ACCEPTED 07-16-00455-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/23/2017 7:59 PM Vivian Long, Clerk
Case No. 07-16-00455-CR
IN THE COURT OF APPEALS FOR THE FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS SEVENTH DISTRICT OF TEXAS 6/23/2017 7:59:42 PM AMARILLO, TEXAS VIVIAN LONG CLERK
________________________________________________________________
KALISCIA ELONDA MILLSAP
Appellant
VS.
THE STATE OF TEXAS
Appellee
________________________________________________________________
On Appeal from Potter County Court at Law #1 Potter County, Texas in Cause No. 144,188 Honorable W.F. “Corky” Roberts, Judge Presiding ______________________________________________________________
APPELLEE’S BRIEF
__________________________________________________________________
POTTER COUNTY ATTORNEY’S OFFICE ATTORNEYS FOR APPELLEE, THE STATE OF TEXAS
/S/C. Wade Overstreet C. Wade Overstreet 500 S. Fillmore, Room 301 Amarillo, Texas 79101 Tel. No. 806.379.2255 Fax No. 806.379.2215 Email: wadeoverstreet@co.potter.tx.us State Bar of Texas ID No. 24029758 Certificate
By my signature below, I certify:
1. as required by Tex. R. App. P. 9.4(i)(3), that this petition contains 6,453
total words, as determined by the word count on Relator’s computer
program; and,
2. that on today’s date, June 23, 2017, a copy of this petition has been
served: (a) in person on Appellant by e-mail at
lawofficesofdarrellcarey@gmail.com, through the Court’s electronic
filing manager system, as required by Tex. R. App. P. 9.5(e).
/S/C. Wade Overstreet C. Wade Overstreet
Millsap v. The State of Texas Appellee’s Brief 2 Table of Contents
Contents Certificate ...................................................................................................................2 Table of Contents .......................................................................................................3 Index of Authorities ...................................................................................................3 Statement Regarding Oral Argument ........................................................................4 Statement of Facts ......................................................................................................5 Summary of the Argument.......................................................................................12 Argument..................................................................................................................12 Sufficiency of the Evidence Standard of Review .................................................12 Hypothetically Correct Jury Charge .....................................................................16 Principles of Review Applicable to Terroristic Threat .........................................19 Issue No. One: Appellant’s Threats Not Conditional; if Conditional, Sufficient 22 Issue No. Two: Appellant’s Threats were Imminent and Sufficient ....................24 Conclusion ............................................................................................................27 Prayer .......................................................................................................................28
Index of Authorities Cases
Campbell v. State, 139 S.W.3d 676, 683 (Tex. App.—Amarillo 2003, pet ref’d) 13, 14 Cook v. State, 940 S.W.2d 344, 348-49 (Tex. App.—Amarillo, pet. ref’d) .... passim Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011) ................................14 Gillette v. State, 444 S.W.3d 713, 723 (Tex. App.—Corpus Christi 2014, no pet.) .................................................................................................................. 16, 22, 25
Millsap v. The State of Texas Appellee’s Brief 3 Heinert v. Wichita Falls Hous. Auth., 441 S.W.3d 810, 818 (Tex. Amarillo 2014, no pet) ........................................................................................................... passim Henzler v. State, 07-12-00523-CR, 2014 WL 5337833, at *4 (Tex. App.— Amarillo, Oct. 15, 2014, no pet.) (not designated for publication) ............... 13, 15 In re A.C., 48 S.W.3d 899, 904 (Tex. App.—Fort Worth 2001, pet. denied) .. 19, 20 Jackson v. Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L.Ed.2d 560 (1979) ...........13 Jones v. State, 07-16-00345-CR, 2017 WL 1908586, at *4 (Tex. App.—Amarillo May 8, 2017, no pet. h.) (not designated for publication.) ............................ 20, 24 Little v. State, 246 S.W.3d 391, 398 (Tex. App.—Amarillo 2008, no pet.) ............14 Ramos v. State, 407 S.W.3d 265, 268-71 (Tex. Crim. App. 2013) .........................18 Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015) ..........................13 Robinson, 466 S.W.3d at 172...................................................................................14 Shepard v. State, 244 S.W.3d 421, 423 (Tex. App.—Amarillo 2007, pet. ref’d) ...15 Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997) .........................18 Taylor v. State, 450 S.W.3d 528, 535 (Tex. Crim. App. 2014) ...............................13 Walker v. State, 327 S.W.3d 790, 794-95 (Tex. App.—Fort Worth 2010, no pet.) ........................................................................................................................ 18, 20 Williams v. State, 194 S.W.3d 568, 575 (Tex. App-Houston [14th Dist.] 2006, aff’d on other grounds, 252 S.W.3d 353 (Tex. Crim. App. 2008) ................... 20, 21, 22 Williams v. State, 432 S.W.3d 450, 455-56 (Tex. App.—San Antonio 2014, pet. ref’d) .............................................................................................................. 20, 21 Statutes
Tex. Penal Code Ann. §1.07(41)(A) (West 2011) ...................................................17 Tex. Penal Code Ann. §1.07(46) (West 2011) ........................................................17 Tex. Penal Code Ann. §22.07 (West 2011) .......................................... 15, 17, 23, 25 Tex. Penal Code Ann. §6.03(a) (West 2011) ...........................................................16
Statement Regarding Oral Argument
Appellee will join Appellant in waiving oral argument.
Millsap v. The State of Texas Appellee’s Brief 4 Statement of Facts
With a few exceptions, the State is generally satisfied with substance
Appellant’s statement of facts; however, because Appellant’s brief lacks record
citation, Appellee offers the following as its statement of facts.
Kaliscia Elonda Millsap was an employee of the Community Development
Department (CDD) of the City of Amarillo from approximately September 2015
through February 2016, when she was “let go” or “fired.” (RR 8-9). Around 11:00
a.m. on February 22 or 23, City of Amarillo CDD employee, Amy Dixon, received
a call from Millsap. (RR 9). Millsap agrees that she spoke to Dixon “by
telephone.” (RR 41, 53-54). According to Dixon, Millsap was “upset.” (RR 9).
She and Dixon discussed “how the coworkers in the office had spoke bad about
her.” (RR 11). Millsap related that two CDD “caseworkers were talking bad about
the job that Ms. Millsap had performed.” (RR 13). Millsap identified those
caseworkers as “Angelina Martinez and Vanessa Morales.” (RR 13). Millsap said
Martinez had “spoke bad” about her. (RR 13). Martinez had told a CDD client that
Millsap had approved the client(s) for housing, but “when they came to the top of
the list, the two caseworkers had told them they didn’t qualify.” (RR 13-14).
Dixon’s reaction upon hearing this information from Millsap was, “oh, wow.” (RR
14). Millsap may have misheard Dixon’s comment. (RR 14).
Millsap v. The State of Texas Appellee’s Brief 5 Upon hearing Dixon’s words, Millsap “got very loud and said, oh, well? Oh,
well?” (RR 14). Dixon described Millsap as being “[v]ery angry.” (RR 14), (a
proposition with which Millsap agreed at trial, stating, “yes, it did,” when asked if
multiple reports of people talking badly about her made her angry. (RR54-55)).
Millsap then said, “you bitches need to realize I’m not from Texas. I’m from
California, and I carry a gun at all times.” (RR 14). Millsap denied having
mentioned anything about a weapon during her phone conversation with Dixon.
(RR 54).1 Dixon ended the phone call by hanging up on Millsap. (RR 17). At that
time, Dixon was aware that Millsap surfed the internet looking at firearms, because
she had observed Millsap do so. (RR 17). Dixon also new that Millsap would
sometimes “go out . . . to the river and shoot guns.” (RR 24). Millsap later
acknowledged “she told [Dixon] that she carried a gun,” (RR 41), a fact which
Millsap corroborated. (RR 54).
Prior to this phone call, Dixon “had no problems with” Millsap. (RR 20),
yet, Dixon understood herself to be included in Millsap’s “you bitch[es]”
comment, (RR 20-21). Millsap’s statements made Dixon “feel nervous, and . . .
scared.” (RR 18). Millsap was “angry, because she had misheard what I said.” (RR
18). Millsap later acknowledged “she was upset because people were talking about
her at work.” (RR 41). Millsap denied being upset with Dixon, but admitted she
1 However, in her brief, Appellant appears to concede that she did make this statement. (Appellant’s Brief pg. 2, ¶ 1).
Millsap v. The State of Texas Appellee’s Brief 6 “was upset with the whole issue of the client approaching me.” (RR 54).
Describing the situation surrounding her dismissal, Millsap said “it was fucked
up.” (RR 42-43). When asked if she felt personally threatened by Millsap’s
statements, Dixon stated, “[a]t that point I felt that she was very angry at me, yes.”
(RR 18). On cross examination defense counsel attempted to have Dixon minimize
her reaction to Millsap’s statements, but Dixon refused to abandon her position,
stating she “felt it was a threat in the beginning.” (RR 21).
On March 1st, 2016, between 4:00 and 5:00 o’clock, Millsap and Michelle
Martinez, a program coordinator with the City of Amarillo’s CDD Office, had an
encounter at the Toot-n-Totum convenient store at 8th and Buchanan. (RR 27).
Millsap agreed that this encounter occurred. (RR 39-40). Millsap had been at city
hall, picking up her last paycheck.” (RR40). Martinez was leaving the store and
returning to CDD when she heard somebody say, “hey, why you looking so mad
for?” (RR 27). When Martinez looked up, she “recognized Kaliscia.” (RR 27).
Martinez then walked over to Millsap, who was in the driver’s seat of her vehicle.
(RR 27-28).
Martinez asked Millsap how she was doing, in response to which Millsap
said, “she thought she was doing okay.” (RR 28). Martinez then asked Millsap if
“she had left us to get another job.” (RR 28). In reply, Millsap stated “she was
dismissed from the Community Development Department.” (RR 28). Until that
Millsap v. The State of Texas Appellee’s Brief 7 time, Martinez did not know that Millsap had been dismissed. (RR28). Up to that
point, Martinez described her relationship with Millsap as “good.” (RR 28).
During the conversation, Millsap expressed that “her dismissal wasn’t handled
properly, because she felt like she was a really good worker, hard worker.” (RR
28). Continuing, Millsap stated, “they,” an apparent reference to her former
employer, “[s]aid she wasn’t following the rules according to our administration.”
(RR 29). Millsap then said she “wasn’t a clock-watcher like [their] boss.” (RR 29).
Millsap’s boss was James Allen, (RR 29), with whom Millsap “had some issues . .
. reference to her dismissal.” (RR 34).
Martinez testified that Millsap said “[s]he knew a lot of people in this
town—a lot of people on Section 8—clients on Section 8 housing that had
mentioned to her that there was some bad-mouthing at a meeting that was held—an
annual meeting that was held with the clients and the caseworkers.”2 (RR 30).
Millsap corroborated that “she was upset that people were bad-mouthing her and
were saying that they were having to do her work for her.” (RR 40). Specifically,
Millsap said she was being bad-mouthed by “Angelina Martinez . . . her friend . . .
and that geeky girl with the glasses,” whom Martinez understood to be “Addie
Traider.” (RR 30).
2 “Section 8 housing is rental assistance for low to moderate income families who can’t afford to pay most of their rent or all of their rent.” (RR 31).
Millsap v. The State of Texas Appellee’s Brief 8 Millsap next said, “what these . . . mother fuckers don’t realize is that I carry
a gun.”3 (RR 30). Then Millsap made another statement, saying “if she felt
threatened or anything like that she would fucking shoot them.” 4 (RR 30). Millsap
then “grabbed her makeup bag from the floorboard” and “pulled it up.” (RR 30).
In that bag was “a silver square - - a square shaped gun,” (RR 30), which Millsap
“pulled . . . out.” (RR 30). Millsap showed it to Martinez, “then she put it back on
the floorboard.” (RR 30-31). At that point in the conversation, Martinez told
Millsap that she “had to go.” She told Millsap, “bye.” Millsap’s daughter was in
the car with her when this happened. (RR 31).
Martinez reaction to Millsap’s statements was shock. (RR 32). She didn’t
feel threatened personally, but she “was scared for Angelina, Vanessa Morales, and
Addie Traider,” who were other employees of the CDD office. (RR 32). Martinez
walked back to the CDD office and “told the [CDD] administrator, James Allen, of
the conversation because [she] felt it was important for him to know.” (RR 32).
Martinez next shared her story with other members of the CDD staff. (RR 32).
Before long, “the entire office got wind of it” and “they all collectively said, hey,
you have got to call the police because this is - - this is a threat towards
employees.” (RR 32). Martinez testified that “other employees felt really scared,
3 In her brief, Appellant appears to concede that she did make this statement. (Appellant’s Brief pg. 2, ¶ 2). 4 Appellant also appears to concede she made this statement. (Appellant’s Brief. pg. 2, ¶ 2).
Millsap v. The State of Texas Appellee’s Brief 9 especially Angelina, Vanessa, and Addie.” (RR 33). Defense counsel attempted to
get Martinez to concede that it was not “until this thing kind of caught fire at the
office . . . that you felt like there was a threat there,” (RR 36), but Martinez
rejected that assertion, stating, “No. I immediately went to my supervisor, because
I felt that he needed to deal with it.” (RR 36).
At trial, Millsap acknowledged that Martinez description of their
conversation at Toot-n-Totum was mostly correct. (RR 56). She acknowledged that
she expressed frustration about Mr. James Allen and “about people talking poorly
about [her].” (RR 56). Millsap denied making any comment to Martinez about
shooting anybody, and she denied showing Martinez a gun; however, Millsap
acknowledged that during her conversation with Martinez, (RR 57), she did have a
gun in the car, in a makeup bag, and moved it from one place to another. (RR 57).
If anything, Millsap contends Martinez must have just seen the butt of the gun,
which may have been sticking out of her makeup bag. (RR 58, 63).
A couple of days after Millsap’s encounter with Martinez at Toot-n-Totum,
Millsap was interviewed by Amarillo Police Sargent, Curt Gable, after she was
placed under arrest. (RR 38-39). During that interview Millsap told Sgt. Gable:
“she had two guns, two pistols,” was in the process of obtaining her hand gun
license, and “carried a gun in her car.” (RR42). Indeed, Millsap acknowledge that
“she thought there was a Ruger .22” in her car the day she talked to Martinez;
Millsap v. The State of Texas Appellee’s Brief 10 however, she contended that it was black. (RR 42-43). At trial, Millsap again
corroborated the presence of the Ruger .22 at the time of her conversation with
Martinez. (RR 63). In addition to the Ruger, Millsap also told Sgt. Gable she
owned a Derringer. (RR 43). Sgt. Gable related Martinez’s story about what had
happened at the Toot-n-Totum to Millsap, and asked Millsap why Martinez would
lie about it, Millsap stated, “there shouldn’t be a reason she would lie about it.”
(RR 44).
Despite denying she spoke about guns with either Dixon, on the phone, (RR
60) or Martinez, at Toot-n-Totum, (RR 61), under direct examination by defense
counsel, Millsap agreed she had talked about guns, having guns, owning guns, or
using a weapon for protection, but “it was in reference to using it for protection
only.” (RR 59). Additionally, defense counsel asked Millsap “if a statement were
make about, ‘if I feel threatened by anybody, I will protect . . . myself,’ would it
have been in that context only?” (RR 59). Millsap, in response thereto replied,
“that context only.” (RR 59). Yet, Millsap twice denied having made such a
conditional statement. She first denied it under direct examination by defense
counsel (RR 56-57), and she denied it a second time when the Prosecutor asked
Millsap if she had made such a statement. Her response was, “I never said that.”
(RR 62). Additionally, Millsap testified that during their phone conversation, she
did not feel like Amy Dixon was threatening her, (RR 55), and she testified
Millsap v. The State of Texas Appellee’s Brief 11 generally that she did not “feel threatened by anybody at the city.” (RR 58).
Millsap also testified that she “used to” have a temper. (RR 65). Millsap explained
that when she was previously charged with assault with a deadly weapon in
California, in which she stabbed her ex-boyfriend, a charge which was later
reduced to a misdemeanor, it was actually a case of self-defense. (RR 66-67).
Summary of the Argument
Appellant’s points are wrong, and disproven by the facts and relevant law.
Appellant’s first point asserts that the “threat,” as if there were only one, was
conditional, and therefore insufficient. That is simply incorrect. Only one of three
threating statements is arguably conditional, and even if the Court concludes the
third threat is conditional, it and the other threats are all legally sufficient to sustain
the trial court’s judgment. As to Appellant’s second point, that Appellant’s threat
(or threats) was/were not immediate, Appellant entirely misapprehends the law.
That law does not require the threats to be immediate, but imminent. Under
relevant law, Appellant’s threats meet that standard.
Argument
Sufficiency of the Evidence Standard of Review
Millsap v. The State of Texas Appellee’s Brief 12 Appellant presents the Court two issues. In her first issue, Appellant argues
the trial court committed error, because Appellant’s threat, if any, was conditional.
(Appellant’s Brief pg. 1). In her second issue, Appellant argues that the threat, if
any, was not immediate. (Id.). With both issues, Appellant essentially argues that
the evidence is insufficient to support the trial court’s judgment. (Appellant’s Brief
pgs. 3-4).
“The standard a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense the State is
required to prove beyond a reasonable doubt is the standard set forth in Jackson v.
Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L.Ed.2d 560 (1979).” Henzler v. State,
07-12-00523-CR, 2014 WL 5337833, at *4 (Tex. App.—Amarillo, Oct. 15, 2014,
no pet.) (not designated for publication) (citing Brooks v. State, 323 S.W.3d 893,
912 (Tex.Crim.App.2010)). “Under that standard, in assessing the sufficiency of
the evidence to support a criminal conviction [the reviewing court] considers all
the evidence in the light most favorable to the verdict and determines whether,
based on that evidence and reasonable inferences to be drawn therefrom, a rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (citing Jackson, 443 U.S. at 319, Brooks, 323 S.W.3d at
912).
Millsap v. The State of Texas Appellee’s Brief 13 Sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Id. (citing Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard applies equally to bench
trials. Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015); Taylor v.
State, 450 S.W.3d 528, 535 (Tex. Crim. App. 2014); Campbell v. State, 139
S.W.3d 676, 683 (Tex. App.—Amarillo 2003, pet ref’d); (citing Golihar v. State,
46 S.W.3d 243 (Tex. Crim. App. 2001). “A conviction that is not rationally based
on the evidence violates the Due Process Clause, whether a judge or jury sits as the
fact finder in the case.” Robinson, 466 S.W.3d at 172.
A hypothetically correct jury charge is one “that accurately sets out the law,
is authorized by the indictment, does not unnecessarily increase the State’s burden
of proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Geick v. State,
349 S.W.3d 542, 545 (Tex. Crim. App. 2011); Campbell, 139 S.W.3d at 683
(citing Malik, 953 S.W.2d 239-40). “When a statute lays out several alternative
methods of committing an offense, and the indictment alleges only one of those
methods, ‘the law as authorized by the indictment’ is limited to the method
specified in the indictment.” Id. (citing Golihar, 46 S.W.3d 254-255). “[A]bsent a
notice-based motion to quash, a charging instrument need allege only the statutory
Millsap v. The State of Texas Appellee’s Brief 14 elements of the offense.” Id. (citing Ex Parte Luna, 784 S.W.2d 369, 371 (Tex.
Crim. App. 1990) (op. on rehearing).
When conducting a sufficiency of the evidence review, the reviewing court
“must give deference to the responsibility of the fact finder to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Little v. State, 246 S.W.3d 391, 398 (Tex.
App.—Amarillo 2008, no pet.) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). The reviewing court does not resolve any conflict of fact,
weigh any evidence, or evaluate the credibility of any witness, as those are
functions for the trier of fact. Id. (citing Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999)).
“In a bench trial, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony.” Shepard v. State, 244
S.W.3d 421, 423 (Tex. App.—Amarillo 2007, pet. ref’d) (citing Kmiec v. State, 91
S.W.3d 820, 822 (Tex. App.—Houston [1st Dist] 2002, pet. ref’d). A reviewing
appellate court “may not sit as a thirteenth juror, but must uphold the . . . verdict
unless it is irrational or unsupported by more than a ‘mere modicum’ of evidence.”
Id. (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
Finally, an appellate court reviewing a sufficiency of the evidence point
“must evaluate all of the evidence in the record, both direct and circumstantial,
Millsap v. The State of Texas Appellee’s Brief 15 whether admissible or inadmissible.” Henzler, 07-12-00523-CR, 2014 WL
5337833, at *4 (citing Dewberry, 4 S.W.3d at 740).
Hypothetically Correct Jury Charge
By a three count information,5 each count naming a different victim
(Angelina Martinez, in Count One; Amy Dixon, in Count Two; and, Michelle
Martinez, in Count Three), the State charged Appellant with threating “to commit
an offense involving violence to a person, MURDER OR AGGRAVATE
ASSAULT WITH A DEADLY WEAPON, with intent to place [each of the three
victims] in fear of imminent serious bodily injury.” (CR 7). The State further
alleged each of the victims was a public servant, because all were employees of
“AMARILLO COMMUNITY DEVELOPMENT.” (Id.). The substance of the
State’s information describes the Penal Code offense of, Terroristic Threat. Tex.
Penal Code Ann. §22.07 (West 2011).
Terroristic Threat is a “conduct-oriented offense,” Gillette v. State, 444
S.W.3d 713, 733 (Tex. App.—Corpus Christi 2014, no pet.), proscribing “six
separate terroristic objectives.” Id. at 729; Tex. Penal Code Ann. §22.07. In this
case, as to all three counts, the State’s charging instrument specifically alleged
Appellant’s commission of an offense under Tex. Penal Code §22.07(a)(2), which
5 Appellee agrees with Appellant that Count Three of the State’s information was waived.
Millsap v. The State of Texas Appellee’s Brief 16 required that Appellant threatened “to commit any offense involving violence to
any person with intent to . . . place any person in fear of serious bodily injury.”
Tex. Penal Code Ann. §22.07(a)(2) (West 2011).
“Intent,” as used in the State’s information, is defined by Texas Penal Code
§6.03, describing that “[a] person acts intentionally, or with intent, with respect to
the nature of his conduct or to a result of his conduct when it is his conscious
objective or desire to engage in the conduct . . .” Tex. Penal Code Ann. §6.03(a)
(West 2011).
In connection with the offense of Terroristic Threat, this Court has defined
“threat” to mean “a declaration of intention or determination to inflict punishment,
loss or pain on another, or to injure another by the commission of an unlawful act.”
Heinert v. Wichita Falls Hous. Auth., 441 S.W.3d 810, 818 (Tex. Amarillo 2014,
no pet) (citing Cook v. State, 940 S.W.2d 344, 347 (Tex. App.—Amarill0 1997,
pet. ref’d)). “Put another way, a ‘threat’ is a ‘communicated intent to inflict harm
or loss on another or on another’s property.’” Id.
Regarding the statutory term “imminent,” as used in connection with the
type of Terroristic Threat described by Tex. Penal Code §22.07(a)(2), this Court
has described that term as meaning, “near at hand; mediate rather than immediate;
close rather than touching; impending; on the point of happening; threatening;
Millsap v. The State of Texas Appellee’s Brief 17 menacing; perilous.” Heinert, 441 S.W.3d at 818 (original quotation marks
omitted) (citing Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)).
“Serious bodily injury,” another statutory term employed in the §22.07
(a)(2) subpart of the Terroristic Threat statute, means “bodily injury that creates a
substantial risk of death or that causes death, serious permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or organ.” Tex.
Penal Code Ann. §1.07(46) (West 2011).
“Public Servant,” as used in Tex. Penal Code §22.07(c)(2), is defined in
relevant part as, “a person elected, selected, appointed, employed, or otherwise
designated as . . . an officer, employee, or agent of government.” Tex. Penal Code
Ann. §1.07(41)(A) (West 2011).
Appellee contends that the State’s information in this case, together with the
above defined terms, substantially constitutes the theoretically correct jury charge
by which the Court will assess the sufficiency of the evidence in this case.6
6 As to Count Two, Appellee acknowledges that it alleged “the 1st day of March, 2016,” as the date of offense in which Amy Dixon was the named victim, (CR 7) and that record evidence supports that the offense may have been committed on February 22nd or 23rd, 2016, as well as on March 1st; however, the information also preceded the alleged date of offense with the words, “On or about.” (Id.). The State need not allege a specific date in its charging instrument, and moreover, “on or about” language in a charging instrument “allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior t the presentment of the indictment and within the statutory limitations period.” Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997). Appellee requests the Court to take judicial notice of the date of offense alleged in the information, as well as the date it was filed with the clerk (CR 7). Further, Appellee would ask the Court to take judicial notice that the alleged date of offense was within the two year limitations period applicable to Class A and B misdemeanor offenses under Tex.
Millsap v. The State of Texas Appellee’s Brief 18 Principles of Review Applicable to Terroristic Threat
“In order to commit this offense of terroristic threat under Subsection (2),
‘the accused must have the specific intent to place any person in fear of imminent
serious bodily injury.’” Heinert, 441 S.W.3d at 818 (citing Walker v. State, 327
S.W.3d 790, 794 (Tex. App.—Fort Worth 2010, no pet.). “Intent can be inferred
from the acts, words, and conduct of the accused.” Id. For the offense to be
complete, “it is not necessary that the victim or anyone else was actually placed in
fear of imminent serious bodily injury.” Id. (citing Dues v. State, 634 S.W.2d 304,
305-06 (Tex. Crim. App. [Panel Op.] 1982)). “It is immaterial to the offense
whether the accused had the capability or the intention to carry out his threat.”
Heinert, 441 S.W.3d 818 (citing Dues, 634 S.W.2d at 305-06).
Contrary to Appellant’s suggestion that, “[t]he focus should on the inquiry
should be whether the victim, was afraid of imminent serious bodily injury at the
time of the offense,” citing Williams v. State, (Appellant’s Brief pg. 3), “[t]he
offense is complete if the accused, by his threat, sought as a desired reaction to
place a person in fear of imminent serious bodily injury.” Heinert at 818, (citing
Dues at 306).
Code of Criminal Procedure Art. 12.02. A hypothetically correct jury charge need not incorporate allegations that give rise to an immaterial variance. Ramos v. State, 407 S.W.3d 265, 268-71 (Tex. Crim. App. 2013).
Millsap v. The State of Texas Appellee’s Brief 19 When examining the element of imminence, it is appropriate for the
reviewing court to consider the impact of the actor’s statements on the victim. In re
A.C., 48 S.W.3d 899, 904 (Tex. App.—Fort Worth 2001, pet. denied) (citing Stults
v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000, per. Ref’d)).
Indeed, the Williams v. State language Appellant quotes supports this principle,
although it has nothing to do with the conditional nature of a Terroristic Threat. It
was in connection with the 14th Court’s examination of the “imminence” element
of the offense in which the court stated, “we must look to the proximity of the
threatened harm to the condition,” Williams v. State, 194 S.W.3d 568, 575 (Tex.
App-Houston [14th Dist.] 2006, aff’d on other grounds, 252 S.W.3d 353 (Tex.
Crim. App. 2008) (citing Cook v. State, 940 S.W.2d 344, 348 (Tex. App.—
Amarillo 1997, pet. ref’d), and then notes, “the focus of the inquiry should be on
whether the victim was afraid of imminent serious bodily injury at the time of the
offense.” Williams, 194 S.W.3d at 575 (citing Stults). “[T]hreatening to commit an
act could cause fear of imminent serious bodily injury if, in the mind of the victim,
the commission of the act was ‘near at hand’ or ‘hanging threateningly over one’s
head.’” Jones v. State, 07-16-00345-CR, 2017 WL 1908586, at *4 (Tex. App.—
Amarillo May 8, 2017, no pet. h.) (not designated for publication.).
While a court cannot determine intent to commit the offense of Terroristic
Threat “merely from what the victim thought at the time of the offense,” Heinert,
Millsap v. The State of Texas Appellee’s Brief 20 441 S.W.3d 818 (citing Dues, 634 S.W.2d at 305-06), it may infer intent from the
perception of those hearing or receiving the threat. Walker v. State, 327 S.W.3d
790, 794-95 (Tex. App.—Fort Worth 2010, no pet.); In re A.C., S.W.3d 899, 904
(Tex. App.—Fort Worth 2001, pet. denied) (stating, “the reaction of the victim—
regardless of whether the threat was real or was carried out—is some evidence of
the defendant’s intent.”); Williams v. State, 432 S.W.3d 450, 455-56 (Tex. App.—
San Antonio 2014, pet. ref’d) (stating, “Because our analysis considers ‘the desired
and sought after reaction of the listener 9or of the complainant) regardless of
whether the threat is real or weather the threat is carried out, [as constituting] some
evidence of the intent of the protagonist,’ [the complainant’s] actions are also
relevant.”) (parentheses and brackets in original).
Conditioning threat of harm on occurrence or nonoccurrence of future event
does not necessarily mean that harmful consequences threatened are not imminent
and does not prevent threats from amounting to Terroristic Threat. Cook v. State,
940 S.W.2d 344, 348-49 (Tex. App.—Amarillo, pet. ref’d); In re A.C.48 S.W.3d at
904 (citing Cook); Williams I, 194 S.W.3d at 575 (citing Cook). “Once the
defendant makes a threat to commit a violent offense seeking the ‘desired reaction
to place a person in fear of imminent serious bodily injury,’ the offense of
terroristic threat is completed.” Williams II, 432 S.W.3d at 454.
Millsap v. The State of Texas Appellee’s Brief 21 Issue No. One: Appellant’s Threats Not Conditional; if Conditional, Sufficient
Appellant made three separate threatening statements. Appellant made her
first threatening statement to Amy Dixon on February 22nd or 23rd, 2016, stating,
“you bitches need to realize I’m not from Texas. I’m from California, and I carry a
gun at all times.” (RR 14). As is apparent from the text of this statement, nothing
about it is conditional. Appellant’s second threat was communicated to Michelle
Martinez at the Toot-n-Totum on March 1st, 2016, (RR 27). The threat consisted
of these words: “what these . . . mother fuckers don’t realize is that I carry a gun.”
(RR 30). The context strongly suggests that Appellant was contemplating Angelina
Martinez, among others, when she made that statement. Id. Again, nothing in that
statement suggests it is conditional. Appellant’s third threatening statement was
also made to Michele Martinez during the encounter at the Toot-n-Totum. The
third statement consisted of the following words: “if [Appellant] felt threatened or
anything like that she would fucking shoot them.” (RR 30). Martinez testified
Millsap included Angelina Martinez in her reference to “them.” (RR 30). This
statement, arguably, is conditional, but to reiterate, conditioning threat of harm on
occurrence or nonoccurrence of future event does not necessarily mean that
harmful consequences threatened are not imminent and does not prevent threats
from amounting to Terroristic Threat. Cook, 940 S.W.2d at 348-49.
Millsap v. The State of Texas Appellee’s Brief 22 The court’s examination is on the proximity of the threatened harm to the
condition,” Williams, 194 S.W.3d 575. “[T]he focus of the inquiry should be on
whether the victim was afraid of imminent serious bodily injury at the time of the
offense.” Id. Appellant’s stated condition was, feeling “threatened or anything like
that.” Black’s Law Dictionary defines threat as “a communicated intent to inflict
harm or loss on another or another’s property.” Gillette v. State, 444 S.W.3d 713,
723 (Tex. App.—Corpus Christi 2014, no pet.) (citing BLACK’S LAW
DICTIONARY 1618 (9TH ed. 2009)). The bounders of “or anything like” are
broad. Many things could be included in that statement, including attacks on
Appellant’s reputation. As a consequence, the court have reasonably concluded,
as the prosecutor argued, that Appellant perceived people bad mouthing her
performance as an employee of CDD as a threat, inflicting harm or loss on her
reputation within the community. Given that the harm had already occurred, a
harm she attributed to three specific individuals, including Angelina Martinez, the
proximity of the threatened harm, “fucking shooting them,” was very close to the
condition, feeling “threatened, or anything like that.” Again, here it is important to
recall that Michelle Martinez testified that Angelina Martinez “felt really scared,”
upon learning of Appellant’s statement and actions on March 1st, 2016. (RR 33).
Based on the content of Appellant’s words and Angelina Martinez reaction, it was
reasonable for the court to conclude that Angelina Martinez was afraid of
Millsap v. The State of Texas Appellee’s Brief 23 imminent serious bodily injury. Appellants’ statements were not conditional, and if
one was, all were sufficient to support the court’s judgment.
Issue No. Two: Appellant’s Threats were Imminent and Sufficient
Initially, Appellee would point out that Appellant miscasts or misapprehends
this issue. In connection with her statement, “if she felt threatened or anything like
that, she would fucking shoot them,” Appellant contends, “[t]his is not a threat and
is not immediate.” (Appellant’s Brief pg. 4. ¶ 3). However, Tex. Penal Code
§2.07(a)(2) does not require that Appellant place a victim in fear of threatened
“immediate” serious bodily injury, rather, the law requires that Appellant’s place
the victim in fear of threatened imminent serious bodily injury. Tex. Penal Code
Ann. §22.07(a)(2) (West 2011). Here, Appellant makes the same mistake as the
Court describes in the Jones case, “Appellant confuses the victim’s ‘fear of
imminent serious bodily injury’ with the perpetrator’s imminent (temporal and
physical) ability to carry out that threat.” Jones, 07-16-00345-CR, 2017 WL
1908586, at *4. Moreover, “imminent” means “near at hand; mediate rather than
immediate; close rather than touching; impending; on the point of happening;
threatening; menacing; perilous.” Heinert, 441 S.W.3d at 818.
Appellant’s first statement was made: on the heels of her dismissal from her
job in the CDD, a situation she described as “fucked up,”(RR 42-43); during the
course of a conversation in which she discussed “how the coworkers in the office
Millsap v. The State of Texas Appellee’s Brief 24 had spoke bad about her,” (RR 11), which Appellant agreed, made her angry (RR
54-55), and in which Dixon described Appellant as being “upset,” and “very
angry,” (RR 14); and after specifically identifying two former coworkers,
“Angelina Martinez and Vanessa Morales,” (RR 13), who were “talking bad about
the job [she] performed.” (RR 13). Moreover, when Appellant made her statement
to Dixon, Dixon knew Appellant surfed the internet looking at firearms, (RR 17),
would sometimes “go out . . . to the river and shoot guns,” (RR 24), and that
Millsap “carried a gun.” (RR 41, 55). And, contrary to Appellant’s assertion,
(Appellant’s Brief pg. 1, ¶ 2), Dixon did feel threatened by Appellant’s statement.
(RR 18). Dixon testified that Appellant’s statement made her “feel nervous, and . .
. scared.” (RR 18). Additionally, Dixon testified that she understood herself to be
included in Millsap’s “you bitch[es]” comment. (RR 20-21).
Appellant’s second threat was communicated to Michelle Martinez at the
Toot-n-Totum on March 1st, 2016, (RR 27). The threat consisted of these words:
“what these . . . mother fuckers don’t realize is that I carry a gun.” (RR 30).
Nothing in that statement suggests it is conditional. Through Martinez, Appellant’s
threat was communicated to the entire CDD office. (RR 32). Appellant made this
statement after specifically stating she was “being bad-mouthed by “Angelina
Martinez . . . her friend . . . and that geeky girl with the glasses,” whom Martinez
Millsap v. The State of Texas Appellee’s Brief 25 understood to be “Addie Traider.” (RR 30). On the heels of making the statement,
Appellant showed Martinez a handgun. (RR 30).
Martinez testified that after she got back to the office, and her encounter
with Appellant was disseminated, “other employees felt really scared, especially
Angelina, Vanessa, and Addie.” (RR 33). Nothing in Tex. Penal Code §22.07
(a)(2) dictates or limits the manner in which a threat must be communicated. Tex.
Penal Code Ann. §22.07(a)(2). Threats have been found sufficient when delivered
by voice mail, Cook, 940 S.W.2d 344, Heinert, 441 S.W.3d 810, letter, Gillette,
444 S.W.3d 713, and in a veiled manner, Id. at 725. Given that Appellant’s
statement was made just after picking up her last pay check, within walking
distance of CDD, and in tandem with showing Martinez a handgun, the court could
have readily inferred that it was Appellant’s intent for Martinez to relay her acts
and statements to other members of the CDD Office, including Angelina Martinez,
just as if she would have left them on an answering machine, and that her
statement was intended to create within Angelina Martinez fear of imminent
serious bodily injury.
Appellant’s third threatening statement was also made to Michele Martinez
during the encounter at the Toot-n-Totum, and reported back to the CDD Office by
her. The third statement consisted of the following words: “if [Appellant] felt
threatened or anything like that she would fucking shoot them.” (RR 30). Here
Millsap v. The State of Texas Appellee’s Brief 26 again, the perceived reference was to Angelina Martinez, Addie Traider, and
Vanessa (last name unknown). (RR 33). Here again, the court have reasonably
inferred that it was Appellant’s intent for Martinez to relay her acts and statements
to other members of the CDD Office, including Angelina Martinez, just as if she
would have left them on an answering machine, and that her statement was
intended to create within Angelina Martinez fear of imminent serious bodily
injury.
Appellant’s first, second, and third statements were all sufficiently
impenitent to support the court’s judgment.
Conclusion
Appellant’s first, second and third statements were, at a minimum,
menacing, thus each constituted a threat. Heinert, 441 S.W.3d at 818. If not meant
to menace Dixon and her coworkers, including Angelina Martinez, what other
reasonable purpose could Appellant’s statements have had? Contrary to
Appellant’s assertion, it could not have been “in the vein of self-defense,”
(Appellant’s Brief pg. 4, ¶ 3)7, because as Appellant testified at trial, she did not
feel threatened by Dixon or any other of her former coworkers. (RR 55, 58).
7 Appellee does not see how Appellant’s citation to George v. State, 841 S.W.2d 544 (Tex. App.—Houston [1st Dist.] 1992) supports her argument on this point.
Millsap v. The State of Texas Appellee’s Brief 27 Dixon’s reaction, “feeling scared.” is evidence of both of Appellant’s intent,
and of the imminence of the harm Dixon perceived. The same is true for Angelina
Martinez, whom Michele Martinez described as feeling really scared. Appellant’s
intent can also be inferred from the fact that she made not one, but three
threatening statements, two of which are plainly unequivocal. Cook, 940 S.W.2d
348.
Based on the above facts, reasonable inferences therefrom, and law, the trial
court could have reasonably concluded Appellant’s direct statement to Dixon and
indirect statement to Angelina Martinez, constituted threats intended to create fear
of infliction imminent serious bodily injury on both.
Testimony also supported that both were employees of the City of Amarillo.
Thus, the evidence is sufficient to support the court’s conviction of Appellant for
Count One and Count Two.
In sum, the evidence was sufficient in this case to support the trial court’s
judgment.
Prayer
Appellee prays that the Court:
Millsap v. The State of Texas Appellee’s Brief 28 1. hold that Appellant’s threats were not conditional and evidence was
sufficient to support the court’s judgment, or if conditional, still sufficient
to support the court’s judgment;
2. hold that Appellant’s threats were imminent the evidence sufficient to
support the court’s judgment; and,
3. Affirm the courts judgment, in all respects.
Millsap v. The State of Texas Appellee’s Brief 29