Opinion
No. 05-05-00541-CR
Opinion Filed February 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81983-04. Affirmed.
Before Justices RICHTER, LANG, and MAZZANT.
OPINION
Patti Ann Hill appeals her conviction for retaliation. In two points of error, Hill complains of the denial of her motion to quash the indictment and the legal and factual sufficiency of the evidence to support her conviction. We affirm.
Background
Hill was indicted after leaving the following message on the voice mail of Children's Protective Services (CPS) caseworker Jamie Connell:You're about a b____ and you need to stay out of mother f____ people's lives. That's what you need to do b____, and if you think you can come up in mine and f____ with me, I will cut you and watch you bleed out like the mother f____ ho dog you are.Connell, who had investigated an allegation that Hill was neglecting her young children, received this message about two weeks after informing Hill by letter that, although Connell had found "reason to believe" Hill had neglected her children and also had physically abused one of her sons, the case was being closed. At trial, the issue was not whether Hill had left the threatening message, but whether Hill had made the threat "with retaliatory intent." Because Connell had already closed the case when she received the message, Hill argued Connell was "no longer a public servant" and the threat could not have been made in retaliation for Connell's investigation of the allegation of neglect. Rejecting Hill's argument, a jury found Hill guilty and the trial judge subsequently assessed punishment at ten years' confinement, probated for two years.
Sufficiency of the Evidence
In her second point of error, Hill complains the evidence is legally and factually insufficient to support her conviction because the State failed "to prove the retributory element." In arguing this point, Hill reurges her contention at trial that because the threatening message was made after Connell had closed the case, the threat "could not have been perceived as being made in retaliation for Connell's duties as a public servant." We reject Hill's contention. We review challenges to the legal and factual sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and 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); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Based on the indictment in this case, to obtain a conviction, the State had to prove Hill intentionally or knowingly threatened to murder or commit aggravated assault against Connell in retaliation for or on account of her service or status as a public servant. Tex. Pen. Code Ann. § 36.06(a)(1)(A) (Vernon Supp. 2005). The State could prove the retributory element-that the unlawful threat was committed in retaliation for or on account of Connell's service as a public servant-by circumstantial evidence. Helleson v. State, 5 S.W.3d 393, 395 (Tex.App.-Fort Worth 1999, pet. ref'd). Here, it is undisputed that Hill left the threatening message on Connell's voice mail after receiving Connell's letter that she had found "reason to believe" Hill had neglected all her children and abused one of her sons. Although Hill maintains the timing of the threat, after the case was closed, precludes a finding of the retributory element, Hill cites no case law, nor do we find any supporting this contention. See Tex.R.App.P. 38.1(h). Moreover, Hill points to no evidence, and neither do we find any, showing that Hill had contact with or threatened Connell other than as a result of Connell's services as a CPS caseworker. Given the record before us, we conclude the jury could reasonably infer Hill's threats were retaliatory and stemmed from Connell's service as a public servant. Cf. Riley v. State, 965 S.W.2d 1 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (concluding evidence legally insufficient to support inmate's conviction for retaliation stemming from assault of prison guard blocking inmate at request of another guard because no evidence existed that assault occurred in retaliation for duties previously performed). Accordingly, we conclude the evidence is both legally and factually sufficient to support the conviction. We overrule Hill's second point of error.Motion to Quash
Hill's first point of error concerns the trial judge's ruling on her motion to quash the indictment. Relevant to this point, the record reflects the indictment originally charged Hill with committing retaliation by verbally threatening to murder Connell on account of her services as a CPS caseworker. The original indictment also recited almost verbatim the message Hill left Connell. About a month before trial, however, the trial judge granted the State's apparently unopposed request to amend the indictment by deleting the manner in which the threat was made and the actual threatening language. Specifically, the indictment alleged Hillintentionally and knowingly threatened to harm [Connell] by an unlawful act . . . the murder of [Connell] in retaliation for and on account of the service of [Connell] as a public servant employed by [CPS];
intentionally and knowingly threatened to harm [Connell] by an unlawful act . . . the aggravated assault of [Connell] in retaliation for and on account of the service of [Connell] as a public servant employed by [CPS].About a week before trial and about two weeks after receiving a copy of the recording of the threatening message pursuant to a discovery request, Hill moved to quash the indictment asserting it failed to provide notice "as to how and to whom the threat was communicated." At the hearing, which was set the day of trial, Hill argued the indictment should specify whether the threat was made in person, by telephone, or by mail. Although she acknowledged receiving a copy of the recorded telephone message, Hill maintained she was nonetheless unable to adequately prepare a defense because the indictment did not specify how the threat was made and thus did not prevent the State from presenting evidence of threats that may have been made by other means. Unpersuaded, the trial judge denied the motion. As she argued at trial, Hill argues now that the State's failure to allege in the indictment the manner and means by which the charged offense was committed prevented her from properly preparing a defense. In response, the State argues the trial judge properly denied Hill's motion because Hill received a copy of the recorded message and thus had actual notice of the threat. We agree with the State. In order to prepare a defense, a defendant must receive sufficient notice of the precise offense with which he is charged. Kellar v. State, 108 S.W.3d 311, 313 (Tex.Crim.App. 2003). Although the language in the indictment is generally the means by which the defendant receives this notice, the defendant may also receive this notice through other means including discovery. Id. A trial judge does not err in denying a motion to quash the indictment based on the State's failure to provide the theory against which the defendant would have to defend, unless the defendant in fact, received no notice. Id. We review a trial court's ruling on a motion to quash de novo. State v. Moff, 154 S.W.3d 599, 600 (Tex.Crim.App. 2004). In this case, the record reflects Hill had actual notice of the threat upon which the State was basing its allegations. Although the State did not proceed on the original indictment which specifically stated Hill communicated the threat verbally and recited almost verbatim the threatening message, about two weeks after amending the indictment to delete this language, the State provided Hill a copy of the recorded telephone message pursuant to discovery and Hill acknowledged receipt of the recording. Moreover, the record does not show Hill objected to the State's motion to amend the indictment, an opportune time to raise the issue of insufficient notice, nor did she argue at the hearing on her motion to quash that she had threatened Connell more than once, making preparation of a defense difficult without precise notice. Given the record before us, we conclude Hill had sufficient notice to prepare a defense and the trial court did not err in denying Hill's motion. We find support for our conclusion in Hill's defensive strategy at trial. Although she argues on appeal that she was unable to prepare a proper defense because of insufficient notice, her defense at trial-that the threat could not have been made in retaliation for Connell's investigation of the allegation of neglect because she had already closed the case when the threat was made-was, as the State points out, tailored to the very threat made on the recording of which the State had provided her a copy. We overrule Hill's second point of error. We affirm the trial court's judgment.