Hastings v. State

• Decision Date: 25 April 2002
• Docket Number: No. 03-00-00399-CR.,03-00-00399-CR.
• Citation: Hastings v. State, 82 S.W.3d 493 (Tex. App. 2002)
• Parties: Robert Edward HASTINGS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

82 S.W.3d 493

Robert Edward HASTINGS, Appellant, v. The STATE of Texas, Appellee.

No. 03-00-00399-CR.

Court of Appeals of Texas, Austin.

April 25, 2002.

Rehearing Overruled June 13, 2002.

Linda Icenhauer-Ramirez, Austin, for Appellant.

Douglas William Gardner, Asst. Dist. Atty., Austin, for Appellee.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and DALLY.^*

CARL E.F. DALLY, Justice (Retired).

Appellant Robert Edward Hastings was convicted of the offense of threatening unlawful harm against a prospective witness. See Tex. Pen.Code Ann. § 36.06(a)(1)(A) (West Supp.2002). The jury assessed appellant's punishment at imprisonment for ten years and a fine of $10,000 and recommended that appellant be granted community supervision. The trial court suspended imposition of the sentence and placed appellant on community supervision. On appeal, appellant complains about the legal insufficiency of the evidence and about the jury charge. We will affirm the judgment.

In his first point of error, appellant insists that the evidence is insufficient to support the jury's verdict. In reviewing the legal sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex.Crim. App.1995); Aiken v. State, 36 S.W.3d 131, 132 (Tex.App.-Austin 2000, pet. ref'd). The standard of review is the same whether the evidence is direct or circumstantial, or both. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999); Banda v. State, 890 S.W.2d 42, 50 (Tex.Crim.App. 1994).

A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act on account of the service of another as a public servant, witness, prospective witness, or an informant. See Tex. Pen.Code Ann. § 36.06(a)(1)(A) (West Supp.2002). Here, it was alleged that appellant "intentionally and knowingly threatened to harm, in person, another, to-wit: Jose Viegra, by an unlawful act, to-wit: threats of assault and bodily injury, in retaliation for and on account of the service of the said Jose Viegra as a witness and a prospective witness."¹

Because there was no evidence that Viegra was going to be or had been a witness against appellant, the trial court only allowed the jury to determine whether appellant made unlawful threats to Viegra on account of Viegra's service as a prospective witness. The term "prospective witness" is not statutorily defined; therefore, we ascribe to that term its ordinary and usual meaning. "Prospective" has been defined as "anticipated or expected; likely to come about." Blacks Law Dictionary 1238 (7th ed.) 1999. "Witness" has been defined as "one who has testified in an official proceeding." Jones v. State, 628 S.W.2d 51, 55 (Tex.Crim.App.1980). A "prospective witness" has been defined as "a person who may testify in an official proceeding." Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App.1993). "[A]n official proceeding need not be initiated in order for a person to be a `prospective witness' under section 36.06 of the Penal Code." Id. at 615; see also Webb v. State, 991 S.W.2d 408, 417 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).

On January 14, 2000, in appellant's absence, seven Federal Bureau of Alcohol, Tobacco and Firearms agents (ATF) and a Hays County deputy sheriff executed a search warrant at appellant's home in Hays County near Wimberly. The warrant authorized a search for unlawfully possessed automatic weapons and "possibly a sawed-off shotgun." The officers did not find the weapons they expected to find. However, two handguns, a shotgun and various types of ammunition were found in the search.²

While the search was still in progress, ATF Resident Agent-in-Charge Gary Orchowski, Agents Hugo Berarra, James O'Flaherty, Jose Viegra, and Hays County Deputy Sheriff Lynn Lueders, armed with an arrest warrant, went to the Del Valle Junior High School in Travis County where appellant was employed as a substitute teacher. At the request of the officers, the school principal called appellant to his office. There, Orchowski identified himself and the other officers who wore shirts bearing an ATF insignia. Orchowski began to interview appellant and told him about the search of his house. Appellant told Orchowski that he no longer had a federal firearms license and that they had no reason to speak to him. As Orchowski continued to question appellant, appellant became hostile and belligerent and "made anti-government remarks." Appellant was verbally abusive; he asked Orchowski, in crude language, how many times he had performed oral sodomy on President Clinton.

When appellant arose from his chair in an angry and threatening manner, Agents Berarra, O'Flaherty, and Viegra forcibly handcuffed appellant and seated him back in his chair. When, in an aggressive manner, appellant again tried to get up out of his chair, the officers put him on the floor. Appellant tried to stand up and Viegra put his knee between appellant's shoulder blades forcing appellant to remain down on the floor. Appellant then looked around at Viegra and said, "you better watch out, you don't know who you're dealing with. Once I'm free, I'm going to get you." Orchowski, who was in charge of the interrogation of appellant, testified he was called out of the room and he did not hear appellant threaten Viegra.

O'Flaherty, who helped subdue appellant, testified he was in and out of the room at times and he did not hear appellant threaten Viegra. Agent Berrara was not a trial witness. Lueders testified that he heard appellant threaten Viegra. However, Lueders testified that he did not know whether Viegra would ever be called as a witness to testify against appellant.

Robert Lawson, a Travis County deputy sheriff, was assigned to the Del Valle Junior High School as a "resource" officer. Lawson and appellant were acquainted with each other. During the interrogation of appellant, Lawson unsuccessfully tried to calm appellant when he became upset. After the interview was terminated, Lawson and Viegra took appellant to the nearby Travis County Correctional Complex at Del Valle so that he could be held there over the weekend. On the way to the Correctional Complex, appellant who was still upset told Lawson, "Well, its been nice knowing you. I don't have nothing to live for." Both Lawson and Viegra thought that appellant was depressed and made "kind of a suicidal threat."

When they arrived at the Correctional Complex, they were met by Sergeant John Oman. After they got out of the car, appellant said to Viegra, "If I wasn't handcuffed, I'd put my foot right into your f______ing jugular vein." Continuing to "rant and rave," appellant told Viegra "I'll kick your mother-f______ing ass." Viegra testified that he took appellant's comments as threats. Also, Viegra testified that during the entire encounter, appellant did not seem to be rational and it was Viegra's impression that appellant may have been suffering from mental illness. Oman testified that he heard appellant threaten Viegra. However, Oman did not believe appellant's threats were "really conditioned on whether or not Agent Viegra was going to be a witness or testify against him."

Viegra testified that appellant was not told that he, Viegra, had participated in the search at appellant's home. There is no other evidence that appellant knew Viegra had participated in that search.

The evidence is sufficient to prove that appellant made threats of bodily harm against Viegra. However, appellant did not specifically express his reason for threatening Viegra. Therefore, we must determine whether the circumstances in which the threats were made could support a rational finding that appellant threatened Viegra because he expected or anticipated that Viegra might be a witness against him in a future judicial proceeding. Immediately before appellant first threatened Viegra, Viegra had participated in forcibly subduing and handcuffing appellant and at the time the first threat was made, Viegra was physically restraining appellant and holding him down on the floor. At the time the State rested its case, there was insufficient direct or circumstantial evidence, even viewed in the light most favorable to the prosecution, that would support a rational finding that appellant threatened Viegra because appellant expected or anticipated that Viegra would be a witness against him in a future judicial proceeding. However, appellant insisted on testifying in his own defense; we must consider that testimony.

The record shows defense counsel strongly advised appellant not to testify and warned him that his testimony would be detrimental to his defense. Appellant rejected counsel's advice. Both on direct and cross examination, appellant rambled at length without answering the questions asked. Much of appellant's disjointed, rambling, and conflicting testimony was not relevant to the issues in the case. Appellant testified that he had a psychology degree; he had been a school teacher, a Texas Department of Corrections employee, a private security guard, a voluntary probation officer, a mental health worker, and a small weapons expert in the Texas National Guard. Appellant testified about his great interest in guns and his staunch belief in Second Amendment rights. Also, appellant testified about his dislike for laws restricting ownership of some weapons and laws making it difficult to obtain some weapons. Appellant expounded on his belief that the criminal justice system was unfair and his dislike of ATF agents. He disliked ATF agents because they had killed innocent people in Waco, killed Randy Weaver's wife at Ruby Ridge, and had hassled appellant when he had a federal firearms license. Ap...