Opinion filed June 12, 2014




                                     In The


        Eleventh Court of Appeals
                                  ____________

                              No. 11-12-00162-CR
                                  ____________

                 MICHAEL MARVIN RUSSIE, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                              Midland County, Texas
                          Trial Court Cause No. CR39309


                      MEMORANDUM OPINION
      The jury convicted Michael Marvin Russie of the offense of retaliation,
found the enhancement allegations to be true, and assessed punishment at
confinement for thirty-five years. The trial court sentenced him accordingly. In
two issues on appeal, Appellant contends that he received ineffective assistance of
counsel and that the trial court erred when it denied his request for a charge on
terroristic threat. We affirm.
      Officer Michael Poole responded to a disturbance call at a convenience
store, and the clerk complained that an intoxicated white male tried to steal a single
beer and threatened to strike other customers. Appellant was sitting on a curb
nearby, and when Officer Poole approached him, Appellant “became very
agitated” and immediately said, “You’re not going to arrest me for [public
intoxication].” Officer Poole detected a strong odor of alcohol and noticed that
Appellant had trouble balancing, so Appellant was arrested for public intoxication.
Officer Poole testified that, once he placed Appellant under arrest, Appellant “got
very agitated again and he just started cussing me out and started threatening me.”
Because of these threats, Appellant was charged with the offense of retaliation.
Appellant challenges his conviction for retaliation on two grounds.
      In his first issue, Appellant complains that he was deprived of his right to
effective assistance of counsel because his trial attorney failed to request a charge
on the lesser included offense of attempted retaliation. To determine whether trial
counsel rendered ineffective assistance at trial, we must determine whether
Appellant has shown that his counsel’s representation fell below an objective
standard of reasonableness and, if so, whether there is a reasonable probability that
the result would have been different but for trial counsel’s errors. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57
(Tex. Crim. App. 1986).
      Upon request, the trial court should instruct the jury on a lesser included
offense if “(1) the requested charge is for a lesser-included offense of the charged
offense and (2) there is some evidence that, if the defendant is guilty, [he] is guilty
only of the lesser offense.” Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
App. 2005) (emphasis added). If both requirements are met, the trial court must

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instruct the jury on the lesser included offense. Guzman v. State, 188 S.W.3d 185,
189 (Tex. Crim. App. 2006).
      An offense is a lesser included offense if, among other things, it consists of
an attempt to commit the offense charged.           TEX. CODE CRIM. PROC. ANN.
art. 37.09(4) (West 2006). Thus, attempted retaliation is a lesser included offense
of retaliation. We must next consider all of the evidence admitted to determine if
“there is some evidence that would support a rational finding that the defendant is
guilty only of the lesser included offense.” Guzman, 188 S.W.3d at 188–89.
      A person commits the offense of retaliation, as relevant here, if he
intentionally or knowingly harms or threatens to harm another by an unlawful act
in retaliation for or on account of the services or status of another as a public
servant. TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (West 2011). Appellant was
charged with intentionally or knowingly threatening to harm Officer Poole on
account of his status or service as a public servant.
      Appellant argues that the evidence shows that he was guilty only of
attempted retaliation because the evidence shows that his statements were not
intentional or knowing but, rather, reckless because he did not resist arrest or ever
try to hit or kick Officer Poole. A person commits the offense of attempted
retaliation if, with specific intent to commit the offense of retaliation, he does an
act that goes beyond mere preparation but fails to effect the commission of
retaliation. PENAL § 15.01(a). Even if we concede that the evidence shows a
reckless mental state, which we do not, such evidence would not entitle Appellant
to an instruction on attempted retaliation because criminal attempt requires
evidence of the specific intent to commit the offense. See id.
      Moreover, the evidence does not show that, if he is guilty, he is guilty only
of attempted retaliation because the evidence shows that Appellant effected the
commission of retaliation. A person can attempt a threat through “incomplete or

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inarticulate speech or by inchoate acts.” Jacobs v. State, 903 S.W.2d 848, 851
(Tex. App.—Texarkana 1995, pet. ref’d). A threat occurs, however, “as soon as
the actor utters the threatening words or otherwise initiates the threatening
conduct.” Olivas v. State, 203 S.W.3d 341, 345 (Tex. Crim. App. 2006).
      Officer Poole testified that, when he placed Appellant under arrest for public
intoxication, Appellant said he “was going to ‘f--k me up’” and that, because of
that statement, Officer Poole believed Appellant intended to assault him. Once
Appellant was in the backseat of Officer Poole’s vehicle, Appellant was recorded
saying that he was going to “mess you up whenever you get out of the car” and
“I’m going to kick the crap out of you. I’m going to kick the shit out of you. I’m
going to kick your head in when we get out of here.” Appellant also told Officer
Poole that “the last thing you want to do is put retaliation on me” and that “you got
a bad day coming.” We cannot say that Appellant’s statements were incomplete or
inarticulate; the evidence shows more than a mere attempt to threaten Officer
Poole. See Jacobs, 903 S.W.2d at 851.
      Appellant argues that “there is at least some evidence that Appellant was
guilty only of ‘attempted retaliation’” because he did not follow through with his
threats. Officer Poole testified that, once they arrived at the jail, Appellant was
“[a] completely different person,” but by that time, the offense was complete. The
threats occurred as soon as Appellant uttered the threatening words. See Olivas,
203 S.W.3d at 345.
      Because Appellant was not entitled to a charge on the lesser included
offense of attempted retaliation, Appellant has not shown that his counsel’s
representation fell below an objective standard of reasonableness for failing to
request such a charge. See Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App.
2004). Appellant’s first issue is overruled.



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       In his second issue on appeal, Appellant complains that “the trial court
committed reversible error by refusing to give the lesser included offense of
terroristic threat.”
       A defendant is entitled to a charge on a lesser included offense if, as it
pertains to this issue, the lesser offense is included within the proof necessary to
establish the offense charged and if there is evidence showing that, if the defendant
is guilty, he is guilty only of the lesser offense. Hayward, 158 S.W.3d at 478.
       A person commits the offense of making a terroristic threat if he threatens to
commit any offense involving violence to any person or property with the intent to
place any person in fear of imminent serious bodily injury. PENAL § 22.07(a)(2).
Retaliation may be committed when a person threatens to harm another in
retaliation for or on account of another’s service or status as a public servant. Id.
§ 36.06(a)(1)(A). Because retaliation as charged in this case does not require
intent that the victim be placed in fear of imminent serious bodily injury, the
elements of making a terroristic threat are not included within the proof necessary
to establish retaliation. See Davis v. State, 890 S.W.2d 489, 492 (Tex. App.—
Eastland 1994, no pet.) (“Terroristic threat is not a lesser included offense of
retaliation.”); see also Wiggins v. State, 255 S.W.3d 766, 770 (Tex. App.—
Texarkana 2008, no pet.) (same); Helleson v. State, 5 S.W.3d 393, 396 (Tex.
App.—Fort Worth 1999, pet. ref’d) (same). But see Zorn v. State, 222 S.W.3d 1, 3
(Tex. App.—Tyler 2002, pet. dism’d) (concluding terroristic threat was lesser
included offense of retaliation because the threat to murder neighbor and children
with whom the defendant had an ongoing conflict was also evidence of intent to
place the victim in fear of imminent bodily injury). Therefore, the trial court did
not err when it denied Appellant’s request for a charge on the offense of terroristic
threat. Appellant’s second issue is overruled.



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      We affirm the judgment of the trial court.




                                               JIM R. WRIGHT
                                               CHIEF JUSTICE


June 12, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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