Opinion filed February 5, 2015
In The
Eleventh Court of Appeals
__________
No. 11-12-00355-CR
__________
JOHNNY RAY DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Coleman County, Texas
Trial Court Cause No. 2481
MEMORANDUM OPINION
Johnny Ray Diaz appeals his jury conviction for the offense of retaliation.
See TEX. PENAL CODE ANN. § 36.06 (West 2011). The trial court assessed
Appellant’s punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of six years. In two issues on appeal,
Appellant argues that the evidence was legally and factually insufficient to sustain
his conviction. We affirm.
Background Facts
The grand jury charged Appellant by indictment with retaliation and alleged
that Appellant intentionally or knowingly threatened to harm Les Cogdill, who was
a deputy with the Coleman County Sheriff’s Office. Appellant pleaded “not
guilty” to the charged offense, and the case proceeded to trial.
Deputy Cogdill testified that, on September 29, 2012, he was the primary
call unit and responded to a domestic disturbance call around 1:30 a.m. Santa
Anna Police Officer Maurice “Reece” Shaffer met him at the residence.
Deputy Cogdill stated that he made contact with Patricia Diaz and saw that she had
a knot above her left eye. Deputy Cogdill learned that Patricia’s brother,
Appellant, had assaulted her. Appellant had already left the scene by the time the
officers arrived. After he spoke with Patricia, Deputy Cogdill notified Deputy
Archie Lancaster on the radio and drove around the area looking for Appellant.
Deputy Cogdill stated that he saw someone walking on the sidewalk. He then
notified Officer Shaffer and Deputy Lancaster of the person’s location.
Officer Shaffer stated that he got out of his vehicle and saw Appellant
running toward him. He testified that he drew his Taser and ordered him to stop.
Deputy Lancaster said that he detained Appellant. Deputy Cogdill testified that he
started to pat down Appellant and that Appellant attempted to head-butt him twice
and threatened to beat him. Appellant, for a third time, attempted to head-butt
Deputy Cogdill. As the officers were placing Appellant into Officer Shaffer’s
patrol car, Deputy Cogdill testified that Appellant threatened to kill him. Both
Officer Shaffer and Deputy Lancaster stated that Appellant threatened to kill
Deputy Cogdill. Officer Shaffer testified that Appellant repeatedly threatened to
kill Deputy Cogdill while Appellant was in the patrol car. Appellant was taken
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into custody and subsequently indicted for retaliation against Deputy Cogdill.
Deputy Cogdill testified that he had no prior encounters with Appellant and did not
know him outside this one incident.
Appellant testified that he threatened to beat up Deputy Cogdill if the
officers removed his handcuffs. Appellant also stated that he did not have any
personal problems with Deputy Cogdill or any prior relationship with him before
the evening of the incident.
Appellant was ultimately convicted of retaliation against Deputy Cogdill.
After the jury reached a guilty verdict, the State and Appellant agreed to a term of
six years imprisonment in the Institutional Division of the Texas Department of
Criminal Justice.
Analysis
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d
286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Since Brooks, appellate
courts look at factual sufficiency and legal sufficiency under the same standard of
review. Brooks, 323 S.W.3d at 912. Under that standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
A person commits the offense of retaliation if the person intentionally or
knowingly harms or threatens to harm another in retaliation for or on account of
the service or status of another as a public servant. PENAL § 36.06. Deputy
Cogdill, Deputy Lancaster, and Officer Shaffer all testified that they heard
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Appellant threaten to kill Deputy Cogdill; he made the threats when he was placed
into the police car. Officer Shaffer stated that Appellant made repeated threats
against Deputy Cogdill while he was in custody. Appellant testified that he did
threaten to beat up Deputy Cogdill. Appellant and Deputy Cogdill had no
relationship prior to the incident.
The jury is the exclusive judge of the credibility of the witnesses and of the
weight to be given their testimony, and it is also the exclusive province of the jury
to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111
(Tex. Crim. App. 2000). We presume that the factfinder resolved any conflicting
evidence in favor of the verdict and defer to the trial court’s judgment. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We hold that a rational trier
of fact could have found beyond a reasonable doubt that Appellant committed the
offense of retaliation. Appellant’s issues on appeal are overruled.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE
February 5, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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