                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00166-CR
                              NO. 09-15-00167-CR
                           ____________________

                 MICHAEL GEOFFREY PETERS, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 221st District Court
                         Montgomery County, Texas
               Trial Cause No. 14-07-08207 CR (Counts 1 and 3)
________________________________________________________________________

                         MEMORANDUM OPINION

      A jury found Michael Geoffrey Peters (Peters) guilty of two counts of

retaliation. See Tex. Penal Code Ann. § 36.06(a)(1) (West Supp. 2015).1 Peters

pleaded “true” to three prior felonies as alleged in the enhancement paragraphs of

the indictment. The jury assessed punishment at thirty-five years of confinement

for each count. The trial court entered a Judgment with the sentences to run

      1
         We cite to the current version of the statute as the subsequent amendments
to section 36.06 of the Texas Penal Code do not affect the outcome of this appeal.
                                        1
concurrently. Peters timely appealed his convictions. In three appellate issues,

Peters argues that the evidence supporting his conviction on Count 3 is insufficient,

the State violated article 39.14 of the Texas Code of Criminal Procedure by not

giving Peters the opportunity to inspect material evidence concerning Count 1, and

that this Court should consider any unassigned error.2 We affirm the trial court’s

judgments.

                                  THE INDICTMENT

      On October 21, 2014, a grand jury indicted Peters on multiple counts of

retaliation,3 wherein the grand jury alleged the following:

                                  [COUNT NO. 1]

             . . . Michael Geoffrey Peters, the Defendant, on or about June
      14, 2014 and continuing through July 26, 2014, . . . did then and there
      intentionally or knowingly harm Tracy A. Gilbert by an unlawful act,
      to-wit; with intent to harass, annoy, alarm, abuse, torment or
      embarrass Tracy A. Gilbert, make repeated telephone communications
      2
         A court-appointed attorney represents Peters in this appeal. This Court has
also received several pro se letters or documents from Peters in the appeal. To the
extent Peters has attempted to raise independent issues, if any, on appeal, we do
not address those issues. See Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex.
Crim. App. 2006) (explaining that defendants have no right to hybrid
representation on appeal); Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App.
2001) (“Appellants are not allowed to have ‘hybrid representation’ on appeal, in
which an appellant and an attorney can present independent points to an appellate
court.”).
       3
          Because the jury found Peters “not guilty” of the second count of
retaliation as alleged in the indictment (Count 2), we omit the allegations of Count
2 from our recitation of the indictment.
                                          2
      to Tracy A. Gilbert’s home in a manner reasonably likely to harass
      and annoy and alarm and abuse and torment and embarrass Tracy A.
      Gilbert, in retaliation for or on account of the services or status of
      Tracy A. Gilbert as a public servant,

            ....
                                  COUNT NO. 3

             . . . on or about March 30, 2014 and continuing through June
      13, 2014, . . . Michael Geoffrey Peters, hereinafter styled Defendant,
      did then and there intentionally or knowingly threaten to harm Tracy
      A. Gilbert by an unlawful act, to-wit; threaten to commit assault
      against Tracy A. Gilbert by stating the following “Judge Gillbert [sic]
      418 CORRUPT” and “you’re not gonna get away with it” and “you
      people will ultimately feel what I’m talking about” and “what would
      you do if it happened to you and your son . . . Judge Tracy Gilbert has
      three children” and “Please help me decide if I should go to prison”
      and “I am afraid of the way I’m thinking now” and “Whatever I do
      next I’m sure will have serious consequences if I can’t find a better
      way” and “my life can no longer go on while these thieves get away
      with this theft unabated” and “do I let these people steal my son
      through this Doctor’s lie . . . just because the Judges were paid off, or
      do I risk my life again, like I did in Iraq” and “you wonder why
      people go nuts in this country, all of a sudden they go off” and “you
      officials here in Texas have given me very little choice of what I
      should be doing” and “I can’t sit back and let you steal my only son”
      and “this man stole everything from me, he is scum”, in retaliation for
      or on account of the services or status of Tracy A. Gilbert as a public
      servant[.]

The indictment also included three enhancement paragraphs alleging three prior

felony convictions.




                                         3
                                    EVIDENCE

      Lieutenant Wakeman with the Texas Rangers testified on behalf of the State.

In June of 2014, the Montgomery County District Attorney’s Office contacted

Wakeman regarding “a potential threat towards Judge Tracy Gilbert[,]” and the

district attorney’s office advised Wakeman “of some videos that had been posted

on YouTube that were threatening in nature[]” and available to the public.

Wakeman explained that in the YouTube videos the speaker identified himself as

Peters and provided his name and address. After Wakeman compared the driver’s

license photograph of Peters to the videos, she determined that Peters was the

individual in the YouTube videos. Wakeman testified that according to the videos,

Peters “had had some sort of a . . . divorce and a child custody trial[]” in Judge

Gilbert’s family court, and Peters “was, obviously, not pleased with the outcome.”

      The State introduced into evidence Exhibit 1 which included a compilation

of many hours of Peters’s YouTube videos. Peters made no objections to the

admission of Exhibit 1. Several segments of the videos were played for the jury.

Wakeman testified that the YouTube videos were posted online starting around

February 2013, when Peters’s family law case was still pending, and the YouTube

videos continued to be posted online through June 22, 2014. Wakeman agreed that

Peters was “lashing out” at Judge Gilbert, a doctor from Houston and her husband,

                                         4
another judge who also presided over Peters’s case, the Texas Medical Board,

Governor Perry, and the Baylor Medical System.

      One portion of Exhibit 1 that was played for the jury included a YouTube

video posted by Peters on February 21, 2013. Wakeman identified Peters as the

person in the video. Wakeman explained that Peters appeared to be talking about

his divorce case in the 418th District Court. Wakeman testified that another

YouTube video dated March 17, 2013, and posted by Peters, was titled “Lies and

Fraud and Children’s Medical Records[,]” wherein Peters spoke about picketing at

Texas Children’s Hospital and that the hospital served him with a no trespass

warning for the hospital. According to Wakeman, a May 31, 2013 YouTube video

posted by Peters was titled “This is a Promise[.]” Wakeman was concerned about

the “This is a Promise” video because it was directed at a doctor at Texas

Children’s Hospital who Peters claimed had done something that angered him with

respect to the family law case. Wakeman testified that the video post amounted not

just to a threat, but constituted a “promise[.]” Wakeman also testified about the

nature of other videos. According to Wakeman, in some of the YouTube videos

Peters often would ask people to donate money, Peters talked about a doctor with

whom he was upset and who had treated his son, and Peters made requests such as

asking the President to “clean up” the “corruption” in Texas courts and the medical

                                        5
system. Wakeman testified that one of the two videos she was contacted about

initially was titled “Please help me decide if I should go to prison[,]” and it was

posted on June 10, 2014. A segment of that video was also played for the jury.

Wakeman explained that this video stood out because “the title in and of itself says

something that, basically, he’s considering going to prison for something[,]” and

that a person has to commit a crime to go to prison.

       A portion of another video, also dated June 10, 2014, titled “Stealing

children through lies[,]” was also played for the jury. Wakeman explained that

therein Peters states that “whatever I do next I am sure will have serious

consequences[]” and that Peters will “[r]isk [his] life again like [he] did in Iraq.”

Wakeman agreed that these statements sounded like he was making the statements

in a threatening manner. Wakeman also agreed that Peters’s statements that “You

wonder why people go nuts in this Country, all of a sudden they go off; . . . you’re

not stealing my son and getting away with it,” and, “You give me very little choice

and I can’t sit back and let you steal my only son[,]” appeared to be a threat to the

people Peters believed had wronged him. Additional segments of other YouTube

videos from Exhibit 1 were played for the jury, including part of a video posted

June 13, 2014, titled “Judge Tracy Gilbert child molester[.]”




                                         6
      According to Wakeman, the district attorney’s office also notified Wakeman

about an online comment by a person with the same profile picture as Peters’s

YouTube account. Wakeman said the comment was posted to a Yahoo news article

about two Las Vegas police officers who had been ambushed and killed by two

gunmen. Wakeman testified that Peters’s comment “call[ed] the people who had

killed the police officers heroes and stated that he wished he would have been there

to see the blood run from their veins, or their bodies, their stinking bodies[.]”

According to Wakeman, she factored this comment into her investigation because

its violent nature, coupled with the videos Peters had posted, “gave sort of [an]

indication what his state of mind was at that point.” Wakeman testified that there

had been “[a]n escalation in events from the first videos that were posted on

YouTube through the date of the last phone calls to Judge Gilbert's house.”

      Wakeman learned that Peters had called Gilbert’s residence on June 14,

2014, and that Peters spoke with Gilbert’s wife. Wakeman spoke with Judge

Gilbert’s wife about the phone call. Judge Gilbert also advised Wakeman that

Peters called Gilbert’s residence again on July 26, 2014, and Judge Gilbert told

Peters not to call his residence again. Wakeman explained that Judge Gilbert told

Wakeman that Peters called two more times that day and left two messages. Judge

Gilbert forwarded three photographs to Wakeman, each showing a display of a

                                         7
telephone number that registered on Judge Gilbert’s caller ID when Peters called

Judge Gilbert’s home. Judge Gilbert also provided Wakeman with two audio

recordings of the voicemail messages Peters left. Phone records for a phone

number in the name of “Michael Peters[,]” were admitted into evidence. Wakeman

testified that she listened to the two voicemails and that in one of the voicemails it

sounded like the caller said, “see you soon.” According to Wakeman, the phone

number on Judge Gilbert’s caller ID matched Peters’s phone number and the phone

records showed calls from Peters’s phone number to Judge Gilbert’s phone number

on July 26, 2014. After reviewing Peters’s YouTube videos, Wakeman was able to

identify Peters as the caller that had left the voicemails.

      Wakeman agreed that when determining whether Peters was a legitimate

threat, she considered the YouTube videos, the statements Peters made in the past,

the comments regarding other people involved, and the “totality of the

circumstances.” According to Wakeman, she determined, in combination with the

DA’s office, that “it seemed like due to the progression of events, that Mr. Peters

was making a threat towards Judge Gilbert and his family. . . .”

       Mary Gilbert, Judge Gilbert’s wife, also testified at trial. Mary explained

that she learned from Peters’s YouTube videos that “Peters was very unhappy with

the outcome of his case and he was upset with [her] husband, as well as the doctors

                                           8
and other people involved.” Mary testified that her husband came home with

photographs of Peters and his vehicles, and Mary and Judge Gilbert showed the

photographs to their children and told them to be cautious if they saw Peters or his

vehicle.

      According to Mary, around 6 a.m. on June 14, 2014, she was at her home in

Montgomery County with her daughter, when Mary was awakened by a phone

call. Mary answered the phone without looking at caller ID because her husband

was out of town, and she thought it might be him calling. After she answered, she

looked at the caller ID and recognized it as a number that “had called [their] house

many times in the past. But we had not answered the number or the call.”

According to Mary, a man’s voice on the telephone line said, “Is Tracy home?”

and she answered, “No, he’s not. May I take a message?” Mary testified that at

first the man said, “No” and then said something to the effect of “Well, actually

yes. Tell him that it’s Michael Peters and I would like to know how much money

he was paid by the hospital to implement the ruling that he gave[.]” Mary

explained at trial that at this point she realized the person on the telephone was the

person her husband had warned her about. Mary testified she became “[v]ery

concerned[]” and hung up and called her husband. She said her husband told her he

would contact Wakeman. Mary and her daughter left to stay with relatives because

                                          9
Mary “was concerned[]” and “didn’t know if Mr. Peters was going to be coming to

[their] residence.” Mary testified that Peters called back two more times that

morning, but she did not answer the phone.

      Mary further explained that about a month later Peters called their home and

spoke with Judge Gilbert and then left two messages on their answering machine.

She identified their phone number as a number listed on Peters’s phone records for

calls on July 26, 2014. She testified that the first voicemail said, “Out of sight but

not out of mind. Remember that, a_ _hole[,]” and the second one said, “See you

soon.” Mary testified that she was very concerned and “felt like those were threats,

that maybe he was going to try and retaliate in some way.” Mary said the Gilberts

increased security at their home. According to Mary, their home phone number

was unlisted and never before had a party from one of her husband’s cases called

her at home. Mary agreed at trial that the calls from Peters to her home were

disturbing, harassing, and annoying.

      Judge Tracy Gilbert testified that, at the time of trial, he had been the judge

in the 418th District Court for approximately seven years. He testified that in 2014

his staff brought to his attention certain YouTube videos that Peters had posted

online and the staff told Judge Gilbert that threats had been made by Peters which

he should be concerned about. Judge Gilbert explained that he recalled Peters had

                                         10
filed a suit in 2012 for annulment and a suit affecting the parent-child relationship

and the suits were in Judge Gilbert’s court. According to Judge Gilbert, Peters’s

wife was represented by an attorney in the suit, and Peters represented himself.

Judge Gilbert testified that the suit began in 2012 and concluded in the summer of

2013. Judge Gilbert explained to the Jury that “by the time [Peters] was in front of

[Judge Gilbert], there had already been a contested temporary orders case before

the associate judge and a ruling had already been made awarding primary custody

of the child to the mother and . . . visitation issues, child support, all of that.”

According to Judge Gilbert, there was a jury trial in the Peters case but Judge

Gilbert did not preside over the jury trial, did not preside over any evidentiary

hearings, and only recalled presiding “[a] handful[]” of times in “shorter types of

hearings[]” for the case.

      Judge Gilbert agreed that he considered the YouTube videos posted online

by Peters to be of a “threatening nature[,]” and Judge Gilbert testified that he

specifically remembered one of the videos wherein Peters identified and discussed

Gilbert’s wife and children in the video. According to Judge Gilbert, after he

watched the YouTube videos, Gilbert contacted the district attorney’s office.

Gilbert testified that Ranger Wakeman indicated to him that they “were starting to

monitor the videos, keep an eye on Mr. Peters.” Out of concern for the safety of his

                                         11
family, Judge Gilbert showed his wife and children pictures of Peters and of

Peters’s vehicle and warned them about Peters.

      Judge Gilbert explained to the jury that in June, while the Judge was out of

town, he received a call from his wife who was at home with their daughter.

Gilbert said his wife informed him that Peters had called their house early in the

morning. Judge Gilbert testified that his wife and daughter went to stay with

relatives and he contacted Wakeman. According to Judge Gilbert, on July 26th, he

received a call on his home phone which he answered. While he could not say

verbatim what the caller stated, Judge Gilbert testified that the person calling asked

essentially, “Is Tracy there?” and that he answered, “This is he[,]” and after Peters

identified himself, Judge Gilbert sternly told Peters, “This is my home. Do not ever

call here again[,]” and hung up. According to Judge Gilbert, Peters called two

more times that day, but Judge Gilbert did not answer. Judge Gilbert explained that

the caller left voicemail messages: one that said something like “Out of sight but

not out of mind. . . . Remember that, a_ _hole[,]” and the second one was “See you

soon.” Photographs Judge Gilbert took of his caller ID on his phone at the time of

the calls were admitted into evidence. The prosecutor showed Peters’s phone

records to Judge Gilbert, Judge Gilbert identified his own phone number listed

once on June 14, 2014, and listed twice on July 26, 2014. Judge Gilbert

                                         12
characterized the voicemail messages as “threatening,” and he agreed the

voicemail messages were also harassing.

      Texas Ranger Roger Dixon testified that, in July of 2014, Lieutenant

Wakeman requested his assistance on a case in which Michael Peters was

“suspected of making some phone calls and threats to a district judge.” Dixon

testified that Wakeman told him she believed Peters was in Val Verde County, one

of the counties in which Dixon was working, and Wakeman asked Dixon to serve

arrest and search warrants on Peters. Wakeman prepared the arrest warrant for the

charge of retaliation, and Dixon executed the warrant on Peters at a location in Val

Verde County, Texas. Dixon described the location as “a very remote area.” A

couple of days after Peters was arrested, Dixon executed a search warrant and

seized eighteen items from the residence, including computer equipment and

documents pertaining to Judge Gilbert and the Gilbert home (such as phone

numbers, address, a map to the Gilbert’s house, and the value of their house) that

appeared to be from multiple online background and research services.

      Jeffery Chappell, a special agent with the Department of Homeland Security

who investigates cyber-crimes and is certified to examine computers and other

electronic devices forensically, also testified at trial. Chappell explained that he

searched the hard drive of the computer seized from Peters and found matches for

                                        13
Judge Gilbert’s name. Chappell was unable to find copies of Peters’s YouTube

videos on the computer.4

                                  ISSUES ON APPEAL

      In his first appellate issue, Peters challenges the sufficiency of the evidence

supporting his conviction for Count 3. In his second issue, Peters argues that,

despite a timely request for records, he was not given an opportunity to inspect

material phone records presented by the State concerning Count 1 of the

indictment at trial as required by article 39.14 of the Texas Code of Criminal

Procedure. In issue three, Peters asks this Court to consider any unassigned error if

his trial counsel or appellate counsel “failed to properly object or raise an issue that

is clearly erroneous and harmful error[.]”

                                      ANALYSIS

            Sufficiency of the Evidence as to Count 3 of the Indictment

      In issue one, Peters challenges the sufficiency of the evidence supporting his

conviction under Count 3 of the indictment. Peters argues that the State failed to

produce evidence of any threat of unlawful conduct, an essential element of

retaliation. A person commits the offense of retaliation if he “intentionally or
      4
         Peters did not challenge at trial, nor does he challenge on appeal, that he
made the videos that were introduced into evidence as Exhibit 1. Peters was
allowed upon his request to represent himself during the trial, with his attorney
assisting.
                                          14
knowingly harms or 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). Peters contends that he made no threat to

assault or perform any other specific unlawful act required as an element of section

36.06(a)(1) and that his YouTube videos were only “pleas for help and expressions

of frustration with individuals[.]”5

      When an appellant challenges the sufficiency of the evidence supporting a

conviction in a criminal case, appellate courts consider all of the evidence in a light

most favorable to the verdict and decide, after reviewing the evidence in that light,

whether a rational trier of fact could have found the appellant guilty of the essential

elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). In reviewing sufficiency challenges, we are required to give the jury’s

findings and its conclusions deference, as it was the jury’s responsibility to fairly

resolve all conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from the basic facts to resolve whether the defendant is

guilty of violating the criminal provision that is at issue at trial. See Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
      5
         On appeal, Peters does not assert that he did not make the statements
alleged in Count 3 or that Judge Gilbert is not a public servant.
                                          15
      Under section 36.06(a)(1)(A), a person commits an offense if the person

intentionally or knowingly harms or 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, witness, prospective witness, or informant. Tex. Penal Code Ann. §

36.06(a)(1)(A). 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). Although the retaliation statute does not

define an “unlawful act[,]” the word “unlawful” is defined within the definitions

contained in the General Provisions of the Texas Penal Code. See Tex. Penal Code

Ann. § 1.07(a)(48) (West Supp. 2015). Section 1.07(a)(48) defines “unlawful” to

mean “criminal or tortious or both.” The word “harm” also is not defined in the

retaliation statute, but it is defined in section 1.07(a)(25) as “anything reasonably

regarded as loss, disadvantage, or injury . . . .” Id. § 1.07(a)(25). A threat of

physical injury is not required. See Meyer, 366 S.W.3d at 731. “That a threat is

subtle does not make it less of a threat.” Manemann v. State, 878 S.W.2d 334, 337

(Tex. App.—Austin 1994, pet. ref’d) (citing United States v. Gilbert, 884 F.2d 454,

457 (9th Cir. 1989)).

      Comments supporting retaliation may be evaluated by a factfinder in the

context within which they were uttered, and retaliatory intent may be inferred from

                                         16
an accused’s acts, words, or conduct. Meyer, 366 S.W.3d at 731; In re B.P.H., 83

S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.). Alleged threats should be

considered in light of their entire factual context, including the reaction of the

listeners and the surrounding events. Manemann, 878 S.W.2d at 337 (citing United

States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990); United States v.

Mitchell, 812 F.2d 1250, 1255 (9th Cir. 1987)). “Whether a particular statement

may properly be considered to be a threat is governed by an objective standard--

whether a reasonable person would foresee that the statement would be interpreted

by those to whom the maker communicates the statement as a serious expression of

intent to harm or assault.” Id. (citing Orozco-Santillan, 903 F.2d at 1265; Mitchell,

812 F.2d at 1255-56)).

      Peters relies on Meyer v. State in support of his argument that he made no

threat to assault or perform any other specific unlawful act as required by section

36.06(a)(1). See 366 S.W.3d 728. In Meyer, the defendant was on deferred

adjudication, community supervision, for attempted retaliation. Id. at 729. While

he was on deferred adjudication, Meyer wrote a letter to a municipal court judge in

connection with a minor offense, and Meyer’s community supervision was

revoked. Id. On appeal, Meyer argued that there was insufficient evidence that he




                                         17
threatened to unlawfully harm the municipal judge, and thus insufficient evidence

that he committed the offense of obstruction or retaliation under section 36.06. Id.

      In Meyer’s letter, Meyer informed the municipal judge that the judge lacked

jurisdiction and authority to adjudicate the matter, that “any further action, other

than dismissal[]” would constitute a violation of Meyer’s rights, that the municipal

judge lacked immunity for such action, and that Meyers would prosecute claims

“to the fullest extent of the law[.]” Id. at 730. Meyer also indicated that a suit

would be brought for such injuries and that “[w]e are all obligated to obey the law,

no exceptions[.]” Id.

      The Texarkana Court of Appeals determined that the evidence was sufficient

to support a finding that Meyer threatened harm to the judge. Id. at 732. However,

the Texarkana Court of Appeals found that the evidence was “insufficient to

support the adjudication premised solely on Meyer’s committing the offense of

obstruction or retaliation.” Id. In reversing the trial court’s judgment revoking

Meyer’s community supervision and adjudicating his guilt, the Texarkana Court of

Appeals explained:

              The missing element of proof, however, in our view, is any
      evidence that Meyer’s letter threatened unlawful action. In his letter,
      Meyer threatens criminal prosecution and civil actions against those
      who violate his rights. He warns of their loss of immunity from
      liability. He, in essence, says, “No more Mr. Nice Guy.” He says he
      has adopted a “come what may” philosophy, but he moderates even
                                         18
      that comment with a statement that everyone is obligated to follow the
      law. He finishes with a warning that proceeding further will be at the
      personal risk of the offender—enough to warrant a finding that he
      threatened harm, at least some personal financial loss—but he stops
      short of threatening to take unlawful action against the judge or
      anyone else.

Id.

      Meyer is distinguishable from the present case. Peters posted a series of

YouTube videos and made statements in which Peters actually indicated that his

actions against Judge Gilbert could have criminal consequences. The jury heard

and viewed the YouTube videos that Peters made, which included statements such

as “Please help me decide if I should go to prison[,]” “Whatever I do next I’m sure

will have serious consequences if I can’t find a better way[,]” and “do I let these

people steal my son through this Doctor’s lie . . . just because the Judges were paid

off, or do I risk my life again, like I did in Iraq[.]” The jury heard Wakeman testify

that she considered the “totality of the circumstances[,]” the statement that Peters

made about the killing of police officers, the statements Peters made about others

he felt were connected to Peters’s family case, and the escalation of the situation.

Wakeman concluded that the videos and surrounding circumstances implicitly

demonstrated that Peters’s conduct had escalated and Wakeman concluded that

Peters intended to commit a crime against Judge Gilbert. Unlike the letter in

Meyers, the statements Peters made do not contain an overriding content that
                                         19
appear to limit Peters’s threats of harm to only “lawful actions,” nor is Peters

simply stating that he intends to file a lawsuit or that he will “follow the law.”

      Based on the combined and cumulative force of all the evidence and

testimony that the State presented to the jury, and viewing the evidence in a light

most favorable to the verdict, we conclude that the evidence was sufficient to allow

a rational jury to conclude beyond a reasonable doubt that Peters intentionally

made threats to harm Judge Gilbert by an unlawful act. Cf. Meyer, 366 S.W.3d at

732; see also Brock v. State, No. 10-14-00224-CR, 2016 Tex. App. LEXIS 155, at

**1-2, 34-36 (Tex. App.—Waco Jan. 7, 2016, no pet.) (affirming a retaliation

conviction where the defendant told the trial court judge, “Oh, I’ve got something

for you, just wait[,]” because a reasonable person could interpret the defendant’s

statement as a veiled or implied threat to harm the judge by an unlawful act);

Austin v. State, No. 10-12-00066-CR, 2013 Tex. App. LEXIS 1234, at **4-5 (Tex.

App.—Waco Feb. 7, 2013, pet. ref’d) (mem. op., not designated for publication)

(affirming a retaliation conviction where the defendant left three voice messages

for an officer for the City of Waco that included a threatening rap song and

statements that the defendant was going to “come at him,” he was going to “catch a

murder case,” and said “you’re gonna get done, son”); Gohe v. State, No. 02-10-

00131-CR, 2011 Tex. App. LEXIS 2840, at **8-11 (Tex. App.—Fort Worth Apr.

                                          20
14, 2011, pet. ref’d) (mem. op., not designated for publication) (affirming a

retaliation conviction where the defendant told another that she intended to “take

care of this judge,” that she was “going to take matters in her own hands,” and that

“she was not afraid to go to jail”); Wortham v. State, No. 09-02-505-CR, 2003 Tex.

App. LEXIS 3125, at **3-6 (Tex. App.—Beaumont Apr. 9, 2003, no pet.) (mem.

op., not designated for publication) (jury could have reasonably concluded that

comments by defendant that “I have to come back[,]” “The police can’t be here 24

hours; you’re going to need 24-hour security[]” were, when considered in context,

a threat to harm by unlawful action under section 36.06). The evidence is sufficient

to support the conviction as to Count 3. See Jackson, 443 U.S. at 319; Temple, 390

S.W.3d at 360; Hooper, 214 S.W.3d at 13. Issue one is overruled.

        Alleged Discovery Violation Regarding Count 1 of the Indictment

      In his second issue, Peters contends that, despite having made a timely

request for records, “Appellant was not given the opportunity to inspect material

phone records presented at trial by the State concerning Count 1 of the indictment

pursuant to Tex. Code. Crim. Proc. art 39.14.” See Tex. Code Crim. Proc. Ann. art.

39.14(a) (West Supp. 2015) (“[A]s soon as practicable after receiving a timely

request from the defendant the state shall produce and permit the inspection . . .




                                        21
of . . . any designated documents . . . that are in the possession, custody, or control

of the state[.]”). Peters argues that

            Appellant was denied the opportunity [to] inspect phone
      records obtained by the State and used at trial as evidence to show
      Appellant made several more phone calls to Judge Tracy A. Gilbert.
      Appellant properly filed requests for inspection of the State’s
      evidence, the State failed to turn over the acquired phone records as
      required by Tex. Code. Crim. Proc. art 39.14 before trial, and
      Appellant was unfairly prejudiced by not being afforded the
      opportunity to review material evidence.

      ....

      Had Appellant been made aware of the phone record evidence
      containing more phone calls, he may have been more likely to accept
      a plea offer, gather additional evidence to combat what the State had
      presented, or attempt to explain the reasons for the additional phone
      calls.

Peters argues that the phone records were not sent to his counsel until the day after

the guilty verdict, and that he filed a motion for new trial on the basis of new

evidence.

      We have examined the entire appellate record and the record does not

support Peters’s argument on this issue. Rather, according to the record, prior to

trial, the court addressed various motions that were filed by Peters, including a

motion for continuance that Peters filed before trial wherein he claimed the State

had notified Peters of the potential of newly-discovered evidence about additional

phone records. The State explained to the trial court that it had not yet obtained any
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additional records but that the State had submitted a search warrant to a phone

provider and requested the response to be expedited. The trial court denied the

appellant’s motion for continuance on grounds that the court would exclude from

evidence any records regarding additional phone calls, and that the trial court

would only allow into evidence the phone records that pertained to the applicable

time period from the indictment. On the first day of trial, the trial court stated on

the record that the State had already provided phone records “for a certain small

window[]” and that the trial court was “going to limit [the State] to around the date

in question in the Indictment[]” because “I don’t think it’s fair to the Defendant to

bring up at the eleventh hour additional calls.” The indictment and the jury charge

limited the retaliation allegations pertaining to telephone calls to the dates of June

14, 2014 to July 26, 2014.

       The appellate record includes only one set of phone records from T-Mobile

and such records were introduced as “State’s Exhibit 5.” State’s Exhibit 5 was

admitted into evidence during the guilt/innocence phase of the trial without any

objection from Peters. Exhibit 5 contains a log of telephone calls from the time

period of June 12, 2014 to July 28, 2014, which corresponds to the pretrial ruling

of the trial court.




                                         23
      After the jury’s guilty verdict, but prior to the beginning of the punishment

phase of the trial, defense counsel states on the record that earlier that morning the

State had indicated to defense counsel that the State had received additional

records in “the form of a phone record, which to some degree seems to contradict

the testimony of Mary Gilbert, who . . . indicated that phone calls had been

received under the . . . cell phone number of Mr. Peters for up to a year prior to this

trial.” Peters’s defense counsel argued to the trial court that the additional phone

records do not show any calls from Peters’s cell phone prior to June 2014, and that

defense counsel intended to file a motion for new trial based on the newly

discovered evidence. Neither the State, nor Peters ever introduced the additional

records into evidence. The only telephone records in the appellate record and used

during the trial were marked and admitted as “State’s Exhibit 5.”

      After the trial, Peters filed a motion for new trial wherein he argued that

“[t]he District Attorney provided new evidence in the form of phone records of

Tracy Gilbert’s home phone number which were not provided to defense counsel

until April 30, 2015, the day after the verdict was rendered. This evidence

contradicts the testimony at trial.” No phone records were attached to the motion

for new trial. The motion for new trial was overruled as a matter of law, and Peters




                                          24
does not challenge on appeal the trial court’s ruling pertaining to the motion for

new trial.

      Furthermore, Peters’s argument at trial relating to the “additional records”

does not comport with his argument on appeal, and therefore he failed to preserve

this issue for appellate review. See Resendiz v. State, 112 S.W.3d 541, 547 (Tex.

Crim. App. 2003); see also Tex. R. App. P. 33.1. And, even if Peters had presented

on appeal the argument he made to the trial court, Peters did not take the necessary

steps to have the “additional records” included within the appellate record by either

a proffer or by attaching the records to his motion for new trial, and Peters has

preserved nothing for our review. See Pinson v. State, 598 S.W.2d 299, 301 (Tex.

Crim. App. 1980) (citing Moore v. State, 509 S.W.2d 349, 352 (Tex. Crim. App.

1974)); see also Tex. R. App. P. 33.1(a), 33.2. We overrule issue two.

                                  Unassigned Error

      In his third issue, Peters asks this Court to address any unassigned error if

his trial counsel or appellate counsel “failed to properly object or raise an issue that

is clearly erroneous and harmful error[.]” Appellate courts may review properly

preserved but unassigned error by ordering briefing by both parties. Pena v. State,

191 S.W.3d 133, 136-38 (Tex. Crim. App. 2006). We have not ordered additional

briefing in this case. The stated issue presents no error for appellate review. See

                                          25
Tex. R. App. P. 38.1(f). We overrule issue three and affirm the trial court’s

judgments.

      AFFIRMED.

                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on March 18, 2016
Opinion Delivered June 1, 2016
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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