Benito Gonzales v. State

NUMBER 13-99-316-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ BENITO GONZALES, Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________________ On appeal from the County Court of Willacy County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa The trial court found appellant, Benito Gonzales, guilty of the misdemeanor offense of terroristic threat(1) and assessed his punishment at thirty days in the county jail. The sentence was suspended, and appellant was placed on community supervision for one year. By two points of error, appellant contends the evidence was legally and factually insufficient. We affirm. On August 21, 1997, appellant went to Abigail Alvarado's apartment in Willacy County. Alvarado was in the doorway of her apartment. Appellant parked outside the apartment, but did not leave his vehicle. Appellant was approximately eight feet from Alvarado. When Alvarado asked appellant what he wanted, he began using profane language. Alvarado testified that appellant then started threatening her, saying he was "going to kill everybody," that he was "going to return back and kill everybody," and that she needed to "be careful." Appellant then left and Alvarado called the police. A. Legal Sufficiency By his first point of error, appellant contends there was no evidence that he intended to place Abigail Alvarado and her family in fear of imminent serious bodily injury. Specifically, appellant argues there was no evidence of imminent serious bodily injury. In reviewing a legal sufficiency of the evidence claim, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995); Turro v. State, 868 S.W.2d 43, 46-47 (Tex. Crim. App. 1993); Arceneaux v. State, 803 S.W.2d 267, 269 (Tex. Crim. App. 1990); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.--Corpus Christi 1997, pet. ref'd). For this particular case, the elements necessary for terroristic threat are: (1) a person, (2) threatens to commit any offense involving violence to any person or property, (3) with intent to place any person in fear of imminent serious bodily injury.(2) See Tex. Pen. Code Ann. § 22.07 (a)(2) (Vernon 1994). In order to commit the offense of terroristic threat, the accused must intend to place the victim in fear of imminent serious bodily injury. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982). A person acts intentionally 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. Pen. Code Ann. § 6.03(a) (Vernon 1994). Appellant argues that Alvarado never testified she was placed in fear of imminent serious bodily injury. He states that "Alvarado's testimony reflects that appellant left after making the statement, thus apparently contradicting any intent to place anyone in fear of imminent serious bodily injury." The accused's intent, however, cannot be determined merely from what the victim thought at the time of the offense. Dues, 634 S.W.2d at 305. Section 22.07 does not require the victim or anyone else actually to be placed in fear of imminent serious bodily injury. See id. All that is necessary to complete the offense is that the accused, by his threat, sought as a desired reaction to place a person in fear of imminent serious bodily injury. Id. at 306. Intent can be inferred from the acts, words, and conduct of the accused. Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980). Appellant, although he remained in his car, was within a few feet of Alvarado, yelling profanities and telling her that he was "going to kill everybody." He then told Alvarado "to be careful," and that he was "going to return back and kill everybody." Appellant contends that because Alvarado testified she did not know at what point in the future appellant was to return, there is no showing of an intent to place her in fear of imminent serious bodily injury. We disagree. It is immaterial whether appellant had the ability or the intention to carry out his threat. Dues, 634 S.W.2d at 306. All that is required is that he intended to arouse fear of imminent serious bodily injury. Jarrell v. State, 537 S.W.2d 255, 255 (Tex. Crim. App. 1976). Imminent has been defined as meaning "near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous." Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). Appellant's warning to Alvarado that she should "be careful," coupled with his threat "to return back and kill everybody," is sufficient to establish that appellant intended to place Alvarado in fear of imminent serious bodily injury. Simply because Alvarado did not know when appellant was to return does not dismiss appellant's intention to arouse Alvarado's fear of imminent serious bodily injury. Alvarado even testified that she went for help because she felt appellant was coming back later. The trial court could rationally infer from appellant's words and the manner in which they were spoken to Alvarado that the threatened harm was impending and that appellant intended Alvarado to fear imminent serious bodily injury. Appellant further contends the State did not prove he threatened to kill Alvarado and her family, as stated in the information. He asserts the State failed to present any evidence that Alvarado's family heard the alleged threat or that her family was placed in fear of imminent serious bodily injury. Alvarado testified that when appellant arrived, she was at home with her children. Alvarado also said appellant told her he was going to "kill everybody." The presence of Alvarado and her family at their home at the time appellant told her that he was going to "kill everybody" is sufficient to establish that appellant's threat intended to place Alvarado and her family in fear of imminent serious bodily injury. Section 22.07 does not require that Alvarado's family was actually placed in fear of imminent serious bodily injury. See Dues, 634 S.W.2d at 305. Thus, by appellant's repeated threat to "kill everybody," the trier of fact could rationally infer that appellant intended to place Alvarado and her family in fear of imminent serious bodily injury. Appellant's first point of error is overruled. B. Factual Sufficiency By his second point of error, appellant contends the evidence was factually insufficient to prove that he intended to place Alvarado and her family in fear of imminent serious bodily injury. When we review a factual sufficiency of the evidence point of error, we review all of the evidence and set aside the verdict only if it is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Clewis v. State, 922 S.W.2d 126, 133-34 (Tex. Crim. App. 1996); Rosillo, 953 S.W.2d at 813. Under a factual sufficiency review, we are not bound to view the evidence in the light most favorable to the prosecution. Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin, pet. ref'd, untimely filed). Rather, we are free to consider the testimony of all witnesses. Id. In performing our review, we are to give "appropriate deference" to the fact finder. Clewis, 922 S.W.2d at 136. Appellant went to Alvarado's home, yelled profanities at her, and told her that he was going to kill everybody. Even though appellant drove away in his car, Alvarado was so frightened by appellant's threats that she called the police. Appellant did present evidence that Alvarado's husband had purchased a vehicle from him which Alvarado's husband allegedly had not paid for in full. It appears that appellant is using this allegation to establish the reason for his presence at Alvarado's home. Although evidence of Alvarado's husband's debt may be deemed relevant, it does not negate the fact that Alvarado feared that appellant was going to kill her and her family, and appellant intended to place Alvarado in fear of imminent serious bodily injury when he threatened to kill everybody. After considering all of the evidence, we conclude that the verdict is not so against the overwhelming weight of the evidence that it is manifestly unjust or wrong. Appellant's second point of error is overruled. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the the 17th day of August, 2000. 1. Tex. Pen. Code Ann. § 22.07 (Vernon 1994). 2. Section 22.07 provides: § 22.07. Terroristic Threat (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; or (3) prevent or interrupt the occupation or use of a building; room; place of assembly; place to which the public has access; place of employment or occupation; aircraft, automobile, or other form of conveyance; or other public place; or (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service. (b) An offense under Subdivision (1) or (2) of Subsection (a) is a Class B misdemeanor. An offense under Subdivision (3) of Subsection (a) is a Class A misdemeanor. An offense under Subdivision (4) of Subsection (a) is a felony of the third degree. Tex. Pen. Code Ann. § 22.07 (Vernon 1994).