Pedro Pete Quezada Soliz v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 30, 2024
• Docket: 07-23-00211-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00211-CR

PEDRO PETE QUEZADA SOLIZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 286th District Court Cochran County, Texas Trial Court No. 22-07-1728, Honorable Pat Phelan, Presiding

January 30, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Following pleas of not guilty, Appellant, Pedro Pete Quezada Soliz, was convicted

by a jury of terroristic threat against a public servant, the judge of the Cochran County

Court (Count I),1 and criminal mischief of $2,500 or more but less than $30,000 (Count

II).2 Punishment was assessed by the jury at twenty-four months in a state jail facility plus

1 TEX. PENAL CODE ANN. § 22.07(a)(2), (c), (c-1). The offense is elevated to a state jail felony when

committed against a person the actor knows is a judge.

2 TEX. PENAL CODE ANN. § 28.03(a)(1), (b)(4)(A). a $10,000 fine for terroristic threat and also at twenty-four months in a state jail facility

plus a $5,000 fine for criminal mischief. The sentences were ordered to run concurrently.

By two issues, Appellant challenges the trial court’s denial of his motions for instructed

verdict as to each count—essentially challenges to the sufficiency of the evidence. We

modify and affirm as to Count I and reverse and remand as to Count II.

BACKGROUND

Appellant and the judge are second cousins. The judge and his son live on

different streets but there is only one house between them. The judge’s son and his

family had recently moved into a house which had been in the judge’s family.

On an evening in November 2021, the neighbor who lives in the house between

the judge’s house and his son’s house called the judge’s son to alert him an individual

was outside yelling and threatening to kill the judge and his son. The neighbor testified

he saw the individual hitting two trucks with a big stick. He also testified Appellant and

his family used to live in the house across the street which was now abandoned.

The judge was at a friend’s house at the time of the incident. After the neighbor’s

phone call, the judge’s son looked out the window and saw an individual “fighting the air”

“almost wrestling with a shadow” and heard him shouting profanities and death threats.

He locked his doors and called his father and 911.

A deputy responded to the disturbance and shined his spotlight on Appellant who

was walking toward the abandoned house. Appellant was ordered to stop and complied.

The deputy determined Appellant was under the influence. According to the deputy,

2 Appellant was “yelling because the judge was watching [Appellant’s] niece through a

magnifying glass.” He shouted “get off of her” several times.3

After he received a call from his son, the judge immediately drove to his son’s

house but neither the suspect nor the responding deputy was present. The deputy later

returned to the scene on a criminal mischief complaint made by the judge.4 However, the

original responding deputy was dispatched to another call and another deputy later

reported to the property to collect evidence and take photographs. A 2000 GMC truck,

which belonged to the judge, was parked underneath a carport adjacent to his property.

The deputy observed deep, jagged scratches from the front panel to the taillights, as well

as dents and freshly removed paint. The windshield was shattered by what appeared to

be concrete or rock. A 2004 GMC parked in the judge’s son’s driveway also sustained

damage.

The judge, who insured both trucks, filed an insurance claim on each truck. There

was no dispute the judge owned the 2000 GMC. However, title to the 2004 GMC was in

the judge’s brother’s name. The judge explained he had purchased the 2004 GMC from

his brother for his son to use in college and had made payments on it until recently; title,

however, had not yet been transferred to the son. During cross-examination and redirect

examination, the judge clearly stated his intention to gift the 2004 GMC to his son “from

the get go.”

3 The record shows the niece was safely in her home.

4 The judge also requested a criminal trespass notice be issued to Appellant.

3 The insurance claims specialist testified that after applicable deductibles, a check

for $1,304.84 was issued to the judge and his wife for the 2000 GMC and a check for

$1,987.45 was issued to the judge’s brother for the 2004 GMC. Evidence showed the

checks were deposited into two different bank accounts.

After the State rested, Appellant moved for a directed verdict on Count I alleging

there was no proof he knew the victim was a judge or that he made a threat with intent to

place the judge in fear of imminent serious bodily injury. He also moved for a directed

verdict on Count II asserting the evidence was insufficient to show a pecuniary loss of

$2,500 because the 2004 GMC was intended as a gift to his son but was still titled in the

judge’s brother’s name. The trial court denied both motions. Thereafter, Appellant also

rested.5 The jury returned verdicts of guilty on both counts.

STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE

The only 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, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d

854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). We consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, any

5 During trial but outside the jury’s presence, the prosecutor requested to discuss certain arrest

warrants for Appellant as a motive for threatening the judge and to show Appellant knew the victim was a judge. The trial court denied the request. After both sides rested and closed, the State made an offer of proof regarding a business records affidavit and certain exhibits. Citing extraneous offenses, the trial court overruled the State’s request. 4 rational juror could have found the essential elements of the crime beyond a reasonable

doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

We give deference to the responsibility of the trier of fact to fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each

fact need not point directly and independently to the appellant’s guilt, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction. Id.

ISSUE ONE—TERRORISTIC THREAT

Appellant asserts the State failed to prove he placed the judge in fear of imminent

serious bodily injury because the judge was not present when the threats were made and

there was no evidence the threats were communicated to the judge by any electronic

means.6 We disagree.

Terroristic threat requires a person to threaten to commit any offense involving

violence to any person with intent to place any person in fear of imminent serious bodily

injury. TEX. PENAL CODE ANN. § 22.07(a)(2). The offense is elevated from a Class B to a

Class A misdemeanor if the threatened person is a public servant and further elevated to

a state jail felony if the offense is committed against a person the actor knows is a judge.

Id. at § 22.07(c)(2), (c-1).

6 On appeal, Appellant does not contest whether he knew the person he committed the offense

against was a judge as he did in the trial court. He only challenges the element of placing a person in fear of imminent serious bodily injury. 5 The offense of terroristic threat is complete if the accused, by his threat, sought as

a desired reaction to place the person in fear of imminent serious bodily injury. Millsap v.

State, No. 07-16-00455-CR, 2017 Tex. App. LEXIS 12015, at *2–3 (Tex. App.—Amarillo

Dec. 22, 2017, no pet.) (mem. op., not designated for publication) (citing Heinert v. Wichita

Falls Hous. Auth., 441 S.W.3d 810, 818 (Tex. App.—Amarillo 2014, no pet.)). The

accused’s threats of violence made with intent to place the victim in fear of imminent

serious bodily injury is what constitutes the offense. Cook v. State, 940 S.W.2d 344, 347

(Tex. App.—Amarillo 1997, pet. ref’d). The statute does not require the victim or anyone

else to be actually placed in fear of imminent serious bodily injury. Id. (citing Dues v.

State, 634 S.W.2d 304, 306 (Tex. Crim. App. 1982)). It is immaterial to the offense

whether the accused had the capability or the intention to carry out his threat. Dues, 634

S.W.2d at 305. Also, “[i]t is of no consequence whether the [threat] was heard live . . . .”

Cook, 940 S.W.2d at 349.

The fear of serious bodily injury need only be imminent, not immediate. Millsap,

2017 Tex. App. LEXIS 12015, at *3. “Imminent” means “near at hand; mediate rather

than immediate.” Id. Threatening to commit an act could cause fear of imminent serious

bodily injury if the victim believed the act was “near at hand” or “hanging threateningly

over one’s head.” Id. (citing Jones v. State, No. 07-16-00345-CR, 2017 Tex. App. LEXIS

4158, at *7 (Tex. App.—Amarillo May 8, 2017, no pet.) (mem. op., not designated for

publication). Intent can be inferred from acts, words, and conduct of the accused. Cook,

940 S.W.2d at 347.

While Appellant concedes Cook is similar to the underlying facts, he distinguishes

Cook by pointing out the defendant left three threatening voicemails whereas, here, he 6 did not make any electronic threats and his threats were inaudible due to the judge’s

absence at the time. Thus, he concludes any threats made to the judge were not

imminent. We disagree with Appellant’s assessment.

In Cook, the intended victim was out of town when the voicemails were made. 940

S.W.2d at 347. In the underlying case, the judge was not present when the threats to kill

him were made. However, the threat to kill the intended victim and place him in fear of

imminent serious bodily injury is what constituted the offense of terroristic threat

regardless of whether the accused had the capability or intention to carry out the threat.

Id. During his testimony, the judge answered affirmatively when asked if he was

concerned and scared when his son called him about the death threats. When asked if

he took the death threats seriously, he answered, “[y]es.” He also confirmed that a death

threat implicates serious bodily injury. He requested a criminal trespass notice as

protection from Appellant’s death threats. The judge’s absence from the scene when

Appellant threatened to kill him did not negate intent or imminence from serious bodily

injury. When viewed in the light most favorable to the verdict, we conclude the evidence

is sufficient to support the conviction for terroristic threat. Issue one is overruled.

ISSUE TWO—CRIMINAL MISCHIEF

Appellant contends the State failed to prove Appellant caused at least $2,500 in

damages, the threshold for a state jail felony. His argument is based on the language in

the indictment and the charge alleging Appellant caused damage to “a vehicle,” i.e., one

7 truck, belonging to the judge.7 (Emphasis added). We agree the State failed in its burden

to prove the amount of pecuniary loss suffered for a state jail felony conviction but for a

different reason.

A person commits criminal mischief if, without the effective consent of the owner,

he intentionally or knowingly damages or destroys the tangible property of the owner.

TEX. PENAL CODE ANN. § 28.03(a)(1). See Rosario v. State, No. 07-13-00098-CR, 2014

Tex. App. LEXIS 2652, at *3 (Tex. App.—Amarillo March 6, 2014, no pet.) (mem. op., not

designated for publication). “Owner” is defined as “a person who has title to the property,

possession of the property, whether lawful or not, or a greater right to possession of the

property . . . .” TEX. PENAL CODE ANN. § 1.07(a)(35)(A).

Appellant was charged with causing damages in the amount of $2,500 or more but

less than $30,000, a state jail felony. § 28.03(b)(4)(A). The evidence showed that title to

the 2004 GMC was in the judge’s brother’s name and had not yet been transferred to his

son. The judge unequivocally testified he always intended the 2004 GMC to belong to

his son “from the get go.” Thus, because the son possessed the truck, drove the truck,

and it was parked in the son’s driveway, he had a greater right to possession. The judge

could not be considered the owner for purposes of including the pecuniary loss to the

2004 GMC to elevate the offense to a state jail felony from a Class A misdemeanor, which

only requires a pecuniary loss of $750 or more but less than $2,500. The damages

proven beyond a reasonable doubt for criminal mischief to the judge’s 2000 GMC were

7 Under the Code Construction Act, “[t]he singular includes the plural and the plural includes the

singular.” See TEX. GOV’T CODE ANN. §§ 311.012(b); 312.003(b). See also Hensley v. State, 388 S.W.2d 424, 425 (Tex. Crim. App. 1965) (applying the singular/plural maxim to the construction of language in an indictment alleging use of “hands” when the evidence showed use of only one “hand”). 8 $1,304.84 after the $500 deductible, well below the $2,500 required for a state jail felony

conviction. We find the evidence is insufficient to support Appellant’s conviction for state

jail felony criminal mischief.

This Court’s finding of insufficient evidence does not necessarily result in an

acquittal. In Bowen v. State, 374 S.W.3d 427, 431–32 (Tex. Crim. App. 2012), the Court

held that when an appellate court finds the evidence insufficient to support a conviction,

it is not limited to an acquittal of that conviction. It may instead reform the judgment to

reflect a conviction as to any lesser included offense established by the evidence and

remand for a new punishment hearing. Id. To justify reforming a judgment the following

two conditions must be met: (1) the jury necessarily found every element necessary to

convict the accused of the lesser included offense when it convicted the accused of the

reversed offense and (2) there is sufficient evidence to support a conviction for the lesser

included offense. Thornton v. State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014).8

Here, the jury necessarily found that Appellant, without the judge’s effective

consent, intentionally or knowingly damaged the 2000 GMC. However, because the

damages to the 2004 GMC should not have been considered as the judge was not the

owner, we find the evidence insufficient to support a conviction for criminal mischief

classified as a state jail felony. Thus, reformation of that conviction from a state jail felony

to a Class A misdemeanor is the appropriate remedy. Issue two is sustained.

8 Misdemeanor criminal mischief is a lesser included offense of felony criminal mischief. Holz v.

State, 320 S.W.3d 344, 345, 347 (Tex. Crim. App. 2010). 9 REFORMATION OF JUDGMENT

In addition to reforming the judgment in Count II to reflect a Class A misdemeanor

conviction, we direct the trial court to also reform the judgment in Count I to correct clerical

errors. The summary portion of the judgment under “Plea to Offense” shows Appellant

pleaded “guilty” to terroristic threat. The reporter’s record, however, reveals Appellant

entered a plea of “not guilty.” Also, under “Statute for Offense,” the judgment incorrectly

reflects a conviction under section “22.07(e).” That subparagraph does not apply.

This Court has the power to modify a trial court’s judgment to make the record

speak the truth when we have the necessary information to do so. TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Appellate courts have the

power to reform whatever the trial court could have corrected by a judgment nunc pro

tunc where the evidence necessary to correct the judgment appears in the record.

Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). The power

to reform a judgment is “not dependent upon the request of any party, nor does it turn on

the question of whether a party has or has not objected in the trial court.” Id. at 529–30.

Thus, we modify the summary portion of the trial court’s judgment in Count I to reflect a

plea of “not guilty” under “Plea to Offense.” We also modify the “Statute for Offense”

portion to reflect section “22.07(c)(2), (c-1).” As modified, the judgment of conviction in

Count I is affirmed.

Because we must reverse the conviction in Count II, we need not reform any

clerical errors in the summary portion of that judgment.

10 CONCLUSION

As to Count I, we modify the summary portion of the judgment for terroristic threat

to reflect a plea of “not guilty” and to reflect “22.07(c)(2), (c-1)” as the statute for offense;

as modified the judgment is affirmed.

As to Count II, we reverse the trial court’s judgment for criminal mischief and

remand the cause to the trial court to reform the judgment to reflect a conviction for the

lesser included offense of criminal mischief classified as a Class A misdemeanor, and to

further hold a punishment hearing associated with that degree of offense.

Alex Yarbrough Justice

Do not publish.