Affirmed as Reformed and Memorandum Opinion filed March 17, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-01013-CR

                        MAHMOUD AFHAMI, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 13
                           Harris County, Texas
                       Trial Court Cause No. 1892708

                  MEMORANDUM OPINION

      Appellant, Mahmoud Afhami, was charged by information with the Class A
misdemeanor offense of terroristic threat against a member of appellant’s family.
A jury found appellant guilty and assessed punishment at a fine of $3,000. In three
issues, appellant contends (1) the jury charge allowed conviction for an offense not
authorized by the information, (2) the jury charge did not state a proper offense,
and (3) the evidence is insufficient to support the conviction. The State presents a
cross-point, asserting the judgment incorrectly reflects that the trial court assessed
punishment. We reform the judgment to reflect that the jury assessed punishment
and affirm as reformed.

                                   I. BACKGROUND

      We will first consider appellant’s third issue, challenging the sufficiency of
the evidence to support his conviction. When reviewing the sufficiency of the
evidence, we view all evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences therefrom,
whether any rational fact finder could have found the elements of the offense
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011). This standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. Id.

      A person commits the offense of “terroristic threat” 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.” Tex. Penal Code Ann.
§ 22.07(a)(2) (West, Westlaw through 2013 3d C.S.). The offense is a Class A
misdemeanor if “committed against a member of the person’s family or household
or otherwise constitutes family violence.”        Id. § 22.07(c)(1) (West, Westlaw
through 2013 3d C.S.). Intent relative to the offense can be inferred from the acts,
words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex.
Crim. App. 1982). It is immaterial whether the victim or anyone else was actually
placed in fear of imminent serious bodily injury or whether the accused had the
capability or intention to carry out his threat. Id. at 305–06. All that is necessary
is that the accused by his threat sought as a desired reaction to place a person in
fear of imminent serious bodily injury. Id. at 306.



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       In this case, the information (as it existed when the jury charge was
submitted) more specifically alleged that, on March 30, 2013, appellant threatened
to commit “an offense involving violence, namely assault” against his wife “with
the intent to place [her] in fear of imminent serious bodily injury.” Under a
hypothetically correct jury charge, the method of committing assault that would
equate to an “offense involving violence” is “intentionally [or] knowingly . . .
caus[ing] bodily injury to another . . . .” See Tex. Penal Code Ann. § 22.01(a)(1)
(West, Westlaw through 2013 3d C.S.); see also Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997) (holding sufficiency of the evidence should be
measured by elements of the offense as defined by 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).1

       At trial, complainant and another woman, who was complainant’s friend and
co-worker, collectively gave the following testimony. On March 30, 2013, they
were employed at a department store. After their shift ended that evening, they sat
visiting in the friend’s car in the store parking lot. Appellant parked his vehicle
nearby. He was wearing a wig and sunglasses although it was already dark.
Complainant told her friend to stay in the car and complainant would find out why
appellant was there. Appellant yelled and cursed at complainant and ran towards
her. Appellant called complainant “bitch” and “whore” and accused complainant
and her friend of prostituting themselves. Appellant shook his index finger several


       1
         As later discussed with respect to appellant’s second issue, he contends, and we agree,
that the method of assault defined in the jury charge was inapplicable. However, relative to the
present issue, we will measure sufficiency of the evidence against a hypothetically correct
charge. See Malik, 953 S.W.2d at 240.

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times at complainant, which motion in the customs of their nationality (Iranian)
means a person intends to harm another. Complainant was frightened because
appellant had previously threatened to appear in disguise at her job and kill her.
Specifically, during the two-week period before the incident, appellant had made
multiple threats to kill complainant with a knife or gun or by splashing acid on her
face. Earlier on the day of the incident, appellant phoned complainant, threatening
to kill her and accusing her of not being at work. In the parking lot that night,
appellant yelled that he had come to make good on his threats and more
specifically threatened to kill complainant by throwing acid on her. Mall security
intervened, and the police were called.

      Additionally, an officer who interviewed complainant and the friend shortly
after the incident testified they were frightened and a threat involving a gun was
mentioned.

      The State also presented a cell phone video of a brief portion of the incident,
showing appellant remove a wig and aggressively approach complainant’s friend,
who had exited the car at some point.

      Appellant presented testimony from his brother’s wife. She relayed that
appellant was upset with complainant during the period before the incident because
she had been socializing during late hours with the friend and appellant also
suspected complainant of infidelity. Appellant presented this testimony to support
his defense by suggesting he merely confronted complainant in the parking lot
because he was “heartbroken.” However, this testimony also constituted evidence
of the intent element of the charged offense by showing appellant’s state of mind at
the time of the incident.

      Based on the above testimony, the jury could have found beyond a
reasonable doubt that, on March 30, 2013, appellant threatened to intentionally
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cause bodily injury to complainant because he threatened to kill her. Further,
based on appellant’s state of mind and conduct before and at the time of the
incident, the jury could have found beyond a reasonable doubt that appellant made
the threat with intent to place complainant in fear of imminent serious bodily
injury.   According, the evidence is sufficient to support the conviction.        We
overrule appellant’s third issue.

                             II. JURY-CHARGE ISSUES

      We next consider appellant’s complaints regarding the jury charge.

A.    Contention that conviction not authorized by the information

      In his first issue, appellant’s sole complaint is that the jury charge permitted
conviction for an offense that was not authorized by the information because the
offense submitted in the charge differed from the offense alleged in the
information.

      As appellant asserts, the information as originally written alleged the
threatened “offense involving violence” was aggravated assault with a deadly
weapon whereas the application paragraph of the charge required the jury to find
the threatened “offense involving violence” was merely assault.            However,
appellant ignores that, before submission of the case to the jury, the trial court
permitted the State to abandon the aggravated-assault-with-a-deadly-weapon
language in the information and include only the assault language. Thus, the jury
charge mirrored the information as it existed at the time the charge was submitted.
On appeal, appellant does not contend the trial court’s action in allowing the
abandonment was error. Accordingly, we overrule his first issue.




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B.    Claim that charge did not state a proper offense

      In his second issue, appellant contends that for two reasons, the jury charge
did not state a proper offense.

      The focus of appellant’s first complaint is the definition of assault submitted
in the charge. The trial court is required to deliver to the jury “a written charge
distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann.
art. 36.14 (West, Westlaw through 2013 3d C.S.). A statutorily defined word or
phrase must be included in the charge as part of “the law applicable to the case.”
Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986).

      The application paragraph of the charge required the jury to find, inter alia,
that appellant “threaten[ed] to commit an offense involving violence, namely,
assault” upon complainant. Under the Penal Code, there are alternative methods of
committing assault, including (1) assault by causing bodily injury, or (2) assault by
threatening imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1), (2)
(West, Westlaw through 2013 3d C.S.). The jury charge defined “assault” solely
as follows: “a person commits an assault if the person intentionally or knowingly
threatens another with imminent bodily injury, including the person’s spouse.”
Thus, the charge defined assault solely as the assault-by-threat method. See id.
But, the charged offense of terroristic threat, as submitted in the application
paragraph, already had a threat component: a “threat[] to commit . . . assault.”
Consequently, as appellant asserts, a literal reading of the application paragraph
together with the definition of assault incorrectly suggested appellant committed
the charged offense if he threatened to make a threat. Accordingly, the assault-by-
threat method was not the correct definition of assault to include in this particular
charge. The correct definition would have been the assault-by-causing-bodily-



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injury method; i.e, requiring the jury to find that appellant committed the charged
offense by threatening to cause bodily injury.

      However, appellant failed to timely object in the trial court on the ground
presented on appeal. Although appellant made several objections to the charge
before it was read to the jury, he did not challenge the definition of assault. See
Tex. Code Crim. Proc. Ann. art. 36.14.           Unobjected-to charge error requires
reversal only if it was “fundamental”—error that was so egregious and created
such harm that the defendant “has not had a fair and impartial trial.” Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Egregiously harmful errors
“are those that affect the very basis of the case, deprive the defendant of a valuable
right, vitally affect the defensive theory, or make a case for conviction clearly and
significantly more persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim.
App. 2011). Egregious harm is determined on a case-by-case basis and is a
difficult standard to prove. Id. at 489. In analyzing harm, we consider (1) the
entire charge, (2) the state of the evidence, including contested issues and the
weight of the probative evidence, (3) arguments of counsel, and (4) any other
relevant information revealed by the trial record as a whole. Id. Considering the
pertinent factors, we conclude appellant did not suffer egregious harm from the
inapplicable definition of assault.

      The entire charge made clear that the jury must find appellant threatened to
cause imminent bodily injury—not that he threatened to make such a threat. As
appellant asserts, the latter scenario is nonsensical. Appellant makes that assertion
to support his argument, but it actually negates egregious harm and demonstrates
the jury understood the proper element of the offense. See Gelinas v. State, 398
S.W.3d 703, 707 (Tex. Crim. App. 2013) (plurality op.) (recognizing that inquiry
relative to the egregious-harm test may involve discerning whether jury was misled

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and considering whether “the very clarity of the error . . . may have mitigated any
resulting harm”).

       Specifically, from the application paragraph—requiring that appellant
“threaten[ed] to commit an offense involving violence, namely, assault”—the jury
was informed it must find a threat to commit an actual act of violence, rather than
the nonsensical scenario of a threat to make a threat. Thus, although assault was
incorrectly defined as the assault-by-threat method, the jury equated the “threat”
component of that definition to the “threat” component of the charged offense.
Instead of believing there was some nonsensical requirement of a double threat, the
jury understood it must find appellant threatened imminent bodily injury.2 Our
conclusion is supported by the closing arguments; both the prosecutor and
appellant’s counsel informed the jury it must find that appellant threatened
imminent bodily injury. See id. at 710 (finding no egregious harm from improper
statement of law in jury charge where common sense, the correct portion of the
charge, and closing arguments of both prosecutor and defense attorney likely
alerted the jury to the error and allowed it to properly apply the law).

       Moreover, the jury heard ample evidence that appellant threatened to
commit assault under the applicable definition that should have been submitted.
As discussed above, the State proved appellant threatened to cause bodily injury to
complainant because it proved appellant threatened to kill her at the time of the
       2
          We note that the assault-by-threat definition incorrectly submitted in the jury charge
requires a threat of imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2). However,
the charged offense of terroristic threat does not require that the actor threatened to commit an
imminent offense involving violence. See id. § 22.07(a). As discussed above, we conclude that,
despite the incorrect definition of “assault,” the jury recognized it must find appellant threatened
to cause bodily injury, rather than a threat to make a threat. However, the jury might still have
thought, based on the incorrect definition of “assault,” that it must find appellant threatened to
cause imminent bodily injury. Regardless, any such perception of the element of the offense did
not cause egregious harm because it merely increased the State’s burden of proof. Accordingly,
we will refer to the charge as requiring a threat to cause imminent bodily injury.

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incident. Accordingly, the strength of the evidence supports that appellant did not
suffer egregious harm from the inapplicable definition of assault submitted in the
charge.

      Next, appellant complains that the jury charge was erroneous because the
requirement that he threatened to cause “imminent bodily injury” was inconsistent
with the requirement that he intended to place complainant in fear of “imminent
serious bodily injury.” (emphasis added). We disagree. The requirements for
these two different elements comported with the statutory definition of the offense.

      The conduct element of the offense generally requires a threat to commit
“any offense involving violence to any person or property . . . .” See Tex. Penal
Code Ann. § 22.07(a). Axiomatically, not every “offense involving violence to . . .
person or property” would necessarily rise to the level of causing “imminent
serious bodily injury.” In this case, the charge required the jury to find that the
threatened “offense involving violence” was, more specifically, assault, which did
not require “imminent serious bodily injury.” However, because the threatened
“offense involving violence” need not be one that would cause “imminent serious
bodily injury,” the conduct element as submitted in the charge comported with the
statute. See id.

      Then, as applicable to this case, the statute does require for the intent
element that the threat be made “with intent to . . . place any person in fear of
imminent serious bodily injury.” See id. § 22.07(a)(2) (emphasis added). Thus,
the intent element in the charge also comported with the statute by requiring the
jury to find that appellant made the above threat with intent to place complainant
“in fear of imminent serious bodily injury.” See id.

          In summary, having rejected both of appellant’s challenges to the jury
charge, we overrule his second issue.
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                         III. THE STATE’S CROSS-POINT

      Finally, as the State asserts by cross-point, the judgment incorrectly reflects
that the trial court assessed punishment when the jury assessed punishment. We
have the authority to reform a judgment “to make the record speak the truth.” See
Tex. R. App. P 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992). Accordingly, we sustain the cross-point.

      We reform the judgment to reflect that the jury assessed punishment and
affirm as reformed.




                                      /s/     John Donovan
                                              Justice

Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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