Kerwin Pennick v. State

• Court: Court of Appeals of Texas
• Decided: March 20, 2003
• Docket: 03-02-00368-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00368-CR

Kerwin Pennick, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT NO. 9024023, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Kerwin Pennick guilty of retaliatory assault with a deadly weapon

and assessed punishment at imprisonment for life. Tex. Pen. Code Ann. ' 22.02(a)(2), (b)(3) (West

2003). Appellant=s court-appointed attorney filed a brief concluding that the appeal is frivolous and without

merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by advancing a

contention which counsel says might arguably support the appeal. See also Penson v. Ohio, 488 U.S. 75

(1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.

Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436

S.W.2d 137 (Tex. Crim. App. 1969).

Counsel urges that the evidence is arguably insufficient, both legally and factually, to support

the jury=s finding that appellant assaulted the complainant in retaliation against or on account of her service as a prospective witness or person who had reported the occurrence of a crime. Appellant makes the same

argument in a pro se brief.

The evidence shows that appellant and the complainant had a romantic relationship that

ended in December 2000. On February 18, 2001, appellant attended the complainant=s birthday party and

accompanied her home. They argued, and appellant attacked the complainant with a knife. Appellant

continued the attack even as the complainant called the police, and he did not stop the attack until officers

arrived and arrested him. Appellant was released from jail in March. Thereafter, appellant called the

complainant on the telephone almost daily, and occasionally appeared at her house. Many of appellant=s

calls were Augly and he would start cussing.@ On April 17, 2001, appellant was waiting outside the

complainant=s house as she left for work. He attacked her with his fists and with an ax. The complainant=s

son intervened and appellant fled. Appellant continued to make threatening and abusive telephone calls to

the complainant until he was arrested one week later.

Applying the appropriate standards of review, we conclude that the evidence is both legally

and factually sufficient to support the jury=s finding that the April 17 assault was in retaliation for the

complainant=s report of the February 18 assault. See Jackson v. Virginia, 443 U.S. 307, 324 (1979);

Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (standard of review for legal

sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (standard of review for factual

sufficiency). Although there is no evidence that appellant made any express statement manifesting a

retaliatory purpose for the April 17 attack, it is significant that appellant began the harassing telephone calls

to the complainant immediately after he was released from jail following the February assault. See Angelo

2 v. State, 977 S.W.2d 169, 173-75 (Tex. App.CAustin 1998, pet ref=d). From this, the jury could

reasonably infer that the April 17 assault was motivated, at least in part, by appellant=s desire to retaliate

against the complainant for having reported his earlier attack to the police.

Having reviewed the record and the briefs, we conclude that there is no meritorious ground

for appeal. Counsel=s motion to withdraw is granted.

The judgment of conviction is affirmed.

Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: March 20, 2003

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