Wheatley v. State, No. 14-09-00056-CR (Tex. App. 6/10/2010)
| Decision Date | 10 June 2010 |
| Docket Number | No. 14-09-00056-CR.,14-09-00056-CR. |
| Parties | JEFFERY WHEATLEY, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 52nd District Court, Coryell County, Texas, Trial Court Cause No. Fo-07-19168.
Affirmed.
Panel consists of Justices YATES, SEYMORE, and BROWN.
DO NOT PUBLISH. TEX.R.APP. P. 47.2(b)
Appellant Jeffery Wheatley was convicted of harassment by persons in certain correctional facilities and sentenced to life imprisonment. Appellant raises six issues on appeal. We affirm the judgment of the trial court.
At the time of the offense, appellant was incarcerated in the Alfred D. Hughes Unit (the "Hughes Unit") of the Texas Department of Criminal Justice, Institutional Division (the "TDCJID"). Appellant was housed in the Hughes Unit's administrative segregation area and was on container restriction.1 Officer Ian Siverly testified that he and Officer Luis Maldonado were escorting inmate Billy Fisher from a shower to Fisher's cell. To reach Fisher's cell ("Cell 77"), they had to pass inmate David Duran ("Cell 74"), appellant ("Cell 75"), and inmate Charlie Benjamin ("Cell 76"). As Siverly and Fisher passed between Cells 74 and 75, they were squirted with a substance shown by the evidence to be human or animal feces. Neither Siverly nor Maldonado saw who sprayed the feces, but they each testified there was a trail of feces leading from Cell 75's food slot and door to where Siverly and Fisher were standing. In a statement given to an inmate counselor, Fisher acknowledged seeing feces trickling down Cell 75's food slot and door but stated he did not see who sprayed the feces. At trial, Fisher testified that he identified appellant as the culprit immediately after the incident, but stated he only did so because he and appellant were arguing at the time. Siverly testified Fisher never identified appellant as the culprit and also stated he was one hundred percent sure the feces came from Cell 75. After being informed of the incident, Lieutenant Michael Miller responded to the cell-block and searched Cells 75 and 77 for containers of feces but found none. Miller also noted the presence of feces on Cell 75's door and the ground in front of the cell.
Inmates Duran and Benjamin testified for the defense. Duran stated the feces were sprayed from Cell 76, not Cell 75. Benjamin, Duran, and Fisher each testified that Fisher and Benjamin were arguing on the day of the offense over the amount of noise Fisher made while Benjamin slept. Benjamin stated he used a shampoo bottle filled with feces to spray Fisher because of this argument and that the bottle was found in front of Cell 75 after Benjamin rolled it through a hole between the ground and his cell door. Benjamin also stated that he told prison officers appellant did not spray the feces. Miller testified that no container was found in or near Cell 75 and that Benjamin never informed anyone appellant was not the culprit. Benjamin, Duran, and Fisher also testified that Maldonado was not with Siverly when the incident occurred.
Appellant was subsequently charged by indictment with two counts of felony harassment by persons in certain correctional facilities. The first count alleged that appellant, with intent to harass, alarm, or annoy, caused Siverly to come into contact with human or animal urine. The second count alleged that appellant, with intent to harass, alarm or annoy, caused Siverly to come into contact with human or animal feces. Appellant pleaded "not guilty" to both counts. After both sides rested at trial, the State decided to proceed with only the second count. The jury found appellant guilty of the offense. The indictment also included two enhancement paragraphs alleging that appellant had two prior felony convictions. Appellant pleaded "not true" to both of the enhancements. At the conclusion of the punishment phase, the jury found both enhancements "true." Appellant was sentenced to life imprisonment.
Appellant raises six issues on appeal, contending that the evidence is legally and factually insufficient to support his conviction, the trial court erred by refusing to give the jury a limiting instruction after a witness invoked the Fifth Amendment in the jury's presence, the trial court erred in admitting an unauthenticated copy of a document relating to one of the enhancement offenses, the evidence is legally insufficient to support the jury's finding that appellant is a habitual or repeat offender, and there is a fatal variance between the final conviction date for the first enhancement offense as alleged in the indictment and the date proved at trial.2
In his third and fourth issues, appellant argues the evidence is legally and factually insufficient to establish his guilt. To support a conviction, the State is required to prove beyond a reasonable doubt that appellant, while imprisoned or confined in a correctional facility and with intent to harass, alarm, or annoy, caused Siverly to come into contact with human or animal feces. See Act of May 16, 2003, 78th Leg., R.S., ch. 878, § 1, 2003 Tex. Gen. Laws 2688, 2688 (amended 2005) (current version at Tex. Penal Code Ann. § 22.11(a) (Vernon Supp. 2009)). Appellant contends only that the evidence does not show he caused Siverly to come into contact with feces.
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could find the essential elements of an offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). As the trier of fact, the jury "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the testimony at trial. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Additionally, the jury may draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in the prevailing party's favor. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). However, our duty as a reviewing court requires us to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime charged. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). It is not necessary for every fact to point directly and independently to the accused's guilt, so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing an accused's guilt and is alone sufficient to support a conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
While conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict, and we do not intrude upon the fact-finder's role as the sole judge of the weight and credibility of any witness' testimony. See id. at 417; Fuentes, 991 S.W.2d at 271. The fact-finder may choose to believe all, some, or none of the testimony presented. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). In our review, we discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). If we determine the evidence is factually insufficient, we must explain in exactly what way we perceive the conflicting evidence to greatly preponderate against conviction. Watson, 204 S.W.3d at 414.
Appellant argues the jury's verdict is not supported by the evidence because it is supported mainly by circumstantial, and not direct, evidence. This argument fails, however, because circumstantial evidence alone is sufficient to establish guilt. Hooper, 214 S.W.3d at 15; Guevara, 152 S.W.3d at 49. Appellant further contends the jury was forced to rely on speculation and "guess" whether appellant, Benjamin, or Duran committed the offense because no one saw who sprayed Siverly with feces. See Hooper, 214 S.W.3d at 16 (). So long as other evidence establishes guilt for the offense, eyewitness testimony is not necessary. See Greene v. State, 124 S.W.3d 789, 792 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd); see also Hooper, 214 S.W.3d at 14 (); Martin v. State, 246 S.W.3d 246, 261 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (same). The jury is entitled to draw reasonable inferences from the evidence presented at trial. See Hooper, 214 S.W.3d at 14; Martin, 246 S.W.3d at 261.
The undisputed evidence at trial shows that Cell 75's food slot and door, as well as the ground in front of Cell 75, were splattered with feces. Several witnesses testified that there was a trail of feces leading directly from Cell 75 to Siverly, and Siverly testified he was positive the feces came from Cell 75. Appellant was the sole occupant of Cell 75. There is no...
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