Antonio Schmidt v. The State of Texas--Appeal from 242nd District Court of Hale County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-04-00480-CR

Case Date: 11/20/2007

Plaintiff: GAITHER PETROLEUM CORPORATION

Defendant: HILCORP ENERGY I, L.P.--Appeal from 253rd District Court of Liberty County

Preview:NO. 07-04-0480-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A NOVEMBER 20, 2007 ______________________________

ANTONIO SCHMIDT, APPELLANT V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B 15510-0405; HONORABLE ED SELF, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS

Appellant, Antonio Schmidt, was convicted by a jury of retaliation and sentenced to seven years confinement and a $7,000 fine. By our opinion of February 2, 2006, we reversed Appellant's conviction for retaliation and rendered a judgment of acquittal. Our

opinion was based on a finding that the evidence was legally insufficient to prove retaliation by threat as alleged in the indictment. Based upon that decision, we did not address Appellant's further complaints.

The State's Petition for Discretionary Review was granted on two issues: (1) whether a threat of harm and actual harm can arise from the same act and occur simultaneously or must the threat precede the harm, and (2) was the evidence that Appellant yelled at, cursed, grabbed, pushed, kicked, dragged, and punched the victim sufficient to prove that he threatened to harm her? Finding that this Court erred in drawing a bright-line rule that a threat of harm and actual harm cannot arise from the same act and occur simultaneously and that the threat must precede the initial harm, the Court of Criminal Appeals determined that the evidence was legally sufficient and reversed the judgment of acquittal and remanded the case for further proceedings to consider Appellant's remaining points. See Schmidt v. State, 232 S.W.3d 66 (Tex.Crim.App. 2007).

In addition to the legal sufficiency challenge which has been resolved, Appellant also challenged (1) the factual sufficiency of the evidence to support his conviction and (2) whether the trial court erred in denying his request for a lesser included offense charge for the offenses of assault with bodily injury and assault by threatening to cause imminent bodily injury. As directed by the high Court, we now address Appellant's remaining contentions.

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Factual Background

Appellant was indicted for threatening to harm the victim by striking her in retaliation for or on account of her services as a prospective witness. Appellant was angry with the victim, with whom he had been romantically involved for almost four years. The victim was spending a few days with Appellant at his mother's house. The victim testified that one morning during her visit, Appellant woke up angry and was calling her names. On that morning, besides them, Appellant's mother was the only other occupant in the house. She was in her bedroom in the back of the house. Appellant and the victim argued in the living room and Appellant yelled, screamed, and cursed at her and said, "[y]ou stupid bitch, I'm probably going to have to do time because of you!" She stepped outside to the front porch and sat in a swing. She ignored Appellant yelling at her from inside the house. He then went outside, where the argument escalated into violence. He grabbed the victim by the arms as she yelled to be left alone. He pushed her off the swing and caused her to hit her head. While she was lying on the ground crying and "curled up in a ball," Appellant kicked her in the back and stomach, dragged her by her hair, and punched her in the face. According to the victim, she managed to get away and go back inside the house. She tried to use the phone, but Appellant took it from her and threw it across the room. At Appellant's mother's suggestion, she locked herself in the bathroom until she could safely leave the house. The victim and Appellant's mother exited the house through the back door and Appellant's mother found her a ride home. According to the victim, as she was walking to the car, Appellant laughed and said, "[h]a, ha. That's what you get, bitch." 3

Factual Sufficiency of the Evidence

When conducting a factual sufficiency review, we examine all the evidence in a neutral light and 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), overruled in part by Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006). We cannot reverse a conviction unless we find some objective basis in the record that demonstrates that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. In other words, we cannot conclude that Appellant's conviction is "clearly wrong" or "manifestly unjust" simply because we might disagree with the jury's verdict. Id.; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Additionally, we must consider the most important evidence that Appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We are not, however, required to discuss all evidence admitted at trial. See id. See also Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App. 2007).

The jury is the exclusive judge of the facts. Tex. Code Crim. Proc. Ann. art. 36.13 & 38.04 (Vernon 2007). As a reviewing court, we must always remain cognizant of the jury's role and unique position in evaluating credibility and demeanor of witnesses and giving weight to contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000). Unless the record clearly demonstrates a different result is

appropriate, we must defer to the jury's determination. Johnson, 23 S.W.3d at 8.

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The indictment in this cause required the State to prove that Appellant intentionally or knowingly threatened to harm the victim by an unlawful act, to-wit: striking the victim, in retaliation for or on account of her services as a prospective witness. See Texas Penal Code Ann.

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