Redfearn v. State

¶1concurring.

¶2I concur with the result reached by the majority.

¶3Redfearn contends on appeal that the information fails to state an offense. In reviewing the complaint, I find that the information contains all the essential elements necessary to allege the offense of a terroristic threat. This offense has five essential elements.1 It alleges that a person (Jerry Redfearn) threatened to commit an offense involving violence (assault) with the intent to interrupt the occupation of a building.

¶4The dissent takes the position that the language in the information “by telling Henry Washington that Defendant had on said date released snakes in the building located at 1806 West Main Street in Clarks-ville, Texas” is repugnant to the portion of the information alleging a threat, because that language attributes a statement to Redfearn of an act which has previously occurred.

¶5The terroristic threat statute was intended to cover threats of violence where the intent was to cause fear, emergency action, or substantial inconvenience. 2 Branch, Texas Annotated Penal Statutes § 22.07 explanatory comment (3d ed. 1974). The cases indicate that it is the desired reaction of the listener, regardless of whether or not the threat is real, that constitutes the offense. Jarrell v. State, 537 S.W.2d 255 (Tex.Crim.App.1976).

¶6In the present case, the plain meaning of the statement made by Redfearn was not only intended to tell Henry Washington that he had just released snakes in Washington’s residence, but that same statement was also clearly calculated to tell Henry Washington that these snakes were still in Washington’s residence and constituted a continuing threat to Washington if he attempted to return to his residence. Red-fearn’s statement was to the effect that he had put in motion a force which was of a continuing nature.

¶7Analyzing whether such constituted a threat, we can look to the definitions of threat set forth in the dissent: “an indication of something impending.” Certainly the snakes in the dwelling constituted something impending. “[A]n expression of intention to inflict evil, injury, or damage.” Nothing had been inflicted at this point. The damage or injury was not an accomplished fact. “[Sjomething that threatens.” Certainly the snakes are something that threatened Washington if he returned to his home.

¶8Again looking at the definitions cited by the dissent from Black’s Law Dictionary: A threat is “[a] declaration of intention or *31determination to inflict punishment, loss, or pain on another, or to injure another by the commission of some unlawful act.” In the present case, the punishment or pain or injury had not yet occurred at the time the statement was made.

¶9Looking at the offense in terms of a threat to commit an assault as defined under Tex.Penal Code Ann. § 22.01(a)(1) (Vernon Supp.1987),2 a person commits an offense if he intentionally, knowingly, or recklessly causes bodily injury to another.3 This was the type of assault alleged to have been threatened by Redfearn, but not yet complete because there had been no bodily injury. Thus it is a continuing threat which might be completed if Washington returned to his abode. Although Redfearn had done the act, it was not irreversible as far as bodily injury to the victim was concerned.

¶17dissenting.

¶18Jerry Redfearn was charged with and tried for the offense of threatening to assault Washington by threatening him with bodily injury. The trial court instructed the jury that “[a] person commits the offense of assault if the person intentionally threatens another with imminent bodily injury.” 1 The majority, tacitly agreeing with Redfearn that a threat to assault by threat is not an offense, says that an assault can be committed in ways other than by threatening bodily injury and affirms his conviction for an offense for which he was not tried. Were justice a game I might cry “foul.” As it is not, I enter my dissent to today’s decision, which is both erroneous and fundamentally unfair.

¶19The information filed against Redfearn in the County Court of Red River County charged an offense under Tex.Penal Code Ann. § 22.07(a) (Vernon Supp.1987).2 That statute provides that a person commits an offense “if he threatens to commit any offense involving violence to any person. ...” What offense involving violence does the information allege that Redfearn threatened to commit? None.

¶20To determine if the information charges him with an offense under Section 22.07(a), first the meaning of the word threaten must be ascertained. No definition is given in the statute; therefore, we are re*32quired to give the word “threaten” its plain-meaning according to common usage. Campos v. State, 623 S.W.2d 657 (Tex.Crim.App.1981); Ramos v. State, 419 S.W.2d 359 (Tex.Crim.App.1967); Tex.Gov’t Code Ann. § 311.011(a) (Vernon 1987).

¶21Webster’s New College Dictionary defines “threat” as: 1. an indication of something impending; 2. an expression of intention to inflict evil, injury, or damage; 3. something that threatens. Black’s Law Dictionary defines “threat” as: A declaration of intention or determination to inflict punishment, loss, or pain on another, or to injure another by the commission of some unlawful act. In People v. Holder, 119 Ill.App.3d 366, 74 Ill.Dec. 907, 456 N.E.2d 628 (Ill.App.Ct.1983), the court discussed the offense of intimidation, which is similar to the offense of terroristic threat, and said:

The gravamen of the offense of intimidation is the exercise of improper influence, the making of a threat with the intent to coerce another. (People v. Hubble (1980), 81 Ill.App.3d 560, 563-64, 37 Ill.Dec. 189, 192, 401 N.E.2d 1282, 1285.) It has also been held that implicit in the word “threat” as it is used in the intimidation statute, is the requirement “ ‘that the expression in its context have a reasonable tendency to create apprehension that its originator will act according to its tenor.’ ” (People v. Gallo (1973), 54 Ill2d 343, 352, 297 N.E.2d 569, quoting from Landry v. Daley (N.D.Ill.1968), 280 F.Supp. 938, 961.) (emphasis added).

¶22The first sentence in the Practice Commentary under Section 22.07 provides, “[t]his section is directed toward those who seek to cause terror or public inconvenience by threatening to commit crimes of violence.” (emphasis added). The State charged Redfeam with having told Washington that he “had on said date released snakes in the building — ” That statement certainly was not a threat to commit an offense involving violence, it merely related his past actions. Nor was it the classic threat in which the defendant intends to “execute his threat,” to put his words into action. See, e.g., Haynie v. State, 2 Cr.R. 168 (1877). Indeed, the statement by Redfeam can under no reasonable construction be termed a “threat” to do anything. Further, assuming he had threatened Washington in some manner, the threat did not involve any future act on Redfeam’s part as required by the statute. The statute specifically uses the future tense to describe the commission of the offense involving violence.

¶23When the common meaning is applied to the language of the information filed against Redfeam, the conclusion logically follows that the offense of terroristic threat is not stated. Conduct such as that alleged to have been committed by this defendant cannot be condoned. Perhaps the information did charge an offense under one or more of the provisions of Title 18 of the United States Code (Crimes and Criminal Procedure). Or, perhaps the alleged conduct constitutes an assault or reckless conduct under Tex.Penal Code Ann. § 22.01 (Vernon Supp.1987) or § 22.05 (Vernon 1974). But, no matter how bad the conduct alleged may be, it cannot logically be said to be a threat by Redfeam “to commit any offense involving violence.”

¶24The majority’s comparison of the allegations against Redfeam to a statement that a “time bomb had been placed in the building” underscores its misunderstanding of the requirement of a threat of some future action on the part of a defendant. Placing a time bomb in a building would be committing several offenses but it would not be a threat to commit an offense involving violence under Section 22.07.

¶25The majority’s reliance on Garrett v. State, 619 S.W.2d 172 (Tex.Crim.App.1981), and the Kansas and Illinois cases, which hold that a threat need not be verbal but may be committed by acts, innuendo or suggestion, evidences a further misapprehension of the real issue before the Court. No legitimate question exists concerning whether an assault can be committed by a threat of bodily injury by use of snakes, dogs, wasps or a pack of wolves. The issue is whether the information charged *33Redfearn with threatening to commit any offense involving violence.

¶26Undoubtedly, the information alleges that Redfearn intended to prevent or interrupt Washington’s occupation of the building, the intent set out in Section 22.07(a)(3). But is there an allegation of a threat to commit any offense? A plain reading of the information leads to but one conclusion: the information does not allege terroristic threat under Section 22.07.