Darnell A. La Rue McQueen v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 30, 2025
• Docket: 01-23-00414-CR
• Status: Published

Opinion

Opinion issued January 30, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00414-CR ——————————— DARNELL A. LA RUE MCQUEEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 7 Harris County, Texas Trial Court Case No. 2420261

MEMORANDUM OPINION

A jury found appellant Darnell A. La Rue McQueen guilty of harassment, and

the trial court assessed her punishment at 180 days in county jail, probated for twelve

months. In a single point of error, appellant contends that the evidence is legally

insufficient to support her conviction of harassment. We affirm. Background

Janisa San Agustine, the complainant, lives with her partner, Kendrick Jones,

and their two young daughters. Appellant is Jones’s mother.

In early 2022, San Agustine and Jones met appellant at a Taco Cabana. This

was the first time the two women met. Jones and San Agustine gave appellant her

mail and invited her to their daughter’s birthday party, and appellant gave Jones a

key fob to her car.

On July 4, 2022, San Agustine and Jones took their daughter to Katy Mills

Mall to celebrate her birthday. While there, San Agustine received several

notifications on her phone from their Ring doorbell camera showing appellant

standing outside their house. Jones called appellant while San Agustine took their

daughter to the Build-a-Bear workshop in the mall. They later headed home to pick

up their daughter’s diaper bag before going to The Aquarium.

San Agustine believed that appellant was at their house either to retrieve the

key fob or because of an argument the two women had during the previous week.

San Agustine testified that she had made a Facebook post, and appellant commented

on it that San Agustine was “playing house.” San Agustine texted appellant to ask

whether she had an issue with her and suggested that she should have texted San

Agustine instead of commenting. An argument ensued and appellant responded that

2 San Agustine “would never understand where she was coming from in regards to her

son being a provider.”

On the drive home, San Agustine viewed the video clips of appellant outside

their house. The clips showed appellant knocking on the front door and then kicking

it. San Agustine testified that appellant looked upset. In the last clip, appellant stated,

“Little Bitch, you think this is a game? I’ll kill you behind my son.” San Agustine

testified that she knew appellant was referring to her because she was the only female

in the house other than a child. San Agustine became upset because she did not know

what she had done to offend appellant. She testified that appellant’s statement made

her feel harassed, annoyed, alarmed, and tormented. She also felt embarrassed

because she trusted appellant with her home address, and appellant showed up to her

house threatening to kill her. San Agustine stated that appellant walked back to her

car, but she did not see her leave the property. After viewing the video clips, San

Agustine and Jones called the police.

Jones testified that he does not have much of a relationship with his mother.

According to Jones, appellant did not believe that San Agustine was good enough

for him and that they were merely “shacking up” and not a couple, presumably

because they were not married. Jones testified that the video clips showed appellant

pounding on their front door with a closed fist and “donkey-kicking” the door. When

Jones called appellant to ask her why she was there, appellant responded that she

3 wanted her key fob back. Appellant also told Jones that she thought someone was in

their house. Jones told appellant that no one was at home and that he was at work.

Jones testified that he told her this because he did not want appellant to ruin his

daughter’s birthday. He also did not want to see appellant that day because of the

heated phone call he had had with her following her text exchange with San Agustine

during which appellant had become aggressive. Jones testified that one of the video

clips captured appellant saying, “Little Bitch, I’ll kill you over my son. You think

this shit is a joke.” Based on appellant’s statement and the fact that she thought there

was a man in their house, Jones believed that appellant thought San Agustine was

cheating on him. Jones testified that San Agustine was terrified after hearing

appellant’s statement because she did not know appellant, and she feared for their

daughter’s safety. Appellant was gone by the time Jones and San Agustine arrived

home. Jones later returned appellant’s key fob and told her not to contact him

anymore. Appellant told Jones to kill himself and that he was no longer her son.

The jury found appellant guilty of the charged offense. Following a

punishment hearing, the trial court sentenced appellant to 180 days in county jail,

probated for twelve months, and ordered that she have no contact with San Agustine

or engage in threatening, harassing, or assaultive conduct toward Jones. This appeal

followed.

Discussion

4 In her sole point of error, appellant contends that the evidence is legally

insufficient to support her conviction of harassment. The State responds that there

was legally sufficient evidence to support appellant’s conviction and that it proved

every element of the charged offense beyond a reasonable doubt.

A. Standard of Review

We review appellant’s challenge to the sufficiency of the evidence under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we examine all

the evidence in the light most favorable to the verdict and determine whether a

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson, 443 U.S. at 318–19. Evidence is insufficient under this

standard in four circumstances: (1) the record contains no evidence probative of an

element of the offense; (2) the record contains a mere “modicum” of evidence

probative of an element of the offense; (3) the evidence conclusively establishes a

reasonable doubt; and (4) the acts alleged do not constitute the criminal offense

charged. See id. at 314, 318 n.11; Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim.

App. 2009); Mottin v. State, 634 S.W.3d 761, 765 (Tex. App.—Hous. [1 Dist.] 2020,

pet. ref’d).

The jury is the sole judge of the credibility of witnesses and the weight to give

their testimony, and our role on appeal is simply to ensure that the evidence

5 reasonably supports the jury’s verdict. Montgomery v. State, 369 S.W.3d 188, 192

(Tex. Crim. App. 2012). The jury may reasonably infer facts from the evidence

presented, credit the witnesses it chooses, disbelieve any or all of the evidence or

testimony proffered, and weigh the evidence as it sees fit. Galvan-Cerna v. State,

509 S.W.3d 398, 403 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Canfield

v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)).

Inconsistencies in the evidence are resolved in favor of the verdict. See Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

“Circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor, and circumstantial evidence alone can be sufficient to establish

guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Each fact need

not point directly and independently to guilt if the cumulative force of all

incriminating circumstances is sufficient to support the conviction.” Nisbett v. State,

552 S.W.3d 244, 262 (Tex. Crim. App. 2018). “On appeal, the same standard of

review is used for both circumstantial and direct evidence cases.” Hooper, 214

S.W.3d at 13.

6 B. Applicable Law

Penal Code Section 42.07 provides that “[a] person commits an offense if,

with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person

. . . threatens, in a manner reasonably likely to alarm the person receiving the threat,

to inflict bodily injury on the person or to commit a felony against the person, a

member of the person’s family or household, or the person’s property.” TEX. PENAL

CODE § 42.07(a)(2). With exceptions not relevant here, an offense under this section

is a Class B misdemeanor. See id. § 42.07(c).

C. Analysis

Appellant contends that the evidence is legally insufficient to support her

conviction of harassment because there is no evidence that her remark was a threat

and that it was directed at San Agustine.

Whether a particular statement may properly be considered a threat is

governed by an objective standard—that is, whether a reasonable person would

foresee that the statement would be interpreted as a serious expression of intent to

harm or assault by those to whom the maker made the statement. Manemann v. State,

878 S.W.2d 334, 337 (Tex. App.—Austin 1994, pet. ref’d); see also White v. State,

Nos. 02-23-00039-CR, 02-23-00040-CR, 2023 WL 6889985, at *4 (Tex. App.—

Fort Worth Oct. 19, 2023, no pet.) (mem. op., not designated for publication). The

test is whether a threat would justify apprehension by an ordinary hearer, not whether

7 the threat communicated caused a particular recipient to actually become

apprehensive. See Manemann, 878 S.W.2d at 337; see also White, 2023 WL

6889985, at *4. The ability to carry out the threat in this type of offense is not an

essential element of the offense. Manemann, 878 S.W.2d at 337. Nor is it necessary

that the party threatened be present when the threat was made. Whitehead v. State,

273 S.W.3d 285, 286 n.2 (Tex. Crim. App. 2008); see also Raybon v. State, No. 02-

12-00071-CR, 2013 WL 4129126, at *4 (Tex. App.—Fort Worth Aug. 15, 2013,

pet. ref’d) (mem. op., not designated for publication)). Alleged threats should be

considered in light of their entire factual context, including the surrounding events

and the reaction of the listeners. Manemann, 878 S.W.2d at 337 (citations omitted).

Here, the video clip of appellant’s statement was admitted into evidence. San

Agustine testified that the clip showed appellant standing outside their front door

and stating, “Little Bitch, you think this is a game? I’ll kill you behind my son.”

Jones testified that the doorbell video captured appellant saying, “Little Bitch, I’ll

kill you over my son. You think this shit is a joke.” San Agustine and Jones stated

that appellant pounded on their front door and donkey-kicked it, and that appellant

appeared upset. The jury also heard testimony that San Agustine and appellant had

an argument over text following one of San Agustine’s Facebook posts several

weeks before the incident. Jones testified that he and appellant later had a heated

phone call about the text exchange and that appellant became aggressive. San

8 Agustine testified that she felt harassed, annoyed, alarmed, and tormented by

appellant’s statement. Jones testified that San Agustine was terrified after hearing

appellant’s statement because she did not know appellant and feared for her

daughter’s safety. The evidence was legally sufficient to support the jury’s finding

that appellant’s statement was a threat. See TEX. PENAL CODE § 42.07(a)(2); Jackson,

443 U.S. at 318–19.1

Appellant also argues that there was no evidence showing that her statement

was directed at anyone, much less San Agustine. In support of her argument,

appellant cites Wright v. State, No. 12-07-00045-CR, 12-07-00046-CR, 12-07-

00047-CR, 2008 WL 5006175, at *3 (Tex. App.—Tyler Nov. 26, 2008, no pet.)

(mem. op., not designated for publication).2

In Wright, the three complainants (a mother, father, and son) began receiving

letters and notes from the defendant, after two of his horses died, that they perceived

1 Appellant asserts that she did not know she was making a remark that could be considered a threat because she was not aware that she was being recorded. That appellant was unaware of being recorded has no bearing on whether a reasonable person would construe appellant’s statements as a threat. 2 We note that while counsel may cite unpublished opinions, appellate courts may not treat them as binding or persuasive opinion. See TEX. R. APP. P. 47.7(a); Ferguson v. State, 335 S.W.3d 676, 688 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (Frost J., concurring) (“[U]npublished cases are not part of Texas jurisprudence and cannot be either binding or persuasive authority.”). Because Wright is an unpublished opinion, it has no precedential value.

9 as threats. See id. at *1. The defendant was charged with three counts of harassment,

and the jury found him guilty as charged. See id.

On appeal, the defendant argued, in part, that there was no evidence that he

had ever communicated with the son by letter. See id. at *2. The court of appeals

agreed, concluding that the State’s argument that it proved the son received the threat

was unsupported by the record. See id. at *3. It noted that the son did not testify he

received cards and letters from the defendant, and the father’s testimony that “[w]e

received several [letters]” and “that’s when we started receiving the cards and

letters,” with no context behind the use of “we,” was insufficient to prove that the

son had received the letter alleged to be a threat against him. See id.

Appellant’s reliance on Wright is unavailing. Here, the video clip admitted

into evidence showed that appellant made the threatening statement at the front door

of Jones and San Agustine’s house. Jones testified that appellant did not believe that

San Agustine was good enough for him and that she was cheating on him. San

Agustine testified that she knew appellant had directed the threatening statement

toward her because she was the only female who lived in the home other than a child.

Appellant also used the word “bitch” during the incident. Appellant argues that the

word “bitch” is used colloquially to refer to males, and the evidence showed that she

thought she heard a male voice in the house. Thus, she reasons, it is equally possible

that her comment was directed to the person she believed was in the house. As the

10 sole judge of a witness’s credibility and the weight to be given such testimony, the

jury was entitled to believe San Agustine’s and Jones’s testimony. See Montgomery,

369 S.W.3d at 192; Galvan-Cerna, 509 S.W.3d at 403. Based on this record, the jury

could have reasonably inferred that appellant directed her threatening statement at

San Agustine.

Viewing the evidence in the light most favorable to the jury’s verdict and

considering the combined and cumulative force of all the admitted evidence and

reasonable inferences drawn, we conclude that a rational trier of fact could have

found the essential elements of the charged offense beyond a reasonable doubt. See

Nisbett, 552 S.W.3d at 262. The evidence is sufficient to support appellant’s

conviction for the offense of harassment. We overrule appellant’s point of error.

Conclusion

We affirm the trial court’s judgment.

Kristin M. Guiney Justice

Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

Do not publish. TEX. R. APP. P. 47.2(b).