                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00129-CR



            DANIEL MONTALVO, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 102nd District Court
                 Bowie County, Texas
             Trial Court No. 16F0235-102




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                      MEMORANDUM OPINION
         Stephen Shires received a handwritten letter in Shelby County, Texas, originating from the

Texas Department of Criminal Justice (TDCJ) Telford Unit in Bowie County, Texas, threatening

that the Aryan Brotherhood would kill his two daughters if he did not pay $1,000.00. Because his

children were named in the letter, Shires took the threat “very seriously.” The letter’s return

address suggested the letter was from Roger Clifton, a Telford-Unit inmate.                            The ensuing

investigation—during which two other, similar, threatening letters were found and sidetracked—

pointed to Daniel Montalvo as the person who actually copied the three letters, at the request of

Clifton, conveying a message composed by Clifton.

         After Clifton pled guilty and was sentenced for his involvement in the letters, 1 Montalvo

was convicted of three counts of making a terroristic threat and was sentenced to twenty-five years’

incarceration for each conviction, with the sentences to run concurrently. On appeal, Montalvo

contends that there was legally insufficient evidence to support his convictions and that the

judgment should be modified to correct factual errors.

         Because (1) legally sufficient evidence supports Montalvo’s conviction and (2) there are

errors in some recitations in the judgment, we modify the trial court’s judgment to state that

Montalvo pled not guilty to the three counts of terroristic threats and that he entered pleas of true

to the two enhancement allegations. We affirm the judgment as so modified.




1
 Clifton and Montalvo were each charged with three counts of terroristic threatening. Under the terms of a plea bargain
agreement, Clifton pled guilty to all three charges and received a twenty-year sentence for each charge, with the
sentences to run concurrently.

                                                          2
(1)     Legally Sufficient Evidence Supports Montalvo’s Conviction

        Montalvo contends that the evidence is legally insufficient to support his convictions under

the law of parties because he did not act with the intent to promote or assist the making of terroristic

threats. We disagree.

        In evaluating legal sufficiency of the evidence, we review all evidence in the light most

favorable to the trial court’s judgment to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We defer to

the responsibility of the trier of fact “to fairly resolve conflicts in testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The “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.” Id.

        “A person commits [a terroristic threat] if he threatens to commit any offense involving

violence to any person or property with intent to . . . (2) place any person in fear of imminent

                                                   3
serious bodily injury . . . or (6) influence the conduct or activities of a branch or agency of the

federal government, the state, or a political subdivision of the state.” TEX. PENAL CODE ANN.

§ 22.07(a)(2), (6) (West Supp. 2018). In order for Montalvo to be responsible for the offense under

the law of parties, the evidence must establish that Montalvo intended to promote or assist the

commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid Clifton

in the commission of the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). This

requires a showing that Montalvo “harbored the specific intent to promote or assist the commission

of the offense.” 2 Gallardo v. State, 281 S.W.3d 462, 469 (Tex. App.—San Antonio 2007, no pet.)

(quoting Pesina v. State, 949 S.W.2d 374, 382 (Tex. App.—San Antonio 1997, no pet.)). Intent

may be inferred from the acts, words, and conduct of a defendant. Cooper v. State, 67 S.W.3d

221, 225 (Tex. Crim. App. 2002); McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989);

Fierro v. State, 706 S.W.2d 310, 313 (Tex. Crim. App. 1986). Intent is a question of fact to be

determined by the trier of fact from all the facts and circumstances in evidence. Hemphill v. State,

505 S.W.2d 560, 562 (Tex. Crim. App. 1974).

          Jeffery Butler, a criminal investigator working at the Telford Unit, obtained a copy of the

first letter and interviewed Clifton, who denied writing the letter. Butler had dealt with Clifton

before, and the letter did not appear to be in Clifton’s handwriting. Butler testified that, as he




2
 “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 or cause the result.” TEX. PENAL CODE ANN. § 6.03(a)
(West 2011); Meeks v. State, 135 S.W.3d 104, 110–11 (Tex. App.—Texarkana 2004, pet. ref’d) (witness not an
accomplice to capital murder because no evidence that witness had conscious desire to aid in murder or lesser-included
robbery of victim).
                                                            4
questioned Clifton about the letter, “the first thing” Clifton did was demand a transfer from the

Telford Unit because “somebody [was] obviously out to get [him.]”

       Butler testified that the threat contained in the letter, followed by Clifton’s immediate

request for a transfer, was consistent with a “catch out,” something Clifton had done before. Butler

described a catch out as a prisoner trying to manipulate the system to get a change in housing, cell

assignment, or facility through “false allegations of threats against them, writing letters, [or]

threatening people.” Catch outs were common, according to Butler, occurring “almost daily.”

       From that point forward, Butler inspected and monitored Clifton’s mail. The screening

discovered and intercepted the other two threatening handwritten letters before they could leave

the prison. Like the first letter, the two intercepted letters purported to be from Clifton. One of

the letters was addressed to the Honorable Charles Mitchell, Judge of the 273rd Judicial District

Court, and threatened to kill Judge Mitchell, Mitchell’s family, and the children of Stephen Shire,

District Attorney in Shelby County, while the other letter, although addressed to Texas State

Senator Robert Nichols, threatened Shire’s children as well as Texas State Senator John Whitmire.

Butler believed that all three letters were written with the intent of threatening people in order to

influence the TDCJ to transfer Clifton.

       Because all three threatening letters appeared to have been written by the same person, the

letters were submitted for a DNA analysis. The DNA profiles obtained from the two letters fit

only two individuals, Clifton and Montalvo. Butler spoke with both men and recorded two

interviews with Montalvo, which were admitted into evidence at trial.




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           During the interviews, Montalvo admitted that he transcribed the three letters in his

handwriting for Clifton in exchange for $10.00 of commissary funds, but claimed he never

intended to scare or threaten anyone. Montalvo claimed that Clifton wanted the letters sent so that

he could be transferred out of the Telford Unit. Clifton’s later statements to Butler, and his

testimony at trial, confirmed Montalvo’s statements. Butler testified that, although Clifton was

the principal actor, Montalvo intentionally assisted Clifton in making the threats.

           Butler and Shires testified for the State, the three letters and the two recorded interviews

were admitted into evidence, and Clifton and Montalvo testified for the defense. The court

weighed the evidence, explained the applicable caselaw, and found Montalvo guilty on all three

counts alleged in the indictment. After a brief trial on punishment, the trial court found both

enhancements paragraphs true and sentenced Montalvo to the minimum sentence, twenty-five

years’ incarceration on each count. 3          See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2018).

           Montalvo argues that the evidence is legally insufficient to show he acted with intent to

promote or assist in making terroristic threats because he “did not understand the content and

nature of Clifton’s three letters.” 4 Montalvo’s I.Q. was tested to be 77, and he testified that he

attended special education classes while in school, only completed the seventh grade before

dropping out, and never obtained a GED. Montalvo claimed that he could “understand little words



3
    The range of punishment was enhanced due to two prior felony convictions.
4
 Although Texas does not recognize “diminished capacity” as an affirmative defense, a defendant can attempt to use
diminished capacity to negate the mens rea element of a crime, which, under the law of parties in this case, requires
that Montalvo intended to promote or assist Clifton in making the terroristic threats. TEX. PENAL CODE ANN. §
7.02(a)(2); Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex.
Crim. App. 2005). That is not at issue here.
                                                          6
here and there” in the letters, but that he could not really read, and at the time he transcribed the

letters, he did not know Clifton’s intended use for them. Clifton testified that Montalvo may have

a learning disability, that he knew that Montalvo was “not the smartest” man, and that he took

advantage of that in having him transcribe the letters. However, in the recorded interviews and in

his testimony at trial, Montalvo admitted that he knew the letters contained threats against other

people, but claimed that he did not think the threats were credible, because Clifton would not act

on the threats since he was only sending the letters in order to get transferred.

       Deferring to the trial court’s role to weigh and resolve conflicts in the evidence, and

viewing the evidence in the light most favorable to the verdict, we find that the trial court could

have reasonably believed that Montalvo intentionally assisted Clifton in making the threats

because there is evidence from Butler and Montalvo, himself, that Montalvo knew the letters

contained threats, but that he transcribed the letters anyway. See Brooks, 323 S.W.3d at 912;

Hooper, 214 S.W.3d at 13. It is immaterial whether Montalvo believed Clifton intended, or had

the capability, to carry out the threats. See Dues v. State, 634 S.W.2d 304, 305–06 (Tex. Crim.

App. 1982). Accordingly, we overrule this point of error.

(2)    There Are Errors in Some Recitations in the Judgment

       Montalvo also asserts that the trial court’s judgment should be modified to correct factual

errors. We agree.

       This Court has the power to correct and modify the judgment of the trial court for accuracy

when the necessary data and information are part of the record. See Bigley v. State, 865 S.W.2d

26, 27 (Tex. Crim. App. 1993); Anthony v. State, 531 S.W.3d 739, 743 (Tex. App.—Texarkana

                                                  7
2016, no pet.). We may sua sponte modify an incorrect judgment, with or without a party’s

objection on the issue at trial. See Anthony, 531 S.W.2d at 743 (quoting Asberry v. State, 813

S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d)); Rhoten v. State, 299 S.W.3d 349, 356

(Tex. App.—Texarkana 2009, no pet.).

       Here, the judgment indicates that Montalvo pled guilty to the three counts in the indictment

and that he entered pleas of not true to the two enhancement allegations. The record reflects,

however, that Montalvo entered a plea of not guilty to the three counts of terroristic threat and that

he pled true to the State’s two enhancement allegations. Accordingly, we modify the judgment to

state that Montalvo pled not guilty to the three counts alleged in the indictment and that he entered

pleas of true to the two enhancement allegations.

       We affirm the judgment, as modified.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:        January 3, 2019
Date Decided:          January 30, 2019

Do Not Publish




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