                             NUMBER 13-09-00181-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KEMUEL LINDSEY,                                                                Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                          MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Garza
                  Memorandum Opinion by Justice Garza

       A jury convicted appellant Kemuel Lindsey of retaliation, a third-degree felony. See

TEX . PENAL CODE ANN . § 36.06(a)(1)(B) (Vernon Supp. 2009). The trial court sentenced

Lindsey to twenty-five years’ confinement in a state facility. See id. § 12.35 (Vernon Supp.

2009). Lindsey presents six issues, which we reorganize and renumber as three, asserting

that: (1) the evidence was legally and factually insufficient to support the verdict; (2) the
jury charge was erroneous; and (3) his counsel rendered ineffective assistance. We affirm.

                                     I. BACKGROUND

       Nisar Ahmed owns Coastal Mart, a convenience store and gas station located at

2214 Leopard in Corpus Christi, Texas. On August 21, 2008, Ahmed and his employee

Richard Nolte were working in the cash register area when Lindsey walked into the store.

Ahmed testified that Lindsey wandered around the store asking customers for money and

then ran outside to panhandle money from a customer who was pumping gas. According

to Ahmed, Lindsey then re-entered the store, cut in line, and purchased a bag of chips for

ninety-nine cents. After making his purchase, Lindsey lingered near the cash registers as

another customer attempted to make a purchase. Ahmed testified that Lindsey “was

looking [at] the wallet of the customer,” which concerned Ahmed. The customer then

stated that he needed to return to his car to obtain more money to purchase the item and

walked outside. Lindsey followed the customer.

       Ahmed testified that, out of his continued concern, he followed Lindsey outside and

asked him not to panhandle his customers. According to Ahmed, Lindsey then proclaimed

that Ahmed was “disrespecting him.” Ahmed repeated his request to Lindsey not to badger

his customers and to leave the store premises when Lindsey suddenly punched Ahmed

in the face. Ahmed testified that the punch knocked his glasses off and caused him to fall.

He testified that the left side of his face began to bleed and swell. Ahmed got up, grabbed

a nearby stick to protect himself, ran inside to ask Nolte to call the police, and then

returned outside where he and Lindsey continued to argue.

       Nolte testified next. He stated that Ahmed actually asked him to call the police

before he went outside to follow Lindsey. He testified that he was “on the phone with the

police dispatch when the defendant hit [his] boss.” Nolte witnessed the entire assault and

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also provided testimony regarding Ahmed’s facial injuries.

         Officer Gabriel Garcia, a four-year veteran of the Corpus Christi Police Department,

testified that he saw Ahmed and Lindsey arguing when he arrived at the convenience

store. Officer Garcia noted that Lindsey matched the description of the offender who had

been reported to the police dispatch, so he approached Lindsey, patted him down for

weapons, and then detained him in the back of his marked patrol unit. Officer Garcia then

spoke to Ahmed, who told him that “Lindsey was begging for money and [Ahmed] had told

him numerous times to stop begging for money” when Lindsey punched him. At that point,

Officer Garcia stated that he took Lindsey into custody for assault causing bodily injury.

         Officer Garcia testified that, while driving Lindsey to jail, Lindsey made several

threats to “come back and hurt Mr. [Ahmed] for getting him arrested.”                              At one point,

Lindsey stated that he was going to “beat the fuck out of this clerk again.” When Officer

Garcia asked Lindsey to calm down and relax, Lindsey instead responded, “Fuck you. I’m

coming back to fuck him up for putting me in jail.”

         A jury found Lindsey guilty of the crime of retaliation, and this appeal ensued.

                       II. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

         By his first issue, Lindsey asserts that there was legally and factually insufficient

evidence to support his retaliation conviction.1

A.       Standard of Review and Applicable Law

         When determining the legal and factual sufficiency of evidence, appellate courts

must utilize two separate and distinct standards. Johnson v. State, 23 S.W.3d 1, 7 (Tex.

Crim. App. 2000). To analyze the legal sufficiency of the evidence, the court must view all

of the evidence in a light most favorable to the verdict to determine “whether ‘any rational
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           The State’s first trial in this case resulted in a m istrial. This appeal follows the State’s second trial
against Lindsey. W e base this opinion on the record from the second trial.
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trier of fact could have found all of the essential elements of the crime beyond a

reasonable doubt.’” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). This standard gives all deference to the

trier of fact “to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” In the Matter of B.P.H., 83

S.W.3d 400, 406 (Tex. App.–Fort Worth 2002, no pet.); see Jackson, 443 U.S. at 319. We

do not reevaluate the weight or credibility of the evidence, nor do we substitute our own

conclusions for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)

(en banc). Instead, we resolve any inconsistencies in the evidence in favor of the final

judgment and consider whether the jury reached a rational decision. Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000).

       In contrast, a factual sufficiency review requires the court to view the evidence in a

neutral light to determine whether a jury was rationally justified in finding guilt beyond a

reasonable doubt. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

Evidence can be factually insufficient if it is so weak that the verdict is clearly wrong and

is manifestly unjust, or if the jury’s verdict is against the great weight and preponderance

of the evidence. Id. We defer to the fact-finder’s decision regarding contradictory

testimony unless the record reveals that a different result is required. Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008).

       Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet.

ref’d). Under a hypothetically correct jury charge in this case, Lindsey committed retaliation



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if he: (1) intentionally or knowingly, (2) harmed or threatened to harm Ahmed, (3) by an

unlawful act, (4) in retaliation for or on account of the service or status of Ahmed as a

person who has reported the occurrence of a crime. See TEX . PENAL CODE ANN . §

36.06(a)(1)(B).

       The public policy behind the retaliation statute is to encourage “a certain class of

citizens to perform vital public duties without fear of retribution.” In the Matter of B.P.H.,

83 S.W.3d at 407 (citing In re B.M., 1 S.W.3d 204, 207 (Tex. App.–Tyler 1999, no pet.));

Doyle v. State, 661 S.W.2d 726, 728 (Tex. Crim. App. 1983). These public duties can

include, but are not limited to, “reporting criminal activities, testifying in official proceedings,

or cooperating with the government in a criminal investigation.” In the Matter of B.P.H., 83

S.W.3d at 407. “Retaliatory intent may be inferred from an accused’s acts, words, or

conduct.” Id.; see Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).

B.     Analysis

       The evidence reveals that Lindsey continued to threaten to hurt Ahmed even after

Officer Garcia repeatedly asked him to “calm down and relax.”               Lindsey’s continued

threats after, and in spite of, a police officer’s warning for him to stop lend support to the

notion that his statements were made intentionally or knowingly. Lindsey’s statement that

he was going to “beat the fuck out of [Ahmed] again” is evidence that he was threatening

to harm another by an unlawful act—in this case, assault. In fact, the jury heard evidence

that Lindsey had already punched Ahmed in the face, thereby demonstrating that Lindsey

was capable of committing such harm. The statement that Lindsey intended to “com[e]

back to fuck [Ahmed] up for putting [him] in jail” establishes that he was making the threat

in retaliation for Ahmed’s report to the Corpus Christi Police Department about the assault.



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         Viewing this evidence in a light most favorable to the verdict, we conclude that a

reasonable jury could have determined that Lindsey committed the crime of retaliation.

TEX . PENAL CODE ANN . § 36.06(a)(1)(B). Accordingly, the evidence is legally sufficient to

support the conviction. Further, viewing the evidence in a neutral light, we conclude that

the jury was rationally justified in finding that Lindsey committed retaliation because the

evidence was not so weak such that the result was clearly wrong or manifestly unjust.

Watson, 204 S.W.3d at 414-15. The jury’s verdict is also not against the great weight and

preponderance of the evidence. Id. Thus, Lindsey’s first issue is overruled.

                                     III. THE JURY CHARGE

         Lindsey’s second issue concerns the jury charge. When confronted with a jury

charge issue, we must first determine whether error exists in the charge, and if so, then we

must determine if any harm extended from the error. Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2006); see Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.

2003).

A.       Determination of Error

         Lindsey asserts that retaliation is a “result oriented” rather than a “conduct oriented”

crime, a distinction with which this Court and several of our sister appellate courts have

agreed. “Retaliation is a result oriented offense and the focus is on whether the conduct

is done with an intent to effect the result specified in the statute.” In the Matter of B.P.H.,

83 S.W.3d at 407 (citing Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.–San Antonio

1996, no writ)); Wilkins v. State, 279 S.W.3d 701, 704 (Tex. App.–Amarillo 2007, no pet.);

see also Carter v. Texas, No. 13-07-567-CR, 2008 Tex. App. LEXIS 8967, at *10-11 (Tex.

App.–Corpus Christi Nov. 20, 2008, no pet.) (mem. op., not designated for publication); cf.



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Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008) (holding that assault-by-

threat under Texas Penal Code section 22.01(2) is a conduct oriented offense). Thus,

Lindsey argues that the jury charge submitted in this case constituted error because it

allowed a jury to find Lindsey guilty of a result oriented crime by finding that he had the

culpable mental state with respect to the circumstances of his conduct or the nature of his

conduct. Specifically, he complains about the following mens rea portion of the jury

charge:

       A person acts intentionally, or with intent, with respect to the nature of his
       conduct or to a result of his conduct when it is his conscious objective or
       desire to engage in the conduct or cause the result.

       A person acts knowingly, or with knowledge, with respect to the nature of his
       conduct or to circumstances surrounding his conduct when he is aware of
       the nature of his conduct or that the circumstances exist. A person acts
       knowingly, or with knowledge, with respect to a result of his conduct when he
       is aware that his conduct is reasonably certain to cause the result.

       Section 6.03 of the Texas Penal Code sets forth three separate “conduct elements”

that may be involved in an offense: (1) the nature of the conduct; (2) the result of the

conduct; and (3) the circumstances surrounding the conduct. TEX . PENAL CODE ANN . §

6.03(a), (b) (Vernon 2003); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App.

1989). “An offense may contain any one or more of these ‘conduct elements’ which alone

or in combination form the overall behavior which the Legislature has intended to

criminalize, and it is those essential ‘conduct elements’ to which a culpable mental state

must apply.” McQueen, 781 S.W.2d at 603. However, when the offense charged is a

result oriented offense, it is error to define “intentionally” or “knowingly” as those terms

relate to the nature of the conduct at issue. Herrera, 915 S.W.2d at 98; see also Ybarra

v. State, 890 S.W.2d 98, 106 (Tex. App.–San Antonio 1994, writ ref’d). In fact, we have



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previously held that “when an offense is only a ‘result’ or a ‘nature of the conduct’ type

offense, the court should submit statutory definitions of ‘intentionally’ or ‘knowingly’ which

are limited to the respective culpable mental state required.” Saldivar v. State, 783 S.W.2d

265, 267-68 (Tex. App.–Corpus Christi 1989, no writ).

       Lindsey contends that all references to the “nature of his conduct” are erroneous

and should not have been submitted in the charge. We agree. The additional mens rea

definitions improperly expanded the avenues by which a jury could find Lindsey guilty of

the offense of retaliation. Therefore, we hold that the trial court erred when it did not limit

the definitions of “intentionally” or “knowingly” to the result oriented culpable mental state

required for retaliation.

B.     Harm Analysis

       Finding error in the jury charge begins, rather than ends, an appellate court’s inquiry.

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985). Lindsey’s counsel did not

object to the charge, so we must now determine whether the jury charge error resulted in

egregious harm to Lindsey. See id. at 171 (holding that if no proper objection was made

at trial, the accused must prove that the error was “fundamental” or “egregious”). To

constitute egregious harm, the error must “go to the very basis of the case,” “deprive the

accused of a ‘valuable right,’” or “vitally affect his defensive theory.” Id.at 172.

       The application paragraph of the jury charge properly directed the jury’s attention

to the result of Lindsey’s conduct rather than the conduct itself. The paragraph read as

follows:

       . . . [I]f you believe from the evidence beyond a reasonable doubt, that the
       defendant, KEMUEL LINDSEY, on or about August 21, 2008, in Nueces


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       County, Texas, did then and there intentionally or knowingly threaten to harm
       Nisar Ahmed by an unlawful act, to physically harm or to kill, in retaliation for
       or on account of the service of Nisar Ahmed as a witness or a prospective
       witness or a person who had reported the occurrence of a crime, 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.”


       The court of criminal appeals has held that “where the application paragraph

correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina v.

State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). Here, the application paragraph properly

directs the jury to look at the results of Lindsey’s threat. The court of criminal appeals has

also ruled that “the inclusion of a merely superfluous abstraction never produces reversible

error in the court’s charge because it has no effect on the jury’s ability [to] fairly and

accurately implement the commands of the application paragraph or paragraphs.” See

Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996) (concluding that “the

harmfulness of error in a jury charge should be measured against the likelihood that the

jury’s verdict was actually based upon an alternative available theory of culpability not

affected by erroneous portions of the charge”). On this basis, we hold that the inclusion

of the “intentionally” or “knowingly” definitions which refer to the nature of Lindsey’s

conduct are not egregious error. The charge error did not go to the heart of Lindsey’s

case, deprive him of a valuable right, or vitally affect his defense. See Almanza, 686

S.W.2d at 172. Lindsey’s second issue is overruled.

                         IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his third issue, Lindsey argues that the failure of Lindsey’s trial counsel to object

to the jury charge constitutes ineffective assistance of counsel.



                                              9
A.     Standard of Review and Applicable Law

       Courts evaluate claims regarding ineffective assistance of counsel under the two-

prong test set forth by the United States Supreme Court in Strickland v. Washington. See

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). The Strickland test requires the appellant to

demonstrate that counsel’s performance was so deficient that it fell below an objective

standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999); see Strickland, 466 U.S. at 687. Assuming the appellant has demonstrated

deficient assistance, he or she must then show that there is a reasonable probability that

the final result would have been different but for counsel’s errors. Thompson, 9 S.W.3d

at 812.

       The appellant must prove ineffective assistance of counsel by a preponderance of

the evidence. Id. The appellant must overcome the strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance and that counsel’s

actions could be considered a sound trial strategy. Jaynes v. State, 216 S.W.3d 839, 851

(Tex. App.–Corpus Christi 2006, no pet.). A reviewing court should not second-guess

legitimate tactical decisions made by trial counsel. State v. Morales, 253 S.W.3d 686, 696

(Tex. Crim. App. 2008).     “When handed the task of determining the validity of a

defendant’s claim of ineffective assistance of counsel, any judicial review must be highly

deferential to trial counsel and avoid the deleterious effects of hindsight.” Thompson, 9

S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).




                                            10
B.     Analysis

       Here, Lindsey’s trial counsel did not object to the charge. The record reflects that

when the trial court asked Lindsey’s counsel whether he wanted “to come and look at [the

jury charge] and make sure [he did not] have an objection,” that counsel responded, “I

already looked at it, Judge. That’s fine. My only objection was the last—next to the last

sheet and that has been changed.” The record is not clear regarding what Lindsey’s

counsel’s prior objection was, but it is evident that his concerns about the charge had been

addressed.

       Lindsey asserts that his trial counsel’s failure to object to the mens rea portion of the

charge resulted in prejudice. Under Strickland, Lindsey has the burden to show that this

failure to object constituted deficient assistance of counsel. Strickland, 466 U.S. at 687

Even assuming that this was deficient, Lindsey also had to demonstrate that the overall

result in his case would have been different “but for” this failure to act. Id. Given the

compelling nature of the State’s evidence and the fact that Lindsey did not introduce any

defense witnesses or exhibits whatsoever during the trial, we cannot say that Lindsey

would have been found not guilty if his counsel had objected to the charge and the trial

court had sustained the objection. “Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim.” Thompson, 9

S.W.3d at 813. Because Lindsey has not shown that the verdict would have been different

with an objection to the charge, we cannot conclude that Lindsey’s trial counsel’s failure

to object to the jury charge constitutes ineffective assistance of counsel. We overrule

Lindsey’s third issue.




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                                     V. CONCLUSION

       We affirm the judgment of the trial court.



                                                    ________________________
                                                    DORI CONTRERAS GARZA
                                                    Justice

Do Not Publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
29th day of July, 2010.




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