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In re R.D.

The jury's single finding that the juvenile respondent did engage in delinquent conduct by committing aggravated robbery subsumed its rejection of respondent'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, respondent made a general challenge to the legal and factual sufficiency of the evidence to support the jury's delinquency finding. That respondent followed this general complaint with a more specific one aimed at the deadly-weapon instruction does not constitute a waiver in these circumstances. Texas Supreme Court, No. 09-0343, 02-12-2010

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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.

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