Opinion
No. 10-02-00286-CR
Opinion delivered and filed June 23, 2004. DO NOT PUBLISH.
Appeal from the 52nd District Court Coryell County, Texas, Trial Court # FO-01-16172. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Jeffery Wayne Wheatly is confined in the Hughes Unit of the Department of Corrections in Coryell County. He was indicted for the offense of Harassment By Persons in Certain Correctional Facilities, as provided in section 22.11 of the Penal Code. TEX. PEN. CODE ANN. § 22.11 (Vernon Supp. 2004). On his plea of not guilty, a jury found him guilty and assessed the maximum penalty of twenty years. The allegation was that Wheatly, with intent to harass, alarm, and annoy them, caused Correctional Officer Birdwell to contact urine and Officer Davis to contact urine and feces. At trial, each testified about the event alleged. Each was asked about "how he felt" when the substances were thrown on him. Birdwell testified he was "upset, annoyed, and very furious" and wanted to get it off as fast as possible. Davis said it was "emotional" and that he "felt helpless to a certain degree." Wheatly objected to these questions, but the court allowed the testimony. On appeal, he says this "victim impact" testimony should not have been allowed during the guilt-innocence phase of the trial because it was not relevant to any issue. A trial court's ruling concerning the admission or exclusion of evidence may not be disturbed on appeal unless an abuse of discretion is shown. Najar v. State, 74 S.W.3d 82, 86 (Tex. App.-Waco 2002, no pet.). We ask whether the trial judge's decision lies "within the zone of reasonable disagreement." Id. The trial court must first determine if the evidence is relevant under Rule 401. Id.; TEX. R. EVID. 401. If so, the evidence is admissible unless forbidden by a constitutional provision, a statute, or a rule. Id.; TEX. R. EVID. 402. As the State points out, proof of "chunking" alone does not prove the offense; the offense is complete only on proof of an "intent to harass and alarm and annoy another person." A person's immediate reaction to an event can be circumstantial evidence of the defendant's intent to harass, alarm, and annoy that person; thus, it can be relevant. TEX. R. EVID. 401. If relevant, the evidence is admissible. Tex. R. Evid. 402. Because Wheatley's intent is an element of the offense, we cannot say that the trial judge's decision to admit evidence of how the alleged victims felt — at the instance the conduct occurred — is outside the zone of reasonable disagreement. See Najar, 74 S.W.3d at 86. We overrule the issue. We affirm the judgment.
A slang term used in prison to refer to the act of throwing a substance on an officer or staff member.