ACCEPTED 03-13-00509-CR 3650376 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/5/2015 2:02:40 PM JEFFREY D. KYLE CLERK NO. 03-13-00509-CR
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS THIRD DISTRICT AUSTIN, TEXAS AUSTIN, TEXAS 1/5/2015 2:02:40 PM JEFFREY D. KYLE TERRY TYRONE ATKINS, Clerk APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS CAUSE NUMBER D-1-DC-11-302358
STATE’S BRIEF
Rosemary Lehmberg District Attorney Travis County, Texas
Kathryn A. Scales Assistant District Attorney State Bar No. 00789128 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. (512) 854-4206 Kathryn.Scales@traviscountytx.gov AppellateTCDA@traviscountytx.gov
ORAL ARGUMENT NOT REQUESTED TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii STATEMENT REGARDING ORAL ARGUMENT ..............................................vi STATEMENT OF THE CASE.................................................................................vi STATEMENT OF FACTS ........................................................................................1 SUMMARY OF THE ARGUMENTS ......................................................................3 THE STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR..............4
The evidence was sufficient to show that the Appellant violated the terms of his deferred-adjudication community supervision. Because retaliation is not a result-oriented offense, it is irrelevant whether the Appellant intended for his statements to be interpreted as threats or whether the statements were designed to inhibit the target’s public service as a judge. Because the evidence was sufficient to support the trial court’s findings, the trial court did not abuse its discretion.....................4
THE STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR.......19
Appellant’s statements were true threats, which are not protected speech. Under the applicable objective standard, the threats would be interpreted by a reasonable person as serious threats to inflict harm............19
PRAYER ..................................................................................................................25 CERTIFICATE OF COMPLIANCE.......................................................................26 CERTIFICATE OF SERVICE ................................................................................26
ii TABLE OF AUTHORITIES
Cases
Blanco v. State, 761 S.W.2d 38, 40 (Tex. App. —Houston [14th Dist.] 1988, no pet.) ...21
Cada v. State, 334 S.W.3d 766, 771, (Tex. Crim. App. 2011) ...........................................6
Cantu v. State, 339 S.W.3d 688, 691-92 (Tex. App.—Fort Worth 2011) ....................5, 18
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).......................................5
Coward v. State, 931 S.W.2d 386, 389 (Tex. App. Houston—[14th. Dist.] 1996, no
pet.)...................................................................................................................................6
Doyle v. State, 661 S.W.2d 726, 728 (Tex. Crim. App. 1983) (per curiam).................7, 14
Garcia v. State, 212 S.W.3d 877, 888-889 (Tex. App.—Austin 2006, no pet.) ...............22
Herrera v. State, 915 S.W.2d 94, 97 (Tex. App. —San Antonio 1996, no writ)..............14
In re A.C., 48 S.W.3d 899, 903 (Tex. App.—Fort Worth 2001), pet. denied...................13
In re B.P.H., 83 S.W.3d 400, 407 (Tex. App. Fort Worth—2002, no pet.)........................6
Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref'd.).............18
Lebleu v. State, 192 S.W.3d 205, 211 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d)...........................................................................................................................7, 17
Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. 1978) ..........................................5
Lindsey v. State, No. 13-09-00181, 2011 Lexis 5388 (Tex. App.— Corpus Christi
July 14, 2011) (not designated for publication) ................................................ 15, 16, 17
Manemann v. State, 878 S.W.2d 334, 337 (Tex. App.—Austin 1994, no pet.)... 20, 21, 22
iii Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).....................18
Phillips v. State, 401 S.W.3d 282, 284 (Tex. App.—San Antonio 2013).........................13
R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).........................................................21
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)..........................................5
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980) ..................18
Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 580 (5th Cir. 2005) ...........................22
Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988) ........................................................22
United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990).........................20
Virginia v. Black, 538 U.S. 343, 360 (2003) .....................................................................21
Watts v. United States, 394 U.S. 705 (1969) (per curiam) ......................................... 22, 23
Webb v. State, 991 S.W.2d 408, 415 (Tex. App. —Houston [14th Dist.] 1999, pet.
ref’d)...............................................................................................................................22
Wilkins v. State, 279 S.W.3d 701, 704 (Tex. App.—Amarillo 2007, no pet. h.)....... 13, 14
Statutes
TEX. CODE CRIM. PROC. art. 42.12 § 5(b) ............................................................................5
TEX. GOV’T CODE § 312.055..............................................................................................16
TEX. PENAL CODE § 25.07(g) ............................................................................................ vii
TEX. PENAL CODE § 36.06 ........................................................................................... 14, 16
iv NO. 03-13-00509-CR
IN THE COURT OF APPEALS THIRD DISTRICT AUSTIN, TEXAS
TERRY TYRONE ATKINS, APPELLANT
APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS CAUSE NUMBER D-1-DC-11-302358
TO THE HONORABLE COURT OF APPEALS:
The State of Texas, by and through the District Attorney for Travis County,
respectfully submits this brief in response to that of the Appellant.
v STATEMENT REGARDING ORAL ARGUMENT
The State believes that oral argument is unnecessary because the briefs filed
by the parties adequately present the facts and legal arguments. However, if the
Court grants Appellant’s request for oral argument, the State respectfully requests
that the Court also permit the State to provide oral argument.
STATEMENT OF THE CASE
On September 9, 2011, Travis County Court at Law 4 issued a protective
order prohibiting Appellant from going within two hundred yards of the home of
specific woman (hereinafter referred to as “the victim”).1 CR 5. Less than two
months later, surveillance camera footage recorded Appellant violating that
provision by going to the victim’s house at 5:30 in the morning. CR 5. The court
issued a warrant for his arrest and Appellant was subsequently indicted for
intentionally and knowingly violating the protective order. CR 7; CR 10. The
indictment also alleged that Appellant had two prior convictions, in cause number
C-1-CR-91-351956 on September 10, 1991, and in cause number C-1-CR-96-
454537 on March 28, 1996, for violation of a protective order. CR 10. Those prior
convictions enhanced the charged offense to a third-degree felony. See CR 10
(charging such); TEX. PENAL CODE § 25.07(g)(1) (requiring such an enhancement).
1 A citation in the form of “CR y” refers to page y of the Clerk’s Record, while a citation in the form of “x RR y” refers to page y of volume x of the Reporter’s Record. vi On May 25, 2012, Appellant pleaded guilty to the offense as charged and
Julie Kocurek, presiding judge of the 390th District Court in Travis County,
deferred adjudication of guilt and placed Appellant on five years of community
supervision. CR 21-24. The community supervision order included numerous
conditions. CR 18-20.
On July 30, 2012, the State filed a motion to proceed with adjudication of
guilt alleging that Appellant had violated the terms of his deferred-adjudication
community supervision by contacting the victim. CR 28. That same day, an arrest
warrant was issued for the Appellant. CR 26. At the revocation hearing held on
September 4, 2012, the court entered an order continuing community supervision,
and added a condition requiring Appellant to complete ninety days of confinement
in county jail as a condition of probation. CR 44. On November 9, 2012, the State
filed another motion to proceed with adjudication of guilt, but then withdrew that
motion on November 13, 2012 CR 45; CR 46.
On March 8, 2013, Judge Kocurek transferred Appellant’s case to the 331st
District Court. CR 51. On March 19, 2013, the State again moved to proceed with
an adjudication of guilt for numerous violations of the terms and conditions of his
deferred adjudication. CR 52. On June 14, 2013, the State amended its motion to
proceed with an adjudication of guilt. CR 68. The amended motion alleged that
Appellant:
vii 1. Failed to allow the supervision officer to visit at home or elsewhere on January 9, 2013; 2. Failed to pay court costs and is delinquent $56.31; 3. Failed to pay a supervision fee and is delinquent $229.93; 4. Failed to pay restitution and is delinquent $225.23; 5. Failed to pay a Family Violence Center fee and is delinquent $17.53; 6. Failed to report to, cooperate with, and participate in a Family Violence Program through CES; and 7. Failed to participate in the Global Positioning System (GPS) program. CR 68.
The State further alleged that Appellant:
Committed a subsequent criminal offense in that on or about the 22nd day of February 2013, in the County of Travis, State of Texas, Terry Atkins did then and there intentionally and knowingly threaten another, Julie Kocurek, by an unlawful act, to wit: aggravated assault or capital murder by threatening to shoot Julie Kocurek in retaliation for or on account of the service or status of Julie Kocurek as a Public Servant, to wit: Judge of the 390th District Court.
Id.
On July 19, 2013, after a hearing to consider the State’s motion to adjudicate
the Appellant’s guilt, the court found all of the alleged violations to be true and
granted the State’s motion. 3 RR 8; CR 75-76. Accordingly, the court found the
Appellant guilty of violating a protective order in violation of TEX. PENAL CODE §
viii 25.07(g) and sentenced Appellant to four years of confinement in the Texas
Department of Criminal Justice Correctional Institutions Division. CR 75-76.
On July 30, 2013, Appellant filed his notice of appeal. CR 78. On September
20, 2013, the trial court certified Appellant’s right to appeal his conviction. CR 91.
ix STATEMENT OF FACTS
The State called four witnesses at the July 19, 2013 hearing on the State’s
amended motion to revoke community supervision and proceed with an
adjudication of guilt. 3 RR 4. A senior probation officer testified that Appellant
violated numerous terms of his deferred-adjudication community supervision. 3
RR 11-17. The State then called another probation officer, who also testified that
Appellant violated the terms of his community supervision. 3 RR 23-31. These
violations included: failing to be present for a home visit. 3 RR 24-25; failing to
participate in a family violence class through the Travis County Counseling and
Education Services (CES). 3 RR 26; and failing to charge his GPS device and pay
associated fees. 3 RR 29-31.
The State also called the owner of a company that contracts with Travis
County for GPS monitoring of people on community supervision. 3 RR 38. That
witness testified that she heard Appellant threaten to kill the judge overseeing his
case due to the judge’s actions in his case. 3 RR 42-43. Another employee at that
company testified that she heard Appellant say, “I will pop that judge. Pow.” 3 RR
65.
The court found all of the alleged violations to be true and granted the
State’s motion. CR 75-76. Accordingly, the court proceeded to find Appellant
guilty of violating the protective order, which was enhanced to a third-degree
1 felony. 3 RR 139. The Court then assessed punishment at four years of
confinement in the Texas Department of Criminal Justice Correctional Institutions
Division. CR 75.
2 SUMMARY OF THE ARGUMENTS
Point One: In his first point of error, Appellant argues that the trial court abused its discretion because the evidence was insufficient to support the trial court’s finding that he violated his community supervision conditions by, inter alia, committing the offense of retaliation against Judge Kocurek. The evidence was, however, sufficient to support the court’s findings. The Appellant also argues that the court abused its discretion because there is insufficient evidence that the Appellant actually intended to harm Judge Kocurek or inhibit her public service. In fact, the State was not required to prove those two issues because retaliation is not a result- oriented offense. Because the evidence was sufficient to support the trial court’s finding that Appellant violated the terms of his community supervision, the court did not abuse its discretion, and Appellant’s first point of error should be overruled.
Point Two: The Appellant’s statements were true threats, which are not protected speech. The objective standard applies to evaluating whether statements are threats that may be restricted. Under this standard, the statements were threats because a reasonable person would understand Appellant’s statements as threatening bodily harm. Appellant’s second point of error should, therefore, be overruled.
3 THE STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR
The evidence was sufficient to show that the Appellant violated the terms of his deferred-adjudication community supervision. Because retaliation is not a result-oriented offense, it is irrelevant whether the Appellant intended for his statements to be interpreted as threats or whether the statements were designed to inhibit the target’s public service as a judge. Because the evidence was sufficient to support the trial court’s findings, the trial court did not abuse its discretion.
In his first point of error, Appellant claims that trial the court abused its
discretion because there was insufficient evidence to show that he had the intent to
harm Judge Kocurek, and because he “did not intend nor was he reasonably certain
that this statements would be interpreted as expressions of intent to harm a public
servant.” Appellant’s Brief at 10. Appellant also argues that “there was no
evidence that [he] was reasonably certain that his statement would inhibit the
judge’s service as a public official.” Appellant’s Brief at 10.
The record reflects that the evidence was sufficient to support the trial
court’s determination. Moreover, the retaliation statute does not require the State to
prove that the person issuing the threat actually intend to harm the threat’s target,
nor does it require that the statement be designed to inhibit the target’s service as a
public official. The court, therefore, did not abuse its discretion.
4 Standard of Review:
A trial court’s decision to revoke deferred-adjudication community
supervision and proceed to an adjudication of guilt is reviewed for abuse of
discretion, which is the same standard that governs the revocation of regular
community supervision. Cantu v. State, 339 S.W.3d 688, 691-92 (Tex. App.—Fort
Worth 2011, no pet.), citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006); see also TEX. CODE CRIM. PROC. art. 42.12 § 5(b).
The trial court does not abuse its discretion if the order revoking community
supervision is supported by a preponderance of the evidence; in other words, the
greater weight of the credible evidence would create a reasonable belief that the
defendant has violated a condition of his or her community supervision. Rickels,
202 S.W.3d at 763-64. An appellate court reviews the evidence in the light most
favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984). The reviewing court must respect the fact-finder’s role to
evaluate the witnesses’ credibility, to resolve conflicts in the evidence, and to draw
reasonable inferences, and it assumes that the fact-finder resolved evidentiary
issues in a way that supports the judgment. Limuel v. State, 568 S.W.2d 309, 311
(Tex. Crim. App. 1978).
5 Applicable law:
In this case, the court found Appellant guilty of violating the terms of his
deferred-adjudication community supervision by, inter alia, committing the
offense of retaliation against Judge Kocurek. 3 RR 139. Section 36.06(a)(1)(A) of
the Texas Penal Code lays out the elements of the retaliation offense applicable to
the instant case:
(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act: (1) in retaliation for or on account of the service or status of another as a: (A) public servant……
The retaliation statute serves important policy considerations. As the Court
of Criminal Appeals has held, “A central purpose of the retaliation statute is to
encourage a specified class of citizens—which includes public servants, witnesses,
prospective witnesses, and informants—to perform vital public duties without fear
of retribution.” Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011).
The retaliation statute does not require that the threatened harm be
imminent, nor does it require that the actor actually intend to carry out his threat. In
re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.); Coward v.
State, 931 S.W.2d 386, 389 (Tex. App. —Houston [14th. Dist.] 1996, no pet.). Nor
does the retaliation statute require that the threat be communicated directly to the
6 person being threatened. Doyle v. State, 661 S.W.2d 726, 728 (Tex. Crim. App.
1983) (per curiam). Finally, the statute does not require proof that Appellant took
any affirmative steps to carry out the threat. Lebleu v. State, 192 S.W.3d 205, 211
(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
Application of Law to the Facts:
In his first point of error, Appellant begins by asserting that the State’s
“evidence is insufficient to support the trial court’s finding that the Appellant had
violated his community supervision.” Appellant’s Brief at 5. A review of the
record, however, shows that the evidence was more than sufficient.
The State filed its original Order of the Court Deferring Further Proceedings
on June 1, 2012. CR 21. The order was effective for five years from that date, and
it contained numerous community supervision conditions. CR 21. One of those
conditions was that Appellant, “Commit no offense against the laws of this or any
State or of the United States.” CR 21. Over the next five months, the State filed
two Motions to Proceed with an Adjudication of Guilt. Instead of revoking
Appellant, the court entered an order, on September 4, 2012, amending Appellant’s
conditions of community supervision. CR 42-43. That order continued all of the
conditions of the original order, and further confined Appellant to jail for a period
7 of 90 days and compelled Appellant’s participation in GPS monitoring for the
following fourteen months. CR 42.
A mere six months later, on March 19, 2013, the State filed another Motion
to Proceed with an Adjudication of Guilt. That Motion, which was amended on
June 14, 2013, alleged that Appellant had violated the terms and conditions of his
deferred-adjudication community supervision by:
1. Failing to allow the Supervision Officer to visit at home or elsewhere on January, 9, 2013; 2. Failing to pay Court Costs and is delinquent $56.31; 3. Failing to pay Supervision fee and is delinquent $229.93; 4. Failing to pay Restitution and is delinquent $225.23; 5. Failing to pay Family Violence Center fee and is delinquent $17.53; 6. Failing to report to, cooperate with and participate in a Family Violence Program through CES; 7. Failing to participate in the Global Positioning System (GPS) program; 8. Committing a subsequent criminal offense in that on or about the 22nd day of February, 2013, in the County of Travis, State of Texas, Terry Atkins did then and there intentionally and knowingly threaten another, Julie Kocurek by an unlawful act, to wit: aggravated assault or capital murder by threatening to shoot Julie Kocurek in retaliation for or on account of the service or status of Julie Kocurek as a Public Servant, to wit: Judge of the 390th District Court. CR 68.
8 At the July 19, 2013 hearing to revoke community supervision and
adjudicate Appellant, the State presented evidence of Appellant’s violations
through four witnesses. 3 RR 4. Viewed in the light most favorable to the trial
court’s ruling, the evidence presented during the hearing supports the trial court’s
finding that Appellant violated the terms of his community supervision.
The State’s first witness was John Pratt, a senior probation officer for the
Travis County Adult Probation Office. 3 RR 11. Mr. Pratt supervised Appellant in
his capacity as a probation officer. 3 RR 11. He testified that Appellant was in
violation of numerous terms of his deferred-adjudication community supervision
when the State filed its motion to revoke community supervision and proceed with
an adjudication of guilt. 3 RR 13. As Mr. Pratt testified, Appellant’s violations
included:
1. Failing to be present for a home visit on January the 9th, 2013 (3 RR 13); 2. Failing to pay $56.31 in court costs (3 RR 16); 3. Failing to pay a $229.93 supervision fee (3 RR 16); 4. Failing to pay $225.23 in restitution (3 RR 16); 5. Failing to pay a $17.53 Family Violence Center fee (3 RR 16-17); and 6. Failing to report, cooperate with, or participate in the family violence program (3 RR 17). The State then called Charles Hoy, a Travis County Probation Officer, who
supervised Appellant during his community supervision. 3 RR 23. Mr. Hoy
9 testified that he was the probation officer who had been scheduled to conduct a
home visit with Appellant on January 9, 2013, but that the meeting did not occur
because Appellant was not home or did not answer the door, and that he did not
answer his phone. 3 RR 24-25. Mr. Hoy also testified that he ordered Appellant to
participate in a family violence class through the Travis County Counseling and
Education Services (CES), but that Appellant failed to do so. 3 RR 26. He further
testified that Appellant failed to participate in the Global Positioning System (GPS)
monitoring program by failing to charge his device and pay associated fees. 3 RR
29-31.
The State then called Rachele Smith, the owner of Victims Safety First, a
company that provides Travis County with GPS and electronic monitoring of
people on community supervision. 3 RR 38. She testified that she knew Appellant
because her company provided him with his court-ordered GPS device. 3 RR 40.
Smith testified that, around 4:30 p.m. on February 22, 2013, she was finishing a
phone conversation just outside of her office when Appellant walked out of the
office and started talking to her. 3 RR 41. After complimenting Smith on her car,
he then began threatening to kill Judge Kocurek:
A: He said, “Pow. I’ll kill that fucking judge. Pow. I’ll kill the fucking cop. And do you know why? Because I do not care. They have interfered with my constitutional right to the pursuit of happiness.”
10 And I said, “Hang on now. Whoa, whoa, whoa.” He goes, “I’m not mad at you. You can ask your people. I come in here all the time talking stuff. I’m not mad at you.” But -- and he made the symbol again. He said, “I don’t care. Pow. I’ll kill that fucking judge. I hate Judge Kocurek. She put me in jail without representation and I stayed there for months over” -- I believe he said -- “over Facebook.”
Q: For the record, when you’re making that gesture that you’re calling the symbol of a gun, you’ve got your thumb erect and your first finger extended as if it were the barrel of a gun?
A: Yes.
Q: Okay.
A: He’s like, “Pow. Pow.”
Q: Now, he said, “I’ll kill that fucking judge.” Did he ever specifically say, “I’ll kill Judge Kocurek”?
A: Yes, he did. He said, “I hate that bitch, Judge Kocurek.”
Q: And he threatened to kill her?
A: Yes. He named her specifically. He said he hated her and that he would kill her and that he would kill a cop. He did not care.
3 RR 42-43.
In response to the Appellant’s threats, Smith called the police, filed an
incident report, and immediately contacted Appellant’s probation officer. 3 RR 45.
She also contacted Marsha Morgenroth, a probation supervisor, so that Judge
Kocurek would be aware of the threat on her life. 3 RR 45.
11 The State then called Rebecca Chatagnier, an employee at Victim Safety
First. 3 RR 63. She testified that she was outside the office smoking a cigarette
while Smith and Appellant were talking. 3 RR 64. As she was putting her
belongings in her car, she heard Appellant say that something was “a violation of
his civil rights.” 3 RR 64. She then saw Appellant use his finger and thumb to
make a gun sign and say, “I will pop that judge. Pow.” 3 RR 65. While Chatagnier
could not say whether Appellant was serious about carrying out his threats, she
testified that “I don’t think he was joking.” 3 RR 66.
At the conclusion of the revocation hearing, the trial judge pronounced his
ruling:
I find the allegations in the motion with regard to failure to allow the officer to visit at your home to be true, I find the failure to participate in Global Positioning System to be true, and I find the allegation in the new offense of retaliation to be true. I hereby find you guilty of violation of a protective order and a third-degree felony.
3 RR 139.
When considered as a whole and viewed in the light most favorable to the
trial court’s ruling, the evidence is clearly sufficient to support the trial court’s
determination that the alleged violations were true under the applicable
preponderance of the evidence standard. The State produced evidence that the
Appellant threatened Judge Kocurek, and that he made the threat in retaliation for
12 her service as the judge in his case. Accordingly, the Appellant’s first point of error
should be overruled.
As part and parcel of his first point of error, Appellant contends that
retaliation is a result-oriented offense and that, consequently, the trial court abused
its discretion by finding that he had committed the offense where the State failed to
demonstrate that he had the requisite intent to harm Judge Kocurek or to inhibit her
role as a public servant. Appellant’s Brief at 7. To support this argument, the
Appellant cites three cases: Phillips, In re A.C., and Wilkins. Appellant’s Brief at 7.
Phillips is inapplicable to this case because it did not construe the retaliation
statute. See Phillips v. State, 401 S.W.3d 282, 284 (Tex. App.—San Antonio 2013)
(analyzing the terroristic threat statute—not the retaliation statute—when reciting
the rule that, “The focus of the intent inquiry is on the intended reaction.”). In re
A.C. is, likewise, inapplicable for the same reason. See In re A.C., 48 S.W.3d 899,
903 (Tex. App.—Fort Worth 2001, pet. denied) (construing the terroristic threat
statute).
Wilkins, on the other hand, does concern the relevant statute in this case. The
State, however, would respectfully argue that, in its holding in Wilkins, the
Amarillo Court of Appeals improperly conflated the obstruction and retaliation
subsections of the statute and, in doing so, placed unnecessary focus on the effect
of appellant’s threats on the victim. See Wilkins v. State, 279 S.W.3d 701, 704
13 (Tex. App.—Amarillo 2007, no pet.) (noting that “there is no evidence that
Appellant intended or was reasonably certain that his stated intent for” the judge’s
death would affect that judge’s performance or cause him “to fear retribution”).
The source of this conflation appears to spring from the Amarillo court’s
confused interpretation of three opinions. See id. (holding that “the retaliation
charge against Appellant was a result-oriented offense” and citing, as support,
Herrera v. State, 915 S.W.2d 94, 97 (Tex. App. —San Antonio 1996, no writ), In
re B. P. H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.), and Doyle
v. State, 661 S.W.2d 726, 728 (Tex. Crim. App. 1983) (per curiam). On closer
inspection, however, those three cases provide no tangible support for the holding
in Wilkins.
In Herrera, the court construed TEX. PENAL CODE § 36.06(a)(2), which is
the obstruction subsection of the statute. The Herrera court held that “obstruction
is in fact a result-oriented offense.” Herrera v. State, 915 S.W.2d 94, 97 (Tex.
App.—San Antonio 1996)(emphasis added). The holding in Herrera does not,
however, support the proposition that retaliation is also a result-oriented offense.
In re B. P. H., on the other hand, does state, “Retaliation is a result-oriented
offense and the focus is on whether the conduct is done with an intent to effect the
result specified in the statute.” 83 S.W.3d at 407. The only authority that the court
cites to support this statement, however, is a citation to Herrera, which, as has
14 been established, set forth the rule that obstruction, not retaliation, is a result-
oriented offense.
The State offers instead, for this Court’s consideration, a holding out of the
Corpus Christi Court of Appeals that appears to more accurately address arguments
similar to those made by Appellant. Lindsey v. State, No. 13-09-00181, 2011 Lexis
5388, at *1 (Tex. App.— Corpus Christi July 14, 2011) (not designated for
publication). This opinion, though unpublished, is particularly helpful because it
highlights the problem with using Wilkins and Doyle to support the proposition that
retaliation is a result-oriented offense.
In Lindsey, the appellant was convicted of retaliation. Lindsey v. State, No.
13-09-00181, 2011 Lexis 5388, at *1 (Tex. App.— Corpus Christi July 14, 2011)
(not designated for publication). Lindsey appealed his conviction by challenging
the sufficiency of the evidence, and the court of appeals affirmed the trial court’s
judgment. Id. at *1. The Texas Court of Criminal Appeals vacated the judgment
and remanded the case to the appellate court to address the legal sufficiency
argument more completely. Id. at *1-2. The court of appeals subsequently affirmed
on remand. Id. at *2.
The appellant in the Lindsey case argued that the evidence was insufficient
to support his conviction because the State failed to establish that his statements to
a police officer “were in any way directed to inhibit [a witness] from reporting
15 criminal activity or acting as a witness.” Id. at *3. The court determined that that
the retaliation statute does not require a showing that the defendant intended to
exert an inhibitory effect on the threatened individual. Id. at *11-*12. Second, the
court determined that “a close examination of the statute supports the conclusion
that retaliation does not require a showing of intent to inhibit the behavior of the
target of the threat.” Id. at *12. This is because Section 36.06(a) of the Penal Code
defines two crimes: retaliation and obstruction. Lindsey, 2011 Lexis 5388, at *12;
see TEX. PENAL CODE § 36.06(a)(1), (a)(2). Obstruction, described in subsection
(a)(2), requires a showing that the defendant intended “to prevent or delay the
service of another” as a public servient. See TEX. PENAL CODE § 36.06(a)(2).
Retaliation, on the other hand, does not. See TEX. PENAL CODE § 36.06(a)(1).
As noted in Lindsey, “The Legislature could have easily included an ‘intent
to inhibit’ element in the definition of retaliation—as it did in the definition of
obstruction—but it chose not to, and it is not in a reviewing court’s province to add
that element.” Lindsey, 2011 Lexis 5388, at *12-13 (citing TEX. GOV’T CODE §
312.055 (requiring reviewing courts to give effect to the Legislature’s intent as
expressed in the statute’s plain language)). The Fourteenth Court of Appeals in
Houston came to the same conclusion:
The crime of retaliation does not require intent to follow through with a threat. It is not an element of the crime. So long as a person issues a threat, knowingly and intentionally, and for the reasons set out in the statute, then she is guilty of the crime. 16 Lebleu v. State, 192 S.W.3d 205, 211 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d).
Finally, the court in Lindsey noted the conflicting authority found in Wilkins
and explained why it would not follow the Amarillo Court of Appeals:
The Wilkins court cites only Doyle in asserting that a showing of the defendant’s “intent to inhibit” is necessary to obtain a retaliation conviction, but Doyle says nothing of the sort. The Doyle Court did recognize that “[a] central purpose of the statute is to encourage a certain class of citizens to perform vital public duties without fear of retribution,” 661 S.W.2d 726, 729 (Tex. Crim. App. 1983), but it did not imply that the defendant must have had the “intent to inhibit” in order to convict. Moreover, as noted, the statute contains no requirement, explicit or implicit, that the defendant actually intend for the victim to hear or appreciate the threat. The making of the threat itself is what is criminalized under the plain language of the statute—not the communication of that threat to the victim.
Lindsey, 2011 Lexis 5388, at *17, n.4.
Because the statutory language is clear that retaliation is not a result-oriented
offense—as confirmed by Lebleu and Lindsey—Appellant’s claim that he should
be granted relief because there was no evidence that he actually intended to harm
Judge Kocurek, or that his statement would inhibit the judge’s service as a public
official, is without merit. Consequently, his first point of error should be overruled.
In the final analysis, Appellant’s first point of error should be denied
because the court did not abuse its discretion in determining that he violated the
terms of his deferred-adjudication community supervision. Significantly, “[p]roof 17 by a preponderance of the evidence of any one of the alleged violations of the
conditions of community supervision is sufficient to support a revocation order.”
Cantu, 339 S.W.3d at 691-92 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex.
Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim.
App. [Panel Op.] 1980); and Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—
Fort Worth 2005, pet. ref’d.)).
As previously established, there is sufficient evidence that Appellant
violated numerous terms of his community supervision, including: failing to allow
the probation officer to conduct the scheduled home visit; failing to participate in
Global Positioning System; and committing the offense of retaliation against Judge
Kocurek. 3 RR 139. The court subsequently found Appellant guilty of violating the
protective order. 3 RR 139.
As required, the State proved by a preponderance of the evidence that the
Appellant violated the terms and conditions of his community supervision. The
State satisfied its burden because the greater weight of the credible evidence before
the court created a reasonable belief that it was more probable than not that
Appellant violated his community supervision conditions. In this case, the trial
court’s determination was not “so clearly wrong as to lie outside the zone within
which reasonable persons might disagree.” Because the trial court is the sole judge
of the credibility of the witnesses and the weight to be given their testimony, and
18 viewing the evidence in the light most favorable to the trial court, Appellant’s
point of error should be overruled.
THE STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR
Appellant’s statements were true threats, which are not protected speech. Under the applicable objective standard, the threats would be interpreted by a reasonable person as serious threats to inflict harm.
In his second point of error, Appellant argues that his statements were not
threats, but rather constitutionally-protected speech given the context of the
conversation in which those statements were made. Appellant’s Brief at 12.
Specifically, Appellant points to his testimony during the revocation hearing that,
during the conversation in question outside the GPS monitoring business, he
allegedly stated, “I’m going to pursue this no matter how long it takes. I’m going
to pursue and find me a good lawyer to . . . address it.”2 Appellant’s Brief at 12; 3
RR 105. Appellant’s point of error should be overruled. First, threats are not
protected speech. Second, the objective standard applicable to this issue indicates
that the trial court properly determined that Appellant’s statements were threats.
Applicable Law:
2 Only Appellant himself, when he took the stand, produced evidence of making such a statement. No other witness or testimony corroborates his self-serving statement. 19 The Austin Court of Appeals has held that an objective standard applies
when considering whether a statement qualifies as a threat:
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.
Manemann v. State, 878 S.W.2d 334, 337 (Tex. App.—Austin 1994, no pet.),
citing United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990).
The test is whether the threat would “justify apprehension by an ordinary
hearer,” not whether the threat actually caused the recipient to become
apprehensive. Manemann, 878 S.W.2d at 337. Threats need not be directly
communicated. Id. Additionally, “Alleged threats should be considered in light of
their entire factual context, including the surrounding events and the reaction of the
listeners.” Id.
Courts applying the objective standard to factually comparable cases have
determined that expressions similar to those made in the instant case were threats.
See, e.g., id. at 338. In Manemann, the Appellant called a police officer and said, “I
know where you work and I’m going to get your ass, mother fucker.” Id. at 336.
The Austin Court of Appeals applied the objective standard and determined that:
The trial court, as the fact finder, could rationally conclude that a reasonable person would understand the telephone communication to [the police officer] as a threat to inflict serious
20 bodily injury or to commit a felony, intentionally made in a manner likely to alarm an ordinary recipient.
Id. at 338.
Accordingly, this Court in Manemann determined that the evidence was
sufficient to support the trial court’s determination that the threat was unlawful
speech not protected by the U.S. Constitution. Id.
In addition, the United States Supreme Court has long recognized that the
Constitution permits government to proscribe “true threats.” Virginia v. Black, 538
U.S. 343, 360 (2003); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)
(“[T]hreats of violence are outside the First Amendment”). The Supreme Court
mandates that the government distinguish between protected expressions and true
threats. See Watts, 394 U.S. at 707 (stressing that any regulation of pure speech
must be interpreted with the First Amendment in mind). Further, “true threats”
include “those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” Black, 538 U.S. at 360
Since the retaliation statute only punishes threatening speech, it does not
implicate a substantial amount of constitutionally protected conduct. Blanco v.
State, 761 S.W.2d 38, 40 (Tex. App. —Houston [14th Dist.] 1988, no pet.).
Similarly, “threats and harassment are not entitled to First Amendment protection.”
Garcia v. State, 212 S.W.3d 877, 888-889 (Tex. App.—Austin 2006, no pet.); see 21 also Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam) (stating that,
“What is a threat must be distinguished from what is constitutionally protected
speech.”); Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 580 (5th Cir. 2005)
(stating that there is a “distinction between communication and harassment” and
that “courts have the power to enjoin harassing communication”); Thorne v.
Bailey, 846 F.2d 241, 243 (4th Cir. 1988) (“Prohibiting harassment is not
prohibiting speech, because harassment is not protected speech.”); Webb v. State,
991 S.W.2d 408, 415 (Tex. App. —Houston [14th Dist.] 1999, pet. ref’d) (“A
threat is not protected speech.”).
Comments can be evaluated as threats based, not just on the language used,
but also the context within which they are uttered, even as veiled threats.
Manemann, 878 S.W.2d at 338. The focus on context derives from Watts, in which
the Supreme Court noted that statutes criminalizing “a form of pure speech must be
interpreted with the commands of the First Amendment clearly in mind. What is a
threat must be distinguished from what is constitutionally protected speech.” 394
U.S. at 707. In Watts, the petitioner, speaking at a public rally near the Washington
Monument, expressed his unwillingness to serve in Vietnam: “I am not going. If
they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”
Id. at 706. The Court concluded that, “taken in context, and regarding the expressly
conditional nature of the statement and the reaction of the listeners [who responded
22 with laughter],” the “kind of political hyperbole indulged in by petitioner” was
merely “a kind of very crude offensive method of stating a political opposition to
the President,” and was not a true threat. Id. at 708.
Based on the evidence in this case, Appellant’s statements were “true
threats” such that the First Amendment does not protect them. As noted, whether
speech constitutes a “true threat” is not determined by the intent of the speaker, but
rather from the viewpoint of a reasonable recipient. Unlike in Watts, the threat in
this case was not conditioned on some future event, nor did the audience respond
with laughter. Rachele Smith, the owner of Victims Safety First, understood the
Appellant’s statements—including “Pow. I’ll kill that fucking judge. I hate Judge
Kocurek”—to be very serious threats. Upon hearing the threats, she immediately
called the police, filed an incident report, and contacted the Appellant’s probation
officer. 3 RR 45. She also contacted a probation supervisor so that Judge Kocurek
would be aware of the threat on her life. 3 RR 45. There is additional evidence that
the Appellant’s statements were true threats from the viewpoint of a reasonable
recipient: upon learning of the threats, Judge Kocurek removed herself from the
case and transferred it to another judge just days after the Appellant made those
threats. CR 51. A separate judge overseeing the revocation hearing also considered
the statements to be true threats when he found three community supervision
23 violations—including retaliation against Judge Kocurek—to be true, revoked
Appellant’s community supervision, adjudicated his guilt, and sentenced him to
four years of confinement in state prison. CR 139; 142. Accordingly, the
Appellant’s second point of error should be overruled.
24 PRAYER
WHEREFORE, the State requests that the Court overrule the Appellant’s
points of error and affirm the judgment of the trial court.
Respectfully submitted,
Rosemary Lehmberg District Attorney Travis County
/s/ Kathryn A. Scales Law Clerk: Micah King Kathryn A. Scales Assistant District Attorney State Bar No. 00789128 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. (512) 854-4206 Kathryn.Scales@traviscountytx.gov AppellateTCDA@traviscountytx.gov
25 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State certifies that the length of this response is 5,343 words, which is within the limits imposed by the Rule. The State also certifies, pursuant to Texas Rule of Appellate Procedure 9.4(e), that a conventional 14-point typeface was used to generate this brief.
/s/ Kathryn A. Scales Kathryn A. Scales
CERTIFICATE OF SERVICE
I hereby certify that, on the 2nd day of January, 2015, the foregoing State’s brief was sent, via U.S. mail, electronic mail, facsimile, or electronically through the electronic filing manager, to the Appellant’s attorney, Amber Vazquez Bode, at 1004 West Avenue, Austin, Texas 78701.