                                                                                   ACCEPTED
                                                                              07-16-00455-CR
                                                                 SEVENTH COURT OF APPEALS
                                                                           AMARILLO, TEXAS
                                                                            6/23/2017 7:59 PM
                                                                             Vivian Long, Clerk


                      Case No. 07-16-00455-CR

                IN THE COURT OF APPEALS FOR THE              FILED IN
                                                      7th COURT OF APPEALS
                                                        AMARILLO, TEXAS
                   SEVENTH DISTRICT OF TEXAS
                                                      6/23/2017 7:59:42 PM
                        AMARILLO, TEXAS                    VIVIAN LONG
                                                              CLERK

________________________________________________________________

                   KALISCIA ELONDA MILLSAP

                             Appellant

                                VS.

                       THE STATE OF TEXAS

                             Appellee

 ________________________________________________________________

              On Appeal from Potter County Court at Law #1
                Potter County, Texas in Cause No. 144,188
             Honorable W.F. “Corky” Roberts, Judge Presiding
  ______________________________________________________________

                        APPELLEE’S BRIEF

__________________________________________________________________

                         POTTER COUNTY ATTORNEY’S OFFICE
                         ATTORNEYS FOR APPELLEE,
                         THE STATE OF TEXAS

                         /S/C. Wade Overstreet
                         C. Wade Overstreet
                         500 S. Fillmore, Room 301
                         Amarillo, Texas 79101
                         Tel. No. 806.379.2255
                         Fax No. 806.379.2215
                         Email: wadeoverstreet@co.potter.tx.us
                         State Bar of Texas ID No. 24029758
                                       Certificate


           By my signature below, I certify:

       1. as required by Tex. R. App. P. 9.4(i)(3), that this petition contains 6,453

           total words, as determined by the word count on Relator’s computer

           program; and,

       2. that on today’s date, June 23, 2017, a copy of this petition has been

           served:      (a)     in   person       on   Appellant     by        e-mail   at

           lawofficesofdarrellcarey@gmail.com, through the Court’s electronic

           filing manager system, as required by Tex. R. App. P. 9.5(e).

                                                       /S/C. Wade Overstreet
                                                       C. Wade Overstreet




Millsap v. The State of Texas
Appellee’s Brief                              2
                                                  Table of Contents


Contents
Certificate ...................................................................................................................2
Table of Contents .......................................................................................................3
Index of Authorities ...................................................................................................3
Statement Regarding Oral Argument ........................................................................4
Statement of Facts ......................................................................................................5
Summary of the Argument.......................................................................................12
Argument..................................................................................................................12
   Sufficiency of the Evidence Standard of Review .................................................12
   Hypothetically Correct Jury Charge .....................................................................16
   Principles of Review Applicable to Terroristic Threat .........................................19
   Issue No. One: Appellant’s Threats Not Conditional; if Conditional, Sufficient 22
   Issue No. Two: Appellant’s Threats were Imminent and Sufficient ....................24
   Conclusion ............................................................................................................27
Prayer .......................................................................................................................28




                                                Index of Authorities
Cases

Campbell v. State, 139 S.W.3d 676, 683 (Tex. App.—Amarillo 2003, pet ref’d) 13,
 14
Cook v. State, 940 S.W.2d 344, 348-49 (Tex. App.—Amarillo, pet. ref’d) .... passim
Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011) ................................14
Gillette v. State, 444 S.W.3d 713, 723 (Tex. App.—Corpus Christi 2014, no pet.)
 .................................................................................................................. 16, 22, 25


Millsap v. The State of Texas
Appellee’s Brief                                               3
Heinert v. Wichita Falls Hous. Auth., 441 S.W.3d 810, 818 (Tex. Amarillo 2014,
  no pet) ........................................................................................................... passim
Henzler v. State, 07-12-00523-CR, 2014 WL 5337833, at *4 (Tex. App.—
  Amarillo, Oct. 15, 2014, no pet.) (not designated for publication) ............... 13, 15
In re A.C., 48 S.W.3d 899, 904 (Tex. App.—Fort Worth 2001, pet. denied) .. 19, 20
Jackson v. Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L.Ed.2d 560 (1979) ...........13
Jones v. State, 07-16-00345-CR, 2017 WL 1908586, at *4 (Tex. App.—Amarillo
  May 8, 2017, no pet. h.) (not designated for publication.) ............................ 20, 24
Little v. State, 246 S.W.3d 391, 398 (Tex. App.—Amarillo 2008, no pet.) ............14
Ramos v. State, 407 S.W.3d 265, 268-71 (Tex. Crim. App. 2013) .........................18
Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015) ..........................13
Robinson, 466 S.W.3d at 172...................................................................................14
Shepard v. State, 244 S.W.3d 421, 423 (Tex. App.—Amarillo 2007, pet. ref’d) ...15
Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997) .........................18
Taylor v. State, 450 S.W.3d 528, 535 (Tex. Crim. App. 2014) ...............................13
Walker v. State, 327 S.W.3d 790, 794-95 (Tex. App.—Fort Worth 2010, no pet.)
  ........................................................................................................................ 18, 20
Williams v. State, 194 S.W.3d 568, 575 (Tex. App-Houston [14th Dist.] 2006, aff’d
  on other grounds, 252 S.W.3d 353 (Tex. Crim. App. 2008) ................... 20, 21, 22
Williams v. State, 432 S.W.3d 450, 455-56 (Tex. App.—San Antonio 2014, pet.
  ref’d) .............................................................................................................. 20, 21
Statutes

Tex. Penal Code Ann. §1.07(41)(A) (West 2011) ...................................................17
Tex. Penal Code Ann. §1.07(46) (West 2011) ........................................................17
Tex. Penal Code Ann. §22.07 (West 2011) .......................................... 15, 17, 23, 25
Tex. Penal Code Ann. §6.03(a) (West 2011) ...........................................................16



                                    Statement Regarding Oral Argument


Appellee will join Appellant in waiving oral argument.



Millsap v. The State of Texas
Appellee’s Brief                                               4
                                      Statement of Facts


       With a few exceptions, the State is generally satisfied with substance

Appellant’s statement of facts; however, because Appellant’s brief lacks record

citation, Appellee offers the following as its statement of facts.

       Kaliscia Elonda Millsap was an employee of the Community Development

Department (CDD) of the City of Amarillo from approximately September 2015

through February 2016, when she was “let go” or “fired.” (RR 8-9). Around 11:00

a.m. on February 22 or 23, City of Amarillo CDD employee, Amy Dixon, received

a call from Millsap.            (RR 9). Millsap agrees that she spoke to Dixon “by

telephone.” (RR 41, 53-54). According to Dixon, Millsap was “upset.” (RR 9).

She and Dixon discussed “how the coworkers in the office had spoke bad about

her.” (RR 11). Millsap related that two CDD “caseworkers were talking bad about

the job that Ms. Millsap had performed.” (RR 13). Millsap identified those

caseworkers as “Angelina Martinez and Vanessa Morales.” (RR 13). Millsap said

Martinez had “spoke bad” about her. (RR 13). Martinez had told a CDD client that

Millsap had approved the client(s) for housing, but “when they came to the top of

the list, the two caseworkers had told them they didn’t qualify.” (RR 13-14).

Dixon’s reaction upon hearing this information from Millsap was, “oh, wow.” (RR

14). Millsap may have misheard Dixon’s comment. (RR 14).



Millsap v. The State of Texas
Appellee’s Brief                              5
       Upon hearing Dixon’s words, Millsap “got very loud and said, oh, well? Oh,

well?” (RR 14). Dixon described Millsap as being “[v]ery angry.” (RR 14), (a

proposition with which Millsap agreed at trial, stating, “yes, it did,” when asked if

multiple reports of people talking badly about her made her angry. (RR54-55)).

Millsap then said, “you bitches need to realize I’m not from Texas. I’m from

California, and I carry a gun at all times.” (RR 14). Millsap denied having

mentioned anything about a weapon during her phone conversation with Dixon.

(RR 54).1 Dixon ended the phone call by hanging up on Millsap. (RR 17). At that

time, Dixon was aware that Millsap surfed the internet looking at firearms, because

she had observed Millsap do so. (RR 17). Dixon also new that Millsap would

sometimes “go out . . . to the river and shoot guns.” (RR 24). Millsap later

acknowledged “she told [Dixon] that she carried a gun,” (RR 41), a fact which

Millsap corroborated. (RR 54).

       Prior to this phone call, Dixon “had no problems with” Millsap. (RR 20),

yet, Dixon understood herself to be included in Millsap’s “you bitch[es]”

comment, (RR 20-21). Millsap’s statements made Dixon “feel nervous, and . . .

scared.” (RR 18). Millsap was “angry, because she had misheard what I said.” (RR

18). Millsap later acknowledged “she was upset because people were talking about

her at work.” (RR 41). Millsap denied being upset with Dixon, but admitted she

1
 However, in her brief, Appellant appears to concede that she did make this statement.
(Appellant’s Brief pg. 2, ¶ 1).

Millsap v. The State of Texas
Appellee’s Brief                               6
“was upset with the whole issue of the client approaching me.” (RR 54).

Describing the situation surrounding her dismissal, Millsap said “it was fucked

up.” (RR 42-43). When asked if she felt personally threatened by Millsap’s

statements, Dixon stated, “[a]t that point I felt that she was very angry at me, yes.”

(RR 18). On cross examination defense counsel attempted to have Dixon minimize

her reaction to Millsap’s statements, but Dixon refused to abandon her position,

stating she “felt it was a threat in the beginning.” (RR 21).

        On March 1st, 2016, between 4:00 and 5:00 o’clock, Millsap and Michelle

Martinez, a program coordinator with the City of Amarillo’s CDD Office, had an

encounter at the Toot-n-Totum convenient store at 8th and Buchanan. (RR 27).

Millsap agreed that this encounter occurred. (RR 39-40). Millsap had been at city

hall, picking up her last paycheck.” (RR40). Martinez was leaving the store and

returning to CDD when she heard somebody say, “hey, why you looking so mad

for?” (RR 27). When Martinez looked up, she “recognized Kaliscia.” (RR 27).

Martinez then walked over to Millsap, who was in the driver’s seat of her vehicle.

(RR 27-28).

       Martinez asked Millsap how she was doing, in response to which Millsap

said, “she thought she was doing okay.” (RR 28). Martinez then asked Millsap if

“she had left us to get another job.” (RR 28). In reply, Millsap stated “she was

dismissed from the Community Development Department.” (RR 28). Until that


Millsap v. The State of Texas
Appellee’s Brief                           7
time, Martinez did not know that Millsap had been dismissed. (RR28). Up to that

point, Martinez described her relationship with Millsap as “good.” (RR 28).

During the conversation, Millsap expressed that “her dismissal wasn’t handled

properly, because she felt like she was a really good worker, hard worker.” (RR

28).   Continuing, Millsap stated, “they,” an apparent reference to her former

employer, “[s]aid she wasn’t following the rules according to our administration.”

(RR 29). Millsap then said she “wasn’t a clock-watcher like [their] boss.” (RR 29).

Millsap’s boss was James Allen, (RR 29), with whom Millsap “had some issues . .

. reference to her dismissal.” (RR 34).

       Martinez testified that Millsap said “[s]he knew a lot of people in this

town—a lot of people on Section 8—clients on Section 8 housing that had

mentioned to her that there was some bad-mouthing at a meeting that was held—an

annual meeting that was held with the clients and the caseworkers.”2 (RR 30).

Millsap corroborated that “she was upset that people were bad-mouthing her and

were saying that they were having to do her work for her.” (RR 40). Specifically,

Millsap said she was being bad-mouthed by “Angelina Martinez . . . her friend . . .

and that geeky girl with the glasses,” whom Martinez understood to be “Addie

Traider.” (RR 30).


2
 “Section 8 housing is rental assistance for low to moderate income families who can’t afford to
pay most of their rent or all of their rent.” (RR 31).


Millsap v. The State of Texas
Appellee’s Brief                               8
          Millsap next said, “what these . . . mother fuckers don’t realize is that I carry

a gun.”3 (RR 30). Then Millsap made another statement, saying “if she felt

threatened or anything like that she would fucking shoot them.” 4 (RR 30). Millsap

then “grabbed her makeup bag from the floorboard” and “pulled it up.” (RR 30).

In that bag was “a silver square - - a square shaped gun,” (RR 30), which Millsap

“pulled . . . out.” (RR 30). Millsap showed it to Martinez, “then she put it back on

the floorboard.” (RR 30-31). At that point in the conversation, Martinez told

Millsap that she “had to go.” She told Millsap, “bye.” Millsap’s daughter was in

the car with her when this happened. (RR 31).

          Martinez reaction to Millsap’s statements was shock. (RR 32). She didn’t

feel threatened personally, but she “was scared for Angelina, Vanessa Morales, and

Addie Traider,” who were other employees of the CDD office. (RR 32). Martinez

walked back to the CDD office and “told the [CDD] administrator, James Allen, of

the conversation because [she] felt it was important for him to know.” (RR 32).

Martinez next shared her story with other members of the CDD staff. (RR 32).

Before long, “the entire office got wind of it” and “they all collectively said, hey,

you have got to call the police because this is - - this is a threat towards

employees.” (RR 32). Martinez testified that “other employees felt really scared,

3
 In her brief, Appellant appears to concede that she did make this statement. (Appellant’s Brief
pg. 2, ¶ 2).
4
    Appellant also appears to concede she made this statement. (Appellant’s Brief. pg. 2, ¶ 2).

Millsap v. The State of Texas
Appellee’s Brief                                   9
especially Angelina, Vanessa, and Addie.” (RR 33). Defense counsel attempted to

get Martinez to concede that it was not “until this thing kind of caught fire at the

office . . . that you felt like there was a threat there,” (RR 36), but Martinez

rejected that assertion, stating, “No. I immediately went to my supervisor, because

I felt that he needed to deal with it.” (RR 36).

       At trial, Millsap acknowledged that Martinez description of their

conversation at Toot-n-Totum was mostly correct. (RR 56). She acknowledged that

she expressed frustration about Mr. James Allen and “about people talking poorly

about [her].” (RR 56). Millsap denied making any comment to Martinez about

shooting anybody, and she denied showing Martinez a gun; however, Millsap

acknowledged that during her conversation with Martinez, (RR 57), she did have a

gun in the car, in a makeup bag, and moved it from one place to another. (RR 57).

If anything, Millsap contends Martinez must have just seen the butt of the gun,

which may have been sticking out of her makeup bag. (RR 58, 63).

       A couple of days after Millsap’s encounter with Martinez at Toot-n-Totum,

Millsap was interviewed by Amarillo Police Sargent, Curt Gable, after she was

placed under arrest. (RR 38-39). During that interview Millsap told Sgt. Gable:

“she had two guns, two pistols,” was in the process of obtaining her hand gun

license, and “carried a gun in her car.” (RR42). Indeed, Millsap acknowledge that

“she thought there was a Ruger .22” in her car the day she talked to Martinez;


Millsap v. The State of Texas
Appellee’s Brief                           10
however, she contended that it was black. (RR 42-43). At trial, Millsap again

corroborated the presence of the Ruger .22 at the time of her conversation with

Martinez. (RR 63). In addition to the Ruger, Millsap also told Sgt. Gable she

owned a Derringer. (RR 43). Sgt. Gable related Martinez’s story about what had

happened at the Toot-n-Totum to Millsap, and asked Millsap why Martinez would

lie about it, Millsap stated, “there shouldn’t be a reason she would lie about it.”

(RR 44).

       Despite denying she spoke about guns with either Dixon, on the phone, (RR

60) or Martinez, at Toot-n-Totum, (RR 61), under direct examination by defense

counsel, Millsap agreed she had talked about guns, having guns, owning guns, or

using a weapon for protection, but “it was in reference to using it for protection

only.” (RR 59). Additionally, defense counsel asked Millsap “if a statement were

make about, ‘if I feel threatened by anybody, I will protect . . . myself,’ would it

have been in that context only?” (RR 59). Millsap, in response thereto replied,

“that context only.” (RR 59). Yet, Millsap twice denied having made such a

conditional statement. She first denied it under direct examination by defense

counsel (RR 56-57), and she denied it a second time when the Prosecutor asked

Millsap if she had made such a statement. Her response was, “I never said that.”

(RR 62). Additionally, Millsap testified that during their phone conversation, she

did not feel like Amy Dixon was threatening her, (RR 55), and she testified


Millsap v. The State of Texas
Appellee’s Brief                        11
generally that she did not “feel threatened by anybody at the city.” (RR 58).

Millsap also testified that she “used to” have a temper. (RR 65). Millsap explained

that when she was previously charged with assault with a deadly weapon in

California, in which she stabbed her ex-boyfriend, a charge which was later

reduced to a misdemeanor, it was actually a case of self-defense. (RR 66-67).



                                Summary of the Argument


       Appellant’s points are wrong, and disproven by the facts and relevant law.

Appellant’s first point asserts that the “threat,” as if there were only one, was

conditional, and therefore insufficient. That is simply incorrect. Only one of three

threating statements is arguably conditional, and even if the Court concludes the

third threat is conditional, it and the other threats are all legally sufficient to sustain

the trial court’s judgment. As to Appellant’s second point, that Appellant’s threat

(or threats) was/were not immediate, Appellant entirely misapprehends the law.

That law does not require the threats to be immediate, but imminent. Under

relevant law, Appellant’s threats meet that standard.



                                       Argument

                    Sufficiency of the Evidence Standard of Review




Millsap v. The State of Texas
Appellee’s Brief                            12
        Appellant presents the Court two issues. In her first issue, Appellant argues

the trial court committed error, because Appellant’s threat, if any, was conditional.

(Appellant’s Brief pg. 1). In her second issue, Appellant argues that the threat, if

any, was not immediate. (Id.). With both issues, Appellant essentially argues that

the evidence is insufficient to support the trial court’s judgment. (Appellant’s Brief

pgs. 3-4).

        “The standard a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is

required to prove beyond a reasonable doubt is the standard set forth in Jackson v.

Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L.Ed.2d 560 (1979).” Henzler v. State,

07-12-00523-CR, 2014 WL 5337833, at *4 (Tex. App.—Amarillo, Oct. 15, 2014,

no pet.) (not designated for publication) (citing Brooks v. State, 323 S.W.3d 893,

912 (Tex.Crim.App.2010)). “Under that standard, in assessing the sufficiency of

the evidence to support a criminal conviction [the reviewing court] considers all

the evidence in the light most favorable to the verdict and determines whether,

based on that evidence and reasonable inferences to be drawn therefrom, a rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (citing Jackson, 443 U.S. at 319, Brooks, 323 S.W.3d at

912).




Millsap v. The State of Texas
Appellee’s Brief                          13
       Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Id. (citing Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard applies equally to bench

trials. Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015); Taylor v.

State, 450 S.W.3d 528, 535 (Tex. Crim. App. 2014); Campbell v. State, 139

S.W.3d 676, 683 (Tex. App.—Amarillo 2003, pet ref’d); (citing Golihar v. State,

46 S.W.3d 243 (Tex. Crim. App. 2001). “A conviction that is not rationally based

on the evidence violates the Due Process Clause, whether a judge or jury sits as the

fact finder in the case.” Robinson, 466 S.W.3d at 172.

       A hypothetically correct jury charge 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.” Geick v. State,

349 S.W.3d 542, 545 (Tex. Crim. App. 2011); Campbell, 139 S.W.3d at 683

(citing Malik, 953 S.W.2d 239-40). “When a statute lays out several alternative

methods of committing an offense, and the indictment alleges only one of those

methods, ‘the law as authorized by the indictment’ is limited to the method

specified in the indictment.” Id. (citing Golihar, 46 S.W.3d 254-255). “[A]bsent a

notice-based motion to quash, a charging instrument need allege only the statutory




Millsap v. The State of Texas
Appellee’s Brief                         14
elements of the offense.” Id. (citing Ex Parte Luna, 784 S.W.2d 369, 371 (Tex.

Crim. App. 1990) (op. on rehearing).

        When conducting a sufficiency of the evidence review, the reviewing court

“must give deference to the responsibility of the fact finder to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Little v. State, 246 S.W.3d 391, 398 (Tex.

App.—Amarillo 2008, no pet.) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). The reviewing court does not resolve any conflict of fact,

weigh any evidence, or evaluate the credibility of any witness, as those are

functions for the trier of fact. Id. (citing Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999)).

       “In a bench trial, the trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony.” Shepard v. State, 244

S.W.3d 421, 423 (Tex. App.—Amarillo 2007, pet. ref’d) (citing Kmiec v. State, 91

S.W.3d 820, 822 (Tex. App.—Houston [1st Dist] 2002, pet. ref’d). A reviewing

appellate court “may not sit as a thirteenth juror, but must uphold the . . . verdict

unless it is irrational or unsupported by more than a ‘mere modicum’ of evidence.”

Id. (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

       Finally, an appellate court reviewing a sufficiency of the evidence point

“must evaluate all of the evidence in the record, both direct and circumstantial,


Millsap v. The State of Texas
Appellee’s Brief                         15
whether admissible or inadmissible.” Henzler, 07-12-00523-CR, 2014 WL

5337833, at *4 (citing Dewberry, 4 S.W.3d at 740).


                             Hypothetically Correct Jury Charge


         By a three count information,5 each count naming a different victim

(Angelina Martinez, in Count One; Amy Dixon, in Count Two; and, Michelle

Martinez, in Count Three), the State charged Appellant with threating “to commit

an offense involving violence to a person, MURDER OR AGGRAVATE

ASSAULT WITH A DEADLY WEAPON, with intent to place [each of the three

victims] in fear of imminent serious bodily injury.” (CR 7). The State further

alleged each of the victims was a public servant, because all were employees of

“AMARILLO COMMUNITY DEVELOPMENT.” (Id.). The substance of the

State’s information describes the Penal Code offense of, Terroristic Threat. Tex.

Penal Code Ann. §22.07 (West 2011).

         Terroristic Threat is a “conduct-oriented offense,” Gillette v. State, 444

S.W.3d 713, 733 (Tex. App.—Corpus Christi 2014, no pet.), proscribing “six

separate terroristic objectives.” Id. at 729; Tex. Penal Code Ann. §22.07. In this

case, as to all three counts, the State’s charging instrument specifically alleged

Appellant’s commission of an offense under Tex. Penal Code §22.07(a)(2), which


5
    Appellee agrees with Appellant that Count Three of the State’s information was waived.

Millsap v. The State of Texas
Appellee’s Brief                                16
required that Appellant threatened “to commit any offense involving violence to

any person with intent to . . . place any person in fear of serious bodily injury.”

Tex. Penal Code Ann. §22.07(a)(2) (West 2011).

       “Intent,” as used in the State’s information, is defined by Texas Penal Code

§6.03, describing that “[a] person acts intentionally, or with intent, with respect to

the nature of his conduct or to a result of his conduct when it is his conscious

objective or desire to engage in the conduct . . .” Tex. Penal Code Ann. §6.03(a)

(West 2011).

       In connection with the offense of Terroristic Threat, this Court has defined

“threat” to mean “a declaration of intention or determination to inflict punishment,

loss or pain on another, or to injure another by the commission of an unlawful act.”

Heinert v. Wichita Falls Hous. Auth., 441 S.W.3d 810, 818 (Tex. Amarillo 2014,

no pet) (citing Cook v. State, 940 S.W.2d 344, 347 (Tex. App.—Amarill0 1997,

pet. ref’d)). “Put another way, a ‘threat’ is a ‘communicated intent to inflict harm

or loss on another or on another’s property.’” Id.

       Regarding the statutory term “imminent,” as used in connection with the

type of Terroristic Threat described by Tex. Penal Code §22.07(a)(2), this Court

has described that term as meaning, “near at hand; mediate rather than immediate;

close rather than touching; impending; on the point of happening; threatening;




Millsap v. The State of Texas
Appellee’s Brief                         17
menacing; perilous.” Heinert, 441 S.W.3d at 818 (original quotation marks

omitted) (citing Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)).

       “Serious bodily injury,” another statutory term employed in the §22.07

(a)(2) subpart of the Terroristic Threat statute, means “bodily injury that creates a

substantial risk of death or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.” Tex.

Penal Code Ann. §1.07(46) (West 2011).

       “Public Servant,” as used in Tex. Penal Code §22.07(c)(2), is defined in

relevant part as, “a person elected, selected, appointed, employed, or otherwise

designated as . . . an officer, employee, or agent of government.” Tex. Penal Code

Ann. §1.07(41)(A) (West 2011).

       Appellee contends that the State’s information in this case, together with the

above defined terms, substantially constitutes the theoretically correct jury charge

by which the Court will assess the sufficiency of the evidence in this case.6


6
  As to Count Two, Appellee acknowledges that it alleged “the 1st day of March, 2016,” as the
date of offense in which Amy Dixon was the named victim, (CR 7) and that record evidence
supports that the offense may have been committed on February 22nd or 23rd, 2016, as well as on
March 1st; however, the information also preceded the alleged date of offense with the words,
“On or about.” (Id.). The State need not allege a specific date in its charging instrument, and
moreover, “on or about” language in a charging instrument “allows the State to prove a date
other than the one alleged in the indictment as long as the date is anterior t the presentment of the
indictment and within the statutory limitations period.” Sledge v. State, 953 S.W.2d 253, 255-56
(Tex. Crim. App. 1997). Appellee requests the Court to take judicial notice of the date of offense
alleged in the information, as well as the date it was filed with the clerk (CR 7). Further,
Appellee would ask the Court to take judicial notice that the alleged date of offense was within
the two year limitations period applicable to Class A and B misdemeanor offenses under Tex.

Millsap v. The State of Texas
Appellee’s Brief                                 18
                 Principles of Review Applicable to Terroristic Threat


        “In order to commit this offense of terroristic threat under Subsection (2),

‘the accused must have the specific intent to place any person in fear of imminent

serious bodily injury.’” Heinert, 441 S.W.3d at 818 (citing Walker v. State, 327

S.W.3d 790, 794 (Tex. App.—Fort Worth 2010, no pet.). “Intent can be inferred

from the acts, words, and conduct of the accused.” Id. For the offense to be

complete, “it is not necessary that the victim or anyone else was actually placed in

fear of imminent serious bodily injury.” Id. (citing Dues v. State, 634 S.W.2d 304,

305-06 (Tex. Crim. App. [Panel Op.] 1982)). “It is immaterial to the offense

whether the accused had the capability or the intention to carry out his threat.”

Heinert, 441 S.W.3d 818 (citing Dues, 634 S.W.2d at 305-06).

       Contrary to Appellant’s suggestion that, “[t]he focus should on the inquiry

should be whether the victim, was afraid of imminent serious bodily injury at the

time of the offense,” citing Williams v. State, (Appellant’s Brief pg. 3), “[t]he

offense is complete if the accused, by his threat, sought as a desired reaction to

place a person in fear of imminent serious bodily injury.” Heinert at 818, (citing

Dues at 306).




Code of Criminal Procedure Art. 12.02. A hypothetically correct jury charge need not
incorporate allegations that give rise to an immaterial variance. Ramos v. State, 407 S.W.3d 265,
268-71 (Tex. Crim. App. 2013).

Millsap v. The State of Texas
Appellee’s Brief                               19
       When examining the element of imminence, it is appropriate for the

reviewing court to consider the impact of the actor’s statements on the victim. In re

A.C., 48 S.W.3d 899, 904 (Tex. App.—Fort Worth 2001, pet. denied) (citing Stults

v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000, per. Ref’d)).

Indeed, the Williams v. State language Appellant quotes supports this principle,

although it has nothing to do with the conditional nature of a Terroristic Threat. It

was in connection with the 14th Court’s examination of the “imminence” element

of the offense in which the court stated, “we must look to the proximity of the

threatened harm to the condition,” Williams v. State, 194 S.W.3d 568, 575 (Tex.

App-Houston [14th Dist.] 2006, aff’d on other grounds, 252 S.W.3d 353 (Tex.

Crim. App. 2008) (citing Cook v. State, 940 S.W.2d 344, 348 (Tex. App.—

Amarillo 1997, pet. ref’d), and then notes, “the focus of the inquiry should be on

whether the victim was afraid of imminent serious bodily injury at the time of the

offense.” Williams, 194 S.W.3d at 575 (citing Stults). “[T]hreatening to commit an

act could cause fear of imminent serious bodily injury if, in the mind of the victim,

the commission of the act was ‘near at hand’ or ‘hanging threateningly over one’s

head.’” Jones v. State, 07-16-00345-CR, 2017 WL 1908586, at *4 (Tex. App.—

Amarillo May 8, 2017, no pet. h.) (not designated for publication.).

       While a court cannot determine intent to commit the offense of Terroristic

Threat “merely from what the victim thought at the time of the offense,” Heinert,


Millsap v. The State of Texas
Appellee’s Brief                         20
441 S.W.3d 818 (citing Dues, 634 S.W.2d at 305-06), it may infer intent from the

perception of those hearing or receiving the threat. Walker v. State, 327 S.W.3d

790, 794-95 (Tex. App.—Fort Worth 2010, no pet.); In re A.C., S.W.3d 899, 904

(Tex. App.—Fort Worth 2001, pet. denied) (stating, “the reaction of the victim—

regardless of whether the threat was real or was carried out—is some evidence of

the defendant’s intent.”); Williams v. State, 432 S.W.3d 450, 455-56 (Tex. App.—

San Antonio 2014, pet. ref’d) (stating, “Because our analysis considers ‘the desired

and sought after reaction of the listener 9or of the complainant) regardless of

whether the threat is real or weather the threat is carried out, [as constituting] some

evidence of the intent of the protagonist,’ [the complainant’s] actions are also

relevant.”) (parentheses and brackets in original).

       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 Threat. Cook v. State,

940 S.W.2d 344, 348-49 (Tex. App.—Amarillo, pet. ref’d); In re A.C.48 S.W.3d at

904 (citing Cook); Williams I, 194 S.W.3d at 575 (citing Cook). “Once the

defendant makes a threat to commit a violent offense seeking the ‘desired reaction

to place a person in fear of imminent serious bodily injury,’ the offense of

terroristic threat is completed.” Williams II, 432 S.W.3d at 454.




Millsap v. The State of Texas
Appellee’s Brief                          21
  Issue No. One: Appellant’s Threats Not Conditional; if Conditional, Sufficient

       Appellant made three separate threatening statements. Appellant made her

first threatening statement to Amy Dixon on February 22nd or 23rd, 2016, stating,

“you bitches need to realize I’m not from Texas. I’m from California, and I carry a

gun at all times.” (RR 14). As is apparent from the text of this statement, nothing

about it is conditional. Appellant’s second threat was communicated to Michelle

Martinez at the Toot-n-Totum on March 1st, 2016, (RR 27). The threat consisted

of these words: “what these . . . mother fuckers don’t realize is that I carry a gun.”

(RR 30). The context strongly suggests that Appellant was contemplating Angelina

Martinez, among others, when she made that statement. Id. Again, nothing in that

statement suggests it is conditional. Appellant’s third threatening statement was

also made to Michele Martinez during the encounter at the Toot-n-Totum. The

third statement consisted of the following words: “if [Appellant] felt threatened or

anything like that she would fucking shoot them.” (RR 30). Martinez testified

Millsap included Angelina Martinez in her reference to “them.” (RR 30). This

statement, arguably, is conditional, but to reiterate, 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 Threat. Cook, 940 S.W.2d at 348-49.




Millsap v. The State of Texas
Appellee’s Brief                         22
       The court’s examination is on the proximity of the threatened harm to the

condition,” Williams, 194 S.W.3d 575. “[T]he focus of the inquiry should be on

whether the victim was afraid of imminent serious bodily injury at the time of the

offense.” Id. Appellant’s stated condition was, feeling “threatened or anything like

that.” Black’s Law Dictionary defines threat as “a communicated intent to inflict

harm or loss on another or another’s property.” Gillette v. State, 444 S.W.3d 713,

723 (Tex. App.—Corpus Christi 2014, no pet.) (citing BLACK’S LAW

DICTIONARY 1618 (9TH ed. 2009)). The bounders of “or anything like” are

broad. Many things could be included in that statement, including attacks on

Appellant’s reputation.         As a consequence, the court have reasonably concluded,

as the prosecutor argued, that Appellant perceived people bad mouthing her

performance as an employee of CDD as a threat, inflicting harm or loss on her

reputation within the community. Given that the harm had already occurred, a

harm she attributed to three specific individuals, including Angelina Martinez, the

proximity of the threatened harm, “fucking shooting them,” was very close to the

condition, feeling “threatened, or anything like that.” Again, here it is important to

recall that Michelle Martinez testified that Angelina Martinez “felt really scared,”

upon learning of Appellant’s statement and actions on March 1st, 2016. (RR 33).

Based on the content of Appellant’s words and Angelina Martinez reaction, it was

reasonable for the court to conclude that Angelina Martinez was afraid of


Millsap v. The State of Texas
Appellee’s Brief                             23
imminent serious bodily injury. Appellants’ statements were not conditional, and if

one was, all were sufficient to support the court’s judgment.


          Issue No. Two: Appellant’s Threats were Imminent and Sufficient

       Initially, Appellee would point out that Appellant miscasts or misapprehends

this issue. In connection with her statement, “if she felt threatened or anything like

that, she would fucking shoot them,” Appellant contends, “[t]his is not a threat and

is not immediate.” (Appellant’s Brief pg. 4. ¶ 3). However, Tex. Penal Code

§2.07(a)(2) does not require that Appellant place a victim in fear of threatened

“immediate” serious bodily injury, rather, the law requires that Appellant’s place

the victim in fear of threatened imminent serious bodily injury. Tex. Penal Code

Ann. §22.07(a)(2) (West 2011). Here, Appellant makes the same mistake as the

Court describes in the Jones case, “Appellant confuses the victim’s ‘fear of

imminent serious bodily injury’ with the perpetrator’s imminent (temporal and

physical) ability to carry out that threat.” Jones, 07-16-00345-CR, 2017 WL

1908586, at *4. Moreover, “imminent” means “near at hand; mediate rather than

immediate; close rather than touching; impending; on the point of happening;

threatening; menacing; perilous.” Heinert, 441 S.W.3d at 818.

       Appellant’s first statement was made: on the heels of her dismissal from her

job in the CDD, a situation she described as “fucked up,”(RR 42-43); during the

course of a conversation in which she discussed “how the coworkers in the office

Millsap v. The State of Texas
Appellee’s Brief                         24
had spoke bad about her,” (RR 11), which Appellant agreed, made her angry (RR

54-55), and in which Dixon described Appellant as being “upset,” and “very

angry,” (RR 14); and after specifically identifying two former coworkers,

“Angelina Martinez and Vanessa Morales,” (RR 13), who were “talking bad about

the job [she] performed.” (RR 13). Moreover, when Appellant made her statement

to Dixon, Dixon knew Appellant surfed the internet looking at firearms, (RR 17),

would sometimes “go out . . . to the river and shoot guns,” (RR 24), and that

Millsap “carried a gun.” (RR 41, 55). And, contrary to Appellant’s assertion,

(Appellant’s Brief pg. 1, ¶ 2), Dixon did feel threatened by Appellant’s statement.

(RR 18). Dixon testified that Appellant’s statement made her “feel nervous, and . .

. scared.” (RR 18). Additionally, Dixon testified that she understood herself to be

included in Millsap’s “you bitch[es]” comment. (RR 20-21).

       Appellant’s second threat was communicated to Michelle Martinez at the

Toot-n-Totum on March 1st, 2016, (RR 27). The threat consisted of these words:

“what these . . . mother fuckers don’t realize is that I carry a gun.” (RR 30).

Nothing in that statement suggests it is conditional. Through Martinez, Appellant’s

threat was communicated to the entire CDD office. (RR 32). Appellant made this

statement after specifically stating she was “being bad-mouthed by “Angelina

Martinez . . . her friend . . . and that geeky girl with the glasses,” whom Martinez




Millsap v. The State of Texas
Appellee’s Brief                        25
understood to be “Addie Traider.” (RR 30). On the heels of making the statement,

Appellant showed Martinez a handgun. (RR 30).

       Martinez testified that after she got back to the office, and her encounter

with Appellant was disseminated, “other employees felt really scared, especially

Angelina, Vanessa, and Addie.” (RR 33). Nothing in Tex. Penal Code §22.07

(a)(2) dictates or limits the manner in which a threat must be communicated. Tex.

Penal Code Ann. §22.07(a)(2). Threats have been found sufficient when delivered

by voice mail, Cook, 940 S.W.2d 344, Heinert, 441 S.W.3d 810, letter, Gillette,

444 S.W.3d 713, and in a veiled manner, Id. at 725. Given that Appellant’s

statement was made just after picking up her last pay check, within walking

distance of CDD, and in tandem with showing Martinez a handgun, the court could

have readily inferred that it was Appellant’s intent for Martinez to relay her acts

and statements to other members of the CDD Office, including Angelina Martinez,

just as if she would have left them on an answering machine, and that her

statement was intended to create within Angelina Martinez fear of imminent

serious bodily injury.

       Appellant’s third threatening statement was also made to Michele Martinez

during the encounter at the Toot-n-Totum, and reported back to the CDD Office by

her. The third statement consisted of the following words: “if [Appellant] felt

threatened or anything like that she would fucking shoot them.” (RR 30). Here


Millsap v. The State of Texas
Appellee’s Brief                        26
again, the perceived reference was to Angelina Martinez, Addie Traider, and

Vanessa (last name unknown). (RR 33). Here again, the court have reasonably

inferred that it was Appellant’s intent for Martinez to relay her acts and statements

to other members of the CDD Office, including Angelina Martinez, just as if she

would have left them on an answering machine, and that her statement was

intended to create within Angelina Martinez fear of imminent serious bodily

injury.

       Appellant’s first, second, and third statements were all sufficiently

impenitent to support the court’s judgment.


                                        Conclusion


       Appellant’s first, second and third statements were, at a minimum,

menacing, thus each constituted a threat. Heinert, 441 S.W.3d at 818. If not meant

to menace Dixon and her coworkers, including Angelina Martinez, what other

reasonable purpose could Appellant’s statements have had? Contrary to

Appellant’s assertion, it could not have been “in the vein of self-defense,”

(Appellant’s Brief pg. 4, ¶ 3)7, because as Appellant testified at trial, she did not

feel threatened by Dixon or any other of her former coworkers. (RR 55, 58).




7
 Appellee does not see how Appellant’s citation to George v. State, 841 S.W.2d 544 (Tex.
App.—Houston [1st Dist.] 1992) supports her argument on this point.

Millsap v. The State of Texas
Appellee’s Brief                              27
       Dixon’s reaction, “feeling scared.” is evidence of both of Appellant’s intent,

and of the imminence of the harm Dixon perceived. The same is true for Angelina

Martinez, whom Michele Martinez described as feeling really scared. Appellant’s

intent can also be inferred from the fact that she made not one, but three

threatening statements, two of which are plainly unequivocal. Cook, 940 S.W.2d

348.

       Based on the above facts, reasonable inferences therefrom, and law, the trial

court could have reasonably concluded Appellant’s direct statement to Dixon and

indirect statement to Angelina Martinez, constituted threats intended to create fear

of infliction imminent serious bodily injury on both.

       Testimony also supported that both were employees of the City of Amarillo.

Thus, the evidence is sufficient to support the court’s conviction of Appellant for

Count One and Count Two.

       In sum, the evidence was sufficient in this case to support the trial court’s

judgment.



                                        Prayer


       Appellee prays that the Court:




Millsap v. The State of Texas
Appellee’s Brief                          28
       1. hold that Appellant’s threats were not conditional and evidence was

           sufficient to support the court’s judgment, or if conditional, still sufficient

           to support the court’s judgment;

       2. hold that Appellant’s threats were imminent the evidence sufficient to

           support the court’s judgment; and,

       3. Affirm the courts judgment, in all respects.




Millsap v. The State of Texas
Appellee’s Brief                            29
