White, Antwan Martice v. State

Affirmed and Memorandum Opinion filed September 28, 2006

Affirmed and Memorandum Opinion filed September 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00454-CR

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ANTWAN MARTICE WHITE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338^th District Court

Harris County, Texas

Trial Court Cause No. 973,883

M E M O R A N D U M    O P I N I O N

Appellant, Antwan Martice White, was convicted by a jury of retaliation due to his fraudulent use of personal information belonging to retired Judge Mary Bacon.  The jury assessed his punishment at eight years= confinement in the Texas Department of Corrections, Institutional Division, and also levied a $1,000 fine.  On appeal, he raises two issues: (1) venue was improper in Harris County, and (2) the evidence is legally insufficient to support his conviction as to the element of harm.  We affirm.

I.  Factual and Procedural Background

In 1992, appellant appeared before the 338th District Court of Harris County, Texas, over which now-retired Judge Mary Bacon presided. Appellant was charged with two aggravated robberies.  For one of those offenses, appellant entered into a plea agreement.  For the other, he entered a plea of guilty, but asked a jury to assess punishment.  Judge Bacon signed the judgments and sentences.  Necessarily, those judgments and sentences included appellant=s full name, which he considers to be copyrighted.

On October 15, 2002, appellant filed a lien with the Texas Secretary of State against Judge Bacon=s personal and/or real property.  Appellant=s lien was for $19,096,560,000.00.  Appellant=s lien was, essentially, for the unauthorized use of his copyrighted name and specifically referenced the judgment and sentences from his 1992 aggravated robbery convictions. 

Almost a year later, on October 1, 2003, appellant applied for and received a Bank One credit card utilizing Judge Bacon=s personal identifiers,^[1] such as her social security number and date of birth.  Although appellant applied online, and thus his exact location at the time of application cannot be determined, the evidence indicated he was either in Missouri or Illinois at the time.^[2] On October 30, 2003, appellant again used Judge Bacon=s personal information and applied for a Chase Bank (AChase@) credit card.  In both applications, appellant used his telephone numbers and addresses as contact information, and even requested that Chase issue a second card in his name.  Although Chase did not issue appellant a credit card, appellant was able to make $825.49 in charges to the Bank One credit card.  At no time did Judge Bacon authorize appellant to use her personal information.

Police ultimately tracked appellant to a casino where he worked in Missouri, arrested him, and had him returned to Texas.  At trial, the evidence showed that Judge Bacon had not been held personally liable for the unauthorized credit card charges.  However, she testified that she had spent considerable time resolving the problem of having a lien filed against her property in addition to the time and energy spent on the criminal matters.  She also testified she was concerned that appellant would continue to use her personal identifiers, and she was frightened of his animus toward her.

A grand jury indicted appellant for retaliation.  A jury convicted and sentenced appellant to eight years= imprisonment and levied a $1000 fine.^[3] Appellant timely filed notice of appeal.  We affirm.

II.  Issues Presented

In his first issue, appellant contends venue was improper in Harris County.  Appellant argues in his second issue that the evidence is legally insufficient to support his conviction as to the element of harm. 

III.  Discussion

A.     Legal Sufficiency of Evidence

Although appellant has presented his legal sufficiency claim as his second issue, we will consider it first because it is a point of rendition.  Appellant claims the evidence is legally insufficient to prove that he harmed Judge Bacon because she was not held personally liable for the credit card charges and thus suffered no pecuniary harm.  Appellant also argues  that emotional harm does not constitute the Aharm@ required for conviction under the Texas Penal Code.

1.       Standard of Review

In a legal sufficiency challenge, we employ a familiar standard of review, viewing the evidence in the light most favorable to the verdict.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm.  Id.   We will not re-weigh the evidence and substitute our judgment for that of the jury.  Id. 

The elements of retaliation are (1) intentionally or knowingly; (2) harming or threatening to harm; (3) another; (4) by an unlawful act; (5) in retaliation for or on account of the service or status of another; (6) as a public servant, witness, prospective witness, or informant.  See Tex. Penal Code Ann. ' 36.06(a) (Vernon Supp. 2005).  Harm is defined as Aanything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.@  Tex. Penal Code Ann. ' 1.07(a)(25) (Vernon Supp. 2005). 

2.       Judge Bacon was Harmed

Appellant asks us to limit the scope of section 1.07(a)(25) by stating that it cannot include emotional harm.  Although, Judge Bacon was not held personally responsible for either the lien or the credit card charges, the Penal Code requires only that the person have suffered a loss or have been disadvantaged or injured.  See id.  It does not specifically require the harm suffered to be pecuniary or physical.

Judge Bacon testified that she has spent considerable time addressing the problems appellant caused by his actions.  Certainly, that is a disadvantage to her.  Further, she testified that she is concerned and frightened as a result of appellant=s conduct. Appellant cites no law, and we know of none, to support his interpretation of the Penal Code that harm cannot include the emotional harm, lost time, and aggravation he caused Judge Bacon.  The retaliation statute is designed to protect public servants and limiting its scope as appellant argues would be an illogical result.  Viewed in the light most favorable to the verdict, the evidence is sufficient to sustain appellant=s conviction because he committed a crime against Judge Bacon causing her to suffer the harm of emotional distress and the protracted resolution of the lien and criminal matters.  We overrule appellant=s first issue.

B.      Venue

In his second issue, appellant argues that venue was improper in Harris County.  Essentially, appellant contends that while venue would be proper in Harris County for the underlying unlawful act of fraudulent possession or use of identifying information, that venue  determination cannot serve to establish venue for the crime of retaliation.  Thus, he contends the State was required to prove proper venue solely on the basis of the retaliation indictment.  Because the State properly proved venue on the basis of the retaliation indictment, we overrule appellant=s second issue.

1.       Standard of Review

Although the State must prove venue, it is not a Acriminative fact@ and thus not an essential element of the offense.  Sudds v. State, 140 S.W.3d 813, 817 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  The State is required to prove venue by a preponderance of the evidence.  See Tex. Code Crim. Proc. art. 13.17.  In our review, we determine if, from the evidence, the jury reasonably could have concluded that the offense was committed in Harris County.  Sudds, 140 S.W.3d at 818. 

Because our venue statutes are simply a species of codified Asubstantial contacts@ jurisdiction, venue will lie in Harris County so long as appellant, his conduct, his victim, or the fruit of his crime has some relationship to Harris County.  See Lebleu v. State, 192 S.W.3d 205, 212 (Tex. App.CHouston [14th Dist.] 2006, pet. filed) (citing Soliz v. State, 97 S.W.3d 137, 141 (Tex. Crim. App. 2003)).  The Legislature has determined and codified the types of contacts that meet the substantial contacts threshold.  Id.  Here, the evidence demonstrates that appellant was in another state when he fraudulently used and possessed Judge Bacon=s personal information.  Accordingly, we apply Texas Code of Criminal Procedure article 13.01, which governs venue determinations for offenses committed wholly or partly outside of Texas.  Tex. Code Crim. Proc. art. 13.01.  That statute requires that at least one element have occurred in Harris County.  See id.

2.       At Least One Element Occurred in Harris County

In Lebleu v. State, we confronted a similar situation to this case.  See generally, 192 S.W.3d at 205.  In that case, the defendant attacked venue in a retaliation case on the basis that no element of the offense occurred in the prosecuting county, Brazoria County.  See id. at 213.  However, we held that two elements of the retaliation statute placed venue in Brazoria County pursuant to article 13.01: the retaliation was Afor or on account of the service of another,@ and the victims were a Apublic servant@ and a Awitness.@  Id. Because their service was performed in Brazoria County, and because they attained their respective status as a public servant and a witness in Brazoria County, we held that two elements occurred in the prosecuting county.  Id. The same is true in this case.

The State introduced testimony and documents that tied appellant=s conduct to Judge Bacon=s role as judge over his aggravated robbery convictions.  The jury determined that appellant had indeed retaliated against Judge Bacon for her role as a judge of the 338th District Court in Harris County.  As in Lebleu, Judge Bacon performed her service and attained her status as a public servant in the prosecuting county.  Neither of these facts is in dispute.  Thus, two elements of the retaliation statute occurred in Harris County and venue is satisfied under article 13.01.  See Tex. Code Crim. Proc. art. 13.01.  We overrule appellant=s second issue.

IV. Conclusion

Having overruled both of appellant=s issues, we affirm the judgment of the trial court.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]   APersonal identifiers@ is a  phrase utilized by officers investigating identity theft to refer to data such as social security numbers or dates of birth.

^[2]  Appellant was living in the St. Louis, Missouri, and East St. Louis, Illinois area at the relevant times of the fraudulent use.

^[3]  Appellant was also indicted for the fraudulent use of Judge Bacon=s personal information, but he pleaded guilty to that charge and it is not before us.