VICTOR GARCIA v. THE STATE OF TEXAS--Appeal from 105th District Court of Kleberg County

NUMBER 13-05-291-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

VICTOR GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Chief Justice Valdez

Appellant, Victor Garcia, was found guilty of retaliation and sentenced to four years= imprisonment, suspended and probated to four years= community supervision. On appeal, appellant argues the following: (1) the trial court committed reversible error when it denied appellant=s inquiry into the alleged victim=s nicknames and work behaviors, and (2) insufficient evidence of guilt. We affirm.

I. BACKGROUND

On November 29, 2003, Officer Dawson Weatherford arrested appellant for driving while intoxicated. Officer Weatherford testified that appellant was verbally abusive and threatened him and his family. Specifically, appellant told Officer Weatherford that he was going to Atake him out@ and Atake care of him.@ After arriving to the jail, appellant continued making threats. Officer Gilbert Rodriguez, a jailer, testified that he heard appellant threaten Officer Weatherford and then his family.

II. RELEVANT EVIDENCE

By his first issue, appellant argues the trial court committed reversible error for not allowing him to question the alleged victim regarding his nicknames and work behavior. Specifically, appellant argues that such information was relevant as to how it affected him at the time of the incident.

ARelevant evidence@ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Evidence which is not relevant is inadmissible. Id. 402. A trial court has considerable discretion in determining whether to exclude or admit evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1991) (op. on reh=g) (en banc). An abuse of discretion is shown only where the trial court's decision was made without reference to any guiding rules or principles or, in other words, if the decision was arbitrary or unreasonable. Id. at 380. Even if this Court would have reached a different result, we will not intervene as long as the trial court's ruling is within the "zone of reasonable disagreement." Id. at 391. Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the accused. Tex. R. App. P. 44.2(b).

Appellant contends that Officer Weatherford bolstered his own credibility by testifying he had endured a lot of abuse over his twelve years as a police officer. Officer Weatherford did not distinguish between verbal or physical abuse. Appellant sought to discredit Officer Weatherford=s testimony by introducing the fact that Weatherford had earned the nicknames ARobo Cop@ and ATerminator@ while serving as a police officer in the community. On cross-examination, Officer Weatherford testified those were his nicknames; however, before he could answer how he received them, the trial court sustained the State=s objection to the relevancy of the line of questioning. The trial court did not abuse its discretion in sustaining the State=s objection because the evidence appellant sought to admit was irrelevant to this case. See Montgomery, 810 S.W.2d at 380; see also Tex. R. Evid. 402. Appellant had no prior run-ins with Officer Weatherford on which to base his opinion of him, only the nicknames. Appellant=s contention that any statements he made that could have been interpreted as intending to cause Officer Weatherford harm were justifiable because of the effect the nicknames had on him is not valid and does not excuse the fact he committed retaliation; it is irrelevant. See Tex. R. Evid. 402. There is no evidence that appellant=s substantial rights were affected. See Tex. R. App. P. 44.2(b). We overrule appellant=s first issue.

III. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

By his second issue, appellant argues he was not found guilty beyond a reasonable doubt because there was insufficient evidence of guilt. Specifically, appellant argues that the evidence to support his conviction is (1) legally insufficient because there was no testimony that the threats were a result of the traffic stop or Weatherford=s status as a public servant, and (2) factually insufficient because there was no proof of any retributive character to his alleged verbal threats (i.e., there were no prior dealings which would have prompted a retaliatory charge).

A. Standard of Review

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19 (1979); Cardenas v. State, 30 S.W.3d 384, 389 90 (Tex. Crim. App. 2000). The legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge for the case that would set out the law, be authorized by the indictment, not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard applies to both jury and bench trials. Id.

In evaluating factual sufficiency of the evidence, we review the evidence in support of and contrary to the trier of fact's findings to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000); 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. See Johnson, 23 S.W.3d at 7. The jury may believe or disbelieve the testimony of any witness. Garza v. State, 82 S.W.3d 791, 793 (Tex. App.BCorpus Christi 2002, no pet.).

B. Retaliation

A person commits retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for the service or status of another as a public servant, witness, or informant. Tex. Pen. Code Ann. ' 36.06(a)(1)(A) (Vernon Supp. 2005).

C. Analysis

A review of the record shows that the evidence was both legally and factually sufficient to warrant appellant=s guilty verdict.

Appellant testified that he made statements that could have been interpreted as intending to cause Officer Weatherford harm. Furthermore, he told Officer Weatherford he was Amessing with the wrong Mexican@ after Weatherford arrested him for driving while intoxicated. Officer Weatherford testified that appellant (1) threatened to harm him and his family at his house if he found out where he lived, and (2) stated he was going to Atake [Weatherford] out@ and do whatever it took to put him out of his job. Appellant argues he only intended to threaten Officer Weatherford=s job, not his life. However, Officer Rodriguez corroborated Officer Weatherford=s testimony and refutes appellant=s argument. When viewed in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offense. Jackson, 443 U.S. at 318 19; Cardenas, 30 S.W.3d at 389 90.

Finally, appellant=s argument that his statements lacked proof of any retributive character because they arose out of a single meeting is without merit. See Stafford v. State, 948 S.W.2d 921, 923-24 (Tex. App.BTexarkana 1997, pet. ref=d) (upheld conviction for retaliation based upon a single incident arising out of an arrest). Therefore, we cannot rule that the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. See Johnson, 23 S.W.3d at 6-7; Clewis, 922 S.W.2d at 129. We overrule appellant=s second issue.

IV. CONCLUSION

The judgment of the trial court is affirmed.

__________________________

ROGELIO VALDEZ

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this the 1st day of June, 2006.