Jones v. State

Full title: CHEZ DIOR JONES, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 2, 2006

No. 05-05-01633-CR (Tex. App. Nov. 2, 2006)

Opinion

No. 05-05-01633-CR

Opinion Filed November 2, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 296^th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-82297-04. Affirmed.

Before Justices BRIDGES, FITZGERALD, and LANG.

OPINION

Opinion By Justice LANG.

After a jury trial, appellant Chez Dior Jones was found guilty of retaliation and sentenced to three years' incarceration. Jones raises three issues on appeal. First, he contends the evidence is legally insufficient to support a finding of guilt on the charge of retaliation due to a variance between the indictment and the proof offered at trial. In his second and third issues, Jones complains the evidence is legally and factually insufficient to prove he harmed or threatened to harm anyone by means of an unlawful act. We decide against appellant on all three issues. The judgment of the trial court is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 23, 2004, Officer Christopher Grollnek encountered appellant Chez Dior Jones while Grollnek was on-duty as a police officer for the city of McKinney, Texas. Grollnek testified that during the encounter, appellant made statements regarding the color of Grollnek's skin, telling him that he was "the enemy" because he was white and able to obtain gainful employment. At the end of the conversation between appellant and Officer Grollnek, appellant raised his fist in the air and made statements about "black power" and "the power that will rise." The next day, officers from the McKinney Police Department were dispatched to the Manor House Apartments in McKinney on a report of possible public intoxication. Officers located a group of men, including appellant, sitting outside the complex. When an officer asked the individuals to sit on the curb and cross their legs for officer safety, appellant told the other men to squat instead "in case we need to do something" or "in case we get wronged." The lead officer on the scene collected identification from the individuals and ran routine computer checks. Meanwhile, appellant spoke about the police being "the enemy," stating there were more of his people than the police and they will "win" and "beat" the police. No one was found to be intoxicated. After completing the computer checks, the lead officer released all the men except one with an outstanding warrant and appellant and all the police officers, except Officer John Calloway and Detective Techia Shannon, left the apartments. Appellant raised his fist and shouted "black power" as the officers left. Officer Calloway went into the manager's office of the apartment complex to find out if the manager wanted criminal trespass warnings issued. While Officer Calloway was inside the office, appellant approached Detective Shannon and asked if she could call the officers who left because he thought one of them still had his identification. When Detective Shannon asked appellant why there was so much tension between the men outside the Manor House Apartments and the police, appellant said that the police department was trying to "take over Manor House" and to "take away their way of life and how they pay their rent." He explained that he was in the process of training other residents to "rise up" against the police. When Officer Calloway left the manager's office, he walked over and joined the group with appellant and Detective Shannon. Appellant told Shannon and Calloway that he "could use a good sister and brother like you with your skills." He referred to the rest of the police as "blonde-haired, blue-eyed devils," and made comments about specific officers in McKinney Police Department. He referred to one officer as "that bald headed mother fucker with the tattoos on his arms." The officers identified the person appellant referred to as Officer Grollnek because he was the only bald officer with tattoos. Appellant said that officer's "ass was X'd out" and motioned with his hands in a manner Officer Calloway described as "as if he was going to take him out." According to Detective Shannon, appellant said that Grollnek "was going to get his and he is on my list; he is going to be X'd out, and we know he has kids and family and we don't care." Appellant also claimed he was "the new Black Panthers" and yelled "black power" again. At that point, the officers ended the conversation. They immediately returned to the McKinney Police Department and gave a report of the conversation to their superiors. On November 9, 2004, appellant was charged by indictment with one count of retaliation arising out of the events on August 24, 2004. After a jury trial, appellant was convicted and sentenced to three years in the Texas Department of Corrections Institutional Division. This appeal followed.

II. VARIANCE

A. Standard of Review A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App. 2001). A variance between the allegations in the charging instrument and the evidence adduced at trial is a sufficiency issue. Goodman v. State, 190 S.W.3d 823, 833 (Tex.App.-Fort Worth 2006, pet. ref'd); see Gollihar, 46 S.W.3d at 247. In reviewing legal sufficiency, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). A variance claim is also subject to an additional materiality analysis which is not required under a traditional sufficiency of the evidence review. Goodman, 190 S.W.3d at 833; Gollihar, 46 S.W.3d at 247 n. 7. Under the standard set out by the Court of Criminal Appeals in Gollihar, only a material variance will render the evidence insufficient. Gollihar, 46 S.W.3d at 257. "A variance is material if the charging instrument, as written, did not give the defendant adequate notice of the charge against him or if the charging instrument, as written, subjected the defendant to the risk of a second prosecution for the same crime." Goodman, 190 S.W.3d at 833 (citing Gollihar, 46 S.W.3d at 257). A variance that is not prejudicial to a defendant's "substantial rights" is immaterial. Gollihar, 46 S.W.3d at 248. When dealing with a variance claim, appellate courts must review the sufficiency of the evidence by comparing the evidence with the indictment as incorporated into a hypothetically correct jury charge for the case. Gollihar, 46 S.W.3d at 252; Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997). "Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.2d at 240. The manner and means of committing an offense are not elements of that offense. Phelps v. State, 999 S.W.2d 512, 517 (Tex.App.-Eastland 1999, pet. ref'd). Accordingly, the manner and means of committing an offense should not be included in a hypothetically correct jury charge because their inclusion would unnecessarily increase the State's burden of proof. See id. at 518 ("The hypothetically correct jury charge should not include unnecessary allegations, as they are not legally-essential elements of the crime.").

B. Application

Appellant argues the evidence is legally insufficient to show he committed the offense of retaliation due to a variance between the indictment and the evidence adduced at trial. The indictment charged appellant with retaliation, stating:

[Appellant] did then and there threaten to harm another, to-wit: Officer Chris Grollnek, by an unlawful act, to-wit, by stating `that bald headed white boy with the tattoo on his forearm his ass is X'd out,' in retaliation for and on account of the service of Chris Grollnek as a public servant, to-wit, McKinney Police Officer.

The evidence at trial, however, was that appellant said, "that bald headed mother fucker with the tattoos on his arm, his ass is X'd out." Appellant argues that the indictment did not give him sufficient notice of the manner and means by which the threat was allegedly committed against the officer. He also argues that because he did not know the exact statement, he could not prepare an adequate defense for trial. However, contrary to appellant's argument, the charging instrument in this case provided him with sufficient notice of the charge against him. Only a material variance renders evidence insufficient. Gollihar, 46 S.W.3d at 247. The State was not required to prove the precise manner and means by which appellant threatened to harm Officer Grollnek. See Phelps, 999 S.W.2d at 512. Furthermore, appellant's defense did not involve the variance. Appellant's defense was that the officers fabricated the entire incident. Accordingly, we conclude the variance did not affect appellant's substantial rights by failing to provide him with adequate notice of the charge against him. Additionally, appellant argues the wording of the statement as written in the indictment could subject him to prosecution for this offense again for any McKinney police officer who meets the description in the indictment or was mentioned in the discussion at a later time. However, appellant is not in danger of being prosecuted again for retaliation based on his August 24, 2004 statements. See Gollihar, 46 S.W.3d at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir. 1988) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution)). The indictment and the record at trial clearly establish that appellant was tried for threatening to harm Officer Grollnek, the only McKinney police officer who matched the description appellant gave on August 24, 2004. The State would not be able to prosecute appellant again for the same statement. We conclude the variance between the wording of the indictment and the evidence adduced at trial was not material and decide against appellant on his first issue.

III. LEGAL AND FACTUAL SUFFICIENCY A. Standards of Review

Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex.App.-Dallas 2006, pet. ref'd). Also, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Johnson, 23 S.W.3d at 7; Lee, 186 S.W.3d at 654.

1. Legal Sufficiency

The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Lee, 186 S.W.3d at 654. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998); Lee, 186 S.W.3d at 654.

2. Factual Sufficiency

A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Lee, 186 S.W.3d at 655. First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Cain, 958 S.W.2d at 407; Lee, 186 S.W.3d at 655. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Cain, 958 S.W.2d at 407; Lee, 186 S.W.3d at 655. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee, 186 S.W.3d at 655. Third, all of the evidence is viewed in a neutral light. See Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Lee, 186 S.W.3d at 655. The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997); Lee, 186 S.W.3d at 655. This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Watson v. State, No. PD-469-05, 2006 WL 2956272, *10 (Tex.Crim.App. Oct. 18, 2006); see also Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.

B. Applicable Law

To prove the offense of retaliation, the State was required to prove that appellant intentionally or knowingly harmed or threatened 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 2006). Although not specifically mentioned in the Penal Code definition of a "public servant," courts have interpreted the term to include a police officer. See, e.g., Bryson v. State, 807 S.W.2d 742, 745-46 (Tex.Crim.App. 1991); Carriere v. State, 84 S.W.3d 753, 757 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); McCoy v. State, 932 S.W.2d 720, 723 (Tex.App.-Fort Worth 1996, pet. ref'd). Article 36.06 does not require that the threat be direct. Davis v. State, 890 S.W.2d 489, 491 (Tex.App.-Eastland 1994, no pet.). Additionally, the statute does not require the threatened retaliatory harm be imminent, nor does it require that the actor actually intend to carry out his threat. In re B.P.H., 83 S.W.3d 400, 407 (Tex.App.-Fort Worth 2002, no pet.); In re B.M., 1 S.W.3d 204, 207 (Tex.App.-Tyler 1999, no pet.); Coward v. State, 931 S.W.2d 386, 389 (Tex.App.-Houston [14th Dist.] 1996, no pet.); Puckett v. State, 801 S.W.2d 188, 194 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). Retaliation is a result oriented offense and the focus is on whether the conduct is done with an intent to effect the result specified in the statute. In re B.P.H., 83 S.W.3d at 407; Herrera v. State, 915 S.W.2d 94, 98 (Tex.App.-San Antonio 1996, no pet.). Retaliatory motivation may be shown by circumstantial evidence. See Coward, 931 S.W.2d at 388. Finally, retaliatory intent may be inferred from an accused's acts, words, or conduct. In re B.P.H., 83 S.W.3d at 407; see Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. [Panel Op.] 1982).

C. Application

In his second issue, Jones argues the evidence is legally insufficient to support his conviction because the State did not offer evidence that the alleged statement "his ass is X'd out" was meant as a threat to harm Officer Grollnek and because he offered the testimony of a witness that he did not make the alleged threat. We disagree. While no definition of the term "X'd out" was introduced, Officer Calloway and Detective Shannon both testified that they interpreted the statement "his ass is X'd out" as a threat to Officer Grollnek. Additionally, Officer Calloway testified that he interpreted the gesture appellant used along with the statement "as if [appellant] was going to take [Officer Grollnek] out." Based on this evidence, the jury could have found the essential elements of retaliation, that appellant intentionally or knowingly harmed or threatened to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant, beyond a reasonable doubt. See Tex. Pen. Code Ann. § 36.06(a)(1)(A). In his third issue, appellant contends the evidence is factually insufficient to support his conviction for retaliation because there is no direct evidence that he threatened to harm Officer Grollnek. He argues that no evidence was offered that the jury could have used to justify its verdict that he threatened to harm Officer Grollnek by the means of an unlawful act. Therefore, he argues the evidence is factually insufficient to support the jury's verdict. The State was not required to prove that appellant's threat was direct. Davis, 890 S.W.2d at 491. Furthermore, retaliatory intent may be inferred from an accused acts, words, or conduct. In re B.P.H., 83 S.W.3d at 407; see Dues, 634 S.W.2d at 305. In this case, the State offered the testimony of Officer Calloway and Detective Shannon regarding appellant's statement as well as the gesture appellant made. The officers explained why they viewed it as a threat to Officer Grollnek. While appellant then offered the testimony of a witness who said appellant did not make the threat, the jury was the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. We may not substitute our own determination for that of the jury. Having reviewed all the facts under the proper standards, we cannot conclude the evidence was legally or factually insufficient to support the conviction for retaliation. We decide against appellant on his second and third issues.

IV. CONCLUSION

We decide Jones's three issues against him. Having reviewed all the evidence under the proper standards, we cannot conclude there is a material variance between the indictment and the evidence adduced at trial or that the evidence is legally or factually insufficient to support the retaliation conviction. The judgment of the trial court is affirmed.