signed the Judgment Finding Delinquent Conduct on March 31, 2010.

       The disposition hearing was held in the 99th District Court of Lubbock County,

sitting as a juvenile court, on March 31, 2010.               On April 7, 2010, the trial court

committed Petitioner to the Texas Youth Commission (TYC) for an indeterminate length

of time. Judge Les Hatch signed the Order of Commitment on April 7, 2010.

       Petitioner appealed his adjudication and commitment to the Seventh District Court

of Appeals in Amarillo, Texas. The parties before the Court of Appeals were Petitioner

and the State of Texas. The Court of Appeals affirmed the Judgment and Order on May

17, 2011.1 Justices Quinn, Pirtle, and Boyd participated in the decision in the Court of

Appeals, with Chief Justice Quinn authoring the opinion for the unanimous court. No

motions for rehearing or motions for en banc reconsideration were filed by either party.

       Petitioner timely filed his Petition for Review with the Court on July 5, 2011. This

Response to Petitioner’s Petition for Review is timely filed within thirty days after the

filing of Petitioner’s Petition for Review, pursuant to TEX. R. APP. P. 53.7(d).

1
 In re A.O., __S.W.3d__, No. 07-10-0194-CV, 2011 WL 1878640 (Tex. App.—Amarillo May 17, 2011, pet. filed
July 5, 2011) (designated for publication).
                                                  iv
                                       STATEMENT OF FACTS

        While not necessarily agreeing with Petitioner’s recitation of facts in his Statement

of Facts, the State will not separately discuss the evidence supporting the adjudication

verdict. Petitioner’s sole issue asks only whether the court of appeals erred in finding

that appellate courts no longer have authority to review the factual sufficiency of the

evidence supporting a juvenile adjudication.2 Thus, this Response will focus solely on

whether the court of appeals correctly found that the sufficiency of evidence to support a

juvenile adjudication should employ only the criminal legal sufficiency standard in light

of the Court of Criminal Appeals’ recent Brooks v. State3 decision.

                                 SUMMARY OF THE ARGUMENT

        Petitioner argues that this Court should find that factual sufficiency review still

exists and that courts should continue to apply factual sufficiency review to the evidence

supporting a juvenile adjudication verdict, saying that juvenile cases are civil in nature

and therefore not subject to the recent Brooks decision. But, no difference exists between

the impracticality of conducting a factual sufficiency review in a criminal case and in a

juvenile case. That is, it is not possible to conduct a “neutral light” review of the

evidence and still give due deference to the fact finder’s determination. And, even before

Brooks, the criminal legal and factual sufficiency standards had become essentially the

same through decisions from the Court of Criminal Appeals. As with other criminal
2
  The court of appeals found that though juvenile proceedings are civil matters, the standard applicable in criminal
matters is used to assess the sufficiency of the evidence underlying a finding that a juvenile engaged in delinquent
conduct; and because the Court of Criminal Appeals negated the existence of a factual sufficiency review in criminal
matters, only legal sufficiency review should be applied to assess the sufficiency of the evidence to support
adjudication. In re A.O. at *2.
3
  Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plur. op.).
                                                         1
cases, the State has the burden of proving guilt beyond a reasonable doubt, which is

necessarily a higher burden than proving the preponderance-of-the-evidence standard

applicable in regular civil cases.        In light of the Brooks decision, Clewis factual

sufficiency review no longer exists in review of criminal offenses. Petitioner’s assertions

to the contrary lack merit, and his petition for review should be refused by the Court.

                                         ARGUMENT

            The Court should decline to exercise its discretionary jurisdiction in this case.

Petitioner challenges his conviction via one issue, asking whether the court of appeals

erred in finding that the factual insufficiency standard is inapplicable to review a juvenile

adjudication. In support, he states in his Statement of Jurisdiction that the court of

appeals “has decided an important question of state law that should be, but has not been,

resolved by the Supreme Court.”4 While this issue has not been resolved by this Court,

the issue of whether the factual sufficiency standard should continue to be applied in

criminal cases has been decided by the Court of Criminal Appeals, which found that it

should no longer be applied. Further, several courts of appeals have decided that—

consistently with the Brooks opinion—the factual sufficiency standard should no longer

be applied to review the sufficiency of the adjudication evidence in a juvenile case.

                                         Brooks v. State

            Within the past year, the Court of Criminal Appeals decided Brooks v. State,

which abrogated factual sufficiency review in criminal cases. The decision to abrogate


4
    (Petition at *7).
                                                2
factual sufficiency review in criminal cases was decided via a plurality decision, with

Judges Hervey, Keller, Keasler, and Cochran in the majority and Judges Cochran and

Womack concurring.              Both the majority and concurring opinions, while conducting

somewhat different analyses, decided that factual sufficiency review in criminal cases

should no longer be conducted and that the sole standard for reviewing the sufficiency of

evidence is the legal sufficiency standard.5

                                   Decisions in other courts of appeals

         After the Brooks decision was issued, several courts of appeals—in addition to the

Seventh Court of Appeals—have determined that factual sufficiency review should no

longer be applied to review the evidence in the adjudication phase of a juvenile trial. The

Second, Eighth, and Eleventh courts of appeals have all decided this issue adversely to

Petitioner’s position.

         The Second Court of Appeals has considered this issue twice. In In re M.C.S.,

Jr.,6 issued less than a month after Brooks was issued, the court of appeals noted that

because Brooks was issued after the briefing and submission of the case, the Jackson v.

Virginia7 legal sufficiency standard should be the only sufficiency standard applied to the

adjudication sufficiency complaint.8 Recently, the Second Court of Appeals reaffirmed


5
   Brooks, 323 S.W.3d at 895 (“We, therefore, overrule Clewis and decide that the Jackson v. Virginia legal-
sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable
doubt”); 926 (Cochran, J., concurring) (“We are required to follow the heightened Jackson legal sufficiency
formulation; we cannot follow a lesser factual sufficiency formulation. I agree that it is time to consign the civil-law
concept of factual sufficiency review in criminal cases to the dustbin of history.”).
6
  In re M.C.S., Jr., 327 S.W.3d 802 (Tex. App.—Fort Worth 2010, no pet.).
7
  Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
8
  In re M.C.S., Jr., 327 S.W.3d at 805 n. 3.
                                                           3
its holding in In re M.C.S., Jr., finding that Brooks precludes a factual sufficiency review

of the adjudication evidence.9

        The Eighth Court of Appeals decided this issue a few months after Brooks was

issued. In In re R.D.,10 the court of appeals found that although juvenile appeals are

categorized as civil cases, a sufficiency review of the evidence supporting a finding that a

juvenile engaged in delinquent conduct should be conducted using the same standards

applicable in criminal cases, i.e., a legal sufficiency review in light of Brooks.11 A few

days after In re R.D. was issued, the Eighth Court of Appeals again found that, in light of

Brooks, the factual sufficiency challenge to the adjudication evidence would be addressed

solely as a challenge to the legal sufficiency of the evidence.12

        The Eleventh Court of Appeals also decided this issue only a few months after the

Brooks decision. In In re M.L.C.,13 the court of appeals—citing Brooks and In re M.C.S.,

Jr. in support—held that the legal sufficiency standard should be the only sufficiency

standard to be applied to review juvenile adjudication evidence.14 The Eleventh Court of

Appeals later found (again) that in light of the Brooks opinion, the factual sufficiency

challenge to adjudication evidence would be reviewed as a legal sufficiency challenge.15



9
  In re J.A.G., No. 02-10-00235-CV, 2011 WL 2436756 at *3 (Tex. App.—Fort Worth June 16, 2011, no pet.) (not
designated for publication).
10
   In re R.D., __S.W.3d__, No. 08-07-00100-CV, 2011 WL 1005561 (Tex. App.—El Paso Mar. 16, 2011, no pet.)
(designated for publication).
11
   In re R.D., 2011 WL 1005561 at *2.
12
   In re D.R.T., 339 S.W.3d 208, 209-10 (Tex. App.—El Paso 2011, no pet.).
13
    In re M.L.C., No. 11-09-00081-CV, 2011 WL 322448 (Tex. App.—Eastland Jan. 27, 2011, no pet.) (not
designated for publication).
14
   In re M.L.C., 2011 WL 322448 at *1.
15
   In re C.H.L.W., No. 11-10-00131-CV, 2011 WL 1745082 at *2 (Tex. App.—Eastland May 5, 2011, no pet.) (not
designated for publication).
                                                     4
        As shown from the above, three courts of appeals (four including the Amarillo

Court of Appeals in the instant case) have all concluded that Clewis16 factual sufficiency

review should no longer be applied in light of the Brooks opinion. The only question is

whether Petitioner gives a valid reason why the holdings of four different courts of

appeals (via seven different opinions) should be overruled.

                                 Sufficiency review in juvenile cases

        Petitioner argues that factual sufficiency review should still be used in juvenile

cases to review the adjudication evidence because “insufficient evidence review (factual)

is mandated by the Texas Constitution, and should be used in juvenile cases, which are

technically civil.”17 He also says that “[f]actual sufficiency review belongs in Texas

jurisprudence, if not in criminal cases for the moment, then in civil cases, including

quasi-civil case[s] like juvenile proceedings.”18

        Petitioner seeks to have this Court reject the Brooks decision and continue

applying factual sufficiency review to juvenile adjudication proceedings because juvenile

cases are considered to be and are treated as civil cases. But, though they are considered

to be civil cases, Petitioner fails to note that appellate courts apply a criminal sufficiency

standard,19 i.e., the legal and (formerly) factual sufficiency review standards, to


16
   Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), overruled by Brooks v. State, 323 S.W.3d 893 (Tex.
Crim. App. 2010).
17
   (Petition at *13).
18
   (Petition at *14).
19
   See, e.g., In re I.A.G., 297 S.W.3d 505, 507 (Tex. App.—Beaumont 2009, no pet.); In re M.M.L., 241 S.W.3d
546, 557 (Tex. App.—Amarillo 2006, pet. denied); In re C.M.G., 180 S.W.3d 836, 838 (Tex. App.—Texarkana
2005, pet. denied); In re L.A.S., 135 S.W.3d 909, 913-14 (Tex. App.—Fort Worth 2004, no pet.); In re Z.L.B., 115
S.W.3d 188, 190 (Tex. App.—Dallas 2003, no pet.); In re M.C.L., 110 S.W.3d 591, 594 (Tex. App.—Austin 2003,
no pet.); In re J.D.P., 85 S.W.3d 420, 422 (Tex. App.—Fort Worth 2002, no pet.); In re L.R., 84 S.W.3d 701, 704
                                                       5
sufficiency challenges. And, while a juvenile proceeding is “quasi-civil” in nature, the

State has the burden of proving guilt beyond a reasonable doubt rather than merely by a

preponderance of the evidence (as would be the burden of proof in a “traditional” civil

case).20 As such, the same reasoning in Brooks regarding overruling Clewis factual

sufficiency review applies to juvenile cases (when dealing with adjudication evidence)

because juvenile cases have a criminal sufficiency standard of review.

         Petitioner also fails to note that even prior to Brooks being decided, the Court of

Criminal Appeals found that factual sufficiency review is “barely distinguishable” from

legal sufficiency review.21 While prior factual sufficiency review cases found that a

“neutral light” review of the evidence should be conducted, that caselaw was effectively

reversed by Lancon v. State,22 which implicitly found that “neutral light” review cannot

be conducted because it is for the jury, not the appellate court, to make credibility

determinations, and “[a] decision is not manifestly unjust solely because the court of

appeals would have resolved the conflicting evidence in a different way.” 23 In part, it

was the realization that there is no realistic way to conduct a factual sufficiency review in


(Tex. App.—Houston [1st Dist.] 2002, no pet.); In re G.A.T., 16 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.]
2000, pet. denied); In re E.P., 963 S.W.2d 191, 193 (Tex. App.—Austin 1998, no pet.).
20
   See In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970) (finding that the beyond a
reasonable doubt standard applies in the adjudicatory stage of a juvenile delinquency proceeding); Santana v. Texas,
397 U.S. 596, 596, 90 S.Ct. 1350, 1350, 25 L.Ed.2d 594 (1970) (remanding the case to the Texas Supreme Court to
reconsider its holding that the beyond a reasonable doubt standard does not apply to findings of delinquency (in light
of In re Winship)); TEX. FAM. CODE ANN. § 54.03(f) (“The child shall be presumed to be innocent of the charges
against the child and no finding that a child has engaged in delinquent conduct or conduct indicating a need for
supervision may be returned unless the state has proved such beyond a reasonable doubt. In all jury cases the jury
will be instructed that the burden is on the state to prove that a child has engaged in delinquent conduct or is in need
of supervision beyond a reasonable doubt”).
21
   See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625
(Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).
22
   Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008).
23
   Lancon, 253 S.W.3d at 707.
                                                           6
a criminal case that led the Court of Criminal Appeals to abrogate factual sufficiency

review in criminal cases.24

         Petitioner asks this Court to find that factual sufficiency review still exists in

juvenile cases for the adjudication phase of trial, but fails to urge a principled way to

conduct a factual sufficiency review that does not run into the very same problems that

the Court of Criminal Appeals dealt with for years before finally taking that “next small

step”25 and overruling Clewis and finding that Jackson v. Virginia legal sufficiency

review is the only standard to apply to evidentiary sufficiency challenges. He urges this

Court to find that courts of appeals can—at least in juvenile cases—continue conducting

a “neutral light” review of the evidence. But, to continue to find that factual sufficiency

review applies in juvenile adjudication proceedings would cause the same problems that

were discussed in Brooks, i.e., how does a court conduct a neutral review of the evidence

while still giving due deference to the fact finder’s determinations without substituting its

judgment for that of the fact finder’s? It cannot be done. By conducting a “neutral

review” of the evidence, an appellate court must necessarily reweigh the credibility

determinations made by the fact finder—the jury in this case—and determine whose

testimony is more credible based on a cold record. Petitioner has not come up with a

way to solve the problems with factual sufficiency review in juvenile adjudication

proceedings that would not run into the same problems faced in adult criminal trials.


24
   See Brooks, 323 S.W.3d at 895 (“We now take the next small step in this progression and recognize that these two
standards [i.e., legal and factual sufficiency review] have become essentially the same standard and that there is no
meaningful distinction between them that would justify retaining them both.”).
25
   Id. at 895.
                                                         7
Instead, he merely argues the same failed arguments of the past and asks this Court to

continue applying Clewis factual sufficiency review.          The Court should decline

Petitioner’s invitation to roll back the clock and thus keep alive the confusion and

uncertainty that attended Clewis factual sufficiency review from its inception. Clewis

factual sufficiency review no longer applies in adult criminal cases for the same offenses

that underlie juvenile adjudications.    Likewise, the same beyond-a-reasonable-doubt

standard applies to both. Just as in adult criminal cases, Clewis factual sufficiency review

should no longer be applied to review the adjudication evidence in juvenile cases.

       WHEREFORE, the State respectfully requests that the Supreme Court decline to

exercise its discretionary jurisdiction and refuse Petitioner’s Petition for Discretionary

Review, pursuant to TEX. R. APP. P. 56.1(c). The State requests such other and further

orders and relief that the Supreme Court deems appropriate.

                                                 Respectfully submitted,

                                                 MATTHEW D. POWELL
                                                 Criminal District Attorney
                                                 State Bar No. 00784782


                                                 By: __________________________
                                                 Jeffrey S. Ford
                                                 Assistant Criminal District Attorney
                                                 Lubbock County, Texas
                                                 State Bar No. 24047280
                                                 P. O. Box 10536
                                                 Lubbock, Texas 79408
                                                 (806) 775-1100
                                                 FAX (806) 775-7930
                                                 Attorney for the State

                                             8
                           CERTIFICATE OF SERVICE

       I certify that a true copy of the foregoing Response to Petitioner’s Petition for
Review has been delivered to David M. Crook, Attorney for Appellant, by placing a copy
in the United States Mail, addressed to David M. Crook, Crook & Jordan, 6014 Oxford
Avenue, Lubbock, TX 79413 on August 4, 2011.

                                               MATTHEW D. POWELL
                                               Criminal District Attorney
                                               State Bar No. 00784782


                                               By: __________________________
                                               Jeffrey S. Ford




                                           9

				
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