No. 05-08-00806-CR
Opinion issued March 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F07-20783-H.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
Opinion By Justice MAZZANT.
Martine Velarde Rodriguez waived a jury and pleaded not guilty to retaliation. After finding appellant guilty, the trial court assessed punishment at two years' imprisonment, probated for two years, and a $500 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To obtain a conviction for retaliation, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly harmed, or threatened to harm, E.R. by verbally threatening to kill her in retaliation for and on account of her service or status as a witness, a prospective witness, and a person who had reported the occurrence of a crime of assault-family violence. See Tex. Penal Code Ann. § 36.06(a)(1) (Vernon Supp. 2008). "Witness" has been defined as a person who has or will testify in an official proceeding. See Jones v. State, 628 S.W.2d 51, 55 (Tex.Crim.App. [Panel Op.] 1980). An "official proceeding" is any type of administrative, executive, legislative, or judicial proceeding that is conducted before a public servant. See Tex. Penal Code Ann. § 1.07(a)(33). Evidence Presented
E.R. and appellant were married in 2001 and separated in early 2006. Their divorce became final in December 2007. E.R. testified that on April 23, 2006, a few months after they were separated, appellant assaulted her in her home. The police were called, and E.R. filed a police report. On May 26, 2007, appellant came to her house to urge her to drop the charges against him in the pending assault case. E.R. saw appellant walking towards her front door. She went outside so her three children would not see appellant. According to E.R., appellant was "very upset" because she had not returned his numerous phone calls. Appellant demanded to know why she had not yet dropped the charges against him. E.R. told appellant she had not had time. Appellant said, "I am going to kill you, bitch," then he left. E.R. was afraid appellant would come back. She took her children to a restaurant, where they ate dinner, then decided to take them to church. En route to the church, E.R. had a panic attack. An ambulance arrived on the scene and administered oxygen to E.R. After she recovered, she drove the children home. Later that day, E.R. notified the district attorney's office about appellant's verbal threat, and made a police report about a week later. B.C. is E.R.'s sixteen-year-old daughter. B.C. testified that on April 23, 2006, she saw appellant assault her mother. Appellant dragged E.R. by the hair, smashed E.R.'s head into a wall, and then kicked E.R. B.C. called the police. After appellant had been arrested and released, appellant told B.C. that "if he got into trouble then it was going to come to me." B.C. said she believed appellant meant she would "get it twice as bad." On May 26, 2007, B.C. did not know appellant had threatened to kill her mother until later that evening. B.C. was inside the house with her two younger siblings at the time her mother was outside with appellant. When her mother came back inside, she was crying and said "something bad had happened." Her mother took them to get something to eat, then they decided to go to church. Her mother had a panic attack while driving. B.C. did not know what to do, so she called the police. Paramedics arrived and gave her mother oxygen. Her mother drove them home after she felt better. Later that evening, her mother told B.C. that appellant threatened to kill her if she did not "take away the charges." Seven witnesses testified on appellant's behalf, but none of them knew about the verbal threat appellant allegedly made to E.R. However, appellant's nephew testified he witnessed E.R. making threats towards appellant on more than one occasion. Appellant denied assaulting E.R. on April 23, 2006 or threatening to kill her on May 26, 2007. Appellant testified he and E.R. argued "many times" during their marriage, and E.R. often threatened him. During cross-examination, appellant testified he and E.R. have "assaulted each other" during arguments, and he admitted he was arrested at a church for assaulting E.R. in 2006. Discussion
Appellant contends the evidence is legally and factually insufficient to show a threat was made in retaliation for or on account of E.R.'s status under the statute. Appellant asserts he may have made a terroristic threat, but it was not retaliation because there were no words relating the threat to the prior occurrence. The State responds that the evidence is sufficient to support appellant's conviction for retaliation. Appellant does not dispute the fact that he threatened E.R. Rather, he argues whether the evidence is sufficient to show he threatened her in retaliation for or on account of her service or status. There was evidence presented that appellant went to E.R.'s house to convince her to drop the pending assault charges against him. At the time appellant made the verbal threat to kill E.R., he knew she had reported the previous assault and could be called to testify against him at a proceeding. Although at trial appellant denied threatening E.R., it was the trial judge's role, as fact finder in this case, to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). We conclude a rational trier of fact could have found appellant threatened E.R. in retaliation for E.R.'s service or status as a witness or one who reported a crime. Thus, the evidence is both legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Swearingen, 101 S.W.3d at 97. We resolve appellant's two issues against him. We affirm the trial court's judgment.