Olivas v. State
Olivas v. State
Opinion of the Court
delivered the opinion of the Court,
A jury convicted appellant of aggravated assault by threat, stalking, and four separate instances of evading arrest, all stemming from his futile, month-long attempt to resurrect a short-lived affair with a married woman. On appeal, he argued that the evidence was insufficient to prove assault by threat because the State failed to prove that the assault victim knew that appellant had shot at her truck at the time that he acted. The court of appeals, finding the evidence legally insufficient, reversed and rendered a judgment of acquittal.
I.
Appellant began stalking and harassing the complainant, Kim Tunnell, in November, 2001. Ms. Tunnell had been romantically involved with appellant, but, after deciding to attempt reconciliation with her husband, she ended the relationship. Appellant began calling Ms. Tunnell and leaving voice messages on her cell phone. While the messages were initially innocuous, they became increasingly violent and demanding.
Just two weeks later, on December 12, 2001, Ms. Tunnell was driving to the laundromat when appellant drove up behind her. He then drove his car into the oncoming-traffic lane, and Ms. Tunnell noticed that the front passenger window was rolled half-way down. She recognized the car-it belonged to appellant’s mother-but she could not immediately tell who was driving it.
Appellant called Ms. Tunnell on several occasions following this incident. On two of those occasions, the police were able to find appellant, but both times he led the police on high-speed chases and was able to escape arrest.
A jury convicted appellant and sentenced him to 35 years in prison. He appealed, arguing that the State failed to prove the element of “threaten with imminent bodily injury.” He argued that, because Ms. Tunnell did not realize that he was shooting at her car while he was committing the act, she had not been “threatened” as required under Texas Penal Code Section 22.01(a)(2). The court of appeals
II.
Historically, the term assault was used to describe two different acts-one subject to criminal liability and the other subject to civil liability. Early criminal assault was defined as an “attempt to commit a battery.”
Nearly every jurisdiction now statutorily criminalizes assault by threat in some manner, and most statutes specify whether the threat must be perceived or received by the intended victim. For example, Colorado enacted a statute criminalizing menacing: “A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury.”
Texas’s assault-by-threat statute states, in pertinent part: “A person commits an offense if the person ... intentionally or knowingly threatens another with imminent bodily injury[.]”
When determining a statute’s meaning, a court must first attempt to interpret the statute based on the plain meaning of the words used.
1. to declare an intention of hurting or punishing; to make threats against;
2. to be a menacing indication of (something dangerous, evil, etc.); as the clouds threaten rain or a storm;
3. to express intention to inflict (injury, retaliation, etc.);
4. to be a source of danger, harm, etc. to.19
Significantly, each of these definitions indicates an act being performed, as opposed to an act which is perceived by an outside party. Thus, these definitions indicate that a threat occurs, not when the victim perceives the threat, but as soon as the actor utters the threatening words or otherwise initiates the threatening conduct. Black’s Law Dictionary defines “threat”
The Texas Penal Code contains two statutes, other than assault by threat, that specifically criminalize threats or threatening behavior. They are: terroristic threat
A person commits robbery by threat if “in the course of committing theft ... he ... intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”
Similarly, the terroristic-threat statute states: “A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to place any person in fear of imminent serious bodily injury.”
This interpretation of “threaten” is supported by at least one other jurisdiction. In the District of Columbia, the assault statute reads: ‘Whoever unlawfully assaults, or threatens another in a menacing manner, shall be fined_”
While certain conceptual aspects of tort theory have been absorbed into the criminal offense of assault, it is not necessarily the case that the victim must be shown factually to have experienced ap*347 prehension or fear in order to establish the offense. In our view the better position holds that although the question whether the defendant’s conduct produced fear in the victim is relevant, the crucial inquiry remains whether the assailant acted in such a manner as would under the circumstances portend an immediate threat of danger to a person of reasonable sensibility.28
This intent-based theory of assault by threat also comports with the societal interest in establishing criminal law:
The purpose of criminal law is to define socially intolerable conduct, and to hold conduct within the limits which are reasonably acceptable from the social point of view. If the criminal law was one hundred percent effective there would be no punishment, because there would be no conduct which overstepped the
boundaries it had established. An incidental but very important function of the criminal law is to teach the difference between right and wrong.
The act of threatening violates this interest not only when the actor actually causes fear in another, but also (1) when he creates an unacceptable risk that another may be placed in fear, and (2) when he increases the likelihood that he will carry through on a threat and cause a physical injury.
However, the court of appeals in the present case-as well as some other Texas courts-have interpreted this Court’s reasoning in McGowan v. State
McGowan is not that broad of a holding. That case involved a woman and her fourteen-year-old daughter who were attacked by the defendant.
A careful examination of the cases relied upon in McGowan, as well as the language used in the opinion itself, indicates that this Court did not define assault by threat as requiring a victim’s perception of the threat.
III.
However, we need not definitively resolve the question of whether an alleged victim must perceive the defendant’s threat to establish the crime of assault by threat in this case. Even assuming, ar-guendo, that the State must prove Ms. Tunnell perceived the threat, there is legally sufficient evidence to sustain the jury’s verdict. In concluding that Ms. Tunnell did not perceive a threat, the court of appeals failed to view all of the evidence in the light most favorable to the verdict. The record is replete with evidence that Ms. Tunnell felt threatened by appellant on several occasions leading up to the charged incident. While this evidence does not prove that Ms. Tunnell perceived a threat on the evening in question, it does support an inference that her state of mind on that evening was affected by appellant’s previous actions.
• «she felt “threatened and very uneasy” after hearing the messages that appellant left on her voice mail on November 26, 2001;
• «she felt “threatened ... as though he was going to do something” to her after hearing the message that appellant left on her voice mail on November 27, 2001;
• *she recorded the messages that appellant had left on her voice mail and turned them over to the police;
• «she went to her attorney’s office to obtain a restraining order against appellant;
• «she was “scared” and “concerned” by appellant’s actions of hitting her truck window with a pistol, and left her attorney’s parking lot out of fear for her safety; and
• «she began carrying a gun “for protection” against appellant.
Furthermore, ample evidence shows that Ms. Tunnell did perceive the threat made by appellant at the time the offense occurred. On the evening of the charged incident:
• «she saw a car that she knew belonged to appellant’s mother’s pull up behind her “at a very high rate of speed.” She suspected that appellant was driving the car;
• «she then saw the car pull up next to her, driving in the oncoming traffic lane;
• «she heard two pops that “sounded like rocks” hitting her truck;
• •after she arrived at her destination, she looked at the side of the car to see if appellant “had hit [her] truck with a rock or what it was”;
• «she discovered a bullet hole in the side of her truck, and immediately called the police;
• «she was “scared” and “in disbelief’ at appellant’s actions and she “really didn’t know if he intended to kill [her].”
This evidence indicates that Ms. Tunnell perceived a threat as appellant shot at her truck. While she did not instantaneously realize that appellant had fired shots at her, she knew that he had done something threatening to her. And she was frightened. The fact that Ms. Tunnell perceived some threat of imminent bodily injury, coupled with the fact that appellant did use a firearm in threatening her, is sufficient to sustain his conviction for aggravated assault as charged in the indictment. The indictment charged that appellant “did then and there intentionally, knowingly, and recklessly threaten Kim Tunnell with imminent bodily injury and did then and there use and exhibit a deadly weapon, to wit: a firearm.” Nothing in this indictment-and nothing in Texas law-requires Ms. Tunnell to accurately perceive the exact threat that appellant communicated. At most, the State was required only to prove that Ms. Tunnell perceived a threat and that appellant did, in fact, use or exhibit a firearm while making that threat.
Appellant also argues that the victim of an assault by threat must be aware “of her imminent peril as the shots were being fired.” The statute requires the State to prove that the defendant “threaten[ed] another with imminent bodily injury,” but there is no statutory requirement that a victim must instantaneously perceive or receive that threat of imminent bodily injury as the actor is performing
Because there is ample evidence to find that appellant threatened Ms. Tunnell as required under the Texas Penal Code, we reverse the judgment of the court of appeals and remand the case to that court to address appellant’s remaining points of error.
. Olivas v. State, No. 10-02-00311-CR, 2004 WL 2566607, 2004 Tex.App. LEXIS 10131 (Tex.App.-Waco 2004) (not designated for publication). The court of appeals affirmed appellant’s stalking conviction in the same opinion, and reversed three of his four convictions for evading arrest in a separate opinion. Olivas v. State, No. 10-02-00312-CR, 2004 WL 2566742, 2004 Tex.App. LEXIS 10134 (Tex.App.-Waco 2004) (not designated for publication). We granted the State’s petitions for discretionary review in both cases.
. The State’s grounds for review are:
1) Did the court of appeals incorrectly apply a legal sufficiency review and err in concluding that the evidence was insufficient?
2) Should this Court reconsider the holding in McGowan v. State, 664 S.W.2d 355 (Tex.Crim.App. 1984), which requires a victim to perceive a threat at the time the offense occurred?
. McGowan, 664 S.W.2d at 357.
.The messages included statements such as:
• «"Please just talk to me. Just pick up your phone. I don't want — I wouldn’t hurt you. I wouldn't hurt your husband.... I know the value of love of children and the importance of that. I don’t care how much I hate somebody, I wouldn’t do that. And this isn’t about your husband or this isn’t about you. This is about me and my life.”
• «"Kim — pick up the phone. Why you want to hurt me so bad? Why do you want to make me so angry? It ain't P * *ing worth it, Kim — if I knew where that moth-erP * *er lived I’d go over there and P * *ing kill him right now. I’m sure — • because I’m sure you’ve been there....”
• «"You gonna stay up to 2:30 in the morning again, huh? Do you think that's going to stop me from something, Kim? Do you think anything is going to P * *ing stop me from something? You’re playing on my P * *ing emotions. Nothing can P * *ing stop me ...”
*343 • «''This s* * * again. Start a new P * *ing case, Kim. Is that what your bulls* * * is all about? — worst thing you could do.”
• «"Keep this s* * * up, see what happens. See what happens. You’re writing your own P * *ing destiny....”
• «"Pick up the damn phone before I P * *ing come over there break through the P * *ing front door.”
• *"[F]* * *ing lock yourself in your house — • I guess you’ll have to see, won’t you ... you're going to P * *ing pay for it. I learned my lesson the first time — count your friggin' hours.”
. Ms. Tunnell stated that she suspected that it was appellant "the entire time” but she did not know for sure until she was standing outside of her truck in the laundromat parking lot.
. These chases, along with the chase on December 12, 2001, are the bases of the three convictions for evading arrest.
. Olivas, 2004 WL 2566607 at *1, 2004 Tex.App. LEXIS 10131 at *3.
. See Model Penal Code § 211.1, cmt. at 176-77 (1980).
. Id.
. 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b) at 568 (2d ed. 2003). For example, “if, with the intention of hitting X, D wrongfully threw a stone that X barely managed to dodge, then D would have been guilty of a criminal assault because he had attempted to commit a battery, and he would also have been liable in civil action of trespass for assault because he had wrongfully placed X in apprehension of physical harm." Rollin M. Perkins, Criminal Law 159 (3d ed. 1982). If, on the other hand, D-an ace pitcher-had thrown the stone intending to scare X but carefully aiming his fastball four inches above X's head (acting with the intent to frighten X, but not to physically harm him), then X would be liable for civil assault, but not guilty of criminal assault under the common law.
. Model Penal Code § 211.1, cmt. at 177 (noting that "[t]he majority of jurisdictions at the time the Model Code was drafted had assimilated this civil notion of assault into the criminal law”). See, e.g., Alaska Stat. § 11.41.230 ("A person commits the crime of assault in the fourth degree if ... by words or other conduct that person recklessly places another person in fear of imminent physical injury.”). According to Professor Perkins,
An assault is (1) an attempt to commit battery or (2) an intentional placing of another in apprehension of receiving an immediate battery. Furthermore, (3) an assault is included in any actual battery.
Perkins at 159.
. Perkins at 159.
. Model Penal Code § 211.1(1)(c).
. Colo.Rev.Stat. § 18-3-206(1).
. See People v. Stout, 193 Colo. 466, 467, 568 P.2d 52, 53-54 (Colo. 1977) ("The statute provides for conviction if the defendant 'attempts’ to place another in fear, and thus, actual subjective fear on the part of the victim is not a necessary element of this crime.”); see also Or.Rev.Stat. § 163.190 ("A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury”); State v. Lockwood, 43 Or.App. 639, 642-43, 603 P.2d 1231, 1233 (1979) ("Menacing consists of intentionally attempting to place another person in fear of imminent serious physical injury. The victim’s subjective state of mind is not a defined element of the crime. The victim’s testimony is not essential.”; noting that the commentary to the statute includes an example that the "intended victim is unaware of the actor's threat, e.g., he is blind and does not know the actor is pointing a gun at him”).
. Idaho Code Ann. § 18-901(b).
. Tex Penal Code § 22.01(a)(2).
. Calton v. State, 176 S.W.3d 231, 233 (Tex.Crim.App. 2005) (citing State v. Mason, 980 S.W.2d 635, 638 (Tex.Crim.App. 1998), and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991)).
. Noah Webster, Webster's New Twentieth Century Dictionary of the English Language Unabridged 1901 (2d ed. 1983).
. Black’s Law Dictionary 1203 (7th ed. 2000).
. Boykin, 818 S.W.2d at 786.
. See Tex. Penal Code § 22.07(a)(2).
. See Tex. Penal Code § 29.02(a)(2).
. Id.
. Tex. Penal Code § 22.07(a)(2).
. A person must both threaten to commit some act and must do so with the intent to place another in fear to be convicted of ter-roristic threat. However, "it is not necessary that the victim or anyone else was actually placed in fear of imminent serious bodily injury.... All that is necessary to complete the offense is that the accused by his threat sought as a desired reaction to place a person in fear of imminent serious bodily injuiy.” Dues v. State, 634 S.W.2d 304, 305-06 (Tex.Crim.App. 1982). This interpretation is based on the plain meaning of the statute which specifically requires only the intent to "place any person in fear of imminent serious bodily injury.” Tex Penal Code § 22.07(a)(2).
. D.C.Code § 22-404(a).
. Anthony v. United States, 361 A.2d 202, 206 (D.C. 1976) (footnote omitted); see also Chapman v. State, 78 Ala. 463, 465 (Ala. 1885) (noting that "one may obviously be assaulted, although in complete ignorance of the fact, and, therefore, entirely free from alarm" if the defendant intended to injure and had the ability to do so); State v. Adamo, 9 N.J.Super. 7, 10, 74 A.2d 341, 342 (App.Div. 1950) (upholding strike leader’s assault conviction on proof that he, along with others, threw stones into building where supervisors had retreated with the intent to injure anyone in the building; prosecution was not required to show that any of the supervisors were actually placed in fear of imminent bodily injury because "apprehension upon the part of a complaining witness is not an essential element of simple assault”).
. Rollin M. Perkins, Criminal Law 5 (3d ed. 1982).
. 664 S.W.2d 355 (Tex.Crim.App. 1984).
. See Rose v. State, 2006 WL 1194322, *3, 2006 Tex.App. LEXIS 3705, *8 (Tex.App.-Dallas 2006, no pet. h.) (not designated for publication) (stating that evidence was sufficient to establish assault by threat because victim perceived his peril at the time defendant drove toward him in his car, and he felt threatened); Armitige v. State, 1999 WL 102207, *3, 1999 Tex.App. LEXIS 1366, *7-8 (Tex.App.-San Antonio 1999, no pet.) (not designated for publication) (citing McGowan for the proposition that "[w]hen robbery is committed, the defendant must display a weapon, or demonstrate the use of a weapon, and the complainant must witness the act of display or demonstration to establish a threat”); Richardson v. State, 834 S.W.2d 535, 537 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (not designated for publication) (stating that "the McGowan court held the evidence was insufficient to show the defendant used a knife to threaten the complainant because the complainant never saw the defendant holding a knife, nor did she testify that defendant threatened her with a knife”). See also Edwards v. State, 57 S.W.3d 677, 682 (Tex.App.-Beaumont 2001, pet. ref'd) (Burgess, J. dissenting) (arguing that evidence was insufficient to show an assault by threat because police-officer victim never perceived the threat posed by the defendant; "I would urge our Court of Criminal Appeals to review this case, overrule McGowan and affirm the majority. But until it does so, I must follow McGowan.”). However, other courts have read McGowan less restrictively, requiring only that the State present some evidence of an attempted communication of a threat to sustain an assault by threat charge. See Ed
. Olivas, 2004 WL 2566607 at *1-2, 2004 Tex.App. LEXIS 10131 at *3-4.
. McGowan, 664 S.W.2d at 357.
. Id.
. Id.
. Id.
. Id. at 358.
. The first case relied upon in McGowan is Taylor v. State, 637 S.W.2d 929 (Tex.Crim.App. 1982). In Taylor, the defendant and two others robbed a grocery store. One co-defendant had a gun, but the defendant and the third conspirator had no weapon. The appellant attacked the cashier, Mrs. Gregorcyk, and threatened to kill her if she did not remain quiet. He then restrained her as the other unarmed conspirator stole money from the register. The armed co-defendant was in the back of the store during the entire robbery. He threatened another store employee with the gun, but never approached Mrs. Gre-gorcyk. Although Mrs. Gregorcyk testified that she had seen what appeared to be the "imprint of a small pistol in the front pants pocket of the appellant’s co-defendant ... she never saw a gun displayed. She was 'placed in fear of imminent bodily injury through the ... beating [she sustained] and not through the use of a handgun.’ ” Id. at 931. This Court found that, because the State failed to prove that the defendant used a deadly weapon to threaten Mrs. Gregorcyk, the aggravat
The second case cited in McGowan is Benjamin v. State, 621 S.W.2d 617 (Tex.Crim.App. 1981). In Benjamin, a bystander was shot when the defendant and a co-worker began fighting. The court held that "[t]he evidence fail[ed] to establish that any threats were made" to the bystander. Id. at 619. That is, the bystander was simply shot; he was never threatened first.
. McGowan, 664 S.W.2d at 357 (emphasis added).
. An actor might threaten to stab by holding a knife overhead and telling the victim, "I'll kill you,” or by his conduct of waving the knife in the air or making some other threatening gesture. An actor might commit attempted assault by stabbing at the victim and fortuitously missing. An actor might commit assault by successfully stabbing the victim, with or without any threats. Or he might do all three.
. Appellant argues that the incidents leading up to the shooting "do not address the victim’s perception and awareness of her imminent peril as the shots were being fired.” We disagree. The previous incidents support a logical inference that Ms. Tunnell was in a more cautious state of mind and heightened awareness. Evidence such as the fact that she started carrying a gun and had become "cautious of [her] surroundings” supports an inference that Ms. Tunnell was more likely both to perceive a threat made by appellant and more likely to perceive his acts as constituting a threat.
. The State also argues that "[the] fact that appellant continued to aggressively stalk and threaten Tunnell immediately after the December 12th offense could also be considered by a rational jury as evidence that [Ms.] Tun-nell was threatened with imminent bodily injury on December 12th.” While we agree that the post-December 12th evidence of stalking does tend to make it more likely that appellant’s actions on December 12th were threats (or at least attempted threats), such evidence could not have been used by the jury-and cannot be used by this Court-to find
. For example, in the context of a terroristic threat, a threatening note left on a victim’s doorstep cannot be received at the instant it is written, nor at the instant it is left. However, the victim, arriving home moments (or even hours) later, still receives the communicated threat as if the words came directly from the actor’s mouth. Or some may recall the scene in Fatal Attraction, when Glen Close left the pet rabbit in a pot of boiling water for her lover’s wife to find. Nobody saw her as she dropped the bunny into the boiling water. No one knew how long it sat on the stove. Yet the unsuspecting wife certainly received the threat when she came home to find the bubbling pot. In neither the context of a terroristic threat or of an assault by threat is the victim required to perceive the threat at the very instant of the defendant’s threatening act.
. The record is unclear as to precisely how much time passed between the moment appellant shot at Ms. Tunnell and the time that she reached the laundromat. However, the evidence does show that Ms. Tunnell was driving down the road that the laundromat was located on when appellant fired the shots.
.This is evidenced by her testimony:
Q. [Wjhat did you do after you noticed the bullet hole in the truck?
A. I called the police.
Q. How did you feel?
A. I was shocked. I was upset. I was scared. I was in disbelief. I really could not believe that he did that.
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Q. How did you take the actions of the defendant towards you? How did you take that?
A. I took them as intent to harm me. As— I really didn’t know if he intended to kill me or what the deal was.
Concurring Opinion
filed a concurring opinion in which KEASLER, and HERVEY, JJ., joined.
I agree with the Court’s conclusion that the assault statute does not require that the victim perceive the defendant’s conduct for that conduct to constitute a “threat.” The Court’s careful and thorough analysis is more than sufficient to support such a holding, and the conclusion is sufficient to dispose of this case. Having laid the groundwork for the conclusion, the Court gains nothing by stopping just short of making it a holding.
Nevertheless, I find some of the Court’s discussion on this question problematic. The issue before us is whether a victim must perceive conduct in order for that conduct to be a threat. A couple of issues not before us are whether the victim must be subjectively frightened for the act to be a threat, and whether (if fright is required) “threat” is judged subjectively or by a “reasonable person” standard. Some of the examples the Court uses and cases to which the Court cites are pertinent only to the latter questions.
I also do not find the Fatal Attraction example and the threatening-note example to be helpful. In both of those cases, there is a threat to harm the victim by an act in the future. In the present case, there was no threat to act in the future-the threat and the conduct were one and the same.
Reference
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- Raymond OLIVAS, Appellant v. the STATE of Texas
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