Opinion
No. 4-05-00539-CR
Delivered and Filed: June 14, 2006. DO NOT PUBLISH.
Appeal from the 81st Judicial District Court, Karnes County, Texas, Trial Court No. 04-08-00135-Crk, Honorable Ron Carr, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
John Henry Jackson is confined in the Connally Unit of the Texas Department of Criminal Justice, Institutional Division. Jackson was convicted by a jury of harassment by a person in a correctional facility and sentenced by the court to 30 years imprisonment as an habitual offender; that sentence was ordered to run consecutive to another 30-year sentence for aggravated assault on a correctional officer. 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. 1. In his first issue, Jackson asserts the evidence is legally and factually insufficient to support the jury's finding that he caused human urine, as opposed to animal urine, to contact the correctional officer as alleged in the indictment. See Tex. Pen. Code Ann. § 22.11 (Vernon Supp. 2005). The indictment alleged that Jackson "with intent to harass, alarm or annoy Adelia Perez caused the said Adelia Perez to contact the urine of another person or the urine of the defendant." To determine legal sufficiency, we view the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In conducting a factual sufficiency review, we view "all the evidence in a neutral light, both for and against the finding, and set aside the verdict if `proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.'" Vodochodsky, 158 S.W.3d at 510. Jackson argues the evidence is insufficient because none of the witnesses testified the urine that was thrown on Officer Perez came from him or another human. It is well settled, however, that a jury may draw reasonable inferences from the evidence before it. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The evidence was undisputed that at the time of the offense Jackson was confined in a single-man cell in administrative segregation, and he was not allowed to leave the cell unless handcuffed and escorted by an officer. Officer Perez and another correctional officer testified that Jackson threw the liquid contents of a white plastic cup through a slot in his cell door, hitting Perez in the left arm, face, hair and eye with a liquid that smelled like urine. Investigator Romano testified he observed the liquid on Perez's face, hair and shirt, and that it had a strong odor of urine. John Yarber, a chemist who tested Officer Perez's shirt two days later, testified a sample taken from the left shoulder of the uniform was positive for urea, an accepted marker for mammalian urine. Yarber agreed it was possible for a person to get urine on their hands or a piece of clothing when they use the restroom and then transfer it to another article of clothing. There was no evidence presented that would support a reasonable inference that the urine that contacted Perez came from a source that was not human. Based on the trial testimony, the jury could draw a reasonable inference that the urine that was thrown on Perez was human urine from Jackson based on the undisputed evidence that he was kept in a single-man cell with no unsupervised contact with others. We conclude that the evidence is legally and factually sufficient to support Jackson's conviction for harassment under § 22.11 of the Texas Penal Code. His first issue is overruled. 2. In his second issue, Jackson asserts the trial court erred in granting the State's motion to dismiss two of the three pending cases against him after voir dire but before the jury was sworn; he claims the jury was tainted by their knowledge of the two other offenses gained during voir dire. During voir dire, both the State and defense discussed the fact that Jackson was charged with three separate harassment offenses and questioned the panel to determine whether they could separately consider each case. After the jury was selected, the court directed the parties and the jury to return later in the week for trial. On the scheduled trial date, before the jury was sworn, the State moved to dismiss two of the three cases on the ground that a witness who was crucial to the chain of custody in two of the cases was unavailable due to severe illness. Jackson objected to the dismissal arguing the jury was tainted, and requested a continuance. The court denied the continuance, granted the dismissals, and instructed the jury they would only be deciding one case because the State had dismissed two of the three cases and they "should not consider those other cases for any purpose whatsoever." The State is entitled to dismiss a criminal action at any time as long as the trial court consents to the dismissal. Tex. Code Crim. Proc. Ann. art. 32.02 (Vernon 1989); Smith v. State, 70 S.W.3d 848, 850-51 (Tex.Crim.App. 2002); Hughes v. State, 16 S.W.3d 429, 431 (Tex.App.-Waco 2000, no pet.). If the dismissal occurs before jeopardy attaches, the State may subsequently re-indict and prosecute the defendant for the same offense. Proctor v. State, 841 S.W.2d 1, 4 (Tex.Crim.App. 1992) (jeopardy attaches in a jury trial when the jury is empaneled and sworn); Brown v. State, 900 S.W.2d 805, 807 (Tex.App.-San Antonio 1995, pet. ref'd). We review a court's dismissal for abuse of discretion. State v. Mungia, 119 S.W.3d 814, 815 (Tex.Crim.App. 2003). Here, there is nothing in the record to indicate the State acted in bad faith by failing to subpoena the severely ill witness or by moving to dismiss the two indictments based on the witness's unavailability. See Siev v. State, No. 02-02-00366-CR, 2003 WL 21666604 at * 2-3 (Tex.App.-Fort Worth July 17, 2003, no pet.) (holding state did not act in bad faith in moving to dismiss initial indictment based on unavailability of police officer as essential witness) (not designated for publication). Ordinarily, dismissal of two of three pending cases joined for trial would inure to a defendant's benefit. Even if some prejudice arose from the jury panel being informed there were originally three separate harassment cases against Jackson, any prejudice was cured by the court's instruction to the jury that they could not consider the dismissed cases for "any purpose whatsoever." See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); see also Lemmons v. State, 75 S.W.3d 513, 527-28 (Tex.App.-San Antonio 2002, pet. ref'd). Based on the record, we can not say the trial court abused its discretion in granting the State's motion to dismiss two of the three indictments. Jackson's second issue is overruled. The trial court's judgment is affirmed.