United States v. Felmo Hardeman , 449 F. App'x 408 ( 2011 )

Case: 10-51104 Document: 00511663269 Page: 1 Date Filed: 11/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 11, 2011
No. 10-51104
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FELMO JAMES HARDEMAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CR-108-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Felmo James Hardeman appeals his jury trial
conviction under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, for making
a terroristic threat against a customer service representative of the Social
Security Administration (SSA) in violation of Texas Penal Code § 22.07.
Hardeman does not dispute that after his interview with the representative had
ended, he told the representative, “I’ve got that gun waiting for you. I’ve got that
gun.” Rather, Hardeman contends that the evidence was insufficient to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-51104
demonstrate that he threatened the representative with serious bodily injury
that was imminent and that his statement to the representative was a threat.
Hardeman also claims that the prosecution committed misconduct during closing
arguments by misstating the law on “imminence.”
The ACA pertains to offenses committed within the special and maritime
territorial jurisdiction of the United States, as defined by 18 U.S.C. § 7, see § 13,
and provides a set of criminal laws for federal enclaves by using the penal laws
of the states. United States v. Brown, 608 F.2d 551, 553 (5th Cir. 1979). Under
Texas law, Hardeman is guilty of making a terroristic threat if he threatened to
commit any offense involving violence to any person or property with intent to
place any person in fear of imminent serious bodily injury. See TEX. PENAL CODE
ANN. § 22.07(a)(2) (West 2005). Imminent means “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) (internal quotation marks and citation omitted).
Hardeman’s assertion that the evidence was insufficient to show that any
threat of serious bodily injury was imminent is without merit. The jury heard
testimony that (1) Hardeman had previously stated to a different representative,
“What do I have to do? Bring a pistol in here for you people”; (2) in the past and
on the day of the underlying statement, Hardeman was aggressive, violent, and
loud; (3) just prior to making the underlying statement, Hardeman had reached
into a very large bag numerous times; and (4) while in the process of being
escorted out of the building, Hardeman walked to an area behind the
representative, then returned and made the above-quoted statement. After
Hardeman made the statement, other patrons of the SSA were fearful and
moved as far away from him as possible. Finally, the representative testified
that he perceived Hardeman’s statement as a threat of imminent serious bodily
injury. See Stults v. State, 23 S.W.3d 198, 205 (Tex. App. 2000) (stating that the
focus of the inquiry should be whether the complainant was afraid of imminent
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No. 10-51104
serious bodily injury at the time of the offense). Viewing the evidence in the
light most favorable to the jury’s verdict, see United States v. Resio-Trejo, 45 F.3d
907, 910, 911 (5th Cir. 1995), we conclude that a rational jury could have found
beyond a reasonable doubt that Hardeman threatened the representative with
bodily injury that was near at hand, mediate, impending, or on the point of
happening. See id.; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Hardeman’s claim that the evidence was insufficient to prove that any
statement he made was a threat is likewise meritless. As Hardeman did not
specifically object to the sufficiency of the evidence to prove this element, our
review is limited to determining whether there was a manifest miscarriage of
justice, “that is, whether the record is devoid of evidence pointing to guilt.”
United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation
marks and citation omitted). Based on the testimony cited above, the record is
not devoid of evidence that Hardeman threatened the representative with
imminent bodily injury. See id.; see also Walker, 327 S.W.3d 790, 793-95 (Tex.
App. 2010) (holding that the statement, “Let’s do it, [Judge] Nekhom. It’s me
and you now,” was a threat to commit serious bodily injury based on the
defendant’s aggressive behavior, tone, and demeanor at the time of the
statement and based on the fact that the judge perceived the statement as a
threat).
Finally, Hardeman’s contention that the prosecution committed
misconduct by misstating the law on “imminence” is unpersuasive. Even
assuming arguendo that the prosecution’s remarks were improper, Hardeman
has nevertheless failed to establish, based on the foregoing testimony, that “the
prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.”
United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007) (internal quotation
marks and footnote citation omitted).
Accordingly, the judgment of the district court is AFFIRMED.
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