Michael Andrew Wortham v. State ( 2003 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-02-505 CR ____________________

MICHAEL ANDREW WORTHAM, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 159^th District Court Angelina County, Texas Trial Court No. 23093

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MEMORANDUM OPINION

A jury convicted Michael Andrew Wortham of the offense of retaliation and assessed punishment, with an enhancement, of eight years confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Pen. Code Ann. §§ 12.42(a)(3), 36.06 (Vernon 2003).

Wortham first argues the indictment does not allege a threat sufficient to sustain a conviction. The indictment alleges Michael Wortham intentionally or knowingly threatened to harm Lawanda Wortham in retaliation for her reporting a crime (criminal trespass): appellant stated that he would return to her residence, that the police could not provide her with twenty-four hour security, and that she needed twenty-four hour security. Any allegation of a defect in the indictment was waived, because there was no objection before the date on which the trial on the merits commenced. Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon Supp. 2003).

Wortham next argues the evidence is legally and factually insufficient to support a conviction for retaliation. He says there is no evidence that he made any direct threat against Lawanda Wortham, that he had any weapons, that he made any threatening gestures, or that he threatened to harm her by an unlawful act.   

In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002). In a factual sufficiency review, we view the evidence in a neutral light and set aside the verdict only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002).

Two officers testified concerning the offense, and a videotape of the offense was admitted into evidence. Appellant seems to argue there is some discrepancy between the videotape and the officers' testimony. However, the testimony set forth in the record is not contradicted by the events shown on the videotape. In June 2002, Lawanda Wortham came to the Lufkin Police Department and complained that her brother Michael was trespassing on her property. A previous trespass warning regarding the sister's residence had been issued against Wortham six months to a year earlier. Another trespass warning against Wortham was currently on file; Wortham indicated to the officers he knew about the current warning, and he had a copy in his pocket when the officers booked him. In response to her trespass complaint, an officer went to Lawanda Wortham's home, found Michael Wortham there, and informed him four or five times his sister wanted him to leave. Michael Wortham was "very argumentative." The officer observed Wortham gather a few belongings and then argue with his sister for fifteen or twenty minutes. Lawanda Wortham explained she did not want her brother in her home anymore and repeatedly stated she wanted him to leave the premises. She feared for her safety and her property if Wortham remained there after the officers left. The officers arrested him for criminal trespass, the crime reported by Lawanda Wortham. One officer testified that while being taken to the police car, Wortham stated to his sister, "I have to come back." "The police can't be here 24 hours; you're going to need 24-hour security." Another officer testified Wortham stated his sister could not have police there all the time watching over and protecting her.

The purpose of the retaliation statute is to encourage performance of vital public duties without fear of retaliation. See Doyle v. State, 661 S.W.2d 726, 729 (Tex. Crim. App. 1983). The intent to retaliate may be inferred from an accused's acts, words, or conduct. In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.--Fort Worth 2002, no pet.) (citing Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982) (intent and terroristic threat). An express, direct threat is not required by the statute. See Tex. Pen. Code Ann. § 36.06; Hastings v. State, 82 S.W.3d 493, 495 (Tex. App.--Austin 2002, pet. ref'd) (While being questioned, appellant became belligerent and told police "you better watch out, you don't know who you're dealing with. Once I'm free, I'm going to get you."); Davis v. State, 890 S.W.2d 489, 491-92 (Tex. App.--Eastland 1994, no pet.) ("I'm tired of all you people, quote, 'messing with me.'" "[Y]ou know when he killed all of those people that kept messing with him and bothering him, he was just making a statement and that's what I'm thinking about."); Cochran v. State, 783 S.W.2d 807, 810 (Tex. App.--Houston [1^st Dist.] 1990, no pet.) (Jury could properly conclude that the language in appellant's letter, "thanking complainant for putting him away in prison and telling complainant that he love[d] her for it, [was] sarcastic, and that the true intent of the letter [was] to threaten complainant.").

The jury is the exclusive judge of the credibility of the witnesses and the weight to be given the testimony, and may accept or reject all or any part of the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). A jury may draw reasonable inferences from basic facts to ultimate facts. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). Given the context in which Wortham made the statements, the jury reasonably could have concluded his remarks were a threat to harm Lawanda Wortham, by unlawful action, for reporting a crime. We overrule issues one and two.

The conviction is affirmed.

AFFIRMED.

PER CURIAM

Submitted on March 26, 2003

Opinion Delivered April 9, 2003

Do Not Publish

Before McKeithen, C.J., Burgess, and Gaultney, JJ.