                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00156-CR


HECTOR JIMENEZ                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. F16-1456-362

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                         MEMORANDUM OPINION1

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      Appellant Hector Jimenez appeals from his retaliation conviction and

sixteen-year sentence.   In a single issue, he asserts that the evidence was

insufficient to support his conviction. Because a rational fact-finder could have

found each element of retaliation beyond a reasonable doubt, we affirm the trial

court’s judgment.


      1
       See Tex. R. App. P. 47.4.
      On April 23, 2016, Officer Antonio Barletta, a certified police officer with the

Lewisville Police Department, stopped a car driven by Jimenez because Barletta

reasonably suspected Jimenez of driving while intoxicated.           When Barletta

approached Jimenez’s car, he smelled alcohol and noticed that Jimenez’s eyes

were watery. At Barletta’s request, Jimenez attempted, but failed, a horizontal-

gaze-nystagmus test and then refused any further field-sobriety testing. Barletta

arrested Jimenez and handcuffed him. Jimenez “started becoming upset” and

once he was in the back of Barletta’s patrol car, Jimenez began threatening

Barletta and his family:

      When [Barletta and another officer] patted [Jimenez] down and got
      him in the back of the car, [Jimenez] said several things. He wanted
      [Barletta’s] children to get sodomized and decapitated, called
      [Barletta] a lot of other words.

             ....

              . . . In the beginning, [Jimenez] was just . . . talking smack,
      calling [Barletta] a bunch of curse words. On the ride to the jail is
      when he started saying that his posse is going to load [Barletta] up
      [i.e., “fill [Barletta] up with bullets”]. [Barletta] better wear [his]
      bulletproof vest. [Jimenez] said he’ll kill [Barletta] tomorrow when he
      gets out. [Jimenez] said he’ll be out tomorrow. He said he’s going to
      kill [Barletta] when he sees [him].

Barletta believed these threats were based on his arrest of Jimenez. Jimenez

also began banging his head against the back of the front seat and kicking the

backseat window.

      A grand jury indicted Jimenez with retaliation and included two

punishment-enhancement paragraphs based on his 1994 conviction for burglary



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of a building and on his 2013 conviction for assault against a public servant.

Jimenez pleaded true to the second enhancement paragraph and not guilty to

the charged offense.2 At trial, Barletta testified to Jimenez’s statements after his

arrest and stated that because driving-while-intoxicated arrestees commonly are

released the next day, Barletta was concerned for his three children. A jury

found Jimenez guilty of retaliation, found the enhancement paragraph true as

instructed by the trial court, and assessed his punishment at sixteen years’

confinement.

      Jimenez appeals and argues that the evidence was insufficient to support

his conviction because “no rational factfinder could have found” him guilty of the

charged offense.3 In our due-process review of the sufficiency of the evidence to


      2
       The record does not reflect if the State waived the first enhancement
paragraph, alleging Jimenez’s 1994 conviction for burglary of a building; but
Jimenez pleaded true to and the jury was charged on only the second
enhancement paragraph, alleging Jimenez’s 2013 conviction for assault against
a public servant. See generally Tex. Penal Code Ann. § 12.42(a), (d) (West
Supp. 2017) (providing for enhanced punishments if convicted of third-degree
felony with one prior felony conviction and if convicted of any non-state-jail felony
with two prior felony convictions). At punishment, the jury heard evidence of
several of Jimenez’s prior convictions, including the burglary conviction. See
Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (West Supp. 2017).
      3
       Jimenez does not specify why the evidence was insufficient, point out
which retaliation elements had no supporting evidence, or cite any authority
supporting his position other than citing cases on the general standard of review.
Generally, we would conclude that Jimenez insufficiently briefed this issue and
would overrule it as such. See Tex. R. App. P. 38.1(i); McDuff v. State,
939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Stevens v. State, Nos. 02-10-
00139-CR, 02-10-00140-CR, 02-10-00141-CR, 2011 WL 5119572, at *4 (Tex.
App.—Fort Worth Oct. 27, 2011, no pet.) (mem. op., not designated for
publication). But to be cautious and mindful of the dictate that we must construe

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support Jimenez’s conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the elements of retaliation beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex.

Crim. App. 2016).

      To convict Jimenez of retaliation, the State was required to produce

evidence that he intentionally or knowingly threatened to harm another by an

unlawful act in retaliation for or on account of the service or status of another as

a public servant. See Tex. Penal Code Ann. § 36.06(a)(1)(A) (West 2016); Riley

v. State, 965 S.W.2d 1, 2 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

Although police officers are not included in the statutory definition of public

servants, courts have routinely interpreted the term to include police officers such

as Barletta.   See Tex. Penal Code Ann. § 1.07(a)(41) (West Supp. 2017),

§ 36.06(b)(3); see, e.g., Bryson v. State, 807 S.W.2d 742, 745–46 (Tex. Crim.

App. 1991); Carriere v. State, 84 S.W.3d 753, 757 (Tex. App.—Houston [1st

Dist.] 2002, pets. ref’d). Jimenez did not threaten Barletta and his children until

after Barletta arrested him for driving while intoxicated, supporting a finding that

Jimenez’s threats were a result of Barletta arresting him—on account of

Barletta’s service as a police officer. See, e.g., Martin v. State, Nos. 09-15-

00087-CR, 09-15-00088-CR, 2017 WL 218270, at *3 (Tex. App.—Beaumont Jan.

briefing rules liberally, we will address Jimenez’s sufficiency argument. See Tex.
R. App. P. 38.9.


                                         4
18, 2017, pet. ref’d) (mem. op., not designated for publication); Brock v. State,

495 S.W.3d 1, 16–18 (Tex. App.—Waco 2016, pet. ref’d); Wiggins v. State,

255 S.W.3d 766, 773 (Tex. App.—Texarkana 2008, no pet.); Hughes v. State,

No. 01-01-00698-CR, 2002 WL 2025434, at *1–2 (Tex. App.—Houston [1st Dist.]

Aug. 30, 2002, pet. ref’d) (not designated for publication); cf. Helleson v. State,

5 S.W.3d 393, 395 (Tex. App.—Fort Worth 1999, pet. ref’d) (finding evidence of

defendant’s post-arrest, violent threats to police officer factually sufficient to

support retaliation conviction).   Indeed, Barletta’s belief was that Jimenez’s

threats were a result of his functions as a police officer. We conclude that the

evidence allowed a rational fact-finder to find that Jimenez committed the offense

of retaliation beyond a reasonable doubt. See, e.g., Wiggins, 255 S.W.3d at 773;

Hughes, 2002 WL 2025434, at *1–2.

      Accordingly, we overrule Jimenez’s sole issue and affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).


                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 7, 2018




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