In the Court of Appeals for the Fifth District of Texas at Dallas

Transcription

1 In the Court of Appeals for the Fifth District of Texas at Dallas JOHN PAUL CHARO, Appellant No CR THE STATE OF TEXAS, Appellee Lisa Matz, Clerk 5th Court of Appeals FILED: Trial Number in the County Court at Law No. 6, Collin County The Honorable Jay Bender, Judge Presiding STATE S BRIEF Greg Willis Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Assistant Criminal District Attorney Chief of the Appellate Division Zeke Fortenberry Oral argument Assistant Criminal District Attorney is not requested Bloomdale Road, Suite 100 McKinney, TX (972) FAX (214) SBN Tiffany Gainer Assistant Criminal District Attorney

2 TABLE OF CONTENTS INDEX OF AUTHORITIES...iii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 1 SUMMARY OF THE STATE S ARGUMENTS... 4 STATE S RESPONSE TO APPELLANT S SOLE POINT OF ERROR (SUFFICIENCY OF THE EVIDENCE)... 4 Appellant s Contention... 4 State s Response... 4 The evidence is legally sufficient to sustain the jury s verdict because it shows that Appellant threatened to kill Ginn and attempted to run Ginn off the road. Standard of Review... 4 Argument and Authorities... 5 PRAYER... 8 ii

3 INDEX OF AUTHORITIES Statute, Codes, and Rules: TEX. PEN. CODE , 5 Cases: Brooks v. State, 958 S.W.3d 893 (Tex. Crim. App. 2010)... 4 Brown v. State, 270 S.W.3d 564 (Tex. Crim. App 2008)... 6 Bryant v. State, 905 S.W.2d 457 (Tex. App.-Waco 1995, pet. ref'd.)... 6, 7 Cook v. State, 940 S.W.2d 344 (Tex. App. Amarillo 1997, pet. ref d)... 5 Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999)... 6 Jackson v. Virginia, 443 U.S. 307 (1979)... 4 Walker v. State, 327 S.W.3d 790 (Tex. App.-Fort Worth 2010, pet. ref d)... 6 iii

4 In the Court of Appeals for the Fifth District of Texas at Dallas JOHN PAUL CHARO, Appellant No CR THE STATE OF TEXAS, Appellee TO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE Appellant was charged by information with terroristic threat. CR 10; TEX. PEN. CODE Appellant tried the case to a jury and was found guilty. CR 7, The trial court assessed punishment at 365 days in jail probated for two years and a $2,000 fine. CR 89. STATEMENT OF FACTS Appellant was charged with terroristic threat based on a road rage incident investigated by the McKinney Police Department. 2 RR 99. Appellant and the victim, Marcedes Ginn, were coworkers at Walgreens in January of Id. at 27. While at work, Appellant pushed Ginn hard enough against the wine table that he fell down. Id. at 30. Appellant was fired from Walgreens as a result of the altercation. 3 RR 26. Three days after the altercation, on January 23, 2010, Ginn was driving home from work when he noticed someone appeared to be following him. 2 RR 32. Ginn pulled into a 7-Eleven parking lot, and he recognized the car following him was a green Buick 1

5 Appellant normally drove. Id. at Ginn continued driving through the adjacent parking lots, and Appellant continued to follow him. Id. at 34. Ginn pulled back onto the road and was in fear as Appellant followed him. Id. at 35. Ginn drove past his house because he knew Appellant was following him and called his supervisor, Randi Guzman, at Walgreens for help. Id. at Guzman suggested Ginn turn around and return to the store. Id. Ginn also called a second Walgreens supervisor, Kathy Lange, on his second cell phone simultaneously, and she also advised Ginn to return to the store. Id. at With Appellant directly behind him, Ginn made a U-turn to head back towards Walgreens. Id. at 38. Appellant pulled into the lane next to Ginn and tried to run him off the road. Id. at 39. Ginn told both managers on the phone how Appellant tried to run him off the road. Id. Appellant got closer to Ginn s car and when Ginn would speed up or slow down, Appellant would do the same. Id. at 40. Ginn estimated that Appellant s car was three to four feet away from his 1. Id. While traveling side by side, Appellant s window was all the way down and Ginn s window was four inches down. Id. Appellant yelled out his window at Ginn and said, I ll fucking kill you nigger. Id. Lange was still on the phone with Ginn and overheard what she believed Appellant to say, I m going to f-ing kill you. 3 RR 12. Guzman was still on the second cell phone call with Ginn and overheard what she believed Appellant to say, I m going to kill you nigger. Id. at 29. As Ginn continued to drive he was afraid Appellant was going to run him off the road and kill him. 2 RR 42. Ginn was in fear for his life. Id. at 60, 67. When Ginn came to a red stop light, 1 During an in-court demonstration with a tape measure, Ginn clarified his testimony and said the actual distance between the vehicles was approximately twenty-two inches. 2 RR 83. 2

6 he ran the red light to get away from Appellant. Id. at 41. Ginn returned to the Walgreens store and met with the manager who had notified the police. Id. at 42. The police took Ginn s statement and escorted him home safely. Id. Two days after the incident, Ginn was back at work. Id. at 81. Ginn received several hang up phone calls during his shift. Id. Eventually one phone call was not a hang up, it was a call from Appellant. Id. Ginn answered the phone and Appellant said, You better watch out in the parking lot tonight. Id. at 82. Ginn replied ok and hung up the phone. Id. Ginn told the manager of the conversation and was allowed to leave work early. Id. 3

7 SUMMARY OF THE STATE S ARGUMENTS The evidence is legally sufficient to sustain the jury s verdict because it shows that Appellant threatened to kill Ginn and attempted to run Ginn off the road. Appellant s Contention: STATE S RESPONSE TO APPELLANT S SOLE POINT OF ERROR (Sufficiency of the Evidence) Appellant asserts that the evidence is insufficient because the State failed to prove that Appellant tried to run Ginn off the road. State s Response: The evidence is legally sufficient to sustain the jury s verdict because it shows that Appellant threatened to kill Ginn and attempted to run Ginn off the road. Standard of Review In assessing sufficiency of the evidence, the Court must view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); Brooks v. State, 958 S.W.3d 893, 895 (Tex. Crim. App. 2010). The trier of fact has a duty to resolve conflicts in the testimony, weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. When the record includes conflicting inferences, the Court must presume that the trier of fact resolved the conflicts in favor of the prosecution and therefore defer to that determination. Id. at

8 Arguments & Authorities The evidence is sufficient to support the jury s guilty verdict in this case because Ginn testified he was in fear for his life and believed Appellant was going to run him of the road. Additionally, both Guzman and Lange heard Appellant threaten to kill Ginn. In order to prove terroristic threat, the State must establish beyond a reasonable doubt that the defendant intentionally threatened to commit an offense involving violence to a person and placed that person in fear of imminent serious bodily injury. TEX. PEN. CODE A threat is a declaration of intention or determination to inflict punishment, loss, or pain on another, or to injure another by the commission of an unlawful act. Cook v. State, 940 S.W.2d 344, 347 (Tex. App. Amarillo 1997, pet. ref d) (quoting Black s Law Dictionary 1480 (6th ed. 1990)). In the case at issue, the jury accepted Ginn s account of Appellant s behavior on the night in question and found Appellant guilty of terroristic threat. Ginn testified that he noticed Appellant was right behind him and following him closely. 2 RR 35. Based on the previous altercation at work and Appellant being fired as a result, Ginn was in fear. Id. 36. Ginn testified Appellant drove his car alongside him, within inches of his car, and attempted to run him off the road. Id. at 39, 83. While Ginn was on the phone with both of his managers, Lange and Guzman, Appellant threatened to kill him by stating, I m going to fucking kill you nigger. Id. at 40. That threat was overheard through the phone by both Guzman and Lange. 3 RR 12, 29. Ginn testified he believed Appellant was trying to run him off the road and kill him and that he was in fear for his life. 2 RR 42, 58. 5

9 The trier of fact is the sole judge of the weight and credibility of the evidence. Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App 2008). The Court may not reevaluate the weight and credibility of the evidence and substitute their judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The case of Walker v. State, 327 S.W.3d 790 (Tex. App.-Fort Worth 2010, pet. ref d) is analogous to the case at hand. In Walker, the defendant was charged with terroristic threat against Judge Nekhom, who was presiding over his case, for bowing out his chest in court and saying, Let s do it, Nekhom, It s me and you now. Id. at 792. The Fort Worth Court of Appeals held that Judge Nekhom s testimony that she took the defendant s statement as a threat based on his tone of voice and body language and she was frightened he may injure her was sufficient to uphold the conviction. In Walker, other courtroom observers testified that the defendant was about five feet away from Judge Nekhom, not handcuffed, and looked angry when he made the statement. Id. at 794. Likewise in this case, Appellant had been following Ginn for some time and when he pulled alongside him within inches of his car he made a direct threat to kill him. 2 RR 40. The threat was overheard by both managers through the phone and Ginn told him he believed Appellant was going to run him off the road. Id. at 42, 3 RR 12, 29. Accordingly, the evidence is sufficient to sustain the jury s verdict. See Walker, 327 S.W.3d at Appellant claims that the threat was not imminent because the threat was a conditional threat. Appellant relies upon Bryant v. State, 905 S.W.2d 457 (Tex. App. Waco 1995, pet. ref d.) to support his contention. In Bryant, the defendant stated that if the county commissioner did not grade the road in front of his house he would kick [his] 6

10 god damn ass. Id. at 458. However in the case at hand, there was no condition precedent to the threat Appellant made towards Ginn. In fact, Ginn testified that he believed Appellant was going to run him off the road at any time while he was driving. 2 RR 77. Thus, Bryant is distinguishable. Appellant s arguments to the contrary are not persuasive. Ginn s testimony that Appellant had previously assaulted him, followed him home from work, was driving within inches of his car, and threatened to kill him is sufficient to prove terroristic threat. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense of terroristic threat beyond a reasonable doubt. Thus, Appellant s sole point of error should be overruled. 7

11 PRAYER Appellant s trial was without error and the evidence was sufficient to support the verdict. The State prays that this Court affirm Appellant s conviction and sentence. Respectfully submitted, Greg Willis Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Assistant Criminal District Attorney Chief of the Appellate Division /s/ Zeke Fortenberry Zeke Fortenberry Assistant Criminal District Attorney 2100 Bloomdale Road, Suite 100 McKinney, TX (972) FAX (214) SBN CERTIFICATE OF SERVICE The State has provided a true copy of its brief by first-class mail to counsel for Appellant, Mitch Nolte, 2780 Virginia Pkwy, Suite 401, McKinney TX 75071, on this the 12th day of July /s/ Zeke Fortenberry Zeke Fortenberry 8