Opinion
No. 04-04-00924-CV
Delivered and Filed: December 14, 2005.
Appeal from the 386th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-Juv-01874, Honorable Laura Parker, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
K.H. was adjudicated delinquent for committing four counts of aggravated sexual assault and one count of indecency with a child. The trial court sentenced K.H. to a determinate sentence of fifteen years. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
Jurisdiction
In his first point of error, K.H. contends that the trial court did not have personal jurisdiction over him because he was not served with the State's first amended petition. Service of a later amended petition, however, is not required for the trial court to have jurisdiction when a juvenile has been properly served with the original petition. In re G.A.T., 16 S.W.3d 818, 823 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); In re S.D.W., 811 S.W.2d 739, 746 (Tex.App.-Houston [1st Dist.] 1991, no writ); R.X.F. v. State, 921 S.W.2d 888, 893 (Tex.App.-Waco 1996, no writ). The clerk's record contains proof that K.H. was served with summons, the original petition, and the grand jury certificate of approval. Accordingly, K.H.'s first point of error is overruled.
Continuance
In his second and third points of error, K.H. complains that the trial court erred in denying his motion for continuance to allow him the statutory two days to review the petition and the statutory ten days to prepare for the hearing. Although defense counsel filed a motion requesting a continuance based on the statutory provisions, the following exchange occurred at the pretrial hearing with regard to the motion:
MS. MEZA: I have a motion for continuance, Judge, that I would like to urge.
THE COURT: Okay. Let me find it here.
MS. MEZA: I may have filed it under 1562, Judge, I apologize.
THE COURT: I have that. Is it that one? Okay. So you don't object to me — I'll just strike out the number —
MS. MEZA: Yes.
THE COURT: — and put the right number?
MS. MEZA: Yes.
THE COURT: All right. Okay. Let me look at this. Okay. How much time are you requesting?
MS. MEZA: Judge, I'm asking for ten days from Friday, which is the date that I received the grand jury approval of the amended petition. At the very minimum, the two days that my client is entitled to. He just got served [with a] petition today.
THE COURT: So you would be prepared to start on Wednesday?
MS. MEZA: Yes, Judge.
THE COURT: What about selecting the jury today, and then I'll give you more time to prepare?
MS. MEZA: We could do that.
THE COURT: We have a panel on call and may or may not be able to get one later. That would be okay with you?
MS. MEZA: Yeah, we could pick the jury, Judge.
THE COURT: Okay. So pick the jury today, start on Wednesday?
MS. MEZA: Sure.
THE COURT: Okay. Then I'll grant your motion for continuance on the merits of the case until Wednesday.
Accordingly, the record reflects that the trial court granted the motion for continuance to a date upon which trial counsel agreed. K.H. cannot complain of the date on which trial proceeded when trial counsel agreed to the date. See Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 626 (Tex.App.-Dallas 2004, pet. denied); see also In re M.D.H., 139 S.W.3d 315, 320 (Tex.App.-Fort Worth 2004, pet. denied) (noting appellant must obtain an adverse ruling to preserve error for appellate review). K.H.'s second and third points of error are overruled.
Trial Amendment
In his fourth point of error, K.H. complains that the trial court erred in overruling his objection to the State's request for a trial amendment to correct his age in the petition. At the beginning of the hearing, the State requested permission to amend the petition because it contained a typographical error. The petition stated that K.H. was 16 at the time he was alleged to have committed the offense but the correct age was 13. K.H.'s trial counsel stated, "I would object to that, Judge" without stating the basis for the objection. The trial court overruled the objection. At the end of the hearing, the following exchange occurred:
MS. MEZA: Judge, I think there was an issue with amending the petition.
MS. DAVIS: I'm sorry?
MS. MEZA: You were going to make a motion to amend the petition.
MS. DAVIS: The date of the child being 16 in the petition, we would like to amend it to be 13 at the time of the offense, Your Honor.
THE COURT: All right. That's granted.
Because defense counsel's first objection to the amendment was not specific and defense counsel failed to object when the State later moved to amend the petition, K.H. failed to preserve any complaint regarding the amendment for appellate review. See Tex.R.App.P. 33.1. Furthermore, the strict prohibition against amendment of pleadings in criminal cases is not applicable in juvenile proceedings, and the State is permitted to amend its petition at such time, and under such circumstances, as are basically fair to the minor. Carrillo v. State, 480 S.W.2d 612, 615 (Tex. 1972); In re G.A.T., 16 S.W.3d at 823. Nothing in the record indicates that the correction of K.H.'s age at the time of the offense was unfair to K.H.K.H.'s fourth point of error is overruled.
Custodial Interrogation
In his fifth, sixth, and seventh points of error, K.H. contends that the trial court erred in admitting the statement he gave to a sexual abuse investigator with the Texas Department of Family and Protective Services ("CPS") because it was a product of custodial interrogation. In Wilkerson v. State, the Texas Court of Criminal Appeals held that "only when a CPS investigator (or other non-law enforcement state agent) is acting in tandem with police to investigate and gather evidence for a criminal prosecution are [ Miranda] warnings required" because only then has a custodial interrogation occurred. 173 S.W.3d 521, 523 (Tex.Crim.App. 2005). To determine if this type of tandem relationship exists, we consider: (1) information about the relationship between the police and the CPS worker; (2) the CPS worker's actions and perceptions; and (3) K.H.'s perceptions of the encounter. Id. at 530-31.
In this case, there is no evidence to support the existence of a tandem or consensual relationship. The CPS worker contacted K.H.'s mother and requested an interview. The CPS worker did not threaten K.H.'s mother in requesting the interview. K.H., his mother, and his sister drove themselves to the office for the interview. K.H.'s mother allowed the worker to interview K.H. while she watched the complainant's videotaped statement. The CPS worker testified that the purpose of K.H.'s visit to her office was to interview him regarding allegations of sexual abuse made against him, provide him with the opportunity to respond, and to determine if K.H. was possibly a victim of sexual abuse. The record contains no evidence that any relationship had developed between the police and the CPS worker with regard to the allegations against K.H. The record also does not contain any evidence that the CPS worker considered herself to be acting in tandem with the police or that K.H. held such perception. Furthermore, the CPS worker testified that she did not make any promises or threats to obtain K.H.'s statement, and K.H. reviewed, corrected, and signed it. Accordingly, the trial court did not abuse its discretion in admitting K.H.'s statement to the CPS worker. K.H.'s fifth, sixth, and seventh points of error are overruled.
Sufficiency of the Evidence
In his eighth, ninth, tenth, eleventh, and twelfth points of error, K.H. challenges the sufficiency of the evidence to support findings that he engaged in various sexual acts and that he acted with the intent to arouse and gratify his sexual desire in having the complainant touch his genitals. We apply the well established criminal standards of review applicable to legal and factual sufficiency challenges in appeals from juvenile adjudications. See, e.g., In re A.C., 949 S.W.2d 388, 390 n. 1 (Tex.App.-San Antonio 1997, no writ); In re A.S., 954 S.W.2d 855, 858 (Tex.App.-El Paso 1997, no writ); R.X.F. v. State, 921 S.W.2d at 889. The testimony of a victim standing alone, even when the victim is a child, is sufficient to support a sexual assault finding. Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.-San Antonio 1994, pet. ref'd).
In this case, the complainant, who was eight at the time of the offenses, testified to each of the sexual acts which K.H. was accused of committing. Although there were certain inconsistencies in the testimony, we do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of the fact. In re S.S., 167 S.W.3d 108, 111 (Tex.App.-Waco 2005, no pet.); In re J.B.M., 157 S.W.3d 823, 826 (Tex.App.-Fort Worth 2005, no pet.). The complainant's testimony was consistent with the history given when the sexual assault examination was completed. Furthermore, K.H. admitted in his statement to certain sexual acts. With regard to the element of intent to arouse or gratify, the intent to arouse or gratify can be inferred from the conduct, remarks, and circumstances surrounding the acts. Cate v. State, 124 S.W.3d 922, 931 (Tex.App.-Amarillo 2004, pet. ref'd) Although K.H.'s brief contains numerous references to the complainant's testimony that his penis was not hard or that she could not remember his penis getting hard, there is no requirement that a male offender's penis be erect to establish an intent to arouse or gratify. Gregory v. State, 56 S.W.3d 164, 171 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd). The record establishes that K.H. requested that the complainant perform various sexual acts, and his intent to gratify his sexual desire can be inferred from his requests and actions. K.H.'s eighth, ninth, tenth, eleventh, and twelfth points of error are overruled.
Disposition
In his thirteenth point of error, K.H. contends that the trial court abused its discretion in assessing a fifteen year determinate sentence. We review a trial court's juvenile disposition order under an abuse of discretion standard divorced from legal and factual sufficiency standards. In re K.T., 107 S.W.3d 65, 67 (Tex.App.-San Antonio 2003, no pet.).
The evidence at trial demonstrated a pattern of sexual abuse by K.H. against an eight-year-old girl who remains in counseling. Both of K.H.'s parents initially denied that K.H. had engaged in the sexual conduct that was alleged even after K.H. provided a statement to the CPS caseworker. Although K.H.'s father appeared to accept the jury's verdict, K.H.'s mother, who was the primary caretaker, continued to believe that K.H. "did not do it." K.H.'s mother testified that she worked a shift from 3:00 p.m. to 11:00 p.m. but that she could adjust her schedule if needed. The probation officer testified that the willingness to accept that help is needed is important to the successful completion of sex offender treatment. The prosecutor commented on the high quality of treatment programs that would be available to K.H. at TYC and the support K.H. would receive at TYC. The trial court stated that the reasons for its decision were "the nature and circumstances of the offense, the number of incidents of sexual assault and threats made, lack of support and supervision in the home, that your treatment needs require removal from your home in order to receive sex offender therapy." The trial court further stated that "the length of the sentence is meant to motivate you to do well at TYC, so that you do not end up having to go to prison, and that you get an opportunity to rehabilitate." In view of the nature of the offense and the need for K.H. to obtain the best treatment possible, we cannot conclude that the trial court abused its discretion in assessing a fifteen year determinate sentence. See In re T.K.E., 5 S.W.3d 782, 786 (Tex.App.-San Antonio 1999, no pet.) (affirming disposition to TYC based, in part, on the need to obtain the best treatment possible for juvenile who engaged in aggravated sexual assault).
Conclusion
The trial court's judgment is affirmed.