                             NUMBER 13-07-467-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOHNNY WYATT,                                                              Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


     On appeal from the 156th District Court of Bee County, Texas.


         MEMORANDUM OPINION ON REHEARING
    Before Chief Justice Valdez and Justices Yañez and Benavides
      Memorandum Opinion On Rehearing by Justice Benavides

      On August 14, 2008, we issued an opinion in this case. We grant appellant’s motion

for rehearing, withdraw our original opinion and judgment, and substitute the following

opinion and judgment in its place.    Inmate Johnny Wyatt allegedly threw urine on

Correctional Officer Guadalupe Martinez and was charged with harassment of a public
servant.1 See TEX . PENAL CODE ANN . § 22.11(a) (Vernon 2003). After a jury trial, Wyatt

was convicted and received twenty years incarceration in the Texas Department of

Corrections–Institutional Division, and a $10,000 fine.2 Wyatt appeals, challenging the

legal and factual sufficiency of the evidence supporting his conviction. We affirm.

                                              I. BACKGROUND

        On May 26, 2005, Correctional Officers Guadalupe Martinez and Teresa Chavarria

were on duty at the McConnell Unit of the Texas Department of Criminal Justice in

Beeville, Texas. Officers Martinez and Chavarria were conducting rounds to see which

inmates wanted to go to recreation. They approached cell 62, which housed Wyatt, and

asked him if he would like to go to recreation. Wyatt answered, “Yes,” and the officers told

him to step back against his bunk so they could perform the customary security

procedures. The officers then told him to strip down so they could check for weapons and

other prohibited materials, which was standard procedure.

        Wyatt handed his inmate fatigues to Officer Martinez, and during the customary

inmate search of the clothes, no contraband was found. Wyatt then put his clothes on and

approached the food tray slot as instructed. Officer Martinez ordered Wyatt to place his

hands through the food tray slot so that he could be handcuffed.                             If inmates are



        1
           On rehearing, W yatt pointed out that our original opinion addressed the current version of Texas
Penal Code section 22.11(a), which requires that the actor com m it the offense with the “intent to assault,
harass, or alarm .” T EX . P EN AL C OD E A N N . § 22.11 (Vernon 2005). W yatt’s alleged conduct occurred on May
26, 2005. Thus, the prior version of section 22.11, which required the intent to “harass, annoy, or alarm ,”
applies to this case. See Act of May 28, 2003, 78th Leg., R.S., ch. 1006, § 1, 2003 T EX . S ESS . L AW S ER V .
2948, amended by Act of May 20, 2005, 79th Leg., ch. 543, § 1, 1005 T EX . S ESS . L AW S ER V . 1468. For ease
of reference, we will cite to Texas Penal Code section 22.11, but throughout, we are referring to the prior
version.
         2
           W yatt’s sentence was increased from a third degree felony, punishable by a two-to-ten year
sentence and a $10,000 m axim um fine to a second degree felony, punishable by a twenty-year m axim um
sentence and $10,000 m axim um fine. See T EX . P EN AL C OD E A N N . § 12.42(a)(3) (Vernon 2006).

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Administration Segment (high risk) inmates, they are required to be handcuffed any time

they come out of their cell. Just as handcuffs were about to be administered, Wyatt

strayed from standard procedure.

       According to the officers, Wyatt retracted his hands, knelt, and picked up a

Styrofoam cup full of a liquid substance. Wyatt then extended his arm back out the food

tray slot and threw the substance, which hit Officer Martinez on his pant leg. Officers

Martinez and Chavarria then left the scene of the incident, and they told the picket officer

to contact the superior officer. Officer Martinez stated he was fearful of all the diseases

that are spread throughout the prison. Officer Martinez also testified that he “was alarmed

[by] just the fact [of having urine thrown on himself] . . . .”

       Officer Martinez was then relieved by another officer and sought medical attention.

Officer Martinez testified that he wrote a statement outlining the incident, in which he

indicated he had been hit by “feces.” Cell 61’s food tray was secure and shut, leading to

a conclusion that cell 62 was the only plausible source of the urine throwing. However, no

cup was ever retrieved from cell 62 or from the pipe chase, a type of plug that allows an

officer or employee of the prison to open up the toilet system and retrieve an item that was

flushed down the toilet.

       At trial, Officer Martinez testified that he and Wyatt had no previous substantial

conversation, nor had Wyatt ever shown any hostility towards him. Both Officers Martinez

and Chavarria identified Wyatt as the assailant. Officer Martinez clearly saw an arm come

out of the tray slot and throw a substance on him, and Officer Chavarria testified to the

same thing.

       Susan Poole, a criminal investigator with the Inspector General’s Office, testified

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that the substance did not contain “feces.” Rather, the stain on Officer Martinez’s pants

contained urea, a component of urine. Texas Department of Public Safety chemist, Lori

McElhaney, testified that, in her scientific opinion, the substance was urine.

         The defense theorized that Officer Martinez urinated on himself, or that he used

lotion, which contains urea, and then made contact with his pants leg. McElhaney testified

that the pants did have a distinct urine smell. No genetic analysis was done to conclude

whose urine was actually on the pants.

                                  II. Standard of Review

         Wyatt argues the evidence is legally and factually insufficient to show that he had

the specific intent required for the crime of harassment of public servant. See TEX . PENAL

CODE ANN . § 22.11(a). When reviewing the legal sufficiency of the evidence, the Court

must view the evidence in the light most favorable to the verdict to determine whether a

rational juror could have found the essential elements of the crime beyond a reasonable

doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

         In contrast, when conducting a factual sufficiency review, we view the evidence in

a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The Court

may find evidence to be factually insufficient in one of two ways: (1) when the evidence

supporting the verdict, though legally sufficient, is so weak that the verdict seems clearly

wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the

great weight and preponderance of the contrary evidence so as to render the verdict clearly

wrong and manifestly unjust. Id.; Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.

2007).



                                              4
                                         III. ANALYSIS

A.     Legal Sufficiency

       Wyatt argues that the jury came to conclusions based solely on mere speculation.

He argues that the evidence is not sufficient to show that while confined in McConnell Unit

Correctional Facility, he possessed the specific intent required under the statute.

Conversely, the State argues that the jury was permitted to infer intent and that direct

evidence of intent is not required. We agree with the State.

       Texas Penal Code section 22.11, as it existed at the time, provides:

       (a)    A person commits an offense if the person, while imprisoned or
              confined in a correctional or detention facility and with intent to
              harass, alarm, or annoy another person, causes the other person to
              contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of
              the actor or any other person.

TEX . PENAL CODE ANN . § 22.11(a). It requires that a defendant intend to “harass, alarm, or

annoy” a person by causing contact with bodily fluids. Id.

       The cases interpreting section 22.11 have not specifically defined the parameters

of the intent requirement. Section 6.03 of the penal code, however, explains that 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.” TEX . PENAL CODE ANN . § 6.03 (Vernon 2003). Section 22.11 is a “result

oriented” crime—in other words, the statute focuses on the results of the conduct and not

the conduct itself, in that it does not criminalize the method of causing contact with bodily

fluid and the concurrent harassment, alarm, or annoyance required by the statute. See

Herrera v. State, 915 S.W.2d 94, 97-98 (Tex. App.–San Antonio 1996, no pet.). Thus, the



                                               5
statute’s culpable mental state requirement—intent—applies to the results of the conduct.

See Washington v. State, 930 S.W.2d 695, 699 (Tex. App.–El Paso 1996, no pet.). In

other words, the State was required to prove that Wyatt (1) intended to cause urine to

contact Martinez, and (2) intended to harass, alarm, or annoy Martinez.

       Generally, intent may be proven by direct evidence, or it may be inferred from the

acts, words, and the conduct of an appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex.

Crim. App. 2004); see also Sanders, 2006 WL 23249, at *1-2. Juries are permitted to

make reasonable inferences from the evidence presented, and circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, as long as the

individual inference is supported factually. Hooper, 214 S.W.3d at 14-15. Furthermore,

in a legal sufficiency review, “each fact need not directly and independently point to the

guilt of the appellant, as long as the cumulative force of all the incriminating circumstances

is sufficient to support the conviction.” Id. at 13 (citing Johnson v. State, 871 S.W.2d 183,

186 (Tex. Crim. App. 1993); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994);

Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987)).

       Hooper is particularly instructive on this point. In Hooper, two assailants tied a store

clerk in duct tape and robbed her. Id. at 12. They then met up with Hooper, the driver of

the getaway car. Id. A game warden, upon receiving a tip about a speeding red truck,

chased the accelerating vehicle and noticed two passengers in the backseat. Id. Hooper

stopped the truck and surrendered, but the two passengers fled on foot and fired a gunshot

in the direction of the game warden. Id. The passengers, their guns, the duct tape, and

the keys to the store were later recovered, and Hooper, as a co-conspirator, was convicted



                                              6
of aggravated assault of a public servant. Id. at 13. On appeal, the court of appeals held

that the evidence was legally insufficient because there was “no direct evidence to

establish Hooper's knowledge of [the shooter’s] . . . intent.” Id. at 14. The court of criminal

appeals reversed, however, finding that even absent direct evidence, the jury was

“permitted to draw multiple reasonable inferences as long as each inference is supported

by the evidence presented at trial.” Id. at 15.

       The inference of intent made by the jury in this case is supported factually. Wyatt

knew that Officer Martinez was standing directly outside his cell because Officer Martinez

had just ordered Wyatt to place his hands through the slot so he could be handcuffed.

Officer Teresa Chavarria testified to seeing Wyatt holding a Styrofoam cup filled with

“some liquid substance.” Officer Chavarria saw appellant extend his arm through the slot

with a Styrofoam cup and throw some substance onto Officer Martinez. Also, Officer

Martinez clearly saw the substance that Wyatt threw make contact with his pant leg, and

the substance left a stain on Martinez’s pants. Although neither officer immediately

identified the urine inside the cup, McElhaney testified that scientific analysis concluded

that the substance was in fact urine. Officer Martinez stated he was fearful of all the

diseases that are spread throughout the prison. Officer Martinez also testified that he “was

alarmed [by] just the fact [of having urine thrown on himself] . . . .”

       Considering all these facts collectively, a reasonable jury could infer that, at the time

Wyatt reached for the Styrofoam cup and threw the substance, he possessed the requisite

intent to cause the urine to contact Officer Martinez and to harass, alarm or annoy Officer




                                               7
Martinez.3 Wyatt’s first issue is overruled.

B.      Factual Sufficiency

        Wyatt next argues that the evidence of intent is so weak that it renders the verdict

obviously incorrect and strikingly unjust. See Lancon, 253 S.W.3d at 705; Roberts, 220

S.W.3d at 524.          The testimony of Officers Martinez and Chavarria, coupled with

McElhaney’s analysis, is sufficient to prevent us from describing the verdict as “obviously

incorrect.”

        Moreover, the evidence in Wyatt’s defense is not so overwhelming that it renders

the verdict clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. At trial,

Wyatt’s counsel surmised that Officer Martinez urinated on his own leg, thus making him

responsible for the urine on his trousers.                Wyatt also argued that urea is found in

substances other than urine, and it is possible that the substance is lotion or some other

substance used by Officer Martinez. “The trier of fact is the sole judge of the weight and

credibility of the evidence.” Grotti v. State, 209 S.W.3d 747, 758 (Tex. App.–Fort Worth

2007, pet. granted) (citing TEX . CODE CRIM . PROC . ANN . § 38.04 (Vernon 1979)). “Appellate

courts should afford almost complete deference to a jury decision when that decision is

based on an evaluation of credibility.” Lancon, 253 S.W.3d at 705.


        3
           Several courts, in unpublished m em orandum opinions, have held that showing that a defendant knew
that the bodily fluid would contact an officer, coupled with testim ony from the victim that the victim felt
assaulted, harassed, or annoyed, was sufficient evidence to allow an inference of intent to assault, harass,
or alarm the person. See Rials v. State, No. 12-06-0262-CR, 2007 W L 1868520, at *2 (Tex. App.–Tyler June
29, 2007, no pet.) (m em . op.) (holding evidence was sufficient to support conviction where evidence showed
that defendant spat m ilk directly at officer and officer was “bothered” by defendant’s actions); see also
Sanders v. State, No. 06-05-00104-CR, 2006 W L 23249, at *1-2 (Tex. App.–Texarkana Jan. 5, 2006, pet.
ref’d) (m em . op.) (holding evidence was sufficient where defendant knew that feces would likely contact an
officer); cf. W heatley v. State, No. 10-02-00286-CR, 2004 W L 1418632, at *1 (Tex. App.–W aco June 23,
2004, no pet.) (m em . op) (“A person's im m ediate reaction to an event can be circum stantial evidence of the
defendant's intent to harass, alarm , and annoy that person; thus, it can be relevant.”).

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      There is nothing in the record that supports Wyatt’s theory; essentially, the theory

merely raised a possibility that Officer Martinez was being untruthful. However, the jury

was entitled to believe Officer Martinez, and we defer to its determination of Officer

Martinez’s credibility. Id. Officer Martinez’s testimony was not so weak as to undermine

our confidence in the verdict, nor is there overwhelming evidence to the contrary.

Accordingly, Wyatt’s second issue is overruled.

                                     IV. Conclusion

      For the reasons stated above, we overrule Wyatt’s issues and affirm the trial court’s

judgment.



                                                  GINA M. BENAVIDES,
                                                  Justice



Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion on rehearing delivered
and filed this the 23rd day of October, 2008.




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