No. 05-04-01470-CR
Opinion issued July 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-40675-VM. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice WHITTINGTON.
A jury convicted Jackie Lee Boyd of retaliation and, after finding two enhancement paragraphs true, assessed punishment at forty years' confinement. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
On April 16, 2003, Eric Harris, a Yellow Cab Company driver, picked up appellant and another man near Fair Park. Appellant, speaking with a Jamaican accent, said the other man was his father and appellant wanted to go to his job in Mesquite to pick up a check. Appellant said he would pay the fare when he got his check. Harris drove the men to Ronnie Mac Auto in Mesquite. Appellant went inside the building and the other man stayed in the cab. Appellant returned to the cab a short time later without a check or money to pay the fare. Appellant said he could pay Harris after appellant went to another building to get the money. Harris drove appellant and the other man to a building across the street. Appellant went inside the building while the other man remained in the cab. After waiting in his cab for ten minutes, Harris went inside the building. Harris saw appellant talking to a woman at the counter, then appellant walked away from the woman. Harris asked the woman if she was going to pay the cab fare. She said no. Harris used the woman's telephone to call the police, then returned to the cab. Appellant told Harris that he was not getting back into the cab, then appellant walked away. The other man got out of the cab and also walked away. Harris followed appellant in his cab. Harris testified that when the police arrived, he saw them arrest appellant. Mesquite police officer Ronald Parker had received a dispatch call that a cab driver had dropped someone off at Ronnie Mac Auto and the person had left the location without paying. When Parker arrived on the scene, he saw a cab following appellant. Parker stopped and talked to appellant. Appellant spoke with a Jamaican accent and stated he was trying to get some money to pay the cab driver. Appellant gave Parker a photo-identification card bearing the name of "Kevin Clements." Parker testified the photograph on the card did not match appellant. Parker questioned appellant about the identification, and appellant said his name was "Calvin Clements." Parker searched appellant for weapons and found folded papers in appellant's back pocket that had the name "Jackie Boyd" on them. The papers listed an address that was about three blocks from Ronnie Mac Auto. Appellant stated he was holding the papers for a friend. Parker arrested appellant for theft of service under fifty dollars. Parker testified he explained to appellant that ordinarily he would issue a Class C misdemeanor citation to someone who produced proper identification. However, because appellant failed to identify himself and insisted his name was Calvin Clements, despite the conflicting identification papers found on appellant's person, appellant would have to go to the jail and be fingerprinted. At the jail, Parker learned appellant's true name. When Parker told appellant that he knew appellant's true name, appellant immediately became belligerent and stopped speaking with a Jamaican accent. Appellant became angry and said, "I'm going to find that cab driver and kick his ass. I know where he lives in South Dallas. Whenever I get out, I'm going to beat that cab driver's ass." Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened to harm Harris by an unlawful act in retaliation for or on account of Harris's status as a prospective witness. See Tex. Pen. Code Ann. § 36.06(a)(1) (Vernon Supp. 2004-05). Discussion
Appellant argues the evidence is legally and factually insufficient to show Harris was a prospective witness. Appellant contends that because the underlying offense was a Class C misdemeanor, it probably never would have gone to trial; thus, Harris would not have been called as a witness. The State responds that the evidence is legally and factually sufficient to support the conviction because appellant threatened to harm Harris, who was a prospective witness against appellant. Appellant does not dispute that he failed to pay the cab fare, Harris reported that failure to pay to the police, or that appellant threatened Harris for making the report. A "prospective witness" is any person who may testify in an official proceeding. See Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App. 1993). Formal proceedings need not be initiated. See id. Any person who is involved in an offense with a defendant, who sees the defendant committing an offense, or who hears the defendant discuss committing an offense is a prospective witness in the prosecution of that defendant because the witness may testify. See Ortiz v. State, 93 S.W.3d 79, 86 (Tex.Crim.App. 2002). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to show Harris was a prospective witness and thus supports appellant's conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.