Lonel Hart v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00050-CR

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LONEL HART, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31195-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Lonel Hart appeals from his conviction by a jury for retaliation. Two prior felony convictions were used as enhancements, and the jury assessed his punishment at fifty-five years' imprisonment.

Lonel raises a single issue on appeal: that the evidence is factually insufficient to support the verdict. In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt-standard could not have been met. Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004), citing Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004).

Lonel was arrested at the home of Annie Hart, his seventy-seven-year-old aunt. The evidence was that he was a regular visitor to the household, that on occasion he was intoxicated and belligerent, and that Annie often called the police. Police had given Lonel a trespassing warning in April 2003. He (and everyone else) ignored that warning, and Lonel continued to visit. It appears that, unless he was intoxicated, he was an acceptable houseguest. Lonel came to the house again August 2, 2003, and was described as being intoxicated and loud and obscene, and talking about violence. Annie testified that she asked him to leave several times and that he refused. She called police, and they took Lonel to jail.

Lonel called Annie from jail, and she testified he was speaking loudly, as he was wont to do when angry, and said:

You bitch, you think you done something smart calling the damn police and had me picked up. Bitch, you ain't done nothing smart. I'm going to beat your ass and have your little kids burnt up in your house.

The record shows that the telephone conversation was described at different times by Annie, and the exact language used differed in each description. In the police report, Annie stated Lonel had said, "You had me arrested, and if I see your mother-fucking ass again, I'll blow your mother-fucking ass up." Annie also stated she had told a police officer a day later Lonel had said, "You mother-fuckers think y'all are slick. None of you mother-fuckers are no good. I'm going to get y'all's mother-fucking ass."

Lonel points out he made the telephone call from the jail, that it was dialed by a jailer, and that the jailer was nearby while he talked to Annie. The jailer testified that, if abusive language had been used in a loud or a normal speaking voice, he would have heard it and that he did not. Telephone records showed that the call was made at 10:52:30 p.m. and that the next call out was made forty-five seconds later. The jailer also testified that one of his purposes for being there was to keep threats from being made and that, if he had heard a threat, he would have made a note and reported it. He acknowledged Lonel could have spoken softly enough for him to be unable to hear him, and counsel points out this is contrary to Annie's testimony that Lonel was speaking loudly to her over the telephone.

However, the jailer also testified that Lonel was not the only inmate with whom he was dealing at the time and that he did not know what took place during this particular telephone call or what Lonel said. The jailer also testified that, after giving the telephone to the inmate to make the call, he then typically moved to a nearby computer to process paperwork. There was some testimony about the amount of traffic and noise in the room (which was occasionally considerable on a Saturday night), but nothing specific to this particular night or time.

The ultimate point of the jailer's testimony was that he simply did not remember the incident.

Karyl Patterson, an operations clerk for the department, testified Annie telephoned the office at 10:57 that night and told her that Lonel had threatened her by telephone and that she thought the call had come from the jail. She testified that Annie sounded excited, fearful, or scared, and that Annie had recounted the threat to her, which she recorded in the report as set out above.

Lonel also points out that Annie called the police often for a number of different reasons. There was testimony that, because she was blind, she was quite aware of her surroundings and the possibility of danger, and called police often. Her daughter speculated Annie might have called as many as 200 times over the last three years.

Under the standard articulated in Threadgill and set out above, the evidence shows that a seventy-seven-year-old woman was threatened by a drunken relative. She used different words at different times to attempt to reproduce the exact words used by Lonel, but never wavered in her contention that he had, obscenely and with great directness, threatened her life. The fact the jailer did not hear the conversation, and should have had Lonel been yelling or talking loudly, does not eliminate the possibility that Lonel might have spoken relatively quietly but intensely into the mouthpiece of the telephone. Further, the volume of his speech is not the critical point. The jailer could not testify that the conversation recounted by Annie did not happen, only that he did not hear it. Further, Annie called police and reported the threat less than five minutes after the telephone call ended. The fact that she calls the police regularly about a number of occurrences that worry her does not mean that in this instance she was not actually threatened.

The evidence in favor of the verdict is not so outweighed by the contrary proof to sustain a conclusion that the evidence is factually insufficient to support the verdict. The contention of error is overruled

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: November 29, 2004

Date Decided: December 21, 2004

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