In the Matter of RD (pdf), No. 09-0343 (Tex. Feb. 12, 2010)(per curiam)(juvenile proceedings, civil rules
applied to motion for new trial, error preservation for appellate review)
We conclude that [the juvenile's] general challenge to the sufficiency of the evidence to
support the jury’s delinquency finding met Rule 324’s requirement for preserving his
challenge to the jury’s rejection of his affirmative defense.
Because the jury’s delinquency finding subsumed its rejection of R.D.’s affirmative
defense [...] we hold that R.D.’s new trial motion was sufficient to preserve error.
Accordingly, we grant the petition and, without hearing oral argument, remand the case
to the court of appeals for further review.
IN THE MATTER OF R.D., A JUVENILE; from Bexar County;
8th district (08-07-00100-CV, ___ SW3d ___, 03-12-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion [pdf]
See Electronic Briefs in 09-0343 IN THE MATTER OF R.D., A JUVENILE
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In the Matter of RD (Tex. 2010)(per curiam opinion)
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PER CURIAM
In this case a jury found that R.D., a juvenile, engaged in delinquent conduct of aggravated robbery.
R.D. filed a motion for new trial generally challenging the sufficiency of the evidence to support the jury’
s verdict, and complaining specifically of the deadly-weapon finding supporting the “aggravated”
status of the offense. R.D.’s motion did not specifically challenge the evidentiary basis for the jury’s
rejection of his affirmative defense of duress, causing the court of appeals to conclude that the issue
was waived on appeal. ___ S.W.3d ___, ___. Because the jury’s delinquency finding subsumed its
rejection of R.D.’s affirmative defense, however, we hold that R.D.’s new trial motion was sufficient to
preserve error. Accordingly, we grant the petition and, without hearing oral argument, remand the case
to the court of appeals for further review.
Accused of committing aggravated robbery, R.D. claimed that he acted under duress and raised
the issue as an affirmative defense at trial. The jury was asked to decide whether R.D. had engaged in
delinquent conduct by committing aggravated robbery, and if not, if R.D. had engaged in delinquent
conduct by committing the lesser offense of robbery, the distinction being whether a deadly weapon
was used. The jury was instructed that the burden of proof for the affirmative defense rested upon R.
D., and that if it believed R.D. committed the crime under duress the jury should find that he did not
engage in delinquent conduct. The jury found that R.D. had engaged in delinquent conduct by
committing aggravated robbery.
R.D. filed a motion for new trial contending the evidence presented by the State was legally and
factually insufficient to support the jury’s delinquency verdict. R.D. followed this general challenge with
a specific challenge to the legal and factual sufficiency of the State’s proof of the use of a deadly
weapon. The trial court denied R.D.’s motion for new trial.
On appeal, R.D. challenged the legal and factual sufficiency of the evidence supporting the jury’s
deadly-weapon finding, but also the factual sufficiency of the evidence to support the jury’s rejection of
his affirmative defense. The appeal was transferred from the Fourth Judicial District Court of Appeals
to the Eighth, which upheld the deadly-weapon finding. Applying the transferor court’s precedent, the
court of appeals held that R.D.’s evidentiary challenge to the jury’s failure to find duress was not
preserved because he did not specify this ground in his motion for new trial. Accordingly, the court of
appeals affirmed.1
In a civil case, in order to challenge on appeal the factual sufficiency of the evidence to support a
jury finding, the point must be raised in a motion for new trial. Tex. R. Civ. P. 324(b)(2). In In re M.R.,
858 S.W.2d 365, 366 (Tex. 1993) (per curiam opinion denying application for writ of error), we stated
that, unlike the rule in criminal cases, in juvenile proceedings a motion for new trial is necessary to
preserve a factual sufficiency challenge.2 Unlike in In re M.R., however, R.D. did file a motion for new
trial. The question is whether that motion was sufficient to encompass R.D.’s complaint on appeal that
the jury’s rejection of his affirmative defense had no evidentiary support. We conclude that it was.
The jury’s single finding that “the respondent . . . did engage in delinquent conduct by committing
aggravated robbery” subsumed its rejection of R.D.’s affirmative defense, which was not submitted as
a separate question but as an instruction to the delinquency question. In his motion for new trial, R.D.
made a general challenge to the legal and factual sufficiency of the evidence to support the jury’s
delinquency finding. That R.D. followed this general complaint with a more specific one aimed at the
deadly-weapon instruction does not constitute a waiver in these circumstances.
Where practical, the rules of civil procedure are to be given a liberal construction in order to obtain a
just, fair, equitable, and impartial adjudication of the rights of litigants under established principles of
substantive law. Tex. R. Civ. P. 1. See also Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997)
(“[W]e have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably,
yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to
effect the purpose of a rule.”). We conclude that R.D.’s general challenge to the sufficiency of the
evidence to support the jury’s delinquency finding met Rule 324’s requirement for preserving his
challenge to the jury’s rejection of his affirmative defense.
Accordingly, pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, without hearing oral
argument, we grant R.D.’s petition for review, reverse the court of appeals’ judgment, and remand the
case to that court for further proceedings.
OPINION DELIVERED: February 12, 2010
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1 The court noted that had it applied its own precedent, which acknowledged “the drift of juvenile law from its
civil roots,” In re J.L.H., 58 S.W.3d 242, 246 (Tex. App.—El Paso 2001, no pet.), there would be no requirement
of a new trial motion to preserve a factual sufficiency challenge on appeal. ___ S.W.3d at ___.
2 Since our decision and R.D.’s trial in this case, the Legislature has eliminated the requirement of a new trial
motion to preserve a factual sufficiency challenge on appeal in juvenile delinquency cases. Tex. Fam. Code §
56.01(b-1). We make no comment about the continuing viability of In re M.R. in light of subsequent
developments in the law.
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OPINION OF THE EL PASO COURT OF APPEALS BELOW
IN THE MATTER OF RD(pdf), (Tex.App. - El Paso [8th Dist.], 2009, pet. granted)
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IN THE MATTER OF R. D., A JUVENILE.
No. 08-07-00100-CV
Court of Appeals of Texas, Eighth District, El Paso.
March 12, 2009
Before Chew, C.J., McClure, and Carr, JJ.
Carr, J. (Not Participating)
OPINION
DAVID WELLINGTON CHEW, Chief Justice.
This is an appeal from an adjudication of engaging in the delinquent conduct of aggravated robbery. Appellant
raises three issues challenging the legal and factual sufficiency of the evidence supporting the jury's deadly
weapon finding and the factual sufficiency of the evidence in rejecting his affirmative defense of duress. We
affirm.
R. D. was walking to the store when he met Richard Casarez. Casarez asked if R. D. knew where he could get
some cocaine. He did not, but he knew where he could get some marijuana. R. D. agreed to go to Casarez's
house where they smoked marijuana. Casarez's father came home and offered them beer, which they
accepted. Casarez's father asked R. D. about his tattoos, and told him he was not supposed to have them.
Casarez's father began to threaten R. D., and told him he had to do something to get into his gang since he
already had the tattoos. Casarez's father told R. D. that if he did not do something for him, then he was going
to hurt his family or R. D. R. D. was frightened by the threat to his family. Casarez had told R. D. that he had
seen him around the neighborhood and knew where he lived. Casarez's father told R. D. that he had been to
jail, and he was in the Mexican Mafia. R. D. and Casarez along with Casarez's trained pit bull left the house.
Casarez told him if he did not do what his father told him that something bad was going to happen. Before they
left, they also retrieved a pellet gun from the backyard. R. D. knew the gun was not loaded. Casarez told R. D.
they were going to go up to someone and try to get money.
Maria Gomez was walking back to her house when two boys told her to stop. At first, she did not realize they
were talking to her, but then she turned around to see what they wanted. One of the boys asked her for money.
She thought that they might set the dog on her if she did something. Ms. Gomez told them that she did not
have any money. One of the boys told her that "he was not playing" to which she responded that she did not
have anything on her because she did not have any pockets. Ms. Gomez turned around and starting walking
away, and then the boy without the dog told her to stop, that he was not playing with her. When she turned
around, she saw that he was pointing a gun at her. The boy continued to tell her that he wanted money from
her. Ms. Gomez was scared, and thought he might shoot her. She turned around and started to walk away. The
boy came behind her, and she felt the gun on the back of her neck. He, again, told her to stop and he was not
playing. She turned around, grabbed the front of the gun, and pushed it away from her. The boy with the dog
told her to take off her earrings, and she gave them to the boy with the gun. After giving them her earrings, she
turned around, walked home, and called the police. The police arrived and asked her what happened and to
describe the two boys. The officers took her to a location where they had two boys and asked if they were the
ones who robbed her. It was the same two boys. Ms. Gomez identified R. D. as the boy with the gun at trial.
Officer Peter Baltes, of the San Antonio Police Department, testified for the State as to whether the gun used
was a deadly weapon. Officer Baltes was told by R. D. that the gun was in his waistband. The weapon
appeared to be a black semi-automatic pistol. Officer Baltes realized it was a pellet gun when he went to place
the gun in his trunk to secure it. Officer Baltes' experience with firearms included qualifying with various types of
weapons system in the Marine Corp and firing different types of firearms as a deputy sheriff. Officer Baltes
testified that he was educated on the law in the State of Texas and was familiar with the definition of a deadly
weapon under those laws. It was Officer Baltes' opinion that the gun was a deadly weapon. If the gun was
placed to close to the human body, it would be capable of causing serious bodily injury or death, and its
intended use could cause the same. On cross-examination, Officer Baltes stated that without pellets the gun
would not be capable of causing serious bodily injury or death unless used as a club. In an unloaded state, it
was not capable of being a deadly weapon. Officer Baltes did not test the gun to see if it functioned, nor did he
know if the CO2 cartridge had any gas in it.
The jury found that Appellant had engaged in delinquent conduct of aggravated robbery. The jury sentenced
him to commitment to the Texas Youth Commission with the possible transfer to the Institutional Division of the
Texas Department of Criminal Justice for fifteen years.
In Issue One, Appellant argues the trial court erred in denying his motion for directed verdict because the
evidence was legally insufficient to support the finding that R. D. used or exhibited a deadly weapon. An
appellate challenge to the trial court's denial of a motion for a directed verdict is considered to be a challenge
to the legal sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003. In
Issue Two, Appellant argues the trial court erred in denying the motion for new trial because the evidence was
factually insufficient to support the finding that R. D. used or exhibited a deadly weapon. In reviewing the legal
and factual sufficiency of the evidence to support a deadly weapon finding, an appellate court uses the same
standards used to review the sufficiency of the evidence to support a conviction. Lee v. State, 51 S.W.3d 365,
371 (Tex.App.-Austin 2001, no pet.. We review adjudications of delinquency in juvenile cases by applying the
same standards applicable to sufficiency of the evidence challenges in criminal cases. In re M.C.L., 110 S.W.3d
591, 594 (Tex.App.-Austin 2003, no pet..
In a legal sufficiency challenge, we consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have
found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724
(Tex.Crim.App. 2007. Evidence that is legally sufficient, can still be factually insufficient. Id. In reviewing the
factual sufficiency of the evidence, we view all the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 7
(Tex.Crim.App. 2000. Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly
unjust, or the verdict is against the great weight and preponderance of the evidence. Rollerson, 227 S.W.3d at
724. Under both standards, the reviewing court must consider all of the evidence. Id. "The difference between
the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight
determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these
question ' albeit to a very limited degree.'" Rollerson, 227 S.W.3d at 724, quoting Watson v. State, 204 S.W.3d
404, 416-17 (Tex.Crim.App. 2006. There is little actual difference between the two standards of review. Id.
A person commits aggravated robbery if he commits robbery as defined in Section 29.02 of the Penal Code
and uses or exhibits a deadly weapon. Tex.Pen.Code Ann. § 29.03(a(2 (Vernon 2003. The jury charge defined
a deadly weapon as anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury. See Tex.Pen.Code Ann. § 1.07(17(B(Vernon Supp. 2008.
R. D. testified that he knew the gun was not loaded when they got it from the backyard. After Ms. Gomez, tried
walking away, R. D. told her he was "not playing" and was pointing the gun at her. He repeated his request for
money. Ms. Gomez stated she did not have any, and tried to walk away again. She was scared, and thought he
might shoot her. R. D. came up behind her and placed the gun to the back of her neck, and said he was not
playing.
Officer Baltes testified that it was a pellet gun that looked like a semi-automatic weapon. He gave his opinion
that it was a deadly weapon, and was capable of causing serious bodily injury or death. Officer Baltes stated
that in an unloaded state, it is not a deadly weapon unless used as a club, and he did not test the gun to see if
it functioned.
In Adame v. State, the Court of Criminal Appeals found that evidence showing the appellant displayed the BB
gun, and the gun was capable of causing serious bodily injury if pointed and fired at someone was sufficient to
support the jury's deadly weapon finding. Id., 69 S.W.3d 581, 582 (Tex.Crim.App. 2002. The Court held that
whether the BB gun was loaded or unloaded is not significant in the analysis because the issue is whether the
gun was capable of causing seriously bodily injury. Adame, 69 S.W.3d at 582, citing McCain v. State, 22 S.W.
3d 497, 503 (Tex.Crim.App. 2000("an object is a deadly weapon if the actor intends a use of the object in which
it would be capable of causing death or serious bodily injury". The court held that it is not necessary to place
an additional evidentiary burden on the State to prove that a BB gun was loaded at the time of the commission
of the offense, but rather the State only must show that the weapon used was capable of causing serious bodily
injury or death in its use or intended use. Adame, 69 S.W.3d at 582. With testimony that a BB gun is capable of
causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding. Id. While R. D.
testified that the gun was not loaded, the jury is the sole judge of the weight and credibility of the evidence.
Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000. The jury was free to disbelieve this self-serving
statement. The fact that the gun was found without pellets is ambiguous evidence. Appellant could have
unloaded the gun after walking away from the robbery. The fact that he pointed the gun at Ms. Gomez, placed
it against the back of her neck, and stated that he "was not playing" allowed the jury to infer that the gun was
loaded. See Delgado v. State, 986 S.W.2d 306, 308 (Tex.App.-Austin 1999, no pet.. Accordingly, the evidence
is legally sufficient to support the finding that Appellant used or exhibited a deadly weapon, and the verdict is
neither clearly wrong or manifestly unjust nor against the great weight and preponderance of the evidence.
Issues One and Two are overruled.
In Issue Three, Appellant argues the trial court erred in denying the motion for new trial because the evidence
was factually insufficient to support the jury's rejection of R. D.'s affirmative defense of duress. As a transfer
case, we must apply the precedent of the transferor court. Tex.R.App.P. 41.3. The Rules of Civil Procedure
govern juvenile proceedings unless there is a conflict within the Texas Family Code. Tex.Fam.Code Ann. §
51.17(a(Vernon 2008; In re M.P., 126 S.W.3d 228, 230 (Tex.App.-San Antonio 2003, no pet.. Rule 324
requires a motion for new trial as a prerequisite for challenging the factual sufficiency at trial. Tex.R.Civ.P. 324(b
(2. While R. D. did file a motion for new trial, it only challenged the sufficiency of the evidence of the deadly
weapon finding. The motion did not challenge the jury's rejection of R. D.'s affirmative defense. As such, the
issue was not preserved for review. See In re L.M.M., No. 04-04-00055-CV, 2004 WL 2289731 at *1 (Tex.App.-
San Antonio Oct. 13, 2004, no pet.(mem. op., not designated for publication. If the case had originated in the
Eighth Judicial District, we would have reviewed the issue since this Court has held that filing a motion for new
trial is not required to raise a factual sufficiency issue on appeal in a juvenile proceeding. See In re J.L.H., 58 S.
W.3d 242, 246 (Tex.App.-El Paso 2001, no pet.. Appellant's Issue Three is overruled.
Having overruled all of Appellant's issues, we affirm the adjudication of the trial court.