                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00066-CR

TERRY LASHAWN AUSTIN,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2011-950-C2


                           MEMORANDUM OPINION


       The jury convicted Terry Lashawn Austin of the offense of retaliation and

assessed his punishment at seven years confinement. We affirm.

                                 Sufficiency of Evidence

       In his first issue, Austin complains that the evidence is insufficient to support his

conviction. The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:
               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S. Ct. 2712, 183

L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).



Austin v. State                                                                             Page 2
        Ismael Hector Torres is a code enforcement officer for the City of Waco. Torres

testified that in August 2010, he went to a residence in response to a complaint that

someone was living in an accessory structure without water and facilities.                The

accessory structure was a garage or shed behind the main residence. Austin lived at the

main residence, but was not named on the lease agreement. Torres sent a letter to the

residence noting the code violations and how to correct the violations. Sometime later,

Torres returned to the residence and found that the violations had not been corrected.

Torres testified that he spoke with Austin and the man living in the accessory structure

and that the man admitted to living in the accessory structure. Torres gave both Austin

and the man living in the structure a ticket for the violations.

        Torres testified that on February 25, 2011, he received three voice mail messages

from Austin on his phone at work. One of the messages was a threatening “rap song.”

Torres stated that in the messages Austin said he would “come at him,” that he was

going to “catch a murder case” and “you’re gonna get done, son.” Torres felt that the

messages indicated Austin wanted to kill him. Torres told his supervisor about the

messages, and they recorded the messages and took them to the police. Detective John

Clark said he spoke with Austin about the messages, and Austin admitted to

threatening Torres by saying he would “catch a murder case.”

        Section 36.06 of the Texas Penal Code provides:

              (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 or status of another
        as a:
              (A) public servant, witness, prospective witness, or informant; or

Austin v. State                                                                          Page 3
               (B) person who has reported or who the actor knows intends to
        report the occurrence of a crime; …

TEX. PENAL CODE ANN. § 36.06 (West 2011).

        Austin argues that the evidence is insufficient to show that he threatened Torres

or that he intended to inhibit Torres’s service as a public servant. The threat that is

needed to support a conviction under Section 36.06 is for Austin to have threatened

harm by an unlawful act. Meyer v. State, 366 S.W.3d 728, 731 (Tex. App.─Texarkana

2012, appeal dismissed). Harm is defined as "anything reasonably regarded as loss,

disadvantage, or injury...." TEX. PENAL CODE ANN. § 1.07(25) (West Supp. 2012). Austin

admitted saying that he would “catch a murder case.” Detective Clark testified that

“catching a case” means being charged with a criminal offense.

        Austin received a citation for code violations and failed to appear in court in

reference to the violations. Austin called Torres and left threatening voice mails in

response to Torres issuing a citation. A rational fact finder could have found that

Austin committed the offense of retaliation. We overrule the first issue.

                                 Admission of Evidence

        In his second issue, Austin complains that the trial court erred in excluding the

testimony of his step-daughter. We review a trial court's decision to admit or exclude

evidence for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005). "Under an abuse of discretion standard, an appellate court should not

disturb the trial court's decision if the ruling was within the zone of reasonable

disagreement." Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).


Austin v. State                                                                    Page 4
        Jessica McCowan testified that she was present when Torres spoke to Austin

about the violations and when he gave Austin the ticket. Austin’s trial counsel asked

McCowan, “what did Mr. Torres say about the ticket when he gave him the ticket?”

The State objected that the question called for hearsay, and the trial court sustained the

objection.

        Austin argues that he was trying to establish his defense that Torres told him he

was getting a warning rather than a ticket. Austin contends that he called and left the

messages to ask why there was a warrant when he had only received a warning.

Outside the presence of the jury, Austin made an offer of proof to establish McCowan’s

testimony. Austin’s trial counsel asked what Torres said about the ticket when he gave

it to Austin, and McCowan replied:

        He told him that it was a warning. And then [Austin] had asked him, did
        he have to go to court or did he have to pay anything? And [Torres] told
        him, no, that it was just a warning. But if he came back out, then he
        would have to show up in court.

Austin argues that the statement was not offered for the truth of the matter asserted and

was not hearsay. He contends that the evidence is relevant to show his intent in making

the calls to Torres.

        Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX.

R. EVID. 801 (d). A matter asserted “includes any matter explicitly asserted, and any

matter implied by a statement, if the probative value of the statement as offered flows

from the declarant’s belief as to the matter.” TEX. R. EVID. 801 (c). The probative value


Austin v. State                                                                     Page 5
of the statement is Austin’s belief that he did not have to appear in court because he

received a warning rather than a ticket. We do not find that the trial court abused its

discretion in sustaining the State’s hearsay objection and excluding the statement. We

overrule the second issue.

                                       Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed February 7, 2013
Do not publish
[CR25]


*(Chief Justice Gray concurs in the judgment to the extent that it affirms the trial court’s
judgment. A separate opinion will not issue.)




Austin v. State                                                                       Page 6
