In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00166-CR NO. 09-15-00167-CR ____________________
MICHAEL GEOFFREY PETERS, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 14-07-08207 CR (Counts 1 and 3) ________________________________________________________________________
MEMORANDUM OPINION
A jury found Michael Geoffrey Peters (Peters) guilty of two counts of
retaliation. See Tex. Penal Code Ann. § 36.06(a)(1) (West Supp. 2015).1 Peters
pleaded “true” to three prior felonies as alleged in the enhancement paragraphs of
the indictment. The jury assessed punishment at thirty-five years of confinement
for each count. The trial court entered a Judgment with the sentences to run
1 We cite to the current version of the statute as the subsequent amendments to section 36.06 of the Texas Penal Code do not affect the outcome of this appeal. 1 concurrently. Peters timely appealed his convictions. In three appellate issues,
Peters argues that the evidence supporting his conviction on Count 3 is insufficient,
the State violated article 39.14 of the Texas Code of Criminal Procedure by not
giving Peters the opportunity to inspect material evidence concerning Count 1, and
that this Court should consider any unassigned error.2 We affirm the trial court’s
judgments.
THE INDICTMENT
On October 21, 2014, a grand jury indicted Peters on multiple counts of
retaliation,3 wherein the grand jury alleged the following:
[COUNT NO. 1]
. . . Michael Geoffrey Peters, the Defendant, on or about June 14, 2014 and continuing through July 26, 2014, . . . did then and there intentionally or knowingly harm Tracy A. Gilbert by an unlawful act, to-wit; with intent to harass, annoy, alarm, abuse, torment or embarrass Tracy A. Gilbert, make repeated telephone communications 2 A court-appointed attorney represents Peters in this appeal. This Court has also received several pro se letters or documents from Peters in the appeal. To the extent Peters has attempted to raise independent issues, if any, on appeal, we do not address those issues. See Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006) (explaining that defendants have no right to hybrid representation on appeal); Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001) (“Appellants are not allowed to have ‘hybrid representation’ on appeal, in which an appellant and an attorney can present independent points to an appellate court.”). 3 Because the jury found Peters “not guilty” of the second count of retaliation as alleged in the indictment (Count 2), we omit the allegations of Count 2 from our recitation of the indictment. 2 to Tracy A. Gilbert’s home in a manner reasonably likely to harass and annoy and alarm and abuse and torment and embarrass Tracy A. Gilbert, in retaliation for or on account of the services or status of Tracy A. Gilbert as a public servant,
.... COUNT NO. 3
. . . on or about March 30, 2014 and continuing through June 13, 2014, . . . Michael Geoffrey Peters, hereinafter styled Defendant, did then and there intentionally or knowingly threaten to harm Tracy A. Gilbert by an unlawful act, to-wit; threaten to commit assault against Tracy A. Gilbert by stating the following “Judge Gillbert [sic] 418 CORRUPT” and “you’re not gonna get away with it” and “you people will ultimately feel what I’m talking about” and “what would you do if it happened to you and your son . . . Judge Tracy Gilbert has three children” and “Please help me decide if I should go to prison” and “I am afraid of the way I’m thinking now” and “Whatever I do next I’m sure will have serious consequences if I can’t find a better way” and “my life can no longer go on while these thieves get away with this theft unabated” and “do I let these people steal my son through this Doctor’s lie . . . just because the Judges were paid off, or do I risk my life again, like I did in Iraq” and “you wonder why people go nuts in this country, all of a sudden they go off” and “you officials here in Texas have given me very little choice of what I should be doing” and “I can’t sit back and let you steal my only son” and “this man stole everything from me, he is scum”, in retaliation for or on account of the services or status of Tracy A. Gilbert as a public servant[.]
The indictment also included three enhancement paragraphs alleging three prior
felony convictions.
3 EVIDENCE
Lieutenant Wakeman with the Texas Rangers testified on behalf of the State.
In June of 2014, the Montgomery County District Attorney’s Office contacted
Wakeman regarding “a potential threat towards Judge Tracy Gilbert[,]” and the
district attorney’s office advised Wakeman “of some videos that had been posted
on YouTube that were threatening in nature[]” and available to the public.
Wakeman explained that in the YouTube videos the speaker identified himself as
Peters and provided his name and address. After Wakeman compared the driver’s
license photograph of Peters to the videos, she determined that Peters was the
individual in the YouTube videos. Wakeman testified that according to the videos,
Peters “had had some sort of a . . . divorce and a child custody trial[]” in Judge
Gilbert’s family court, and Peters “was, obviously, not pleased with the outcome.”
The State introduced into evidence Exhibit 1 which included a compilation
of many hours of Peters’s YouTube videos. Peters made no objections to the
admission of Exhibit 1. Several segments of the videos were played for the jury.
Wakeman testified that the YouTube videos were posted online starting around
February 2013, when Peters’s family law case was still pending, and the YouTube
videos continued to be posted online through June 22, 2014. Wakeman agreed that
Peters was “lashing out” at Judge Gilbert, a doctor from Houston and her husband,
4 another judge who also presided over Peters’s case, the Texas Medical Board,
Governor Perry, and the Baylor Medical System.
One portion of Exhibit 1 that was played for the jury included a YouTube
video posted by Peters on February 21, 2013. Wakeman identified Peters as the
person in the video. Wakeman explained that Peters appeared to be talking about
his divorce case in the 418th District Court. Wakeman testified that another
YouTube video dated March 17, 2013, and posted by Peters, was titled “Lies and
Fraud and Children’s Medical Records[,]” wherein Peters spoke about picketing at
Texas Children’s Hospital and that the hospital served him with a no trespass
warning for the hospital. According to Wakeman, a May 31, 2013 YouTube video
posted by Peters was titled “This is a Promise[.]” Wakeman was concerned about
the “This is a Promise” video because it was directed at a doctor at Texas
Children’s Hospital who Peters claimed had done something that angered him with
respect to the family law case. Wakeman testified that the video post amounted not
just to a threat, but constituted a “promise[.]” Wakeman also testified about the
nature of other videos. According to Wakeman, in some of the YouTube videos
Peters often would ask people to donate money, Peters talked about a doctor with
whom he was upset and who had treated his son, and Peters made requests such as
asking the President to “clean up” the “corruption” in Texas courts and the medical
5 system. Wakeman testified that one of the two videos she was contacted about
initially was titled “Please help me decide if I should go to prison[,]” and it was
posted on June 10, 2014. A segment of that video was also played for the jury.
Wakeman explained that this video stood out because “the title in and of itself says
something that, basically, he’s considering going to prison for something[,]” and
that a person has to commit a crime to go to prison.
A portion of another video, also dated June 10, 2014, titled “Stealing
children through lies[,]” was also played for the jury. Wakeman explained that
therein Peters states that “whatever I do next I am sure will have serious
consequences[]” and that Peters will “[r]isk [his] life again like [he] did in Iraq.”
Wakeman agreed that these statements sounded like he was making the statements
in a threatening manner. Wakeman also agreed that Peters’s statements that “You
wonder why people go nuts in this Country, all of a sudden they go off; . . . you’re
not stealing my son and getting away with it,” and, “You give me very little choice
and I can’t sit back and let you steal my only son[,]” appeared to be a threat to the
people Peters believed had wronged him. Additional segments of other YouTube
videos from Exhibit 1 were played for the jury, including part of a video posted
June 13, 2014, titled “Judge Tracy Gilbert child molester[.]”
6 According to Wakeman, the district attorney’s office also notified Wakeman
about an online comment by a person with the same profile picture as Peters’s
YouTube account. Wakeman said the comment was posted to a Yahoo news article
about two Las Vegas police officers who had been ambushed and killed by two
gunmen. Wakeman testified that Peters’s comment “call[ed] the people who had
killed the police officers heroes and stated that he wished he would have been there
to see the blood run from their veins, or their bodies, their stinking bodies[.]”
According to Wakeman, she factored this comment into her investigation because
its violent nature, coupled with the videos Peters had posted, “gave sort of [an]
indication what his state of mind was at that point.” Wakeman testified that there
had been “[a]n escalation in events from the first videos that were posted on
YouTube through the date of the last phone calls to Judge Gilbert's house.”
Wakeman learned that Peters had called Gilbert’s residence on June 14,
2014, and that Peters spoke with Gilbert’s wife. Wakeman spoke with Judge
Gilbert’s wife about the phone call. Judge Gilbert also advised Wakeman that
Peters called Gilbert’s residence again on July 26, 2014, and Judge Gilbert told
Peters not to call his residence again. Wakeman explained that Judge Gilbert told
Wakeman that Peters called two more times that day and left two messages. Judge
Gilbert forwarded three photographs to Wakeman, each showing a display of a
7 telephone number that registered on Judge Gilbert’s caller ID when Peters called
Judge Gilbert’s home. Judge Gilbert also provided Wakeman with two audio
recordings of the voicemail messages Peters left. Phone records for a phone
number in the name of “Michael Peters[,]” were admitted into evidence. Wakeman
testified that she listened to the two voicemails and that in one of the voicemails it
sounded like the caller said, “see you soon.” According to Wakeman, the phone
number on Judge Gilbert’s caller ID matched Peters’s phone number and the phone
records showed calls from Peters’s phone number to Judge Gilbert’s phone number
on July 26, 2014. After reviewing Peters’s YouTube videos, Wakeman was able to
identify Peters as the caller that had left the voicemails.
Wakeman agreed that when determining whether Peters was a legitimate
threat, she considered the YouTube videos, the statements Peters made in the past,
the comments regarding other people involved, and the “totality of the
circumstances.” According to Wakeman, she determined, in combination with the
DA’s office, that “it seemed like due to the progression of events, that Mr. Peters
was making a threat towards Judge Gilbert and his family. . . .”
Mary Gilbert, Judge Gilbert’s wife, also testified at trial. Mary explained
that she learned from Peters’s YouTube videos that “Peters was very unhappy with
the outcome of his case and he was upset with [her] husband, as well as the doctors
8 and other people involved.” Mary testified that her husband came home with
photographs of Peters and his vehicles, and Mary and Judge Gilbert showed the
photographs to their children and told them to be cautious if they saw Peters or his
vehicle.
According to Mary, around 6 a.m. on June 14, 2014, she was at her home in
Montgomery County with her daughter, when Mary was awakened by a phone
call. Mary answered the phone without looking at caller ID because her husband
was out of town, and she thought it might be him calling. After she answered, she
looked at the caller ID and recognized it as a number that “had called [their] house
many times in the past. But we had not answered the number or the call.”
According to Mary, a man’s voice on the telephone line said, “Is Tracy home?”
and she answered, “No, he’s not. May I take a message?” Mary testified that at
first the man said, “No” and then said something to the effect of “Well, actually
yes. Tell him that it’s Michael Peters and I would like to know how much money
he was paid by the hospital to implement the ruling that he gave[.]” Mary
explained at trial that at this point she realized the person on the telephone was the
person her husband had warned her about. Mary testified she became “[v]ery
concerned[]” and hung up and called her husband. She said her husband told her he
would contact Wakeman. Mary and her daughter left to stay with relatives because
9 Mary “was concerned[]” and “didn’t know if Mr. Peters was going to be coming to
[their] residence.” Mary testified that Peters called back two more times that
morning, but she did not answer the phone.
Mary further explained that about a month later Peters called their home and
spoke with Judge Gilbert and then left two messages on their answering machine.
She identified their phone number as a number listed on Peters’s phone records for
calls on July 26, 2014. She testified that the first voicemail said, “Out of sight but
not out of mind. Remember that, a_ _hole[,]” and the second one said, “See you
soon.” Mary testified that she was very concerned and “felt like those were threats,
that maybe he was going to try and retaliate in some way.” Mary said the Gilberts
increased security at their home. According to Mary, their home phone number
was unlisted and never before had a party from one of her husband’s cases called
her at home. Mary agreed at trial that the calls from Peters to her home were
disturbing, harassing, and annoying.
Judge Tracy Gilbert testified that, at the time of trial, he had been the judge
in the 418th District Court for approximately seven years. He testified that in 2014
his staff brought to his attention certain YouTube videos that Peters had posted
online and the staff told Judge Gilbert that threats had been made by Peters which
he should be concerned about. Judge Gilbert explained that he recalled Peters had
10 filed a suit in 2012 for annulment and a suit affecting the parent-child relationship
and the suits were in Judge Gilbert’s court. According to Judge Gilbert, Peters’s
wife was represented by an attorney in the suit, and Peters represented himself.
Judge Gilbert testified that the suit began in 2012 and concluded in the summer of
2013. Judge Gilbert explained to the Jury that “by the time [Peters] was in front of
[Judge Gilbert], there had already been a contested temporary orders case before
the associate judge and a ruling had already been made awarding primary custody
of the child to the mother and . . . visitation issues, child support, all of that.”
According to Judge Gilbert, there was a jury trial in the Peters case but Judge
Gilbert did not preside over the jury trial, did not preside over any evidentiary
hearings, and only recalled presiding “[a] handful[]” of times in “shorter types of
hearings[]” for the case.
Judge Gilbert agreed that he considered the YouTube videos posted online
by Peters to be of a “threatening nature[,]” and Judge Gilbert testified that he
specifically remembered one of the videos wherein Peters identified and discussed
Gilbert’s wife and children in the video. According to Judge Gilbert, after he
watched the YouTube videos, Gilbert contacted the district attorney’s office.
Gilbert testified that Ranger Wakeman indicated to him that they “were starting to
monitor the videos, keep an eye on Mr. Peters.” Out of concern for the safety of his
11 family, Judge Gilbert showed his wife and children pictures of Peters and of
Peters’s vehicle and warned them about Peters.
Judge Gilbert explained to the jury that in June, while the Judge was out of
town, he received a call from his wife who was at home with their daughter.
Gilbert said his wife informed him that Peters had called their house early in the
morning. Judge Gilbert testified that his wife and daughter went to stay with
relatives and he contacted Wakeman. According to Judge Gilbert, on July 26th, he
received a call on his home phone which he answered. While he could not say
verbatim what the caller stated, Judge Gilbert testified that the person calling asked
essentially, “Is Tracy there?” and that he answered, “This is he[,]” and after Peters
identified himself, Judge Gilbert sternly told Peters, “This is my home. Do not ever
call here again[,]” and hung up. According to Judge Gilbert, Peters called two
more times that day, but Judge Gilbert did not answer. Judge Gilbert explained that
the caller left voicemail messages: one that said something like “Out of sight but
not out of mind. . . . Remember that, a_ _hole[,]” and the second one was “See you
soon.” Photographs Judge Gilbert took of his caller ID on his phone at the time of
the calls were admitted into evidence. The prosecutor showed Peters’s phone
records to Judge Gilbert, Judge Gilbert identified his own phone number listed
once on June 14, 2014, and listed twice on July 26, 2014. Judge Gilbert
12 characterized the voicemail messages as “threatening,” and he agreed the
voicemail messages were also harassing.
Texas Ranger Roger Dixon testified that, in July of 2014, Lieutenant
Wakeman requested his assistance on a case in which Michael Peters was
“suspected of making some phone calls and threats to a district judge.” Dixon
testified that Wakeman told him she believed Peters was in Val Verde County, one
of the counties in which Dixon was working, and Wakeman asked Dixon to serve
arrest and search warrants on Peters. Wakeman prepared the arrest warrant for the
charge of retaliation, and Dixon executed the warrant on Peters at a location in Val
Verde County, Texas. Dixon described the location as “a very remote area.” A
couple of days after Peters was arrested, Dixon executed a search warrant and
seized eighteen items from the residence, including computer equipment and
documents pertaining to Judge Gilbert and the Gilbert home (such as phone
numbers, address, a map to the Gilbert’s house, and the value of their house) that
appeared to be from multiple online background and research services.
Jeffery Chappell, a special agent with the Department of Homeland Security
who investigates cyber-crimes and is certified to examine computers and other
electronic devices forensically, also testified at trial. Chappell explained that he
searched the hard drive of the computer seized from Peters and found matches for
13 Judge Gilbert’s name. Chappell was unable to find copies of Peters’s YouTube
videos on the computer.4
ISSUES ON APPEAL
In his first appellate issue, Peters challenges the sufficiency of the evidence
supporting his conviction for Count 3. In his second issue, Peters argues that,
despite a timely request for records, he was not given an opportunity to inspect
material phone records presented by the State concerning Count 1 of the
indictment at trial as required by article 39.14 of the Texas Code of Criminal
Procedure. In issue three, Peters asks this Court to consider any unassigned error if
his trial counsel or appellate counsel “failed to properly object or raise an issue that
is clearly erroneous and harmful error[.]”
ANALYSIS
Sufficiency of the Evidence as to Count 3 of the Indictment
In issue one, Peters challenges the sufficiency of the evidence supporting his
conviction under Count 3 of the indictment. Peters argues that the State failed to
produce evidence of any threat of unlawful conduct, an essential element of
retaliation. A person commits the offense of retaliation if he “intentionally or 4 Peters did not challenge at trial, nor does he challenge on appeal, that he made the videos that were introduced into evidence as Exhibit 1. Peters was allowed upon his request to represent himself during the trial, with his attorney assisting. 14 knowingly harms or threatens to harm another by an unlawful act . . . in retaliation
for or on account of the service or status of another as a . . . public servant[.]” Tex.
Penal Code Ann. § 36.06(a)(1)(A). Peters contends that he made no threat to
assault or perform any other specific unlawful act required as an element of section
36.06(a)(1) and that his YouTube videos were only “pleas for help and expressions
of frustration with individuals[.]”5
When an appellant challenges the sufficiency of the evidence supporting a
conviction in a criminal case, appellate courts consider all of the evidence in a light
most favorable to the verdict and decide, after reviewing the evidence in that light,
whether a rational trier of fact could have found the appellant guilty of the essential
elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). In reviewing sufficiency challenges, we are required to give the jury’s
findings and its conclusions deference, as it was the jury’s responsibility to fairly
resolve all conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from the basic facts to resolve whether the defendant is
guilty of violating the criminal provision that is at issue at trial. See Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 5 On appeal, Peters does not assert that he did not make the statements alleged in Count 3 or that Judge Gilbert is not a public servant. 15 Under section 36.06(a)(1)(A), a person commits an offense if the person
intentionally or knowingly harms or threatens to harm another by an unlawful act
in retaliation for or on account of the service or status of another as a public
servant, witness, prospective witness, or informant. Tex. Penal Code Ann. §
36.06(a)(1)(A). A threat to harm another by “an unlawful act” will support a
conviction for retaliation under the statute. Meyer v. State, 366 S.W.3d 728, 731
(Tex. App.—Texarkana 2012, no pet). Although the retaliation statute does not
define an “unlawful act[,]” the word “unlawful” is defined within the definitions
contained in the General Provisions of the Texas Penal Code. See Tex. Penal Code
Ann. § 1.07(a)(48) (West Supp. 2015). Section 1.07(a)(48) defines “unlawful” to
mean “criminal or tortious or both.” The word “harm” also is not defined in the
retaliation statute, but it is defined in section 1.07(a)(25) as “anything reasonably
regarded as loss, disadvantage, or injury . . . .” Id. § 1.07(a)(25). A threat of
physical injury is not required. See Meyer, 366 S.W.3d at 731. “That a threat is
subtle does not make it less of a threat.” Manemann v. State, 878 S.W.2d 334, 337
(Tex. App.—Austin 1994, pet. ref’d) (citing United States v. Gilbert, 884 F.2d 454,
457 (9th Cir. 1989)).
Comments supporting retaliation may be evaluated by a factfinder in the
context within which they were uttered, and retaliatory intent may be inferred from
16 an accused’s acts, words, or conduct. Meyer, 366 S.W.3d at 731; In re B.P.H., 83
S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.). Alleged threats should be
considered in light of their entire factual context, including the reaction of the
listeners and the surrounding events. Manemann, 878 S.W.2d at 337 (citing United
States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990); United States v.
Mitchell, 812 F.2d 1250, 1255 (9th Cir. 1987)). “Whether a particular statement
may properly be considered to be a threat is governed by an objective standard--
whether a reasonable person would foresee that the statement would be interpreted
by those to whom the maker communicates the statement as a serious expression of
intent to harm or assault.” Id. (citing Orozco-Santillan, 903 F.2d at 1265; Mitchell,
812 F.2d at 1255-56)).
Peters relies on Meyer v. State in support of his argument that he made no
threat to assault or perform any other specific unlawful act as required by section
36.06(a)(1). See 366 S.W.3d 728. In Meyer, the defendant was on deferred
adjudication, community supervision, for attempted retaliation. Id. at 729. While
he was on deferred adjudication, Meyer wrote a letter to a municipal court judge in
connection with a minor offense, and Meyer’s community supervision was
revoked. Id. On appeal, Meyer argued that there was insufficient evidence that he
17 threatened to unlawfully harm the municipal judge, and thus insufficient evidence
that he committed the offense of obstruction or retaliation under section 36.06. Id.
In Meyer’s letter, Meyer informed the municipal judge that the judge lacked
jurisdiction and authority to adjudicate the matter, that “any further action, other
than dismissal[]” would constitute a violation of Meyer’s rights, that the municipal
judge lacked immunity for such action, and that Meyers would prosecute claims
“to the fullest extent of the law[.]” Id. at 730. Meyer also indicated that a suit
would be brought for such injuries and that “[w]e are all obligated to obey the law,
no exceptions[.]” Id.
The Texarkana Court of Appeals determined that the evidence was sufficient
to support a finding that Meyer threatened harm to the judge. Id. at 732. However,
the Texarkana Court of Appeals found that the evidence was “insufficient to
support the adjudication premised solely on Meyer’s committing the offense of
obstruction or retaliation.” Id. In reversing the trial court’s judgment revoking
Meyer’s community supervision and adjudicating his guilt, the Texarkana Court of
Appeals explained:
The missing element of proof, however, in our view, is any evidence that Meyer’s letter threatened unlawful action. In his letter, Meyer threatens criminal prosecution and civil actions against those who violate his rights. He warns of their loss of immunity from liability. He, in essence, says, “No more Mr. Nice Guy.” He says he has adopted a “come what may” philosophy, but he moderates even 18 that comment with a statement that everyone is obligated to follow the law. He finishes with a warning that proceeding further will be at the personal risk of the offender—enough to warrant a finding that he threatened harm, at least some personal financial loss—but he stops short of threatening to take unlawful action against the judge or anyone else.
Id.
Meyer is distinguishable from the present case. Peters posted a series of
YouTube videos and made statements in which Peters actually indicated that his
actions against Judge Gilbert could have criminal consequences. The jury heard
and viewed the YouTube videos that Peters made, which included statements such
as “Please help me decide if I should go to prison[,]” “Whatever I do next I’m sure
will have serious consequences if I can’t find a better way[,]” and “do I let these
people steal my son through this Doctor’s lie . . . just because the Judges were paid
off, or do I risk my life again, like I did in Iraq[.]” The jury heard Wakeman testify
that she considered the “totality of the circumstances[,]” the statement that Peters
made about the killing of police officers, the statements Peters made about others
he felt were connected to Peters’s family case, and the escalation of the situation.
Wakeman concluded that the videos and surrounding circumstances implicitly
demonstrated that Peters’s conduct had escalated and Wakeman concluded that
Peters intended to commit a crime against Judge Gilbert. Unlike the letter in
Meyers, the statements Peters made do not contain an overriding content that 19 appear to limit Peters’s threats of harm to only “lawful actions,” nor is Peters
simply stating that he intends to file a lawsuit or that he will “follow the law.”
Based on the combined and cumulative force of all the evidence and
testimony that the State presented to the jury, and viewing the evidence in a light
most favorable to the verdict, we conclude that the evidence was sufficient to allow
a rational jury to conclude beyond a reasonable doubt that Peters intentionally
made threats to harm Judge Gilbert by an unlawful act. Cf. Meyer, 366 S.W.3d at
732; see also Brock v. State, No. 10-14-00224-CR, 2016 Tex. App. LEXIS 155, at
**1-2, 34-36 (Tex. App.—Waco Jan. 7, 2016, no pet.) (affirming a retaliation
conviction where the defendant told the trial court judge, “Oh, I’ve got something
for you, just wait[,]” because a reasonable person could interpret the defendant’s
statement as a veiled or implied threat to harm the judge by an unlawful act);
Austin v. State, No. 10-12-00066-CR, 2013 Tex. App. LEXIS 1234, at **4-5 (Tex.
App.—Waco Feb. 7, 2013, pet. ref’d) (mem. op., not designated for publication)
(affirming a retaliation conviction where the defendant left three voice messages
for an officer for the City of Waco that included a threatening rap song and
statements that the defendant was going to “come at him,” he was going to “catch a
murder case,” and said “you’re gonna get done, son”); Gohe v. State, No. 02-10-
00131-CR, 2011 Tex. App. LEXIS 2840, at **8-11 (Tex. App.—Fort Worth Apr.
20 14, 2011, pet. ref’d) (mem. op., not designated for publication) (affirming a
retaliation conviction where the defendant told another that she intended to “take
care of this judge,” that she was “going to take matters in her own hands,” and that
“she was not afraid to go to jail”); Wortham v. State, No. 09-02-505-CR, 2003 Tex.
App. LEXIS 3125, at **3-6 (Tex. App.—Beaumont Apr. 9, 2003, no pet.) (mem.
op., not designated for publication) (jury could have reasonably concluded that
comments by defendant that “I have to come back[,]” “The police can’t be here 24
hours; you’re going to need 24-hour security[]” were, when considered in context,
a threat to harm by unlawful action under section 36.06). The evidence is sufficient
to support the conviction as to Count 3. See Jackson, 443 U.S. at 319; Temple, 390
S.W.3d at 360; Hooper, 214 S.W.3d at 13. Issue one is overruled.
Alleged Discovery Violation Regarding Count 1 of the Indictment
In his second issue, Peters contends that, despite having made a timely
request for records, “Appellant was not given the opportunity to inspect material
phone records presented at trial by the State concerning Count 1 of the indictment
pursuant to Tex. Code. Crim. Proc. art 39.14.” See Tex. Code Crim. Proc. Ann. art.
39.14(a) (West Supp. 2015) (“[A]s soon as practicable after receiving a timely
request from the defendant the state shall produce and permit the inspection . . .
21 of . . . any designated documents . . . that are in the possession, custody, or control
of the state[.]”). Peters argues that
Appellant was denied the opportunity [to] inspect phone records obtained by the State and used at trial as evidence to show Appellant made several more phone calls to Judge Tracy A. Gilbert. Appellant properly filed requests for inspection of the State’s evidence, the State failed to turn over the acquired phone records as required by Tex. Code. Crim. Proc. art 39.14 before trial, and Appellant was unfairly prejudiced by not being afforded the opportunity to review material evidence.
....
Had Appellant been made aware of the phone record evidence containing more phone calls, he may have been more likely to accept a plea offer, gather additional evidence to combat what the State had presented, or attempt to explain the reasons for the additional phone calls.
Peters argues that the phone records were not sent to his counsel until the day after
the guilty verdict, and that he filed a motion for new trial on the basis of new
evidence.
We have examined the entire appellate record and the record does not
support Peters’s argument on this issue. Rather, according to the record, prior to
trial, the court addressed various motions that were filed by Peters, including a
motion for continuance that Peters filed before trial wherein he claimed the State
had notified Peters of the potential of newly-discovered evidence about additional
phone records. The State explained to the trial court that it had not yet obtained any 22 additional records but that the State had submitted a search warrant to a phone
provider and requested the response to be expedited. The trial court denied the
appellant’s motion for continuance on grounds that the court would exclude from
evidence any records regarding additional phone calls, and that the trial court
would only allow into evidence the phone records that pertained to the applicable
time period from the indictment. On the first day of trial, the trial court stated on
the record that the State had already provided phone records “for a certain small
window[]” and that the trial court was “going to limit [the State] to around the date
in question in the Indictment[]” because “I don’t think it’s fair to the Defendant to
bring up at the eleventh hour additional calls.” The indictment and the jury charge
limited the retaliation allegations pertaining to telephone calls to the dates of June
14, 2014 to July 26, 2014.
The appellate record includes only one set of phone records from T-Mobile
and such records were introduced as “State’s Exhibit 5.” State’s Exhibit 5 was
admitted into evidence during the guilt/innocence phase of the trial without any
objection from Peters. Exhibit 5 contains a log of telephone calls from the time
period of June 12, 2014 to July 28, 2014, which corresponds to the pretrial ruling
of the trial court.
23 After the jury’s guilty verdict, but prior to the beginning of the punishment
phase of the trial, defense counsel states on the record that earlier that morning the
State had indicated to defense counsel that the State had received additional
records in “the form of a phone record, which to some degree seems to contradict
the testimony of Mary Gilbert, who . . . indicated that phone calls had been
received under the . . . cell phone number of Mr. Peters for up to a year prior to this
trial.” Peters’s defense counsel argued to the trial court that the additional phone
records do not show any calls from Peters’s cell phone prior to June 2014, and that
defense counsel intended to file a motion for new trial based on the newly
discovered evidence. Neither the State, nor Peters ever introduced the additional
records into evidence. The only telephone records in the appellate record and used
during the trial were marked and admitted as “State’s Exhibit 5.”
After the trial, Peters filed a motion for new trial wherein he argued that
“[t]he District Attorney provided new evidence in the form of phone records of
Tracy Gilbert’s home phone number which were not provided to defense counsel
until April 30, 2015, the day after the verdict was rendered. This evidence
contradicts the testimony at trial.” No phone records were attached to the motion
for new trial. The motion for new trial was overruled as a matter of law, and Peters
24 does not challenge on appeal the trial court’s ruling pertaining to the motion for
new trial.
Furthermore, Peters’s argument at trial relating to the “additional records”
does not comport with his argument on appeal, and therefore he failed to preserve
this issue for appellate review. See Resendiz v. State, 112 S.W.3d 541, 547 (Tex.
Crim. App. 2003); see also Tex. R. App. P. 33.1. And, even if Peters had presented
on appeal the argument he made to the trial court, Peters did not take the necessary
steps to have the “additional records” included within the appellate record by either
a proffer or by attaching the records to his motion for new trial, and Peters has
preserved nothing for our review. See Pinson v. State, 598 S.W.2d 299, 301 (Tex.
Crim. App. 1980) (citing Moore v. State, 509 S.W.2d 349, 352 (Tex. Crim. App.
1974)); see also Tex. R. App. P. 33.1(a), 33.2. We overrule issue two.
Unassigned Error
In his third issue, Peters asks this Court to address any unassigned error if
his trial counsel or appellate counsel “failed to properly object or raise an issue that
is clearly erroneous and harmful error[.]” Appellate courts may review properly
preserved but unassigned error by ordering briefing by both parties. Pena v. State,
191 S.W.3d 133, 136-38 (Tex. Crim. App. 2006). We have not ordered additional
briefing in this case. The stated issue presents no error for appellate review. See
25 Tex. R. App. P. 38.1(f). We overrule issue three and affirm the trial court’s
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on March 18, 2016 Opinion Delivered June 1, 2016 Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.