in the Matter of R.G.M., a Juvenile

In the Matter of R.G.M., a Juvenile IN THE TENTH COURT OF APPEALS No. 10-97-195-CV IN THE MATTER OF R.G.M., A JUVENILE, From the 52nd District Court Coryell County, Texas Trial Court # 1141 O P I N I O N A jury found beyond a reasonable doubt that R.G.M., a 16 year-old juvenile, engaged in delinquent conduct by committing two counts of aggravated assault. See Tex. Fam. Code Ann. § 51.03(a)(1) (Vernon Supp. 1998); Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon 1994). Following a disposition hearing, the jury assessed a determinate sentence of six years to be served in the Texas Youth Commission with a possible transfer to the Texas Department of Criminal Justice-Institutional Division. Tex. Fam. Code Ann. § 54.04(d)(3) (Vernon Supp. 1998). R.G.M.’s issue presented alleges that the evidence is legally insufficient to support the jury’s finding to one of the aggravated assault allegations.FACTUAL BACKGROUND R.G.M., another juvenile, and a seventeen year old adult confronted the Hicks brothers, Timmy and Stacy, in the parking lot of a convenience store in Copperas Cove. Two witnesses inside the convenience store testified that R.G.M., who was wearing a black hat, struck Timmy Hicks with a baseball bat. Timmy Hicks also testified that R.G.M. hit him three times on the back with the baseball bat while another boy had him pinned on the ground. Stacy Hicks also testified that R.G.M. hit him in the knee with the bat as he was coming to the aid of his brother. R.G.M. testified that he hit Timmy with the bat because Timmy was slamming his friend’s head into the concrete. Question 2A asked the jury: Do you find from the evidence beyond a reasonable doubt that the Juvenile, [R.G.M.], engaged in delinquent conduct, to wit: that on or about the 10th day of January, 1997, in Coryell County, Texas, the Juvenile did then and there intentionally, knowingly and recklessly cause bodily injury to Timmy Richard Hicks by striking him with a baseball bat and kicking and punching Timmy Richard Hicks with his foot and closed fist. If you do so find from the evidence beyond a reasonable doubt, you will answer “We Do.” (Emphasis added). The jury answered the question, “We Do.” The jury also found that the baseball bat was used as a deadly weapon when it answered question 2B. R.G.M. argues that the evidence is legally insufficient because there is no evidence that R.G.M. kicked anyone during the assault and therefore he should be acquitted. R.G.M. is correct that there is no evidence that he kicked anyone. However, that absence does not necessarily lead to legal insufficiency. LEGAL SUFFICIENCY Generally, the requirements governing an appeal of a juvenile case are the same as in civil cases. Tex. Fam. Code Ann. § 56.01(b) (Vernon Supp. 1998). However, an adjudication of delinquent conduct must be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075, 25 L. Ed. 2d 368 (1970); Id. § 54.03(f) (Vernon 1996). Thus, we are required to apply the legal sufficiency standard articulated in Jackson v. Virginia. 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); R.X.F. v. State, 921 S.W.2d 888, 899 (Tex. App.—Waco 1996, no writ). Under Jackson, the court reviews the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996). R.G.M. alleges that the evidence is legally insufficient when measured against the jury charge, which alleges that R.G.M. struck Hicks with a baseball bat and kicked and punched Hicks with his foot and closed fist. In the past, when the State did not object to a jury charge that increased its burden, the appellate court measured the sufficiency of the evidence against the charge as submitted. Moreno v. State, 872 S.W.2d 1, 3 (Tex. App.—Houston [1st Dist.] 1993, no pet.). However, the Court of Criminal Appeals has decided that the sufficiency of the evidence will no longer be measured against the jury charge that was actually given. Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997). According to Malik: . . . sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. (emphasis added). Id. at 240. Further, “if an element to be proved is incorporated into the charge merely because the State failed to object, and hence, unnecessarily increased its burden of proof, then that element cannot be an ‘essential’ element of the crime.” Id. at 237. The Court stated that the purpose of the Jackson standard is to ensure that innocent persons are not convicted. Id. at 239. Thus, the holding in Malik “ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State’s proof of the crime rather than a mere error in the jury charge submitted.” Id. at 240. R.G.M. acknowledges Malik, but argues that it is dicta and should not be followed. See id. (Meyers, J. concurring). However, the Court of Criminal Appeals has held in a subsequent case that Malik is not pure dicta and has “binding precedential effect.” Blanco v. State, No. 0098-97, slip op. at 3 (Tex. Crim. App. Feb. 18, 1998). In the present case, the use of and in the jury charge alleges the manner and means conjunctively and unnecessarily increases the State’s burden of proof. When the manner and means are alleged disjunctively, proof of any one of the manner and means alleged is sufficient. See Scott v. State, 732 S.W.2d 354, 360 (Tex. Crim. App. 1987). The State could have objected to the submission of the charge in the conjunctive and had the charge changed to the disjunctive. See Malik, 953 S.W.2d at 237. Thus, the use of and in the jury charge is not an essential element of the offense and unnecessarily increases the State’s burden of proof. Id. Therefore, a “hypothetically correct jury charge” in this case would have alleged the elements of aggravated assault and the manner and means disjunctively by using or instead of and. Id. at 240. We will measure the sufficiency of the evidence against the hypothetically correct jury charge, so proof of the elements of aggravated assault by any one of the manner and means alleged will be sufficient. Id.; Scott, 732 S.W.2d at 360. A person commits the offense of aggravated assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse and (2) uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a), 22.02(a)(2) (Vernon 1994). Viewing the evidence in the light most favorable to the verdict, we find that the State presented witnesses who testified that R.G.M. hit Timmy Hicks with a baseball bat. The baseball bat was used as a deadly weapon in this case because of its capability of inflicting serious bodily injury. Id. § 1.07(a)(17)(B). We find the evidence sufficient for a rational trier of fact to find beyond a reasonable doubt that R.G.M. committed the offense of aggravated assault. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89. Therefore, we overrule the issue presented. We affirm the judgment. REX D. DAVIS Chief Justice Before Chief Justice Davis Justice Cummings and Justice Vance Affirmed Opinion delivered and filed April 22, 1998 Do not publish