NUMBER 13-12-00659-CR
NUMBER 13-12-00660-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DESMOND LEE HOWARD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court 3
of Tarrant County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides and Longoria
Memorandum Opinion by Justice Longoria
In a single issue, Appellant, Desmond Lee Howard, challenges a judgment
revoking his probation and sentencing him to five years’ imprisonment for his conviction
for indecency with a child by exposure, a third degree felony. See TEX. PENAL CODE
ANN. § 21.11 (West 2011). We affirm.
I. BACKGROUND1
Appellant entered pleas of guilty to two felony informations2 alleging the offenses
of indecency with a child by exposure. See id. Pursuant to a plea bargain, the trial
court sentenced Appellant to a ten-year period of deferred adjudication probation and
assessed a $1,000 fine. The State subsequently filed Petitions to Proceed to
Adjudication, alleging two violations of the conditions imposed on his probation. The
State alleged that during a routine conversation with his probation officer, Appellant
violated his probation by threatening to retaliate against his victims and their family.3
Appellant made these statements in response to the probation officer’s questions about
certain statements made by the victims relating to the indecency with a child offense.
The trial court found the two allegations of retaliation to be true and adjudicated
Appellant guilty of the original offense of indecency with a child by exposure. In his sole
issue, Appellant argues that the trial court abused its discretion in finding the allegation
of retaliation to be true. This appeal followed.
II. ANALYSIS
A. Standard of Review
We review the trial court’s order revoking community supervision probation for an
abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
1
This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).
2
The State’s note on the “Certificate of Proceedings” of 4/10/12 shows Appellant waived his right
to indictment and proceeded on the informations.
3
The victims in this case are siblings.
2
The State has the burden of proving that a defendant committed a violation of the terms
of his supervision by preponderance of the evidence. Id.; Antwine v. State, 268 S.W.3d
634, 637 (Tex. App.—Eastland 2008, pet. ref’d). Proof of any of the alleged violations
of conditions of supervision is sufficient to support a revocation order. Antwine, 268
S.W.3d at 637. Generally, decisions turning on the credibility of the witnesses, the
weight given to their testimony, and the evidence presented are reviewed in the light
most favorable to the trial court’s ruling and at its discretion. Cardona v. State, 655
S.W.2d 492, 493 (Tex. Crim. App. 1984); Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. 1981). A trial court does not abuse its discretion if the weight of credible
evidence creates a reasonable belief that the defendant violated a condition of his
community supervision. See Rickels, 202 S.W.3d at 764.
B. Applicable Law
The offense of retaliation consists of a threat that (1) “harms or threatens to
harm” another, (2) “on account of” their services as a witness. TEX. PENAL CODE ANN. §
36.06(a)(1)(A) (West 2011). “Another” is defined as “a person other than the actor.” Id.
§ 1.07(a)(5) (West Supp. 2012). A defendant’s intent can be shown by circumstantial
evidence. In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.)
(citing Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982)); Helleson v. State, 5
S.W.3d 393, 396 (Tex. App.—Fort Worth 1999, no pet.); see also Franklin v. State, No.
05-09-01447-CR, 2011 WL 783626, at *2 (Tex. App.—Dallas March 8, 2011, no pet.)
(mem. op., not designated for publication) (“Appellant’s retaliatory motivation may be
shown through circumstantial evidence.”).
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C. Discussion
Appellant argues that there is insufficient evidence to sustain the trial court’s
finding of true to the allegations. The evidence showed that Appellant made comments
about possibly putting a “hit” out on the victims’ family, but Appellant argues on appeal
that (1) no evidence was presented to show that he directed any threats towards the
victims who were named in the State’s Petition, and (2) there were no references in his
threats that the “hit” was “on account of the services of” either one of the victims or the
family of the victims “as a witness or potential witness.” See TEX. PENAL CODE ANN. §
36.06(a)(1)(A). We disagree.
The State had the burden to plead and prove credible evidence of retaliation, that
he made a statement in which he (1) “harms or threatens to harm” another, (2) “on
account of” their services as a witness. Id. § 36.06(a)(1)(A). A defendant’s intent to
retaliate can be inferred from circumstantial evidence such as the defendant’s acts,
words, or conduct. In re B.P.H., 83 S.W.3d at 407. The record shows that Appellant’s
threats were prompted during a routine visit with his probation officer, where the
probation officer asked Appellant questions about statements made by the victims. The
probation officer testified that Appellant’s answer, that he would put a “hit” on the family,
“concerned” her. The probation officer reiterated back to Appellant what he had said,
and Appellant repeated the same answer reassuring the probation officer that there
would be a “hit” on his victims and their family. Appellant’s answer to the probation
officer showed that Appellant was angry at the victims’ family and at the victims
themselves. The probation officer testified that she took the threat very seriously and
was “concerned” for the safety of the family and the victims themselves.
4
Because the State produced evidence that Appellant threatened to kill the
victims’ family immediately after being told by his probation officer of the victims’
statements regarding Appellant’s original offense, we conclude that the trial court could
fairly infer that Appellant intended to harm the victims named in the petition and “on
account of” their service as witnesses in Appellant’s criminal case. See TEX. PENAL
CODE ANN. § 36.06(a)(1)(A) (West 2011). Viewing the evidence in the light most
favorable to the trial court’s discretion, we conclude that the weight of credible evidence
produced by the State enabled the trial court to form a “reasonable belief” that Appellant
violated his probation by committing the offense of retaliation and therefore find no
abuse of discretion. See Rickels, 202 S.W.3d at 764. We overrule Appellant’s sole
issue.
III. CONCLUSION
We affirm the trial court’s judgments of conviction.
_/s/ Nora L. Longoria
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
27th day of June, 2013.
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