Opinion
No. 10-02-00311-CR.
Opinion delivered and filed January 17, 2007. DO NOT PUBLISH.
Appeal from the 272nd District Court Brazos County, Texas Trial Court # 29258F-272. (Justice Vance concurs in the judgment) Affirmed.
Before CHIEF JUSTICE GRAY, JUSTICE VANCE, AND JUSTICE REYNA.
MEMORANDUM OPINION
A jury convicted Raymond Edward Olivas of Aggravated Assault (Retaliation) by threat and of Stalking. He was sentenced to 35 years in prison and a $5,000 fine on the aggravated assault charge. He was sentenced to 6 years in prison and a $1,000 fine on the stalking charge. In a previous opinion, we reversed the aggravated assault (retaliation) by threat conviction and rendered a judgment of acquittal. Olivas v. State, No. 10-02-00311-CR, 2004 Tex. App. LEXIS 10131 (Tex.App.-Waco Nov. 10, 2004), rev'd in part and remanded. We affirmed the trial court's judgment of conviction on the stalking charge. Id. The State challenged our determination that the evidence was legally insufficient to prove the element of threat in the aggravated assault charge. The Court of Criminal Appeals recently reversed our judgment in this appeal based on the State's challenge and remanded the case for our consideration of Olivas's remaining issues. Olivas v. State, No. PD-1936-04, 2006 Tex. Crim. App. LEXIS 1967 (Tex.Crim.App., Oct. 4, 2006). Our original judgment included an affirmance of the stalking conviction as well. The stalking conviction was not challenged by either party in a petition for discretionary review. Additionally no other issue that we addressed and resolved in our opinion was challenged by either party. Consequently, our previous opinion resolving Olivas's second, third, fourth, and fifth issues disposes of those issues but a new judgment will issue regarding both convictions, aggravated assault (retaliation) by threat and stalking. The only remaining issue to decide in this appeal is whether the evidence is legally and factually sufficient to support two elements of aggravated assault (retaliation) by threat and whether the evidence is factually sufficient to support another element of the same offense. After reviewing the record, we now affirm the conviction of aggravated assault (retaliation) by threat.
LEGAL AND FACTUAL SUFFICIENCY
Olivas begins his appellate brief by arguing that the evidence is legally and factually insufficient to support his conviction for aggravated assault (retaliation) by threat. Specifically, he argues the evidence is legally and factually insufficient to prove three elements of the offense:1. threatens another with imminent bodily injury;
2. in retaliation against another; and
3. Olivas was the perpetrator of the assault.See TEX. PENAL CODE ANN. § 22.02(a)(2), (b)(3) (Vernon Supp. 2006). Standard of Review We review sufficiency of the evidence challenges using the appropriate standards of review. See Jackson v. Virginia, 443 U.S.307, 318-319, 61 L.Ed.2d 560, 99 S.Ct.2781(1979) (legal sufficiency); Watson v. State, 204 S.W.3d 404, 415-20 (Tex.Crim.App. 2006) (factual sufficiency). Threat Olivas first argues that the evidence was both legally and factually insufficient to support the element of "threaten with imminent bodily injury" because Tunnell did not perceive the threat. As the Court of Criminal Appeals found, the evidence was legally sufficient to support this element. Olivas v. State, 203 S.W.3d 341 (Tex.Crim.App. 2006). We need only now to review Olivas' factual sufficiency argument as to this element. Olivas claims that the evidence is factually insufficient because the victim, Kim Tunnell, did not observe a firearm and did not perceive that Olivas was pointing a firearm in her direction. There is no requirement that Tunnell observe the firearm or perceive that Olivas was pointing it in her direction. At most, the State was required only to prove that Tunnell perceived a threat and that Olivas did, in fact, use or exhibit a firearm while making that threat. Id. at 350. Two weeks prior to the shooting, Olivas hit the passenger window of Tunnell's pickup with a gun in his hand. On the day of the offence, a bullet penetrated the extended cab portion of the driver's side of Tunnell's pickup and came to rest in a blanket in the back seat. A bullet hole was found in the passenger door jam of the car Olivas was driving, and live ammunition was also found in the car. Olivas later admitted to "trying to drive 60 miles an hour and shoot at the same time." Further, the Court of Criminal Appeals set out the evidence regarding Tunnell's perception of a threat by Olivas. Without reiterating all that evidence but still viewing all the evidence under the appropriate standard, the evidence was factually sufficient to prove that Tunnell perceived a threat and that Olivas did, in fact, use or exhibit a firearm while making that threat. Retaliation Next Olivas contends that the evidence was both legally and factually insufficient to prove that Olivas committed the aggravated assault against Tunnell "in retaliation against or on account of the service of Kim Tunnell as a witness or prospective witness or informant or person who reported the occurrence of a crime." Tunnell testified that Olivas began calling frequently and driving by her house in July of 2001. She eventually stopped answering her phone and Olivas would leave voicemail messages. The calls became such a problem that in November of 2001, she felt it was necessary to involve the local law enforcement. The calls had become more frequent and more harassing in nature even though she had asked Olivas several times to stop. On November 27, 2001, she began recording the voice messages to take to Detective Carver of the Bryan Police Department. One of the messages recorded was made the day before. In that message, Olivas demanded, "What are you, trying to bring the police into this shit again — motherf___g case, Kim?" The message continued, "This shit again. Start a new f___g case, Kim. Is that what your bullshit is all about? — worst thing you could do." After taking the tape to the police department, Tunnell was advised to go directly to an attorney's office and get a restraining order against Olivas. As she pulled in front of the attorney's office, she noticed Olivas walking briskly toward her. Tunnell testified that she put her pickup in reverse and pulled into the street. Olivas then struck her passenger window with a pistol in the palm of his hand. Tunnell drove around the block and back to the attorney's office where the police were called. While Tunnell was talking with police, Olivas left another message on her voice mail: "I think it's kind of obvious what you're doing. You and your little boyfriend Eric, over at Chad's for a protective order. . . How simple was that to figure out — you want to make it difficult, don't you? Quit this bullshit — that night — playing games. You want me out of the way and have your old boyfriend. . . ." Two weeks later, Olivas shot Tunnell's pickup while she was driving it, which is the offense that is the subject of this appeal. Olivas argues there is no evidence or insufficient evidence to show that Tunnell would be used as a witness in any prosecution, was a prospective witness, or was an informant, or had reported the occurrence of a crime, and that Olivas knew of these facts. The evidence shows that Tunnell was at least a prospective witness and, by virtue of the messages left on Tunnell's voicemail, Olivas believed she was going to the police and also seeking a restraining/protective order against him. Thus, viewing the evidence under the appropriate standards, the evidence is both legally and factually sufficient to support the element of retaliation. Identity Olivas further argues that the evidence was both legally and factually insufficient to prove that he was the perpetrator of the aggravated assault. He points out that Tunnell admitted she could not determine the identity of the person driving the car as it came up beside her, but suspected that it was Olivas driving because she identified the car as belonging to Olivas's mother. However, Officer Gabe Alvarez testified that Tunnell told him that as the car pulled in behind her in the parking lot of a laundromat, she looked back, saw Olivas's car, and saw Olivas. Tunnell stated that Olivas often drives his mother's car. Olivas also directs us to the testimony of Officer Steve Carver who stated that Tunnell could not directly identify Olivas as the driver but only identified Olivas's silhouette. But Tunnell also unequivocally testified that as the car proceeded by her parked pickup at the laundromat, she could see who was driving the car and that the driver was Olivas. Arlene Olivas, Olivas's mother, testified that she was out of town during part of December 2001. She also stated that she allows Olivas and others to drive the car. Officer Sayers testified that when he informed Olivas that they had found the car and that Olivas had shot his mother's car, Olivas responded, "Well, goddamn, if you were trying to drive 60 miles an hour and shoot at the same time, you would probably do it, too." Viewing the evidence under the appropriate standards, the evidence is both legally and factually sufficient to support the element that Olivas was the perpetrator of the aggravated assault. Olivas's first issue is overruled.
CONCLUSION
Having overruled Olivas's remaining issue regarding the aggravated assault (retaliation) and having previously overruled every other issue properly presented on appeal, we affirm the trial court's judgment of conviction for aggravated assault (retaliation) by threat and the trial court's judgment of conviction for stalking.A prospective witness is a person who may testify in an official proceeding. Ortiz v. State, 93 S.W.3d 79, 86 (Tex.Crim.App. 2002).