By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
No proof to rebut statement in summons that
petition was attached to it (99-4-24)
On October 28, 1999, the Austin Court of Appeals held that more than simply
an assertion that the petition was not attached to the summons is required to
show that it was not attached. There is no requrement, contrary to appellant’s
argument, that the petition be attached to the return of service.
99-4-24. In the Matter of M.A., UNPUBLISHED, No. 03-98-00682-CV, 1999 WL 977071,
1999 Tex.App.Lexis ___ (Tex.App.—Austin 10/28/99)[Texas Juvenile Law 114 (4th
Edition 1996)].
Facts: Appellant M.A. waived his right to a jury trial and pleaded not true to
the charge of robbery. See Tex. Penal Code Ann. § 29.02 (West 1994). The
juvenile court adjudged that M.A. had engaged in delinquent conduct by
committing the charged offense and placed him on probation for one year. In two
issues for review, M.A. contends that the evidence is factually insufficient to
prove that he committed the robbery and that the trial court lacked jurisdiction
because the summons was defective. We will affirm the trial court's judgment.
On February 16, 1998, the complainant, J.M., was riding his bicycle when he was
approached by M.A., then age thirteen, and two other juveniles. According to J.M.,
M.A. grabbed the handlebars of the bicycle and pushed to the left, causing J.M.
to fall. J.M. locked his legs around the frame of the bicycle but was unable to
retain hold of it. M.A. and one of the other boys rode the bicycle down the
street with the third boy running behind them. J.M. chased the boys down the
street but could not catch them. He then went to his home where he informed his
mother what had happened. His mother drove J.M. around the neighborhood to see
if they could find the boys. Unsuccessful, they returned home, called the
police, and reported the incident.
On or about February 19, 1998, the police stopped M.A. while he was riding the
bicycle. J.M. was called to the scene where he identified his bicycle and M.A.
as one of the boys who had stolen it. The police took M.A. into custody.
Held: Affirmed.
Opinion Text: Lack of jurisdiction
In his second issue, M.A. contends that the trial court lacked jurisdiction
because there is no affirmative showing in the record that a copy of the
petition accompanied the summons. Section 53.06 of the Texas Family Code governs
service of process in juvenile proceedings. See Tex.Fam. Code Ann. § 53.06
(West 1996).
Section 53.06 provides in relevant part:
(a) The juvenile court shall direct issuance of a summons to:
(1) the child named in the petition;
...
(b) ... A copy of the petition must accompany the summons.
Id.
If the petition were not attached to the summons, service would be improper, and
the trial court would lack jurisdiction. See In re Edwards, 644 S.W.2d 815, 820
(Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). However, the law presumes
that service is proper. See Sauve v. State, 638 S.W.2d 608, 610 (Tex.App.--Dallas
1982, pet. ref'd). To rebut this presumption, an accused must offer evidence of
corroborating facts and circumstances. See id. Bald claims of irregularity are
not enough. See id; see also Polanco v. State, 914 S.W.2d 269, 271 (Tex.App.--Beaumont
1996, pet. ref'd).
M.A. offers nothing more than his conclusory statement in an attempt to rebut
the presumption of proper service. Nothing indicates that the petition was not
delivered along with the summons. In fact, the summons states that a copy of the
petition is attached, and M.A. has the burden to show that the petition was not
in fact attached to the summons he received. M.A.'s only evidence is that a copy
of the petition was not filed with the return. However, section 53.06 of the
Family Code requires that the petition be attached to the summons, not to the
return. See Tex.Fam. Code Ann. § 53.06(b). When a statute is clear and
unambiguous, as is the case here, it is not for the courts to add or subtract
from such a statute because the Legislature must be understood to mean what it
has expressed. See State v. Baize, 981 S.W.2d 204, 207 (Tex.Crim.App.1998)
(citing Coit v. State, 808 S.W.2d 473, 475 (Tex.Cr.App.1991)). Because M.A. has
not demonstrated a defect in the summons or its service, we overrule his second
point of error.
In his first issue, M.A. argues that the evidence is factually insufficient to
support the trial court's adjudication. Because he does not raise a legal
sufficiency challenge, M.A. in effect concedes the evidence is legally
sufficient to prove that he committed the offense. See Stone v. State, 823
S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd untimely filed).
When conducting a factual sufficiency review, we consider all evidence equally,
including the testimony of defense witnesses and the existence of alternative
hypotheses. See Orona v. State, 836 S.W.2d 319, 321 (Tex.App.-- Austin 1992, no
pet.). This Court, however, does not substitute its judgment for that of the
trial court and will set aside an adjudication only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. See
Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Furthermore, an
appellate court may not reverse the trial court's decision simply because it
disagrees with the result. See Cain v. State, 958 S.W.2d 404, 407
(Tex.Crim.App.1997).
By his factual sufficiency complaint, M.A. in effect attacks J.M.'s credibility.
M.A. argues that the only evidence to support the adjudication is J.M.'s
testimony and that J.M.'s "tender age" and the "shocking
nature" of the theft of his bicycle render his testimony unreliable. At the
time of trial, approximately six months after the offense, J.M. was thirteen
years of age. M.A. further asserts that J.M.'s testimony was not credible
because, among other things, J.M. did not tell school officials that one of his
schoolmates had stolen his bicycle.
The trial court decides whether a child is competent to testify and whether his
testimony is reliable. See Kipp v. State, 876 S.W.2d 330, 333
(Tex.Crim.App.1994); see also Tex.R.Evid. 601(a)(2). A victim's testimony, if
believed, is sufficient evidence to support identification of the accused as the
offender. See Green v. State, 510 S.W.2d 919, 922 (Tex.Crim.App.1974). In a
bench trial, the trial court as fact finder is the sole judge of a witness's
credibility and the weight to be given the testimony. See Benoit v. Wilson, 150
Tex. 273, 239 S.W.2d 792, 797 (Tex.1951); K-Mart Corp. v. Pearson ex. rel.
Ramos, 818 S.W.2d 410, 413 (Tex.App.--Houston [1st Dist.] 1991, no writ). The
juvenile court expressly stated that J.M. was a "very credible
witness," that he believed J.M., and that he did not believe M.A. or his
mother, who testified on M.A.'s behalf.
In addition to J.M.'s testimony, the adjudication is supported by other evidence
that M.A. took the bicycle. During the district attorney's cross- examination,
M.A. admitted to taking J.M.'s bicycle, as reflected in the following excerpt:
Q. Did you tell [the police] that you didn't take the bike?
A. Yes, sir.
Q. Okay. And in terms of this bike, isn't it really true that you and your
friends took this bike from [J.M.]?
A. I suppose so.
Q. Yes. That's true; right?
A. (Nods head affirmatively.)
Further, M.A. was found riding J.M.'s bicycle only a few days after it was
stolen. Taking into account all evidence equally, we hold that the evidence is
factually sufficient to prove M.A. committed the offense; the adjudication is
not so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. We overrule M.A.'s first complaint.