Johnson, Raymond Lee v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Memorandum Opinion filed December 11, 2003

Affirmed and Memorandum Opinion filed December 11, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00412-CR

_______________

RAYMOND LEE JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________

On Appeal from 183rd District Court

Harris County, Texas

Trial Court Cause No. 921,862

___________________________________________________

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

Raymond Lee Johnson appeals a felony conviction of tampering with a witness. In two issues, he contends the evidence is legally and factually insufficient to support the conviction. We affirm.

I. Background

On Friday, June 7, 2002, appellant and Andres Carlos, both Metropolitan Transit Authority ( MTA ) employees, were involved in a workplace disturbance. When Carlos inquired about a tool appellant was using, appellant thought Carlos accused him of stealing

class=Section2>

the tool. Carlos testified that appellant grabbed him by the arm, began leading him toward a bus, stating, I want to whip your ass. Carlos removed himself from appellant s grip and approached another employee, Roberto Garza, so that there would be a witness. Appellant then threatened, You little shit . . . next time you accuse me I am going to whip your ass. Appellant admitted he cursed and spoke derogatorily to Carlos, but denied any physical contact. Carlos reported the incident to his supervisor and the MTA police were called to the scene. Appellant was issued a citation for misdemeanor assault by contact.

According to Carlos, when he returned to work the following Monday, appellant offered him $300 to drop the charge. Appellant does not dispute he offered Carlos $300. However, he denies offering Carlos the money to dismiss the charge. Instead, he contends he offered the money to compensate Carlos for any inconvenience or emotional distress the incident may have caused.

Subsequently, appellant had an attorney prepare an affidavit and mutual release for Carlos s signature. Juan Mendoza, a co-worker, delivered these documents to Carlos at appellant s request.[1] The affidavit, worded as if written by Carlos, gave an account of the incident and stated that Carlos did not want to prosecute the assault charge. Carlos refused to sign the affidavit because it was not true .[2] Carlos then told Mendoza that if certain portions were removed he would sign the affidavit because he wanted to help appellant. Mendoza later gave Carlos a revised affidavit, but once again he refused to sign it because it was still incorrect. The mutual release, which had already been signed by appellant, also contained a provision that Carlos would not prosecute any claims resulting from the incident. Carlos refused to sign it because he disagreed with its contents.

Andrew Lynn, an MTA detective, investigated the circumstances surrounding the status of the assault charge because it was dismissed after no one appeared at the first setting in municipal court. Lynn determined that subpoenas were sent to Carlos and Garza, but they had not received them.[3] Carlos told Lynn appellant had offered him $300 to drop the charge. The assault charge was refiled and the subpoenas reissued. A second trial setting was pending in the assault case when the underlying charge of felony offense of tampering with a witness was tried.

The trial court found appellant guilty of the offense and sentenced him to two years confinement in state jail, suspended for five years, imposed a $10,000 fine, and ordered thirty days jail time as a condition of community supervision. This appeal followed.

II. Standard of Review

In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. Id. During a bench trial, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Therefore, we review the trial court s findings and verdict to determine whether the evidence was sufficient to support appellant s conviction. Id.

When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict, and the verdict is set aside if it is so 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). We determine whether a neutral review of all the evidence establishes that (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder s verdict; or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. Id. at 11. Although we review the fact finder s weighing of the evidence, and we are authorized to disagree with the fact finder s determination, our evaluation should not substantially intrude upon the fact finder s role as the sole judge of the weight and credibility given to witness testimony. Id. at 7.

III. Analysis

Appellant was convicted of violating section 36.05(a)(5) of the Texas Penal Code which provides:

(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:

. . .

(5) to abstain from, discontinue, or delay the prosecution of another.

Tex. Pen. Code Ann. 36.05(a)(5) (Vernon 2003).

The crux of appellant s sufficiency challenge is his lack of intent to influence a prospective witness in an official proceeding because he believed Carlos already planned to dismiss the charge when he offered the money.[4]

There is ample evidence that appellant intended to influence Carlos to dismiss the charge. At trial, Carlos gave the following account of his conversation with appellant on the Monday following the incident. After appellant apologized for the incident, Carlos responded that it was too late, the paperwork was done and he could not do anything about it. Appellant then asked Carlos to drop the charge, Carlos replied he did not put the charge on appellant, and appellant asked, How about that I give you some money to drop the charges? Carlos replied he did not need appellant s money. Appellant then asked, How about we start with $300? Carlos again replied he did not need the money, suggesting appellant give it to his family. Appellant, holding a blank check in his hand, stated he could make the check out to Carlos; however, when Carlos again refused the money, appellant said he did not feel right for Carlos to do something free. The trial court, as fact finder, could reasonably infer the something free was dismissing the charge. See Edwards v. State, 10 S.W.3d 699, 702 (Tex. App. Houston [14th Dist.] 1999), pet. dism d, improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002) (per curiam) (stating fact finder may draw reasonable inferences from the evidence as presented within the context of the crime). Also, the trial court, as the trier of fact was the exclusive judge of the credibility of Carlos s testimony that appellant explicitly offered money to dismiss the charge.

Further, Carlos s account of appellant s offer was confirmed by a witness at trial. Garza heard the conversation and confirmed Carlos s account. In addition, Lynn testified Carlos told him that he was offered the money to drop the charge. Carlos also told Lynn he wanted to pursue the assault charge. Both Carlos and Lynn opined that appellant intended to influence Carlos to abstain from, discontinue, or delay the pending assault prosecution.

Contrarily, appellant contends the money had nothing to do with the assault charge. Although appellant admitted the charge and the money were mentioned in the same conversation, he testified he asked Carlos to drop the charge first, and Carlos immediately said, yes ; appellant then mentioned the money more in terms of what the case would cost me in lawyer s fees and other fees and also to repair hurt feelings and maintain harmony at work. According to appellant, Mendoza had already told him that Carlos intended to drop the charge before he offered Carlos the money.

Mendoza testified he and Carlos are fellow members of the League of United Latin American Citizens ( L.U.L.A.C. ), as well as a union, and it is common for MTA employees who are members of these organizations to resolve matters among themselves. In fact, Mendoza testified he tried to resolve the matter on the day appellant made the offer. Mendoza stated he first spoke with Carlos, who expressed his willingness to dismiss any charges against appellant, and then relayed Carlos s intention to appellant. Sam Vera, another co-worker, L.U.L.A.C. and union member, testified Carlos told him at the beginning he was agreeable to settling the matter; however Vera did not know the exact date of this conversation.

Appellant claims the foregoing testimony proved he did not intend to influence Carlos to dismiss the charge. However, the testimony of Carlos and Garza contradicts appellant s claim, and the trial court, as the trier of fact, could choose to believe these witnesses and give more weight to their testimony. See Johnson, 23 S.W.3d at 7; Joseph, 897 S.W.2d at 376.

Further, appellant made continued efforts to have the assault charge dismissed. He contacted an attorney to assist him and used Mendoza to persuade Carlos to sign the affidavit and release. When asked why he had these documents prepared, appellant admitted he was concerned with keeping his job.[5] He further testified he needed to resolve the assault charge by either going forward to trial or having it dismissed. Although these efforts were made after the offer at issue, they belie appellant s claim that he did not believe Carlos was a prospective witness in an official proceeding when the offer was made.

Finally, Carlos testified he received odd, harassing phone calls during the prosecution of the assault charge.[6] He told Lynn he was afraid of what appellant would do next. Likewise, Garza testified he felt intimidated or threatened during the proceeding. At one point, Garza was mailed a copy of his mug shot from an arrest nine years before.[7] Sam Vera s return address was on the envelope. Further, Lynn testified appellant was the only person who requested a copy of this mug shot in the previous year. Although there is no direct proof appellant sent the mug shot, the trial court could reasonably infer he had it sent. These events further support appellant s intent to influence the prospective witnesses to the assault proceeding.

Based upon the foregoing, we find that a rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. See King, 29 S.W.3d at 562. We further find that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 7. The evidence is legally and factually sufficient to support appellant s conviction and his issues are overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 11, 2003.

Panel consists of Justices Anderson, Seymore and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Appellant could not deliver the documents himself because by then, he had been suspended by MTA; he was later fired for engaging in workplace violence.

[2] The affidavit apparently placed equal blame on Carlos for the incident.

[3] Carlos and Garza confirmed they never received these subpoenas.

[4] Appellant also argues Carlos was not aware of any pending charge when appellant offered the money and, therefore, was not a prospective witness in an official proceeding. The evidence is conflicting on whether Carlos knew the assault charge was pending. Nevertheless, his knowledge is immaterial. We consider the intent element from the perspective of the accused not the prospective witness. See Tex. Pen. Code Ann. 36.05(a) (Vernon 2003); Arnold v. State, 68 S.W.3d 93, 99 100 (Tex. App. Dallas 2001, pet. ref d) (considering different witness-tampering offense influencing a witness to elude legal process, see Tex. Pen. Code Ann. 36.05(a)(3) but holding as long as the accused believed the legal process was extant or imminent, proof of the requisite mental state for witness tampering is met).

[5] Appellant had worked for MTA for eleven years, but this was not the first time he had been dismissed.

[6] Due to appellant s objections at trial, the caller s identity was not established.

[7] Garza successfully completed deferred adjudication following this arrest, and his record had been nullified, to his knowledge.