









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00119-CV
______________________________




IN THE MATTER OF C.S., A CHILD





On Appeal from the County Court at Law
Gregg County, Texas
Trial Court No. 4336-J





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius
Concurring Opinion by Justice Ross
O P I N I O N

	The County Court at Law of Gregg County, sitting as a juvenile court, conducted an
adjudication hearing on a charge that C. S., a minor, engaged in delinquent conduct by making a
terroristic threat.  A jury found that C. S. committed the act, and the court, in a disposition hearing,
placed C. S. on one year's probation.  See Tex. Fam. Code Ann. § 54.03 (Vernon Supp. 2002);  Tex.
Pen. Code Ann. § 22.07 (Vernon 1994). 
	The evidence is undisputed.  C. S., who was twelve years old at the time and a student at
Foster Middle School, was brought to his school principal's office because of misbehavior, and he
was facing reassignment to an on-campus suspension at the school as punishment.  C. S., in the
presence of the principal's receptionist, the school attendance clerk, and two other adults, became
very angry and upset.  He denied committing the misbehavior, said that it was not his fault, and that
he was being persecuted by his teacher.  The principal's receptionist, Marsha Parker, described C. S.
as sullen and angry.  C. S. did not want to be sent to on-campus suspension again.  Then he said, "I'm
going to blow up the school."  Lavell Bridges, the school attendance clerk, asked C. S. what was
wrong.  C. S. then said, "I said I was going to blow up the school."  Bridges said, "You can't say
that."  Then C. S. said, "Well, I said I was going to blow up the school."  Bridges then left the office. 
Parker, the receptionist, then took C. S. into the principal's office and asked him to repeat for the
principal what he had said.  Initially, C. S. refused.  Then the principal, Connie Isabell, came over
and stood in front of C. S. and asked him to repeat what he had said.  C. S. repeated to the principal,
Isabell, what he had said to Parker.  Parker then left the principal's office.  The police were called
to the school, and Officer Ivory, the school resource officer, took C. S. into custody.  
	The petition charged that C. S. engaged in delinquent conduct and committed a terroristic
threat under Section 22.07 of the Texas Penal Code by threatening to commit an offense involving
violence to property, namely arson, with intent to interrupt or prevent the use or occupation of a
building. (1) 
	C. S. raises two issues on appeal:  (1) the court erred by giving the jury a definition of
"reasonable doubt," and (2) the evidence is legally and factually insufficient to prove that by his
statement he intended to interrupt or prevent the use or occupancy of the school.  
	In Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), the Texas Court of Criminal
Appeals specifically overruled the portion of Geesa v. State (2) that required trial courts to define
reasonable doubt for the jury and found that the better practice was to give the jury no definition or
explanation of the term. 
	C. S. objected to the inclusion of the Geesa-approved definition in the jury charge.  The trial
court overruled the objection.  The State argues that C. S. has waived any error in this regard because
at voir dire the court read, without objection, a substantial part of the definition to the jury panel as
part of her explanation of how they should apply the concept of reasonable doubt in the trial.   The
State argues that this explanation to the jury, at voir dire without objection, is tantamount to an
agreement of counsel to include the definition in the charge.   We disagree.  We conclude that C. S.
could not have anticipated that the court's brief discussion of the requirement of proof beyond a
reasonable doubt would necessarily mean that the court would later include the formal definition in
the jury charge.  We find that C. S. has adequately preserved the claimed error for review.
	We find that the court erred in including the reasonable doubt definition in the jury charge. 
Finding error in the court's charge, however, merely begins our inquiry.  Almanza v. State, 686
S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh'g).  We must now determine whether the error
was so harmful that it requires reversal.  Id. at 171.  C. S. raised a proper objection at trial, so
reversal is required if the error was calculated to injure him.   Id.; Aguilar v. State, 914 S.W.2d 649,
651 (Tex. App.-Texarkana 1996, no pet.).  The presence of any harm, regardless of degree, is
sufficient  to  require  reversal.  Abdnor v. State, 871 S.W.2d 726, 732  (Tex. Crim. App. 1994). 
C. S. has the burden to persuade us that he suffered some actual harm as a consequence of the
charging error.  Id.;  see also Belyeu v. State, 791 S.W.2d 66, 75 (Tex. Crim. App. 1989); LaPoint
v. State, 750 S.W.2d 180, 191 (Tex. Crim. App. 1986) (op. on reh'g); Gornick v. State, 947 S.W.2d
678, 681 (Tex. App.-Texarkana 1997, no pet.).					
	The majority in Paulson v. State, 28 S.W.3d 570, rejected the reasonable doubt definition for
several reasons.  It concluded that the definition was repetitious, logically infirm, and if  followed
literally, would cause a jury to never convict anyone.  From this, it is obvious that the majority
believed the definition favored the defendant because, if the jurors properly applied it, they would
be less likely to convict.  In a concurring opinion, Judge Holland concluded that the definition should
not be given and similarly reasoned that its wording "could confuse jurors into applying a reduced
burden of proof on the State to prove its case."  Id. at 576.   Thus, seven judges of the Texas Court
of Criminal Appeals agreed that the definition favored the defendant over the state.  For the same
reasons, and in the complete absence of any explicit suggestion by C. S. as to how the definition
harmed him, we conclude that the error was not harmful, and so reversal is not appropriate.
	 C. S. next contends that the evidence is factually and legally insufficient to support the jury's
verdict that he made a terroristic threat.  Our review of the sufficiency of evidence in an adjudication
of delinquency is based on the standards applicable to sufficiency of the evidence challenges in
criminal cases.  See Tex. Fam. Code Ann. § 54.03(f); see also In re L.M., 993 S.W.2d 276, 284
(Tex. App.-Austin 1999, pet. denied); In re E.P., 963 S.W.2d 191, 193 (Tex. App.-Austin 1998,
no pet.).  In our review of the legal sufficiency of the evidence, we employ the standards set forth
in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  This calls on us
to view the relevant evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 
Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  A factual sufficiency review requires us
to view the evidence in a neutral light, favoring neither party.   Id.; see Clewis v. State, 922 S.W.2d
126, 134 (Tex. Crim. App. 1996).  We view all the evidence and set aside the verdict only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Johnson v.
State, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d at 129. 
	The evidence shows that, in the midst of his complaining about how unfair the teachers were
and how he was mistreated, C. S. said to the principal's receptionist, "I'm going to blow up the
school."  The receptionist testified that she was concerned because of the "trend of violence in
schools in our society" and that this statement was not something she had ever heard during her two
years at the school.  She testified that four other adults were present when C. S. made the threat. 
C. S. repeated his statement to the attendance clerk.  
	The receptionist testified that she then took C. S. into the principal's office and asked him to
repeat to the principal what he had said.  C. S. initially refused the request.  The principal then stood
in front of C. S. and asked him to repeat his statement.  C. S. repeated the threat.  The principal
testified that C. S. was upset and angry when he repeated the statement in front of her, and that based
on C. S.'s background, she perceived the statement to be a threat.  The police were called, and C. S.
was placed in the custody of the school officer.
	C. S. contends that the evidence is legally and factually insufficient to show that he made the
statement with the intent that is required by the Texas Penal Code.  The State charged C. S. with
violating Tex. Pen. Code Ann. § 22.07, which provides in relevant part: 
		(a) A person commits an offense if he threatens to commit any offense
involving violence to any person or property with intent to:
 	. . . . .  
		(3) prevent or interrupt the occupation or use of a building; room; place of
assembly; . . . or other public place; . . . .
	This subdivision of the statute has not been construed by any appellate decision we have
found.  In cases involving other subdivisions of this statute, the courts have held that the requisite
intent may be inferred from the acts, words, or conduct of the accused.  Dues v. State, 634 S.W.2d
304, 305 (Tex. Crim. App. [Panel Op.] 1982).  It is immaterial whether the accused had the
capability or the intention to actually carry out his threat.  Id.; In re A.C., 48 S.W.3d 899, 904 (Tex.
App.-Fort Worth 2001, pet. denied); Cook v. State, 940 S.W.2d 344, 347 (Tex. App.-Amarillo
1997, pet. ref'd).  The statute does not require that the intended victim or anyone else actually believe
that the accused will carry out the threat, or that they be placed in fear that the threat may be carried
out, or that their use or occupation of a building actually be interrupted or prevented.  Dues v. State,
634 S.W.2d at 305.   The offense is complete if the accused, by his threat, sought as a desired
reaction to prevent or interrupt the occupation or use of a building, room, or place of assembly.  
	The specific intent of the accused is an essential element of the offense of terroristic threat. 
See Tex. Pen. Code Ann. § 22.07(a)(2) (Vernon 1994).   An actual admission by the accused of his
specific intent is not required, but the requisite intent may be inferred from the acts, words, and
conduct of the accused.  Beltran v. State, 593 S.W.2d 688 (Tex. Crim. App. 1980).  The desired
reaction of the listener (or of the complainant), regardless of whether the threat is real or whether the
threat is carried out, may also constitute some evidence of the intent of the person making the
statement.  Jarrell v. State, 537 S.W.2d 255 (Tex. Crim. App. 1976); Hadnot v. State, 884 S.W.2d
922, 925-26 (Tex. App.-Beaumont 1994, no pet.).
	Our  review  of  the  sufficiency  of  the  evidence  to  prove  C. S.'s  intent  is complicated
by C. S.'s age.  Texas courts have found it appropriate to consider the age of a juvenile in
determining whether the juvenile was in custody; that is, whether, based on the objective
circumstances, a reasonable child of the same age would believe his freedom of movement was
significantly restricted.  Jeffley v. State, 38 S.W.3d 847, 855 (Tex. App.-Houston [14th Dist.] 2001,
no pet.); In re L.M., 993 S.W.2d 276, 289 (Tex. App.-Austin 1999, pet. denied). (3)  Similarly, we find
it appropriate to consider C. S.'s age in our review of his statements and in determining the
sufficiency of the evidence to prove the intent necessary to satisfy the requirements of the statute. 
	As is typical, there is no direct evidence here of C. S.'s intent.  We must therefore determine
the sufficiency of the evidence of his intent from the inferences that may properly be drawn from his
words and from the circumstances surrounding their utterance.  It is clear from this evidence that
C. S. made the statement while angry.   It is also clear that he did not have the ability to immediately
carry out his threat to blow up the school.  But that is not required under the statute.  The gravamen
of the offense is the intention to interrupt or prevent the use or occupancy of the school by uttering
the threat.  If C. S. really intended to blow up the school at some future time, he undoubtedly would
have kept his intention a secret, lest his plan become known and might be frustrated.  The fact that
he was angry and did not want to be placed in on-campus suspension indicates that he made the
statement, not intending to actually do the act, but in order to scare the school officials who heard
it and disrupt or interrupt their use of the school facilities, thereby frustrating their plan to
immediately place him in on-campus suspension again.
	The principal testified that she believed C. S.'s statement was a threat, that she was worried
by it, and that based on C. S.'s background, it could have been a threat.  The receptionist testified that
she was concerned by the statement because it was not the type of statement she had ever heard from
a student and because of the general trend toward violence in schools.  That is the exact kind of
threat the statute is designed to punish.  Again, we must remember that it is not necessary that the
threat have the desired effect on the hearers; it is only necessary that the threat be made with the
intent that it have that effect.
	The task of divining C. S.'s intent in making the threat was for the jury.  Considering the
undisputed evidence in this case, the jury could have reasonably believed that, in order to frustrate
and delay his punishment of being placed in on-campus suspension, C. S. made the threat with the
intent to cause the school officials to react in a way that would interrupt or prevent their use of the
school facilities.  In fact, although it is not a necessary element of this offense, the work of the
school's attendance officer, principal's receptionist, principal, and the school resource officer was
interrupted and disrupted as a result of C. S.'s statement.
	The judgment is affirmed.

 

							William J. Cornelius
							Chief Justice


CONCURRING OPINION


	Generally, we presume a jury follows the trial court's instructions.  Colburn v. State, 966
S.W.2d 511, 520 (Tex. Crim. App. 1998).  During voir dire, the trial judge gave the jury panel the
Geesa definition of "reasonable doubt."  Neither party objected.  To preserve a complaint for
appellate review, a party must present a timely, specific objection at trial. Tex. R. App. P. 33.1(a);
see Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim App. 2000); Etheridge v. State, 903 S.W.2d
1, 14 (Tex. Crim. App. 1994); Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988); 
Granviel v. State, 552 S.W.2d 107, 121 (Tex. Crim. App. 1976).  To preserve error, a party must
object at the first opportunity.  Carmona v. State, 698 S.W.2d 100, 105 (Tex. Crim. App. 1985).  
	In Paulson, the Texas Court of Criminal Appeals overruled the portion of Geesa requiring
the trial court to define reasonable doubt for the jury.  Paulson v. State, 28 S.W.3d 570, 573 (Tex.
Crim. App. 2000).  If it is error for the trial court to give the definition in the jury charge, and if we
presume juries follow the court's instructions, then it is error for the trial judge to give the definition
at voir dire.  It makes little sense to permit the trial court to get around Paulson by moving the
definition out of the charge and into voir dire.  C. S. should have objected to the trial court's giving
of the Geesa definition during voir dire.  By failing to timely object, C. S. has failed to preserve this
point for appeal.

 
							Donald R. Ross
 

Date Submitted:	April 11, 2002
Date Decided:		May 24, 2002

Publish
1. The petition also alleged that property damage, personal injury, or property loss resulted. 
There was no proof to that effect, the jury was not charged on that question, and no restitution was
awarded.
2. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).
3. At common law, children under seven were considered incapable of possessing criminal
intent. Beyond that age, they were subjected to arrest, trial, and in theory, to punishment like adult
offenders.  In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-09-00154-CR
                                                ______________________________
 
 
                              GERALD DEWAYNE BUTLER,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 188th
Judicial District Court
                                                             Gregg County, Texas
                                                          Trial Court
No. 36296-A
 
                                                        
                                          
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                              Memorandum Opinion by Justice Carter




                                                     MEMORANDUM 
OPINION
 
            Gerald
DeWayne Butler was convicted of aggravated robbery in four separate
prosecutions, for multiple robberies of different victims, occurring on three
different dates.  Those convictions are
all presently before this Court on appeal. 
A fifth robbery involving a shooting was prosecuted earlier, and that
conviction was appealed to this Court. 
(All five robberies occurred during the span of six weeks.)  Our opinion affirming the conviction on the
fifth robbery issued on November 12, 2009.[1]  By agreement with the State and the trial
judge, issues that were litigated in the first prosecution concerning a
pretrial motion to suppress could also be brought forward as issues in his four
current appeals.  
            In
this case, Butler appeals from his conviction on his plea of guilty pursuant to
a negotiated plea agreement that granted him the right of appeal from pretrial
hearings.  He was convicted of aggravated
robbery, with a deadly weapon finding, and sentenced to twenty years
imprisonment, to run consecutively with his other convictions.  
            Butler
raises three points on appeal wherein he alleges:  (1) the court erred by denying his motion to
suppress evidence; (2) the court erred by not suppressing his confession based
on the violation of his right to exculpatory evidence under Brady[2]; and
(3) the court erred by not suppressing his confession on constitutional grounds
because he was not advised that he was being recorded.  
            Because
the issues raised in each appeal, and the facts underlying each appeal are
identical, for the reasons stated in our opinion dated this day in Butler v.
State, cause number 06-09-00150-CR, we likewise in this appeal affirm the
judgment of the trial court.
 
 
                                                                        Jack
Carter
                                                                        Justice
 
Date Submitted:          July
6, 2010
Date Decided:             July 20, 2010
 
Do Not Publish
 




[1]Butler v. State, 300 S.W.3d 474 (Tex.
App.Texarkana 2009, pet. refd, untimely filed).
 


[2]Brady v. Maryland, 373 U.S. 83 (1963).


