Brandon Laray Galloway v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00093-CR
BRANDON LARAY GALLOWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Hunt County, Texas
Trial Court No. CR1201889
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Brandon Laray Galloway was charged by information with the offense of terroristic
threat. See TEX. PENAL CODE ANN. § 22.07(a)(2) (West 2011). The jury found Galloway guilty
and assessed punishment at 280 days’ confinement in the Hunt County Jail and assessed a fine of
$3,000.00. On appeal, Galloway challenges the legal sufficiency of the evidence to support his
conviction. We affirm the judgment of the trial court.
I. Background
In May 2012, nineteen-year-old LaQuintin Heard shared an apartment with his mother,
Tahisa Heard. Galloway, Tahisa’s boyfriend, frequented the Heard home. On the morning of
May 27, a dispute erupted between Tahisa and Galloway when Tahisa asked Galloway to stop
drinking. When Galloway refused, Tahisa grabbed the bottle from which Galloway had been
drinking and began pouring it out. Galloway became angry and tore Tahisa’s diploma in half.
At that point, Tahisa called the police.
Hearing the commotion, LaQuintin came in the room and stood behind his mother, telling
Galloway not to hit Tahisa. When Galloway and LaQuintin exchanged heated words, Tahisa
stepped between them to avoid a physical confrontation. At that point, Galloway struck Tahisa
in the chest. 1 Galloway said he was going to “do something” to LaQuintin, and Tahisa believed
Galloway was going to “get at” her son. Tahisa also testified that LaQuintin picked up a bat
after Galloway hit her but did not strike Galloway with the bat.
1
Tahisa signed an affidavit of nonprosecution in June 2012, approximately one week after the incident. The
affidavit indicated that Galloway did not physically touch her on the date in question. She testified that she signed
the affidavit without having read it. Tahisa did not write the affidavit.
2
LaQuintin testified that on the morning of May 27, 2012, Galloway and his daughter
were at the apartment LaQuintin shared with his mother. Galloway was very drunk that morning
when Tahisa and Galloway began arguing. A few minutes after the argument began, LaQuintin
heard Galloway saying “[H]e -- like he would, like, kill us. . . . I thought he was going to, you
know, do something. And I thought he was going to hurt us, so I had my bat to protect us.” 2
LaQuintin told Galloway to get out of the house “before I end up hitting you.” LaQuintin then
stood between Galloway and Tahisa, at which point Galloway said, “I’ll kill you and your son.”
At some point during the dispute, Tahisa called the police, who arrived minutes later.
Officer Larry Henderson was the first to arrive on the scene. As he approached Tahisa’s
apartment, Henderson heard yelling and screaming. The scene was chaotic when Henderson
entered the apartment—LaQuintin was holding a bat, and everybody was screaming. Henderson
ordered LaQuintin to drop the bat and then separated Tahisa and Galloway.
Henderson described Tahisa and LaQuintin as “scared and upset.” Tahisa, holding her
chest and shaking, informed Henderson that Galloway struck her in the chest with a closed fist.
LaQuintin told Henderson that Galloway threatened to kill him. Galloway was arrested at the
scene. When arrested, Galloway became hostile and began yelling and making threats.
II. Standard of Review
In evaluating legal sufficiency, we review all of the evidence in the light most favorable
to the jury’s verdict to determine whether any rational jury could have found the essential
elements of terroristic threat beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912
2
LaQuintin explained that he kept the bat in the closet downstairs.
3
(Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency under the
direction of the Brooks opinion, while keeping in mind that the credibility of witnesses is the sole
province of the jury and that we “must give deference to ‘the responsibility of the trier of fact to
fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.’” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(quoting Jackson, 443 U.S. at 318–19); Ehrhardt v. State, 334 S.W.3d 849, 857 (Tex. App.—
Texarkana 2011, pet. ref’d).
III. Analysis
Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the defendant was
tried.” Id.A person commits the offense of terroristic threat if “he threatens to commit any offense
involving violence to any person or property with the intent to . . . (2) place any person in fear of
imminent serious bodily injury.” TEX. PENAL CODE ANN. § 22.07(a)(2); Barnett v. State, 344
S.W.3d 6, 15 (Tex. App.—Texarkana 2011, pet. ref’d). Here, the information charged that
Galloway threatened “to commit an offense involving violence to a person, namely, threat, with
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intent to place Laquintin Heardin [sic] fear of imminent serious bodily injury, and said conduct
of the defendant constituted family violence.” 3
Once the defendant makes a threat to commit a violent offense seeking the desired
reaction of placing the victim in fear of imminent serious bodily injury, the offense of terroristic
threat is completed. Dues v. State, 634 S.W.2d 304, 306 (Tex. Crim. App. [Panel Op.] 1982);
Walker v. State, 327 S.W.3d 790, 794 (Tex. App.—Fort Worth 2010, no pet.). The commission
of this offense does not require that the victim actually be in fear of imminent serious bodily
injury or that the defendant have the capability or intention to actually carry out the threat of
violence. Dues, 634 S.W.2d at 305; Phillips v. State, 401 S.W.3d 282, 293 (Tex. App.—San
Antonio 2013, pet. ref’d). The requisite intent can be inferred from the acts, words, and conduct
of the accused. Phillips, 401 S.W.3d at 293.
Galloway contends the evidence here is unclear and conflicting. On the contrary,
LaQuintin’s testimony is quite clear. He testified that as he was trying to step between his
mother and Galloway, Galloway threatened to kill him as well as Tahisa. Officer Henderson
testified that when interviewing LaQuintin shortly after the confrontation, LaQuintin told him
that Galloway threatened to kill him. When Henderson arrived on the scene, Tahisa and
LaQuintin were “scared and upset.” Galloway was agitated and became hostile and threatening
when he was arrested.
3
A terroristic threat involving family violence is a Class A misdemeanor, whereas an offense under Section
22.07(a)(2) is a Class B misdemeanor. TEX. PENAL CODE ANN. § 22.07(c)(1) (West 2011).
5
Galloway further contends that there is no evidence that he intended to place LaQuintin
in fear of imminent serious bodily injury. In gauging imminence, we must look to the proximity
of the threatened harm to the condition. See Williams v. State, 194 S.W.3d 568, 575 (Tex.
App.—Houston [14th Dist.] 2006), aff’d, 252 S.W.3d 353 (Tex. Crim. App. 2008). “Imminent”
means “‘[n]ear 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) (quoting BLACK’S LAW DICTIONARY 676 (rev. 5th ed. 1979)); Cook
v. State, 940 S.W.2d 344, 347 (Tex. App.—Amarillo 1997, pet. ref’d). Here, the threat of harm
was not conditioned on the occurrence of any future event 4 and was not phrased in terms of
“might” or “may.” Galloway, standing just inches from LaQuintin in the midst of a heated
argument, told LaQuintin that he would kill him, a statement threatening imminent serious
bodily injury.
Since intent can be inferred from words, acts, and conduct, a rational jury could
reasonably find—based on the threat to kill, Galloway’s hostile and threatening attitude, and the
fact that LaQuintin was scared and upset when officers arrived—that Galloway intended to put
LaQuintin in fear of imminent serious bodily injury. Viewing all the evidence in the light most
favorable to the prosecution, we hold that a rational fact-finder could have found the essential
elements of the offense of terroristic threat beyond a reasonable doubt. See Jackson, 443 U.S. at
319. The evidence is legally sufficient to support the conviction.
4
Even a threat of harm conditioned on the occurrence or nonoccurrence of a future event does not necessarily mean
the threat is not imminent. Cook, 940 S.W.2d at 348.
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IV. Conclusion
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: November 26, 2013
Date Decided: December 11, 2013
Do Not Publish
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