BEVERLY JOYCE MCCARTHER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00670-CR
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BEVERLY JOYCE MCCARTHER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-15728-KR
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        Beverly Joyce McCarther 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. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
 
        Marilyn Rath testified she and appellant lived in the same apartment complex in October 2003. Rath first met appellant when appellant came to Rath's apartment asking her to sign a petition concerning security in the complex. Rath did not sign the petition. On October 8, 2003, appellant came to Rath's apartment and complained about a neighbor's children. Rath's eight-year-old son played with the neighbor's children, and Rath knew and liked the neighbor. During appellant's conversation with Rath, appellant threatened to shoot Rath's son and his friends with a gun if they came onto her patio again. Appellant said she “owned a gun and she'd use it.” Rath knew the children had retrieved a football from appellant's patio on one occasion. Rath responded that if appellant was so fearful of eight-year-olds playing, she should consider living someplace else. Thereafter, Rath's son was afraid to play outside whenever he saw appellant or appellant's car. Rath decided to contact the police to create a record of appellant's threat in case anything happened to the children. Rath testified she believed she called the police that same day, but acknowledged the police report listed the contact date as October 21, 2003.
        The apartment complex initiated eviction proceedings against appellant. On October 31, 2003, Rath testified at appellant's eviction hearing in a Justice of the Peace court. During the hearing, Rath testified that appellant made terroristic threats towards Rath's son and his friends and that Rath had made a police report about the threat. After the hearing, appellant was evicted from the complex in mid-November 2003.
        Rath testified appellant assaulted her on January 17, 2004. After Rath had completed a transaction at a drive-through ATM near the apartment complex, appellant's vehicle blocked Rath's car in the ATM drive-through lane. Appellant then got out of her vehicle and screamed at Rath. Rath remained inside her car, but her window was open. Rath pushed the record button on her cell phone as appellant yelled that Rath was “going to get hers.” Appellant hit Rath with her hand, grabbed Rath's phone, then threw the phone at Rath. Appellant repeatedly said Rath was “going to get hers.” Rath testified appellant hit her in the face twice, causing pain and broken blood vessels under her left eye. Rath also had scratches on her hand. After the assault, appellant got back into her vehicle and drove away. Rath called the police. Rath talked with an officer at the apartment manager's office. The officer took Rath's statement and photographs of her injuries. Rath acknowledged that although she testified she did not get out of her car when appellant assaulted her, the written statement she gave to the police said Rath got out of her car, approached appellant, and threatened to call the police.
        Carrollton police officer Joseph Baker testified he responded to the assault call. When he arrived at the complex office, Baker observed Rath was “sobbing, tears coming out of her eyes, her hands were shaking.” Rath had scratches on her hand, and her left eye looked “blood red” from broken blood vessels. Baker took photographs of Rath's injuries. Rath said she was at a bank ATM machine when a woman named Beverly assaulted her. She knew Beverly from an earlier police report, and she had testified in Beverly's eviction hearing. Rath also said she tried to record the incident on her cell phone. Baker talked with the apartment manager about appellant. The manager did not have a forwarding address or phone number for appellant.
        Appellant testified and denied assaulting Rath, taking her cell phone, or threatening her in any manner. Appellant also denied she threatened to shoot anyone. Appellant testified she had never been to Rath's apartment door, never said anything to Rath about another tenant's children, and saw Rath for the first time at the eviction hearing. Appellant represented herself at the eviction hearing and had the opportunity to cross-examine all of the witnesses, but maintained there was no mention of a terroristic threat at that hearing. Appellant initially testified she did not know there had been a terroristic threat report filed on her until preparing for this trial. During cross-examination, appellant admitted the apartment manager gave her written notices of lease violations that stated appellant had threatened four children and two adults with shooting them with a gun if they came onto her patio.
        Appellant admitted she saw Rath on January 17, 2004 at a bank parking lot. Appellant waited for Rath to complete a transaction at the drive-through ATM because appellant wanted to ask Rath why she lied at the eviction hearing. Appellant testified she did not block Rath's car from leaving and did not get out of her own vehicle. Appellant screamed out the window at Rath, asking, “[W]hy are you lying on me?” and “[W]hy did you testify against me in court?” Rath said she was going to call the police. Appellant parked her car in front of the bank and waited for the police to arrive because she did not do anything wrong. Appellant left the area after waiting fifteen minutes. Appellant did not know how Rath received scratches on her hand or injury to her left eye.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex. App.-Dallas 2004, no pet.). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        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); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); 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. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).         To obtain a conviction for retaliation, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly harmed, and threatened to harm, Rath by assaulting her with appellant's hand in retaliation for and on account of Rath's service or status as a witness, an informant, and a person who had reported the occurrence of a crime of terroristic threat. See Tex. Penal Code Ann. § 36.06(a)(1) (Vernon Supp. 2007). “Witness” has been defined as a person who has testified 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).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because a terroristic threat never occurred, appellant was not aware that Rath reported the commission of any crime to the police, and a retaliatory assault never occurred. Appellant asserts Rath's testimony was inconsistent, and Rath's written statement shows Rath was the person who approached appellant. The State responds the evidence is legally and factually sufficient to support appellant's conviction.
        There was conflicting evidence presented. Rath testified she reported appellant's terroristic threat to the police on the day that it occurred, but the police report shows the contact date occurred two weeks after the incident. Rath said she testified about appellant's terroristic threat at appellant's eviction hearing. Appellant claimed there was no mention of a terroristic threat at the eviction hearing, and that she did not know anyone reported a terroristic threat to the police. But, appellant also testified she had received lease violation notices that stated the apartment management had received complaints that appellant had threatened to shoot four children and two adults with a gun if they came onto her patio. Rath testified she never got out of her car before or during the time appellant assaulted her, but her written statement to the police recites she got out of her car and approached appellant. Appellant admitted she waited for Rath at the bank parking lot, but claimed she did not block Rath's vehicle, did not assault Rath, and only wanted to ask Rath questions.
        As the fact finder in this case, it was the trial judge's role 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 Rath in retaliation for Rath's service or status as a witness, informant, 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 overrule appellant's two points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070670F.U05