                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-453-CR


FREDRICK EARL HUDSON                                               APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

                                          ------------

           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

      Appellant Fredrick Earl Hudson appeals his conviction for retaliation.2 We

affirm.




      1
          … See T EX. R. A PP. P. 47.4.
      2
          … See T EX. P ENAL C ODE A NN. § 36.06 (Vernon Supp. 2008).
      While serving time for aggravated robbery,3 appellant wrote to the trial

court judge who sentenced him, the Honorable Mike Thomas, a letter

threatening Judge Thomas and his family.            Appellant was charged with

retaliation against a public servant — a third degree felony enhanced to second

degree by appellant’s prior aggravated robbery conviction. 4 After a two-day

jury trial, appellant was convicted.      Upon hearing additional evidence and

argument, the jury assessed punishment at fifteen years’ confinement. The trial

court sentenced appellant in accordance with the verdict and ordered the

sentence to begin upon completion of the original sentence for aggravated

robbery.5

      In three issues, appellant claims that the trial court committed reversible

error by refusing to instruct the jury on terroristic threat as a lesser included

offense, denying his motion to quash the State’s repeat offender notice, and

refusing his requested jury charge instruction at punishment.

      In point of error one, Appellant seeks to have his conviction reversed

because the trial court did not instruct the jury at guilt-innocence on terroristic

threat as a lesser included offense. Article 37.09(1) provides, “An offense is


      3
          … See id. § 29.03(a)(2) (Vernon 2003).
      4
          … See id. §§ 12.42(3), 36.06(a)(1)(A) (Vernon Supp. 2008).
      5
          … See T EX. C ODE C RIM. P ROC. A NN. art. 42.08(b) (Vernon 2006).

                                          2
a lesser included offense if . . . it is established by proof of the same or less

than all the facts required to establish the commission of the offense charged.” 6

This inquiry is a question of law.7     Its resolution does not depend on the

evidence produced at trial but is found by comparing the elements of the

offense as they are alleged in the indictment with the elements of the potential

lesser included offense. 8

      Terroristic threat is not a lesser included offense of retaliation because it

cannot be proven by the same or less facts than those required to prove

retaliation.9   Terroristic threat requires that a person intend to place an




      6
     … T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1); see also Hall v. State, 225
S.W.3d 524, 536 (Tex. Crim. App. 2007).
      7
          … Hall, 225 S.W.3d at 535.
      8
          … Id. at 525, 535–36.
      9
        … The elements of retaliation, as pleaded in the indictment, are that
appellant intentionally or knowingly threatened in writing or through the mail
to harm Mike Thomas by the unlawful act of killing him or his family in
retaliation for or on account of the services or status of Mike Thomas as a
public servant. The elements of terroristic threat, as defined by the penal code,
are that a person threatened to commit an offense involving violence with intent
to place an individual in fear of imminent serious bodily injury. T EX. P ENAL C ODE
A NN. § 22.07(a)(2) (Vernon Supp. 2008).

                                         3
individual in fear of imminent serious bodily injury; retaliation does not. 10 We

overrule point of error one.

      In point of error two, appellant contends that the trial court erred in

denying his motion to quash the State’s repeat offender notice because the

State improperly used his prior felony conviction to prove an essential element

of the offense and to enhance punishment from a third degree felony to a

second degree felony.11

      In this case, the State alleged appellant’s prior felony conviction only in

the enhancement paragraph to raise the offense from a third degree felony to

a second degree felony.        The elements of retaliation as charged in the

indictment do not include appellant’s prior felony conviction. Because the State

did not allege the prior conviction as an essential element of the offense but

only to enhance punishment, the trial court properly denied appellant’s motion

to quash. We overrule point of error two.




      10
         … See Helleson v. State, 5 S.W.3d 393, 393 (Tex. App.—Fort Worth
1999, pet. ref’d) (holding that terroristic threat is not a lesser included offense
of retaliation because retaliation requires no threat of imminent bodily injury).
      11
        … See Ramirez v. State, 527 S.W.2d 542, 544 (Tex. Crim. App. 1975);
Garcia v. State, 335 S.W.2d 381, 383 (Tex. Crim. App. 1960 (op. on reh’g));
see also Fitzgerald v. State, 782 S.W.2d 876, 879 (Tex. Crim. App. 1990);
Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim. App. 1986).

                                        4
      In point of error three, appellant claims that the trial court erred in

refusing a requested punishment charge based on article 42.08 of the code of

criminal procedure that would have instructed the jury that any sentence

assessed would be stacked upon the one that appellant was serving at the time

he committed the offense. 12 Appellant argues that it was reversible error to

deny this requested instruction because it deprived the jury of the benefit of

understanding all of the parole ramifications applicable to his situation.

      Article 37.07 section 4(b) prohibits a jury from considering the manner

in which parole may affect a defendant.13 Thus, it was not error for the trial

court to refuse to give an instruction that explained the parole ramifications of

appellant’s sentence. We overrule point of error three.

      Having overruled all of appellant’s points of error, we affirm the trial

court’s judgment.

                                                    PER CURIAM

PANEL: CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 26, 2008



      12
           … See T EX. C ODE C RIM. P ROC. A NN. art. 42.08 (Vernon 2006).
      13
           … Id. art. 37.07, § 4(b).

                                          5
