Opinion
No. 10-02-00311-CR
Opinion delivered and filed November 10, 2004. DO NOT PUBLISH.
Appeal from the 272nd District Court Brazos County, Texas, Trial Court # 29258F-272. Affirmed in part, reversed and rendered in part.
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. We reverse the conviction and render a judgment of acquittal on the aggravated assault (retaliation) by threat charge. The judgment of conviction on the stalking charge is affirmed. Because the fourth and fifth issues are related and the fourth issue could dispose of the entire appeal, we begin our analysis with Olivas's fourth and fifth issues.
RE-INDICTMENT
In his fourth issue, Olivas contends the trial court erred when it allowed the State to proceed to trial on the re-indictment after it had read the original indictment. Initially, the State did not read the re-indictment to the jury, and Olivas did not plead to it. It is well-settled that upon learning of the failure to read an indictment, the indictment is read to the jury, the accused enters a plea and the State reintroduces the evidence; or the parties may stipulate to the evidence. Warren v. State, 693 S.W.2d 414, 416 (Tex.Crim.App. 1985). The record reflects that this procedure occurred. The trial court did not err, and Olivas's fourth issue is overruled. In his fifth issue, Olivas contends his rights under the Double Jeopardy clauses to the United States and Texas Constitutions were violated when the trial court allowed the State to proceed under the re-indictment. Specifically, he argues, "Since the state [sic] waived the charge of aggravated assault in the first indictment after jeopardy attached, it was precluded from re-litigating those allegations by proceeding on the re-indictment." Olivas's initial jeopardy never terminated; thus, proceeding on the re-indictment did not violate State and Federal Constitutional prohibitions against double jeopardy. Vrba v. State, 69 S.W.3d 713, 722-23 (Tex.App.-Waco 2002, no pet.). Olivas's fifth issue is overruled.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 critical 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. 2004-2005). We find that McGowan v. State controls the disposition of this appeal. McGowan v. State, 664 S.W.2d 355 (Tex.Crim.App. 1984). In this case, as in McGowan, the victim, Kim Tunnell, did not perceive the threat at the time the offense occurred. Kim specifically testified contrary to the State's indictment that she heard pops and thought the sounds came from rocks. It was only after the offense occurred that she discovered the bullet hole in her pickup. Viewing the evidence under the appropriate standard of review, we find the evidence legally insufficient to support a crucial element of the offense, that Kim Tunnell was threatened with imminent bodily injury. See Vodochodsky v. State, No. 74,129, 2004 Tex. Crim. App. LEXIS 663 (Tex.Crim.App. April 21, 2004). We need not address Olivas's remaining arguments under this issue. Olivas's first issue is sustained. Olivas next contends the evidence is legally and factually insufficient to support his conviction for stalking because Kim Tunnell was not placed in fear of bodily injury or death when Olivas told her in a voicemail to "count your friggin' hours." One element of stalking is that the defendant causes another to be placed in fear of bodily injury or death. TEX. PENAL CODE § 42.072(a)(2) (Vernon 2003). Although Kim, at one point, testified that she did not feel physically threatened at the time of the message, she also testified that she felt threatened and that physical and bodily harm was a possibility. Viewing the evidence under the appropriate standards of review, we find the evidence both legally and factually sufficient to support the conviction. See Vodochodsky v. State, No. 74,129, 2004 Tex. Crim. App. LEXIS 663 (Tex.Crim.App. April 21, 2004) (legal sufficiency standard of review); Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex.Crim.App. Apr. 21, 2004) (factual sufficiency standard of review). Olivas's second issue is overruled.