Terry Atkins v. State

ACCEPTED

03-13-00509-CR

3650376

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/5/2015 2:02:40 PM

JEFFREY D. KYLE

CLERK

NO. 03-13-00509-CR

IN THE COURT OF APPEALS FILED IN

3rd COURT OF APPEALS

THIRD DISTRICT AUSTIN, TEXAS

AUSTIN, TEXAS 1/5/2015 2:02:40 PM

JEFFREY D. KYLE

TERRY TYRONE ATKINS, Clerk

APPELLANT

VS.

THE STATE OF TEXAS,

APPELLEE

APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT

TRAVIS COUNTY, TEXAS

CAUSE NUMBER D-1-DC-11-302358

STATE’S BRIEF

Rosemary Lehmberg

District Attorney

Travis County, Texas

Kathryn A. Scales

Assistant District Attorney

State Bar No. 00789128

P.O. Box 1748

Austin, Texas 78767

(512) 854-9400

Fax No. (512) 854-4206

Kathryn.Scales@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

ORAL ARGUMENT NOT REQUESTED

TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ..............................................vi

STATEMENT OF THE CASE.................................................................................vi

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENTS ......................................................................3

THE STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR..............4

The evidence was sufficient to show that the Appellant violated the

terms of his deferred-adjudication community supervision. Because

retaliation is not a result-oriented offense, it is irrelevant whether the

Appellant intended for his statements to be interpreted as threats or

whether the statements were designed to inhibit the target’s public

service as a judge. Because the evidence was sufficient to support the

trial court’s findings, the trial court did not abuse its discretion.....................4

THE STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR.......19

Appellant’s statements were true threats, which are not protected

speech. Under the applicable objective standard, the threats would be

interpreted by a reasonable person as serious threats to inflict harm............19

PRAYER ..................................................................................................................25

CERTIFICATE OF COMPLIANCE.......................................................................26

CERTIFICATE OF SERVICE ................................................................................26

ii

TABLE OF AUTHORITIES

Cases

Blanco v. State, 761 S.W.2d 38, 40 (Tex. App. —Houston [14th Dist.] 1988, no pet.) ...21

Cada v. State, 334 S.W.3d 766, 771, (Tex. Crim. App. 2011) ...........................................6

Cantu v. State, 339 S.W.3d 688, 691-92 (Tex. App.—Fort Worth 2011) ....................5, 18

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).......................................5

Coward v. State, 931 S.W.2d 386, 389 (Tex. App. Houston—[14th. Dist.] 1996, no

pet.)...................................................................................................................................6

Doyle v. State, 661 S.W.2d 726, 728 (Tex. Crim. App. 1983) (per curiam).................7, 14

Garcia v. State, 212 S.W.3d 877, 888-889 (Tex. App.—Austin 2006, no pet.) ...............22

Herrera v. State, 915 S.W.2d 94, 97 (Tex. App. —San Antonio 1996, no writ)..............14

In re A.C., 48 S.W.3d 899, 903 (Tex. App.—Fort Worth 2001), pet. denied...................13

In re B.P.H., 83 S.W.3d 400, 407 (Tex. App. Fort Worth—2002, no pet.)........................6

Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref'd.).............18

Lebleu v. State, 192 S.W.3d 205, 211 (Tex. App.—Houston [14th Dist.] 2006, pet.

ref’d)...........................................................................................................................7, 17

Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. 1978) ..........................................5

Lindsey v. State, No. 13-09-00181, 2011 Lexis 5388 (Tex. App.— Corpus Christi

July 14, 2011) (not designated for publication) ................................................ 15, 16, 17

Manemann v. State, 878 S.W.2d 334, 337 (Tex. App.—Austin 1994, no pet.)... 20, 21, 22

iii

Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).....................18

Phillips v. State, 401 S.W.3d 282, 284 (Tex. App.—San Antonio 2013).........................13

R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).........................................................21

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)..........................................5

Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980) ..................18

Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 580 (5th Cir. 2005) ...........................22

Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988) ........................................................22

United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990).........................20

Virginia v. Black, 538 U.S. 343, 360 (2003) .....................................................................21

Watts v. United States, 394 U.S. 705 (1969) (per curiam) ......................................... 22, 23

Webb v. State, 991 S.W.2d 408, 415 (Tex. App. —Houston [14th Dist.] 1999, pet.

ref’d)...............................................................................................................................22

Wilkins v. State, 279 S.W.3d 701, 704 (Tex. App.—Amarillo 2007, no pet. h.)....... 13, 14

Statutes

TEX. CODE CRIM. PROC. art. 42.12 § 5(b) ............................................................................5

TEX. GOV’T CODE § 312.055..............................................................................................16

TEX. PENAL CODE § 25.07(g) ............................................................................................ vii

TEX. PENAL CODE § 36.06 ........................................................................................... 14, 16

iv

NO. 03-13-00509-CR

IN THE COURT OF APPEALS

THIRD DISTRICT

AUSTIN, TEXAS

TERRY TYRONE ATKINS,

APPELLANT

VS.

THE STATE OF TEXAS,

APPELLEE

APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT

TRAVIS COUNTY, TEXAS

CAUSE NUMBER D-1-DC-11-302358

STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

The State of Texas, by and through the District Attorney for Travis County,

respectfully submits this brief in response to that of the Appellant.

v

STATEMENT REGARDING ORAL ARGUMENT

The State believes that oral argument is unnecessary because the briefs filed

by the parties adequately present the facts and legal arguments. However, if the

Court grants Appellant’s request for oral argument, the State respectfully requests

that the Court also permit the State to provide oral argument.

STATEMENT OF THE CASE

On September 9, 2011, Travis County Court at Law 4 issued a protective

order prohibiting Appellant from going within two hundred yards of the home of

specific woman (hereinafter referred to as “the victim”).1 CR 5. Less than two

months later, surveillance camera footage recorded Appellant violating that

provision by going to the victim’s house at 5:30 in the morning. CR 5. The court

issued a warrant for his arrest and Appellant was subsequently indicted for

intentionally and knowingly violating the protective order. CR 7; CR 10. The

indictment also alleged that Appellant had two prior convictions, in cause number

C-1-CR-91-351956 on September 10, 1991, and in cause number C-1-CR-96-

454537 on March 28, 1996, for violation of a protective order. CR 10. Those prior

convictions enhanced the charged offense to a third-degree felony. See CR 10

(charging such); TEX. PENAL CODE § 25.07(g)(1) (requiring such an enhancement).

1

A citation in the form of “CR y” refers to page y of the Clerk’s Record, while a citation in the

form of “x RR y” refers to page y of volume x of the Reporter’s Record.

vi

On May 25, 2012, Appellant pleaded guilty to the offense as charged and

Julie Kocurek, presiding judge of the 390th District Court in Travis County,

deferred adjudication of guilt and placed Appellant on five years of community

supervision. CR 21-24. The community supervision order included numerous

conditions. CR 18-20.

On July 30, 2012, the State filed a motion to proceed with adjudication of

guilt alleging that Appellant had violated the terms of his deferred-adjudication

community supervision by contacting the victim. CR 28. That same day, an arrest

warrant was issued for the Appellant. CR 26. At the revocation hearing held on

September 4, 2012, the court entered an order continuing community supervision,

and added a condition requiring Appellant to complete ninety days of confinement

in county jail as a condition of probation. CR 44. On November 9, 2012, the State

filed another motion to proceed with adjudication of guilt, but then withdrew that

motion on November 13, 2012 CR 45; CR 46.

On March 8, 2013, Judge Kocurek transferred Appellant’s case to the 331st

District Court. CR 51. On March 19, 2013, the State again moved to proceed with

an adjudication of guilt for numerous violations of the terms and conditions of his

deferred adjudication. CR 52. On June 14, 2013, the State amended its motion to

proceed with an adjudication of guilt. CR 68. The amended motion alleged that

Appellant:

vii

1. Failed to allow the supervision officer to visit at home or

elsewhere on January 9, 2013;

2. Failed to pay court costs and is delinquent $56.31;

3. Failed to pay a supervision fee and is delinquent $229.93;

4. Failed to pay restitution and is delinquent $225.23;

5. Failed to pay a Family Violence Center fee and is delinquent

$17.53;

6. Failed to report to, cooperate with, and participate in a Family

Violence Program through CES; and

7. Failed to participate in the Global Positioning System (GPS)

program.

CR 68.

The State further alleged that Appellant:

Committed a subsequent criminal offense in that on or about the

22nd day of February 2013, in the County of Travis, State of

Texas, Terry Atkins did then and there intentionally and

knowingly threaten another, Julie Kocurek, by an unlawful act, to

wit: aggravated assault or capital murder by threatening to shoot

Julie Kocurek in retaliation for or on account of the service or

status of Julie Kocurek as a Public Servant, to wit: Judge of the

390th District Court.

Id.

On July 19, 2013, after a hearing to consider the State’s motion to adjudicate

the Appellant’s guilt, the court found all of the alleged violations to be true and

granted the State’s motion. 3 RR 8; CR 75-76. Accordingly, the court found the

Appellant guilty of violating a protective order in violation of TEX. PENAL CODE §

viii

25.07(g) and sentenced Appellant to four years of confinement in the Texas

Department of Criminal Justice Correctional Institutions Division. CR 75-76.

On July 30, 2013, Appellant filed his notice of appeal. CR 78. On September

20, 2013, the trial court certified Appellant’s right to appeal his conviction. CR 91.

ix

STATEMENT OF FACTS

The State called four witnesses at the July 19, 2013 hearing on the State’s

amended motion to revoke community supervision and proceed with an

adjudication of guilt. 3 RR 4. A senior probation officer testified that Appellant

violated numerous terms of his deferred-adjudication community supervision. 3

RR 11-17. The State then called another probation officer, who also testified that

Appellant violated the terms of his community supervision. 3 RR 23-31. These

violations included: failing to be present for a home visit. 3 RR 24-25; failing to

participate in a family violence class through the Travis County Counseling and

Education Services (CES). 3 RR 26; and failing to charge his GPS device and pay

associated fees. 3 RR 29-31.

The State also called the owner of a company that contracts with Travis

County for GPS monitoring of people on community supervision. 3 RR 38. That

witness testified that she heard Appellant threaten to kill the judge overseeing his

case due to the judge’s actions in his case. 3 RR 42-43. Another employee at that

company testified that she heard Appellant say, “I will pop that judge. Pow.” 3 RR

65.

The court found all of the alleged violations to be true and granted the

State’s motion. CR 75-76. Accordingly, the court proceeded to find Appellant

guilty of violating the protective order, which was enhanced to a third-degree

1

felony. 3 RR 139. The Court then assessed punishment at four years of

confinement in the Texas Department of Criminal Justice Correctional Institutions

Division. CR 75.

2

SUMMARY OF THE ARGUMENTS

Point One: In his first point of error, Appellant argues that the trial court abused its

discretion because the evidence was insufficient to support the trial court’s finding

that he violated his community supervision conditions by, inter alia, committing

the offense of retaliation against Judge Kocurek. The evidence was, however,

sufficient to support the court’s findings. The Appellant also argues that the court

abused its discretion because there is insufficient evidence that the Appellant

actually intended to harm Judge Kocurek or inhibit her public service. In fact, the

State was not required to prove those two issues because retaliation is not a result-

oriented offense. Because the evidence was sufficient to support the trial court’s

finding that Appellant violated the terms of his community supervision, the court

did not abuse its discretion, and Appellant’s first point of error should be

overruled.

Point Two: The Appellant’s statements were true threats, which are not protected

speech. The objective standard applies to evaluating whether statements are threats

that may be restricted. Under this standard, the statements were threats because a

reasonable person would understand Appellant’s statements as threatening bodily

harm. Appellant’s second point of error should, therefore, be overruled.

3

THE STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR

The evidence was sufficient to show that the Appellant violated

the terms of his deferred-adjudication community supervision.

Because retaliation is not a result-oriented offense, it is irrelevant

whether the Appellant intended for his statements to be

interpreted as threats or whether the statements were designed to

inhibit the target’s public service as a judge. Because the evidence

was sufficient to support the trial court’s findings, the trial court

did not abuse its discretion.

In his first point of error, Appellant claims that trial the court abused its

discretion because there was insufficient evidence to show that he had the intent to

harm Judge Kocurek, and because he “did not intend nor was he reasonably certain

that this statements would be interpreted as expressions of intent to harm a public

servant.” Appellant’s Brief at 10. Appellant also argues that “there was no

evidence that [he] was reasonably certain that his statement would inhibit the

judge’s service as a public official.” Appellant’s Brief at 10.

The record reflects that the evidence was sufficient to support the trial

court’s determination. Moreover, the retaliation statute does not require the State to

prove that the person issuing the threat actually intend to harm the threat’s target,

nor does it require that the statement be designed to inhibit the target’s service as a

public official. The court, therefore, did not abuse its discretion.

4

Standard of Review:

A trial court’s decision to revoke deferred-adjudication community

supervision and proceed to an adjudication of guilt is reviewed for abuse of

discretion, which is the same standard that governs the revocation of regular

community supervision. Cantu v. State, 339 S.W.3d 688, 691-92 (Tex. App.—Fort

Worth 2011, no pet.), citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006); see also TEX. CODE CRIM. PROC. art. 42.12 § 5(b).

The trial court does not abuse its discretion if the order revoking community

supervision is supported by a preponderance of the evidence; in other words, the

greater weight of the credible evidence would create a reasonable belief that the

defendant has violated a condition of his or her community supervision. Rickels,

202 S.W.3d at 763-64. An appellate court reviews the evidence in the light most

favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984). The reviewing court must respect the fact-finder’s role to

evaluate the witnesses’ credibility, to resolve conflicts in the evidence, and to draw

reasonable inferences, and it assumes that the fact-finder resolved evidentiary

issues in a way that supports the judgment. Limuel v. State, 568 S.W.2d 309, 311

(Tex. Crim. App. 1978).

5

Applicable law:

In this case, the court found Appellant guilty of violating the terms of his

deferred-adjudication community supervision by, inter alia, committing the

offense of retaliation against Judge Kocurek. 3 RR 139. Section 36.06(a)(1)(A) of

the Texas Penal Code lays out the elements of the retaliation offense applicable to

the instant case:

(a) A person commits an offense if he intentionally or knowingly

harms or threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service or status of

another as a:

(A) public servant……

The retaliation statute serves important policy considerations. As the Court

of Criminal Appeals has held, “A central purpose of the retaliation statute is to

encourage a specified class of citizens—which includes public servants, witnesses,

prospective witnesses, and informants—to perform vital public duties without fear

of retribution.” Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011).

The retaliation statute does not require that the threatened harm be

imminent, nor does it require that the actor actually intend to carry out his threat. In

re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.); Coward v.

State, 931 S.W.2d 386, 389 (Tex. App. —Houston [14th. Dist.] 1996, no pet.). Nor

does the retaliation statute require that the threat be communicated directly to the

6

person being threatened. Doyle v. State, 661 S.W.2d 726, 728 (Tex. Crim. App.

1983) (per curiam). Finally, the statute does not require proof that Appellant took

any affirmative steps to carry out the threat. Lebleu v. State, 192 S.W.3d 205, 211

(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

Application of Law to the Facts:

In his first point of error, Appellant begins by asserting that the State’s

“evidence is insufficient to support the trial court’s finding that the Appellant had

violated his community supervision.” Appellant’s Brief at 5. A review of the

record, however, shows that the evidence was more than sufficient.

The State filed its original Order of the Court Deferring Further Proceedings

on June 1, 2012. CR 21. The order was effective for five years from that date, and

it contained numerous community supervision conditions. CR 21. One of those

conditions was that Appellant, “Commit no offense against the laws of this or any

State or of the United States.” CR 21. Over the next five months, the State filed

two Motions to Proceed with an Adjudication of Guilt. Instead of revoking

Appellant, the court entered an order, on September 4, 2012, amending Appellant’s

conditions of community supervision. CR 42-43. That order continued all of the

conditions of the original order, and further confined Appellant to jail for a period

7

of 90 days and compelled Appellant’s participation in GPS monitoring for the

following fourteen months. CR 42.

A mere six months later, on March 19, 2013, the State filed another Motion

to Proceed with an Adjudication of Guilt. That Motion, which was amended on

June 14, 2013, alleged that Appellant had violated the terms and conditions of his

deferred-adjudication community supervision by:

1. Failing to allow the Supervision Officer to visit at home or

elsewhere on January, 9, 2013;

2. Failing to pay Court Costs and is delinquent $56.31;

3. Failing to pay Supervision fee and is delinquent $229.93;

4. Failing to pay Restitution and is delinquent $225.23;

5. Failing to pay Family Violence Center fee and is delinquent

$17.53;

6. Failing to report to, cooperate with and participate in a Family

Violence Program through CES;

7. Failing to participate in the Global Positioning System (GPS)

program;

8. Committing a subsequent criminal offense in that on or about the

22nd day of February, 2013, in the County of Travis, State of

Texas, Terry Atkins did then and there intentionally and knowingly

threaten another, Julie Kocurek by an unlawful act, to wit:

aggravated assault or capital murder by threatening to shoot Julie

Kocurek in retaliation for or on account of the service or status of

Julie Kocurek as a Public Servant, to wit: Judge of the 390th

District Court.

CR 68.

8

At the July 19, 2013 hearing to revoke community supervision and

adjudicate Appellant, the State presented evidence of Appellant’s violations

through four witnesses. 3 RR 4. Viewed in the light most favorable to the trial

court’s ruling, the evidence presented during the hearing supports the trial court’s

finding that Appellant violated the terms of his community supervision.

The State’s first witness was John Pratt, a senior probation officer for the

Travis County Adult Probation Office. 3 RR 11. Mr. Pratt supervised Appellant in

his capacity as a probation officer. 3 RR 11. He testified that Appellant was in

violation of numerous terms of his deferred-adjudication community supervision

when the State filed its motion to revoke community supervision and proceed with

an adjudication of guilt. 3 RR 13. As Mr. Pratt testified, Appellant’s violations

included:

1. Failing to be present for a home visit on January the 9th, 2013 (3

RR 13);

2. Failing to pay $56.31 in court costs (3 RR 16);

3. Failing to pay a $229.93 supervision fee (3 RR 16);

4. Failing to pay $225.23 in restitution (3 RR 16);

5. Failing to pay a $17.53 Family Violence Center fee (3 RR 16-17);

and

6. Failing to report, cooperate with, or participate in the family

violence program (3 RR 17).

The State then called Charles Hoy, a Travis County Probation Officer, who

supervised Appellant during his community supervision. 3 RR 23. Mr. Hoy

9

testified that he was the probation officer who had been scheduled to conduct a

home visit with Appellant on January 9, 2013, but that the meeting did not occur

because Appellant was not home or did not answer the door, and that he did not

answer his phone. 3 RR 24-25. Mr. Hoy also testified that he ordered Appellant to

participate in a family violence class through the Travis County Counseling and

Education Services (CES), but that Appellant failed to do so. 3 RR 26. He further

testified that Appellant failed to participate in the Global Positioning System (GPS)

monitoring program by failing to charge his device and pay associated fees. 3 RR

29-31.

The State then called Rachele Smith, the owner of Victims Safety First, a

company that provides Travis County with GPS and electronic monitoring of

people on community supervision. 3 RR 38. She testified that she knew Appellant

because her company provided him with his court-ordered GPS device. 3 RR 40.

Smith testified that, around 4:30 p.m. on February 22, 2013, she was finishing a

phone conversation just outside of her office when Appellant walked out of the

office and started talking to her. 3 RR 41. After complimenting Smith on her car,

he then began threatening to kill Judge Kocurek:

A: He said, “Pow. I’ll kill that fucking judge. Pow. I’ll kill the

fucking cop. And do you know why? Because I do not care. They

have interfered with my constitutional right to the pursuit of

happiness.”

10

And I said, “Hang on now. Whoa, whoa, whoa.” He goes, “I’m not

mad at you. You can ask your people. I come in here all the time

talking stuff. I’m not mad at you.” But -- and he made the symbol

again. He said, “I don’t care. Pow. I’ll kill that fucking judge. I

hate Judge Kocurek. She put me in jail without representation

and I stayed there for months over” -- I believe he said -- “over

Facebook.”

Q: For the record, when you’re making that gesture that you’re

calling the symbol of a gun, you’ve got your thumb erect and your

first finger extended as if it were the barrel of a gun?

A: Yes.

Q: Okay.

A: He’s like, “Pow. Pow.”

Q: Now, he said, “I’ll kill that fucking judge.” Did he ever

specifically say, “I’ll kill Judge Kocurek”?

A: Yes, he did. He said, “I hate that bitch, Judge Kocurek.”

Q: And he threatened to kill her?

A: Yes. He named her specifically. He said he hated her and that

he would kill her and that he would kill a cop. He did not care.

3 RR 42-43.

In response to the Appellant’s threats, Smith called the police, filed an

incident report, and immediately contacted Appellant’s probation officer. 3 RR 45.

She also contacted Marsha Morgenroth, a probation supervisor, so that Judge

Kocurek would be aware of the threat on her life. 3 RR 45.

11

The State then called Rebecca Chatagnier, an employee at Victim Safety

First. 3 RR 63. She testified that she was outside the office smoking a cigarette

while Smith and Appellant were talking. 3 RR 64. As she was putting her

belongings in her car, she heard Appellant say that something was “a violation of

his civil rights.” 3 RR 64. She then saw Appellant use his finger and thumb to

make a gun sign and say, “I will pop that judge. Pow.” 3 RR 65. While Chatagnier

could not say whether Appellant was serious about carrying out his threats, she

testified that “I don’t think he was joking.” 3 RR 66.

At the conclusion of the revocation hearing, the trial judge pronounced his

ruling:

I find the allegations in the motion with regard to failure to allow

the officer to visit at your home to be true, I find the failure to

participate in Global Positioning System to be true, and I find the

allegation in the new offense of retaliation to be true. I hereby find

you guilty of violation of a protective order and a third-degree

felony.

3 RR 139.

When considered as a whole and viewed in the light most favorable to the

trial court’s ruling, the evidence is clearly sufficient to support the trial court’s

determination that the alleged violations were true under the applicable

preponderance of the evidence standard. The State produced evidence that the

Appellant threatened Judge Kocurek, and that he made the threat in retaliation for

12

her service as the judge in his case. Accordingly, the Appellant’s first point of error

should be overruled.

As part and parcel of his first point of error, Appellant contends that

retaliation is a result-oriented offense and that, consequently, the trial court abused

its discretion by finding that he had committed the offense where the State failed to

demonstrate that he had the requisite intent to harm Judge Kocurek or to inhibit her

role as a public servant. Appellant’s Brief at 7. To support this argument, the

Appellant cites three cases: Phillips, In re A.C., and Wilkins. Appellant’s Brief at 7.

Phillips is inapplicable to this case because it did not construe the retaliation

statute. See Phillips v. State, 401 S.W.3d 282, 284 (Tex. App.—San Antonio 2013)

(analyzing the terroristic threat statute—not the retaliation statute—when reciting

the rule that, “The focus of the intent inquiry is on the intended reaction.”). In re

A.C. is, likewise, inapplicable for the same reason. See In re A.C., 48 S.W.3d 899,

903 (Tex. App.—Fort Worth 2001, pet. denied) (construing the terroristic threat

statute).

Wilkins, on the other hand, does concern the relevant statute in this case. The

State, however, would respectfully argue that, in its holding in Wilkins, the

Amarillo Court of Appeals improperly conflated the obstruction and retaliation

subsections of the statute and, in doing so, placed unnecessary focus on the effect

of appellant’s threats on the victim. See Wilkins v. State, 279 S.W.3d 701, 704

13

(Tex. App.—Amarillo 2007, no pet.) (noting that “there is no evidence that

Appellant intended or was reasonably certain that his stated intent for” the judge’s

death would affect that judge’s performance or cause him “to fear retribution”).

The source of this conflation appears to spring from the Amarillo court’s

confused interpretation of three opinions. See id. (holding that “the retaliation

charge against Appellant was a result-oriented offense” and citing, as support,

Herrera v. State, 915 S.W.2d 94, 97 (Tex. App. —San Antonio 1996, no writ), In

re B. P. H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no pet.), and Doyle

v. State, 661 S.W.2d 726, 728 (Tex. Crim. App. 1983) (per curiam). On closer

inspection, however, those three cases provide no tangible support for the holding

in Wilkins.

In Herrera, the court construed TEX. PENAL CODE § 36.06(a)(2), which is

the obstruction subsection of the statute. The Herrera court held that “obstruction

is in fact a result-oriented offense.” Herrera v. State, 915 S.W.2d 94, 97 (Tex.

App.—San Antonio 1996)(emphasis added). The holding in Herrera does not,

however, support the proposition that retaliation is also a result-oriented offense.

In re B. P. H., on the other hand, does state, “Retaliation is a result-oriented

offense and the focus is on whether the conduct is done with an intent to effect the

result specified in the statute.” 83 S.W.3d at 407. The only authority that the court

cites to support this statement, however, is a citation to Herrera, which, as has

14

been established, set forth the rule that obstruction, not retaliation, is a result-

oriented offense.

The State offers instead, for this Court’s consideration, a holding out of the

Corpus Christi Court of Appeals that appears to more accurately address arguments

similar to those made by Appellant. Lindsey v. State, No. 13-09-00181, 2011 Lexis

5388, at *1 (Tex. App.— Corpus Christi July 14, 2011) (not designated for

publication). This opinion, though unpublished, is particularly helpful because it

highlights the problem with using Wilkins and Doyle to support the proposition that

retaliation is a result-oriented offense.

In Lindsey, the appellant was convicted of retaliation. Lindsey v. State, No.

13-09-00181, 2011 Lexis 5388, at *1 (Tex. App.— Corpus Christi July 14, 2011)

(not designated for publication). Lindsey appealed his conviction by challenging

the sufficiency of the evidence, and the court of appeals affirmed the trial court’s

judgment. Id. at *1. The Texas Court of Criminal Appeals vacated the judgment

and remanded the case to the appellate court to address the legal sufficiency

argument more completely. Id. at *1-2. The court of appeals subsequently affirmed

on remand. Id. at *2.

The appellant in the Lindsey case argued that the evidence was insufficient

to support his conviction because the State failed to establish that his statements to

a police officer “were in any way directed to inhibit [a witness] from reporting

15

criminal activity or acting as a witness.” Id. at *3. The court determined that that

the retaliation statute does not require a showing that the defendant intended to

exert an inhibitory effect on the threatened individual. Id. at *11-*12. Second, the

court determined that “a close examination of the statute supports the conclusion

that retaliation does not require a showing of intent to inhibit the behavior of the

target of the threat.” Id. at *12. This is because Section 36.06(a) of the Penal Code

defines two crimes: retaliation and obstruction. Lindsey, 2011 Lexis 5388, at *12;

see TEX. PENAL CODE § 36.06(a)(1), (a)(2). Obstruction, described in subsection

(a)(2), requires a showing that the defendant intended “to prevent or delay the

service of another” as a public servient. See TEX. PENAL CODE § 36.06(a)(2).

Retaliation, on the other hand, does not. See TEX. PENAL CODE § 36.06(a)(1).

As noted in Lindsey, “The Legislature could have easily included an ‘intent

to inhibit’ element in the definition of retaliation—as it did in the definition of

obstruction—but it chose not to, and it is not in a reviewing court’s province to add

that element.” Lindsey, 2011 Lexis 5388, at *12-13 (citing TEX. GOV’T CODE §

312.055 (requiring reviewing courts to give effect to the Legislature’s intent as

expressed in the statute’s plain language)). The Fourteenth Court of Appeals in

Houston came to the same conclusion:

The crime of retaliation does not require intent to follow through

with a threat. It is not an element of the crime. So long as a person

issues a threat, knowingly and intentionally, and for the reasons

set out in the statute, then she is guilty of the crime.

16

Lebleu v. State, 192 S.W.3d 205, 211 (Tex. App.—Houston [14th Dist.] 2006, pet.

ref’d).

Finally, the court in Lindsey noted the conflicting authority found in Wilkins

and explained why it would not follow the Amarillo Court of Appeals:

The Wilkins court cites only Doyle in asserting that a showing of

the defendant’s “intent to inhibit” is necessary to obtain a

retaliation conviction, but Doyle says nothing of the sort. The

Doyle Court did recognize that “[a] central purpose of the statute

is to encourage a certain class of citizens to perform vital public

duties without fear of retribution,” 661 S.W.2d 726, 729 (Tex.

Crim. App. 1983), but it did not imply that the defendant must

have had the “intent to inhibit” in order to convict. Moreover, as

noted, the statute contains no requirement, explicit or implicit,

that the defendant actually intend for the victim to hear or

appreciate the threat. The making of the threat itself is what is

criminalized under the plain language of the statute—not the

communication of that threat to the victim.

Lindsey, 2011 Lexis 5388, at *17, n.4.

Because the statutory language is clear that retaliation is not a result-oriented

offense—as confirmed by Lebleu and Lindsey—Appellant’s claim that he should

be granted relief because there was no evidence that he actually intended to harm

Judge Kocurek, or that his statement would inhibit the judge’s service as a public

official, is without merit. Consequently, his first point of error should be overruled.

In the final analysis, Appellant’s first point of error should be denied

because the court did not abuse its discretion in determining that he violated the

terms of his deferred-adjudication community supervision. Significantly, “[p]roof

17

by a preponderance of the evidence of any one of the alleged violations of the

conditions of community supervision is sufficient to support a revocation order.”

Cantu, 339 S.W.3d at 691-92 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex.

Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim.

App. [Panel Op.] 1980); and Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—

Fort Worth 2005, pet. ref’d.)).

As previously established, there is sufficient evidence that Appellant

violated numerous terms of his community supervision, including: failing to allow

the probation officer to conduct the scheduled home visit; failing to participate in

Global Positioning System; and committing the offense of retaliation against Judge

Kocurek. 3 RR 139. The court subsequently found Appellant guilty of violating the

protective order. 3 RR 139.

As required, the State proved by a preponderance of the evidence that the

Appellant violated the terms and conditions of his community supervision. The

State satisfied its burden because the greater weight of the credible evidence before

the court created a reasonable belief that it was more probable than not that

Appellant violated his community supervision conditions. In this case, the trial

court’s determination was not “so clearly wrong as to lie outside the zone within

which reasonable persons might disagree.” Because the trial court is the sole judge

of the credibility of the witnesses and the weight to be given their testimony, and

18

viewing the evidence in the light most favorable to the trial court, Appellant’s

point of error should be overruled.

THE STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR

Appellant’s statements were true threats, which are not protected

speech. Under the applicable objective standard, the threats

would be interpreted by a reasonable person as serious threats to

inflict harm.

In his second point of error, Appellant argues that his statements were not

threats, but rather constitutionally-protected speech given the context of the

conversation in which those statements were made. Appellant’s Brief at 12.

Specifically, Appellant points to his testimony during the revocation hearing that,

during the conversation in question outside the GPS monitoring business, he

allegedly stated, “I’m going to pursue this no matter how long it takes. I’m going

to pursue and find me a good lawyer to . . . address it.”2 Appellant’s Brief at 12; 3

RR 105. Appellant’s point of error should be overruled. First, threats are not

protected speech. Second, the objective standard applicable to this issue indicates

that the trial court properly determined that Appellant’s statements were threats.

Applicable Law:

2

Only Appellant himself, when he took the stand, produced evidence of making such a

statement. No other witness or testimony corroborates his self-serving statement.

19

The Austin Court of Appeals has held that an objective standard applies

when considering whether a statement qualifies as a threat:

Whether a particular statement may properly be considered to be a

threat is governed by an objective standard—whether a reasonable

person would foresee that the statement would be interpreted by those

to whom the maker communicates the statement as a serious

expression of intent to harm or assault.

Manemann v. State, 878 S.W.2d 334, 337 (Tex. App.—Austin 1994, no pet.),

citing United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990).

The test is whether the threat would “justify apprehension by an ordinary

hearer,” not whether the threat actually caused the recipient to become

apprehensive. Manemann, 878 S.W.2d at 337. Threats need not be directly

communicated. Id. Additionally, “Alleged threats should be considered in light of

their entire factual context, including the surrounding events and the reaction of the

listeners.” Id.

Courts applying the objective standard to factually comparable cases have

determined that expressions similar to those made in the instant case were threats.

See, e.g., id. at 338. In Manemann, the Appellant called a police officer and said, “I

know where you work and I’m going to get your ass, mother fucker.” Id. at 336.

The Austin Court of Appeals applied the objective standard and determined that:

The trial court, as the fact finder, could rationally conclude that a

reasonable person would understand the telephone

communication to [the police officer] as a threat to inflict serious

20

bodily injury or to commit a felony, intentionally made in a

manner likely to alarm an ordinary recipient.

Id. at 338.

Accordingly, this Court in Manemann determined that the evidence was

sufficient to support the trial court’s determination that the threat was unlawful

speech not protected by the U.S. Constitution. Id.

In addition, the United States Supreme Court has long recognized that the

Constitution permits government to proscribe “true threats.” Virginia v. Black, 538

U.S. 343, 360 (2003); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)

(“[T]hreats of violence are outside the First Amendment”). The Supreme Court

mandates that the government distinguish between protected expressions and true

threats. See Watts, 394 U.S. at 707 (stressing that any regulation of pure speech

must be interpreted with the First Amendment in mind). Further, “true threats”

include “those statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to a particular

individual or group of individuals.” Black, 538 U.S. at 360

Since the retaliation statute only punishes threatening speech, it does not

implicate a substantial amount of constitutionally protected conduct. Blanco v.

State, 761 S.W.2d 38, 40 (Tex. App. —Houston [14th Dist.] 1988, no pet.).

Similarly, “threats and harassment are not entitled to First Amendment protection.”

Garcia v. State, 212 S.W.3d 877, 888-889 (Tex. App.—Austin 2006, no pet.); see

21

also Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam) (stating that,

“What is a threat must be distinguished from what is constitutionally protected

speech.”); Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 580 (5th Cir. 2005)

(stating that there is a “distinction between communication and harassment” and

that “courts have the power to enjoin harassing communication”); Thorne v.

Bailey, 846 F.2d 241, 243 (4th Cir. 1988) (“Prohibiting harassment is not

prohibiting speech, because harassment is not protected speech.”); Webb v. State,

991 S.W.2d 408, 415 (Tex. App. —Houston [14th Dist.] 1999, pet. ref’d) (“A

threat is not protected speech.”).

Comments can be evaluated as threats based, not just on the language used,

but also the context within which they are uttered, even as veiled threats.

Manemann, 878 S.W.2d at 338. The focus on context derives from Watts, in which

the Supreme Court noted that statutes criminalizing “a form of pure speech must be

interpreted with the commands of the First Amendment clearly in mind. What is a

threat must be distinguished from what is constitutionally protected speech.” 394

U.S. at 707. In Watts, the petitioner, speaking at a public rally near the Washington

Monument, expressed his unwillingness to serve in Vietnam: “I am not going. If

they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”

Id. at 706. The Court concluded that, “taken in context, and regarding the expressly

conditional nature of the statement and the reaction of the listeners [who responded

22

with laughter],” the “kind of political hyperbole indulged in by petitioner” was

merely “a kind of very crude offensive method of stating a political opposition to

the President,” and was not a true threat. Id. at 708.

Application of Law to the Facts:

Based on the evidence in this case, Appellant’s statements were “true

threats” such that the First Amendment does not protect them. As noted, whether

speech constitutes a “true threat” is not determined by the intent of the speaker, but

rather from the viewpoint of a reasonable recipient. Unlike in Watts, the threat in

this case was not conditioned on some future event, nor did the audience respond

with laughter. Rachele Smith, the owner of Victims Safety First, understood the

Appellant’s statements—including “Pow. I’ll kill that fucking judge. I hate Judge

Kocurek”—to be very serious threats. Upon hearing the threats, she immediately

called the police, filed an incident report, and contacted the Appellant’s probation

officer. 3 RR 45. She also contacted a probation supervisor so that Judge Kocurek

would be aware of the threat on her life. 3 RR 45. There is additional evidence that

the Appellant’s statements were true threats from the viewpoint of a reasonable

recipient: upon learning of the threats, Judge Kocurek removed herself from the

case and transferred it to another judge just days after the Appellant made those

threats. CR 51. A separate judge overseeing the revocation hearing also considered

the statements to be true threats when he found three community supervision

23

violations—including retaliation against Judge Kocurek—to be true, revoked

Appellant’s community supervision, adjudicated his guilt, and sentenced him to

four years of confinement in state prison. CR 139; 142. Accordingly, the

Appellant’s second point of error should be overruled.

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PRAYER

WHEREFORE, the State requests that the Court overrule the Appellant’s

points of error and affirm the judgment of the trial court.

Respectfully submitted,

Rosemary Lehmberg

District Attorney

Travis County

/s/ Kathryn A. Scales

Law Clerk: Micah King Kathryn A. Scales

Assistant District Attorney

State Bar No. 00789128

P.O. Box 1748

Austin, Texas 78767

(512) 854-9400

Fax No. (512) 854-4206

Kathryn.Scales@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

25

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State certifies

that the length of this response is 5,343 words, which is within the limits imposed

by the Rule. The State also certifies, pursuant to Texas Rule of Appellate

Procedure 9.4(e), that a conventional 14-point typeface was used to generate this

brief.

/s/ Kathryn A. Scales

Kathryn A. Scales

CERTIFICATE OF SERVICE

I hereby certify that, on the 2nd day of January, 2015, the foregoing State’s

brief was sent, via U.S. mail, electronic mail, facsimile, or electronically through

the electronic filing manager, to the Appellant’s attorney, Amber Vazquez Bode, at

1004 West Avenue, Austin, Texas 78701.

/s/ Kathryn A. Scales

Kathryn A. Scales

26