Tommie Leon Jones v. The State of Texas--Appeal from County Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00365-CR

Tommie Leon Jones,

Appellant

v.

The State of Texas,

Appellee

From the County Court

Robertson County, Texas

Trial Court No. 07-382-CR

MEMORANDUM Opinion

Jones appeals his conviction for terroristic threat with intent to place a person in fear of imminent serious bodily injury. See Tex. Penal Code Ann. 22.07(a)(2), (c) (Vernon Supp. 2008). Serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. 1.07(a)(46) (Vernon Supp. 2008). The State did not file a brief. Sustaining Jones s first issue would call for rendition of a judgment of acquittal; sustaining Jones s second or third issue would call for remand for further proceedings. We reverse and remand.

Sufficiency of the Evidence. In Jones s first two issues, he contends that the evidence that he intended to place Maxine Vaughn in fear of imminent serious bodily injury was insufficient.

Legal Sufficiency. In Jones s first issue, he contends that the evidence was legally insufficient.

In assessing the legal sufficiency of the evidence . . . , we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (internal footnote omitted) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Wilhoit v. State, 638 S.W.2d 489, 494 (Tex. Crim. App. 1982); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. [Panel Op.] 1981). Under a legal sufficiency review, our role is not to become a thirteenth juror. This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder. Williams at 750 (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). Thus, reviewing courts give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Williams at 750 (quoting Hooper at 13) (internal quotation marks omitted); see Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). [C]ourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review. Evans v. State, 202 S.W.3d 158, 165 n.27 (Tex. Crim. App. 2006) (quoting City of Keller v Wilson, 168 S.W.3d 802, 821 (Tex. 2005)) (alteration added). When the court is faced with a record of historical facts that supports conflicting inferences, it 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. Jackson at 326; Evans at 164 n.19.

Jones concedes the evidence that he said to Vaughn on the date alleged in the indictment, [W]ell, you know you are dead ; and a couple of days later, [Y]ou remember I told you, you were dead. (Br. at 2 (quoting 2 R.R. at 100, 101-102) (alterations added).) By the second time, Vaughn felt like [Jones] meant business. (Id. (quoting 2 R.R. at 101) (alteration added).)

Viewing the evidence and inferences therefrom in the light most favorable to the prosecution, we hold that reasonable jurors could have believed beyond a reasonable doubt that Jones intended to place Vaughn in fear of imminent serious bodily injury. The evidence was legally sufficient. We overrule Jones s first issue.

Factual Sufficiency. In Jones s second issue, he contends that the evidence was factually insufficient.

Evidence may be factually insufficient if: 1) it is so weak that the verdict is clearly wrong and manifestly unjust or 2) the adverse finding is against the great weight and preponderance of the available evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); see Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). [T]he evidence . . . is factually insufficient if it is so weak that the jury s verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury s verdict, though supported by legally sufficient evidence, is nevertheless against the great weight and preponderance of the evidence. Berry at 854 (citing Watson at 414-15); see Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Such a factual sufficiency review requires the reviewing court to consider all of the evidence. Berry at 854 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007)). [T]he evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); accord Johnson, 23 S.W.3d at 7. A clearly wrong and unjust verdict occurs where the jury s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry at 854 (citing Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003)); accord Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). [A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury s verdict before it is justified in reversing for factually insufficient evidence. Watson at 417.

When reversing on insufficiency grounds, the appellate court must detail the evidence relevant to the issue in consideration and clearly state why the jury s finding is factually insufficient. The opinion must state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Johnson, 23 S.W.3d at 7 (citing Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996)); see Roberts v. State, 221 S.W.3d 659, 664 n.8 (Tex. Crim. App. 2007); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

Reversal of the judgment and remand for a new trial is the proper remedy when a court of appeals finds that evidence is factually insufficient. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004)); see Watson, 204 S.W.3d at 414.

Jones points primarily to the following evidence. About May 12, 2007, Vaughn lost her campaign for reelection to the Hearne City Council. On May 29, the date of the first Council meeting after the election, when Jones first said to Vaughn that she was dead, Vaughn did not feel threatened. Vaughn waited while Jones went back inside the Council chamber, and when Jones came back outside, Vaughn continued to ask Jones what he had meant. Jones told Vaughn that she had skeletons in the closet and was not perfect. (Br. at 2 (citing 2 R.R. at 100).) Jones did not raise his voice, did not appear to have a weapon, and did not raise his fist. On May 31, when Jones again said to Vaughn, [Y]ou are dead, he added, and I mean politically dead. (Id. (quoting 2 R.R. at 106) (alteration added).)

Considering all the evidence in a neutral light, we hold that the great weight and preponderance of the evidence contradicts the jury s finding that Jones intended to place Vaughn in fear of serious bodily injury. The evidence that Jones, in referring to Vaughn s political death, described a state of affairs or, at most, threatened Vaughn with blackmail, greatly outweighs the evidence that Jones intended to place Vaughn in fear of serious bodily injury. The evidence was factually insufficient. We sustain Jones s second issue.

Conclusion. Having overruled Jones s first issue and sustained his second, without reaching his third issue, we reverse the judgment and remand the cause.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and remanded

Opinion delivered and filed August 6, 2008

Do not publish

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