Olivas v. State

• Decision Date: 04 October 2006
• Docket Number: No. PD-1936-04.,PD-1936-04.
• Citation: 203 S.W.3d 341
• Parties: RAYMOND OLIVAS, Appellant v. THE STATE OF TEXAS.
• Court: Texas Court of Criminal Appeals

203 S.W.3d 341

RAYMOND OLIVAS, Appellant v. THE STATE OF TEXAS.

No. PD-1936-04.

Court of Criminal Appeals of Texas.

Delivered October 4, 2006.

COCHRAN, J., delivered the opinion of the Court, in which MEYERS, WOMACK, JOHNSON, and HOLCOMB, JJ., joined. PRICE, J., joined Parts I and III, and concurred in the judgment. KELLER, P.J., filed a concurring opinion, in which KEASLER and HERVEY, JJ., joined.

OPINION

COCHRAN, Judge.

A jury convicted appellant of aggravated assault by threat, stalking, and four separate instances of evading arrest, all stemming from his futile, month-long attempt to resurrect a short-lived affair with a married woman. On appeal, he argued that the evidence was insufficient to prove assault by threat because the State failed to prove that the assault victim knew that appellant had shot at her truck at the time that he acted. The court of appeals, finding the evidence legally insufficient, reversed and rendered a judgment of acquittal.¹ The State argues first that the court of appeals erred in finding the evidence insufficient, and second that this Court should reconsider its decision in McGowan v. State, 664 S.W.2d 355 (Tex. Crim. App. 1984), which, according to the State, "requires a victim to perceive a threat at the time the offense occurred" to establish assault by threat.² We conclude that McGowan held only that assault by threat requires the defendant to communicate a threat of imminent bodily injury; stabbing someone without first threatening him is a different assaultive offense.³ We hold that the evidence in the present case, viewed in the light most favorable to the verdict, is legally sufficient to support the assault-by-threat conviction. We therefore reverse the judgment of the court of appeals and remand the case to that court for further proceedings.

I.

Appellant began stalking and harassing the complainant, Kim Tunnell, in November, 2001. Ms. Tunnell had been romantically involved with appellant, but, after deciding to attempt reconciliation with her husband, she ended the relationship. Appellant began calling Ms. Tunnell and leaving voice messages on her cell phone. While the messages were initially innocuous, they became increasingly violent and demanding.⁴

Ms. Tunnell began to fear for her safety, so, on November 27, 2001, she recorded the messages that appellant had left over a two-week period and took that recording to the police. She then went to her attorney to get a restraining order against appellant. When she arrived at her attorney's office, she saw appellant in the parking lot, walking toward her truck. As she tried to back out of the parking lot to avoid him, he began hitting the passenger side window with a pistol. Ms. Tunnell sped off. After she was sure appellant was not following her, she returned to her attorney's office, and her attorney called the police.

Just two weeks later, on December 12, 2001, Ms. Tunnell was driving to the laundromat when appellant drove up behind her. He then drove his car into the oncoming-traffic lane, and Ms. Tunnell noticed that the front passenger window was rolled half-way down. She recognized the car-it belonged to appellant's mother-but she could not immediately tell who was driving it.⁵ She heard a "pop," followed by another "pop," and thought that appellant had possibly thrown rocks at her truck. She pulled into the parking lot at the laundromat and immediately got out of her truck to see what the popping noises had been. Appellant turned into a different entrance and drove past Ms. Tunnell; as she had suspected, it was appellant driving his mother's car. After he left, she discovered a bullet hole in the rear driver's side extended-cab portion of her truck, and she immediately called the police. Ms. Tunnell testified that seeing the bullet hole made her feel "shocked," "upset," and "scared." She further testified that she "took [appellant's actions] as intent to harm." She "really didn't know if he intended to kill [her] or what the deal was." As the police conducted their investigation at the laundromat, appellant again called Ms. Tunnell on her cell phone. She gave the officers the number he was calling from. The police attempted to arrest appellant, but he led them on a chase and eventually escaped.

Appellant called Ms. Tunnell on several occasions following this incident. On two of those occasions, the police were able to find appellant, but both times he led the police on high-speed chases and was able to escape arrest.⁶ Finally, the police worked with Ms. Tunnell to set up a meeting between her and appellant so that they could arrest him. She agreed, and, on December 27, 2001, the police finally arrested appellant.

A jury convicted appellant and sentenced him to 35 years in prison. He appealed, arguing that the State failed to prove the element of "threaten with imminent bodily injury." He argued that, because Ms. Tunnell did not realize that he was shooting at her car while he was committing the act, she had not been "threatened" as required under Texas Penal Code Section 22.01(a)(2). The court of appeals found that Ms. Tunnell "did not perceive the threat at the time the offense occurred," and thus, under this Court's rule in McGowan, the State had not proven that Ms. Tunnell was threatened with imminent bodily injury.⁷ II. Historically, the term assault was used to describe two different acts-one subject to criminal liability and the other subject to civil liability. Early criminal assault was defined as an "attempt to commit a battery."⁸ Battery was the crime of physically hitting or injuring another.⁹ Thus, criminal assault was the (unsuccessful) attempt to physically hit or injure another. In civil tort law, assault was committed when an actor "with intent to cause a reasonable apprehension of immediate bodily harm, [did] some act which cause[d] such apprehension."¹⁰ Civil assault was a verbal or physical threat made with the intent to place another in fear of physical injury and the threat does, in fact, place that person in fear. However, many states statutorily expanded the narrow common-law definition of criminal assault to include the tort-based definition of assault as well.¹¹ Thus, "assault and battery" was both the successfully communicated threat to physically injure and the actual act of doing so-carrying through on that threat.¹² The tort-based theory is the foundation for most assault-by-threat statutes now in existence. The Model Penal Code includes such a provision: "A person is guilty of assault if he . . . attempts by physical menace to put another in fear of imminent serious bodily injury."¹³

Nearly every jurisdiction now statutorily criminalizes assault by threat in some manner, and most statutes specify whether the threat must be perceived or received by the intended victim. For example, Colorado enacted a statute criminalizing menacing: "A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury."¹⁴ This language indicates that, to commit assault, an actor need not succeed in placing a victim in fear or in causing a victim to be aware of the threat, his attempt to do so suffices.¹⁵ In contrast, Idaho defines assault by threat to explicitly require the victim's perception: "An assault is . . . [a]n intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent."¹⁶ Thus, some statutes require that the victim of an assault by threat (or menacing) perceive or receive the threat, while other statutes require only that the actor communicate the threat, regardless of whether the victim actually perceives or receives that threat.

Texas's assault-by-threat statute states, in pertinent part: "A person commits an offense if the person . . . intentionally or knowingly threatens another with imminent bodily injury[.]"¹⁷ Our statute does not explicitly indicate whether the intended victim must perceive or receive the threat. The question turns on the meaning of the term "threaten" as used in the Penal Code. Does it mean an act that must be perceived by the intended victim? Or must the actor only act with the intent that the victim perceive his threat?

When determining a statute's meaning, a court must first attempt to interpret the statute based on the plain meaning of the words used.¹⁸ The word "threaten" is not statutorily defined in the Penal Code, so we turn to the common, ordinary meaning of that word. Webster's Dictionary defines "threaten" in the following manners:

1. to declare an intention of hurting or punishing; to make threats against;

2. to be a menacing indication of (something dangerous, evil, etc.); as the clouds threaten rain or a storm;

3. to express intention to inflict (injury, retaliation, etc.);

4. to be a source of danger, harm, etc. to.¹⁹

Significantly, each of these definitions indicates an act being performed, as opposed to an act which is perceived by an outside party. Thus, these definitions indicate that a threat occurs, not when the victim perceives the threat, but as soon as the actor utters the threatening words or otherwise initiates the threatening conduct. Black's Law Dictionary defines "threat" as: "A communicated intent to inflict harm or loss on another or on another's property. . . ."²⁰ This could indicate either an act that is communicated by the actor to another, regardless of whether it is successfully perceived by the intended recipient, or one that is successfully communicated to the intended recipient. Thus, after analyzing the plain meaning of the statutory language, the Texas assault-by-threat statute remains ambiguous. We therefore must look outside this specific statute to discern the legislative meaning of the word "threaten."²¹

The Texas Penal...