
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-02-00368-CR


Kerwin Pennick, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 9024023, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

A jury found appellant Kerwin Pennick guilty of retaliatory assault with a deadly
weapon and assessed punishment at imprisonment for life.  Tex. Pen. Code Ann. § 22.02(a)(2),
(b)(3) (West 2003).  Appellant's court-appointed attorney filed a brief concluding that the appeal is
frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738
(1967), by advancing a contention which counsel says might arguably support the appeal.  See also
Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie
v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim.
App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).
Counsel urges that the evidence is arguably insufficient, both legally and factually,
to support the jury's finding that appellant assaulted the complainant in retaliation against or on
account of her service as a prospective witness or person who had reported the occurrence of a crime. 
Appellant makes the same argument in a pro se brief.
The evidence shows that appellant and the complainant had a romantic relationship
that ended in December 2000.  On February 18, 2001, appellant attended the complainant's birthday
party and accompanied her home.  They argued, and appellant attacked the complainant with a knife. 
Appellant continued the attack even as the complainant called the police, and he did not stop the
attack until officers arrived and arrested him.  Appellant was released from jail in March.  Thereafter,
appellant called the complainant on the telephone almost daily, and occasionally appeared at her
house.  Many of appellant's calls were "ugly and he would start cussing."  On April 17, 2001,
appellant was waiting outside the complainant's house as she left for work.  He attacked her with
his fists and with an ax.  The complainant's son intervened and appellant fled.  Appellant continued
to make threatening and abusive telephone calls to the complainant until he was arrested one week
later.
Applying the appropriate standards of review, we conclude that the evidence is both
legally and factually sufficient to support the jury's finding that the April 17 assault was in retaliation
for the complainant's report of the February 18 assault.  See Jackson v. Virginia, 443 U.S. 307, 324
(1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (standard of review for
legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (standard of review for
factual sufficiency).  Although there is no evidence that appellant made any express statement
manifesting a retaliatory purpose for the April 17 attack, it is significant that appellant began the
harassing telephone calls to the complainant immediately after he was released from jail following
the February assault.  See Angelo v. State, 977 S.W.2d 169, 173-75 (Tex. App.--Austin 1998, pet
ref'd).  From this, the jury could reasonably infer that the April 17 assault was motivated, at least in
part, by appellant's desire to retaliate against the complainant for having reported his earlier attack
to the police.
Having reviewed the record and the briefs, we conclude that there is no meritorious
ground for appeal.  Counsel's motion to withdraw is granted.
The judgment of conviction is affirmed.


  
				Mack Kidd, Justice
Before Justices Kidd, Yeakel and Patterson
Affirmed
Filed:   March 20, 2003
Do Not Publish
