                                      NUMBER 13-08-445-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


YOHANCE MURPHY                                                               Appellant,

                                                       v.

THE STATE OF TEXAS,                                                           Appellee.


                      On appeal from the 130th District Court of
                             Matagorda County, Texas.


                                MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Justice Yañez

      In a bench trial, appellant, Yohance Murphy, was convicted of retaliation.1 The trial

court sentenced appellant to five years' confinement.2 By two issues, appellant contends



      1
          See T EX . P EN AL C OD E A N N . § 36.06 (Vernon Supp. 2009).

      2
          Appellant's sentence was enhanced by one prior conviction.
that the evidence is legally and factually insufficient to support his conviction. We affirm.

                                        I. BACKGROUND

         While assisting another officer with an unrelated traffic stop, Officer Vickie Gilliam

approached appellant, informed him that his car radio was too loud pursuant to a city

ordinance, and asked him to lower the volume. Officer Gilliam testified that appellant

refused, so she asked him for his license and insurance. According to Officer Gilliam,

appellant did not produce his license and insurance and walked away. Officer Gilliam

stated that she again asked appellant for his license and insurance, and then appellant

"became belligerent, [used] profanity, [started] yelling." Officer Gilliam attempted to arrest

appellant for disorderly conduct. Officer Gilliam stated that appellant refused to allow her

to place the handcuffs on him and continued "cursing." With the assistance of two other

officers, appellant was handcuffed. Officer Gilliam testified that after appellant was

handcuffed, he was "yelling, calling [her] names. Still being very vulgar and trying to move

away."

         Officer Gilliam stated that appellant "had come up to [her] bowing his chest" and that

appellant "was popping [her] chest with his chest." Appellant continued "cussing" at Officer

Gilliam throughout the episode. According to Officer Gilliam, appellant refused to enter the

police car, and the three officers had to "threaten to pepper spray him" so that he would

enter the car. Once appellant was in the vehicle, he kicked the door and continued yelling

and "being very abusive." Officer Gilliam asked appellant to stop kicking the door of her

vehicle, and appellant refused. Appellant was also charged with resisting transportation.

         According to Officer Gilliam, "[e]n route to the jail," appellant threatened to harm her

children, which was recorded by her "in-car video." Officer Gilliam stated that "[i]n

                                                2
reference to the arrest [she] made, [appellant was] threatening the lives of [her] children

or to hurt them or harm them." The trial court admitted State's exhibit one, a video

recording of the incident.3 When Officer Gilliam entered her police vehicle, she pointed the

camera in appellant's direction. In the video, appellant appears agitated and shouts

obscenities at Officer Gilliam, including "stupid a** b****." In the video, Officer Gilliam does

not respond to appellant.

        At trial, while viewing the video, the following colloquy occurred:

        [The State]:              Did the threat already happen? Was it during—in the
                                  patrol car?

        [Officer Gilliam]:        Yes.

                 ....

        [The State]:              Was that when he asked you if you have kids? "Miss,
                                  do you have children?"

        [Officer Gilliam]:        Yes.

        [The State]:              And essentially, was it that they might be f'd [sic] by
                                  somebody for no reason and the reason's going to be
                                  you?

        [Officer Gilliam]:        Right.

        On cross-examination, Officer Gilliam stated that she had written an offense report,

wherein she reported that, "[w]hile at the jail [appellant] threatened if anything happened

to my children that I would know where it came from."4 Officer Gilliam acknowledged that



        3
          The video cam era was not pointed in appellant's direction when the incident began; however, there
is an audio recording of what was said by appellant and Officer Gilliam during that tim e. W hen Officer Gilliam
drove appellant to jail, however, she pointed the cam era at appellant.

        4
           W e note that defense counsel stated that it was not possible to hear or understand what appellant
stated in the video tape.

                                                       3
simply asking her if she had any children was not a threat. On re-direct examination, the

following exchanged occurred:

      [The State]:         But that wasn't the threat, was it?

      [Officer Gilliam]:   No, it wasn't.

      [The State]:         Because it was right after?

      [Officer Gilliam]:   Right.

      [The State]:         When he said, "Do you have children, Miss," and then
                           he said, "Something's going to happen to them some
                           day" and it's all going to be as a result—

      [Officer Gilliam]:   My fault.

      [The State]:         It's going to be your fault and because of you?

      [Officer Gilliam]:   Yes.

      [The State]:         And that's on the video?

      [Officer Gilliam]:   It is.

             ....

      [The State]:         But the threat wasn't whether or not you have children,
                           the threat is whether or not something happens to them
                           some day and it's going to be because of you?

      [Officer Gilliam]:   That's right.

      [The State]:         And that's what you heard on the video?

      [Officer Gilliam]:   Yes. I feel like my—

             ....

      [Officer Gilliam]:   I feel like my children's safety, getting hurt by someone,
                           is a danger for them when they're with me.

             ....


                                            4
       [The State]:           Is that [threat] something you took seriously?

       [Officer Gilliam]:     Yes, I did.

       Appellant testified that he decided to go watch a game at a local nightclub. After

arriving at the club, appellant stated that he left his car with the ignition running and started

talking to someone on the steps of the club. Appellant stated that at some point, Officer

Gilliam asked him to lower the volume of his car radio, he complied, and he walked back

to the steps to continue his conversation. Appellant testified that Officer Gilliam then asked

him if he wanted to go to jail for evading detention. However, according to appellant, he

did not know that he had been detained. Appellant stated that although he did not

specifically use this language, he said, "Who's under detention? How are you going to

send me to jail because you hadn't asked me for my license." Appellant admitted that the

situation escalated "from loud music to evading" and then he was arrested for disorderly

conduct due to his language. Appellant admitted that he had been kicking the inside of

Officer Gilliam's patrol car, explaining that he had been left in it for fifteen to twenty minutes

with the windows up and the car off during the month of June. Appellant admitted that he

asked Officer Gilliam if she had any children, but denied making any threats to harm them.

When asked why he asked whether Officer Gilliam had children, appellant replied:

       Well, in other words, I was using a—it's kind of ironic. I was using a
       metaphor, in other words. I was trying to compare the situation that she was
       doing to me to if someone were to do her kids in that manner ma'am.

       The actual reason that the lady took me to jail, placed me into custody was
       for cursing, because she told me she was—you know, I was in my car and
       I was looking for the insurance and the license and I told her—I said,
       "Ma'am, I don't have my license."

       And she said, "No problem." And she said, "Do you know your number?
       And I gave her my license number, and I cursed. I said, "Ma'am, why are

                                                5
       you f***ing with me anyway?" And she said, "Sir, if you curse again, you're
       going to jail for profanity." And I said, "Man, you know what, I shouldn't—you
       shouldn't even be messing with me." I cursed again. And she said, "Get out
       [of] the car. You're going to jail for profanity."

       And I just—I know I don't make the laws, you know; but I felt like that was
       unfair for—I said one curse word beforehand and I was going to jail for it and
       I was just trying to compare that to the fact of if you had children—I have a
       mother also, you know and—

When asked, "At any point did you intentionally or knowingly have—want to threaten this

officer for arresting you", appellant responded, "No, ma'am."

       On cross-examination, appellant clarified that when Officer Gilliam asked him if he

wanted to go to jail for evading detention, he told her, "Who the f***s under detention

because you hadn't asked me for my license or my insurance?" According to appellant,

he continued cursing at Officer Gilliam because "once [he] was placed under arrest for

profanity, [he] might as well curse as much as [he] want[ed] to." Appellant stated, "If you're

taking me to jail for profanity, well, let me curse and earn my right to profanity is how I really

felt at the time." Appellant denied touching Officer Gilliam or threatening her children. On

re-direct examination, appellant stated that he did not have any intention of threatening

Officer Gilliam's children.

       After both sides had rested, the trial court indicated that it would need to review the

video and "spend some time with it" before making a ruling.5 Subsequently, at a separate

proceeding, the trial court stated that it had reviewed the evidence, including the video, and

found appellant guilty of retaliation. Appellant was sentenced to five years' confinement.

This appeal ensued.



       5
           The trial court stated that it had already viewed the video "once or twice."

                                                       6
                            II. STANDARD OF REVIEW AND APPLICABLE LAW

        In conducting a legal sufficiency review, we view the relevant evidence in the light

most favorable to the verdict to determine whether a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.6 We do not reevaluate

the weight and credibility of the evidence, and we do not substitute our own judgment for

the trier of fact.7 Instead, we consider whether the jury reached a rational decision.8

        In a factual sufficiency review, we review the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust or against the great weight and preponderance of the evidence.9 This Court will not

reverse the jury's verdict unless we can say, with some objective basis in the record, that

the great weight and preponderance of the evidence contradicts the verdict.10

        Retaliation occurs if a person intentionally or knowingly threatens to harm another

by an unlawful act in retaliation for or on account of the service or status of another as a

public servant.11 Intent may be inferred from an accused's acts, words, or conduct.12 It is


        6
          Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007) (citing Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); Powell v. State, 194 S.W .3d 503, 506 (Tex. Crim . App. 2006); Guevara v. State, 152 S.W .3d
45, 49 (Tex. Crim . App. 2004)); Escamilla v. State, 143 S.W .3d 814, 817 (Tex. Crim . App. 2004).

        7
         King v. State, 29 S.W .3d 556, 562 (Tex. Crim . App. 2000) (en banc); Beckham v. State, 29 S.W .3d
148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd).

        8
            Beckham, 29 S.W .3d at 151.

        9
            W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006).

        10
             Id. at 417.

        11
         T EX . P EN AL C OD E A NN . § 36.06; W iggins v. State, 255 S.W .3d 766, 772 (Tex. App.–Texarkana 2008,
no pet.); see also Carter v. State, No. 13-07-567-CR, 2008 Tex. App. LEXIS 8967, at **19-20 (Tex.
App.–Corpus Christi Nov. 20, 2008, no pet.) (m em . op., not designated for publication).

        12
             Guevara, 152 S.W .3d at 50 ("Intent m ay also be inferred from circum stantial evidence such as acts,
words, and the conduct of the appellant."); Moore v. State, 143 S.W .3d 305, 310 (Tex. App.–W aco 2004, pet.
ref'd); In re B.P.H., 83 S.W .3d 400, 407 (Tex. App.–Fort W orth 2002, no pet.); Childs v. State, 21 S.W .3d 631,

                                                        7
not required that the threatened retaliatory harm be imminent or that the actor actually

intend to carry out his threat.13

                                                III. DISCUSSION

         By his first and second issues, appellant contends that the evidence is legally and

factually insufficient to support his conviction. Specifically, appellant asserts that he did

not intentionally or knowingly make a threat to harm Officer Gilliam's children, but instead

attempted to explain that Officer Gilliam would not want her children treated in the same

manner.

         Appellant argues that "neither Officer Gilliam nor the State were sure of exactly what

appellant said that constituted the threat," and therefore, "Officer Gilliam's testimony

constituted speculation . . . . "14 However, Officer Gilliam was present when appellant

allegedly made the threat, and she testified that she heard appellant threaten her

children.15 Therefore, appellant's argument is without merit.

         Next, appellant states that Officer Gilliam's testimony is "at odds" with "the actual

words [he] uttered." We have reviewed the entire video and have listened carefully to the

portion of the video where Officer Gilliam claimed appellant threatened her children. In that

portion of the video, appellant stated:


635 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd) ("Intent and knowledge are fact questions for the jury,
and are alm ost always proven through evidence of the circum stances surrounding the crim e. Intent m ay be
inferred from words and conduct of the accused.") (internal citations om itted).

        13
          LeBleu v. State, 192 S.W .3d 205, 209 (Tex. App.–Houston [14th Dist.] 2006, pet. ref'd); In re B.P.H.,
83 S.W .3d at 407; Coward v. State, 931 S.W .2d 386, 389 (Tex. App.–Houston [14th Dist.] 1996, no pet.).

        14
           Appellant cites Hooper v. State defining "speculation" as the "m ere theorizing or guessing about
the possible m eaning of facts and evidence presented." 214 S.W .3d at 16.

        15
            Due to the poor sound quality of the video, it is difficult to understand everything that appellant says.
W e were able to understand only som e of appellant's statem ents with interm ittent portions that were
unintelligible. However, as noted, Officer Gilliam testified as to appellant's statem ents.

                                                         8
        You know what you need to do? If you've got kids, miss.[16] You know what
        you really need to do? [Unintelligible] and pick up your [unintelligible].[17]
        Cause one day some sh** like this gonna happen to [unintelligible]. Believe
        that. They're gonna get f***ed by somebody for no reason and you're gonna
        be the reason for it. It's gonna come back on you. You're gonna be the
        reason why this happened.

There are portions of appellant's statements that are unintelligible in the video, and the

portions that are clear substantiate Officer Gilliam's testimony. Therefore, we cannot

conclude that appellant's words are "at odds" with Officer Gilliam's testimony that appellant

"threatened if anything happened to [her] children that [she] would know where it came

from." Appellant argues that the video is more consistent with his testimony; however, as

the trier of fact, the trial court had the discretion to determine what weight to give to the

evidence and whom to believe.18

        Finally, appellant argues that the trial court could not have found beyond a

reasonable doubt that he had the "specific intent or knowledge to threaten Officer Gilliam's

children." However, the trial court, as the trier of fact, may have inferred appellant's intent

from his acts, words, and conduct.19 The State presented evidence that appellant was

belligerent, shouted profanities, and was physically aggressive toward Officer Gilliam.


        16
             At trial, the State quoted appellant as stating, "'Miss, do you have children?'"

        17
             In his brief, appellant asserts he said, "Som ebody needs to pick up your (bobolins?)."

          18
             See Villarreal v. State, 267 S.W .3d 204, 209 n.30 (Tex. App.–Corpus Christi 2008, no pet.) (stating
that in a legal sufficiency review "the fact-finder is the exclusive judge of the witnesses' credibility and the
weight given to the evidence, m ay draw reasonable inferences from basic to ultim ate facts, and is entitled to
resolve any conflicts in testim ony and reject or accept any or all of the evidence presented by either side")
(citing Jones v. State, 944 S.W .2d 642, 647 (Tex. Crim . App. 1996)); Swearingen v. State, 101 S.W .3d 89,
97 (Tex. Crim . App. 2003) (stating that in a factual sufficiency review although an appellate court "is authorized
to disagree with the jury's determ ination even if probative evidence exists which supports the verdict, a
reviewing court m ust give due deference to the fact finder's determ inations concerning the weight and
credibility of the evidence and will reverse the fact finder's determ ination only to arrest the occurrence of a
m anifest injustice").

        19
          See Guevara, 152 S.W .3d at 50; Moore, 143 S.W .3d at 310; In re B.P.H., 83 S.W .3d at 407; Childs,
21 S.W .3d at 635.

                                                         9
Officer Gilliam testified that "[i]n reference to the arrest," appellant threatened "the lives of

[her] children or to hurt them or harm them." In the video, appellant is heard yelling,

"Stupid a** b****" to Officer Gilliam repeatedly and stating, "You're f***ing with the wrong

person" and "Believe that. They're gonna get f***ed by somebody for no reason and you're

gonna be the reason for it."20 In the video, appellant appears angry and defiant and directs

his anger at Officer Gilliam. Also, later in the video, while at the jail, appellant says, "Like

I said [unintelligible] in the car. [Unintelligible] get all f***ed up. Sh** like this where it come

from. Just remember that sh** like this where it come from [unintelligible]."21

         We conclude that a rational trier of fact could have inferred that appellant

intentionally or knowingly threatened to harm Officer Gilliam's children from the evidence

presented at trial.22 Therefore, the evidence is legally sufficient to support the verdict. We

overrule appellant's first issue.

         Furthermore, after reviewing the evidence in a neutral light, we conclude that the

evidence is not so weak that the jury's verdict seems clearly wrong and manifestly unjust

or against the great weight and preponderance of the evidence.23 Therefore, the evidence

is factually sufficient to support the verdict. We overrule appellant's second issue.24



         20
            Although it is not clear from the audio whom appellant referred to when he m ade this statem ent,
Officer Gilliam testified that he was referring to her children.

         21
          W e note that an unknown m an is then heard telling Officer Gilliam that appellant m ade a "terroristic
threat" and that she needed to m ake a report of the incident. Officer Gilliam agreed.

         22
              See Hooper, 214 S.W .3d at 13; Escamilla, 143 S.W .3d at 817.

         23
              See W atson, 204 S.W .3d at 414-15.

         24
           Appellant generally asserts, without citation to the record, that "it is obvious from the record that no
one took the tim e to listen to the actual words spoken by [a]ppellant on the DVD." However, the video was
played for the trial court at appellant's trial, and after each side rested, the trial court stated that it had already
seen the video once or twice and then delayed finding appellant guilty so that it could review the video again.

                                                         10
                                  IV. CONCLUSION

        We affirm the judgment.




Do not publish.
TEX . R. APP . 47.2(b).
Delivered and filed the
15th day of July, 2010




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