Gillette v. State

• Citation: 444 S.W.3d 713
• Decision Date: 26 August 2014
• Docket Number: 13–12–00455–CR.,Nos. 13–12–00454–CR,s. 13–12–00454–CR
• Parties: Christopher Allen GILLETTE, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

444 S.W.3d 713

Christopher Allen GILLETTE, Appellant

v.The STATE of Texas, Appellee.

Nos. 13–12–00454–CR

13–12–00455–CR.

Court of Appeals of Texas, Corpus Christi–Edinburgh.

Aug. 26, 2014.

Dawn A. Moore, Boswell & Moore, P.C., Denton, for Appellant.

Matthew J. Whitten, Asst. Dist. Atty., Paul D. Johnson, Denton, County Dist. Atty., Denton, Stacey Goldstein, Asst. State Prosecuting Atty., Austin, for Appellee.

Before Justices GARZA, BENAVIDES, and PERKES.

OPINION ON REHEARING ¹

Opinion on Rehearing by Justice PERKES.

On May 29, 2014, we issued an opinion and judgments for these cause numbers. The State timely filed a motion for rehearing. After reviewing the motion and appellant's response thereto, we grant the State's motion for rehearing, withdraw our opinion and judgments dated May 29, 2014, and issue this opinion and revised judgments.

A jury convicted appellant Christopher Allen Gillette of two third-degree felony offenses of terroristic threat. See Tex. Penal Code Ann. § 22.07(a)(5), (6) (West, Westlaw through 2013 3d C.S.). One conviction resulted from statements appellant made in a letter to a congressman,² and the other conviction came from statements appellant made in a college class.³ The jury assessed punishment for the count involving the letter at four years' confinement in the Texas Department of Criminal Justice, Institutional Division. For the count resulting from appellant's classroom statements, the jury assessed punishment at ten years' confinement, but the trial court suspended that sentence, placed appellant on community supervision for ten years, and ordered the two sentences to run concurrently. By eight issues, which we reorganize as three and re-order, appellant argues: (1) the evidence is insufficient to support the two convictions; (2) jury charge error either violated his right to a unanimous verdict or, alternatively, misinformed the jury of the requisite culpable mental state; and (3) the trial court should not have admitted extraneous-offenseevidence. We affirm the trial court's judgment in appellate cause number 13–12–00455–CR, which convicted appellant for the statements he wrote in a letter to a congressman, but we reverse and remand the trial court's judgment in appellate cause number 13–12–00454–CR because we hold appellant suffered egregious harm by the jury charge's allowance for a non-unanimous verdict.

I. BACKGROUND

A. Appellant's Letter to United States Congressman Michael Burgess

Appellant sent a letter to United States Congressman Michael Burgess of the 26th Congressional District of Texas. In it, appellant vented many grievances against the United States government, including its alleged failure to provide him, a United States Army veteran, with proper medical care for injuries he received during his military service. At the conclusion of the letter, appellant listed demands and resultant penalties should his demands not be met. The relevant excerpt from the letter is as follows:⁴

I demand the following:

1. An official apology, personally written or typed from a representative of the United States government in the U.S. House or Senate, acknowledging that the United States government has negligently failed to render proper medical care to my person. This official apology does not have to be laborious in length. Simple sincerity will suffice.

2. The utilization of the full economic and political might of the United States government congruent to its responsibility to provide proper medical care to it's [sic] veterans, specifically; the funding of a private option at my discretion until I am properly healed; subject to oversight of the office of my Congressional representative or another authority delegated by said office.

3. Compensation in some form or fashion for the severe pain I have encountered over the past decade of my life, subject to the wisdom and discretion of Congressman Burgess, or an authority delegated at his discretion.

If these demands are not met in a timely, efficient, and responsible manner then the following penalties will be applied.

1. I will inform the American people of the criminal negligence of the United States government. The great masses of the people universally support me in this aspiration. I will shout so loud, and gather such a great assembly of voices to my person, that the outcry will figuratively shatter the eardrums of the entire United States Congress.

2. If I am able to find healing in the private sector, without just compensation or service from my government, I will begin preparations to begin offensive combat preparations against the federal government. These preparations will include great care not to target civilian non-combatant personnel, specifically women and children, and will not include the use of explosives or political assassination as a means of political change.

3. I will assume the United States government has refused to render proper medical aid to my person, an act tantamount to treason, and I will gather armed men of good character to my cause in order to place the entire United States Congress under arrest.

I am trying to warn you in the strongest terms humanly possible that on the median average I consider the central government largely illegitimate. I swore an oath to protect the U.S. Constitution, therefore protecting the American people, and I feel that the actions of the federal government are leading both myself and them down a path of involuntary servitude. These outrages will not be tolerated!

The police department at Texas Women's University (“TWU”), where appellant was a student, was made aware of the letter.

B. Appellant's Classroom Comments

About one week after appellant sent the letter to Congressman Burgess, appellant interrupted his upper-division American history class—a small,⁵ discussion-oriented class—by raising his hand and voicing a complaint against the United States federal government. Appellant began,⁶ “I am so angry that I cannot humanly explain it in words.” The professor, Paul Travis, asked whether appellant's comment related to class, and appellant responded, “I would say I'm an American, uh, veteran, and I deserve medical benefits, and yes. I need to—I am in a lot of pain. Okay. I don't know where I need to go or who I need to talk to, but I'm about to tear Washington, D.C. apart brick-by-brick.” Appellant continued,

I have the specified, specialized military training; I know how to do it. I am angry. I would never do anything to hurt any of the girls at this college, I want y'all to understand that. But I am mad. I am fighting–hopping–out–of–the–back–of–a–truck–with–an–AK–47 mad. I have a medical injury, and I cannot get help from my government. I'm in a lot of pain. I'm a 3.5 GPA; I'm a dean's list student. I'm failing school. Now I need you to talk to the president, the vice president or somebody. I don't know if I need to drive to a hospital or what, but I'm in a lot of pain.

Professor Travis asked appellant whether appellant felt like being in class, and appellant answered, “No. I need medical attention.” Appellant gathered his belongings and said, “I need to go. There is a congressional inquiry⁷ into the matter right now. I just need to go. I need to grab my stuff and go.” Before leaving, appellant again asked Professor Travis to contact the vice president. It is unclear whether appellant was alluding to the president and vice president of the United States or of TWU, and there was no testimony clarifying the references.

Contrary to the alarming content of the statement, appellant's tone was calm, although anger can be detected. Appellant remained seated during the diatribe, standing only at the conclusion when he gathered his belongings to leave. Classmate Shannon Cloutier and Professor Travis testified they were concerned for appellant but unafraid. Classmate Colleen Hester, on the other hand, testified she was afraid, the teaching assistant was afraid, and appellant's body language manifested anger. Classmate Amanda Saye said appellant's monologue sounded about how one would expect a school shooting would begin and that she felt threatened. Saye and another classmate, Troy French, both testified that appellant's words made the students uneasy.

Class continued after appellant left. Hester testified that the teaching assistant was trying to calm the students, some of whom Hester described as “a wreck.” French, a disabled veteran who served in the Army and suffered from Posttraumatic Stress Disorder (“PTSD”), was concerned for appellant. French knew appellant had past military service, and appellant's words struck French as PTSD “warning signs.” French testified that appellant's words “ate at me. I felt like this was somebody who was needing help and was either going to hurt themselves or hurt someone else.” French left class and called the campus police. Officer Jennifer Niederhaus of the TWU Department of Public Safety (TWUDPS) met French outside the classroom and asked Professor Travis to exit the classroom to discuss the incident.

When Officer Niederhaus learned appellant had made the statement, she recognized his name and contacted Sergeant Randy Leavell. Sergeant Leavell and Lieutenant Kenneth Adams testified that the TWUDPS had been “briefed” on appellant prior to that day. Lieutenant Adams explained that the briefing resulted from a letter appellant wrote to the chief of police in response to a parking ticket, “and also a letter that he had written to Congressman Burgess.”

TWUDPS placed the campus on lockdown. Upon learning that appellant was at a VA hospital in Dallas, the TWUDPS secured a warrant to arrest appellant for committing a terroristic threat. Officers Leavell and Adams arrested him at the VA hospital.

II. SUFFICIENCY OF THE EVIDENCE

By his fifth and sixth issues, as enumerated in his brief, appellant argues the evidence is insufficient to support either of his two convictions. Regarding his letter to Congressman Burgess, appellant contends his statements were not threats, were...