Opinion
No. 04-06-00096-CR
Delivered and Filed: September 12, 2007. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2005CR4819, Honorable Pat Priest, Judge Presiding. AFFIRMED.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Richard Charles Salinas was convicted by a jury of retaliation and was sentenced as a repeat offender to twelve years imprisonment. On appeal, Salinas asserts: (1) the evidence is insufficient to support his conviction; (2) the trial court erred in defining the required mental state for the offense of retaliation in the jury charge; (3) trial counsel rendered ineffective assistance of counsel; and (4) the trial court erred in denying a mistrial during closing argument. We affirm the trial court's judgment.
Background
Rose Fuentes, a TDCJ parole officer, testified that she was Salinas's parole officer from August 2004 to January 2005. Fuentes met with Salinas once a month in the office and once a month for a scheduled home visit. Fuentes stated that she and Salinas "got along well" and "had good rapport." One of Fuentes's responsibilities during these meetings was to review any pending charges against Salinas. During a meeting on January 5, 2005, Fuentes informed Salinas that he had a theft charge with a pending court date. Salinas nodded his head and said, "You know, one day I am going to assassinate that guy, and I have the high-powered weapon to do so." Salinas was very calm when he made the statement, and Fuentes testified that Salinas was referring to Stephen Gray, the person who initiated the theft charge. After Fuentes responded that Salinas should not say things like that, Salinas grinned and said something to the effect of "Well, not really," or "I'm just kidding." Salinas's threat concerned Fuentes. After Salinas left, Fuentes reported the incident to her supervisor. The following day, Fuentes was instructed by her supervisor to call the police department and file a police report. An officer then took Fuentes's statement and instructed Fuentes to contact Gray and inform him of the threat. On cross-examination, Fuentes stated that Salinas was allowed to leave pursuant to the policies her department follows. Fuentes stated that she did not ask Salinas questions to clarify whether his threat was serious; however, Fuentes testified that she believed the threat was serious. Officer Ray Ramey testified that he received a call for a report of a terroristic threat. Officer Ramey contacted Fuentes who told him about the event the prior day. Officer Ramey determined that a terroristic threat had occurred and attempted to contact Gray. Officer Ramey only later realized that the threat constituted the offense of retaliation after speaking with Gray. Officer Ramey then sent his report to the appropriate department for further handling. On cross-examination, Officer Ramey stated that he was not told that Salinas stated that he was joking or kidding after making the threat. Officer Ramey said that making the additional statement that he was joking or kidding would make a difference in a terroristic threat situation but not in a retaliation situation. After speaking with Gray, Fuentes, and Salinas, Detective Devon Lambert, who was assigned the case for follow-up, filed the case with the district attorney's office. On cross-examination, Detective Lambert testified that Fuentes told him she was not certain if Salinas was serious or not. Gray, a federal probation officer, hired Salinas to assist him in moving. Gray confronted Salinas about the price and some contract alterations. Gray called the police because he had concerns for his safety. Gray also believed that a theft had been committed because he was missing some of his property. Salinas was aware that Gray reported the theft to the police. When Fuentes contacted Gray to inform him of the threat, Gray took the threat seriously and contacted the U.S. Marshals office for advice. Gray stated that he intended to testify against Salinas at the trial on the theft charges. Gray also testified regarding the events that occurred while Salinas was delivering his furniture, and all of the actions Gray took as a result of Salinas's actions.Sufficiency
In determining the legal sufficiency of the evidence, we review all the evidence 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In conducting a factual sufficiency review, this court views all of the evidence in a neutral light and sets aside the verdict only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). "[D]ue deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence," and a reviewing court's disagreement "with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. at 9. To prove the offense of retaliation, the State was required to prove that: (1) Salinas; (2) knowingly threatened to harm another by unlawful act; (3) in retaliation for or on account of the services of another as a; (4) witness or prospective witness. Tex. Pen. Code Ann. § 36.06(a)(1)(A) (Vernon Supp. 2006); In re B.P.H., 83 S.W.3d 400, 407 (Tex.App.-Fort Worth 2002, no pet.). One of the retaliation statute's purposes is to encourage a certain class of citizens to perform vital public duties without fear of retribution. In re B.P.H., 83 S.W.3d at 407; Puckett v. State, 801 S.W.2d 188, 194 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). 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 at 407; Puckett, 801 S.W.2d at 194. Retaliatory intent may be inferred from an accused's acts, words, or conduct. Moore v. State, 143 S.W.3d 305, 310 (Tex.App.-Waco 2004, pet. ref'd); In re B.P.H., 83 S.W.3d at 407. Salinas asserts that the evidence was legally and factually insufficient to establish that: (1) he intended his statement to be a threat; (2) he intended for his statement to be communicated to Gray; and (3) his statement was made in retaliation for Gray's service as a prospective witness. With regard to Salinas's intent, Salinas argues that because he stated that he was joking, he did not intend for his statement to be a threat or for it to be communicated to Gray. The jury, however, was free to disbelieve that Salinas was intending to make a "joke" instead of a "threat" for several reasons. First, Salinas made his statement to a parole officer who was questioning him about pending criminal charges. The jury was required to consider the likelihood of Salinas joking about killing the complainant in this setting. Furthermore, given the setting, the jury could have inferred that Salinas must have known a parole officer would have to report the threat and take action to protect the target of the threat. See Doyle v. State, 661 S.W.2d 726, 728-29 (Tex.Crim.App. 1983) (finding evidence sufficient to support retaliation conviction though threat made to an officer investigating a different offense and not directly to the target of the threat). In addition, Salinas was serious and calm when he made the threat and did not state that he was joking until after Fuentes chastised him for making the threat. The jury could have inferred that Salinas intended his statement as a threat until he was alerted that such a statement could cause him additional trouble. Although Officer Ramey stated that it would have made a difference to him if Salinas had stated he was joking, Officer Ramey was not informed that Salinas said he was joking only after Fuentes chastised Salinas. With regard to whether Salinas's statement was made in retaliation for Gray's service as a prospective witness, Salinas made the statement in the context of Fuentes asking him questions about the pending charge which had been reported by Gray. From this context, the jury could have inferred that the threat was made in retaliation for Gray's service as a prospective witness. The evidence is legally and factually sufficient to support Salinas's conviction.Jury Charge
In evaluating an allegation of charge error, we must first decide whether there was error in the jury charge. Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984); see also Ex parte Smith, 185 S.W.3d 455, 464 (Tex.Crim.App. 2006). If so, the next step is to assess the harm that the deficient jury charge caused the defendant. Almanza, 686 S.W.2d at 171, 174; Ex parte Smith, 185 S.W.3d at 464. The record must demonstrate that the defendant has suffered actual, not just theoretical, harm. Almanza, 686 S.W.2d at 174; Guevara v. State, 191 S.W.3d 203, 206 (Tex.App.-San Antonio 2005, pet. ref'd). On appeal, we assess the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; Guevara, 191 S.W.3d at 206. If the defendant failed to object to the jury charge, he must show that the error caused him such egregious harm that he did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Guevara, 191 S.W.3d at 206. Retaliation is a result-oriented offense. In re B.P.H., 83 S.W.3d at 407. The State concedes that the definitions given for the terms "intentional" and "knowing" were erroneous because they defined the terms in relation to the nature of the conduct and not to the result. Salinas, however, concedes that he made no objection to the jury charge; therefore, he must show egregious harm. Although the definitions given focused on the nature of the conduct in making the threat, the charge as a whole precludes us from finding that the error in the abstract definitions resulted in egregious harm. The application portion of the jury charge properly instructed the jury that it was required to find beyond a reasonable doubt that Salinas intentionally or knowingly threatened to harm Gray by threatening to kill him in retaliation for or on account of his status as a prospective witness. If the application paragraph correctly instructs the jury, any error contained in the abstract instruction is not egregious. See Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999) (error in abstract definition not egregious if application paragraph correctly instructs the jury); Fuentes v. State, No. 04-01-00351-CR, 2002 WL 1285298, *1 (Tex.App.-San Antonio June 12, 2002, pet. ref'd) (same) (not designated for publication). Accordingly, "the jury's focus was properly directed to the result of appellant's conduct and not to the conduct itself," and Salinas has failed to show egregious harm. Herrera v. State, 915 S.W.2d 94, 98 (Tex.App.-San Antonio 1996, no pet.).Ineffective Assistance of Counsel
Salinas contends that defense counsel was ineffective in cross-examining Gray regarding the details behind the theft charge, thereby eliciting substantial and prejudicial evidence against his own client. To reverse a criminal defendant's conviction on ineffective assistance grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812, 813 (Tex.Crim.App. 1999); Hernandez v. State, 198 S.W.3d 257, 269 (Tex.App.-San Antonio 2006, pet. ref'd). We look to the totality of the representation at trial, not isolated acts or omissions of counsel in hindsight. Thompson, 9 S.W.3d at 813; Hernandez, 198 S.W.3d at 269. To show deficient performance, the first prong of the Strickland standard, Salinas must prove that his counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson, 9 S.W.3d at 812, 814. To satisfy this prong, any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Thompson, 9 S.W.3d at 813-14. Salinas focuses on a statement made during closing argument by one defense attorney to the effect that the cross-examination of Gray by a different defense attorney was a mistake because Gray's personality was not relevant to the case. This statement, however, acknowledges that the "mistake" was hindsight and provides no insight as to what the trial strategy was at the time of the cross-examination. Thus, the record is silent as to the trial strategy being pursued at the time defense counsel was cross-examining Gray. As the State suggests, the strategy may have been to portray Gray as irrational and unreasonable so that the jury did not view him sympathetically. Alternatively, the strategy may have been to show the threat was made due to the personal nature of the confrontation and all of the resulting actions taken by Gray and not in retaliation for Gray's service as a prospective witness. For example, the cross-examination disclosed that Gray contacted Salinas's parole supervisors, complained about him to the Better Business Bureau, brought civil proceedings against him, and testified against him at a parole revocation hearing. Since the record is silent, Salinas cannot overcome the presumption that his trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814. This opinion does not preclude Salinas from raising his ineffective assistance claim in an application for post-conviction writ of habeas corpus. See id. at 814-15 (noting recourse available for ineffective assistance of counsel claims via an application for writ of habeas corpus).Closing Argument
Salinas's final issue relates to a statement made by the prosecutor during closing argument to the effect that she believed Salinas "meant" his threat. Specifically, the prosecutor argued:The sole thing for you to determine is whether on or about January 5th, in Bexar County, the defendant, intentionally threatened to harm Stephen Gray by threatening to kill him as a prospective witness, and none of this is in question, and that is why I told you it is a straightforward case.
Nothing is in question. There were just other things brought up to try to muddy the waters but it is a very straightforward case. He said it. I think he meant it, but that is not the question.(emphasis added). Defense counsel immediately objected, requested the comment to be stricken because the prosecutor cannot testify, and requested a mistrial. The trial court sustained the objection, struck the comment, and instructed the jury, "The personal opinion of the prosecutor is not relevant in your decision." The trial court denied the motion for mistrial. Assuming that the prosecutor's argument was improper, it is well established that, generally, when a trial court sustains an objection to improper jury argument and instructs the jury to disregard the improper statement, any existing error is cured. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987) (appellate court presumes jury obeyed instruction to disregard); Logan v. State, 698 S.W.2d 680, 682 (Tex.Crim.App. 1985). It is only when a comment to the jury is so inflammatory that its prejudicial effect cannot be reasonably cured by an instruction to disregard that reversible error will result. Logan, 698 S.W.2d at 682 (argument must be "extreme, manifestly improper, inject new and harmful facts into the case, or violate a mandatory statutory provision" to constitute reversible error). The ultimate determination of whether the argument is sufficiently harmful to warrant reversal is based on the argument's probable effect on the minds of the jurors. Id. Viewed in context, the prosecutor's single comment regarding her opinion as to whether Salinas "meant" his statement was not so extreme or prejudicial that it could not be cured by the trial court's instruction to disregard. Therefore, the trial court did not abuse its discretion in denying the motion for a mistrial. See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000) (an improper question will only require a mistrial when it is clearly prejudicial to the defendant and "is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors").