Jeffery Wayne Wheatly v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-02-00286-CR

JEFFERY WAYNE WHEATLY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # FO-01-16172

MEMORANDUM OPINION

Jeffery Wayne Wheatly is confined in the Hughes Unit of the Department of Corrections in Coryell County. He was indicted for the offense of Harassment By Persons in Certain Correctional Facilities, as provided in section 22.11 of the Penal Code. Tex. Pen. Code Ann. 22.11 (Vernon Supp. 2004). On his plea of not guilty, a jury found him guilty and assessed the maximum penalty of twenty years.

The allegation was that Wheatly, with intent to harass, alarm, and annoy them, caused Correctional Officer Birdwell to contact urine and Officer Davis to contact urine and feces. At trial, each testified about the event alleged. Each was asked about how he felt when the substances were thrown on him. Birdwell testified he was upset, annoyed, and very furious and wanted to get it off as fast as possible. Davis said it was emotional and that he felt helpless to a certain degree. Wheatly objected to these questions, but the court allowed the testimony. On appeal, he says this victim impact testimony should not have been allowed during the guilt-innocence phase of the trial because it was not relevant to any issue.

A trial court's ruling concerning the admission or exclusion of evidence may not be disturbed on appeal unless an abuse of discretion is shown. Najar v. State, 74 S.W.3d 82, 86 (Tex. App. Waco 2002, no pet.). We ask whether the trial judge's decision lies "within the zone of reasonable disagreement." Id. The trial court must first determine if the evidence is relevant under Rule 401. Id.; Tex. R. Evid. 401. If so, the evidence is admissible unless forbidden by a constitutional provision, a statute, or a rule. Id.; Tex. R. Evid. 402.

As the State points out, proof of chunking // alone does not prove the offense; the offense is complete only on proof of an intent to harass and alarm and annoy another person. A person s immediate reaction to an event can be circumstantial evidence of the defendant s intent to harass, alarm, and annoy that person; thus, it can be relevant. Tex. R. Evid. 401. If relevant, the evidence is admissible. Tex. R. Evid. 402. Because Wheatley s intent is an element of the offense, we cannot say that the trial judge s decision to admit evidence of how the alleged victims felt at the instance the conduct occurred is outside the zone of reasonable disagreement. See Najar, 74 S.W.3d at 86. We overrule the issue.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed June 23, 2004

Do not publish

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