                             NUMBER 13-19-00279-CR

                                COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


PAMELA ANNETTE NEWTON,                                                                Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                    Appellee.


                     On appeal from the County Court at Law No. 4
                               of Bexar County, Texas.


                             MEMORANDUM OPINION
                Before Justices Benavides, Perkes, and Tijerina
                   Memorandum Opinion by Justice Tijerina

       Appellant Pamela Annette Newton appeals her terroristic threat conviction, a class

B misdemeanor. See TEX. PENAL CODE ANN. § 22.07(a)(2), (c). 1 Newton received a


       1  Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was
transferred to this Court from the Fourth Court of Appeals in San Antonio. See TEX. GOV’T CODE ANN.
§ 73.001.
sentence of six months’ confinement probated for a term of fourteen months. By two

issues, Newton contends that the evidence is insufficient to support the judgment and the

charging instrument provided constitutionally defective notice. 2 We affirm.

                               I.      SUFFICIENCY OF THE EVIDENCE

       By her first issue, Newton contends that the evidence is insufficient to support the

conviction. Specifically, Newton complains that a video admitted into evidence is

inconsistent with the complainant’s testimony, namely that the car Newton drove was

green and that Newton turned her vehicle right onto Semlinger Road.

A.     Standard of Review and Applicable Law

       In determining the sufficiency of the evidence, we consider all the evidence in the

light most favorable to the verdict and determine whether a rational fact finder could have

found the essential elements of the crime beyond a reasonable doubt based on the

evidence and reasonable inferences from that evidence. Chambers v. State, 580 S.W.3d

149, 156 (Tex. Crim. App. 2019); Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App.

2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). The fact finder

is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given

their testimony. Brooks, 323 S.W.3d at 899. We resolve any evidentiary inconsistencies

in favor of the judgment. Id.

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a

charge is one that accurately sets out the law, is authorized by the indictment, does not


       2   We have reorganized and renumbered Newton’s issues for purposes of our analysis.


                                                       2
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.” Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.

       As charged in this case, a person commits the offense of terroristic threat if the

person threatens to commit any offense involving violence to any person with the intent

to place any person in fear of imminent serious bodily injury. See TEX. PENAL CODE ANN.

§ 22.07(a)(2). A threat is a declaration of intention or determination to inflict punishment,

loss, or pain on another, or to injure another, or to injure another by the commission of an

unlawful act. Williams v. State, 432 S.W.3d 450, 453 (Tex. App.—San Antonio 2014, pet.

ref’d). It is not required to prove that the actor possessed the capability or the intention to

carry out the threat. Id. At the moment a person threatens to commit a violent offense

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

terroristic threat is completed. Id. at 454.

B.     The Evidence

       The complainant, Devitra Williams, testified that after leaving church, she noticed

that a person driving a car she had seen parked across the street from the church was

following her vehicle. Williams called a friend, Taja Jackson, and told her she was

concerned that she was being followed. Williams decided to stop at a Whataburger.

Williams stated that as she stopped in the parking lot, a car driven by Newton, whom she

recognized as being her coworker’s wife, stopped by her driver’s side door. Both women

rolled down their windows. Williams stated that Newton said she had a gun, would “fuck

[her] up,” and “kept threatening to kill” her. Williams recalled Newton said, “[W]hen you

come for me and mine, I will fuck you up.” According to Williams, Newton “said that



                                                  3
[Williams] was coming for her husband,” and Williams responded, that she “didn’t want

him.” Williams testified that, while reaching for a scarf and lifting it, Newton said she had

a gun. Williams did not know what Newton had underneath the scarf.

        Williams described Newton’s car as being “like a greenish” Volkswagen. Williams

explained that it was “very dark” outside. Detective Cynthia Hovanec, an officer with the

San Antonio Police Department, testified that Newton’s license plate registration shows

that she had “a 2008 dark blue Volkswagen Passat . . . .” Detective Hovanec described

the vehicle as “appearing” to be green in a surveillance video of the Whataburger parking

lot. Detective Hovanec, explained without objection that “sometimes it doesn’t matter if

you have dark hair, you could have blond hair on the video, so I’m not sure, but that’s

what it looked like to me.” Detective Hovanec said that although Newton’s car appeared

to be green on the video, “it may not have been green.” 3

        On cross-examination, Detective Hovanec explained that “sometimes the color is

wrong” on video and that she merely notes in her report the color she sees on the video.

Detective Hovanec said, “I’m not sure that—what color that vehicle might actually be. Like

I said, in videos I’ve had blond-haired women turn out to be brunette. I mean, it is just

odd.” On redirect examination of Detective Hovanec, the prosecutor asked, “So is that to

say that one shade could appear a different shade and a car that is maybe dark green in

person could be some other dark shade on video?” Detective Hovanec replied, “Yes, uh-

huh.”

        Jackson testified that she was on the phone with Williams, and she heard the

encounter between Williams and Newton. Jackson stated that Williams told her that


        3   The video is of poor quality, and the car appears to be a dark color.


                                                           4
Newton had been driving the car, and Jackson also recognized Newton’s voice. Jackson

recalled hearing Newton state that she had a gun and would kill Williams. Jackson

described Newton’s tone as aggressive.

C.     Discussion

       Although the evidence shows that Newton’s car is described as dark blue on her

vehicle registration, whether the car Newton drove was green or blue has no bearing on

whether she committed the charged offense. Thus, the color of Newton’s car is not an

essential portion of Williams’s testimony. Moreover, evidence was presented that it was

“very dark” when Williams saw the color of Newton’s car and evidence that the color of

the car on the video is not necessarily a true depiction of its actual color. Therefore, the

video does not provide indisputable visual evidence contradicting essential portions of

Williams’s testimony. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App.

2000) (explaining that under the narrowest of circumstances found in that case “the nature

of the evidence presented in [a] videotape [did] not pivot ‘on an evaluation of credibility

and demeanor’” and that “the videotape present[ed] indisputable visual evidence

contradicting essential portions of the officer’s testimony that the defendant had given him

consent to search his body”).

       Next, Newton complains that the video shows that she did not turn right onto

Semlinger Road as Williams claimed. However, whether Newton turned right or left has

no bearing on whether she committed the charged offense. Therefore, even if the jury

disbelieved Williams that Newton turned left, it could have still believed that Newton made

the threats as described by Williams and could have reasonably convicted her. After

considering all the evidence in the light most favorable to the verdict, we conclude that a



                                                5
rational fact finder could have found the essential elements of the crime beyond a

reasonable doubt based on the evidence and reasonable inferences from that evidence.4

See Chambers, 580 S.W.3d at 156; Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at

898–99. We overrule Newton’s first issue.

                                     II.      CHARGING INSTRUMENT

        By her second issue, Newton contends that there is a material deficiency in the

charging instrument in that “the manner and means in the information would allow the

State to prove any manner and means, as it did at trial, thereby inviting the State to retry

Ms. Newton under a different manner and means.” 5

        Newton did not file a motion to quash the information or object to it on any grounds.

        If a defendant does not object to a defect, error, or irregularity of form or
        substance in an indictment before the date on which the trial on the merits
        commences, he waives and forfeits the right to object to the defect, error,
        or irregularity and he may not raise the objection on appeal or in any other
        post-conviction proceeding.

Jenkins v. State, __ S.W.3d. __, __, PD-0086-18, 2018 WL 6332219, at *6 (Tex. Crim.

App. Dec. 5, 2018) (“‘Texas law now requires the defendant to object to any error in the

indictment before the day of trial and certainly before the jury is empaneled.’”). Therefore,

she has not preserved this issue for our review. See id.

        Nonetheless, an information that tracks the statutory language is usually enough,

and the information need not plead the evidence relied upon unless a fact is essential for


        4   We note that Newton has not challenged a specific element of the charged offense.
        5  Newton does not specify what exactly the charging instrument should have stated. She does not
explain what the “manner and means” she complains were omitted from the charging instrument were, and
in a reply brief, she claims that the State in its brief has misconstrued her issue because she “never argued
that the information was constitutionally insufficient because it did not include the ‘threatening words’ in the
information.” She then argues again that she is complaining that the information failed to notify her of the
manner and means. Again, Newton fails to state what “manner and means” were missing.


                                                           6
notice to the accused. George v. State, 841 S.W.2d 544, 548 (Tex. App.—Houston [1st

Dist.] 1992), aff’d, 890 S.W.2d 73 (Tex. Crim. App. 1994) (citing Beck v. State, 682 S.W.2d

550, 554 (Tex. Crim. App. 1985)).

       Here, the information tracks the statute as follows:

       on or about the 10th Day of January, 2018, PAMELA ANNETTE NEWTON
       hereinafter referred to as defendant, did threaten to commit an offense
       involving violence to Devitra Williams, to wit: defendant threatened serious
       bodily injury or death to Devitra Williams, with intent to place Devitra
       Williams in fear of imminent serious bodily injury. . . .

The information contains all the elements of the offense that the State had to prove under

§ 22.07(a)(2). See George, 841 S.W.2d at 548 (finding similar information sufficient

because it tracked the statutory language); see also TEX. PENAL CODE ANN. § 22.07(a)(2).

Any additional information was not required. See George, 841 S.W.2d at 548. We

overrule Newton’s second issue.

                                    III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                              JAIME TIJERINA,
                                                              Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
26th day of March, 2020.




                                                7
