KEVIN VANCE EDIC, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed January 26, 2011
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01491-CR
No. 05-09-01494-CR
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KEVIN VANCE EDIC, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-16994-MR, F09-16993-MR
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OPINION ON MOTION FOR REHEARING
 
Before Justices Richter, Lang, and Myers
Opinion By Justice Lang
 
 
        On December 28, 2010, this Court issued an opinion affirming the trial court's judgment as modified. Appellant Kevin Vance Edic timely filed a motion for rehearing on January 10, 2011. We deny appellant's motion for rehearing. On our own motion, we withdraw our December 28, 2010 opinion and vacate the judgment of that date. This is now the opinion of the Court.
        Kevin Vance Edic waived a jury and pleaded not guilty to retaliation and aggravated assault. After finding appellant guilty, the trial court assessed punishment at three years' imprisonment in each case and one $2,000 fine. In three issues, appellant contends the evidence is legally and factually insufficient. We modify and affirm the trial court's judgments.
Evidence Presented
 
        On May 6, 2009, three men were working in a taped-off area at the North Irving Transit Station. Their boss had been fishing in a canal that runs behind the station, but he left the area to get more materials for the workers. He asked the men to “keep an eye” on the fishing rod. Evaristo Ruiz Mata, one of the workers, testified he saw appellant pick up the rod and give it to two other people. Mata told appellant, in Spanish, that the rod belonged to his boss. Appellant took the rod from the other people, gave it to Mata, then left. Mata and his coworkers went back to work. Mata and another man were on ladders while Luis Burgos was on the ground handing them materials. Appellant came to their work area and cursed at them. Mata understood some of the curse words, but he continued working and did not pay attention to appellant. While up on the ladder, Mata looked down and saw appellant “put a knife” to Burgos's neck. Neither Mata nor his coworker could do anything to help Burgos because they were up on the ladders. Mata testified he saw the knife in appellant's hand and saw the knife on Burgos's neck. Appellant did not leave the area until after the police arrived. The police arrived about three minutes after appellant pulled the knife.
        Luis Rodriguez Burgos, the complainant, testified he was working at the station in a taped-off area. His boss, who had been fishing, went to a hardware store to get materials for them. The boss left the fishing rod there. Burgos saw appellant holding the fishing rod. Mata told appellant the rod was theirs, but appellant said he found it. Appellant eventually gave the rod back to Mata. Burgos and Mata went back to work. While Burgos stood near the ladders looking up to see if Mata needed more materials, appellant approached the work area and began yelling at them. Burgos ignored appellant and did not turn around to look at him. Mata and another man who were up on ladders also ignored appellant. Appellant became more upset. Appellant approached Burgos from behind, grabbed Burgos's arm, and put a knife to Burgos's neck. Burgos testified he felt the point of the knife “poking” his neck, and he was afraid for his life. Appellant looked up at the men on the ladders and said, “[D]on't move. If you move I'm going to kill him.” Mata asked appellant to calm down and said they did not want any problems. Appellant stretched out his right hand, pointed the knife toward Mata, and said, “[H]ey, you be quiet.” At that moment, Burgos got away from appellant and ran toward the station's doors, which were about fifteen feet away from appellant. Burgos stood there with the door open, but did not go inside. A woman who was in charge of the station called the police. Officers arrived within five minutes. Burgos testified he “hardly understood” appellant because he does not speak much English, but he understood when appellant put the knife to his neck and said, “[D]on't move, motherfucker.” Burgos testified he had a “work knife” inside his pants pocket. When he talked to a police officer, the officer asked him to take the knife out of his pocket.
        DART officer Rufus Johnson responded to a dispatcher's broadcast regarding an assault with a deadly weapon at the North Irving Transit Station. Johnson testified Burgos said appellant pulled a knife on him. Appellant admitted he had a knife in his back pocket, and he gave it to Johnson. Johnson showed the knife to Burgos, who said it was the same knife appellant had pulled on him. Johnson handcuffed appellant and put him in the patrol car until he could get more information from witnesses. As Johnson walked appellant to the patrol car, appellant said he pulled out his knife only because Burgos had pulled a knife on him. When Johnson asked Burgos if he had a knife, Burgos pulled a “box cutter” from his pants pocket. Johnson testified that Burgos's box cutter did not have a blade in it. Johnson went back to the patrol car and told appellant he was under arrest for aggravated assault with a deadly weapon. Appellant became “outraged” and said, “[Y]ou mean you're taking the words of those Mexicans over me?” Then, appellant turned back toward Burgos and yelled, “[I]'m going to kill you when I get out.” Appellant also yelled that if anything happened to his clothes or apartment, he “was going to come back and find them and kill them.” Appellant said directly to Johnson, “When I get out, I'm going to kill them. You make sure you write that down 'cause I done said it twice now.” Johnson told appellant he understood what he had said. Johnson testified that although appellant was sitting in the patrol car when he yelled the threats to the workers, the windows were rolled down. The knife Johnson retrieved from appellant was admitted into evidence. Johnson testified appellant's knife was capable of causing injury or possibly death to someone, and it is considered a deadly weapon.
        Appellant denied holding a knife to Burgos's neck. Appellant testified he went to the station at about 3:40 p.m. to catch a bus. While waiting for the bus, appellant walked to the canal on the back side of the station and found a fishing rod in the grass. Because there was no one around the rod, he picked it up and went back to the bus stop. Two elderly men sitting at the stop said they liked to fish, so appellant gave them the rod. A man came toward appellant who was “yelling in Spanish and waving his arms.” Appellant said he did not understand what the man was saying, but he assumed it was about the rod. The elderly men gave the rod back to appellant, and appellant gave it to Mata. A few minutes later, appellant walked to a taped-off area where the man was working with two others. One of the workers was up on a “cherry picker.” Appellant went to the man on the cherry picker and asked if he understood English. When the man said yes, appellant told him to tell his “friend” that he had no reason to get mad and yell because the rod was not in the water, it was lying on the ground, and there was nobody around it. Appellant began to walk away, then he saw Burgos with a “utility knife” clipped on his pocket. According to appellant, Burgos had his hand on the knife and he “booted his body” towards appellant “with the knife in his hand.” Appellant took his knife out of his pocket and said, “[Y]ou got a knife? I've got one too. Do you want to pursue this.” When no one moved, appellant folded his knife, put it back in his pocket, and walked off. Appellant admitted he pointed the knife toward Burgos, but he denied he held it to Burgos's neck. After walking away, appellant went to the bus stop, smoked a cigarette, then got on the bus. When he saw an officer coming toward the bus, he got off and walked toward the officer. He told the officer that Burgos had pulled a knife on him. Appellant said he “lost it” when the officer told him he was being charged with an “aggravated assault with intent to commit serious bodily injury.” Appellant admitted he said that if he went to prison and lost his “stuff,” he would come back and kill Burgos. Appellant said he made the threat twice to the officer, but the windows of the patrol car were up and no one except Johnson heard him. During cross-examination, appellant said he walked over to the men because he “wanted to let the guy know he had no reason to get up in my face and yell and scream at me and point his finger in my face.” Appellant testified he felt “provoked” to display his own knife after seeing Burgos with a knife. He admitted, however, that he never saw a blade on the knife Burgos had clipped to his pocket.
Applicable Law
 
        In three issues, appellant challenges the legal and factual sufficiency of the evidence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to 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. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard.         In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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); Brooks, 323 S.W.3d at 895. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).
        To obtain a conviction for retaliation, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened to harm Luis Rodriguez Burgos in retaliation for or on account of the service or status of Burgos as a person who has reported the occurrence of a crime. See Tex. Penal Code Ann. § 36.06(a)(1)(B) (West Supp. 2010). To obtain a conviction for aggravated assault, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Burgos with imminent bodily injury and appellant used or exhibited a deadly weapon, a knife, during the commission of the assault. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (West Supp. 2010).
Discussion
 
        In his first two issues, appellant contends the evidence is insufficient to show a retaliatory threat was communicated to Burgos. Appellant asserts that because knowledge of the threat is an essential element of the offense, and Burgos did not understand English and did not know what appellant was saying, the evidence is insufficient to support the retaliation conviction. In his third issue, appellant contends the evidence is insufficient to support the assault conviction because both Mata's and Burgos's testimony was contradictory, confusing, and not credible. The State responds that the evidence is sufficient to support appellant's convictions for retaliation and aggravated assault with a deadly weapon.
        Under the retaliation statute, a threat does not have to be direct. See Davis v. State, 890 S.W.2d 489, 491 (Tex. App.-Eastland 1994, no writ) (appellant's statement that he had a criminal mind messed up on drugs and that he might just do anything constituted threat to CPS worker). Further, the threat does not have to be communicated directly to the person being threatened. See Doyle v. State, 661 S.W.2d 726, 728 (Tex. Crim. App.1983).
        Here, appellant admitted that while he sat inside the patrol car, he issued two verbal threats to kill Burgos. Appellant said the windows were rolled up, so no one heard the threats except Officer Johnson. Johnson said the windows on his patrol car were rolled down, and appellant “yelled” the threats at Burgos. Both Burgos and Mata said appellant held a knife to Burgos's throat. Appellant admitted he pulled a knife from his pocket, but said he did so only because Burgos had a knife clipped on the outside of his pants. Appellant denied holding the knife to Burgos's throat. As the fact finder in this case, it was the trial court's role to reconcile any conflicts in the evidence and judge the witnesses' credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc).
        Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant assaulted Burgos with a deadly weapon, a knife, and retaliated against Burgos, who had talked to the police about the assault, by verbally threatening to kill him. Thus, the evidence is sufficient to support the verdicts. See Brooks, 323 S.W.3d at 895. We resolve appellant's three issues against him.         In his brief, appellant contends the trial court's written judgments should be modified to reflect that appellant pleaded not guilty before the trial court, and that there was no plea bargain agreement. The State agrees with appellant on this issue. The judgments state appellant entered guilty pleas and that the terms of plea bargains were “open.” The record, however, shows appellant pleaded not guilty before the court, and there were no plea bargain agreements. Thus, the judgments are incorrect. We modify the trial court's judgments to show appellant entered a not guilty plea and there were no plea bargain agreements. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgments.
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
091491HF.U05