Afhami, Mahmoud

PD-0399-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/1/2015 6:58:44 PM
Accepted 6/2/2015 4:51:29 PM
PD-0399-15 ABEL ACOSTA
CLERK

COURT OF CRIMINAL APPEALS OF TEXAS
_______________________________________

MAHMOUD AFHAMI,
Appellant,

VS.

THE STATE OF TEXAS,
Appellee.
__________________________________________________________________

On Petition for Discretionary Review from the Fourteenth Court of Appeals in
Cause No. 14-13-01013-CR, affirming the conviction in Cause No. 1892708,
In County Criminal Court at Law Number 13 of Harris County, Texas
__________________________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas

BOB WICOFF
Assistant Public Defender
Harris County, Texas
TBN 21422700
1201 Franklin, 13th floor
June 2, 2015
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
bwicoff@pdo.hctx.net

Counsel for Appellant

i
 IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Court Judge: Hon. Don Smyth
County Criminal Court No. 13
Harris County, Texas
1201 Franklin Street, 11th floor
Houston, Texas 77002

Parties to the Judgment: Mahmoud Afhami
The State of Texas

Names and addresses of trial counsel (State): Bryan Acklin
Travis Dunlap
Assistant District Attorneys
Harris County, Texas
1201 Franklin Street, 6th floor
Houston, Texas 77002

Name and address of trial counsel (Defense): Jed Silverman
Attorney at Law
1221 Studewood
Houston, Texas 77008

Counsel on appeal for the State of Texas: Melissa P. Hervey
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th floor
Houston, Texas 77002

Counsel on appeal for the Appellant: Bob Wicoff
Franklin Bynum1
Assistant Public Defenders
Harris County, Texas
1201 Franklin Street, 13th floor
Houston, Texas 77002

1
Mr. Bynum represented the Appellant at the Fourteenth Court of Appeals, as an assistant public
defender, but is now in private practice. Bob Wicoff now represents the Appellant in his Petition
for Discretionary Review.
i
 TABLE OF CONTENTS

PAGE

Identity of Judge, Parties and Counsel: i

Table of Contents: ii

Index of Authorities: iii

Statement Regarding Oral Argument: iv

Statement of the Case: iv

Statement of Procedural History: iv

Ground for Review: v

The court of appeals erred in concluding without analysis that there had been
an effective abandonment of allegations in the charging instrument by the
State.

Argument Under Ground for Review: 1

Prayer for Relief: 6

Certificate of Service: 7

Certificate of Compliance: 7

Appendix (Afhami v. State): appendix

ii
 INDEX OF AUTHORITIES

PAGE
Cases

Afhami v. State, No. 14-13-01013-CR, 2015 WL 1246775
(Tex. App.-Houston [14th Dist.] March 17, 2015, no pet. h.).

Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014) ........................................................ 6

Statutes and Rules

Tex. Penal Code Ann., sec. 22.07(a)(2) ..…….……………………………………… iv

Other Authority

George E. Dix & John M. Schmolesky, 42 Texas Practice and Procedure ........................... 8
Sec. 26.74 (3rd ed. 2011)

iii
 STATEMENT REGARDING ORAL ARGUMENT

Appellant waives oral argument. The issue presented in this petition can be

thoroughly presented through briefing by the parties.

STATEMENT OF THE CASE

The Harris County District Attorney’s Office filed a misdemeanor information

on April 29, 2013, alleging that appellant committed the offense of terroristic threat.

See Tex. Penal Code Ann., § 22.07(a)(2)(C.R. at 35). The offense was alleged to have

occurred on or about March 30, 2013. On October 23, 2013, appellant pled not guilty

and the case proceeded to a jury trial (4 R.R. at 5). On October 25, 2013, the jury

found appellant guilty as charged in the information (6 R.R. at 99). The jury imposed a

sentence of no jail time and a $3,000.00 fine (7 R.R. at 9). Appellant filed a motion for

new trial on November 25, 2013, which the trial court denied on January 8, 2014 (C.R.

at 78, 85).

STATEMENT OF PROCEDURAL HISTORY

On March 17, 2015, in an unpublished memorandum opinion, the Fourteenth

Court of Appeals affirmed appellant’s conviction, but reformed the judgment to

reflect that the jury assessed punishment in the case. Afhami v. State, No. 14-13-01013-

CR, 2015 WL 1246775 (Tex. App.-Houston [14th Dist.] March 17, 2015, no pet. h.).

This Court has extended the time to file the Appellant’s Petition for Discretionary

Review until June 1, 2015, which is the date that this document is being e-filed.

iv
 GROUND FOR REVIEW
The court of appeals erred in concluding without analysis that there had
been an effective abandonment of allegations in the charging instrument
by the State.

v
 ARGUMENT UNDER GROUNDS FOR REVIEW

A. The pleading, the jury charge, and the charge conference

The misdemeanor information in this case alleges, in relevant part, that:

“…MAHMOUD AFHAMI, hereafter styled the Defendant,
heretofore on or about March 30, 3013, did then and there unlawfully
threaten to commit an offense involving violence, namely
AGGRAVATED ASSAULT WITH A DEADLY WEAPON upon a
member of the Defendant’s family, namely, FERDOUS
ABDOLLAHZADEH, HEREINAFTER CALLED THE
COMPLAINANT with the intent to place the Complainant in fear of
imminent serious bodily injury.” (C.R. at 35).

The application paragraph of the court’s charge stated as follows:

“Now, therefore, if you find from the evidence beyond a
reasonable doubt that the defendant, MAHMOUD AFHAMI, on or
about March 30, 2013, in Harris County, Texas, did then and there
unlawfully threaten to commit an offense involving violence, namely,
assault upon a member of the defendant’s family, namely, FERDOUS
ABDOLLAHZADEH, hereinafter called the Complainant, with the
intent to place the Complainant in fear of serious bodily injury, then you
will find the defendant guilty.” (C.R. at 50).

From the above, it is clear that what was alleged in the charging instrument,

viz., a threat to commit aggravated assault with a deadly weapon, was not what the jury

was later authorized to convict upon, which was simply a threat to commit an assault.

At the charge conference, the defense complained about the lesser burden that

had been embodied in the charge, arguing that “(the jury charge is) broadening the

State’s ability to prove the case; and it’s a variance from the complaint…or from the

Information.” (6 R.R. at 53). The trial court replied that the charge was “extremely

awkwardly pled.” (6 R.R. at 53). At this point the prosecutor asked the trial court if it

-1-
would consider “the abandonment of the aggravated assault with a deadly weapon and

just leave it at assault” (6 R.R. at 54). Initially, the trial court refused (6 R.R. at 54).

The State persisted in moving to abandon the allegation of an aggravated assault and

the requirement that they prove a deadly weapon. The defense argued that the State

had “made a specific tactical decision” in charging the case with the allegation that the

appellant had threatened aggravated assault with a deadly weapon (6 R.R. 60-63).

The trial court, stating that “the State was probably a little overzealous in

drafting this pleading,” then changed its mind and ostensibly allowed the State to

strike the “deadly weapon” and “aggravated assault” requirements in the charge, with

the result that the State was only required to prove that the Appellant threatened an

“assault” (6 R.R. at 65-66).

B. The opinion of the Fourteenth Court of Appeals

The court of appeals addressed the Appellant’s complaint as follows:

“In his first issue, appellant’s sole complaint is that the jury charge
permitted conviction for an offense that was not authorized by the
information because the offense submitted in the charge differed from
the offense alleged in the information.
As appellant asserts, the information as originally written alleged
the threatened “offense involving violence” was aggravated assault with
a deadly weapon whereas the application paragraph of the charge
required the jury to find the threatened “offense involving violence” was
merely assault. However, appellant ignores that, before submission of
the case to the jury, the trial court permitted the State to abandon the
aggravated-assault-with-a-deadly-weapon language in the information
and include only the assault language. Thus, the jury charge mirrored the
information as it existed at the time the charge was submitted. On
appeal, appellant does not contend the trial court’s action in allowing the

-2-
 abandonment was error. Accordingly, we overrule his first issue.” Slip
opinion, at page 5.
C. Argument under grounds for review

The Fourteenth Court of Appeals did not reach appellant’s complaint about the

variance between what was pled in the charging instrument and what was set out in

the charge, because, as the court wrote: “…appellant ignores that, before submission

of the case to the jury, the trial court permitted the State to abandon the aggravated-

assault-with-a-deadly-weapon language in the information and include only the assault

language. Thus, the jury charge mirrored the information as it existed at the time the

charge was submitted.” Slip Opinion, at page 5.

As for the suggestion that the jury charge “mirrored the information as it

existed at the time the charge was submitted,” there is no written amended charging

instrument in the record, nor is there any charging instrument reflecting abandonment

of matters from the original charging instrument. Appellant asks this Court to locate

the document constituting “the information as it existed at the time the charge was

submitted.” Were aspects of the original charging instrument abandoned, or was there

really an amendment? In either case, can the State accomplish changes it wants in a

charging instrument by oral pronouncement, or must there be more?

As one authority has pointed out with respect to the mechanics of amending a

charging instrument:

“In Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014), the State filed
a motion to amend the original 11-count indictment by replacing all 11

-3-
 counts with five counts set out in an exhibit attached to the motion. The
trial court ordered the motion granted but no changes were made in the
original indictment itself. Under Riney, the Court of Criminal Appeals
held, this was an effective amendment of the indictment.

Perez leaves somewhat unclear what limits Texas law puts on the
mechanics of amending a charging instrument. The case itself seems to
turn on the court’s perception that there was no meaningful difference
between the procedure found acceptable in Riney and that used in Perez.
If the State's motion and attachments in Perez included the language of
the original indictment, this was not mentioned or relied upon by the
court.

Perhaps after Perez, the bottom line is that the procedure must be such
as assures that the court’s file—including the original indictment, the
State’s motion to amend and any attachments, and the order granting the
motion—makes readily available to the accused the language of the
charges against which he will have to defend at trial. Even if the State’s
motion did not include the language of the original indictment, the
court’s file would include the original document and the motion and
order made reasonably clear and obvious to the defendant the effective
allegations on which the trial would be held.”

Dix and Schmolesky, 42 Tex. Prac., Criminal Practice and Procedure, sec. 26:74 (3d

ed.).

The chief difference between the instant case and Perez, where amendment was

deemed effective, is that the appellant in Perez had no objections and the amendment

benefitted Perez. In this case, Appellant was harmed by the State’s abandonment,

which may in fact have constituted an amendment. The State’s action in the instant

case, which led to the more expansive language in the charge, obviously made the case

easier to prove.

-4-
 Where the court of appeals simply assumes that matters were “abandoned” in

the charging instrument, it has made the State’s argument for them. As to whether

matters in the charging instrument were “abandoned,” or the instrument was in fact

“amended,” no new charging instrument appears in the record, either as an exhibit to

a State’s motion, or as a stand-alone, redacted document.

The bottom line is that there was only one, original charging instrument and a

jury charge that contained a less onerous burden for the State.

In the face of the record containing no altered charging instrument, it should

have been the State’s burden to argue on appeal that a proper amendment of that

charging instrument, or an abandonment, was accomplished, so that there was no

variance between what was pled in the (new) charging instrument and what was

contained in the charge. As matters stood on appeal, there was still only one charging

instrument and that was the original one.

The court of appeals’ assumption that an effective alteration of the charging

instrument had occurred, either through abandonment or amendment, without a new

or altered document appearing anywhere in the record, placed a burden on appellant

that was not his to shoulder. Appellant’s argument assumed, properly, that without a

new or altered charging instrument appearing in the record, the jury charge that was

submitted was erroneous.

This Court should either remand the case to the court of appeals so that the

court of appeals may determine whether the charging instrument was in fact amended,
-5-
or if instead certain components of the charge merely abandoned, and whether, in

either case, the procedure whereby the trial court conducted such change was proper.

PRAYER FOR RELIEF

For the reasons stated above, the Appellant moves that this Court grant his

petition and reverse the judgment of conviction in this case, and remand the case for a

new trial, or in the alternative, remand the case to the court of appeals so that it may

consider the merits of appellant’s argument as to his first issue on appeal to that court.

Respectfully submitted,

Alexander Bunin
Chief Public Defender
Harris County Texas

/s/ Bob Wicoff
Bob Wicoff
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th floor
Houston Texas 77002
(713) 274-6781
TBA No. 21422700

-6-
 CERTIFICATE OF SERVICE

I hereby certify that on June 1, 2015, a copy of the foregoing petition has been

served electronically on Alan Curry, who is the chief of the appellate division of the

Harris County District Attorney’s Office, through the efile system, and on the State

Prosecuting Attorney.

/s/ Bob Wicoff

CERTIFICATE OF COMPLIANCE
This petition complies with the type-volume limitations of Tex. R. App. Proc.

9.4(e) and 9.4(i). It contains 1,761 words printed in a proportionally spaced typeface

using Garamond 14 point font.

/s/ Bob Wicoff

-7-
Afhami v. State, Not Reported in S.W.3d (2015)

A P P E N D I X
Opinion in Afhami v. State, No. 14-13-01013-CR,
2015 WL 1246775 (Tex. App.-Houston [14th Dist.] March 17, 2015, no pet. h.)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8
Afhami v. State, Not Reported in S.W.3d (2015)

2015 WL 1246775
Only the Westlaw citation is currently available. I. BACKGROUND
SEE TX R RAP RULE 47.2 FOR DESIGNATION We will first consider appellant’s third issue, challenging
AND SIGNING OF OPINIONS. the sufficiency of the evidence to support his conviction.
When reviewing the sufficiency of the evidence, we view
MEMORANDUM OPINION
all evidence in the light most favorable to the verdict and
DO NOT PUBLISH—TEX. R. APP. P. 47.2(B).
determine, based on that evidence and any reasonable
Court of Appeals of Texas,
inferences therefrom, whether any rational fact finder
Houston (14th Dist.
could have found the elements of the offense beyond a
Mahmoud Afhami, Appellant reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
v. (Tex.Crim.App.2011). This standard gives full play to the
The State of Texas, Appellee responsibility of the trier of fact fairly to resolve conflicts
in the testimony, weigh the evidence, and draw reasonable
NO. 14–13–01013–CR | Opinion filed March 17, inferences from basic facts to ultimate facts. Id.
2015
A person commits the offense of “terroristic threat” if “he
On Appeal from the County Criminal Court at Law No. threatens to commit any offense involving violence to any
13, Harris County, Texas, Trial Court Cause No. 1892708 person or property with intent to ... place any person in
fear of imminent serious bodily injury.” Tex. Penal Code
Attorneys and Law Firms Ann. § 22.07(a)(2) (West, Westlaw through 2013 3d
C.S.). The offense is a Class A misdemeanor if
Devon Anderson, Alan Curry, Melissa Hervey, for The “committed against a member of the person’s family or
State of Texas. household or otherwise constitutes family violence.” Id. §
22.07(c)(1) (West, Westlaw through 2013 3d C.S.). Intent
Franklin Gordon Bynum, for Mahmoud Afhami. relative to the offense can be inferred from the acts,
words, and conduct of the accused. Dues v. State, 634
Panel consists of Justices Boyce, Jamison, and Donovan.
S.W.2d 304, 305 (Tex.Crim.App.1982). It is immaterial
whether the victim or anyone else was actually placed in
fear of imminent serious bodily injury or whether the
accused had the capability or intention to carry out his
threat. Id. at 305–06. All that is necessary is that the
MEMORANDUM OPINION accused by his threat sought as a desired reaction to place
a person in fear of imminent serious bodily injury. Id. at
John Donovan, Justice 306.

*1 Appellant, Mahmoud Afhami, was charged by In this case, the information (as it existed when the jury
information with the Class A misdemeanor offense of charge was submitted) more specifically alleged that, on
terroristic threat against a member of appellant’s family. March 30, 2013, appellant threatened to commit “an
A jury found appellant guilty and assessed punishment at offense involving violence, namely assault” against his
a fine of $3,000. In three issues, appellant contends (1) wife “with the intent to place [her] in fear of imminent
the jury charge allowed conviction for an offense not serious bodily injury.” Under a hypothetically correct jury
authorized by the information, (2) the jury charge did not charge, the method of committing assault that would
state a proper offense, and (3) the evidence is insufficient equate to an “offense involving violence” is “intentionally
to support the conviction. The State presents a cross- [or] knowingly ... caus[ing] bodily injury to another....”
point, asserting the judgment incorrectly reflects that the See Tex. Penal Code Ann. § 22.01(a)(1) (West, Westlaw
trial court assessed punishment. We reform the judgment through 2013 3d C.S.); see also Malik v. State, 953
to reflect that the jury assessed punishment and affirm as S.W.2d 234, 240 (Tex.Crim.App.1997) (holding
reformed. sufficiency of the evidence should be measured by

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9
Afhami v. State, Not Reported in S.W.3d (2015)

elements of the offense as defined by hypothetically of the charged offense by showing appellant’s state of
correct jury charge, which is one that accurately sets out mind at the time of the incident.
the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or Based on the above testimony, the jury could have found
unnecessarily restrict the State’s theories of liability, and beyond a reasonable doubt that, on March 30, 2013,
adequately describes the particular offense for which the appellant threatened to intentionally cause bodily injury to
defendant was tried).1 complainant because he threatened to kill her. Further,
based on appellant’s state of mind and conduct before and
*2 At trial, complainant and another woman, who was at the time of the incident, the jury could have found
complainant’s friend and co-worker, collectively gave the beyond a reasonable doubt that appellant made the threat
following testimony. On March 30, 2013, they were with intent to place complainant in fear of imminent
employed at a department store. After their shift ended serious bodily injury. According, the evidence is
that evening, they sat visiting in the friend’s car in the sufficient to support the conviction. We overrule
store parking lot. Appellant parked his vehicle nearby. He appellant’s third issue.
was wearing a wig and sunglasses although it was already
dark. Complainant told her friend to stay in the car and
complainant would find out why appellant was there.
Appellant yelled and cursed at complainant and ran
towards her. Appellant called complainant “bitch” and II. JURY–CHARGE ISSUES
“whore” and accused complainant and her friend of
prostituting themselves. Appellant shook his index finger We next consider appellant’s complaints regarding the
several times at complainant, which motion in the jury charge.
customs of their nationality (Iranian) means a person
intends to harm another. Complainant was frightened
because appellant had previously threatened to appear in
A. Contention that conviction not authorized by the
disguise at her job and kill her. Specifically, during the
information
two-week period before the incident, appellant had made
In his first issue, appellant’s sole complaint is that the jury
multiple threats to kill complainant with a knife or gun or
charge permitted conviction for an offense that was not
by splashing acid on her face. Earlier on the day of the
authorized by the information because the offense
incident, appellant phoned complainant, threatening to kill
submitted in the charge differed from the offense alleged
her and accusing her of not being at work. In the parking
in the information.
lot that night, appellant yelled that he had come to make
good on his threats and more specifically threatened to
As appellant asserts, the information as originally written
kill complainant by throwing acid on her. Mall security
alleged the threatened “offense involving violence” was
intervened, and the police were called.
aggravated assault with a deadly weapon whereas the
application paragraph of the charge required the jury to
Additionally, an officer who interviewed complainant and
find the threatened “offense involving violence” was
the friend shortly after the incident testified they were
merely assault. However, appellant ignores that, before
frightened and a threat involving a gun was mentioned.
submission of the case to the jury, the trial court permitted
the State to abandon the aggravated-assault-with-a-
The State also presented a cell phone video of a brief
deadly-weapon language in the information and include
portion of the incident, showing appellant remove a wig
only the assault language. Thus, the jury charge mirrored
and aggressively approach complainant’s friend, who had
the information as it existed at the time the charge was
exited the car at some point.
submitted. On appeal, appellant does not contend the trial
court’s action in allowing the abandonment was error.
Appellant presented testimony from his brother’s wife.
Accordingly, we overrule his first issue.
She relayed that appellant was upset with complainant
during the period before the incident because she had
been socializing during late hours with the friend and
appellant also suspected complainant of infidelity. B. Claim that charge did not state a proper offense
Appellant presented this testimony to support his defense In his second issue, appellant contends that for two
by suggesting he merely confronted complainant in the reasons, the jury charge did not state a proper offense.
parking lot because he was “heartbroken.” However, this
testimony also constituted evidence of the intent element The focus of appellant’s first complaint is the definition

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10
Afhami v. State, Not Reported in S.W.3d (2015)

of assault submitted in the charge. The trial court is evidence, including contested issues and the weight of the
required to deliver to the jury “a written charge distinctly probative evidence, (3) arguments of counsel, and (4) any
setting forth the law applicable to the case.” Tex.Code other relevant information revealed by the trial record as a
Crim. Proc. Ann. art. 36.14 (West, Westlaw through 2013 whole. Id. Considering the pertinent factors, we conclude
3d C.S.). A statutorily defined word or phrase must be appellant did not suffer egregious harm from the
included in the charge as part of “the law applicable to the inapplicable definition of assault.
case.” Arline v. State, 721 S.W.2d 348, 352 n.4
(Tex.Crim.App.1986). The entire charge made clear that the jury must find
appellant threatened to cause imminent bodily injury—not
*3 The application paragraph of the charge required the that he threatened to make such a threat. As appellant
jury to find, inter alia, that appellant “threaten[ed] to asserts, the latter scenario is nonsensical. Appellant makes
commit an offense involving violence, namely, assault” that assertion to support his argument, but it actually
upon complainant. Under the Penal Code, there are negates egregious harm and demonstrates the jury
alternative methods of committing assault, including (1) understood the proper element of the offense. See Gelinas
assault by causing bodily injury, or (2) assault by v. State, 398 S.W.3d 703, 707 (Tex.Crim.App.2013)
threatening imminent bodily injury. See Tex. Penal Code (plurality op.) (recognizing that inquiry relative to the
Ann. § 22.01(a)(1), (2) (West, Westlaw through 2013 3d egregious-harm test may involve discerning whether jury
C.S.). The jury charge defined “assault” solely as follows: was misled and considering whether “the very clarity of
“a person commits an assault if the person intentionally or the error ... may have mitigated any resulting harm”).
knowingly threatens another with imminent bodily injury,
including the person’s spouse.” Thus, the charge defined Specifically, from the application paragraph—requiring
assault solely as the assault-by-threat method. See id. But, that appellant “threaten[ed] to commit an offense
the charged offense of terroristic threat, as submitted in involving violence, namely, assault”—the jury was
the application paragraph, already had a threat informed it must find a threat to commit an actual act of
component: a “threat[ ] to commit ... assault.” violence, rather than the nonsensical scenario of a threat
Consequently, as appellant asserts, a literal reading of the to make a threat. Thus, although assault was incorrectly
application paragraph together with the definition of defined as the assault-by-threat method, the jury equated
assault incorrectly suggested appellant committed the the “threat” component of that definition to the “threat”
charged offense if he threatened to make a threat. component of the charged offense. Instead of believing
Accordingly, the assault-by-threat method was not the there was some nonsensical requirement of a double
correct definition of assault to include in this particular threat, the jury understood it must find appellant
charge. The correct definition would have been the threatened imminent bodily injury.2 Our conclusion is
assault-by-causing-bodily-injury method; i.e, requiring supported by the closing arguments; both the prosecutor
the jury to find that appellant committed the charged and appellant’s counsel informed the jury it must find that
offense by threatening to cause bodily injury. appellant threatened imminent bodily injury. See id. at
710 (finding no egregious harm from improper statement
However, appellant failed to timely object in the trial of law in jury charge where common sense, the correct
court on the ground presented on appeal. Although portion of the charge, and closing arguments of both
appellant made several objections to the charge before it prosecutor and defense attorney likely alerted the jury to
was read to the jury, he did not challenge the definition of the error and allowed it to properly apply the law).
assault. See Tex.Code Crim. Proc. Ann. art. 36.14.
Unobjected-to charge error requires reversal only if it was *4 Moreover, the jury heard ample evidence that
“fundamental”—error that was so egregious and created appellant threatened to commit assault under the
such harm that the defendant “has not had a fair and applicable definition that should have been submitted. As
impartial trial.” Barrios v. State, 283 S.W.3d 348, 350 discussed above, the State proved appellant threatened to
(Tex.Crim.App.2009). Egregiously harmful errors “are cause bodily injury to complainant because it proved
those that affect the very basis of the case, deprive the appellant threatened to kill her at the time of the incident.
defendant of a valuable right, vitally affect the defensive Accordingly, the strength of the evidence supports that
theory, or make a case for conviction clearly and appellant did not suffer egregious harm from the
significantly more persuasive.” Taylor v. State, 332 inapplicable definition of assault submitted in the charge.
S.W.3d 483, 490 (Tex.Crim.App.2011). Egregious harm
is determined on a case-by-case basis and is a difficult Next, appellant complains that the jury charge was
standard to prove. Id. at 489. In analyzing harm, we erroneous because the requirement that he threatened to
consider (1) the entire charge, (2) the state of the cause “imminent bodily injury” was inconsistent with the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11
Afhami v. State, Not Reported in S.W.3d (2015)

requirement that he intended to place complainant in fear statute by requiring the jury to find that appellant made
of “imminent serious bodily injury.” (emphasis added). the above threat with intent to place complainant “in fear
We disagree. The requirements for these two different of imminent serious bodily injury.” See id.
elements comported with the statutory definition of the
offense. In summary, having rejected both of appellant’s
challenges to the jury charge, we overrule his second
The conduct element of the offense generally requires a issue.
threat to commit “any offense involving violence to any
person or property....” See Tex. Penal Code Ann. §
22.07(a). Axiomatically, not every “offense involving
violence to ... person or property” would necessarily rise
to the level of causing “imminent serious bodily injury.” III. THE STATE’S CROSS–POINT
In this case, the charge required the jury to find that the
threatened “offense involving violence” was, more Finally, as the State asserts by cross-point, the judgment
specifically, assault, which did not require “imminent incorrectly reflects that the trial court assessed
serious bodily injury.” However, because the threatened punishment when the jury assessed punishment. We have
“offense involving violence” need not be one that would the authority to reform a judgment “to make the record
cause “imminent serious bodily injury,” the conduct speak the truth.” See Tex.R.App. P 43.2(b); French v.
element as submitted in the charge comported with the State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992).
statute. See id. Accordingly, we sustain the cross-point.

Then, as applicable to this case, the statute does require We reform the judgment to reflect that the jury assessed
for the intent element that the threat be made “with intent punishment and affirm as reformed.
to ... place any person in fear of imminent serious bodily
injury.” See id. § 22.07(a)(2) (emphasis added). Thus, the
intent element in the charge also comported with the

Footnotes
1 As later discussed with respect to appellant’s second issue, he contends, and we agree, that the method of assault
defined in the jury charge was inapplicable. However, relative to the present issue, we will measure sufficiency of the
evidence against a hypothetically correct charge. See Malik, 953 S.W.2d at 240.

2 We note that the assault-by-threat definition incorrectly submitted in the jury charge requires a threat of imminent
bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2). However, the charged offense of terroristic threat does not
require that the actor threatened to commit an imminent offense involving violence. See id. § 22.07(a). As discussed
above, we conclude that, despite the incorrect definition of “assault,” the jury recognized it must find appellant
threatened to cause bodily injury, rather than a threat to make a threat. However, the jury might still have thought,
based on the incorrect definition of “assault,” that it must find appellant threatened to cause imminent bodily injury.
Regardless, any such perception of the element of the offense did not cause egregious harm because it merely
increased the State’s burden of proof. Accordingly, we will refer to the charge as requiring a threat to cause imminent
bodily injury.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12
Afhami v. State, Not Reported in S.W.3d (2015)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13