
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00399-CR



Robert Edward Hastings, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 000255, HONORABLE FRED A. MOORE, JUDGE PRESIDING





	Appellant Robert Edward Hastings was convicted of the offense of threatening
unlawful harm against a prospective witness.  See Tex. Pen. Code Ann. § 36.06(a)(1)(A) (West 
Supp. 2002).  The jury assessed appellant's punishment at imprisonment for ten years and a fine of
$10,000 and recommended that appellant be granted community supervision.  The trial court
suspended imposition of the sentence and placed appellant on community supervision.  On appeal,
appellant complains about the legal insufficiency of the evidence and about the jury charge.  We will
affirm the judgment.
	In his first point of error, appellant insists that the evidence is insufficient to support
the jury's verdict.  In reviewing the legal sufficiency of the evidence, the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995);
Aiken v. State, 36 S.W.3d 131, 132 (Tex. App.--Austin 2000, pet. ref'd).  The standard of review
is the same whether the evidence is direct or circumstantial, or both.  See Kutzner v. State, 994
S.W.2d 180, 184 (Tex. Crim. App. 1999); Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App.
1994).
	A person commits an offense if he intentionally or knowingly harms or threatens to
harm another by an unlawful act on account of the service of another as a public servant, witness,
prospective witness, or an informant.  See Tex. Pen. Code Ann. § 36.06(a)(1)(A) (West Supp. 2002). 
Here, it was alleged that appellant "intentionally and knowingly threatened to  harm, in person,
another, to-wit: Jose Viegra, by an unlawful act, to-wit: threats of assault and bodily injury, in
retaliation for and on account of the service of the said Jose Viegra as a witness and a prospective
witness." (1)
	Because there was no evidence that Viegra was going to be or had been a witness
against appellant, the trial court only allowed the jury to determine whether appellant made unlawful
threats to Viegra on account of Viegra's service as a prospective witness.  The term "prospective
witness" is not statutorily defined; therefore, we ascribe to that term its ordinary and usual meaning. 
"Prospective" has been defined as "anticipated or expected; likely to come about."  Blacks Law 
Dictionary 1238 (7th ed.) 1999.  "Witness" has been defined as "one who has testified in an official
proceeding."  Jones v. State, 628 S.W.2d 51, 55 (Tex. Crim. App. 1980).  A "prospective witness"
has been defined as "a person who may testify in an official proceeding."  Morrow v. State, 862
S.W.2d 612, 614 (Tex. Crim. App. 1993).  "[A]n official proceeding need not be initiated in order
for a person to be a 'prospective witness' under section 36.06 of the Penal Code."  Id. at 615; see
also Webb v. State, 991 S.W.2d 408, 417 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd).
	On January 14, 2000, in appellant's absence, seven Federal Bureau of Alcohol,
Tobacco and Firearms agents (ATF) and a Hays County deputy sheriff executed a search warrant at
appellant's home in Hays County near Wimberly.  The warrant authorized a search for unlawfully
possessed automatic weapons and "possibly a sawed-off shotgun."  The officers did not find the
weapons they expected to find.  However, two handguns, a shotgun and various types of ammunition
were found in the search. (2)
	While the search was still in progress, ATF Resident Agent-in-Charge Gary
Orchowski, Agents Hugo Berarra, James O'Flaherty, Jose Viegra, and Hays County Deputy Sheriff
Lynn Lueders, armed with an arrest warrant, went to the Del Valle Junior High School in Travis
County where appellant was employed as a substitute teacher.  At the request of the officers, the
school principal called appellant to his office.  There, Orchowski identified himself and the other
officers who wore shirts bearing an ATF insignia.  Orchowski began to interview appellant and told
him about the search of his house.  Appellant told Orchowski that he no longer had a federal firearms
license and that they had no reason to speak to him.  As Orchowski continued to question appellant,
appellant became hostile and belligerent and "made anti-government remarks."  Appellant was
verbally abusive; he asked Orchowski, in crude language, how many times he had performed oral
sodomy on President Clinton.
	When appellant arose from his chair in an angry and threatening manner, Agents
Berarra, O'Flaherty, and Viegra forcibly handcuffed appellant and seated him back in his chair. 
When, in an aggressive manner, appellant again tried to get up out of his chair, the officers put him
on the floor.  Appellant tried to stand up and Viegra put his knee between appellant's shoulder blades
forcing appellant to remain down on the floor.  Appellant then looked around at Viegra and said,
"you better watch out, you don't know who you're dealing with.  Once I'm free, I'm going to get
you."  Orchowski, who was in charge of the interrogation of appellant, testified he was called out
of the room and he did not hear appellant threaten Viegra.
	O'Flaherty, who helped subdue appellant, testified he was in and out of the room at
times and he did not hear appellant threaten Viegra.  Agent Berrara was not a trial witness.  Lueders
testified that he heard appellant threaten Viegra.  However, Lueders testified that he did not know
whether Viegra would ever be called as a witness to testify against appellant.
	Robert Lawson, a Travis County deputy sheriff, was assigned to the Del Valle Junior
High School as a "resource" officer.  Lawson and appellant were acquainted with each other.  During
the interrogation of appellant, Lawson unsuccessfully tried to calm appellant when he became upset. 
After the interview was terminated, Lawson and Viegra took appellant to the near-by Travis County
Correctional Complex at Del Valle so that he could be held there over the weekend.  On the way to
the Correctional Complex, appellant who was still upset told Lawson, "Well, its been nice knowing
you.  I don't have nothing to live for."  Both Lawson and Viegra thought that appellant was
depressed and made "kind of a suicidal threat."
	When they arrived at the Correctional Complex, they were met by Sergeant John
Oman.  After they got out of the car, appellant said to Viegra, "If I wasn't handcuffed, I'd put my
foot right into your f___ing jugular vein."  Continuing to "rant and rave," appellant told Viegra "I'll
kick your mother-f___ing ass."  Viegra testified that he took appellant's comments as threats.  Also,
Viegra testified that during the entire encounter, appellant did not seem to be rational and it was
Viegra's impression that appellant may have been suffering from mental illness.  Oman testified that
he heard appellant threaten Viegra.  However, Oman did not believe appellant's threats were "really
conditioned on whether or not Agent Viegra was going to be a witness or testify against him."
	Viegra testified that appellant was not told that he, Viegra, had participated in the
search at appellant's home.  There is no other evidence that appellant knew Viegra had participated
in that search.
	The evidence is sufficient to prove that appellant made threats of bodily harm against
Viegra.  However, appellant did not specifically express his reason for threatening Viegra. 
Therefore, we must determine whether the circumstances in which the threats were made could
support a rational finding that appellant threatened Viegra because he expected or anticipated that
Viegra might be a witness against him in a future judicial proceeding.  Immediately before appellant
first threatened Viegra, Viegra had participated in forcibly subduing and handcuffing appellant and
at the time the first threat was made, Viegra was physically restraining appellant and holding him
down on the floor.  At the time the State rested its case, there was insufficient direct or circumstantial
evidence, even viewed in the light most favorable to the prosecution, that would support a rational
finding that appellant threatened Viegra because appellant expected or anticipated that Viegra would
be a witness against him in a future judicial proceeding.  However, appellant insisted on testifying
in his own defense; we must consider that testimony.  
	The record shows defense counsel strongly advised appellant not to testify and
warned him that his testimony would be detrimental to his defense.  Appellant rejected counsel's
advice.  Both on direct and cross examination, appellant rambled at length without answering the
questions asked.  Much of appellant's disjointed, rambling, and conflicting testimony was not
relevant to the issues in the case.  Appellant testified that he had a psychology degree; he had been
a school teacher, a Texas Department of Corrections employee, a private security guard, a voluntary
probation officer, a mental health worker, and a small weapons expert in the Texas National Guard. 
Appellant testified about his great interest in guns and his staunch belief in Second Amendment
rights.  Also, appellant testified about his dislike for laws restricting ownership of some weapons and
laws making it difficult to obtain some weapons.  Appellant expounded on his belief that the
criminal justice system was unfair and his dislike of ATF agents.  He disliked ATF agents because
they had killed innocent people in Waco, killed Randy Weaver's wife at Ruby Ridge, and had
hassled appellant when he had a federal firearms license.  Appellant also dwelt on his pending
divorce and the unfairness of his wife's demands.  Much of this testimony had slight, if any,
relevance to the issues of the case.  However, some of appellant's testimony that had relevance to
his case was damaging to his defense.
	We quote excerpts from appellant's testimony.


	How long have you resided in the Travis County Jail?


	Since I was arrested on the 14th of January by ATF, who arrested me on a
charge of possession of a firearm while under a protective order.

* * *

	A:	No,  and most people are surprised about this new federal law about possession
of a firearm while under a protective order.  And a lot of cops don't even know
about it.

* * *

		Then they said, "You're under" - - I believe they said, "You're under arrest" or
"A search warrant is being executed on your property."  And I said, "What for?" 
And they said, "Possession of firearm without [sic] a protective order."

* * *

	A:	First thing they told me when I walked in that office is, "You're going to jail for
a very long time."  And the only thing I could think of was on these gun charges
- - we're talking like 20 years.  I'm 52 years old.  So basically, you're talking
about taking my life.

* * *

		That's when he said that, "You're going away for a very long time."  And as I
said, I know that the feds give a very long time for weapons charges.  They gave
one of these guys at Waco 40 years.  So it's not uncommon to have a 20-year
sentence.  And there is no parole in the federal system.  If they give you 20
years, you do 20 years.  So I was very upset.

* * *

		They're now coming down into domestic disputes, interfering in state domestic
matters.  And they're putting people in jail for very long times.  You can be a
legal gun owner one minute and your spouse goes and files a divorce, if that
spouse gets a protective order on you - - and I want to talk about protective
orders in a minute.  If that spouse gets a protective order on you, you go in an
instant from being a law-abiding citizen to being a criminal.  A criminal facing
at least 20 years in prison.

* * *

		Guilt has really nothing to do with it.  And I'm sorry to tell you people this, but
the criminal justice system hasn't improved very much, if any at all.  It's
probably gotten worse since Jesus Christ walked on the earth.  And you know
what happened to him.  And he was perfect and completely guiltless.


	So tell me what happened.  What was said next after the mention of going to
prison for a long time?


	Of course, that came as a shock to me.  We started into a discussion on federal
statutes.  And I still haven't gotten a copy of the statute.  So I can't say exactly
what it says.  But basically, it's possession of a firearm while under a protective
order.

 * * *


	At that point, he said, "where are the AKs?  Where are the guns?" And I said,
"Well, wait a minute."  I said, "If I tell you where the guns are, I'm still going
to jail, aren't I?"  And he said, "That's right."  And I said, "Well, what do I get
out of it?"  And he said, "Well, we'll put in a good word to the judge for you.

 

	Appellant's own testimony, along with the other evidence, when viewed in the light
most favorable to the prosecution, would allow the jury to rationally find, beyond a reasonable doubt,
that appellant knew at the time of the threats that he was committing a criminal offense by
possessing handguns and a shotgun while he was under a protective order, and that he had reason
to believe the ATF officers intended to prosecute him and seek lengthy incarceration as punishment. 
The jury could rationally conclude that when appellant threatened Viegra, appellant anticipated
Viegra might be a prospective witness against him in a future criminal prosecution and made his
threats on account of that fact.  The evidence is legally sufficient to support the jury's verdict. 
Appellant's first point of error is overruled.
	In his second point of error, appellant asserts that the trial court erred in refusing to
instruct the jurors "that before they could convict appellant, they had to determine from the
perspective of appellant that he considered Agent Jose Viegra a 'prospective witness.'"  The record
fails to show that at the time of trial appellant filed a written request or dictated into the record the
requested charge he now says should have been submitted to the jury.  Therefore, the error claimed
was not properly preserved for appellate review.  See Tex. Code Crim. Proc. Ann. art. 36.15 (West
Supp. 2002); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996).  Moreover, appellant
failed to preserve for review the error now claimed by filing a written objection or dictating into the
record his objection to the charge.  See Tex. Code. Crim. Proc. Ann. art. 36.14 (West Supp. 2002);
Vasquez, 919 S.W.2d at 435.
	In support of his contention, appellant directs our attention to a statement of the trial
court found in the record.

		I have not included the definition that Mr. Myers wanted on - - I guess he said
you should view prospective witnesses from the standpoint of the defendant.  If you
want to argue that, that's fine. . . .  That's plain meaning of the way the whole charge
reads.  It is not statutory.  There is no such definition.  That's case law when they
were determining sufficiency of the evidence.  And I will not give it.  But you can
argue it if you wish to, sir.


	Although we can only speculate, it appears that the trial court refused to define the
term "prospective witness."  That term is not statutorily defined.  The words "prospective" and
"witness" have ordinary, common meanings.  Therefore, it was not necessary to define these words
for the jury.  See Morrow, 862 S.W.2d at 614; Dooley v. State, 999 S.W.2d 796, 799 (Tex.
App.--Tyler 1998, pet. ref'd); see also Andrews v. State, 652 S.W.2d 370, 375-77 (Tex. Crim. App.
1983); Roise v. State, 7 S.W.3d 225, 242 (Tex. App.--Austin 1999, pet. ref'd).
	Even if appellant had properly and timely requested the trial court to define
"prospective witness" in the jury charge, refusal of the request would not have been error. (3) 
Furthermore, the individual "perspective of appellant that he considered Agent Jose Viegra a
'prospective witness'" is not the proper standard to be applied by the jury.  The proper standard is
the "reasonable person" standard.  The trial court properly charged the jury. (4)  Appellant's second
point of error is overruled.
	The judgment is affirmed.


  
 Carl E. F. Dally, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Dally*: Opinion by Justice Dally;
   Dissenting Opinion by Justice B. A. Smith
Affirmed
Filed:   April 25, 2002
Publish


*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.  See
Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   	The State admits that it would have been more appropriate to have charged appellant with
threatening Viegra, an Alcohol, Tobacco and Firearms agent, on account of his being a public
servant rather than on account of his being a prospective witness.  See Helleson v. State, 5 S.W.3d
393 (Tex. App.--Fort Worth 1999, pet. ref'd); Stafford v. State, 948 S.W.2d 921 (Tex.
App.--Texarkana 1997, pet. ref'd).
2.   	A federal charge filed against appellant was dismissed.  The record does not show the
nature of the charge or the reason for its dismissal.
3.   	Appellant argues that whether someone is a prospective witness is to be judged from the
standpoint of the person who retaliates.  Appellant cites Davis v. State, 890 S.W.2d 489, 492 (Tex.
App.--Eastland 1995, no pet.), and Solomon v. State, 830 S.W.2d 636 (Tex. App.--Texarkana 1992,
pet. ref'd).  We believe that the courts in Davis and Solomon were in fact saying that whether a
person was a prospective witness should be viewed from the standpoint of a defendant as a
reasonable person.  Davis and Solomon did not hold that it was necessary to submit a special charge
to the jury.
4.   	The trial court charged the jury that if it believed from the evidence beyond a reasonable
doubt that appellant

	did then and there intentionally or knowingly threaten to harm in person,
another, to-wit: Jose Viegra, by an unlawful act, to-wit: threats of assault or
bodily injury, in retaliation for or on account of the service of the said Jose
Viegra as a prospective witness; then you will find the defendant guilty of the
offense of retaliation and so say by your verdict.

		But, if you do not so believe, or if you have a reasonable doubt thereof,
you will acquit the defendant and say by your verdict "not guilty."
