                                                                                    PD-0399-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                   Transmitted 6/1/2015 6:58:44 PM
                                                                     Accepted 6/2/2015 4:51:29 PM
                                 PD-0399-15                                         ABEL ACOSTA
                                                                                            CLERK

                   COURT OF CRIMINAL APPEALS OF TEXAS
                _______________________________________

                             MAHMOUD AFHAMI,
                                Appellant,

                                     VS.

                        THE STATE OF TEXAS,
                              Appellee.
__________________________________________________________________

  On Petition for Discretionary Review from the Fourteenth Court of Appeals in
   Cause No. 14-13-01013-CR, affirming the conviction in Cause No. 1892708,
      In County Criminal Court at Law Number 13 of Harris County, Texas
__________________________________________________________________

           APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


                                           ALEXANDER BUNIN
                                           Chief Public Defender
                                           Harris County, Texas

                                           BOB WICOFF
                                           Assistant Public Defender
                                           Harris County, Texas
                                           TBN 21422700
                                           1201 Franklin, 13th floor
         June 2, 2015
                                           Houston, Texas 77002
                                           Phone: (713) 368-0016
                                           Fax: (713) 368-9278
                                           bwicoff@pdo.hctx.net

                                           Counsel for Appellant




                                      i
                         IDENTITY OF JUDGE, PARTIES AND COUNSEL


Trial Court Judge:                                              Hon. Don Smyth
                                                                County Criminal Court No. 13
                                                                Harris County, Texas
                                                                1201 Franklin Street, 11th floor
                                                                Houston, Texas 77002

Parties to the Judgment:                                        Mahmoud Afhami
                                                                The State of Texas

Names and addresses of trial counsel (State):                   Bryan Acklin
                                                                Travis Dunlap
                                                                Assistant District Attorneys
                                                                Harris County, Texas
                                                                1201 Franklin Street, 6th floor
                                                                Houston, Texas 77002

Name and address of trial counsel (Defense):                    Jed Silverman
                                                                Attorney at Law
                                                                1221 Studewood
                                                                Houston, Texas 77008

Counsel on appeal for the State of Texas:                       Melissa P. Hervey
                                                                Assistant District Attorney
                                                                Harris County, Texas
                                                                1201 Franklin Street, 6th floor
                                                                Houston, Texas 77002

Counsel on appeal for the Appellant:                            Bob Wicoff
                                                                Franklin Bynum1
                                                                Assistant Public Defenders
                                                                Harris County, Texas
                                                                1201 Franklin Street, 13th floor
                                                                Houston, Texas 77002


1
    Mr. Bynum represented the Appellant at the Fourteenth Court of Appeals, as an assistant public
    defender, but is now in private practice. Bob Wicoff now represents the Appellant in his Petition
    for Discretionary Review.
                                                    i
                                TABLE OF CONTENTS

                                                                            PAGE

Identity of Judge, Parties and Counsel:                                         i

Table of Contents:                                                              ii

Index of Authorities:                                                           iii

Statement Regarding Oral Argument:                                              iv

Statement of the Case:                                                          iv

Statement of Procedural History:                                                iv

Ground for Review:                                                              v

The court of appeals erred in concluding without analysis that there had been
an effective abandonment of allegations in the charging instrument by the
State.

Argument Under Ground for Review:                                               1

Prayer for Relief:                                                              6

Certificate of Service:                                                         7

Certificate of Compliance:                                                      7

Appendix (Afhami v. State):                                              appendix




                                          ii
                                       INDEX OF AUTHORITIES

                                                                                                       PAGE
Cases

Afhami v. State, No. 14-13-01013-CR, 2015 WL 1246775
 (Tex. App.-Houston [14th Dist.] March 17, 2015, no pet. h.).

Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014) ........................................................ 6

Statutes and Rules

Tex. Penal Code Ann., sec. 22.07(a)(2) ..…….……………………………………… iv


Other Authority

George E. Dix & John M. Schmolesky, 42 Texas Practice and Procedure ........................... 8
   Sec. 26.74 (3rd ed. 2011)




                                                      iii
                    STATEMENT REGARDING ORAL ARGUMENT

       Appellant waives oral argument. The issue presented in this petition can be

thoroughly presented through briefing by the parties.

                              STATEMENT OF THE CASE

       The Harris County District Attorney’s Office filed a misdemeanor information

on April 29, 2013, alleging that appellant committed the offense of terroristic threat.

See Tex. Penal Code Ann., § 22.07(a)(2)(C.R. at 35). The offense was alleged to have

occurred on or about March 30, 2013. On October 23, 2013, appellant pled not guilty

and the case proceeded to a jury trial (4 R.R. at 5). On October 25, 2013, the jury

found appellant guilty as charged in the information (6 R.R. at 99). The jury imposed a

sentence of no jail time and a $3,000.00 fine (7 R.R. at 9). Appellant filed a motion for

new trial on November 25, 2013, which the trial court denied on January 8, 2014 (C.R.

at 78, 85).

                      STATEMENT OF PROCEDURAL HISTORY

       On March 17, 2015, in an unpublished memorandum opinion, the Fourteenth

Court of Appeals affirmed appellant’s conviction, but reformed the judgment to

reflect that the jury assessed punishment in the case. Afhami v. State, No. 14-13-01013-

CR, 2015 WL 1246775 (Tex. App.-Houston [14th Dist.] March 17, 2015, no pet. h.).

This Court has extended the time to file the Appellant’s Petition for Discretionary

Review until June 1, 2015, which is the date that this document is being e-filed.


                                           iv
                        GROUND FOR REVIEW
The court of appeals erred in concluding without analysis that there had
been an effective abandonment of allegations in the charging instrument
by the State.




                                   v
                    ARGUMENT UNDER GROUNDS FOR REVIEW

A.    The pleading, the jury charge, and the charge conference

      The misdemeanor information in this case alleges, in relevant part, that:

             “…MAHMOUD AFHAMI, hereafter styled the Defendant,
      heretofore on or about March 30, 3013, did then and there unlawfully
      threaten to commit an offense involving violence, namely
      AGGRAVATED ASSAULT WITH A DEADLY WEAPON upon a
      member of the Defendant’s family, namely, FERDOUS
      ABDOLLAHZADEH,               HEREINAFTER        CALLED         THE
      COMPLAINANT with the intent to place the Complainant in fear of
      imminent serious bodily injury.” (C.R. at 35).

      The application paragraph of the court’s charge stated as follows:

              “Now, therefore, if you find from the evidence beyond a
      reasonable doubt that the defendant, MAHMOUD AFHAMI, on or
      about March 30, 2013, in Harris County, Texas, did then and there
      unlawfully threaten to commit an offense involving violence, namely,
      assault upon a member of the defendant’s family, namely, FERDOUS
      ABDOLLAHZADEH, hereinafter called the Complainant, with the
      intent to place the Complainant in fear of serious bodily injury, then you
      will find the defendant guilty.” (C.R. at 50).

      From the above, it is clear that what was alleged in the charging instrument,

viz., a threat to commit aggravated assault with a deadly weapon, was not what the jury

was later authorized to convict upon, which was simply a threat to commit an assault.

      At the charge conference, the defense complained about the lesser burden that

had been embodied in the charge, arguing that “(the jury charge is) broadening the

State’s ability to prove the case; and it’s a variance from the complaint…or from the

Information.” (6 R.R. at 53). The trial court replied that the charge was “extremely

awkwardly pled.” (6 R.R. at 53). At this point the prosecutor asked the trial court if it

                                          -1-
would consider “the abandonment of the aggravated assault with a deadly weapon and

just leave it at assault” (6 R.R. at 54). Initially, the trial court refused (6 R.R. at 54).

The State persisted in moving to abandon the allegation of an aggravated assault and

the requirement that they prove a deadly weapon. The defense argued that the State

had “made a specific tactical decision” in charging the case with the allegation that the

appellant had threatened aggravated assault with a deadly weapon (6 R.R. 60-63).

       The trial court, stating that “the State was probably a little overzealous in

drafting this pleading,” then changed its mind and ostensibly allowed the State to

strike the “deadly weapon” and “aggravated assault” requirements in the charge, with

the result that the State was only required to prove that the Appellant threatened an

“assault” (6 R.R. at 65-66).

   B. The opinion of the Fourteenth Court of Appeals

       The court of appeals addressed the Appellant’s complaint as follows:

              “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

                                           -2-
      abandonment was error. Accordingly, we overrule his first issue.” Slip
      opinion, at page 5.
   C. Argument under grounds for review

      The Fourteenth Court of Appeals did not reach appellant’s complaint about the

variance between what was pled in the charging instrument and what was set out in

the charge, because, as the court wrote: “…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.” Slip Opinion, at page 5.

      As for the suggestion that the jury charge “mirrored the information as it

existed at the time the charge was submitted,” there is no written amended charging

instrument in the record, nor is there any charging instrument reflecting abandonment

of matters from the original charging instrument. Appellant asks this Court to locate

the document constituting “the information as it existed at the time the charge was

submitted.” Were aspects of the original charging instrument abandoned, or was there

really an amendment? In either case, can the State accomplish changes it wants in a

charging instrument by oral pronouncement, or must there be more?

      As one authority has pointed out with respect to the mechanics of amending a

charging instrument:

      “In Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014), the State filed
      a motion to amend the original 11-count indictment by replacing all 11

                                          -3-
        counts with five counts set out in an exhibit attached to the motion. The
        trial court ordered the motion granted but no changes were made in the
        original indictment itself. Under Riney, the Court of Criminal Appeals
        held, this was an effective amendment of the indictment.

        Perez leaves somewhat unclear what limits Texas law puts on the
        mechanics of amending a charging instrument. The case itself seems to
        turn on the court’s perception that there was no meaningful difference
        between the procedure found acceptable in Riney and that used in Perez.
        If the State's motion and attachments in Perez included the language of
        the original indictment, this was not mentioned or relied upon by the
        court.

        Perhaps after Perez, the bottom line is that the procedure must be such
        as assures that the court’s file—including the original indictment, the
        State’s motion to amend and any attachments, and the order granting the
        motion—makes readily available to the accused the language of the
        charges against which he will have to defend at trial. Even if the State’s
        motion did not include the language of the original indictment, the
        court’s file would include the original document and the motion and
        order made reasonably clear and obvious to the defendant the effective
        allegations on which the trial would be held.”

Dix and Schmolesky, 42 Tex. Prac., Criminal Practice and Procedure, sec. 26:74 (3d

ed.).

        The chief difference between the instant case and Perez, where amendment was

deemed effective, is that the appellant in Perez had no objections and the amendment

benefitted Perez. In this case, Appellant was harmed by the State’s abandonment,

which may in fact have constituted an amendment. The State’s action in the instant

case, which led to the more expansive language in the charge, obviously made the case

easier to prove.




                                          -4-
      Where the court of appeals simply assumes that matters were “abandoned” in

the charging instrument, it has made the State’s argument for them. As to whether

matters in the charging instrument were “abandoned,” or the instrument was in fact

“amended,” no new charging instrument appears in the record, either as an exhibit to

a State’s motion, or as a stand-alone, redacted document.

      The bottom line is that there was only one, original charging instrument and a

jury charge that contained a less onerous burden for the State.

      In the face of the record containing no altered charging instrument, it should

have been the State’s burden to argue on appeal that a proper amendment of that

charging instrument, or an abandonment, was accomplished, so that there was no

variance between what was pled in the (new) charging instrument and what was

contained in the charge. As matters stood on appeal, there was still only one charging

instrument and that was the original one.

      The court of appeals’ assumption that an effective alteration of the charging

instrument had occurred, either through abandonment or amendment, without a new

or altered document appearing anywhere in the record, placed a burden on appellant

that was not his to shoulder. Appellant’s argument assumed, properly, that without a

new or altered charging instrument appearing in the record, the jury charge that was

submitted was erroneous.

      This Court should either remand the case to the court of appeals so that the

court of appeals may determine whether the charging instrument was in fact amended,
                                            -5-
or if instead certain components of the charge merely abandoned, and whether, in

either case, the procedure whereby the trial court conducted such change was proper.

                                    PRAYER FOR RELIEF

      For the reasons stated above, the Appellant moves that this Court grant his

petition and reverse the judgment of conviction in this case, and remand the case for a

new trial, or in the alternative, remand the case to the court of appeals so that it may

consider the merits of appellant’s argument as to his first issue on appeal to that court.

                                                Respectfully submitted,

                                                Alexander Bunin
                                                Chief Public Defender
                                                Harris County Texas



                                                /s/ Bob Wicoff
                                                Bob Wicoff
                                                Assistant Public Defender
                                                Harris County Texas
                                                1201 Franklin, 13th floor
                                                Houston Texas 77002
                                                (713) 274-6781
                                                TBA No. 21422700




                                          -6-
                          CERTIFICATE OF SERVICE

      I hereby certify that on June 1, 2015, a copy of the foregoing petition has been

served electronically on Alan Curry, who is the chief of the appellate division of the

Harris County District Attorney’s Office, through the efile system, and on the State

Prosecuting Attorney.



                                              /s/ Bob Wicoff


                          CERTIFICATE OF COMPLIANCE
     This petition complies with the type-volume limitations of Tex. R. App. Proc.

9.4(e) and 9.4(i). It contains 1,761 words printed in a proportionally spaced typeface

using Garamond 14 point font.



                                              /s/ Bob Wicoff




                                        -7-
Afhami v. State, Not Reported in S.W.3d (2015)




                                          A P P E N D I X
                   Opinion in Afhami v. State, No. 14-13-01013-CR,
      2015 WL 1246775 (Tex. App.-Houston [14th Dist.] March 17, 2015, no pet. h.)




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.   8
Afhami v. State, Not Reported in S.W.3d (2015)




                2015 WL 1246775
  Only the Westlaw citation is currently available.                                I. BACKGROUND
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                       We will first consider appellant’s third issue, challenging
         AND SIGNING OF OPINIONS.                              the sufficiency of the evidence to support his conviction.
                                                               When reviewing the sufficiency of the evidence, we view
          MEMORANDUM OPINION
                                                               all evidence in the light most favorable to the verdict and
    DO NOT PUBLISH—TEX. R. APP. P. 47.2(B).
                                                               determine, based on that evidence and any reasonable
           Court of Appeals of Texas,
                                                               inferences therefrom, whether any rational fact finder
             Houston (14th Dist.
                                                               could have found the elements of the offense beyond a
            Mahmoud Afhami, Appellant                          reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
                           v.                                  (Tex.Crim.App.2011). This standard gives full play to the
             The State of Texas, Appellee                      responsibility of the trier of fact fairly to resolve conflicts
                                                               in the testimony, weigh the evidence, and draw reasonable
  NO. 14–13–01013–CR | Opinion filed March 17,                 inferences from basic facts to ultimate facts. Id.
                   2015
                                                               A person commits the offense of “terroristic threat” if “he
On Appeal from the County Criminal Court at Law No.            threatens to commit any offense involving violence to any
13, Harris County, Texas, Trial Court Cause No. 1892708        person or property with intent to ... place any person in
                                                               fear of imminent serious bodily injury.” Tex. Penal Code
Attorneys and Law Firms                                        Ann. § 22.07(a)(2) (West, Westlaw through 2013 3d
                                                               C.S.). The offense is a Class A misdemeanor if
Devon Anderson, Alan Curry, Melissa Hervey, for The            “committed against a member of the person’s family or
State of Texas.                                                household or otherwise constitutes family violence.” Id. §
                                                               22.07(c)(1) (West, Westlaw through 2013 3d C.S.). Intent
Franklin Gordon Bynum, for Mahmoud Afhami.                     relative to the offense can be inferred from the acts,
                                                               words, and conduct of the accused. Dues v. State, 634
Panel consists of Justices Boyce, Jamison, and Donovan.
                                                               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
             MEMORANDUM OPINION                                accused by his threat sought as a desired reaction to place
                                                               a person in fear of imminent serious bodily injury. Id. at
John Donovan, Justice                                          306.

*1 Appellant, Mahmoud Afhami, was charged by                   In this case, the information (as it existed when the jury
information with the Class A misdemeanor offense of            charge was submitted) more specifically alleged that, on
terroristic threat against a member of appellant’s family.     March 30, 2013, appellant threatened to commit “an
A jury found appellant guilty and assessed punishment at       offense involving violence, namely assault” against his
a fine of $3,000. In three issues, appellant contends (1)      wife “with the intent to place [her] in fear of imminent
the jury charge allowed conviction for an offense not          serious bodily injury.” Under a hypothetically correct jury
authorized by the information, (2) the jury charge did not     charge, the method of committing assault that would
state a proper offense, and (3) the evidence is insufficient   equate to an “offense involving violence” is “intentionally
to support the conviction. The State presents a cross-         [or] knowingly ... caus[ing] bodily injury to another....”
point, asserting the judgment incorrectly reflects that the    See Tex. Penal Code Ann. § 22.01(a)(1) (West, Westlaw
trial court assessed punishment. We reform the judgment        through 2013 3d C.S.); see also Malik v. State, 953
to reflect that the jury assessed punishment and affirm as     S.W.2d 234, 240 (Tex.Crim.App.1997) (holding
reformed.                                                      sufficiency of the evidence should be measured by

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         9
Afhami v. State, Not Reported in S.W.3d (2015)



elements of the offense as defined by hypothetically            of the charged offense by showing appellant’s state of
correct jury charge, which is one that accurately sets out      mind at the time of the incident.
the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or           Based on the above testimony, the jury could have found
unnecessarily restrict the State’s theories of liability, and   beyond a reasonable doubt that, on March 30, 2013,
adequately describes the particular offense for which the       appellant threatened to intentionally cause bodily injury to
defendant was tried).1                                          complainant because he threatened to kill her. Further,
                                                                based on appellant’s state of mind and conduct before and
*2 At trial, complainant and another woman, who was             at the time of the incident, the jury could have found
complainant’s friend and co-worker, collectively gave the       beyond a reasonable doubt that appellant made the threat
following testimony. On March 30, 2013, they were               with intent to place complainant in fear of imminent
employed at a department store. After their shift ended         serious bodily injury. According, the evidence is
that evening, they sat visiting in the friend’s car in the      sufficient to support the conviction. We overrule
store parking lot. Appellant parked his vehicle nearby. He      appellant’s third issue.
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                         II. JURY–CHARGE ISSUES
“whore” and accused complainant and her friend of
prostituting themselves. Appellant shook his index finger       We next consider appellant’s complaints regarding the
several times at complainant, which motion in the               jury charge.
customs of their nationality (Iranian) means a person
intends to harm another. Complainant was frightened
because appellant had previously threatened to appear in
                                                                A. Contention that conviction not authorized by the
disguise at her job and kill her. Specifically, during the
                                                                information
two-week period before the incident, appellant had made
                                                                In his first issue, appellant’s sole complaint is that the jury
multiple threats to kill complainant with a knife or gun or
                                                                charge permitted conviction for an offense that was not
by splashing acid on her face. Earlier on the day of the
                                                                authorized by the information because the offense
incident, appellant phoned complainant, threatening to kill
                                                                submitted in the charge differed from the offense alleged
her and accusing her of not being at work. In the parking
                                                                in the information.
lot that night, appellant yelled that he had come to make
good on his threats and more specifically threatened to
                                                                As appellant asserts, the information as originally written
kill complainant by throwing acid on her. Mall security
                                                                alleged the threatened “offense involving violence” was
intervened, and the police were called.
                                                                aggravated assault with a deadly weapon whereas the
                                                                application paragraph of the charge required the jury to
Additionally, an officer who interviewed complainant and
                                                                find the threatened “offense involving violence” was
the friend shortly after the incident testified they were
                                                                merely assault. However, appellant ignores that, before
frightened and a threat involving a gun was mentioned.
                                                                submission of the case to the jury, the trial court permitted
                                                                the State to abandon the aggravated-assault-with-a-
The State also presented a cell phone video of a brief
                                                                deadly-weapon language in the information and include
portion of the incident, showing appellant remove a wig
                                                                only the assault language. Thus, the jury charge mirrored
and aggressively approach complainant’s friend, who had
                                                                the information as it existed at the time the charge was
exited the car at some point.
                                                                submitted. On appeal, appellant does not contend the trial
                                                                court’s action in allowing the abandonment was error.
Appellant presented testimony from his brother’s wife.
                                                                Accordingly, we overrule his first issue.
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.             B. Claim that charge did not state a proper offense
Appellant presented this testimony to support his defense       In his second issue, appellant contends that for two
by suggesting he merely confronted complainant in the           reasons, the jury charge did not state a proper offense.
parking lot because he was “heartbroken.” However, this
testimony also constituted evidence of the intent element       The focus of appellant’s first complaint is the definition

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Afhami v. State, Not Reported in S.W.3d (2015)



of assault submitted in the charge. The trial court is         evidence, including contested issues and the weight of the
required to deliver to the jury “a written charge distinctly   probative evidence, (3) arguments of counsel, and (4) any
setting forth the law applicable to the case.” Tex.Code        other relevant information revealed by the trial record as a
Crim. Proc. Ann. art. 36.14 (West, Westlaw through 2013        whole. Id. Considering the pertinent factors, we conclude
3d C.S.). A statutorily defined word or phrase must be         appellant did not suffer egregious harm from the
included in the charge as part of “the law applicable to the   inapplicable definition of assault.
case.” Arline v. State, 721 S.W.2d 348, 352 n.4
(Tex.Crim.App.1986).                                           The entire charge made clear that the jury must find
                                                               appellant threatened to cause imminent bodily injury—not
*3 The application paragraph of the charge required the        that he threatened to make such a threat. As appellant
jury to find, inter alia, that appellant “threaten[ed] to      asserts, the latter scenario is nonsensical. Appellant makes
commit an offense involving violence, namely, assault”         that assertion to support his argument, but it actually
upon complainant. Under the Penal Code, there are              negates egregious harm and demonstrates the jury
alternative methods of committing assault, including (1)       understood the proper element of the offense. See Gelinas
assault by causing bodily injury, or (2) assault by            v. State, 398 S.W.3d 703, 707 (Tex.Crim.App.2013)
threatening imminent bodily injury. See Tex. Penal Code        (plurality op.) (recognizing that inquiry relative to the
Ann. § 22.01(a)(1), (2) (West, Westlaw through 2013 3d         egregious-harm test may involve discerning whether jury
C.S.). The jury charge defined “assault” solely as follows:    was misled and considering whether “the very clarity of
“a person commits an assault if the person intentionally or    the error ... may have mitigated any resulting harm”).
knowingly threatens another with imminent bodily injury,
including the person’s spouse.” Thus, the charge defined       Specifically, from the application paragraph—requiring
assault solely as the assault-by-threat method. See id. But,   that appellant “threaten[ed] to commit an offense
the charged offense of terroristic threat, as submitted in     involving violence, namely, assault”—the jury was
the application paragraph, already had a threat                informed it must find a threat to commit an actual act of
component: a “threat[ ] to commit ... assault.”                violence, rather than the nonsensical scenario of a threat
Consequently, as appellant asserts, a literal reading of the   to make a threat. Thus, although assault was incorrectly
application paragraph together with the definition of          defined as the assault-by-threat method, the jury equated
assault incorrectly suggested appellant committed the          the “threat” component of that definition to the “threat”
charged offense if he threatened to make a threat.             component of the charged offense. Instead of believing
Accordingly, the assault-by-threat method was not the          there was some nonsensical requirement of a double
correct definition of assault to include in this particular    threat, the jury understood it must find appellant
charge. The correct definition would have been the             threatened imminent bodily injury.2 Our conclusion is
assault-by-causing-bodily-injury method; i.e, requiring        supported by the closing arguments; both the prosecutor
the jury to find that appellant committed the charged          and appellant’s counsel informed the jury it must find that
offense by threatening to cause bodily injury.                 appellant threatened imminent bodily injury. See id. at
                                                               710 (finding no egregious harm from improper statement
However, appellant failed to timely object in the trial        of law in jury charge where common sense, the correct
court on the ground presented on appeal. Although              portion of the charge, and closing arguments of both
appellant made several objections to the charge before it      prosecutor and defense attorney likely alerted the jury to
was read to the jury, he did not challenge the definition of   the error and allowed it to properly apply the law).
assault. See Tex.Code Crim. Proc. Ann. art. 36.14.
Unobjected-to charge error requires reversal only if it was    *4 Moreover, the jury heard ample evidence that
“fundamental”—error that was so egregious and created          appellant threatened to commit assault under the
such harm that the defendant “has not had a fair and           applicable definition that should have been submitted. As
impartial trial.” Barrios v. State, 283 S.W.3d 348, 350        discussed above, the State proved appellant threatened to
(Tex.Crim.App.2009). Egregiously harmful errors “are           cause bodily injury to complainant because it proved
those that affect the very basis of the case, deprive the      appellant threatened to kill her at the time of the incident.
defendant of a valuable right, vitally affect the defensive    Accordingly, the strength of the evidence supports that
theory, or make a case for conviction clearly and              appellant did not suffer egregious harm from the
significantly more persuasive.” Taylor v. State, 332           inapplicable definition of assault submitted in the charge.
S.W.3d 483, 490 (Tex.Crim.App.2011). Egregious harm
is determined on a case-by-case basis and is a difficult       Next, appellant complains that the jury charge was
standard to prove. Id. at 489. In analyzing harm, we           erroneous because the requirement that he threatened to
consider (1) the entire charge, (2) the state of the           cause “imminent bodily injury” was inconsistent with the

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Afhami v. State, Not Reported in S.W.3d (2015)



requirement that he intended to place complainant in fear            statute by requiring the jury to find that appellant made
of “imminent serious bodily injury.” (emphasis added).               the above threat with intent to place complainant “in fear
We disagree. The requirements for these two different                of imminent serious bodily injury.” See id.
elements comported with the statutory definition of the
offense.                                                             In summary, having rejected both of appellant’s
                                                                     challenges to the jury charge, we overrule his second
The conduct element of the offense generally requires a              issue.
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.”                      III. THE STATE’S CROSS–POINT
In this case, the charge required the jury to find that the
threatened “offense involving violence” was, more                    Finally, as the State asserts by cross-point, the judgment
specifically, assault, which did not require “imminent               incorrectly reflects that the trial court assessed
serious bodily injury.” However, because the threatened              punishment when the jury assessed punishment. We have
“offense involving violence” need not be one that would              the authority to reform a judgment “to make the record
cause “imminent serious bodily injury,” the conduct                  speak the truth.” See Tex.R.App. P 43.2(b); French v.
element as submitted in the charge comported with the                State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992).
statute. See id.                                                     Accordingly, we sustain the cross-point.

Then, as applicable to this case, the statute does require           We reform the judgment to reflect that the jury assessed
for the intent element that the threat be made “with intent          punishment and affirm as reformed.
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

Footnotes
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.

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.




    End of Document                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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