in the Matter of R.D.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00115-CV
IN THE MATTER OF R.D.
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-101033-14
----------
OPINION
----------
I. INTRODUCTION
R.D., a juvenile, appeals an order of adjudication and disposition in which
R.D. was found to have engaged in delinquent conduct and placed on probation
for one year. Among other findings, the trial court found that R.D. had committed
the offense of exhibition of a firearm on school property by threat. In one point,
R.D. argues the evidence is insufficient to support the trial court’s exhibition-of-a-
firearm finding. We will affirm.
II. BACKGROUND
Darryl Brown, a teacher for the Fort Worth Independent School District,
testified at the adjudication hearing that on October 16, 2014, he was serving as
an on-campus intervention teacher, supervising students “who have behavior
problems.” According to Brown, the campus police officer, Deautric Sims,
brought R.D. to his classroom. Brown said that Sims held R.D. by “both of his
arms” as he brought him to the class and that R.D. declared to Sims, “I’m going
to get you. I’m going to kill you.” Brown testified that Sims “set [R.D.] down and
then . . . left.” Brown averred that after Sims left, R.D. continued with his
declarations by stating, “I swear on my momma. I’m going to bring something
here, bring a gun here and kill him.” Brown said that he told R.D., “Son, you
don’t want to say that.” According to Brown, another student also stated to R.D.,
“No, man. You don’t want to say that.” Brown said that R.D.’s response was to
continue making statements that he was going to “get” Sims and that R.D. then
left the room. Brown said that R.D. ignored his repeated instruction to come
back.
Brown said that he is required to report all threats, so he reported this
incident to the assistant principal. In his report, Brown recalled that R.D. had
stated, “I swear on my momma, you know. I’m going to bring a gun here. I’m
going to shoot this place up. I’m going to kill that man.” Brown said that although
Sims heard R.D.’s initial statement that he was going to kill Sims, Sims was not
present in the room when R.D. stated that he was going to bring a gun to school
2
in order to do so. Brown averred that he was not afraid of R.D. and that he did
not know whether R.D. was carrying a weapon when he made his declarations.
R.D. testified that on the day in question, Sims had taken him to the on-
campus intervention room in error. By R.D.’s account, Sims had “said [he] was
skipping” class, but he was not. R.D. said that Sims had restrained him by his
arms and that Sims and “[t]he lunch ladies” were laughing at him. R.D. said that
Sims’s conduct upset him and that he began to cry. R.D. said that he never
threatened Sims to his face and that he never said that he was going to bring a
gun to school or that he was going to kill Sims; rather, R.D. said that he declared
that he was going to tell his dad and uncle to come to school and fight Sims.
R.D. averred that he did not have access to a gun and that he never intended for
his comments to be heard by Sims. When asked why Brown said that R.D. had
threatened to bring a gun to school and shoot Sims, R.D. said that Brown had
“heard [him] wrong.”
Based on the evidence presented regarding the threat charge, and based
on stipulated-to evidence regarding charges of criminal trespass and failure to
identify that the State had also alleged as delinquent conduct, the trial court
adjudicated R.D. delinquent. After a disposition hearing, the trial court placed
R.D. on probation for one year. This appeal followed.
III. DISCUSSION
In one point, R.D. argues that the evidence is insufficient to support the
trial court’s finding that he intended to alarm Sims when he threatened to bring a
3
gun to school and shoot him. Specifically, R.D. argues that the evidence is
insufficient to show that he intended to carry out his threat and that the evidence
demonstrates that Sims was not present to hear R.D.’s threat to bring a gun to
school and shoot him.
The State argues that Sims’s presence was not necessary to prove that
R.D. intended to alarm Sims and that when taking R.D.’s words in context, the
evidence supports the trial court’s finding that R.D. made his threats intending to
alarm Sims. We agree with the State.
A. Standard of Review in Juvenile Proceedings
Although juvenile proceedings are civil matters, the standard applicable in
criminal matters is used to assess the sufficiency of the evidence underlying a
finding that the juvenile engaged in delinquent conduct. In re R.R., 373 S.W.3d
730, 734 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); In re A.O., 342
S.W.3d 236, 239 (Tex. App.—Amarillo 2011, pet. denied). According to that
standard, in our due-process review of the sufficiency of the evidence to support
a conviction, we view all of the evidence in the light most favorable to the verdict
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
4
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
We measure the sufficiency of the evidence by the elements of the offense
as defined by the hypothetically correct jury charge for the case, not the charge
actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“[T]he essential elements of
the crime are determined by state law.”). Such a charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for
5
which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized
by the indictment means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging
instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)
(“When the State pleads a specific element of a penal offense that has statutory
alternatives for that element, the sufficiency of the evidence will be measured by
the element that was actually pleaded, and not any alternative statutory
elements.”).
B. Evidence Supports the Trial Court’s Finding
Under the Texas Education Code’s “Exhibition of Firearms” statute, a
person commits an offense if, in “a manner intended to cause alarm or personal
injury to another person or to damage school property, the person intentionally
exhibits, uses, or threatens to exhibit or use a firearm” on school property. Tex.
Educ. Code Ann. § 37.125(a) (West 2007). Intent may be inferred from
circumstantial evidence such as acts, words, and the conduct of the appellant.
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
In this case, the State specifically pleaded that R.D. intended to cause
alarm to Sims when he threatened to bring a gun to school and shoot him. Thus,
the law authorized by the State’s charging instrument, as modified by the factual
details pleaded by the State, required the State to prove that R.D. intended to
6
cause alarm to Sims when he declared that he was going to bring a gun to
school to “shoot this [school] up” and kill Sims. See Rabb, 434 S.W.3d at 616.
1. Whether R.D. Had the Capacity to Carry Out His Threat
In part of his sole point, R.D. argues that there is no evidence to support a
finding that R.D. intended to or was capable of carrying out his threat to bring a
gun to school and shoot Sims. But “it is immaterial to [a threat] offense whether
the accused had the capability or the intention to carry out his threat.” Walker v.
State, 327 S.W.3d 790, 794 (Tex. App.—Fort Worth 2010, no pet.) (citing Dues v.
State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982)). Thus, we overrule this
portion of R.D.’s point.
2. Whether R.D. Intended to Alarm Sims
In the remainder of his sole point, R.D. cites cases dealing with assault by
threat and robbery by threat and argues that because “Sims was not present
when” R.D. made his threat, there is insufficient evidence to support the trial
court’s finding that he intended to alarm Sims. See Boston v. State, 410 S.W.3d
321, 326 (Tex. Crim. App. 2013) (analyzing robbery by threat); Olivas v. State,
203 S.W.3d 341, 345–46 (Tex. Crim. App. 2006) (analyzing assault by threat).
The State counters that exhibition of firearms is more akin to terroristic threat
than other threat offenses and offers two example cases regarding terroristic
threat in which the complainant did not immediately perceive the threat. See
Zorn v. State, 222 S.W.3d 1, 3 (Tex. App.—Tyler 2002, pet. dism’d) (holding that
terroristic threat “does not require the victim or anyone else to be actually placed
7
in fear of imminent serious bodily injury”); Cook v. State, 940 S.W.2d 344, 349
(Tex. App.—Amarillo 1997, pet. ref’d) (“[I]t is of no consequence whether the
[threat] was heard live, or recorded and heard later.”).
Like R.D. and the State, this court has found no case analyzing the
education code’s exhibition-of-firearms statute. We agree, however, that the
exhibition-of-firearms statute is similar to the terroristic threat statute in that both
statutes require that there be a threat and the intent to place another in a
disturbed state of mind. Compare Tex. Penal Code Ann. § 22.07 (West 2011)
(terroristic threat) with Tex. Educ. Code Ann. § 37.125(a) (exhibition of firearm by
threat). That is, much like the terroristic threat offense element that the action
intend to place another “in fear of imminent serious bodily injury” by a threat, the
exhibition-of-firearms statute requires that the threat be made in such a manner
that it intends to “alarm” another. Tex. Educ. Code § 37.125(a); Tex. Penal Code
Ann. § 22.07.
Viewing the evidence in the light most favorable to the trial court’s finding,
we determine that a reasonable inference from the cumulative force of the
evidence supports the trial court’s finding that R.D. intended to alarm Sims when
he repeatedly stated that he was going to “kill” Sims by bringing a gun to the
school grounds and “shoot” him. Indeed, a reasonable inference to be drawn
from R.D.’s comments is that he was angry with Sims because Sims had brought
him to the detention hall in a manner that R.D. testified had upset him and
caused him to cry. Brown testified that R.D. told Sims directly, “I’m going to kill
8
you.” Further, despite both a teacher and fellow student expressing to R.D. that
he should not make such threatening statements, R.D. persisted in his
statements that he was going to “get” Sims and that he was going to do so by
bringing a gun to school to shoot him. R.D. followed his statements by leaving
the classroom and ignoring Brown’s pleas for him to return.
R.D.’s statements, coupled with the fervor in which he repeated them,
followed by his flight from the classroom despite instruction that he return, give
rise to a reasonable inference that he knew his actions and words would be
communicated to Sims, the on-campus police officer. Thus, it is a reasonable
inference that R.D. intended that his threats would be conveyed to Sims and that
they were intended to cause alarm to Sims. Cf. In re C.S., 79 S.W.3d 619, 622
(Tex. App.—Texarkana 2002, no pet.) (holding evidence sufficient to support
adjudication of juvenile for terroristic threat where evidence demonstrated that
juvenile stated to multiple school employees that he was “going to blow up the
school” because he believed that teachers had mistreated him and that evidence
supported finding that he intended to prevent or interrupt the occupation of a
building, room, or place of assembly).
While R.D. may be correct that it is also a reasonable inference that he
never intended that Sims learn of his threats, we must resolve the conflict in
these reasonable inferences in favor of the trial court’s finding. Jackson, 443
U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170. Thus, we overrule the
remainder of R.D.’s sole point.
9
IV. CONCLUSION
Having overruled R.D.’s sole point on appeal, we affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: February 11, 2016
10