NO. 12-06-00262-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KIMBERLY D. RIALS, § APPEAL FROM THE 217TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Appellant Kimberly D. Rials appeals her conviction for the felony offense of harassment by persons in certain correctional facilities, for which she was sentenced to three years of imprisonment. In three issues, Appellant contends that the evidence is neither legally nor factually sufficient to support her conviction and that the trial court erred in its charge to the jury. We affirm.
Background
On October 9, 2004, Lufkin Police Officer Trent Burfine went to Appellant’s home to investigate a complaint of family violence. Appellant allowed Officer Burfine to enter her home, and he saw her child in a sitting position against the wall without a chair. Appellant told him that the child was being punished for lying.
Officer Burfine discovered that Appellant had an outstanding arrest warrant for a traffic violation, and he tried to take her into custody. Appellant did not cooperate, and Officer Burfine used his pepper spray on her. Once Appellant had been pepper sprayed, Officer Burfine was able to take her to his vehicle, although she spat on him on the way to the car.
Officer Burfine transported Appellant to the Angelina County Jail. Once there, Charlotte Griffith, a jailer in the Angelina County Jail, helped Appellant to decontaminate herself from the pepper spray. Appellant was placed in a shower and given milk to neutralize the effects of the pepper spray. Griffith claimed that Appellant took some of the milk into her mouth and spat it on her.
Appellant was indicted for harassment by persons in certain correctional facilities. Appellant pleaded not guilty, and the case proceeded to trial. The jury found Appellant guilty, and her punishment was assessed at three years of imprisonment. This appeal followed.
Evidentiary Sufficiency
In her first and second issues, Appellant argues that the evidence is neither legally nor factually sufficient to support the trial court’s judgment. Specifically, Appellant argues that she did not spit on Griffith, or that if she did, it was an accident.
Legal Sufficiency
Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
The sufficiency of the evidence is measured against 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). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.
As limited by the indictment against Appellant, a person commits the offense of harassment by persons in certain correctional facilities if, with the intent to harass, alarm, or annoy while imprisoned or confined in a correctional or detention facility, the person causes another person to contact the saliva of the actor or causes a public servant to contact the saliva of the actor while the public servant is lawfully discharging an official duty. Act of June 20, 2003, 78th Leg., R.S., ch. 1006, 2003 Tex. Gen. Laws 2948 (amended 2005) (current version at Tex. Penal Code Ann. § 22.11(a)(1) (Vernon 2006)).
The record reflects that Appellant was brought to the Angelina County Jail where Griffith, a jailer, assisted Appellant with the pepper spray decontamination process. Griffith testified that Appellant put milk in her mouth and then spat at her. According to Griffith, she was standing five to six feet away from Appellant when Appellant spat the milk directly at her. Griffith believed that Appellant intentionally spat on her. Further, once Appellant left the decontamination shower, Griffith told Officer Burfine that Appellant had spat on her. Griffith testified that Appellant’s actions bothered her.
Examining the evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have determined beyond a reasonable doubt that Appellant committed the offense of harassment by persons in certain correctional facilities. Thus, we hold that the evidence was legally sufficient to support the trial court’s judgment. Appellant’s first issue is overruled.
Factual Sufficiency
Turning to Appellant’s contention that the evidence is factually insufficient to support the trial court’s judgment, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.).
Here, Appellant testified that she never put milk in her mouth and did not remember spitting. She further claimed that if she spat on Griffith, she did not do so intentionally. She also claimed that she was concerned about how the pepper spray would affect her because she had asthma. While she admitted to being concerned and panicked because of the situation, and angry with Officer Burfine, Appellant claimed that she had no ill feelings toward Griffith, and thus, had no reason to, and did not, intentionally spit on her.
Nonetheless, we must consider this evidence in the context of the record as a whole. Griffith claimed that Appellant put milk in her mouth. Griffith further claimed that Appellant intentionally spat at her. Further, Officer Burfine testified that the pepper spray had little effect on Appellant and that Appellant continued to curse and yell at Officer Burfine even after he used the pepper spray on her. Officer Burfine testified that Griffith told him that Appellant had spat on her during the decontamination process. As such, we conclude that the jury could have reasonably found that Appellant committed the offense of harassment by persons in certain correctional facilities. See Wesbrook, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (generally jury determines weight to give testimony of a witness and resolution of any conflicts in the evidence); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury may believe all, some, or none of a witness’s testimony).
Our review of the entirety of the record, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the trial court’s judgment. Appellant’s second issue is overruled.
Error in the Jury Charge
In her third issue, Appellant argues that the jury charge improperly authorized a conviction on a theory not supported by law. The State concedes that the charge erroneously included an impermissible theory of liability, but argues that the error does not rise to the level of egregious harm.
In criminal jury trials, the trial court must deliver “a written charge distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2006). Because the charge instructs the jury on the law applicable to the case, it must contain an accurate statement of the law and set out all essential elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). A jury charge that tracks the language of the statute properly sets forth the law applicable to the case. See Casey v. State, 215 S.W.3d 870, 886–87 (Tex. Crim. App. 2007).
Appellant and the State are mistaken about which version of the statute applies to this case. The trial court instructed the jury that they could convict Appellant if they found that she acted with the intent to “harass, alarm, or annoy” the victim. The present version of the statute provides that it is an offense for certain confined persons to cause another person to come into contact with saliva if the actor had the intent to “assault, harass, or alarm” the victim. See Tex. Penal Code Ann. § 22.11 (Vernon 2006). However, the version of the statute in effect for this case contains the “harass, alarm, or annoy” language. See Act of June 20, 2003, 78th Leg., R.S., ch. 1006, 2003 Tex. Gen. Laws 2948 (amended 2005). The legislature replaced the word “annoy” in 2005 and rearranged the statute, but the legislature continued in effect the previous version of the offense for offenses committed before September 1, 2005. See Act of June 17, 2005, 79th Leg., R.S., ch. 543, §§ 2, 5, 2005 Tex. Gen. Laws 1467–68. This offense was complete before September 1, 2005, and the indictment was returned in January 2005, well before the date of amendment. Therefore, the 2003 version of the statute controls this litigation. As such, the trial court’s jury charge tracked the statute and was an accurate statement of the law. We overrule Appellant’s third issue.
Disposition
Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered June 29, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)