Wilbert Arceneaux, Jr. v. State ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-08-00210-CR ____________________

WILBERT ARCENEAUX, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 19767

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MEMORANDUM OPINION

Wilbert Arceneaux, Jr. appeals his felony conviction for retaliation. In one issue, he argues that the evidence is legally insufficient to support his conviction. We affirm.

While removing Arceneaux's handcuffs at the jail, Arceneaux told the Officers Kevin Ward and Scott Paske that he was going to shoot and kill them. Arceneaux did not testify at trial. Officers Ward and Paske testified about Arceneaux's threat and described the circumstances under which the threat occurred. A jury found Arceneaux guilty of retaliation.

In a legal sufficiency review, we review all of the evidence in a light most favorable to the verdict, and we decide if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The jury is the ultimate authority as to the credibility of witnesses and the weight to be given their testimony. Williams, 235 S.W.3d at 750; see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

A person commits the offense of retaliation if he "intentionally or knowingly harms or threatens to harm another by an unlawful act . . . in retaliation for or on account of the service or status of another as a . . . public servant[.]" Tex. Pen. Code Ann. § 36.06(a)(1)(A) (Vernon Supp. 2008). "Although not explicitly included in the Penal Code definition of a 'public servant,' courts have interpreted public servant to include a police officer." Carriere v. State, 84 S.W.3d 753, 757 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Bryson v. State, 807 S.W.2d 742, 745-46 (Tex. Crim. App. 1991)); see also Tex. Pen. Code Ann. § 1.07(a)(41)(A) (Vernon Supp. 2008). Arceneaux acknowledges this interpretation; he does not argue that police officers are not within the ambit of the reach of this provision of the Penal Code.

Here, the indictment alleged that Arceneaux intentionally or knowingly threatened Officer Ward "in retaliation for or on account of [Officer Ward's] services or status . . . as a public servant." On appeal, Arceneaux argues that the evidence is legally insufficient to show that Arceneaux made his statements with the "intent to inhibit" or "affect" Officer Ward's service as a police officer or that Arceneaux made the statements with the "requisite retaliatory intent" of placing Officer Ward in "fear of retribution as a result of" Officer Ward's duty as a police officer.

We do not accept Arceneaux's argument that section 36.06(a)(1)(A) of the Penal Code, the subsection under which Arceneaux was charged, requires the threat to have affected or inhibited the service rendered by the public servant. The indictment did not allege that Arceneaux made the threat to prevent or delay the service of another as a public servant, an alleged violation of section 36.06(a)(2). See Tex. Pen. Code Ann. § 36.06(a)(2) (Vernon Supp. 2008). In his brief, Arceneaux relies on Herrera v. State, 915 S.W.2d 94, 97-98 (Tex. App.-San Antonio 1996, no pet.), which construes section 36.06(a)(2). Since the indictment in this case did not allege a violation of that subsection, but instead alleged a violation of section 36.06(a)(1)(A), we find that Herrera is not persuasive with respect to the proof required to establish a violation under section 36.06(a)(1)(A). Under the plain language of subsection 36.06(a)(1)(A), the offense occurs when a person threatens harm by an unlawful act in retaliation for or on account of another person's service or status as a public servant. Tex. Pen. Code Ann. § 36.06(a)(1)(A).

From the testimony that Arceneaux's threat occurred while the officers removed his handcuffs at the jail, we hold that the jury could properly infer Arceneaux made the threat for or on account of Officer Ward's duties as a public servant. This inference was within the province of the jury. See Williams, 235 S.W.3d at 750. Thus, reviewing the evidence in the light most favorable to the conviction, a rational trier of fact could have convicted Arceneaux of retaliation. See Jackson, 443 U.S. at 319. Because we have determined that legally sufficient evidence supports Arceneaux's conviction, we overrule Arceneaux's sole issue on appeal and affirm the judgment of the trial court.

AFFIRMED.

_____________________________

HOLLIS HORTON

Justice

Submitted on March 4, 2009

Opinion Delivered April 1, 2009

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.