Moore v. State
| Decision Date | 21 July 2004 |
| Docket Number | No. 10-02-00076-CR.,10-02-00076-CR. |
| Citation | 143 S.W.3d 305 |
| Parties | Kerry Eugene MOORE, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 18th District Court, Johnson County, John Edward Neill, J Phil Robertson, Robertson, Robertson & Silas, Clifton, for Appellant.
Dale S. Hanna, Johnson County District Attorney, David W. Vernon, Johnson County Asst. District Attorney, Cleburne, for Appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.*
Kerry Eugene Moore's conviction for retaliation arises from an altercation between Moore and a school superintendent. The State charged Moore with assault on a public servant and retaliation. A jury acquitted Moore on the assault charge but convicted him of retaliation. Moore contends that the evidence is legally and factually insufficient to support his conviction and that the court erred by: (1) failing to quash the indictment or require the State to elect whether to prosecute him for assault or retaliation; (2) refusing to allow impeachment of the superintendent with prior misdemeanor convictions more than ten years' old or to allow cross-examination of character witnesses regarding those convictions; (3) refusing to allow him to call witnesses to vouch for his truthful character; (4) denying his request for certain defensive instructions in the charge; and (5) denying his motion for mistrial alleging a Brady violation.
We hold that the evidence is sufficient to support the conviction, that the indictment was proper and no election was required, that the court did not abuse its discretion by excluding evidence or cross-examination of the superintendent's prior misdemeanor convictions because the probative value of those convictions is substantially outweighed by the danger of unfair prejudice, that the court did not abuse its discretion by refusing to permit him to call character witnesses because the State did not attack his character for truthfulness, that the court properly refused the requested instructions, and that no Brady violation is shown. Accordingly, we affirm the conviction.
To facilitate our discussion of Moore's contentions, we provide a brief factual background. Moore's wife Karen was a counselor employed by the Venus Independent School District. Johnnie Hauerland was the superintendent of the district at that time. Karen resigned her position because of a dispute over the legality of the district's policies regarding the manner in which employees were to report suspected child abuse.1
When Karen resigned, she retained confidential student records that she had maintained in the course of her employment. Relying on a provision of the Venus ISD's standard employment contract, Hauerland withheld Karen's final paycheck until she returned or accounted for the retained records. Venus ISD and the Moores consulted attorneys, who exchanged correspondence regarding the dispute.
On the date in question, Kerry Moore went to the Venus ISD offices to try to get Karen's check. The payroll director told Moore that he would have to speak with Hauerland. Moore demanded the check from Hauerland. Though it is disputed how the altercation commenced and how it concluded, Moore and Hauerland ended up on the ground engaged in a struggle. Other school employees physically removed Moore from the premises. Several witnesses testified that as Moore was being escorted away, he said that he would come back and "get" Hauerland after being released on bail. Moore denied making this statement.
Moore contends in his sixth issue that the evidence is legally and factually insufficient to establish: (1) that he threatened to harm Hauerland; (2) that he acted with the requisite intent or knowledge; or (3) that Hauerland was acting as a public servant.
In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Va., 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).
The Court of Criminal Appeals has recently clarified the appropriate standard of review for a factual insufficiency claim.
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.
Zuniga v. State, No. 539-02, ___ S.W.3d ___, ___, 2004 WL 840786, *7 (Tex.Crim.App.2004).
A jury may infer intent or knowledge from "the acts, words, and conduct of the accused." Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App.1999)). Here, the jury heard ample evidence from which a rational trier of fact could infer that Hauerland intentionally and knowingly threatened to harm Hauerland.
According to Hauerland, Moore threatened to "kick [his] butt" if Hauerland did not give Moore Karen's paycheck. When Hauerland refused, Moore pushed him against the wall and tried to hit him. As Moore was escorted from the premises, he said that after making bail he would come back and "get [Hauerland]." Hauerland construed this to be a threat.
School receptionist D'Nan Dakan testified that Moore grabbed "Hauerland by the lapel and jammed him up against the wall." She testified that "it was no accident" and that it appeared to her that Moore intended to harm Hauerland. As Moore was being physically escorted from the premises, he said that after making bail he was "going to come get [Hauerland]."
Bookkeeper Michelle Salazar provided testimony substantially similar to Dakan's. Salazar construed Moore's closing remark as a threat on Hauerland's life. A school bus mechanic likewise testified that Moore threatened to "get" Hauerland.
Conversely, Moore testified that Hauerland and he "tripped over each other's feet" in the office and scuffled. Moore denied being physically escorted from the premises and denied threatening to "get" Hauerland later.
From this evidence, a rational trier of fact could have inferred that Moore threatened to harm Hauerland after being release from jail and that he did so intentionally and knowingly. This same evidence is factually sufficient to establish that Moore intentionally and knowingly threatened to harm Hauerland.
It is undisputed that Hauerland was a school superintendent at the time of the altercation. A "public servant" is "a person elected, selected, appointed, employed, or otherwise designated as ... an officer, employee, or agent of government." Tex. Pen.Code Ann. § 1.07(a)(41)(A) (Vernon Supp.2004). Thus, Hauerland was a public servant.
However, Moore argues that Hauerland was acting outside the course and scope of his duties as superintendent because it was unlawful for him to withhold Karen's check. The parties presented conflicting evidence regarding whether Hauerland was acting lawfully in this regard. Thus, a rational trier of fact could have concluded beyond a reasonable doubt that Hauerland was acting as a public servant when he withheld Karen's check. This same evidence is factually sufficient to support a finding on this issue.
Accordingly, we overrule Moore's sixth issue.
Moore contends in his fourth issue that the court erred by failing to grant his motion to quash the indictment because the indictment failed to provide adequate notice of the manner and means by which he threatened to harm Hauerland. He contends in his seventh issue that the court should have required the State to elect whether it intended to prosecute him for assault or retaliation because these offenses are in pari materia. We reject these contentions because the indictment provided adequate notice and no election was required.
The indictment alleges in pertinent part that on or about the date in question Moore
did then and there intentionally or knowingly threaten to harm another, to-wit: J. Haverland, a public servant, by an unlawful act in retaliation for or on account of the services or status of the said J. Haverland as a public servant, to-wit: superintendent of the Venus Independent School District, Venus, Texas, said unlawful act being to harm J. Haverland, and said threat was communicated to J. Haverland in person.
Moore contends that this case is governed by Doyle v. State, in which the Court of Criminal Appeals held that an indictment failed to provide adequate notice where the indictment alleged in pertinent part that the defendant "threatened to kill the said Dan Gibbs on account of the services of the said Dan Gibbs as a judge in a prior lawsuit in which the defendant was a party." 661 S.W.2d 726, 729 (Tex.Crim.App.1983). The Court found the indictment lacking in specificity because the "alleged threat could have been conveyed in a number of ways, including: face to face in person, over the phone directly, through a third party, or through the mail." Id. at 730.
We construe the holding of Doyle to be that the indictment there was lacking because it failed to allege the...
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