Burrell v. State

• Decision Date: 06 October 1976
• Docket Number: No. 52069,52069
• Citation: 541 S.W.2d 615
• Parties: Ellis Douglas BURRELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 615

541 S.W.2d 615

Ellis Douglas BURRELL, Appellant, v. The STATE of Texas, Appellee.

No. 52069.

Court of Criminal Appeals of Texas.

Oct. 6, 1976.

Thomas P. Roebuck, Beaumont, for appellant.

Thomas L. Hanna, Dist. Atty., Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This is an appeal from an order revoking probation.

By per curiam opinion dated May 26, 1976, this appeal was ordered dismissed by this Court due to lack of jurisdiction of the appeal in the absence of a judgment of the original conviction in the appellate record. Thereafter a supplemental transcript was filed containing a judgment duly entered by the trial court on December 18, 1974. By order of the Court of Criminal Appeals dated June 29, 1976, the appeal was for good and sufficient cause reinstated on the docket, and it is now before us for our consideration.

The record reflects that on December 18, 1974, appellant plead guilty, waived a jury, and was convicted of burglary. Punishment was assessed at eight years, probated. Condition (a) of the order of probation provided that appellant should commit no offense against the laws of this state or any other state or of the United States.

On May 30, 1975, the State filed a motion to revoke probation, alleging that on May 7, 1975, in Jefferson County, appellant committed the offense of Terroristic Threat (see V.T.C.A. Penal Code, Sec. 22.07) by threatening to kill Willie Chester Wise with the intent to place the said Wise in fear of imminent serious bodily injury. A hearing was conducted on said motion on August 4, 1975, at the close of which the court found that appellant had violated condition (a) of the order of probation: 'By committing the offense of Terroristic Threat in that on or about May 7, 1975, in Jefferson County, Texas, Ellis Douglas Burrell did then and there threaten to commit an offense involving violence to Willie Chester Wise, namely, to kill the said Willie Chester Wise, with intent to place Willie Chester Wise in fear of imminent serious bodily injury.'

The court entered its order revoking appellant's probation, and duly sentenced him to a term of not less than two nor more than eight years in the Texas Department of Corrections. Appellant timely gave notice of appeal.

In two grounds of error, appellant complains of insufficiency of the evidence to justify the court's finding that appellant directed a serious terroristic threat toward the complainant which placed complainant in fear of imminent serious bodily injury.

V.T.C.A. Penal Code, Sec. 22.07(a)(2) and (b), Terroristic Threat, provides:

'(a) A person commits an offense 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 serious bodily injury; or

'(b) An offense under this section is a Class B misdemeanor unless it is committed under Subsection (a)(3) of this section, in which event it is a Class A misdemeanor.'

The complainant Wise testified that on May 7, 1975, he was the owner and operator of Cookie's Soul Kitchen in Port Arthur. About midnight on May 7, he became involved in an argument with Norman Wade outside of the building concerning the latter having urinated on the side of the building. Appellant and his brother Clyde Burrell appeared and sided with Wade. The argument 'really then got heated. I was called some quite obvious names, and a threat...