Robert Lyonell Phillips v. State , 401 S.W.3d 282 ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00216-CR
Robert Lyonell PHILLIPS,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CR-7945
Honorable Raymond Angelini, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: March 13, 2013
AFFIRMED AS MODIFIED
Robert L. Phillips appeals his convictions for coercion of a public servant and terroristic
threat arising out of statements he made during a series of phone calls to the 911 emergency line
of the San Antonio Police Department. In two issues, Phillips challenges the legal sufficiency of
the evidence to support his convictions. We affirm, but modify the trial court’s judgment to
correct a clerical error.
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FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed. On the evening of February 23, 2011, Phillips made a series of
phone calls between 8:00 p.m. and 11:00 p.m. to the San Antonio Police Department (SAPD)
911 emergency line. He repeatedly demanded that a police officer be immediately dispatched to
his home to make a report documenting the fact that he did not receive visitation with his
daughter that night between 6:00 and 8:00 p.m. Even though Phillips was instructed that it was a
non-emergency civil matter, he continued calling the 911 line. Phillips told more than one 911
operator not to send a particular police officer, Officer Steve Christian, to his house and stated he
would “blow his brains out” if he showed up. The 911 operators each varied from their normal
procedure and sent a message to the dispatcher warning of Phillips’ threat against Officer
Christian and recommending that he not be sent to that location. A different police officer was
dispatched and made contact with Phillips at his home. The officer found Phillips to be upset but
calm, and advised him to contact the court because the matter was a civil issue.
Phillips was indicted for three offenses arising out of his statements to the 911 operators
that night: Coercion of a Public Servant (Count I); Terroristic Threats (Count II); and Retaliation
(Count III). Phillips pled not guilty and proceeded to a jury trial on Counts I and II. The State
waived Count III.
The trial evidence consisted of the testimony of the three 911 operators who took
Phillips’ calls, the recordings of the calls and the testimony of the SAPD custodian of records
who authenticated the recordings, the testimony of the officer who was dispatched to Phillips’
house who identified Phillips’ voice on the recordings, and the testimony of a detective that
Christian was a police officer and that, to his knowledge, Phillips was not a member of a
governmental body. Officer Christian, against whom the threat was directed, did not testify.
The trial testimony is briefly summarized below.
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Amanda Hernandez was an SAPD 911 operator on the night in question and received two
calls around 9:33 p.m. An audio recording of the two calls (Call Nos. 4 and 5) was admitted into
evidence as State’s Exhibit No. 1 and played for the jury. During Call No. 4, after Hernandez
informs Phillips that it is likely that Officer Christian will be sent out, Phillips states, “… he
cannot come out here because if he comes out here and I see him, I’m going off on him ... Now,
I’m not playing with y’all any more. This is not a joke. This is not a game. If you send S.
Christian out here, there’s gonna be a problem.” Phillips later calls back (Call No. 5) wanting to
know why an officer has not arrived. When Hernandez asks what he is reporting, Phillips
answers, “A visitation violation report and the fact that they sent out S. Christian, his Badge No.
is 279, and they know that this police officer is not to come out to my house, but they continue to
send this police officer out to my house knowing that me and this police officer has had an
alternacation [sic] but yet they still want to send this police officer out and, I’m sorry, but that is
not acceptable.” Hernandez testified she has no control over which officer gets dispatched on a
particular call. However, she did send a message to the dispatcher stating, “Do not send Officer
Christianson [sic];” she would not normally do that in the course of her duties as an operator.
Kristene De Los Santos was another 911 operator working that night who received a call
from Phillips. The recording of the call, denoted as Call No. 7, was admitted into evidence as
State’s Exhibit No. 2a. The caller gives his name as “Robert Phillips.” After expressing his
frustration in colorful language about the difficulty he is having in making a report, Phillips
demands that an officer be sent to his home within ten minutes or he will continue calling. De
Los Santos tells Phillips to call the non-emergency number because it is a civil matter, which
upsets Phillips. He replies, “this is what I gotta do to get y’all’s attention,” and states he will
continue calling the 911 line until an officer arrives. De Los Santos testified that she sends the
information from the emergency and non-emergency calls to the dispatch center and that it is up
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to the dispatcher to send out an officer according to the priority of the call. In demanding that
she send an officer out within ten minutes, Phillips was demanding something she could not do.
De Los Santos did, however, send a note to the dispatcher that Phillips wanted an officer to
respond right away or he would continue to call every ten minutes.
Yvonne Jaramillo is the 911 operator named as the complainant in Count I of the
indictment charging Phillips with coercion of a public servant. She testified that she works for
the SAPD Communications Unit. On February 23, 2011, she received a call (Call No. 8) from a
person who identified himself as “Robert Phillips” and stated he was a nursing assistant.
Jaramillo stated that Phillips was rude and abusive. The recording of the call was admitted into
evidence as State’s Exhibit No. 3; Jaramillo identified the recording as the call she received from
Phillips. Jaramillo testified that Phillips was requesting that an officer be sent to his home to
make a report, but he did not want “Officer S. Christian” sent out or he would “blow his head
off.” Specifically, Phillips states on the recording, “As long as it’s not S. Christian, Badge No.
279, because if he comes out, you know what . . . since we’re being recorded I’m gonna put this,
if he comes out I’m gonna blow his mother-f***ing brains out. And that’s where it stands.” He
repeats the same statement a second time and adds, “I’m not playing with y’all any more. This
sh*t is serious and I’m not playing. I’m serious. So you be stupid if you want to. And you send
this stupid-*ss police officer out he’s gonna get his head blown off.” Jaramillo testified that as a
911 operator she has no control over which officer is sent out on a call, but she knew it was
likely the same officer would be assigned. The dispatcher assigns an officer within the district to
a particular call depending on the availability of the officers. Jaramillo was so concerned that
she sent a message to the dispatcher warning not to send Officer Christian because Phillips “was
going to blow his brains off [sic].” Jaramillo stated she was scared and worried because Phillips
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“was threatening the officer’s life.” She testified that with his threat, Phillips was trying to get
her to do her job differently than she normally would.
Joel Nelson, custodian of records for the SAPD Communications Unit, testified that he
maintains the database for all incoming emergency and non-emergency calls. Nelson explained
that the calls are automatically recorded to a database and the operators type in the information
from the call in a different database and then send that message to the dispatcher, who prioritizes
the calls by area and sends out an officer. Nelson authenticated State Exhibit Nos. 1-3 as the
copies he made of the 911 calls from Phillips on February 23, 2011.
Officer Thomas Sowell testified he arrived at Phillips’ house at approximately 11:00 p.m.
on February 23, 2011. Phillips was upset that an officer had not arrived sooner, stating that he
had made several calls to 911 because he did not receive visitation with his daughter that night
and wanted to document it. Officer Sowell made a report but told Phillips it was a civil matter
and advised him to contact the court. Phillips showed Sowell about 100 case numbers of
previous reports he had made about visitation violations. Phillips was calm and did not make
any threats against Sowell. Upon returning to his patrol car, Sowell saw the keycard message
about Phillips’ threat against Officer Christian; he then left a message for Christian giving him a
“heads up” about Phillips. Officer Sowell identified Phillips’ voice on the three 911 recordings
admitted as State Exhibit Nos. 1, 2 and 3.
Finally, Mark Clancy, the SAPD detective who investigated the case, testified that Steve
Christian is an SAPD police officer with Badge No. 279 who is assigned to east patrol which
covers the district where Phillips lives.
The jury found Phillips guilty on Counts I and II. Phillips was sentenced to five years’
imprisonment on each count concurrently, but the trial court suspended the sentence and placed
Phillips on community supervision for five years. Phillips now appeals.
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LEGAL SUFFICIENCY OF THE EVIDENCE
Standard of Review
In reviewing the legal sufficiency of the evidence, we determine whether, viewing all the
evidence in the light most favorable to the verdict, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The essential
elements of the crime are the elements of the offense as defined by a hypothetically correct jury
charge, which 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.”
Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012) cert. denied, 133 S. Ct. 536
(2012) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The law “as
authorized by the indictment” consists of the statutory elements of the offense as modified by the
charging instrument. Johnson, 364 s.W.3d at 294; Curry v. State, 30 S.W.3d 394, 404 (Tex.
Crim. App. 2000). In conducting a legal sufficiency review, we defer to the jury’s assessment of
the credibility of the witnesses and the weight to be given to their testimony. Brooks, 323
S.W.3d at 899. The jury may make reasonable inferences from the evidence presented.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (jury may draw reasonable
inferences from the basic facts to the ultimate facts). This legal sufficiency standard applies
equally to both direct and circumstantial evidence. King v. State, 29 S.W.3d 556, 565 (Tex.
Crim. App. 2000).
Coercion of Public Servant (Count I)
Section 36.03 of the Penal Code defines the offense of coercion of a public servant in
relevant part as:
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(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in . . . a specific
performance of his official duty . . . .
(b) An offense under this section is a Class A misdemeanor unless the coercion is a
threat to commit a felony, in which event it is a felony of the third degree.
TEX. PENAL CODE ANN. § 36.03(a)(1), (b) (West 2011). Section 1.07 of the Penal Code defines
“coercion” to mean “a threat, however communicated: (A) to commit an offense; (B) to inflict
bodily injury in the future on the person threatened or another . . . .” TEX. PENAL CODE ANN.
§ 1.07(a)(9) (West Supp. 2012).
Here, the indictment alleged that Phillips did “intentionally or knowingly ATTEMPT TO
INFLUENCE A PUBLIC SERVANT, NAMELY: Yvonne Jaramillo . . . IN THE SPECIFIC
PERFORMANCE OF HER OFFICIAL DUTY, by means of coercion BY THREATENING TO
COMMIT A FELONY, TO WIT: ASSAULT ON A PUBLIC SERVANT, and defendant was
not then a member of the governing body of a governmental entity and was not taking official
action as a member of such a governing body.” 1 Thus, Phillips was charged with felony
coercion of a public servant by attempting to influence Jaramillo in the performance of her duties
as a 911 operator by threatening to commit the felony offense of assault on a public servant.
The jury charge tracked the language of the indictment and instructed the jury that the
charged offense is a felony if the coercion is a “threat to commit a felony” and that “assault on a
public servant is a felony.” The charge then defined the offense of assault on a public servant as
intentionally or knowingly causing bodily injury to a person the actor knows is a public servant
1
Subsection (c) of section 36.03 provides that it is an “exception to the application of Subsection (a)(1),” i.e., to the
offense of coercion of a public servant, when the person attempting to influence the public servant is himself a
member of the governing body of a governmental entity and is engaged in an official action. TEX. PENAL CODE
ANN. § 36.03(c) (West 2011). The indictment alleged the negation of the exception, and Detective Clancy testified
that, to the best of his knowledge, Phillips was not a member of a governing body of a governmental entity at the
time he made the 911 calls. This element is not relevant to Phillips’ issues on appeal. See Tobias v. State, 884
S.W.2d 571, 578 (Tex. App.—Fort Worth 1994, pet. ref’d) (holding that negation of exception is defined to be an
element of the offense).
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while the public servant is discharging an official duty, or in retaliation or on account of an
exercise of official power or performance of an official duty. See TEX. PENAL CODE ANN.
§ 22.01(a)(1), (b)(1) (West 2011).
Therefore, as defined by the statute, indictment, and charge, the essential elements the
State was required to prove are that Phillips: (1) attempted to influence Jaramillo, a public
servant, (2) in the specific performance of her official duty (3) by means of coercion, which
consisted of threatening to commit a felony, (4) which threatened felony was assault on a public
servant.
On appeal, Phillips raises two issues that he phrases as a variance: (1) whether Yvonne
Jaramillo was the correct complainant since the scope of her duty did not include dispatching a
particular officer; and (2) whether the threatened felony offense, i.e., the assault, must be against
the public servant being coerced (Jaramillo) or can be against a third person (Christian). Phillips
argues that a fatal variance between the pleadings in the indictment and the proof at trial exists
on both issues which renders the evidence legally insufficient to support his conviction.
There are two types of variance between pleading and proof—statutory and non-
statutory. Johnson, 364 S.W.3d at 294. The first occurs when the statutory language specifies
alternate methods by which the offense may be committed and the indictment pleads one method
but the State proves an unpled method. Id. The failure to prove the statutory language pled in
the charging instrument is always a material variance and renders the evidence legally
insufficient to support the conviction. Id. at 294–95, 298; Cada v. State, 334 S.W.3d 766, 768
(Tex. Crim. App. 2011) (variance between the pleading of one statutory element and proof of a
different statutory element is a material variance). The second type of variance involves a non-
statutory allegation that is descriptive of the offense, such as when the indictment charges
“Mary” was the victim but the evidence at trial proves the victim was “John.” Johnson, 364
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S.W.3d at 294. In determining whether such a non-statutory variance is material or immaterial,
the appellate court focuses on whether the proof at trial shows “an entirely different offense”
than what was alleged in the charging instrument. Id. at 295.
Phillips states that his complaint with respect to both issues is based on the first type of
variance—a statutory variance in which the indictment pled one statutory method of committing
the offense but the State proved a different statutory method. The section 36.03 offense, as pled,
was that Phillips attempted to influence a public servant, Jaramillo, in the performance of her
official duty by coercion, specifically by threatening to commit a felony (assault against a public
servant). As discussed below, the evidence matched what was pled in the indictment; therefore,
there is no variance and no legal insufficiency.
(1) Jaramillo as Complainant: Public Servant to be Influenced
With respect to his argument that Jaramillo was the wrong complainant, Phillips argues
the variance arises because the State pled that Jaramillo was the public servant who he sought to
influence, but the evidence showed she had no authority to dispatch a particular officer—her
duty was to answer the 911 emergency calls and pass the information along to the dispatcher
who then determined which officer to dispatch. However, the evidence also showed that
Jaramillo departed from her usual procedure in fulfilling her official duty by sending a message
to the dispatcher warning of the threat against Officer Christian and by making a
recommendation concerning the dispatch of a particular officer, i.e., not to dispatch Christian.
The testimony of Jaramillo and the other 911 operators showed this course of action was outside
the scope of her official duty as a 911 operator and was not within the normal performance of her
duty. Section 36.03 says nothing about the authority of the public servant to be influenced, only
requiring that the defendant influence or attempt to influence the public servant in “a specific
performance of his official duty.” TEX. PENAL CODE ANN. § 36.03(a)(1). At oral argument,
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counsel for Phillips conceded that the evidence showed Jaramillo’s performance of her duty was
indeed influenced by Phillips’ threat because she sent a message to the dispatcher warning
against sending Officer Christian. The evidence that Jaramillo’s actions were in fact influenced
constitutes some evidence of Phillips’ intent to influence Jaramillo. Along with the evidence
showing Phillips repeatedly called the 911 emergency line even after being informed his
complaint was a non-emergency civil matter, repeatedly demanded that the 911 operators
immediately send out an officer, repeatedly told them not to send Officer Christian, and stated he
would “blow his brains out,” the record supports a reasonable inference that Phillips was
attempting to, and intended to, influence the person who answered the 911 calls, which was the
operator. Therefore, there is legally sufficient evidence that Phillips attempted to influence the
way in which Jaramillo, a public servant, performed her official duty as stated in the statute, pled
in the indictment, and charged to the jury.
(2) Coercion: Threat to Commit a Felony against a Third Person (Officer Christian)
Phillips’ next argument is that the threatened felony offense used as coercion must be
directed at the public servant being coerced. Phillips concedes the evidence shows he made a
threat against Officer Christian when he spoke to Jaramillo. Given that the indictment pled that
he attempted to influence Jaramillo by threatening to commit a felony, “to wit: assault on a
public servant,” Phillips asserts the evidence had to prove that the threatened felony was directed
at Jaramillo—“the only public servant named within the indictment.” Because there is no
evidence that he threatened to assault Jaramillo, he argues there is a fatal variance which renders
the evidence legally insufficient. Phillips relies on Cada, a case in which the defendant was
charged with threatening to retaliate against a “witness.” The retaliation statute provided
alternative means of committing the offense based on the status of the protected person, and the
court held the categories of protected persons are distinct statutory elements of the offense which
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must be pled. Cada, 334 S.W.3d at 776. Because the trial evidence showed the person against
whom Cada threatened to retaliate was actually an informant, not a witness, the court held there
was a fatal variance between the pleading and the proof which rendered the evidence legally
insufficient to support the conviction. Id. at 774–75. Phillips argues the same type of statutory
variance exists here.
Phillips’ argument is premised on the idea that the threatened felony must be directed at
the public servant sought to be influenced. He asserts that is the “lesson” from Tobias v. State,
884 S.W.2d 571 (Tex. App.—Fort Worth 1994, pet. ref’d), one of the few cases addressing
coercion of a public servant under section 36.03. While Tobias involved threats of violence
made to and directed at the appellate justices who were hearing the defendant’s appeal, the
opinion does not address the issue of whether a threatened felony against a third person may be
used as coercion against a public servant. See id. at 580–84 (rejecting defendant’s arguments,
among others, that statute was unconstitutional). Thus, Tobias is not controlling on the issue
before us.
Based on the structure of the statute, it appears that Phillips is conflating the coercion and
one of several means of coercion—the “threat to commit a felony.” The structure of section
36.03’s statutory language shows the proscribed conduct is “influencing or attempting to
influence” and the means of influence is “by coercion;” subsections (a)(1) and (a)(2) provide two
alternate methods of committing the offense by influencing or attempting to influence either a
public servant or a voter. TEX. PENAL CODE ANN. § 36.06(a)(1), (2). Subsection (b) then
elevates the degree of offense to a third degree felony if the “coercion” is “a threat to commit a
felony.” Id. § 36.06(b). It does not define the felony, or state that the felony must be against the
public servant sought to be influenced. In addition, the Penal Code’s definition of “coercion”
states that “coercion” is a threat, and lists six different types of threats. TEX. PENAL CODE ANN.
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§ 1.07(a)(9); see Tobias, 884 S.W.2d at 586 (holding that section 1.07’s definition of “coercion”
applies to a section 36.03 offense). One of those types of threats is a general one, “to commit an
offense;” another is “to inflict bodily injury in the future on the person threatened or another.”
Id. § 1.07(a)(9)(A), (B). Reading section 1.07’s definition of coercion together with section
36.03’s definition thus makes it clear that the threatened felony used as coercion may be directed
at “another.” The fact that the threatened third person in this case happened to be another public
servant does not matter.
The State produced sufficient evidence to prove the offense of coercion of a public
servant as pled in the indictment. The evidence showed that Phillips made a threat to commit a
felony against Officer Christian, i.e., to “blow his brains out,” that Officer Christian was a public
servant as alleged in the indictment, and that such threatened felony was used as a means of
coercion to influence Jaramillo in the performance of her official duty.
Conclusion Phillips’ first issue is overruled because there is no variance between the
pleading and the proof, and there is legally sufficient evidence to establish all the elements of
coercion of a public servant under section 36.03 as pled in the indictment and charged to the
jury.
Terroristic Threat (Count II)
In relevant part Penal Code section 22.07 provides that a person commits the offense of
terroristic threat if he:
(a) threatens to commit any offense involving violence to any person . . . with intent to:
...
(6) influence the conduct or activities of a branch or agency of the . . . state, or a
political subdivision of the state.
TEX. PENAL CODE ANN. § 22.07(a)(6) (West 2011). Subsection (e) states that an offense under
subsection (a)(6) is a third degree felony. Id. § 22.07(e) (West 2011).
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The indictment alleged that Phillips did “threaten to commit an offense involving
violence to A PERSON, NAMELY: Steve Christian, to wit: THREATENING TO BLOW HIS
BRAINS OUT, with intent to influence the conduct or activities of a branch or agency of the
state or a political subdivision of the state, to wit: THE SAN ANTONIO POLICE
DEPARTMENT, COMMUNICATIONS UNIT.” The jury charge tracked the language of the
indictment.
Phillips argues the evidence is legally insufficient to support his conviction for terroristic
threat because: (1) there is no evidence the threat influenced the conduct of the SAPD
Communications Unit; and (2) there is no evidence the threat was a threat of imminent violence;
in fact, the evidence showed the threat to commit a violent offense was a conditional threat.
Phillips also asserts there is a fatal variance between the pleading and proof because the evidence
showed his threat to blow Officer Christian’s brains out was conditioned on Christian being sent
out to his house, but the indictment and jury charge did not state the threat as conditional.
(1) Intent to Influence SAPD Communications Unit
Phillips argues the evidence is insufficient to prove his threat influenced the activities of
the SAPD Communications Unit because there is no evidence that Officer Christian was on duty
and could have been dispatched, and the evidence showed that Sowell was the officer dispatched
to Phillips’ house. He points out that no dispatcher testified, and that the 911 operators conceded
they had no authority to control what officer was dispatched on a call. The language of section
22.07(a)(6) only requires, however, that the defendant make a threat with the intent to influence
the activities of the governmental body, not that the threat actually had an influence. TEX. PENAL
CODE ANN. § 22.07(a)(6). The requisite specific intent to make a terroristic threat may be
inferred from a defendant’s acts, words, and conduct. Cook v. State, 940 S.W.2d 344, 347 (Tex.
App.—Amarillo 1997, pet. ref’d) (citing Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App.
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1980)). As discussed under Count I, supra, the evidence showing that Phillips repeatedly called
the 911 line demanding an officer be dispatched, made the threat to commit a violent crime to the
911 operators if a particular officer was dispatched, and the 911 operators varied from their usual
procedure by sending messages warning the dispatcher of the threat supports a finding that
Phillips’ intent in making the threat was to influence the conduct and activities of the SAPD
Communications Unit.
(2) Conditional Threat to Commit Violent Offense / Imminence
Phillips argues the evidence is insufficient because his threat to assault Officer Christian
was conditioned on the occurrence of a future event—Christian being sent out to Phillips’ house.
In other words, Phillips would carry out his threat only if Christian arrived at his house. Phillips
contends the threat “to commit any offense involving violence” proscribed by section 22.07(a)
must be immediate in the sense that the commission of the violent offense must be imminent.
Phillips was charged under section 22.07(a)(6). TEX. PENAL CODE ANN. § 22.07(a)(6).
The cases relied on by Phillips predate the addition of subsection (a)(6) and fall under a different
subsection, (a)(2), which expressly requires that by making a threat of violence the defendant
intended to “place any person in fear of imminent serious bodily injury.” Id. § 22.07(a)(2) (West
2011); see Bryant v. State, 905 S.W.2d 457, 459-60 (Tex. App.—Waco 1995, pet. ref’d)
(conditional threat to assault county commissioner if he did not grade road in front of
defendant’s house was insufficient to prove defendant’s specific intent to place commissioner in
fear of imminent serious bodily injury under section 22.07(a)(2)); Parnell v. State, No. 12-09-
00387-CR, 2010 WL 2638064, at *4 (Tex. App.—Tyler June 30, 2010, no pet.) (mem. op.) (not
designated for publication) (verbal phone threat made to deputy of future assault if deputy would
“come meet” defendant was insufficient to show specific intent to place deputy in fear of
imminent serious bodily injury under section 22.07(a)(2)).
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Here, Phillips was charged and convicted under subsection (a)(6), which requires that he
made the threat to commit a violent offense with the specific intent to “influence the conduct or
activities of a branch or agency of . . . the state, or a political subdivision of the state.” TEX.
PENAL CODE ANN. § 22.07(a)(6). In contrast to subsection (a)(2), the statutory language of (a)(6)
does not include any requirement of, or reference to, imminence. Subsection (a)(6) was added in
2003, and there are no cases involving section 22.07(a)(6). Therefore, this is a question of
statutory interpretation which this court reviews de novo. Tapps v. State, 294 S.W.3d 175, 177
(Tex. Crim. App. 2009). In construing subsection (a)(6), we apply the well-established
principles of statutory construction to determine whether there is a requirement of imminence to
the threat to commit a violent offense when it is made with intent to influence a governmental
body under section 22.07(a)(6). See id.; TEX. GOV’T CODE ANN. § 311.011(a) (West 2005). Our
analysis begins with the plain statutory language read in the context of the statute as a whole.
Tapps, 294 S.W.3d at 177. “Where the statute is clear and unambiguous, the Legislature must be
understood to mean what it has expressed, and it is not for the courts to add or subtract from such
a statute.” Id.
Looking at the plain text of section (a), it states that a person commits an offense if he
makes a threat to “commit any offense involving violence to any person or property.” TEX.
PENAL CODE ANN. § 22.07(a). The Legislature could have required that the commission of the
violent offense be “imminent,” but it did not. Within section (a), there are six subsections that
define the different types of specific intent underlying the person’s threat to commit a violent
offense. Id. § 22.07(a)(1)-(6) (West 2011). The only subsection that includes the word
“imminent,” or any reference to the imminence of an action or reaction, is subsection (a)(2). Id.
§ 22.07(a)(2) (intent to place a person in fear of “imminent serious bodily injury”). Thus, the
plain unambiguous language of section (a), as well as subsection (a)(6), does not contain a
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requirement of imminence, and we may not read such a requirement into the statute. See Tapps,
294 S.W.3d at 177.
The vast majority of the reported cases under section 22.07 deal with threats intended to
place a person “in fear of imminent serious bodily injury” under subsection (a)(2). Therefore,
most cases that analyze the sufficiency of the evidence to support a terroristic threat conviction
discuss the requirement that the person making the threat had to intend to place the victim in fear
of imminent bodily harm. They are instructive to the extent that they discuss the interplay
between imminence and the defendant’s intent in making a threat to commit a violent offense in
order to cause a particular reaction. For example, the cases have held that conditioning a threat
of harm on a future occurrence or nonoccurrence does not necessarily mean the harmful
consequences threatened are not imminent for purposes of section 22.07(a)(2). See In re A.C., 48
S.W.3d 899, 904 (Tex. App.—Fort Worth 2001, pet. denied); see also Cook, 940 S.W.2d at 347–
48 (rejecting defendant’s argument that his telephone messages threatening to severely beat
victim were “conditional threats” of future harm and thus could not support a finding that he
intended to place victim in fear of “imminent” serious bodily injury). The offense of terroristic
threat is completed under subsection (a)(2) once the defendant makes a threat to commit a
violent offense seeking the desired reaction of placing the victim in fear of imminent serious
bodily injury. Dues v. State, 634 S.W.2d 304, 306 (Tex. Crim. App. 1982); In re A.C., 48
S.W.3d at 904. The focus of the intent inquiry is on the intended reaction. In re A.C., 48 S.W.3d
at 904; Williams v. State, 194 S.W.3d 568, 575 (Tex. App.—Houston [14th Dist.] 2006), aff’d
252 S.W.3d 353 (Tex. Crim. App. 2008) (conditional threats to beat teacher during upcoming
conference were sufficient to support conviction for terroristic threat under section 22.07(a)(2)).
It is not necessary that the victim actually be in fear of imminent serious bodily injury or that the
defendant have the capability or intention to actually carry out the threat of violence. Dues, 634
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S.W.2d at 305; Williams, 194 S.W.3d at 574–75. Further, the State is not required to prove an
admission by the defendant as to his own specific intent before he can be convicted of a
terroristic threat; it may be inferred from the defendant’s acts, words, or conduct. Zorn v. State,
222 S.W.3d 1, 3 (Tex. App.—Tyler 2002, pet. dism’d). “The desired and sought after reaction of
the listener, regardless of whether the threat is carried out, constitutes some evidence of the
intent of the protagonist.” Id.
Based on the plain language of section 22.07(a) and subsection (a)(6), and the law
interpreting and applying subsection (a)(2) of the statute, we conclude there is no requirement of
imminence to the commission of the violent offense used as a threat with intent to obtain the
desired reaction specified in (a)(6). This also resolves Phillips’ argument of a fatal variance; the
evidence showed he made a threat to commit a violent offense against Officer Christian, which is
what was pled and charged.
Conclusion Accordingly, we overrule Phillips’ second issue challenging his conviction
for terroristic threat because there is legally sufficient evidence to support a finding on each
element of terroristic threat under section 22.07(a)(6), and there is no variance between pleading
and proof.
CONCLUSION
Based on the foregoing reasons, we hold the evidence is legally sufficient to support
Phillips’ convictions. We affirm the trial court’s judgment for Count I. Because the judgment
for Count II mistakenly recites that Phillips was convicted under “section 22.07(4)” of the Penal
Code, we correct the clerical error and modify the judgment for Count II to state that Phillips was
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convicted under “section 22.07(a)(6)” of the Penal Code and affirm the judgment for Count II as
modified. See TEX. R. APP. P. 43.2(b).
Rebeca C. Martinez, Justice
PUBLISH
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