IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40393
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
July 13, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-Appellant Robert Alan White appeals his conviction,
pursuant to his guilty plea, of one count of violating 18 U.S.C. §
922(g)(9). He asserts that the count of which he was convicted fails
to state an offense and that his motion to dismiss the superseding
indictment should have been granted. We conclude the count of
conviction does not state an offense because neither of the predicate
1
Circuit Judge of the Ninth Circuit, sitting by designation.
offenses alleged constitutes “a misdemeanor crime of domestic violence,”
under section 922(g)(9), in that neither “has, as an element, the use
or attempted use of physical force, or the threatened use of a deadly
weapon” as required by 18 U.S.C. § 921(a)(33)(A)(ii). We accordingly
reverse and remand.
Facts and Proceedings Below
White was charged in an August 3, 1999, nine count superseding
indictment. Each count charged a violation of 18 U.S.C. § 922(g)(9)2
based on White’s possession on May 3, 1999, in Collin County, Texas, of
a firearm, after having been convicted on August 1, 1994, of two
specified offenses, each asserted to be “a misdemeanor crime of domestic
violence” as defined in 18 U.S.C. § 921(a)(33)(A).3 Each of the nine
2
18 U.S.C. § 922(g)(9) provides:
“(g) It shall be unlawful for any person--
. . .
(9) who has been convicted in any court of a misdemeanor
crime of domestic violence,
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.”
3
18 U.S.C. § 921(a)(33)(A) provides:
“(a) As used in this chapter–
. . .
(33)(A) . . . the term ‘misdemeanor crime of domestic
violence’ means an offense that–
(i) is a misdemeanor under Federal or State law;
and
(ii) has, as an element, the use or attempted use
of physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse,
parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a person
2
counts relies on the same two August 1, 1994, predicate convictions,
which are alleged in paragraphs 1 and 2 of the indictment’s
“introduction,” those paragraphs being incorporated by reference in each
of the nine counts. And, each of the nine counts is otherwise identical
except only that each alleges a different firearm. The indictment’s two
introductory paragraphs are as follows:
“1. On or about August 1, 1994, the Defendant, ROBERT WHITE,
was convicted of the offense of reckless conduct, in
violation of Section 22.05, Texas Penal Code, in Cause No.
2-80456-94, in the County Court at Law Number 2, Collin
County, Texas. Section 22.05(a), Texas Penal Code, as it
existed on August 1, 1994, provided, in part: ‘A person
commits an offense if he recklessly engages in conduct that
places another in imminent danger of serious bodily injury.’
The information on which Defendant, ROBERT WHITE, was
convicted, charged, in part, that the defendant ‘[D]id then
and there recklessly engage in conduct that placed Shaun
O’Neal White in imminent danger of serious bodily injury by
then and there knowingly pointing a firearm at and in the
direction of the said Shaun O’Neal White.’ Defendant, ROBERT
WHITE, was, at the time the offense was committed, the spouse
of Shaun O’Neal White.
2. On or about August 1, 1994, the Defendant, ROBERT WHITE,
was convicted of the offense of terroristic threat, in
violation of Section 22.07, Texas Penal Code, in Cause No.
2-84294-93, in the County Court at Law Number 2, Collin
County, Texas. Section 22.07, Texas Penal Code, as it
existed on August 1, 1994, provided, in part: ‘(a) A person
commits an offense if he threatens to commit any offense
involving violence to any person or property with intent to:
. . . (2) place any person in fear of imminent serious bodily
injury . . .’ The information on which Defendant, ROBERT
WHITE, was convicted, charged, in part, that the defendant
‘[D]id then and there intentionally and knowingly threaten
to commit an offense involving violence to Valerie Martinico,
namely, threatened to kill Valerie Martinico, with intent to
place Valerie Martinico in fear of imminent serious bodily
who is cohabiting with or has cohabited with the victim
as a spouse, parent, or guardian, or by a person
similarly situated to a spouse, parent or guardian of
the victim.”
3
injury.’ Defendant, ROBERT WHITE, was, at the time the
offense was committed, the former spouse of Valerie
Martinico.”
Count 4 of the indictment–the count White was convicted of on his guilty
plea, the other counts being dismissed pursuant to the plea
agreement–reads as follows:
“The Grand Jury realleges paragraphs 1 and 2 of the
Introduction.
On or about the 3rd day of May, 1999, in Collin County,
Texas, in the Eastern District of Texas, ROBERT WHITE,
Defendant herein, having been convicted of a misdemeanor
crime of domestic violence, specifically, 1) Reckless
conduct, in Cause No. 2-80456-94, in the County Court at Law
Number 2, Collin County, Texas, on August 1, 1994, and 2)
Terroristic threat, in Cause No. 2-84294-93, in the County
Court at Law Number 2, Collin County, Texas, on August 1,
1994, did knowingly and unlawfully possess in and affecting
commerce, and receive a firearm, specifically, a Remington
semi-automatic shotgun, Model SP-10 Mag, 10 gauge, displaying
serial number RMO33655, which had been shipped and
transported in interstate commerce, in violation of Title 18,
United States Code, Sections 922(g)(9) and 924(a)(2).”4
On October 20, 1999, White filed an extensive motion to dismiss the
indictment, asserting: that the May 3, 1999, federal search of his
Collin County home during which the nine firearms charged in the
indictment were found was pursuant to an invalid warrant as the warrant
was based on his deposition testimony which was compelled contrary to
his Fifth Amendment rights; that “[t]he alleged prior convictions the
government intends to use to prove its charges are not ‘misdemeanor
crimes of domestic violence’ under section 921(a)(33)(A);” that his
guilty plea, and waiver of jury trial, to the predicate offenses was not
4
As noted, the other eight counts are identical to count 4 except
each of the other eight alleges a different firearm.
4
“knowing and intelligent” as required by 18 U.S.C. § 921(a)(33)(B); that
section 922(g)(9) violated White’s rights under the Second Amendment,
the Due Process Clause of the Fifth Amendment and the Ninth Amendment;
and that section 922(g)(9) violates the Tenth Amendment and exceeds
Congress’s power under the Commerce Clause.
On November 1, 1999, the district court held an evidentiary hearing
on White’s motion to dismiss. It denied the motion in a November 4,
1999, order, without stating reasons. On November 5, 1999, White and
the government executed a plea agreement pursuant to which White agreed
to plead guilty to count 4 and the government agreed to dismiss the
remaining counts (and not to prosecute White for any statements made in
connection with his acquisition of the firearm alleged in count 4).
There was no agreement as to sentence. On the same day, and pursuant
to the written consent of White and the government, the magistrate judge
held a Fed.R.Crim.P. Rule 11 hearing and recommended that White’s plea
be accepted. The district court subsequently adopted the magistrate
judge’s report, and pursuant thereto accepted White’s plea and found him
guilty of count 4.
The evidence at the hearing on the motion to dismiss and at the
Rule 11 hearing reflected the following. White was convicted on August
1, 1994, in the County Court at Law No. 2 of Collin County, Texas, of
one offense of reckless conduct, in violation of Section 22.05(a) of the
Texas Penal Code and of one offense of terroristic threat, in violation
of Section 22.07(a)(2), Texas Penal Code. In each case the conviction
5
was by plea (of guilty to reckless conduct and of no contest to
terroristic threat) to an information alleging that the offense was
committed in Collin County. White was represented by counsel. The
section 22.05(a) information alleged that on July 7, 1993, White did:
“recklessly engage in conduct that placed Shaun O’Neal White in imminent
danger of serious bodily injury by then and there knowingly pointing a
firearm at and in the direction of the said Shaun O’Neal White.” The
section 22.07(a)(2) information alleged that on September 27, 1993,
White did “intentionally and knowingly threaten to commit an offense
involving violence to Valerie Martinico, namely, threatened to kill
Valerie Martinico, with intent to place Valerie Martinico in fear of
imminent serious bodily injury.”
The Rule 11 and motion to dismiss evidence likewise showed that on
July 7, 1993, White and Shaun O’Neal White (the victim named in the
section 22.05(a) charge) were married to each other, and that White had
married Valerie Martinico (the victim named in the section 22.07(a)(2)
charge) in October 1989 and their marriage was annulled in March 1990.
The evidence also showed that on September 14, 1998, White purchased the
firearm alleged in count 4 from a licensed federal firearms dealer in
Garland, Texas, executing an ATF form 4473, that this weapon was
manufactured outside of the state of Texas, and that it (together with
the firearms charged in the other counts) was found in White’s home in
Collin County, Texas, in the search thereof by Federal officers on May
6
3, 1999.5
White was sentenced to forty-one months’ confinement, a $7,500 fine
and three years’ supervised release. He timely brings this appeal.6
Discussion
White raises several contentions on appeal. We consider only the
argument that neither of the two August 1, 1994, predicate convictions
was a conviction of a “misdemeanor crime of domestic violence” under
section 922(g)(9) (see note 2 above) because neither “has, as an
element, the use or attempted use of physical force, or the threatened
5
The evidence on the motion to dismiss reflects that the search
came about in the following manner.
In February of 1999, White was married to Meghan White, but they
were separated and she was in the process of divorcing him. Apparently
in an attempt to obtain leverage against him in the impending battle for
custody of the couple’s son, Meghan contacted the Bureau of Alcohol,
Tobacco and Firearms and informed BATF Special Agent Crossland that
White had been convicted of misdemeanor crimes of domestic violence and
was, therefore, unlawfully in possession of several firearms which he
kept “in a gun safe at his residence.” Crossland conducted a search of
White’s criminal history and found the two August 1, 1994, convictions
alleged in the indictment (he does not mention any others). Crossland
told Meghan that he needed fresher evidence before he could obtain a
search warrant for White’s residence. Meghan then informed Crossland
that, in connection with the divorce, she would soon be deposing White.
Crossland stated that if White were, in this deposition, to openly admit
that he possessed firearms at his residence, Crossland would then have
sufficient cause to obtain a search warrant. Not surprisingly, at the
April 8, 1999, deposition, for which White had been subpoenaed, Meghan’s
attorney asked White (who was also represented by counsel) if he
possessed firearms at his residence. Believing the question to relate
to the safe storage of the weapons, White answered in the affirmative.
As a result, Crossland was able to obtain a search warrant for White’s
residence on April 29, 1999, and it was executed on May 3, 1999.
Government agents confiscated the nine firearms found there which are
alleged in the nine counts of the indictment.
6
The district court ultimately stayed execution of the sentence
pending resolution of this appeal.
7
use of a deadly weapon” against the victim as required by section
921(a)(33)(A)(ii) (see note 3 above).
Because White first advanced this argument on appeal in his reply
brief, we allowed the government to file a supplemental brief in
response. In it, the government urges that White has waived this
argument and that, in any event, the Texas predicate offenses of which
White was convicted each constituted a misdemeanor crime of domestic
violence. We first address the government’s waiver arguments.
I. Waiver
The government offers three bases for finding waiver: 1) White’s
failure to raise the argument in his initial appellate brief; 2) White’s
plea of guilty admitted that the predicate offenses were misdemeanor
crimes of domestic violence; and 3) the provision of the plea agreement
waiving the right to appeal.
The government’s first two grounds for waiver have, in the context
of a challenge to the sufficiency of an indictment, been consistently
rejected by this Court. It is well settled that the “entry of a guilty
plea does not act as a waiver of jurisdictional defects such as an
indictment’s failure to charge an offense” and that the defendant may
raise such failure at any time. United States v. Meacham, 626 F.2d 503,
510 (5th Cir. 1980). See also FED.R.CRIM.P. 12(b)(2); United States v.
Berrios-Centeno, 2001 WL 435494 (5th Cir. Apr. 27, 2001); United States
v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999); United States v.
Marshall, 910 F.2d 1241, 43 (5th Cir. 1990); United States v. Morales-
8
Rosales, 838 F.2d 1359, 1361-62 (5th Cir. 1988); United States v.
Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984). Moreover, we have held
that, notwithstanding an unconditional plea of guilty, we will reverse
on direct appeal where the factual basis for the plea as shown of record
fails to establish an element of the offense of conviction. See, e.g.,
United States v. Johnson, 194 F.3d 657 (5th Cir. 1999), vacated and
remanded, 120 S.Ct. 2193 (2000), prior opinion reinstated with
modification, 246 F.3d 749 (5th Cir. 2001).
Turning to the third basis for waiver, the plea agreement contained
the following provision:
“With the exception of: (a) Sentencing Guidelines
determinations, and (b) issues arising from the Court’s
denial of Defendant’s Motion to Dismiss, Defendant waives any
appeal, including collateral appeal under 28 U.S.C. § 2255,
of any error which may occur surrounding substance,
procedure, or form of the conviction and sentencing in this
case.”
The government accurately points out that White’s motion to dismiss, in
support of its contention that the predicate August 1, 1994, convictions
were not for “misdemeanor crimes of domestic violence,” argued only that
they were not such because neither of the Texas statutes he was
convicted of violating, Texas Penal Code sections 22.05(a) and
22.07(a)(2), made it an element of the offense that the victim had or
had had any marital or other relationship to the defendant,7 and that in
any event Martinico was not within the relationship contemplated by
7
White also raises this contention on the present appeal. We do
not reach it. Nor do we reach any other of White’s contentions raised
on this appeal and not addressed in this opinion.
9
section 921(a)(33)(A)(ii) because his marriage to her had been annulled
years before commission of the predicate offense involving her. The
government also correctly observes that similar plea agreement
provisions are routinely held to deprive appellate courts of
jurisdiction to hear appeals of sentencing issues. See, e.g. United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). The government
cites no authority, and we are aware of none, that holds that a
defendant can waive his substantive right “to be free of prosecution
under an indictment that fails to charge an offense . . . .” United
States v. Meacham, 626 F.2d 503, 509-10 (5th Cir. 1980). The
considerations militating against waiver are particularly forceful
where, as here, the claimed defect in the indictment is not merely a
matter of its omission or misuse of wording but is rather that, as a
matter of law, the indictment itself affirmatively reflects that the
offense sought to be charged was not committed. Without deciding
whether that character of defect is ever waivable in a civilized system
of justice, we conclude that the language of White’s conditional plea
agreement fails to embrace such a jurisdictional defect and, in any
event, is insufficient to accomplish an intelligent waiver of the right
not to be prosecuted (and imprisoned) for conduct that does not violate
the law. We also note in this connection that White preserved his
pretrial motion to dismiss the indictment, and that motion contained an
attack on the sufficiency of the indictment that is related to that we
address herein. We reject the government’s waiver argument, especially
10
since failure to do so risks depriving a person of his liberty for
conduct that does not constitute an offense.
II. Merits
If, as here, the defendant raises a challenge to the indictment for
the first time on appeal and does not assert procedural prejudice, such
as lack of adequate notice of the crime alleged, we read the indictment
with “maximum liberality” and will find it sufficient unless “it is so
defective that by any reasonable construction, it fails to charge the
offense for which the defendant is convicted.” United States v.
Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996) (footnote omitted); see
also United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999).
“The indictment or the information shall be a plain, concise and
definite written statement of the essential facts constituting the
offense charged.” FED.R.CRIM.P. 7(c)(1). “To be sufficient, an
indictment must allege each material element of the offense; if it does
not, it fails to charge that offense. This requirement stems directly
from one of the central purposes of an indictment: to ensure that the
grand jury finds probable cause that the defendant has committed each
element of the offense, hence justifying a trial, as required by the
Fifth Amendment.” Cabrera-Teran, 168 F.3d at 143 (footnotes omitted).
“The starting place for any determination of whether the charged conduct
[is] proscribed by [a criminal] statute is a reading of the language of
the charging instrument and the statute itself.” United States v.
Morales-Rosales, 838 F.2d 1359, 1361 (5th Cir. 1988).
11
White was convicted of violating section 922(g)(9) (see note 2,
supra). That section, by its terms, can be violated only by one “who
has been convicted in any court of a misdemeanor crime of domestic
violence.” Section 921(a)(33)(A) (see note 3 supra) defines
“misdemeanor crime of domestic violence” so that no offense is included
within that definition unless it, inter alia, “has, as an element, the
use or attempted use of physical force, or the threatened use of a
deadly weapon,” against the victim. Count 4 of the indictment (like
each of the other counts) incorporated by reference paragraphs 1 and 2
of the indictment’s introduction, and clearly alleged that the predicate
convictions were the two convictions of August 1, 1994, one for
violation of Texas Penal Code section 22.05(a) and the other for
violation of Texas Penal Code section 22.07(a)(2).
These sections of the Texas Penal Code as in effect August 1,
1994,8 provided as follows:
“Sec. 22.05. Reckless Conduct
(a) A person commits an offense if he recklessly
engages in conduct that places another in imminent danger of
serious bodily injury.
(b) Recklessness and danger are presumed if the actor
knowingly pointed a firearm at or in the direction of another
whether or not the actor believed the firearm to be loaded.
(c) An offense under this section is a Class B
misdemeanor.”
“Sec. 22.07. Terroristic Threat
(a) A person commits an offense if he threatens to
commit any offense involving violence to any person or
property with intent to:
8
Each section has been amended by Acts 1993, 73rd Leg., ch. 900,
§ 1.01, effective September 1, 1994.
12
(1) cause a reaction of any type to his threat by
an official or volunteer agency organized to deal with
emergencies;
(2) place any person in fear of imminent serious
bodily injury; or
(3) prevent or interrupt the occupation or use of
a building; room; place of assembly; place to which the
public has access; place of employment or occupation;
aircraft, automobile, or other form of conveyance; or
other public place; or
(4) cause impairment or interruption of public
communications, public transportation, public water,
gas, or power supply or other public service.
(b) An offense under Subdivision (1) or (2) of
Subsection (a) of this section is a Class B misdemeanor. An
offense under Subdivision (3) of Subsection (a) of this
section is a Class A misdemeanor. An offense under
Subdivision (4) of Subsection (a) of this section is a felony
of the third degree.”9
The question then is whether either of these Texas offenses “has,
as an element,” either “the use or attempted use of physical force” or
“the threatened use of a deadly weapon” against the victim. What the
elements of these Texas offenses are is a question of law which we
review de novo. See, e.g., Salve Regina College v. Russell, 111 S.Ct.
1217 (1991). The elements of the offense are determined by the statute
defining it. See United States v. Deisch, 20 F.3d 139, 143 (5th Cir.
1994); Texas Penal Code § 1.03(a) (“Conduct does not constitute an
9
We take judicial notice of Texas law. See, e.g., Lamar v. Micou,
114 U.S. 218, 5 S.Ct. 857, 859 (1885) (“The law of any state of the
Union, whether depending upon statutes or upon judicial opinions, is a
matter of which the courts of the United States are bound to take
judicial notice, without plea or proof”); Budget Rent-A-Car Corp. v.
Fein, 342 F.2d 509, 514 n.11 (5th Cir. 1965) (“federal courts take
judicial knowledge of the laws, statutory and judicial, of all of the
states. Neither pleading nor proof is required”); J.M. Blythe Motor
Lines Corp. v. Blalock, 310 F.2d 77, 78 (5th Cir. 1962); Gallup v.
Caldwell, 120 F.2d 90, 93 (3d Cir. 1941).
13
offense unless it is defined as an offense by statute, municipal
ordinance, order of a county commissioners court, or rule authorized by
and lawfully adopted under a statute”).
We first consider section 22.05(a), which provides that one
“commits an offense if he recklessly engages in conduct that places
another in imminent danger of serious bodily injury.” This offense does
not require that the perpetrator actually “use” “physical force” against
another (or use it at all).10 Nor does section 22.05(a) require that
there be any “attempted use of physical force.” Attempt necessarily
imports a specific intent.11 However, specific intent is a more culpable
10
Compare Texas Penal Code § 22.01(a):
“(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact
with another when the person knows or should reasonably
believe that the other will regard the contact as offensive
or provocative.”
11
See, e.g., Tex. Penal Code § 15.01(a) (“A person commits an
offense if, with specific intent to commit an offense, he does an act
amounting to more than mere preparation that tends but fails to effect
the commission of the offense intended”); U.S. v. Thompson, 130 F.3d
676, 688 (5th Cir. 1997). See also 21 Am. Jur. 2d Criminal Law § 176:
“Attempt is a specific intent crime. The act constituting
the attempt must be done with the intent to commit that
particular crime. It is the intent to commit the crime, not
the possibility of success, which determines whether the
defendant’s act or omission constitutes the crime of attempt.
Consequently, the defendant must act intentionally, and as
neither negligence nor recklessness includes specific intent,
as required for crime of attempt, there can be no attempt to
accomplish an unintended result.
14
state of mind than recklessness,12 which is all that section 22.05(a)
requires. It is evident that neither “the use . . . of physical force”
nor “the . . . attempted use of physical force” is an element of the
section 22.05(a) offense.
Similarly, “the threatened use of a deadly weapon” against the
victim is not an element of the section 22.05(a) offense. The provision
of section 22.05(b) that “[r]ecklessness and danger are presumed if the
actor knowingly pointed a firearm at or in the direction of another
whether or not the actor believed the firearm be loaded” does not make
“threatened use of a deadly weapon” an element of the offense. To begin
with, “this provision . . . is not a required element of . . . [the
offense], [but] only a permissive means by which to trigger a
presumption of recklessness.” Hirad v. State, 14 S.W.3d 351, 352 n.1
(Tex. App.--Hou. [14th Dist.] 2000, p.d.r. ref’d). See also Kingsbury
. . . Implicit in the meaning of attempt is the
will of the actor to accomplish the act attempted;
there is no such thing as attempted negligence or
attempted recklessness. To establish an attempt,
the state must thus prove that the defendant acted
with the culpability required.”
Id. at 251 (footnotes omitted).
12
See Tex. Penal Code § 6.02(d):
“(d) Culpable mental states are classified according to
relative degrees, from highest to lowest, as follows:
(1) intentional;
(2) knowing;
(3) reckless;
(4) criminal negligence.”
15
v. State, 14 S.W.3d 405, 409 (Tex. App. Waco, 2000) (section 22.05(a)
has “no requirement that a deadly weapon was used”).13 Moreover,
“knowingly pointing a firearm at or in the direction of” an individual,
as referenced in section 22.05(b), is not the same as having “threatened
use of a deadly weapon” against that individual as provided in section
921(a)(33)(A). This lack of equivalence is evident from the fact that
Texas Penal Code §§ 22.01(a)(2) (see note 10 supra) and 22.07(a) each
explicitly contain the element “threatens,” but section 22.05 does not
mention “threatens” (or “threat” or “threaten”) or any synonym thereof.
A threat imports “[a] communicated intent to inflict physical or other
harm” and is “distinguished from words uttered as mere . . . idle talk
or jest.” Black’s Law Dictionary (6th ed. 1990) at 1480. See also
United States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983) (threat
must be “a serious one, not uttered in jest, idle talk, or political
argument”); 31A Am. Jur. 2d Extortion, Blackmail, Threats § 63 (threat
must be communicated), § 67 (“idle talk or jests which do not have a
reasonable tendency to create apprehension that the speaker will act
according” thereto are not threats); Brown v. State, 154 S.W.2d 464, 465
13
Under Texas Penal Code § 2.05(1) “if there is sufficient evidence
of the facts that give rise to the [statutory] presumption” then “the
existence of the presumed fact must be submitted to the jury, unless the
court is satisfied that the evidence as a whole clearly precludes a
finding beyond a reasonable doubt of the presumed fact.” If the
presumed fact is submitted to the jury, it “shall” be instructed that
if “the facts giving rise to the presumption” “are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find.” Id. §
2.05(2). This instruction must be given respecting the § 22.05(b)
presumption. Hendley v. State, 649 S.W.2d 105 (Tex. App. Tyler, 1983).
16
(Tex. Crim. App. 1941) (threat must be “seriously made”).14 Knowingly
pointing a firearm in the direction of an individual when done in
obvious jest would not necessarily constitute threatened use of the
weapon, even though the pointing might actually place the individual in
imminent danger of serious bodily injury. Certainly, to convict under
section 22.05(a)–or to invoke the section 22.05(b) presumption–the trier
of fact would not be required to find that by knowingly pointing the
weapon the defendant “threatened use” of it against the victim. It is
plain, then, that section 22.05(a) does not have “as an element” that
the defendant “threatened use of a deadly weapon” against the victim.
In sum, a conviction for violating section 22.05(a) is not a
conviction of a “crime of domestic violence” for purposes of section
922(g)(9) because section 22.05(a) is not “an offense that . . . has,
as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon,” against the victim, as required by
section 921(a)(33)(A).
We turn now to the remaining purported crime of domestic violence
alleged in the indictment, namely the conviction for violation of
section 22.07(a)(2). This offense is committed if the defendant
“threatens to commit any offense involving violence to any person or
14
While under Texas law “[a] threat can be communicated by action
or conduct as well as words,” Horn v. State, 647 S.W.2d 283, 284 (Tex.
Crim. App. 1983), nevertheless there must be some communication of the
threat. McGowan v. State, 664 S.W.2d 355, 357-58 (Tex. Crim. App.
1984); Benjamin v. State, 621 S.W.2d 617, 619 (Tex. Crim. App. 1981);
Mitchell v. State, 543 S.W.2d 637 (Tex. Crim. App. 1976).
17
property with intent to . . . place any person in fear of imminent
serious bodily injury.” Id. The offense does not have as an element
“the use or attempted use of physical force.” Obviously, section
22.07(a)(2) does not require actual “use” of physical force, but only
threatened use (of violence). It may be committed by leaving a verbal
message on a telephone answering machine. Cook v. State, 940 S.W.2d 344
(Tex. App.-Amarillo 1997, p.d.r. ref’d). Nor does section 22.07(a)(2)
require the “attempted use of physical force.” Attempt requires an
intent to commit the attempted act and a substantial step, beyond mere
preparation, toward committing it. United States v. Thompson, 130 F.3d
676, 688 (5th Cir. 1997); 21 Am. Jur. 2d Criminal Law §§ 176, 177. By
contrast, “it is immaterial to the” section 22.07(a)(2) “offense whether
the accused had the capability or the intention to carry out his
threat,” and “it is not necessary that the victim or anyone else was
actually placed in fear of imminent serious bodily injury.” Dues v.
State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982); Cook at 347. Nor
does section 22.07(a)(2) have as an element “the threatened use of a
deadly weapon.” Nothing in section 22.07(a) even mentions a weapon (or
any synonym thereof), much less a deadly weapon.15
Because section 22.07(a)(2) is not “an offense that . . . has as
an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon” against the victim, as required by
15
Compare Texas Penal Code § 22.02(a)(2) (a person commits
aggravated assault if he “uses or exhibits a deadly weapon during the
commission of the assault”).
18
section 921(a)(33)(A), it is not a crime of domestic violence for
purposes of section 922(g)(9).
Conclusion
Because the indictment on its face reflects as a matter of law that
neither of the only two predicate offenses alleged in the count of
conviction for violating section 922(g)(9) was a “crime of domestic
violence” as required by that section and section 921(a)(33)(A), White’s
conviction is reversed and the cause is remanded for proceedings
consistent herewith.
REVERSED and REMANDED
19