EUGENIO MARTINEZ v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

   NUMBER 13-03-743-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

EUGENIO MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 117th District Court

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

After a jury trial, appellant, Eugene Martinez, was convicted of the offense of retaliation under section 36.06(a)(1)(A) of the Texas Penal Code. He appeals on the grounds of legal and factual insufficiency and improper admission of extraneous offenses. We affirm the judgment of the trial court.

I. Facts and Procedural History

Appellant was originally arrested for public intoxication. The arresting officer, Captain Manuel Garza, testified that after he handcuffed appellant, appellant turned and spat in his face. Captain Garza then bent appellant over a trash container and held him so that he was facing away from the officer. Appellant began kicking at the officer and making threats. Captain Garza testified that appellant threatened to Acut him up@ and beat him. Appellant also said he knew the officer=s wife, described her as AOriental,@ and said he was going to Aslash her throat@ and Acut her up.@ Captain Garza=s wife, a Filipina and a bus driver, testified that prior to this incident, appellant frequently rode on her bus and greeted her by name. She also testified that each time appellant got on her bus, he smelled strongly of alcohol.

Appellant was charged with two counts of retaliation. At the conclusion of trial, defense counsel moved for an instructed verdict, claiming that the State had not shown an intentional, knowing or willing effort on the part of the appellant sufficient to effect the crime of retaliation. The State responded that intent could be inferred from the facts, and the trial court denied the motion. A jury found appellant guilty for both counts of retaliation: one against Captain Garza and another against Captain Garza=s wife.

Appellant claims the evidence to support his conviction for retaliation is legally insufficient with regard to Captain Garza=s wife and factually insufficient with regard to Captain Garza. Appellant also claims the wife=s statement that he smelled of alcohol was inadmissable under Texas Rule of Evidence 404.

II. Sufficiency of the Evidence

A. Legal Sufficiency

In his first sub-issue, appellant claims evidence to support his conviction for retaliation is legally insufficient with regard to Captain Garza=s wife. Appellant argues that the wife is not a public servant, and therefore any threats against her fall outside the definition of retaliation under the Texas Penal Code.

In a legal sufficiency challenge we must question whether, after reviewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004). Therefore, we consider only the evidence and inferences tending to support the findings and disregard all evidence and inferences to the contrary. Love v. State, 972 S.W.2d 114, 118 (Tex. App.BAustin 1998, pet. denied).

A person is guilty of retaliation if he intentionally or knowingly threatens to harm another by an unlawful act in retaliation for the service of another as a public servant, witness, or informant. Tex. Pen. Code Ann. ' 36.06(a)(1)(A) (Vernon 2004). Section 1.07(a)(5) defines Aanother@ as Aa person other than the actor.@ The State therefore argues that a threat against a third party in retaliation for the actions of a public servant fall under the scope of retaliation. In support of this position, the State cites Sewell v. State, 629 S.W.2d 42 (Tex. Crim. App. 1982), in which a burglar retaliated against an informant by threatening to throw acid on or kill her child. Id. at 43. The State argues that by affirming his conviction, the court of criminal appeals accepted a threat against a third party as an element of retaliation under section 36.06. See id. We agree. Therefore, the overall facts, viewed in a light most favorable to the prosecution, show that the evidence is legally sufficient to support the verdict. See Hernandez v. State, 69 S.W.3d 211, 212 (Tex. App.BCorpus Christi 2001, no pet.) (holding threats against the witness and her mother were sufficient to establish retaliation); see also In re B.P.H. 83 S.W.3d 400, 409 (Tex. App.BFort Worth 2002, no pet.) (finding retaliation in threats made against a witness and her parents). Appellant=s first sub-issue is overruled.

B. Factual Sufficiency

In his second sub-issue, appellant contends evidence to support his conviction for retaliation is factually insufficient with regard to Captain Garza. Appellate argues that his threats against Captain Garza were made not in retaliation for his arrest but instead for the illicit exercise of official power committed when Captain Garza bent him over the trash container.

In reviewing factual sufficiency, we must examine all the evidence, favoring neither side, to determine whether the verdict is Aso contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). In conducting this review, we must be mindful that the jury is the sole judge of the weight and credibility of the evidence. Id. at 7. The jury may accept or reject all or any part of any witness's testimony. Garza v. State, 82 S.W.3d 791, 793 (Tex. App.BCorpus Christi 2002, no pet.).

Here, appellant contests whether Captain Garza acted within the scope of his duties as a public servant when he restrained appellant and whether those actions prompted appellant=s threats. Upon a neutral review of all the evidence, we find that the verdict is not contrary to the overwhelming weight of the evidence. See Johnson, 23 S.W.3d at 6-7. A trier of fact could reasonably conclude that Captain Garza acted properly and within the scope of his duties by restraining someone who had just spit in his face, and that the arrest elicited appellant=s threats. Appellant=s second subissue is therefore overruled.

Appellant=s claims of factual and legal sufficiency are overruled.

III. Extraneous Offenses

In his second issue, appellant claims the court erred in admitting evidence of extraneous acts. Specifically, he complains that during the trial, Captain Garza=s wife testified, AEvery time he get on my bus I smell strong smell like alcohol.@ In a pre-trial hearing, the parties addressed the admissibility of this testimony. Appellant=s trial counsel objected to the relevance of this statement and asserted the testimony was more prejudicial than probative because it characterized appellant as a drunk. He did not raise a rule 404 objection. See Tex. R. Evid. 404.

Evidence of extraneous bad acts are generally not admissible if the purpose is to show the defendant=s character. Tex. R. Evid. 404(b). The State contends that we need not reach the merits on this issue because appellant=s counsel did not raise a 404(b) objection. See Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (holding that a relevancy objection did not preserve a rule 404 error for appeal). We agree. Because counsel raised no objection under 404, no complaint was preserved for appeal. See Tex. R. App. P. 33.1(a)(1). However, we note that even presuming that the testimony was admitted in error, we conclude that it was nonetheless harmless in light of other evidence available to the jury. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (AA criminal conviction should not be overturned for non constitutional error if the appellate court, after examining the record as whole, has fair assurance that the error did not influence the jury, or had but a slight effect.@); see also Tex. R. App. P. 44.2.

Appellant=s second issue is overruled.

IV. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not Publish.

Tex. R. App. P. 47.2 (b)

Memorandum Opinion delivered and filed

this 4th day of August, 2005.