22 07 Terroristic Threat

V.T.C.A., Penal Code � 22.07 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 5. Offenses Against The Person (Refs & Annos) Chapter 22. Assaultive Offenses (Refs & Annos) � 22.07. Terroristic Threat

(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; (3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place; (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; (5) place the public or a substantial group of the public in fear of serious bodily injury; or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state. (b) An offense under Subsection (a)(1) is a Class B misdemeanor. (c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense: (1) is committed against a member of the person's family or household or otherwise constitutes family violence; or (2) is committed against a public servant. (d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony. (e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third

degree. (f) In this section: (1) "Family" has the meaning assigned by Section 71.003, Family Code. (2) "Family violence" has the meaning assigned by Section 71.004, Family Code. (3) "Household" has the meaning assigned by Section 71.005, Family Code. (g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance. CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 1114, ch. 530, � 2, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 139, � 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 388, � 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 446, � 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728, � 16.003, eff. Sept. 1, 2005. HISTORICAL AND STATUTORY NOTES 2006 Electronic Pocket Part Update 2003 Legislation Acts 2003, 78th Leg., ch. 139, in subsec. (b), inserted ", except that an offense under Subdivision (2) of Subsection (a) is a Class A misdemeanor if the offense is committed against a member of the person's family or household or otherwise constitutes family violence or if the offense is committed against a public servant"; and added subsec. (c). Section 2 of Acts 2003, 78th Leg., ch. 139, provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before that date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Acts 2003, 78th Leg., ch. 388, added subsecs. (a)(5) and (a)(6); in subsec. (b), inserted ", (5), or (6)"; and made other nonsubstantive changes. Section 3 of Acts 2003, 78th Leg., ch. 388 provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is

committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Acts 2003, 78th Leg., ch. 446 inserted ", unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony" in subsec. (b) and added subsec. (c). Section 2 of Acts 2003, 78th Leg., ch. 446 provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." 2005 Legislation Acts 2005, 79th Leg., ch. 728 reenacted this section, and as reenacted, redesignated the subsections and made nonsubstantive changes. 2003 Main Volume Acts 1979, 66th Leg., p. 1114, ch. 530, � 2, in subsec. (a), added subd. (4); in subsec. (b), inserted "Subdivision (1) or (2) of Subsection (a) of" and substituted the second and third sentences for "unless it is committed under Subsection (a)(3) of this section, in which event it is a Class A misdemeanor". Acts 1993, 73rd Leg., ch. 900, � 1.01, in subsec. (b), following "subsection A", in three places, deleted "of this section". Prior Laws: Rev.P.C.1879, arts. 809 to 813. Rev.P.C.1895, arts. 600, 962 to 966. Rev.P.C.1911, arts. 1021, 1442 to 1446. Acts 1931, 42nd Leg., p. 11, ch. 10, � 1. Vernon's Ann.P.C. (1925) arts. 1146, 1265 to 1268a. CROSS REFERENCES "Agency" defined, see V.T.C.A., Penal Code � 1.07. Causation, see V.T.C.A., Penal Code � 6.04.

Coercion of public servant or voter, see V.T.C.A., Penal Code � 36.03. Disorderly conduct, see V.T.C.A., Penal Code � 42.01. Disrupting meeting or procession, see V.T.C.A., Penal Code � 42.05. False alarm or report, see V.T.C.A., Penal Code � 42.06. Harassment, see V.T.C.A., Penal Code � 42.07. "Person" defined, see V.T.C.A., Penal Code � 1.07. "Public place" defined, see V.T.C.A., Penal Code � 1.07. Punishment, Class A misdemeanor, see V.T.C.A., Penal Code � 12.21. Class B misdemeanor, see V.T.C.A., Penal Code � 12.22. Third degree felony, see V.T.C.A., Penal Code � 12.34. "Serious bodily injury" defined, see V.T.C.A., Penal Code � 1.07. LAW REVIEW COMMENTARIES Annual survey of Texas law: Assault offenses. Shirley W. Butts, 35 Sw. L.J. 511 (1981). Criminal law--Terroristic threats. Mike McColloch and David W. Coody, 37 Sw.L.J. 388 (1983). Impact of new Penal Code on First Amendment freedoms. 38 Tex.B.J. 245 (1975). LIBRARY REFERENCES 2003 Main Volume Extortion and Threats 25, 33. Westlaw Topic No. 165. C.J.S. Threats and Unlawful Communications �� 2 to 20, 26 to 28. RESEARCH REFERENCES 2006 Electronic Pocket Part Update ALR Library 45 ALR 4th 949, Validity and Construction of Terroristic Threat Statutes.

169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged. Encyclopedias TX Jur. 3d Criminal Law � 480, in General; Degree of Offense. TX Jur. 3d Criminal Law � 482, Prosecution -- Evidence. TX Jur. 3d Criminal Law � 1142, Degree of Offense; Lesser Included Offenses. Treatises and Practice Aids Charlton, 6 Tex. Prac. Series � 11.4, Aggravated Kidnapping. Charlton, 6 Tex. Prac. Series � 13.7, Terroristic Threat. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 116.7, Terroristic Threat. Brooks, 23 Tex. Prac. Series � 22.19, Criminal Offenses. NOTES OF DECISIONS In general 1 Admissibility of evidence 13 Capability to carry out threat 6 Construction with other laws 2 Imminence 5 Indictment, information or complaint 8 Instructions 11 Intent 3 Lesser included offense 9 Nature of threat 4 Presumptions and burden of proof 9.5 Review 12 Sufficiency of evidence 10 Unlawful arrest 7

1. In general

It was the sending or delivering of a threatening letter knowingly that constituted the offense of sending a threatening letter, not knowingly threatening. Castle v. State (App. 1887) 4 S.W. 892. The offense of terroristic threats is completed if the accused, by his threat, sought as a desired reaction, to place a person in fear of imminent serious bodily injury. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 25.1 For the purpose of the offense of terroristic threats, it is not necessary for the victim to actually be placed in fear of imminent serious bodily injury or for the accused to have the capability or the intention to actually carry out the threat. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 25.1 Offense of making a terroristic threat does not require the victim or anyone else to be actually placed in fear of imminent serious bodily injury; it is immaterial whether the defendant had the capability or the intention to carry out his threat. Zorn v. State (App. 12 Dist. 2002) 2002 WL 841146, petition for discretionary review granted, review dismissed as improvidently granted with per curiam opinion 2005 WL 3307042. Extortion And Threats 25.1 2. Construction with other laws A conviction under Texas statute proscribing terroristic threats is not a conviction of a "crime of domestic violence" for purposes of the federal statute proscribing possession of a firearm after conviction of a misdemeanor crime of domestic violence, as the Texas offense does not have as an element the use or attempted use of physical force, because it is immaterial to the offense whether the accused had the capability or the intention to carry out his threat and it is not necessary that the victim or anyone else was actually placed in fear of imminent serious bodily injury, nor does offense have as an element the threatened use of a deadly weapon. U.S. v. White, C.A.5 (Tex.) 2001, 258 F.3d 374. Weapons 4

3. Intent In order to commit offense of terroristic threat, accused must have specific intent to place any person in fear of imminent serious bodily injury. Dues v. State (Cr.App.1982) 634 S.W.2d 304; George v. State (App. 1 Dist.1992) 841 S.W.2d 544, petition for discretionary review filed. A conviction in a prosecution for a threat to extort money, was not authorized unless it appeared that defendant intended to execute his threat to kill if the money be not paid. Haynie v. State (1877) 2 Tex.Crim. 168. Person threatening to kill or inflict serious bodily injury with intent of extorting money, who obtains money from person laboring under fear of such threat, is guilty of extortion, notwithstanding that no weapon may have been used or exhibited in connection with threat, that there may not have been present intention to carry out threat, and that no money may have been immediately obtained. Burleson v. State (Cr.App. 1936) 131 Tex.Crim. 76, 96 S.W.2d 785. Extortion And Threats 25.1

Defendant's intent cannot be determined merely from what victim thought at time of charged terroristic threat; it is not necessary for victim or any one else to be actually placed in fear of imminent serious bodily injury, and all that is required for completion of offense is that defendant, by his threat, sought as a desired reaction to place a person in fear of imminent serious bodily injury. George v. State (App. 1 Dist. 1992) 841 S.W.2d 544, petition for discretionary review granted, affirmed 890 S.W.2d 73. Extortion And Threats 25.1 Specific intent of defendant, an essential element of offense of terroristic threat, was proven beyond a reasonable doubt, where it was shown that defendant threatened victim, and directed obscenities at him, and where victim testified that he was in fear of imminent serious bodily injury. Hadnot v. State (App. 9 Dist. 1994) 884 S.W.2d 922. Extortion And Threats 32 While specific intent of defendant is essential element of offense of terroristic threat, state is not required to have and to prove actual admission by defendant of his specific intent; rather, intent can be inferred from acts, words, and conduct of an accused. Hadnot v. State (App. 9 Dist. 1994) 884 S.W.2d 922. Extortion And Threats 32 For purposes of proving defendant had requisite specific intent to commit offense of terroristic threat, reaction of complainant, regardless of whether threat is real or carried out, constitutes some evidence of the defendant's intent. Hadnot v. State (App. 9 Dist. 1994) 884 S.W.2d 922. Extortion And Threats 32 Evidence did not entitle defendant charged with aggravated assault in connection with shooting to instruction on lesser included offenses of terroristic threat and reckless conduct, notwithstanding defendant's contention that jury could have found that he only made oral threat and that another individual was responsible for actual shooting, and further that defendant may have merely recklessly fired warning shot; there was no evidence that discharge of weapon was not intentional, and there was no evidence that other individual in fact fired shots. Salinas v. State (App. 13 Dist. 1994) 888 S.W.2d 93, rehearing overruled, petition for discretionary review refused, for concurring opinion on refusal of review, see 897 S.W.2d 785, certiorari denied 116 S.Ct. 85, 516 U.S. 823, 133 L.Ed.2d 42. Criminal Law 795(2.30) Accused's threat of violence, made with intent to place victim in fear of imminent serious bodily injury, establishes offense of terroristic threat. Bryant v. State (App. 10 Dist. 1995) 905 S.W.2d 457, petition for discretionary review refused. Extortion And Threats 25.1 Defendant must act with specific intent to place victim in fear of serious bodily injury that was "impending" or "close" or "on the point of happening" or "near at hand." Bryant v. State (App. 10 Dist. 1995) 905 S.W.2d 457, petition for discretionary review refused. Extortion And Threats 25.1 Requisite intent to make terroristic threats can be inferred from acts, words, and conduct of defendant. Cook v. State (App. 7 Dist. 1997) 940 S.W.2d 344, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Extortion And Threats 32 Requisite intent to place victim in fear of imminent serious bodily injury, as element of terroristic threat, can be inferred from defendant's acts, words, and conduct. Poteet v. State (App. 2 Dist. 1997) 957 S.W.2d 165. Extortion And Threats 32

Conviction for terroristic threat does not require the victim or anyone else to be actually placed in fear of imminent serious bodily injury, but the reaction of the victim, regardless of whether the threat was real or was carried out, is some evidence of the defendant's intent. In re A.C. (App. 2 Dist. 2001) 48 S.W.3d 899, review denied. Extortion And Threats 25.1 An actual admission by accused of his specific intent is not required under statute setting forth requirements for terroristic threats, but requisite intent may be inferred from acts, words, and conduct of accused. In re C.S. (App. 6 Dist. 2002) 79 S.W.3d 619. Extortion And Threats 32 Desired reaction of listener, or of complainant, regardless of whether threat is real or whether threat is carried out, may also constitute some evidence of intent of person making statement under statute setting forth requirements for terroristic threats. In re C.S. (App. 6 Dist. 2002) 79 S.W.3d 619. Extortion And Threats 32 The requisite intent for the offense of terroristic threats can be inferred from the acts, words, and conduct of the accused. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 32 The accused's threat of violence, made with the intent to place the victim in fear of imminent serious bodily injury, is what constitutes the offense of terroristic threats. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 25.1 Evidence existed that indicated defendant made threat that she would kill victim and her children with intention that such threat cause fear of imminent bodily harm, and as such evidence of defendant's threat to kill was required to prove great offense of retaliation but probative of dissimilar element required to establish lesser included offense of making a terroristic threat, defendant was properly convicted of lesser included offense of making a terroristic threat. Zorn v. State (App. 12 Dist. 2002) 2002 WL 841146, petition for discretionary review granted, review dismissed as improvidently granted with per curiam opinion 2005 WL 3307042. Extortion And Threats 32 Whether the victim thought himself endangered, or whether the defendant had the capability or the intention of carrying out the threat, are facts not necessary to showing the defendant's "intent" to commit offense of terroristic threat. Henley v. State (App. 10 Dist. 2003) 98 S.W.3d 732, petition for discretionary review refused. Extortion And Threats 25.1 4. Nature of threat Offense of extortion may be committed by either verbal or written threats. Goulding v. State (Cr.App. 1934) 126 Tex.Crim. 73, 70 S.W.2d 200. Extortion And Threats 25.1 A "threat to take life" is a definite, single act, capable of being performed in different ways by use of different words, just as in the case of an assault, but however variant the modes and means of performing the act, it is single and definite, and therefore it is not required that particular mode or means in any case shall be set out in indictment or information. Levy v. State (Cr.App. 1940) 138 Tex.Crim. 373, 136 S.W.2d 838. Homicide 736; Homicide 868; Homicide 843 Evidence that defendant left three voice mail messages, two of which were in rapid

succession, and of language used in those messages permitted rational jury to find that defendant intended to put victim in fear of imminent serious bodily injury and supported conviction for making terroristic threats. Cook v. State (App. 7 Dist. 1997) 940 S.W.2d 344, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Extortion And Threats 32 Fact that alleged threats were left in voice mail messages and that intended victim was out of town at time of calls did not preclude defendant's conviction for making terroristic threats; messages, considered in their entirety, supported jury's finding that defendant intended to place victim in fear of imminent serious bodily injury. Cook v. State (App. 7 Dist. 1997) 940 S.W.2d 344, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Extortion And Threats 25.1 A reasonable official could have believed that citizen violated the Texas terroristic threat statute in a letter addressed to the court, despite citizen's claim that letter was protected speech, and thus local government employees were entitled to qualified immunity on citizen's lawsuit alleging First Amendment violation and illegal arrest; letter asked whether court employees were "willing to die" for not recalling a warrant and stated that citizen considered herself "at war and will act accordingly" and that she would "fight to the death with anyone who tries to pull me from my home, my car, or my workplace." Barnes v. Madison, C.A.5 (Tex.)2003, 79 Fed.Appx. 691, 2003 WL 22490383, Unreported. Civil Rights 1376(6); Civil Rights 1376(8) 5. Imminence In defendant's trial for retaliation, requested jury charge on lesser included offense of terroristic threat was not warranted since elements of offense of terroristic threat were not included within proof necessary to establish the offense of retaliation; while terroristic threat requires proof that person making the threat intended to place victim in fear of imminent bodily injury, retaliation offense does not require that threat to harm in retaliation be imminent. Davis v. State (App. 11 Dist. 1994) 890 S.W.2d 489, rehearing denied. Criminal Law 795(2.26) Conditioning threat of harm on occurrence or nonoccurrence of future event does not necessarily mean that harmful consequences threatened are not imminent and does not prevent threats from amounting to terroristic threats; fact finder must look to proximity of threatened harm to the condition. Cook v. State (App. 7 Dist. 1997) 940 S.W.2d 344, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Extortion And Threats 25.1 Conditioning a threat of harm on the occurrence or nonoccurrence of a future event does not necessarily mean that the harmful consequences threatened are not imminent for purposes of terroristic threat conviction; the focus of the inquiry should be whether the complainant was afraid of imminent serious bodily injury at the time of the offense. In re A.C. (App. 2 Dist. 2001) 48 S.W.3d 899, review denied. Extortion And Threats 25.1 In gauging imminence, for the purpose of the offense of terroristic threats, the desired and sought-after reaction of the victim, regardless of whether the threat was real or was carried out, is some evidence of the defendant's intent to place the victim in fear of imminent serious injury. Williams v. State (App. 14 Dist.

2006) 2006 WL 1071347. Extortion And Threats

32

In gauging imminence, for the purpose of the offense of terroristic threats, the focus of the inquiry should be whether the victim was afraid of imminent serious bodily injury at the time of the offense. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 25.1 In gauging imminence, for the purpose of the offense of terroristic threats, the Court of Appeals must look to the proximity of the threatened harm to the condition. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 25.1 For the purpose of the offense of making a terroristic threat, "imminent" means near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 25.1

6. Capability to carry out threat In determining whether one is guilty of having threatened life of another it must be determined that threat was actually made, and that it was made with intent to be carried out; a rash, inconsiderable threat being insufficient to support imposition of a penalty. Strong v. State (1923) 95 Tex.Crim. 558, 255 S.W. 432; Brown v. State (1941) 142 Tex.Crim. 405, 154 S.W.2d 464. In order to sustain conviction of threatening to take the life of another, the threat must be seriously made and not merely the outburst of one's temper in heat of passion, and a rash, inconsiderate threat will not suffice to support a conviction. Brown v. State (Cr.App. 1941) 142 Tex.Crim. 405, 154 S.W.2d 464. Homicide 736 Capability to carry out threat is not essential element of offense of terroristic threats under this section. Jarrell v. State (Cr.App. 1976) 537 S.W.2d 255. Extortion And Threats 25.1 For offense of terroristic threat to be completed it is not necessary that victim or anyone else was actually placed in fear of imminent serious bodily injury, and it is immaterial to offense whether accused had capability or intention to carry out his threat. Dues v. State (Cr.App. 1982) 634 S.W.2d 304. Extortion And Threats 25.1 Victim need not be actually placed in fear of imminent serious bodily injury for defendant's conduct to amount to making of terroristic threat; offense is complete if defendant, by his threat, sought to place person in fear of imminent serious bodily injury, regardless of whether defendant had ability or intent to carry out his threat. Cook v. State (App. 7 Dist. 1997) 940 S.W.2d 344, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Extortion And Threats 25.1 Crime of making terroristic threats is complete if defendant sought, as a desired reaction, to place victim in fear of imminent serious bodily injury, regardless of whether defendant had ability or intent to carry out his threat. Cook v. State (App. 7 Dist. 1997) 940 S.W.2d 344, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Extortion And Threats 25.1

Offense of terroristic threat is completed if the accused, by his threat, sought as a desired reaction, to place a person in fear of imminent serious bodily injury, and it is immaterial whether the accused had the capability or the intention to carry out his threat. In re A.C. (App. 2 Dist. 2001) 48 S.W.3d 899, review denied. Extortion And Threats 25.1 Statute setting forth requirements for terroristic threats does not require that intended victim or anyone else actually believe that accused will carry out threat, or that they be placed in fear that threat may be carried out, or that their use or occupation of a building actually be interrupted or prevented. In re C.S. (App. 6 Dist. 2002) 79 S.W.3d 619. Extortion And Threats 25.1 To establish the offense of terroristic threats it is not necessary for the victim to actually be placed in fear of imminent serious bodily injury or for the accused to have the capability or the intention to actually carry out the threat; the offense is completed if the accused, by her threat, sought as a desired reaction, to place a person in fear of imminent serious bodily injury. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 25.1 7. Unlawful arrest Even if officers unlawfully entered defendant's home without warrant in violation of his right to privacy, that would not preclude his conviction for subsequently committing offense of seriously threatening to take human life when he threatened officers. Dailey v. State (Cr.App. 1968) 436 S.W.2d 346. Homicide 747 8. Indictment, information or complaint In prosecution for extortion, indictment which did not state whether threats were verbal or written or that threats were made directly to person threatened or, if made indirectly, to whom and by what means threats were communicated to party threatened, was insufficient. Goulding v. State (Cr.App. 1934) 126 Tex.Crim. 73, 70 S.W.2d 200. Extortion And Threats 30 In prosecution for extortion where proper construction of written instrument constituting basis of offense was material to determine whether accused made alleged threats, instrument should have been set out in indictment. Goulding v. State (Cr.App. 1934) 126 Tex.Crim. 73, 70 S.W.2d 200. Extortion And Threats 30 Allegation that defendant threatened to release snakes into residence of another was sufficient to state the offense of making a terroristic threat, even though the information did not allege that the snakes were poisonous, since threat was calculated to raise reasonable apprehension of bodily harm on the part of person threatened by threatening an assault. (Per Cornelius, C.J., with one Justice concurring in the result.) Redfearn v. State (App. 6 Dist. 1987) 738 S.W.2d 28, petition for discretionary review refused. Extortion And Threats 30 Test for sufficiency of allegations to state the offense of making a terroristic threat was what was reasonably communicated to victim, and allegation that defendant stated that snakes had been placed in a building was sufficient to communicate to victim a reasonable apprehension of future violence and thus to constitute a terroristic threat, even though it was not alleged that defendant stated that snakes "would be" placed there in the future, since implicit in

statement that snakes "had been" placed was fact of future harm. (Per Cornelius, C.J., with one Justice concurring in the result.) Redfearn v. State (App. 6 Dist. 1987) 738 S.W.2d 28, petition for discretionary review refused. Extortion And Threats 30 Indictment charging terroristic threats in language of underlying statute was sufficient even though it did not contain language in which threat was expressed. George v. State (App. 1 Dist. 1992) 841 S.W.2d 544, petition for discretionary review granted, affirmed 890 S.W.2d 73. Indictment And Information 110(26) In prosecution for making a terroristic threat, indictment provided defendant with fair notice of the offense charged, even though the indictment did not include the specific words allegedly used by defendant in making threat; indictment alleged that defendant threatened to bomb a public service facility, and the specific words used to make threat were merely evidentiary and not required in indictment. Hackbarth v. State (App. 14 Dist. 2004) 2004 WL 503104, Unreported. Extortion And Threats 30 9. Lesser included offense Terroristic threat and assault by threat are not lesser included offenses of retaliation, where both threat offenses require proof that person making threat intended to place victim in fear of imminent bodily injury, and retaliation does not require that threat of harm be imminent. Helleson v. State (App. 2 Dist. 1999) 5 S.W.3d 393, rehearing overruled, petition for discretionary review refused. Indictment And Information 191(7) Offense of terroristic threat was not lesser included offense of retaliation and, thus, defendant in retaliation prosecution was not entitled to instruction on terroristic threat as lesser included offense; elements of offense of terroristic threat were not included within proof necessary to establish offense of retaliation, as terroristic threat required proof that person making threat intended to place victim in fear of imminent bodily injury, while statute governing retaliation did not require that threat to harm in retaliation be imminent. Coward v. State (App. 14 Dist. 1996) 931 S.W.2d 386. Criminal Law 795(2.26); Indictment And Information 191(.5) Reckless conduct is not a lesser included offense of the offense of terroristic threat. Beebe v. State (App. 13 Dist. 1988) 756 S.W.2d 759, petition for discretionary review granted, affirmed 811 S.W.2d 604. Indictment And Information 191(.5) Making terroristic threats was not lesser included offense of retaliation, and thus trial court was precluded from finding juvenile defendant who was "charged" only with retaliation delinquent based upon terroristic threats; fear of imminent bodily injury was element only of terroristic threats, and, in finding delinquency based upon terroristic threats rather than retaliation, the trial court impliedly found the juvenile not delinquent with respect to the sole charged offense. In re D.D. (App. 3 Dist. 2003) 101 S.W.3d 695. Indictment And Information 191(.5); Infants 197 Making a terroristic threat cannot be a lesser included offense of retaliation as a matter of law; question of whether such offense is a lesser included offense of retaliation will be addressed on a case-by-case basis. Zorn v. State (App. 12 Dist. 2002) 2002 WL 841146, petition for discretionary review granted, review dismissed as improvidently granted with per curiam opinion 2005 WL 3307042.

Indictment And Information

191(.5)

Trial court did not err when it denied jury instruction on terroristic threat as a lesser-included offense of retaliation; defendant failed to show any evidence that he was guilty only of terroristic threat. Hughes v. State (App. 1 Dist. 2002) 2002 WL 2025434, Unreported, petition for discretionary review refused. Criminal Law 795(2.26) 9.5. Presumptions and burden of proof State is not required to prove an actual admission by a defendant as to his own specific intent to place victim in fear of imminent bodily injury before he can be constitutionally convicted of making a terrorist threat; requisite intent can be inferred from the acts, words, and conduct of the defendant. Zorn v. State (App. 12 Dist. 2002) 2002 WL 841146, petition for discretionary review granted, review dismissed as improvidently granted with per curiam opinion 2005 WL 3307042. Extortion And Threats 32 10. Sufficiency of evidence Evidence was insufficient to sustain conviction for threatening to take the life of superintendent of farm on which defendant lived, where prosecuting witness did not testify that defendant said in specific words that he was going to kill him, and it appeared that defendant was in position to carry his threat into execution if it were seriously made. Brown v. State (Cr.App. 1941) 142 Tex.Crim. 405, 154 S.W.2d 464. Homicide 1170 Defendant's statement to complaining witness, without anger, that at one time defendant had an intent to kill complaining witness and had gone to house of complaining witness on several occasions to do just that, in view of evidence that five days later defendant called at home of complaining witness and held a peaceful conversation without mention of the previous conversation, was insufficient to constitute a "threat" and did not support an order for a peace bond. Ex parte McCain (Cr.App. 1949) 153 Tex.Crim. 517, 221 S.W.2d 781. Breach Of The Peace 17 In prosecution for aggravated kidnapping with intent to terrorize, evidence that defendant pinned victim down in seat of her car and threatened to kill her while pressing knife against her neck was sufficient to show that defendant abducted victim with intent to "terrorize" her. Rodriguez v. State (App. 1 Dist. 1982) 646 S.W.2d 524. Kidnapping 36 Evidence, including recording of telephone call from defendant, who was involved in bitter divorce and custody dispute with victim, and testimony that defendant had committed a number of violent acts toward victim in past, was sufficient to support finding that defendant intended to place victim in fear of imminent serious bodily injury, and thus supported conviction of terroristic threats, even if defendant were miles away when he made phone call; recording indicated that defendant stated "I'm going to kill you, you bitch," although defendant claimed that he called back within minutes after threat and left message that victim would hear from his attorney the next day. George v. State (App. 1 Dist. 1992) 841 S.W.2d 544, petition for discretionary review granted, affirmed 890 S.W.2d 73. Extortion And Threats 32

Evidence was insufficient to establish that defendant acted with intent to place county commissioner in fear of imminent serious bodily injury, as required for defendant to be convicted of making terroristic threat to commissioner, by threatening commissioner with serious bodily injury if road in front of his house was not graded. Bryant v. State (App. 10 Dist. 1995) 905 S.W.2d 457, petition for discretionary review refused. Extortion And Threats 32 Evidence is sufficient to sustain conviction if, when viewed in light most favorable to verdict, rational jury could have found essential elements of offense beyond reasonable doubt. Bryant v. State (App. 10 Dist. 1995) 905 S.W.2d 457, petition for discretionary review refused. Criminal Law 1159.2(7) Evidence of voice mail messages that defendant left for victim supported conclusion that defendant intended to place victim in fear, despite defendant's claim that threats had been conditioned upon victim's appearance at specified location; messages could be reasonably interpreted to mean that defendant intended to place victim in fear, regardless of what victim did in response. Cook v. State (App. 7 Dist. 1997) 940 S.W.2d 344, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Extortion And Threats 32 State presented factually sufficient evidence of defendant's intent to place victim in fear of imminent serious bodily injury to support his terroristic threat conviction, where victim testified that he saw defendant jump through living room window and yell and scream, that defendant appeared angry, that defendant steadily moved toward victim threatening to kill him, and that because of defendant's actions, he was afraid for his life. Poteet v. State (App. 2 Dist. 1997) 957 S.W.2d 165. Extortion And Threats 32 Evidence, including victim's testimony that defendant poured gasoline into bug sprayer, got propane bottle, told her that he was going to burn her, pumped gasoline into victim's face, tried to ignite it with cigarette lighter, and stated that he was going to burn house with her in it, was legally sufficient for jury to infer that defendant intended to place victim in fear of imminent serious bodily injury, and thus, to establish that defendant made terroristic threat against victim. Kingsbury v. State (App. 10 Dist. 2000) 14 S.W.3d 405. Extortion And Threats 32 Evidence was sufficient to support judgment that juvenile intended to place victims in imminent fear of serious bodily injury, supporting judgment of delinquency for terroristic threats; juvenile made several threats to victims, including statements that if they told anybody about his sexual advances he would "blow [their] brains out" and that if one slapped him for grabbing her chest he "would . . . put a nine millimeter to your head," both victims feared his threats and thought he was capable of carrying them out, and "conditioned" threats were coupled with repeated attempts to touch victim's chest and further statements. In re A.C. (App. 2 Dist. 2001) 48 S.W.3d 899, review denied. Extortion And Threats 32 Sufficient evidence supported jury's verdict in adjudication proceeding in which juvenile was charged with committing terroristic threat that juvenile, who was twelve years old at time, made terroristic threat; juvenile stated "I'm going to blow up the school," to principal, principal's receptionist, and attendance clerk, and jury could have reasonably believed that, in order to frustrate and delay his punishment of being placed in on-campus suspension, juvenile made threat with intent to cause school officials to react in a way that would interrupt or prevent their use of school facilities. In re C.S. (App. 6 Dist. 2002) 79 S.W.3d 619. Infants 176

Evidence was legally and factually sufficiency to establish the "imminent" element of the offense of making terroristic threats, in support of defendant's conviction of the offense; defendant referred to a murder/suicide in the community and stated that if litigation against him was not ceased "he would make the [murderer] look like a Sunday school teacher," and board members involved in the litigation stopped attending board meetings, had trouble sleeping, and stated that they believed that the threat posed by defendant was near at hand. Neagle v. State (App. 2 Dist. 2002) 91 S.W.3d 832, petition for discretionary review refused. Extortion And Threats 32 Evidence was legally sufficient to support finding that defendant had requisite intent to cause impairment or interruption of the public power supply, in prosecution for making a terroristic threat; there was evidence that defendant told lineman for electric cooperative, who collected fee for reconnecting defendant's electricity, that he would shoot everyone at the cooperative, and cooperative reported incident to sheriff and hired an off-duty policeman to protect its premises until defendant's arrest. Henley v. State (App. 10 Dist. 2003) 98 S.W.3d 732, petition for discretionary review refused. Extortion And Threats 32 Evidence that defendant, by his threat to kill electric cooperative employees next morning, intended to impair or interrupt public power service, as opposed to merely venting immediate anger to lineman who reconnected defendant's electricity, was so weak that confidence in finding that defendant had requisite intent was undermined, and thus was factually insufficient to support conviction for making a terroristic threat, considering that lineman did not report incident to police or forgo completing paperwork before leaving defendant's property, prior verbal altercations with cooperative did not result in physical incidents, and threat was made at 10 p.m. only to lineman and not called in to cooperative. Henley v. State (App. 10 Dist. 2003) 98 S.W.3d 732, petition for discretionary review refused. Extortion And Threats 32 Evidence was sufficient to support conviction for terroristic threats, even though defendant's threats were conditional on the future occurrence of several possible events; teacher's assistant testified that defendant was irate during conference, threatened to beat her, and that she was afraid, assistant principal testified that defendant threatened assistant during conference, and defendant's daughter testified that defendant was very upset with assistant. Williams v. State (App. 14 Dist. 2006) 2006 WL 1071347. Extortion And Threats 32 Evidence was legally and factually sufficient to support conviction for terroristic threat arising from defendant's threat to kill estranged wife; while defendant conditioned threat on a future divorce, evidence of defendant's history of using such threats to dominate his family and prevent them from notifying authorities permitted a finding that he intended to place wife in imminent fear of serious bodily injury. Guardado v. State (App. 14 Dist. 2002) 2002 WL 31526070, Unreported, petition for discretionary review refused. Extortion And Threats 32 Evidence was factually sufficient to support finding that defendant had the "intent" to place victim in fear of serious bodily injury, as element of offence of terroristic threat, when defendant told victim "I ought to put a cap in your ass" as he was arguing with the victim and raised and cocked a loaded gun. Peavy v. State (App. 14 Dist. 2002) 2002 WL 31769393, Unreported, petition for discretionary review refused. Extortion And Threats 32 Evidence was factually sufficient to find that defendant's threat of serious bodily injury was "imminent," as element of terroristic threat; although defendant

may have not pointed the gun directly at the victim, the victim was standing only two and one-half feet from defendant when defendant raised and cocked his gun and made an unconditional threat, saying "I ought to put a cap in your ass." Peavy v. State (App. 14 Dist. 2002) 2002 WL 31769393, Unreported, petition for discretionary review refused. Extortion And Threats 32 11. Instructions When recklessness was not an element of the charged offense of terroristic threat and was not relied on for conviction, the court properly denied defendant's request for a jury instruction defining "reckless." Beebe v. State (App. 13 Dist. 1988) 756 S.W.2d 759, petition for discretionary review granted, affirmed 811 S.W.2d 604. Criminal Law 800(1) Defendant charged with making terroristic threats was entitled to requested instruction that jury could not consider extraneous offenses unless convinced beyond reasonable doubt that defendant committed them. George v. State (App. 1 Dist. 1992) 841 S.W.2d 544, petition for discretionary review granted, affirmed 890 S.W.2d 73. Criminal Law 673(5) Trial court's error in refusing defendant's requested charge that jury could not consider extraneous offenses unless convinced beyond reasonable doubt that defendant committed them was not harmless, in prosecution for terroristic threats. George v. State (App. 1 Dist. 1992) 841 S.W.2d 544, petition for discretionary review granted, affirmed 890 S.W.2d 73. Criminal Law 1173.2(9) Trial court's jury instructions were not fundamentally defective in defendant's trial for terroristic threat, though judge instructed upon definition of recklessly, where application of facts to law paragraph showed that trial court only instructed upon definition of intentionally and knowingly; even if trial court included definition of recklessly in first part of jury's charge, defendant did not show that harm was egregious as was required to warrant reversal since defendant did not object at time of trial. Hadnot v. State (App. 9 Dist. 1994) 884 S.W.2d 922. Criminal Law 1038.1(4) Inclusion of reasonable doubt definition in jury charge in adjudication proceeding in which juvenile was charged with committing terroristic threat was error; juvenile could not have anticipated that court's brief discussion of requirement of proof beyond reasonable doubt would necessarily mean that court would later include formal definition in jury charge. In re C.S. (App. 6 Dist. 2002) 79 S.W.3d 619. Infants 209 Inclusion of reasonable doubt definition in jury charge in adjudication proceeding in which juvenile was charged with committing terroristic threat did not amount to harmful error, where there was complete absence of any explicit suggestion by juvenile as to how definition harmed him. In re C.S. (App. 6 Dist. 2002) 79 S.W.3d 619. Infants 253 Error, if any, of the trial court in failing to provide either a definition of "aggravated assault" in the instructions or the elements of the offense of terroristic threat did not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial, because defense counsel did not object to the omissions. Peavy v. State (App. 14 Dist. 2002) 2002 WL 31769393, Unreported, petition for discretionary review refused. Criminal Law 1038.2 Trial court's failure to define "aggravated assault" in instructions on

terroristic threat was not so egregious as to deprive defendant of fair and impartial trial, where each element of the threat to commit aggravated assault was proven; defendant told victim "I ought to put a cap in your ass," in combination with raising his gun in the air, and cocking it close to the victim. Peavy v. State (App. 14 Dist. 2002) 2002 WL 31769393, Unreported, petition for discretionary review refused. Criminal Law 1038.2 12. Review Juvenile charged with terroristic threats waived his right to complain on appeal of state's untimely disclosure of victim's statements to school principal, as juvenile did not request a continuance or make any objection to the documents when state handed him the written victim statements 15 minutes before trial, juvenile offered one victim's statement into evidence during cross-examination of her, state offered other victim's statement into evidence during its direct examination without any objection from juvenile, and juvenile used that victim's statement in his cross-examination of her. In re A.C. (App. 2 Dist. 2001) 48 S.W.3d 899, review denied. Criminal Law 1036.2 13. Admissibility of evidence Evidence of three prior incidents in which defendant had threatened to kill victim was admissible, in prosecution for terroristic threat arising from a statement to the same effect, to show defendant's intent to place victim, his estranged wife, in imminent fear of serious bodily injury; intent was contested issue, there was no direct evidence of defendant's intent, and admission of the extraneous offenses allowed jury to understand why victim was in imminent fear of serious bodily injury. Guardado v. State (App. 14 Dist. 2002) 2002 WL 31526070, Unreported, petition for discretionary review refused. Criminal Law 371(1) V. T. C. A., Penal Code � 22.07, TX PENAL � 22.07 Current through the end of the 2006 3rd Called Session of the 79th Legislature. � 2006 Thomson/West END OF DOCUMENT (C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.