Carriere v. State

• Decision Date: 15 August 2002
• Docket Number: No. 01-01-00172-CR.,No. 01-01-00171-CR.,01-01-00171-CR.,01-01-00172-CR.
• Citation: 84 S.W.3d 753
• Parties: Byron Keith CARRIERE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

84 S.W.3d 753

Byron Keith CARRIERE, Appellant, v. The STATE of Texas, Appellee.

No. 01-01-00171-CR.

No. 01-01-00172-CR.

Court of Appeals of Texas, Houston (1st Dist.).

August 15, 2002.

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Patrick F. McCann, Law Offices of Patrick F. McCann, Houston, for Appellant.

Bridget Holloway, Asst. Dist. Atty., Harris County, Houston, for the State.

Panel consists of Justices JENNINGS, RADACK, and PRICE.^*

OPINION

SHERRY J. RADACK, Justice.

We withdraw our opinion and judgment of August 1, 2002, and issue this opinion and judgments in their stead. A jury found appellant, Byron Keith Carriere, guilty of the felony offenses of retaliation¹ and theft.² After finding two enhancement paragraphs alleging two prior felony convictions to be true, the jury assessed punishment at 45-years imprisonment for retaliation and 20-years imprisonment for theft. In five points of error, appellant contends: (1) the evidence was legally insufficient to support his retaliation conviction; (2) the evidence was factually insufficient to support his retaliation conviction; (3) the evidence was factually insufficient to support a finding of true to the second enhancement allegation; (4) the trial court erred by defining "reasonable doubt" in the jury charge; and (5) the trial court deprived appellant of equal protection of the law when it allowed the State to use his previous felony conviction for burglary of a motor vehicle as an enhancement allegation. We affirm.

Facts

Houston Independent School District (HISD) Police Officer Rick Evans, while working an extra job as a security guard at a Fiesta Mart, saw appellant leaving the store with a cart full of meat. Officer Evans thought appellant's action was suspicious because his groceries were not bagged and he was leaving through the entrance. As appellant was leaving the store, Officer Evans tried to question him, but appellant attempted to run away.

Officer Evans caught up with appellant and a brief struggle ensued. When appellant did not produce a sales receipt upon request, Officer Evans arrested and handcuffed him before re-entering the store. Officer Evans testified that he was wearing a generic peace-officer uniform and identified himself to appellant as a police officer.

After his arrest, appellant made several derogatory and threatening comments towards Officer Evans. Appellant called Officer Evans a "faggot," "homo," "rent-acop," and "queer." Additionally, appellant threatened to find out where Officer Evans lived, follow him home, then "beat his ass," "put a bullet in his head," and rape his wife.

Discussion

In points of error one and two, appellant challenges the legal and factual sufficiency of the evidence to support his retaliation conviction. Specifically, appellant contends the evidence is insufficient to prove that he knew Officer Evans was a "public servant." When both factual and legal sufficiency points of error are raised, we must first examine the legal sufficiency of the evidence. Orona v. State, 836 S.W.2d 319, 321 (Tex.App.-Austin 1992, no pet.).

When reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.-Houston [1st Dist.] 1997, no pet.).

Appellant was convicted of retaliation against a public servant. A person commits the crime of retaliation when he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for, or on account of, the service of another as a public servant. TEX. PENAL CODE ANN. § 36.06(a)(1) (Vernon Supp.2002).

A public servant is defined as "a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties: (A) an officer, employee, or agent of government." TEX. PENAL CODE ANN. § 1.07(a)(41) (Vernon Supp.2002).

Although not explicitly included in the Penal Code definition of a "public servant," courts have interpreted public servant to include a police officer. See Bryson v. State, 807 S.W.2d 742, 745-46 (Tex. Crim.App.1991); McCoy v. State, 932 S.W.2d 720, 723 (Tex.App.-Fort Worth 1996, pet. ref'd). It is undisputed that Officer Evans was a HISD police officer; therefore, we hold that he was a public servant within the meaning of section 36.06. We recognize that, when working for Fiesta, Officer Evans was an off-duty HISD police officer. However, in the presence of criminal activity, a police officer's off-duty status is not a limitation upon the discharge of police authority. Wood v. State, 486 S.W.2d 771, 774 (Tex. Crim.App.1972); see generally TEX. CODE CRIM. PROC. ANN. art. 2.13 (Vernon Supp. 2002).

In this case, Officer Evans told appellant he was a police officer. After appellant was handcuffed and placed under arrest, he threatened Officer Evans. Based on the evidence, a rational jury could have found against appellant on the crime of retaliation.

We overrule point of error one.

Appellant next contends the evidence was factually insufficient to support his retaliation conviction. Under the factual-sufficiency standard, we ask whether a neutral review of all the evidence, both for and against the finding of guilt, demonstrates that the proof is so obviously weak as to undermine confidence in the jury's determination, or the proof, although adequate if taken alone, is greatly outweighed by contrary proof. King, 29 S.W.3d at 563. Accordingly, we will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder. Id.

Appellant argues he did not know Officer Evans was a police officer. In support of his argument, appellant cites the fact that he called Officer Evans "faggot," "homo," "rent-a-cop," and "queer." However, the evidence further shows that Officer Evans's security uniform included a badge and patch that read "peace officer," and, prior to appellant's apprehension and arrest, Officer Evans identified himself as a police officer. After reviewing all the evidence, we conclude that the verdict is not so obviously weak as to indicate that a manifest injustice has occurred. Accordingly, we find the evidence factually sufficient to support appellant's conviction.

We overrule point of error two.

Appellant argues in point of error three the evidence is factually insufficient to sustain a finding of true to the second enhancement paragraph, alleging a prior conviction for burglary of a motor vehicle. We disagree.

Appellant directs our attention to a missing thumbprint on the judgment supporting his enhancement conviction. Appellant, without citing any authority, argues that, because his thumbprint is missing from the judgment, the evidence is "insufficient" to support his previous conviction for burglary of a motor vehicle. However, it is well-settled that a prior conviction alleged for enhancement may be established by certified copies of a judgment and sentence and authenticated copies of the Texas Department of Criminal Justice records, including fingerprints, supported by expert testimony matching them to the known prints of the defendant. Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim.App.1986); see also Garner v. State, 864 S.W.2d 92, 97 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd).

Here, the State introduced appellant's penitentiary packet into evidence to prove his prior conviction³ and enhance his punishment. The packet offered at the punishment phase included appellant's picture, Texas Department of Criminal Justice certified fingerprints, judgment, and physical description. Even though appellant's thumbprint is missing from the judgment documenting his prior conviction, the State's fingerprint expert testified that appellant's fingerprints matched the fingerprints contained in his penitentiary packet. Appellant did not offer any controverting evidence, nor does he direct us to any statute that wholly invalidates a judgment when the thumbprint is missing. Thus, after reviewing all the evidence, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

We overrule point of error three.

In point of error four, appellant argues the trial court erred by refusing to delete the definition of "reasonable doubt" contained in the jury charge. Texas courts are no longer required to define reasonable doubt. Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000) (overruling Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991) insofar as it required jury instruction on reasonable doubt).

The court in Paulson held there is no requirement for trial courts to instruct juries on the definition of "beyond a reasonable doubt." Paulson, 28 S.W.3d at 573. Further, the court stated the better practice is to give no definition of reasonable doubt at all to the jury. Id. Alternatively, the court stated, "if both the State and the defense were to agree to give the Geesa instruction to the jury, it would not constitute reversible error for the trial court to acquiesce to their agreement." Id. In Colbert v. State, 56 S.W.3d 857, 860 (Tex.App.-Corpus Christi 2001, pet. filed) the court applied the Paulson decision and held that, if the State and defendant do not agree to the Geesa instruction,...