Opinion
NO. 03-15-00116-CR
05-11-2016
Christopher Rivera, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
NO. CR-14-0448, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDINGMEMORANDUM OPINION
A jury found Christopher Rivera guilty of the third degree felony of retaliation. See Tex. Penal Code § 36.06(c). Rivera pleaded true to one enhancement paragraph alleging that he had previously been convicted of the felony offense of possession of a prohibited firearm. After electing to have the trial court assess punishment, Rivera received six years' confinement in the Texas Department of Criminal Justice-Institutional Division. On appeal, Rivera contends that the evidence is legally insufficient to support the conviction. We will affirm.
BACKGROUND
Rivera and Shannon Pitcher met in the fall of 2013, and the two became involved in a romantic relationship. The relationship was "nothing serious," and Rivera was seeing other people and had a "feeling" that Pitcher was as well. In the early morning hours of February 26, 2014, Rivera drove to Pitcher's house because he was worried that she was not responding to text messages he was sending her from a bar in South Austin. Rivera testified that he was concerned for Pitcher's safety because the week before Pitcher had called him to tell him that her former boyfriend had attacked her in the parking lot of the same bar. Upon arriving at Pitcher's house, Rivera saw a Ford Ranger parked in the driveway. Rivera did not know who owned the vehicle, but did not believe that it belonged to Pitcher's former boyfriend. Rivera suspected the vehicle belonged to another man with whom Pitcher was romantically involved. Rivera was "furious" and "wanted an explanation." Rivera testified that he did not try to break into the house, but wanted Pitcher to come out and have a civil discussion with him about the situation. Instead of coming out of the house, Pitcher "ignored" Rivera, which he stated "flamed the whole situation." Rivera then proceeded to damage the Ford Ranger and a vehicle belonging to Pitcher. Believing that his damaging the cars would cause Pitcher to come outside, Rivera drove around the block, waited for Pitcher and her guest to come outside, and then drove back to her house. Rivera asked Pitcher to talk to him, but instead she and her guest ran inside the house. Rivera testified that Pitcher told him that she had called the police. Rivera then left Pitcher's house.
The background facts set forth in this paragraph are derived from Rivera's testimony at trial.
At trial, Rivera stipulated that he committed the offense of criminal mischief by damaging the vehicles. --------
At trial, the State admitted into evidence exhibits that Pitcher identified as a series of screen shots from her cell phone of text messages she testified Rivera sent to her. The theory of the State's case against Rivera for retaliation was that Rivera sent these text messages to Pitcher and that they contained a threat of harm to her in retaliation for her having reported to the police that Rivera damaged the two vehicles. In his sole issue on appeal, Rivera contends that the evidence at trial conclusively establishes a reasonable doubt regarding whether Rivera sent the threatening text messages to Pitcher and, consequently, the evidence is legally insufficient to support his conviction for the offense of retaliation.
DISCUSSION
In his sole point of error, Rivera asserts that the evidence is legally insufficient to sustain his conviction. The legal sufficiency standard is "the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). When reviewing the sufficiency of the evidence to support a conviction, we consider all of the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must consider all the evidence in the record, whether direct or circumstantial or properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the jury resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict, and we defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony. Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 899; Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. art. 38.04.
A person commits the offense of retaliation if the person intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a person who has reported the occurrence of a crime. Tex. Penal Code § 36.06(a)(1)(B). On appeal, Rivera claims that the evidence is insufficient to show that he threatened Pitcher because his testimony at trial was such that a reasonable jury could not have found beyond a reasonable doubt that he sent the text messages containing the threats.
The trial court admitted as evidence screen shots from Pitcher's cell phone showing text messages that originated from a cell phone number she knew to be assigned to Rivera's cell phone. Pitcher testified that she had received from Rivera, and Rivera admitted that he sent, numerous text messages from that cell phone number over the course of their relationship. The screen shots included the following text messages sent on March 3, 2014: 11:41 AM Yo bitch! So let me get this straight. Your ex can fuck break all your shit and steal from you, no cops. Your friends dude can break into your vehicle, no cops.
punk bitch u had there are both NOT SAFE! Expect more visits from me. U will hurt.11:45 AM to answer, and u involve the cops and I got some bitch ass detective calling me? Lmfao! Well, just know that u have now made an enemy out of me. You and that
im not a bitch like your ex. I get the job done. And now u are gonna find out the kind of pain that I bring. And u will not be ready, will be caught off guard,11:50 AM and mose important, you Will Lose! Idgaf, who u show or forward these messages to. 11:51 AM first hand. So u might wanna make one of them calls to whomever you threatened me with last 11:53 AM so be ready. U are not that hard to find anywhere. Sorry it came to this but I told u from the get go that I am not the one to fuck with. Now u gonna find out
time, and lets see just who comes out on top. I already know the answer. Now u will.At trial, Detective Nelson Wray testified that he was assigned a case involving Pitcher on March 3, 2014. According to Detective Wray, it was a criminal mischief case against Rivera arising out of his damaging the cars at Pitcher's home on February 26th. Detective Wray testified that at 10:48 a.m. on March 3rd he called Rivera's cell phone number to discuss the case with him, but Rivera did not answer the phone. After doing some Internet research, Detective Wray found an e-mail address for Rivera and at 11:39 a.m. sent him an e-mail asking Rivera to call him or to meet with him to talk about the criminal mischief case. This testimony, combined with the screen shots of the text messages admitted at trial, indicates that Pitcher received a threatening text from Rivera's phone two minutes after Detective Wray e-mailed him about the criminal mischief charge.
On appeal Rivera asserts that the evidence at trial was such that a rational juror could not have found, beyond a reasonable doubt, that he was the person who sent Pitcher the threatening text messages. Specifically, Rivera points to his testimony at trial that his phone was stolen on March 1st. Rivera affirmed that he received Detective Wray's e-mail, but indicated that he did not receive it until the middle of the month. At trial Rivera advanced two theories to explain how text messages sent from a cell phone with his phone number could have been sent to Pitcher by someone other than himself. First, Rivera testified that the person that stole his phone "probably read everything I sent and just went ahead and had a field day with it, obviously." Second, Rivera testified that he used an application called "textPlus" and that anyone who had his email account and password could have used the Internet to send text messages to Pitcher that would appear to have originated from his cell phone. Rivera testified that Pitcher herself could have used his e-mail account to send the threatening text messages to herself. Pitcher, however, testified that she received the text messages from a number she knew to be assigned to Rivera's cell phone and that she contacted the police each time she received a threatening message. Pitcher also testified that she never sent content from Rivera's Internet account to her phone. Additionally, Rivera testified that he also had access to the Internet during the time he claimed to have been without his phone, from which the jury could have inferred that he also could have sent the text messages to Pitcher even if his phone had been stolen.
At best, the jury was presented with conflicting evidence regarding whether Rivera sent the threatening text messages to Pitcher. The fact that the messages referenced a previous altercation between Pitcher and a former boyfriend that Rivera was aware of supports the jury's reasonable inference that the person sending the text message was not some unknown third party who had stolen Rivera's phone and was "having a field day" with it. Similarly, the timing of the messages, which were sent shortly after Detective Wray sent an email to Rivera asking to discuss the criminal mischief charge, and the messages' direct reference to Rivera's having been contacted by law enforcement further indicate that the text messages were written and sent by Rivera. Moreover, the jury was free to disbelieve Rivera's testimony that his phone was stolen on March 1st. Similarly, the jury was free to disbelieve Rivera's suggestion that Pitcher herself could have created and sent the e-mails to herself using the Internet.
Based on the combined and cumulative force of the evidence summarized above and all reasonable inferences the jury could have drawn therefrom, considered in the light most favorable to the verdict, we conclude that a rational jury could have found, beyond a reasonable doubt, that Rivera sent Pitcher the threatening text messages. We overrule Rivera's sole appellate issue.
CONCLUSION
Having overruled Rivera's sole appellate issue, we affirm the judgment of conviction.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Pemberton and Field Affirmed Filed: May 11, 2016 Do Not Publish