Kemuel Lindsey v. State

`

NUMBER 13-09-00181-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KEMUEL LINDSEY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court
of Nueces County, Texas.

MEMORANDUM OPINION ON REMAND
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion on Remand by Justice Garza
Appellant, Kemuel Lindsey, was convicted of retaliation, a third-degree felony.

See TEX. PENAL CODE ANN. § 36.06(a)(1)(B) (West Supp. 2010). After Lindsey pleaded

―true‖ to an enhancement paragraph, the offense was enhanced to a second-degree

felony, and Lindsey was sentenced to twenty-five years in prison. See id. § 12.42(a)(3)

(West Supp. 2010). On appeal, Lindsey (1) challenges the sufficiency of the evidence

to support his conviction, (2) claims there was an error in the jury charge, and (3)
complains that he received ineffective assistance of trial counsel. On July 29, 2010, we

overruled Lindsey‘s three issues and affirmed the trial court‘s judgment. Lindsey v.

State, No. 13-09-00181, 2010 Tex. App. LEXIS 6018, at *7-17 (Tex. App.—Corpus

Christi July 29, 2010, pet. granted) (mem. op., not designated for publication). The

Texas Court of Criminal Appeals subsequently vacated our judgment and remanded the

case to us to more fully address Lindsey‘s argument with respect to evidentiary

sufficiency. Lindsey v. State, No. PD-1415-10, 2011 Tex. Crim. App. Unpub. LEXIS

447, at *1-2 (Tex. Crim. App. Apr. 20, 2011) (per curiam) (not designated for

publication). We affirm.

I. BACKGROUND

In our 2010 memorandum opinion, we set forth the factual background of this

case as follows:

Nisar Ahmed owns Coastal Mart, a convenience store and gas
station located at 2214 Leopard in Corpus Christi, Texas. On August 21,
2008, Ahmed and his employee Richard Nolte were working in the cash
register area when Lindsey walked into the store. Ahmed testified that
Lindsey wandered around the store asking customers for money and then
ran outside to panhandle money from a customer who was pumping gas.
According to Ahmed, Lindsey then re-entered the store, cut in line, and
purchased a bag of chips for ninety-nine cents. After making his
purchase, Lindsey lingered near the cash registers as another customer
attempted to make a purchase. Ahmed testified that Lindsey ―was looking
[at] the wallet of the customer,‖ which concerned Ahmed. The customer
then stated that he needed to return to his car to obtain more money to
purchase the item and walked outside. Lindsey followed the customer.

Ahmed testified that, out of his continued concern, he followed
Lindsey outside and asked him not to panhandle his customers.
According to Ahmed, Lindsey then proclaimed that Ahmed was
―disrespecting him.‖ Ahmed repeated his request to Lindsey not to badger
his customers and to leave the store premises when Lindsey suddenly
punched Ahmed in the face. Ahmed testified that the punch knocked his
glasses off and caused him to fall. He testified that the left side of his face
began to bleed and swell. Ahmed got up, grabbed a nearby stick to
protect himself, ran inside to ask Nolte to call the police, and then returned
outside where he and Lindsey continued to argue.
2
 Nolte testified next. He stated that Ahmed actually asked him to
call the police before he went outside to follow Lindsey. He testified that
he was ―on the phone with the police dispatch when the defendant hit [his]
boss.‖ Nolte witnessed the entire assault and also provided testimony
regarding Ahmed‘s facial injuries.

Officer Gabriel Garcia, a four-year veteran of the Corpus Christi
Police Department, testified that he saw Ahmed and Lindsey arguing
when he arrived at the convenience store. Officer Garcia noted that
Lindsey matched the description of the offender who had been reported to
the police dispatch, so he approached Lindsey, patted him down for
weapons, and then detained him in the back of his marked patrol unit.
Officer Garcia then spoke to Ahmed, who told him that ―Lindsey was
begging for money and [Ahmed] had told him numerous times to stop
begging for money‖ when Lindsey punched him. At that point, Officer
Garcia stated that he took Lindsey into custody for assault causing bodily
injury.

Officer Garcia testified that, while driving Lindsey to jail, Lindsey
made several threats to ―come back and hurt Mr. [Ahmed] for getting him
arrested.‖ At one point, Lindsey stated that he was going to ―beat the fuck
out of this clerk again.‖ When Officer Garcia asked Lindsey to calm down
and relax, Lindsey instead responded, ―Fuck you. I'm coming back to fuck
him up for putting me in jail.‖

A jury found Lindsey guilty of the crime of retaliation, and this
appeal ensued.

Lindsey, 2010 Tex. App. LEXIS 6018, at *1-4.

II. DISCUSSION

By his first issue, Lindsey argues that the evidence adduced at trial was legally

and factually insufficient to support his conviction. In particular, he contends that the

evidence failed to establish that his statements to Officer Garcia ―were in any way

directed to inhibit [Ahmed] from reporting criminal activity or acting as a witness.‖

A. Standard of Review and Applicable Law

In determining whether the evidence is sufficient to support each element of a

criminal offense, we apply only a legal-sufficiency standard. Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010). Under such a standard, we consider the
3
evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Sanders v. State, 119

S.W.3d 818, 820 (Tex. Crim. App. 2003). We give deference to ―the responsibility of the

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When faced with

conflicting evidence, we presume that the trier of fact resolved any such conflict in favor

of the prosecution, and we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47

(Tex. Crim. App. 1993).

Sufficiency of the evidence is measured by 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 be 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. Here, such a jury charge

would state that Lindsey was guilty of retaliation if he (1) intentionally or knowingly (2)

harmed or threatened to harm Ahmed (3) by an unlawful act (4) in retaliation for or on

account of Ahmed‘s status as a person who reported the occurrence of a crime. See

TEX. PENAL CODE ANN. § 36.06(a)(1)(B). A person acts intentionally when it is his

conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a)

(West 2003). A person acts knowingly when he is aware of the nature of his conduct or

that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Intent can be

inferred from the acts, words, and conduct of the accused. See Beltran v. State, 593

4
S.W.2d 688, 689 (Tex. Crim. App. 1980). Under the retaliation statute, a threat does

not have to be communicated directly to the person being threatened. Doyle v. State,

661 S.W.2d 726, 728 (Tex. Crim. App. 1983) (per curiam).

B. Analysis

On original submission, we concluded that the evidence was sufficient to allow a

reasonable juror to find the elements of the crime beyond a reasonable doubt. Lindsey,

2010 Tex. App. LEXIS 6018, at *4-8. We noted specifically that ―Lindsey‘s continued

threats after, and in spite of, a police officer‘s warning for him to stop lend support to the

notion that his statements were made intentionally or knowingly,‖ id. at *7, and ―[t]he

statement that Lindsey intended to ‗com[e] back to fuck [Ahmed] up for putting [him] in

jail‘ establishes that he was making the threat in retaliation for Ahmed‘s report to the

Corpus Christi Police Department about the assault.‖ Id. The court of criminal appeals,

in vacating our judgment, found that we had conducted a mere ―generalized review of

the sufficiency of the evidence‖ and instructed us to instead ―address appellant‘s

specific argument‖—namely, that the State was required, and failed, to prove that

Lindsey‘s threats were ―intended to inhibit [Ahmed] from reporting criminal activity or

acting as a witness.‖1 Lindsey, 2011 Tex. Crim. App. Unpub. LEXIS 447, at *2.

This argument requires us to construe the retaliation statute. Our primary

objective when construing a statute is to give effect to the Legislature‘s intent as

expressed in the statute‘s language. See TEX. GOV‘T CODE ANN. § 312.005 (West

2005); First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631-32 (Tex. 2008). When

statutory language is clear and unambiguous, we apply language in accordance with its

1
The court of criminal appeals restated Lindsey‘s argument in the form of a question posed to
this Court: ―[D]oes the defendant have to intend that the victim either (1) hear or learn about his threats;
or (2) be intimidated by his threats?‖ Lindsey v. State, No. PD-1415-10, 2011 Tex. Crim. App. Unpub.
LEXIS 447, at *2 (Tex. Crim. App. Apr. 20, 2011) (per curiam) (not designated for publication).
5
plain and common meaning. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.

2008).

In support of his argument, Lindsey directs us to two retaliation cases where,

according to him, the defendants‘ threatening statements ―were made under

circumstances that showed the threat was intended to return to the target of the threat.‖

First, in Doyle v. State, the appellant was convicted of making retaliatory threats to kill a

judge that ruled against him in a divorce case. 661 S.W.2d at 727. The appellant made

the threats during an interview with a police officer while he was in jail. Id. at 728. The

Doyle Court reiterated the long-standing rule that ―[t]he fact that the party threatened

was not present when the threat was made is no defense.‖ Id. (citing Gerick v. State,

45 S.W. 717 (Tex. Crim. App. 1898)). The Court noted that ―[a] central purpose of the

statute is to encourage a certain class of citizens to perform vital public duties without

fear of retribution‖ and that ―[s]uch fear is as likely to be caused by a threat relayed

through a third party as it is by a direct threat.‖ Id. Therefore, even though the threat

was communicated only to a third-party police officer, the evidence was sufficient to

establish the appellant‘s intent to threaten to harm the judge. Id.

Lindsey also cites Lebleu v. State, in which the appellant was convicted of

making retaliatory threats against a judge who ruled against him in a child custody case,

and against his ex-wife, who served as a witness in that case. 192 S.W.3d 205, 209

(Tex. App.—Houston [14th Dist.] 2006, pet. ref‘d). The court in Lebleu noted that the

retaliation statute ―do[es] not require that appellant intend to carry out the threat, take

any affirmative steps to carry out the threat, or even that appellant issue the threat

directly to the public servant or witness.‖ Lebleu, 192 S.W.3d at 209. The court

affirmed the conviction with respect to the threat against the judge, noting that, even

6
though the threats were not made in the judge‘s presence, the intent element was

established because the appellant ―threatened to put dynamite down the judge‘s throat

to show the judge how it felt to have someone control his life.‖ Id. Appellant‘s

conviction with respect to the threats made against his ex-wife was also affirmed; the

evidence was sufficient to establish the appellant‘s culpable intent because witnesses

testified that appellant was angry with his ex-wife due to actions she took in the custody

case. Id. at 209-10.

Pointing to Doyle and Lebleu as examples, Lindsey argues that a retaliation

conviction requires ―somethi[n]g more than the mere expression of a verbal utterance

that might be construed as a threat‖; according to Lindsey, it also requires a showing

that the defendant intended to exert an ―inhibitory effect‖ on the threatened individual.

He claims that the State failed to meet that burden here because ―[t]here is nothing

showing that [his] statements in the police car were in any way directed to inhibit

[Ahmed] from reporting criminal activity or acting as a witness.‖ We disagree. First, we

do not believe, as Lindsey claims, that the Doyle and Lebleu cases turned on

―circumstances showing a likelihood of [the threat] being relayed to the victim‖ such that

an ―intent to inhibit‖ could be inferred. In fact, the outcomes of both Doyle and Lebleu

would likely have been different if a showing of ―intent to inhibit‖ were actually required.

See Doyle, 61 S.W.2d at 727 (appellant communicated threat against judge only to

police officer while in jail; no direct evidence that appellant intended for judge to

personally hear the threat); Lebleu, 192 S.W.3d at 211 (rejecting appellant‘s contention

that ―he constantly makes threats, but because he never intends to carry them out, his

conviction is not sound‖).

7
 Second, we note that a close examination of the statute supports the conclusion

that retaliation does not require a showing of intent to inhibit the behavior of the target of

the threat. Section 36.06(a) of the penal code defines two crimes: retaliation and

obstruction. See TEX. PENAL CODE ANN. § 36.06(a)(1), (2). Both crimes require a

showing that the defendant ―intentionally or knowingly harm[ed] or threaten[ed] to harm

another by an unlawful act.‖ Id. Obstruction, described in subsection (a)(2), additionally

requires a showing that the defendant intended ―to prevent or delay the service of

another‖ as a public servant, witness, informant, or reporter of a crime. Id. §

36.06(a)(2). Retaliation, on the other hand, contains no such element. See id. §

36.06(a)(1). Instead, the retaliation statute merely requires a showing that the

defendant acted ―in retaliation for or on account of the service or status of another‖ as a

public servant, witness, informant, or reporter of a crime. Id. The Legislature could

have easily included an ―intent to inhibit‖ element in the definition of retaliation—as it did

in the definition of obstruction—but it chose not to, and it is not our province to add that

element. See TEX. GOV‘T CODE ANN. § 312.005 (requiring us to give effect to the

Legislature‘s intent as expressed in the statute‘s language).2

Lindsey states that ―[t]he Legislature could not have possibly intended to make it

a felony to state in passing ‗I‘m going to hurt X‘ when such statement was made in

2
It is noteworthy that the crimes of obstruction and retaliation are defined in the same penal code
section and differ only in the manner discussed above; i.e., in that the former requires a showing of intent
―to prevent or delay the service of another‖ whereas the latter does not. See TEX. PENAL CODE ANN. §
36.06(a)(1), (2) (West Supp. 2010). The offense of obstruction is designed to protect against acts by a
defendant intended to interfere with prospective actions that might be taken by the target of the threat.
Retaliation, on the other hand, protects against acts by a defendant intended to avenge past actions
taken by the target. To graft an additional ―intent to inhibit‖ element onto the retaliation statute, as
Lindsey suggests, would render it virtually indistinguishable from the obstruction statute. See Metts v.
State, 22 S.W.3d 544, 547 (Tex. App.—Fort Worth 2000, no pet.) (―We presume that the legislature used
every word and phrase in a statute for a purpose and if the legislature excluded certain words in a statute,
it did so for a reason.‖).

8
passing to a friend with no contact with person X.‖3 However, that is precisely what the

Legislature has done according to the plain meaning of subsection 36.06(a)(1). As the

court in Lebleu stated:

The crime of retaliation does not require an intent to follow through with a
threat. It is not an element of the crime. So long as a person issues a
threat, knowingly and intentionally, and for the reasons set out in the
statute, then she is guilty of the crime.

192 S.W.3d at 211. The statute does not implicitly or explicitly require that the threat be

communicated to the victim; that the defendant intend for the threat to be communicated

to the victim; or that the defendant intend that the victim be intimidated or inhibited from

engaging in certain behavior. See Doyle, 661 S.W.2d at 729 (―Nothing in the wording of

the statute commands that the threat be face to face.‖). The statute does not even

require that the threat be credible. All that the State was required to show, in this case,

was that Lindsey intentionally or knowingly threatened to harm Ahmed on account of

Ahmed‘s reporting of a crime. See TEX. PENAL CODE ANN. § 36.06(a)(1). The State did

this. The fact that the evidence showed that the threat was expressed to a police

officer, instead of to Ahmed himself, is immaterial. In prosecuting a defendant under

subsection 36.06(a)(1) of the penal code, it is unnecessary for the State to establish that

the victim either (1) heard or learned about the threats, or (2) was intimidated by the

threats. See id.; but see Wilkins v. State, 279 S.W.3d 701, 704-05 (Tex. App.—Amarillo

2007, no pet.).4

3
Lindsey asserts, without reference to authority, that ―[p]ermitting conviction on the mere
utterance of words, without more, would create a constitutionally infirm statute,‖ and that the Doyle and
Lebleu cases show that ―courts construe the [retaliation] statute in a fashion to prevent unconstitutional
overbreadth.‖ To the extent Lindsey is attempting to raise an issue as to the constitutionality of
subsection 36.06(a)(1) of the penal code, that issue has not been adequately briefed and is therefore
waived. See TEX. R. APP. P. 38.1(i).
4
In Wilkins v. State, the Amarillo court of appeals reversed the trial court‘s decision to revoke the
appellant‘s probation based on a charge of retaliation. 279 S.W.3d 701, 705 (Tex. App.—Amarillo 2007,
9
 We conclude that a rational juror could have found beyond a reasonable doubt

that Lindsey intentionally or knowingly threatened to harm Ahmed by an unlawful act in

retaliation for, or on account of, Ahmed‘s status as a person who reported the

occurrence of a crime. See TEX. PENAL CODE ANN. § 36.06(a)(1)(B); Jackson, 443 U.S.

at 319. His first issue is overruled.

III. CONCLUSION

We affirm the judgment of the trial court.5

__________________________
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
14th day of July, 2011.

no pet.). The appellant was accused of threatening a judge presiding over a child custody dispute. Id. at
703. The evidence showed that appellant repeatedly stated, while he was on a telephone call outside of
the courtroom, that he wished the judge would die. Id. In its evidentiary sufficiency analysis, the Amarillo
court stated that, ―[a]s [the retaliation charge against appellant is] a result oriented offense, the action
being criminalized is the threat to harm and the intent to inhibit public service by others.‖ Id. at 704 (citing
Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.—San Antonio 1996, no writ)). The court continued:

Therefore, we cannot focus on the nature of the offense . . . . Rather we consider
whether appellant made the statement with the intent to inhibit [the judge‘s] service as a
public official or with knowledge that it was reasonably certain that his statement would
inhibit [the judge‘s] service as a public official. . . .

Id. at 704-05. Because ―no evidence support[ed] a conclusion that appellant meant to affect [the judge‘s]
actions or emotional well-being,‖ the court found the evidence to be insufficient to establish retaliation. Id.
at 705.

We decline to follow Wilkins. The Wilkins court cites only Doyle in asserting that a showing of the
defendant‘s ―intent to inhibit‖ is necessary to obtain a retaliation conviction, but Doyle says nothing of the
sort. The Doyle Court did recognize that ―[a] central purpose of the statute is to encourage a certain class
of citizens to perform vital public duties without fear of retribution,‖ 661 S.W.2d 726, 729 (Tex. Crim. App.
1983), but it did not imply that the defendant must have had the ―intent to inhibit‖ in order to convict.
Moreover, as noted, the statute contains no requirement, explicit or implicit, that the defendant actually
intend for the victim to hear or appreciate the threat. The making of the threat itself is what is criminalized
under the plain language of the statute—not the communication of that threat to the victim.
5
In our 2010 memorandum opinion, we fully considered Lindsey‘s second and third issues and
overruled them. Lindsey v. State, No. 13-09-00181, 2010 Tex. App. LEXIS 6018, at *8-17 (Tex. App.—
Corpus Christi July 29, 2010, pet. granted) (mem. op., not designated for publication). The court of
criminal appeals has not instructed this Court to reconsider those decisions; therefore, the issues remain
overruled, and we need not address them here. See TEX. R. APP. P. 47.1.
10