Webb v. State

• Decision Date: 15 April 1999
• Docket Number: No. 14-96-01453-CR,14-96-01453-CR
• Citation: Webb v. State, 991 S.W.2d 408 (Tex. App. 1999)
• Parties: Robert David WEBB, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 408

991 S.W.2d 408

Robert David WEBB, Appellant, v. The STATE of Texas, Appellee.

No. 14-96-01453-CR.

Court of Appeals of Texas Houston (14th Dist.).

April 15, 1999.

DeEdward J. Greer, Houston, for appellant.

Barbara Anne Drumheller, Houston, for appellee.

Panel consists of Justices SEARS, DRAUGHN, and CANNON. ^*

O P I N I O N

ROSS A. SEARS, Justice (Assigned).

Appellant, Robert David Webb, appeals his conviction for retaliation. Following a jury trial, the court assessed his punishment at confinement for ten years in the Texas Department of Criminal Justice, Institutional Division. In eight points of error, Webb contends: (1) the statute for retaliation is unconstitutionally vague and overbroad; (2) the evidence was legally and factually insufficient to support the conviction; (3) the trial court erred in excluding business records from the Children's Protective Services Division ("CPS") of the Texas Department of Protective and Regulatory Services; and (4) appellant received ineffective assistance of counsel. We affirm.

Prior to the incident giving rise to the conviction in this matter, Webb was convicted of injury to a child and placed on probation by the 182nd District Court of Harris County, Texas. In the earlier action, Webb burned his youngest child, Phillip, on the arm with a match as a form of discipline. Phillip picked at the scab and, apparently, the wound began to look much worse than it had originally. Someone at Phillip's school noticed the injury, which led to Webb's prosecution and conviction for injury to a child. As one condition of probation, the 182nd District Court required Webb to attend family and parenting counseling.

Webb went to counseling sessions with Kathleen Guziak, a family and child therapist in Baytown, Texas. Ms. Guziak first met Webb on May 2, 1996, when Webb and his wife came to her office for the court-ordered counseling. Thereafter, Webb and his wife attended counseling sessions with Ms. Guziak for three weeks, then brought their two sons on the fourth week. The fifth session took place on June 14, 1996 in Ms. Guziak's office and Webb, his wife, and his two sons, Sean and Phillip, all attended. That session focused on a "contract" arrangement that the family instituted the prior week. Under the "contract," the boys were required to complete certain chores around the house and obey their parents in return for rewards. The older son, Sean, felt he had lived up to his end of the contract, but Webb expressed anger that Sean had postponed emptying the dishwasher one evening until the next morning. Webb stated he had been so angry that he contemplated going upstairs and waking the boy up at midnight because he had not yet emptied the dishwasher.

While Ms. Guziak and the others discussed this issue, the younger son, Phillip, sat quietly picking at a scab on his arm. Webb noticed this and called Phillip over to his chair. After Phillip walked over to his father, Webb pulled out a large hunting knife and angrily said, "Stop doing that, you better stop doing that or I'm going to cut your arm off." Ms. Guziak testified that she was shocked and that Phillip froze, saying nothing and doing nothing in response to his father's threat. Ms. Guziak also testified that Phillip looked terrified and defenseless and that she became very concerned and upset. Ms. Guziak told Webb to stop and asked him to put the knife down because he was scaring his son. Webb then put the knife away and told Phillip to go sit down.

Ms. Guziak told Webb that his actions were dangerous and unacceptable. She felt the children should leave the room, so she told them to go sit in the waiting room. She then told Webb and his wife that she was required under law to report the incident to CPS. Webb replied, "You better not, if you do I'm going to start an all out war with you and you'll be sorry." Ms Guziak testified that she feared for her life because Webb had used the phrase "go to war" during past counseling sessions in the context of violence. Ms. Guziak left the room, went into the business area to get help, and called 911.

William Mitchell, the security guard at the office complex, heard the report that Webb had a knife. He went to Ms. Guziak's office, introduced himself to Webb, and asked Webb to step outside. According to Mitchell, Webb appeared to be very agitated. Mitchell tried to keep him calm, but Webb continued to attempt to go back into the Ms. Guziak's office. Finally, Webb pushed Mitchell and told him to get out of his face. Mitchell then subdued Webb and found a hunting knife with a seven-inch blade while searching him. Webb was arrested and charged with retaliation.

In his first four points of error, Webb argues that the retaliation statute is unconstitutional. Specifically, Webb contends the retaliation statute is vague on its face, overbroad on its face, unconstitutionally vague as applied to the facts of this case, and unconstitutionally overbroad as applied to the facts of this case under both the United States and Texas Constitutions. ¹

The retaliation statute at issue provides, in pertinent part:

(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service of another as a public servant, witness, prospective witness, informant, or a person who has reported or who the actor knows intends to report the occurrence of a crime; or

(2) to prevent or delay the service of another as a public servant, witness, prospective witness, informant, or a person who has reported or who the actor know intends to report the occurrence of a crime.

TEX. PENAL CODE ANN. § 36.06 (Vernon 1994).

In support of his constitutional arguments, Webb contends that section 36.06 produces a result contrary to the Penal Code's intent. The legislature provided that:

The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

Id. § 1.05(a) (Vernon 1994). Webb further notes that some of the legislative objectives of the Penal Code are:

The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives:

(1) To insure public safety;

(2) By definition and grading of all offenses to give fair warning of what is prohibited and the consequences of violation;

* * *

(4) To safeguard conduct that is without guilt from condemnation as criminal....

Id. § 1.02 (Vernon 1994).

On appeal, Webb contends that a father has been sentenced to a maximum penalty of ten years in prison for a remark made in defense of his family after being provoked by the complaining witness. As a result, Webb contends the criminal justice system failed because it allowed one person to place her interpretation on something that should be a private protected family matter that was thoroughly investigated by the CPS and found not to warrant further action. Webb further notes that the complaining witness' interpretation, which was not shared by CPS, was the sole factor that provoked the remark by Webb in the first place. He argues the clearly unintended result is that the complaining witness was allowed to be an accuser, judge, jury, and executioner. To illustrate this argument, Webb refers to the prosecutor's statement during voir dire which supposedly explained the prosecutor's interpretation of how the law of retaliation works. During an exchange with the venire, a prospective juror noted that people "spout off" when they are arrested and may not even mean it. The prosecutor responded that it is irrelevant whether they meant it, and then stated, "If you make the threat ... the game's over." Webb argues the prosecutor's suggested interpretation is incorrect and violates a fundamental concept of criminal law--to constitute a crime, the act, or actus reus, must be accompanied by a criminal mind, or mens rea. See Cook v. State, 884 S.W.2d 485, 487 (Tex.Crim.App.1994). Webb asserts that if we review this case with an eye towards implementing the express intent of the Penal Code, we must find the retaliation statute to be unconstitutional. We disagree.

The power to create and define criminal offenses and to establish and define defenses to criminal offenses rests within the sound discretion of the legislature. See TEX. CONST. art. III, § 1; Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990). Unless limited by constitutional provisions, the legislature has the inherent power to define and punish any act as a crime. See Ex Parte Smith, 441 S.W.2d 544, 547 (Tex.Crim.App.1969). Whenever a constitutional attack to a statute is presented, the appellate court should begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute. See DeWillis v. State, 951 S.W.2d 212, 214 (Tex.App.--Houston [14th Dist.] 1997, no pet.) (citing Cotton v. State, 686 S.W.2d 140, 144 (Tex.Crim.App.1985)). Appellant bears the burden to establish the statute's unconstitutionality. See State v. Mendel, 871 S.W.2d 906, 908 (Tex.App.--Houston [14th Dist.] 1994, no pet.). It is the duty of this court to uphold the statute if a reasonable construction of the statute will render it constitutional and carry out the legislative intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979).

The thrust of Webb's argument is that the statute does not define the term "retaliation." Therefore, it must be given its ordinary meaning. See Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App.19...