The opinion
Opinion issued December 8, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00046-CV
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VICSANDRA JONES AND DARREN JONES, INDIVIDUALLY AND AS
NEXT FRIENDS OF JOHN DOE, A MINOR, Appellants
V.
JOSI CALDERON SHIPLEY, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2015-56901
OPINION
While chaperoning a school field trip, Josi Calderon Shipley allegedly rushed
toward a second grader, John Doe, and shook her finger at him while stating she
would “get him.” John Doe’s parents, Vicsandra Jones and Darren Jones, sued
Shipley for assault by threat of bodily injury. The trial court granted Shipley’s
motion to dismiss under Texas Rule of Civil Procedure 91a. On appeal, the Joneses
argue that the trial court erred by granting the motion. We affirm.
Background
The Joneses alleged in their First Amended Original Petition that they had an
unpleasant exchange with Shipley shortly after they enrolled John Doe in the second
grade of a new school. According to the amended petition, Shipley, the mother of
another student at the same school, told Vicsandra and John Doe that John Doe was
a “monster” and “completely out of control at school.” The Joneses also alleged that
Shipley said “she was going to see to it that he was expelled” from the school, adding
that she and other parents at the school “pay high tuition rates to keep their children
away from kids like [John Doe].”
The incident that forms the basis of the Joneses’ suit for assault by threat of
bodily injury took place about a week later, according to the amended petition. The
Joneses allege that Shipley was chaperoning John Doe’s school field trip to the zoo
when she saw John Doe sitting alone, “rushed over” to him from 50 feet away in “an
extremely threatening and aggressive manner,” “put her finger inches from his face,”
and “told him she was going to ‘get him.’” The amended petition alleges that this
“attack” was without provocation, and caused John Doe to have a “fear of imminent
bodily injury” and “severe emotional trauma.”
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Shipley filed a Rule 91a motion to dismiss, arguing that assuming all of the
facts pleaded by the Joneses to be true, they were insufficient to support a cause of
action for assault by threat of bodily injury. The Joneses responded, arguing that
they had pleaded sufficient facts to state a claim for assault by threat of bodily injury.
The trial court granted the motion, dismissing the case and awarding Shipley
attorney’s fees under Rule 91a.
Discussion
In their sole issue, the Joneses argue that the trial court erred by granting
Shipley’s Rule 91a motion to dismiss.
A. Standard of Review
We review the merits of a Rule 91a motion de novo because the availability
of a remedy under the facts alleged is a question of law and the rule’s factual-
plausibility standard is akin to a legal-sufficiency review. City of Dall. v. Sanchez,
494 S.W.3d 722, 724 (Tex. 2016) (per curiam). Dismissal is appropriate under Rule
91a “if the allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought . . . or no reasonable person
could believe the facts pleaded.” Id.; TEX. R. CIV. P. 91a (authorizing dismissal of
a cause of action that has no basis in law or fact).
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B. Applicable Law
The elements of assault are the same in both criminal and civil cases. See
Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). A person commits assault if
the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to
another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent
bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another
when the person knows or should reasonably believe that the
other will regard the contact as offensive or provocative.
TEX. PENAL CODE § 22.01(a). The focus in an assault by threat case is on the
defendant’s words and conduct, and the critical inquiry is whether a reasonable
person under the circumstances would consider the words and conduct to be an
objective threat of imminent bodily injury. See Olivas v. State, 203 S.W.3d 341, 347
(Tex. Crim. App. 2006) (“Although the question whether the defendant’s conduct
produced fear in the victim is relevant, the crucial inquiry remains whether the
assailant acted in such a manner as would under the circumstances portend an
immediate threat of danger to a person of reasonable sensibility.”); see also
Montejano v. State, No. 08-12-00235-CR, 2014 WL 4638911, at *6 (Tex. App.—El
Paso Sept. 17, 2014, no pet.) (not designated for publication) (“operative question is
whether the defendant’s conduct would be perceived as objectively threatening
under the circumstances”).
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C. Analysis
The Joneses, who sued individually and as next friends of John Doe, do not
allege that Shipley caused John Doe bodily injury, nor do they allege Shipley caused
any physical contact with him. Rather, the Joneses allege assault of the variety
described in Section 22.01(a)(2): threatening another with imminent bodily injury.
Texas authorities demonstrate that Shipley’s alleged words and conduct cannot
amount to assault by threatening imminent bodily injury as a matter of law. The
cases in which conduct has been held sufficient to constitute assault by threat of
imminent bodily injury involve words and conduct that, viewed from the objective
perspective of a reasonable person, constitute express and unambiguous threats of
imminent bodily injury, frequently death.
For example, in Wells v. May, No. 05-12-01100-CV, 2014 WL 1018135 (Tex.
App.—Dallas Feb. 12, 2014, no pet.) (mem. op.), the trial court dismissed a claim
for assault by threat under Rule 13, concluding that it had no basis in law or fact. Id.
at *2. The Dallas Court of Appeals reversed, but the record in that case involved
express death threats. Id. at *3–4. May was an attorney representing Wells’s wife
in the Wellses’ divorce action, and May was taking a deposition of Wells’s employee
at the time of the altercation. Id. at *1. When Wells asked May to calm down and
commented that May’s temper may have contributed to his daughter’s suicide, May
demanded Wells leave the deposition. Id. As Wells gathered his things to leave,
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May leaned over the table and screamed, “I’m gonna kill you!” Id. May jabbed his
finger in Wells’s face, making “repeated death threats”, including that he was going
to “shoot Wells with his gun.” Id. When Wells left the deposition, May pursued
him through the office and to the elevator, and Wells drove to the police station to
report the incident. Id.
Likewise, in Pickens v. Fletcher, No. 4:12-cv-1196, 2013 WL 2618037 (S.D.
Tex. June 11, 2013), the federal district court concluded that Pickens could survive
summary judgment on his assault claim. Id. at *5. But, again, and unlike in this
case, the defendant’s words and conduct involved an express death threat. Id.
Pickens and Fletcher were both students at a technical school. Id. at *1. One
evening, they had a verbal altercation outside the school about a noose hanging from
Fletcher’s rear-view mirror. Id. The exchange escalated, with Fletcher ultimately
yelling at Pickens “I will kill you n*****!” before walking to his truck to retrieve a
gun that he then pointed at Pickens. Id. at *2.
While liability for assault can be based on a threat of imminent bodily injury
short of death, the authorities in which evidence has been found sufficient to
establish an assault under 22.01(a)(2) involve words and conduct, that, unlike
Shipley’s vague alleged threat to “get” John Doe, constitute unambiguous threats of
imminent bodily injury from the objective perspective of a reasonable person. For
example, in Wilson v. State, 391 S.W.3d 131 (Tex. App.—Texarkana 2012, no pet.),
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the court of appeals held that legally sufficient evidence supported the defendant’s
assault by threat conviction where the defendant cursed his father, gritted his teeth,
said he would “knock the s*** out of him,” struck him on the back and head, and
then grabbed a sledgehammer and held it as he began walking toward his father
anew. Id. at 134. Likewise, in Tidwell v. State, 187 S.W.3d 771 (Tex. App.—
Texarkana 2006, pet. stricken), the court of appeals held that legally sufficient
evidence supported the defendant’s assault conviction where the defendant had a
gun in her possession and told the complainant that, unless he left, she would shoot
him. Id. at 775. Similarly, in Rogers v. State, 877 S.W.2d 498 (Tex. App.—Fort
Worth 1994, pet. ref’d), the court of appeals concluded that sufficient evidence
supported the defendant’s assault conviction where, in response to the complainant’s
refusal to cash a money order, the defendant pulled out a knife and threatened to cut
off the complainant’s head. Id. at 500.
By contrast, conduct and words objectively more threatening than Shipley’s
words and conduct in this case have been held not to constitute assault by threat of
imminent bodily injury. For example, Texas Bus Lines v. Anderson, 233 S.W.2d
961, 963 (Tex. Civ. App.—Galveston 1950, writ ref’d n.r.e.), involved an altercation
between a bus driver and his would-be passenger. When a ticket agent instructed
the bus driver to refuse Anderson entry to the bus, Anderson nevertheless sought to
board, and the driver, who was standing inside the bus near the door, “angrily” said
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to Anderson and his companion, who were standing outside the bus’s door, “You
can’t ride on my bus under any circumstances—Neither of you sons of b****** can
ride my bus under any circumstances.” Id. at 963. As he said this, the bus driver
was positioned on the stairs inside the bus, “braced” and “ready to kick [Anderson]
in the face” if he tried to force his way onto the bus. Id. Yet the appellate court held
this did not raise a fact issue on assault by threat and it was error for the trial judge
to have submitted the claim. Id. at 964; see also Moore v. City of Wylie, 319 S.W.3d
778, 782–83 (Tex. App.—El Paso 2010, no pet.) (even though plaintiff was “terrified
during the confrontation,” no fact issue on assault by threat of imminent bodily
injury where supervisor, while reprimanding plaintiff, poked him in the chest with
his finger three or four times).
Shipley’s alleged words and conduct are a far cry from the type of conduct
that has been held to constitute assault by threat of imminent bodily injury. See
Wells, 2014 WL 1018135, at *3–4; Pickens, 2013 WL 2618037, at *5; cf. Anderson,
233 S.W.2d at 963. The act of walking “aggressively” toward John Doe and shaking
her finger at him, together with the vague verbal threat to “get” him, does not support
a reasonable inference in the mind of a reasonable person that Shipley made an
objective threat to inflict imminent bodily injury on the second grader during a
school-sponsored field trip to the zoo. This is particularly true given the Joneses’
allegation that what Shipley had threatened a week earlier, when she spoke more
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precisely, was expulsion from the school, which is neither bodily injury nor
imminent. Assuming the truth of the Joneses’ allegations, Shipley’s vague threat to
“get” John Doe together with her aggressive walking and finger-shaking during a
school field trip do not constitute an objective threat of imminent bodily injury to a
person of reasonable sensibility in light of the circumstances. Because the words
and conduct alleged, though unkind, are insufficient to hold Shipley liable for assault
by threat, we hold that the trial court correctly dismissed the Joneses’ suit under Rule
91a.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
Higley, J., dissenting
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