In the matter of A.C., a juvenile--Appeal from County Court of Brown County

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State: Texas

Court: Texas Northern District Court

Docket No: 11-09-00164-CV

Case Date: 09/08/2011

Plaintiff: Devin Eric Mims

Defendant: The State of Texas--Appeal from 124th District Court of Gregg County

Preview:Opinion filed April 7, 2011

In The

Eleventh Court of Appeals
__________

No. 11-09-00164-CV __________

IN THE MATTER OF A.C., A JUVENILE

On Appeal from the County Court Brown County, Texas Trial Court Cause No. 2133

MEMORANDUM OPINION The jury found that A.C. engaged in delinquent conduct by committing the offense of aggravated assault. The county court, sitting as a juvenile court, committed A.C. to the Texas Youth Commission for an indeterminate period of time not to exceed his twenty-first birthday. We affirm. I. Background Facts T.N. lived in the same neighborhood as A.C. One evening, T.N. was riding his bicycle home when he went down an alley behind A.C.'s house. T.N. testified that A.C. and A.C.'s brother knocked him off his bicycle and hit him repeatedly. Eventually, A.C. and his brother

stopped and went away. T.N. testified that he was bleeding a lot from his nose and mouth and that he was missing a few teeth. T.N. got back on his bicycle and rode home. At home, T.N. told his grandmother that his injuries were caused by a bicycle accident. T.N. explained that he lied to his grandmother because he was afraid of being beaten up again but that his grandmother did not believe him. She took him to the emergency room in

Brownwood. Hospital staff told them that T.N. would have to go to another hospital. They then drove to Cook Children's Medical Center in Fort Worth. From there, he was sent to John Peter Smith Hospital for surgery. As a result of the assault, T.N. lost three teeth and had a broken nose and a cracked jaw. T.N. told medical personnel at all three hospitals that he had been in a bicycle accident. A few days later, T.N. revealed to his family that A.C. and A.C.'s brother assaulted him. They contacted the police. Officer Robert Mullins of the Brownwood Police Department investigated. Although he could not rule an accident out, Mullins did not think T.N.'s injuries were consistent with a bicycle accident because they were too centralized. T.N. told Officer Mullins that he was afraid of retaliation from A.C. T.N. claimed that there were three other people in the alley at the time of the assault. Two of these people testified at the adjudication hearing. Both stated that they saw T.N. in the alley that night, but they also testified that they did not see or hear T.N. being assaulted. The defense called several witnesses to testify that T.N. had given differing stories about the incident. T.N. admitted that he told several people that his injuries were caused by a bicycle accident. He also admitted telling people that his family forced him to say that his injuries were caused by an assault. Finally, there was testimony that T.N. was mentally slow and easily manipulated. The jury found that A.C. engaged in delinquent conduct by intentionally, knowingly, or recklessly causing serious bodily injury to T.N. by striking him in the face. II. Issues A.C. raises five issues on appeal. First, he argues that the trial court erred by failing to grant a hearing on his motion for new trial alleging newly discovered evidence. In his second and third issues, he argues that his due process rights were violated when the trial court instructed the jury to find that he had engaged in delinquent conduct without requiring it to be convinced beyond a reasonable doubt of all of the required allegations. In his fourth issue, A.C.
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contends that the trial court erred by failing to include a definition of serious bodily injury in the jury charge. Fifth, A.C. argues that the trial court erred by failing to grant a hearing on his motion for new trial alleging jury misconduct. III. Did the Trial Court err by Failing to Hold a Hearing on A.C.'s Motion For New Trial? A.C. filed a motion for new trial alleging newly discovered evidence and jury misconduct and requested an evidentiary hearing. The trial court did not hold a hearing. A.C. argues that this was error. A. Newly Discovered Evidence. A.C. alleged he was entitled to a new trial because of newly discovered evidence and provided three supporting affidavits. A.C. alleged that this evidence was unknown to him at the time of trial, that his failure to discover the evidence was not owing to a lack of due diligence, that the evidence would probably bring about a different result at a new trial, and that it was not cumulative, corroborative, impeaching, or collateral. First, David Franklin Chamberlain, a neighbor of A.C., testified by affidavit that, on the evening of the alleged assault, he saw T.N. have a bicycle accident in the alley in which he flew over the bicycle's handlebars and hit the ground face first. Chamberlain stated that he did not come forward sooner because he learned only after the adjudication hearing that A.C. was on trial for causing T.N.'s injuries. Second, Arely Guadalupe Sandoval, a student at Brownwood High School and a defense witness at the adjudication hearing, submitted an affidavit alleging that, while he was waiting to testify, he saw T.N. exiting the courthouse. T.N. met his brother at the door. Sandoval stated that T.N.'s brother asked, "Did you lie?" T.N. responded, "Yes, but it's not working."

Sandoval believed that T.N. meant that he had lied in court. Sandoval immediately told A.C.'s father what he had heard but did not tell the county attorney or A.C.'s attorney because he did not know that he was allowed to do so. Third, Anthony Sanchez Sr., the father of a defense witness, submitted an affidavit stating that his former girlfriend, Sherry Nichols, was T.N.'s aunt. Sanchez and Nichols have a daughter. Their daughter is married and has a daughter of her own. After Sanchez separated from Nichols, he claimed that she accused him of molesting their daughter. Sanchez met with Brownwood Police Department officers and established that he had no access to his daughter during the time period in which the molestation allegedly occurred. Sanchez claimed that he
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learned Nichols accused him of molestation because her mother, T.N.'s grandmother, told her to do so. Thus, while he had no knowledge of the case, he was wary of any allegations coming from T.N.'s family. Moreover, just before trial, his daughter threatened to prohibit any visitation with his granddaughter if he allowed his son to testify at A.C.'s adjudication hearing. This threat reinforced his belief that T.N. may have been influenced to make false allegations against A.C. In 2009, the legislature amended TEX. FAM. CODE ANN.

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