Opinion filed April 11, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-17-00109-CR
                                   __________

                  BRADLEY THOMAS TIMS, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the 385th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR48112


                      MEMORANDUM OPINION
       Bradley Thomas Tims entered open pleas of guilty to two counts of
retaliation. Appellant also pleaded “true” to four prior felony convictions alleged
for enhancement purposes. After a unitary trial, the trial court found Appellant guilty
on both counts of retaliation and found each enhancement allegation to be true. The
trial court sentenced Appellant to confinement for a term of forty years in the
Institutional Division of the Texas Department of Criminal Justice for each count.
In one issue on appeal, Appellant contends that the evidence was insufficient to
substantiate his guilty pleas. We affirm.
                                  Background Facts
      Appellant originally appeared for a jury trial on guilt/innocence. After a
preliminary discussion concerning punishment and voir dire, Appellant waived his
right to a jury trial. The trial court accepted Appellant’s waiver of jury trial and
proceeded to trial before the trial court. Appellant pleaded guilty to both counts of
retaliation. After receiving both guilty pleas, the trial court asked Appellant if he
was pleading guilty “because you really are guilty of those counts.” Appellant
answered in the affirmative to this question. However, the record does not indicate
that Appellant was under oath when he made this response. At this point in the
proceedings, the trial court began receiving evidence in the case.
      Midland Police Officer Aaron Renz testified that he and Officer Jorge Jimenez
responded to a reported domestic disturbance. When the officers arrived, Appellant
appeared to be “highly intoxicated.” After speaking with Appellant’s parents and
completing the investigation, Officer Renz arrested Appellant for assault family
violence. After the officers arrested Appellant, Officer Jimenez placed Appellant in
the patrol car because Appellant started to act aggressively.          Officer Jimenez
testified that Appellant told him “he was going to whoop [his] ass.” Officer Jimenez
asked Appellant “if that was a threat,” to which Appellant replied: “[T]hat was not
a threat, it was a promise.”
      The State offered into evidence in-car videos, and one of those videos
included an audio recording from Officer Jimenez’s body camera. These recordings
captured Appellant’s statements to the officers. Once restrained in the back
seat of the patrol car, Appellant made the following statements to the officers:
(1) “We’ll rock, me and you will rock. I’ll whip your g-d--- ass, bitch. . . . I’ll whip


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your g-d-- ass, bitch”; (2) “You’ve got a smart f-----g mouth, bitch. I’ll f-----g stomp
your f-----g ass bitch, don’t think I won’t because I will. I will stomp your f-----g
ass in a minute”; and (3) “Next time you grab onto me like that, I’m going to find
you somewhere.”
       Officer Renz asked Appellant if he was threatening a police officer, and
Appellant replied: “No, I’m telling you the g-d--- truth.” Officer Renz asked
Appellant again if he was threatening a police officer, and Appellant responded: “No
sir, never, never.    You ain’t worth it. . . .       You ain’t worth pissing on.”
Subsequently, Appellant said, “You and your g-d--- little family, right, f--k you and
your family. . . . I’ll slap the f-----g s--t out of you bitch.” Appellant continued to
make similar statements until Officer Renz transferred Appellant to the custody of
the jail staff.
       Officer Renz testified that he interacts with drunk people on a regular basis
but that this incident with Appellant “did, in fact, cross the line” from just mouthing
off to actual retaliation. Officer Renz compared Appellant’s threats with statements
made by other people who have threatened him in the past. Officer Renz explained
that, while other individuals simply made their statements and moved on, Appellant
“took time to reiterate again that it was not just a passing thought in his mind, that
he was going to essentially promise or guarantee that it was going to happen.”
Officer Renz believed that Appellant expressed an intention to assault Officer Renz
and his family. Likewise, Officer Jimenez testified that be believed that Appellant
made the statements purposefully to threaten Officer Jimenez. Both officers testified
that they believed that arresting Appellant prompted the threats.
                                       Analysis
       In his sole issue, Appellant contends that the evidence was insufficient to
substantiate his guilty plea. Appellant asserts that he did not stipulate to evidence


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substantiating the pleas or sign a judicial confession and that the State failed to
present evidence that a reasonable person would interpret Appellant’s statements as
a serious expression of intent to harm. Appellant contends that a reasonable person
would not interpret Appellant’s statements as serious threats because his statements
were just drunken ramblings, because he was barely conscious, and because he likely
would not remember his statements. We disagree.
      A trial court may not render a conviction based upon a guilty plea without
sufficient evidence to substantiate the defendant’s guilt. TEX. CODE CRIM. PROC.
ANN. art. 1.15 (West 2005); see Menefee v. State, 287 S.W.3d 9, 13–14 (Tex. Crim.
App. 2009). The State is not required to prove the defendant’s guilt beyond a
reasonable doubt. Flores-Alonzo v. State, 460 S.W.3d 197, 203 (Tex. App.—
Texarkana 2015, no pet.); McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas
2006, no pet.). Instead, the supporting evidence must embrace every essential
element of the offense charged. Menefee, 287 S.W.3d at 13; Stone v. State, 919
S.W.2d 424, 427 (Tex. Crim. App. 1996). We will affirm Appellant’s conviction if
the evidence presented by the State embraces every element of the offense of
retaliation. See Menefee, 287 S.W.3d at 13.
      The evidence to substantiate a guilty plea can take many forms, including a
written or oral stipulation of evidence or judicial confession. Id. at 13–14. We note
that there is no written stipulation of evidence or judicial confession in this case.
With respect to an oral stipulation or judicial confession, a guilty plea, in and of
itself, does not suffice. Id. at 14. Furthermore, Appellant’s statement that he was
pleading guilty “because [he] really [was] guilty” does not suffice because the record
does not reflect that he was under oath when he made the statement. Id. at 13.
Accordingly, we review the evidence offered at trial to determine if it substantiates
Appellant’s guilty pleas. We conclude that it does.


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         A person commits the offense of retaliation, as relevant here, if the 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. TEX. PENAL
CODE ANN. § 36.06(a)(1)(A) (West 2016). The central purpose of the retaliation
statute is to encourage public servants or other specified individuals to perform vital
public duties without fear of retribution. Doyle v. State, 661 S.W.2d 726, 729 (Tex.
Crim. App. 1983); Brock v. State, 495 S.W.3d 1, 16 (Tex. App.—Waco 2016, pet.
ref’d). A threat to harm another by “an unlawful act” will support a conviction for
retaliation under the statute. Meyer v. State, 366 S.W.3d 728, 731 (Tex. App.—
Texarkana 2012, no pet.). The statute does not require that the threatened harm be
imminent, that the actor actually intend to carry out his threat, or that he take any
affirmative steps to carry out the threat. Brock, 495 S.W.3d at 16.
         Appellant cites Lofton v. State for the proposition that “whether a statement
constitutes a threat is governed by an objective standard—whether a reasonable
person would foresee that the statement would be interpreted by recipient of the
statement as a serious expression of intent to harm.” Lofton v. State, No. 03-15-
00475-CR, 2017 WL 3378880, at *8 (Tex. App.—Austin July 31, 2017, no pet.)
(mem. op., not designated for publication); see Brock, 495 S.W.3d at 17. Appellant
contends that a reasonable person would not foresee that Appellant’s “drunken
ramblings” would be interpreted as a serious threat for some unspecified time in the
future.    Appellant further asserts that a reasonable person would foresee that
Appellant would not remember his “drunken ramblings” by the time that he became
sober.
         To the extent that Appellant relies on a prediction of how Appellant would
behave in the future, we disagree with his analysis. In Russie v. State, we determined
that the offense of retaliation by threat is complete “as soon as the [defendant] utters


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the threatening words.” Russie v. State, No. 11-12-00162-CR, 2014 WL 2810135,
at *2 (Tex. App.—Eastland June 12, 2014, pet. ref’d) (mem. op., not designated for
publication) (citing Olivas v. State, 203 S.W.3d 341, 345 (Tex. Crim. App. 2006)
(“a threat occurs, not when the victim perceives the threat, but as soon as the actor
utters the threatening words”)). Furthermore, the statute does not require that the
actor actually intend to carry out his threat or that he take any affirmative steps to
carry out the threat. Brock, 495 S.W.3d at 16; see Martin v. State, No. 09-15-00087-
CR, 2017 WL 218270, at *3 (Tex. App.—Beaumont Jan. 18, 2017, pet. ref’d) (mem.
op., not designated for publication) (rejecting a claim that “drunken ramblings” did
not constitute retaliation because they lacked any intent or ability to act on the threats
in the future).
       The Austin Court of Appeals subsequently determined in Graves v. State, that
the “reasonable person” standard did not apply to the offense of retaliation by threat.
Graves v. State, 03-17-00493-CR, 2018 WL 4140663, at *3 (Tex. App.—Austin
Aug. 30, 2018, no pet.) (mem. op., not designated for publication). We need not
decide if the “reasonable person” standard applies in this case, however, because
even if it does, the evidence offered at trial would permit a reasonable person to
interpret Appellant’s threats as a serious expression of an intent to harm Officer Renz
and Officer Jimenez on account of their service or status as public servants. Both
officers testified that they believed that Appellant intentionally threatened to assault
them in retaliation for arresting him. Furthermore, Officer Renz testified that he was
familiar with dealing with intoxicated individuals and that Appellant’s threats were
more than just a passing thought because Appellant reiterated that his threatened
assaults were going to happen. Finally, the bulk of Appellant’s actual threats were
presented to the trial court in the form of a recording that was admitted into evidence.
This recording permits us to evaluate the verbally abusive content and hostile tone


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of Appellant’s threats. Although Appellant was “highly intoxicated,” we conclude
that a reasonable person could interpret Appellant’s statements as an intentional or
knowing threat to harm the officers on account of their service or status as public
servants. We overrule Appellant’s sole issue on appeal.
                                         This Court’s Ruling
        We affirm the judgments of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


April 11, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


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