Opinion
No. 05-08-00728-CR
Opinion Filed March 31, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-06-18263-R.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
OPINION
Appellant was charged with third-degree felony stalking and was found guilty by a jury. He pleaded not true to two enhancement allegations-one prior conviction for aggravated kidnapping and one prior conviction for burglary of a habitation-and elected to have the jury assess his punishment. The jury found the enhancement allegations true and sentenced appellant to ninety-nine years in prison. Appellant raises eight issues on appeal. In his first four issues he argues that the evidence was legally and factually insufficient to demonstrate that he engaged in conduct that would cause a reasonable person to fear bodily injury or death or that he acted pursuant to the same scheme or course of conduct. In his fifth and sixth issues he argues that the trial court abused its discretion by shackling him during trial and removing him from the courtroom during the complainant's testimony. In his seventh issue he argues that the trial court erred when it refused to grant his second motion for mistrial. In his eighth issue he argues that the trial court erred when it denied his request to charge the jury on the "lesser-included" offense of terroristic threat. We overrule appellant's issues and affirm the trial court's judgment.
Factual Background
When they were children, appellant and complainant lived in the same neighborhood and went to school together through high school. They lost touch for over fifteen years until appellant called complainant in early April 2006, shortly after he was released from prison after serving a twelve-year sentence for aggravated kidnapping. Complainant was excited to hear from appellant and talked to him for a long time during their first call. They made plans to have dinner together and saw each other several times over the next two weeks. They had sex three or four times during those two weeks, but complainant told appellant "from the very first day" that their relationship could not be a serious relationship because she had just ended a relationship with someone else. One Sunday evening in late April, appellant called complainant to ask why she had not called him after she returned home that night from a weekend trip. Complainant apologized and explained that she was tired and would call him the next day. Appellant said, "no, I need to talk to you, I need to see you." Complainant told him no and went to bed. At 2:00 or 3:00 a.m. the next morning, complainant's daughter came into her room, shaking, and told her that someone was "trying to get in the front door." Complainant went outside and saw appellant standing in front of her house. Complainant was angry and told appellant to get off her property. The next day, appellant called complainant at work and apologized. Complainant told appellant she did not trust him anymore and did not want to continue their friendship. Later that day, appellant sent flowers to complainant at her office and called her again. She told him he wasted his money on the flowers and asked him not to call her again. Appellant continued to call complainant. He asked for "another chance" and told complainant, "I love you and need you, and if you leave me I'm going to get a gun, put it to your head and pull the trigger." As he said that, he slowed his rate of speech down "to make sure I [complainant] heard him and I understood what he said." Appellant also told complainant, "I'm going to come to your job and I'm going to pull you by your braids and I'm going to beat you if you don't see me again." Appellant's threats made complainant feel "scared, afraid, and sad." That night, complainant did not return home until 10:30 or 11:00 p.m. because she was afraid that appellant would come to her house. As she was driving home, she saw appellant's car parked in front of her house, so she "gunned it and went past him real fast." Appellant tried to follow complainant but she made several turns until she did not see him behind her. She returned home and went to bed without turning on any lights. Appellant called complainant's cell phone and asked why she did not stop her car when she saw him. She told him she did not want to talk to him. He asked her where she was and she said she was at a friend's house and hung up the phone. Appellant called several more times and complainant did not answer the phone. That night, complainant's "on-again off-again" boyfriend, known as "Supreme," called complainant. As she was talking to him, she saw appellant park his car in front of her house. Appellant banged on her door, so complainant put her daughter in a closet and called 9-1-1. Appellant left before the police arrived. To complainant, the incident that night "was really horror[-]movie like frightening, like you're out of your mind, can't breath[e]." The next day, complainant began calling various places including Crime Stoppers and the district attorney's office "to see what [she] needed to do to get a restraining order." She also got "a surveillance system" and flood lights for her house. The surveillance system did not have a recorder on it, but it allowed complainant to watch the outside of her house from a monitor inside. Complainant worked for a telecommunications company, and, after talking to someone in her security department at work, she called the police and filed a complaint for stalking and terroristic threats. She began keeping a log of all of appellant's calls and purchased a digital recorder so that she could "record the conversations that were coming through, as many as [she] could." Referring to her call logs, which were later introduced into evidence, she testified that appellant called her cell phone and work phone a total of twenty-eight times on Tuesday, April 25, 2006. He called her twelve times the next day and ten times the following day. He continued to call her multiple times a day for the next several days. Throughout that time, complainant was constantly afraid appellant was going to hurt or kill her, so she started staying with family and friends instead of at her house. On Saturday, April 29, 2006, complainant sent her daughter to be with her father in Houston because she was worried for her safety. Supreme offered to come stay at complainant's house with her so that she would not be home alone. Appellant called complainant more than twenty times that day. During one of those calls, Supreme spoke to appellant and asked him to leave complainant alone, but appellant refused and began threatening to also hurt Supreme. Appellant made forty-eight calls to complainant the next day. Complainant decided to answer one of those calls and record it. During that call, appellant threatened complainant and her whole family, and told complainant he was glad her mother was dead. Complainant took the recording of that phone call to the police department. A couple of days later, appellant called complainant at work and told her he had been peeking through her window the night before and asked her why she did not put lotion on her dry legs, told her what she wore to bed, and asked why her daughter went to bed so late. On May 3, 2006, complainant returned to the police station with her father. While she was there, appellant called her. Investigator Rozalyn Chapin of the Cedar Hill Police Department told her to answer the phone and put it on speaker phone so the call could be recorded. Appellant told her he was outside her home again the previous night, and if he had a gun, he would shoot her and Supreme. Complainant switched her car with her brother's truck and put a shotgun in her brother's truck. On May 4, 2006, complainant drove her daughter to school in her brother's truck with Supreme sitting in the passenger seat. Complainant's daughter spotted appellant's car driving behind them. Complainant got on the highway and appellant drove up "right on [her] bumper." Complainant's daughter panicked. Appellant had one hand on the steering wheel and appeared to be reaching for something. Complainant slammed on her brakes, but appellant slowed down too and pulled up next to the passenger side of the truck. Complainant was scared. She explained, "I was afraid. I mean, like I said . . . in the back of my mind this man has told me not once, not twice, not three times that he's going to kill me, even told me how he was going to kill me." Complainant's daughter screamed, "Mama, he's going to shoot us, he's got a gun." Supreme told complainant's daughter to get down and reached for the shotgun. He leaned out the window and shot at appellant. Later that day, complainant was at the police station when appellant called her cell phone five times. She answered one of the calls and appellant told her "it was war now" and he was going to kill her and Supreme "for sure." The police located appellant and took him into custody. Two days later, appellant called complainant at midnight and apologized. Complainant's call logs, which were introduced into evidence, list over 200 calls from appellant starting April 24, 2006 and ending May 7, 2006. A compact disc containing recorded calls from appellant was also admitted into evidence and played for the jury. A transcript of the recorded calls was also introduced into evidence. In those recorded calls, appellant repeatedly threatened to kill complainant. Officer Brittany Bruce, a Cedar Hill police officer, testified that she met with complainant when complainant came to the police station to report appellant's harassing phone calls. She testified that when she met with her, complainant was "very upset, her hands were shaking. She actually cried at one point[.]"Investigator Chapin also testified for the State. She testified that she was assigned to investigate complainant's report of harassment and met with complainant on May 2 and May 3, 2006. While Chapin was with complainant, appellant called her and threatened her. Chapin testified that complainant was very emotional and "would cry often." She met with complainant again after the shooting and appellant called during that meeting and repeatedly threatened her.After the State rested, appellant testified in his own defense. He testified that he never had any intent to actually harm complainant. He testified that when he contacted complainant he had just gotten out of jail after serving a twelve-year sentence, and he moved too quickly in his relationship with complainant and let his feelings get involved. He testified that on the day of the shooting incident, he was driving to his cousin's barber shop for a haircut when he got a feeling that someone was watching him. He looked at the car next to him and saw complainant and Supreme. He testified that he had only one hand on the steering wheel because he has car had a manual transmission and his other hand was down on the gear shift. On cross-examination, appellant agreed that it was wrong for him to tell complainant he was going put a gun to her head and pull the trigger. He also acknowledged that complainant was afraid he was going to kill her, and that anyone in her position would have felt the same way:
[Prosecutor]:
So she [complainant] was scared that you were going to kill her?
[Appellant]:
Yes, ma'am.
[Prosecutor]:
And you would understand that anybody in her shoes would be scared of that, wouldn't that be right?
[Appellant]:
Yes ma'am.
[Prosecutor]:
So that's fair to say, right?
[Appellant]:
Yes, ma'am.
Appellant admitted calling complainant over 200 times and admitted that it was his voice the jury heard on the audio recordings.
Factual and Legal Sufficiency of the Evidence
In his first and second issues appellant argues that the evidence was legally and factually insufficient to support his conviction because the State failed to prove that he engaged in conduct that would cause a reasonable person to fear bodily injury or death. In his third and fourth issues appellant argues that the evidence was legally and factually insufficient to support his conviction because the State failed to prove that he acted pursuant to the same scheme or course of conduct.Standard of Review and Applicable Law
We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). We view all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster, 275 S.W.3d at 517-18. In a factual sufficiency review, we begin by assuming that the evidence is legally sufficient under Jackson. Id. at 518. We consider all of the evidence in a neutral light and determine whether, although legally sufficient, (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Id. Although we afford less deference to the verdict during a factual sufficiency review, we are not free to override the verdict simply because we disagree with it and instead may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. We measure the legal and factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997) (legal sufficiency); Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008) (factual sufficiency). As limited by the indictment, the State had to prove that appellant, on more than one occasion and pursuant to the same scheme or course of conduct, knowingly engaged in conduct directed specifically toward complainant that (a) he knew or reasonably believed complainant would regard as threatening bodily injury or death for her, (b) caused complainant to be placed in fear of bodily injury or death, and (c) would cause a reasonable person to fear bodily injury or death for himself or herself. See Tex. Penal Code Ann. § 42.072(a) (Vernon 2003). Appellant argues that in reviewing the legal and factual sufficiency of the evidence, we can consider only certain evidence. More specifically, to support the stalking charge, the State specifically alleged in appellant's indictment that he verbally threatened to kill complainant on or about April 24 and May 4, 2006. Consequently, appellant argues that we can consider only the evidence of the verbal threats "that were made by [him] on those two specific dates." We disagree. The stalking offense contemplates the presentation of evidence that covers the entire course of a defendant's alleged unlawful conduct directed specifically towards a complainant. See id. (stalking offense occurs when person "on more than one occasion and pursuant to the same scheme or course of conduct" engages in prohibited conduct). Appellant was indicted in June 2006 and the evidence demonstrated that all of appellant's threats against complainant predated the indictment and were within the limitations period. See Sledge v. State, 953 S.W.2d 253, 255-56 (Tex.Crim.App. 1997). As contemplated by the stalking statute, we are not restricted to considering appellant's verbal threats on April 24 and May 4, 2006, and will instead analyze all of the evidence applying the appropriate standards of review. See Tex. Penal Code Ann. § 42.072.Analysis
Was the evidence sufficient to demonstrate that appellant engaged in conduct that would cause a reasonable person to fear bodily injury or death?
First, appellant argues that the evidence is legally insufficient to prove that a "reasonable person" would fear bodily injury or death as a result of appellant's conduct. In short, appellant argues that, under the facts of this case, a reasonable person would not have been afraid for her life, but instead "simply concerned and anxious." We disagree. We conclude that the evidence, including appellant's own testimony that anyone in complainant's shoes would have been afraid that appellant was trying to kill her, was legally sufficient to demonstrate that a reasonable person would have feared bodily injury or death as a result of appellant's conduct. We overrule appellant's first issue. In his second issue, appellant argues that the evidence is factually insufficient to demonstrate that his conduct would cause a reasonable person to fear bodily injury or death. In the argument section under this issue, appellant states that he "would re-urge the arguments and authorities set forth in the previous issue," and he makes the conclusory statements that "the guilty verdict is contrary to the great weight and preponderance of the evidence" or is "too weak to support a finding of guilt beyond a reasonable doubt," but he does not cite the record or describe why the particular evidence in this case is factually insufficient. Nevertheless, we will look to the statements he makes in his legal-sufficiency issue that are more germane to a factual-sufficiency challenge than a legal-sufficiency challenge and assume, without deciding, that appellant has adequately briefed this issue. Appellant contends that complainant gave somewhat conflicting testimony about whether she was afraid appellant would kill her and further notes that (1) complainant willingly had sex with appellant three or four times, (2) appellant never actually harmed complainant, (3) complainant did not change her cell phone number despite appellant's numerous calls, and (4) complainant did not produce a sales receipt to prove that she purchased a surveillance system. After reviewing all of the evidence in a neutral light, we cannot conclude that the jury's implied finding that a reasonable person would have feared bodily injury or death is against the great weight and preponderance of the evidence, or that the evidence in this case is too weak to support that finding. Appellant himself testified that anyone in complainant's shoes would have been afraid that appellant was going to kill her. We overrule appellant's second issue. Was the evidence sufficient to demonstrate that appellant acted pursuant to the same scheme or course of conduct? In his third issue, appellant argues that the evidence is legally insufficient to support his conviction because no rational jury could have found that his verbal threats were made "`pursuant to the same scheme or course of conduct' as required by Section 42.072(a), Texas Penal Code." Appellant specifically argues that the State did not prove "the same scheme or course of conduct" because "[t]he bulk of the conversation" on May 4, 2006 related to the shooting incident and appellant's threats to kill Supreme, not to threats against complainant. In other words, appellant's sole argument on this issue is premised on appellant's mistaken contention, described above, that the State was required to rely on only his verbal threats made on April 24 and May 4, 2006 to prove the charged offense of stalking. Again, we disagree. As we explained above, the State was not limited to evidence of only two specific dates on which appellant's verbal threats to complainant occurred. See Tex. Penal Code Ann. § 42.072; Sledge, 953 S.W.2d at 255-56. And in this case, the undisputed evidence conclusively demonstrates that appellant verbally threatened to kill complainant on multiple occasions between April 24 and May 4, 2006. We overrule appellant's third issue. In his fourth issue, appellant argues that the evidence is factually insufficient to demonstrate that he acted pursuant to the same scheme or course of conduct. Although appellant states that he "would re-urge the arguments and authorities set forth in the previous issue," and he makes the conclusory statements that the evidence that he acted pursuant to the same scheme or course of conduct "is so weak as to undermine confidence in the jury's verdict, and is `greatly outweighed' by contrary proof," he does not describe why the particular evidence in this case is factually insufficient. Nevertheless, assuming without deciding that appellant has adequately briefed this issue, and after reviewing all of the evidence in a neutral light, we cannot conclude that the jury's implied finding that appellant acted pursuant to the same scheme or course of conduct is against the great weight and preponderance of the evidence, or that the evidence in this case is too weak to support that finding. We overrule appellant's fourth issue.The Trial Court's Decision to Shackle Appellant During Trial
In his fifth issue, appellant argues that the trial court abused its discretion by electing to shackle him during trial. Citing Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App. 1991), and Cooks v. State, 844 S.W.2d 697, 722 (Tex.Crim.App. 1992), appellant notes that because a defendant's presumption of innocence may be infringed when a jury views him in handcuffs or shackles, shackling is permissible only in exceptional circumstances and must be supported by a record that reflects the particular circumstances justifying its use. Appellant argues that the record in this case does not demonstrate that shackling him was warranted because it "does not reflect that [he] was ever violent and posed a threat to anyone." Appellant's complaint, however, was not preserved for appellate review. To preserve error for appeal, a party must present to the trial court a timely and specific objection. Tex. R. App. P. 33.1(a)(1); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (complaining party must make specific objection at earliest possible opportunity and obtain ruling). Additionally, the complaint on appeal must comport with the objection at trial. Wilson, 71 S.W.3d at 349. In the case, appellant wore civilian clothing and was not manacled while juror questionnaires were passed out to the panel of prospective jurors. The trial court took a lunch break and during that break appellant elected to change out of his civilian clothing and back into his jail clothing. After lunch, he refused to come out of the holding cell and the bailiff had to call for extra security and manacle appellant to get him back into the courtroom. Before voir dire questioning began, the trial court told appellant that he would have another opportunity to change into his civilian clothing before trial if he would tell the court that he would voluntarily come back into the courtroom. Otherwise, the trial court warned appellant that he was "going to stay in his jail stripes[,] manacled." Appellant's attorney asked him what he wanted to do and appellant did not respond. The court asked appellant's attorney if he wished to put anything on the record regarding the manacles and he responded, "No, Your Honor." The jury panel was brought in, and the trial court explained that appellant elected not to wear civilian clothing and instructed the jury not to take his jail clothing and manacles as an inference of guilt. After the jury was selected and sent home for the day, the trial court explained to appellant that if he wished to wear civilian clothing he could, and that he had been manacled because it was brought to the court's attention by court personnel that he may be a danger to himself or the attorneys. The trial court offered to remove the hand part of the manacles the next morning if he would assure the court that he would continue to behave as he did during voir dire. The next day, before trial resumed, the trial court stated on the record that the bailiff had expressed "great security concerns" regarding appellant's "violent behavior." Appellant's counsel stated that he had been dealing with appellant for over a year and also expressed concern about appellant's volatile behavior. The trial court stated that appellant would remain manacled and asked if there was anything else anyone wanted to put on the record. Appellant's counsel answered, "No, Your Honor." Later that day, after the lunch break, appellant's counsel moved for a mistrial on several grounds, including the fact that the jury saw appellant manacled. This objection, however, was not raised in a timely manner, and instead was expressly waived by counsel's multiple previous assurances that there was no objection. Consequently, this issue was not preserved for appellate review. See, e.g., Hervey v. State, No. 05-06-00268-CR, 2007 WL 882489, at *2 (Tex.App.-Dallas March 26, 2007, no pet.) (not designated for publication) (untimely trial objection did not preserve shackling complaint for appellate review). We overrule appellant's fifth issue.The Trial Court's Decision to Remove Appellant from the Courtroom
In his sixth issue, appellant argues that the trial court erred by removing him from the courtroom during complainant's testimony. In response, the State argues that appellant waived his right to be in the courtroom. The record demonstrates that appellant was removed from the courtroom after he disrupted complainant's testimony and ignored the trial court's warning:[Complainant]: I was afraid. I didn't-I was afraid. I mean, like I said, `cause still, you know, in the back of my mind this man has told me not once, not twice, not three times that he's going to kill me, even told me how he was going to kill me.
[Appellant]: [S]top lying.
THE COURT: Excuse me. If we have another outburst[,] you will be excused from the courtroom.
[Appellant]: Come on, stop lying[.]
THE COURT: Get him out of the court room.
[Appellant]: She's lying. She's-she's lying.The trial court then explained to the jury that appellant was being removed for disrupting the trial and was being placed in a holding cell where he would be able to hear the trial and consult with his attorneys during breaks. After lunch, appellant was asked to return to the courtroom and refused. Appellant admits that he may have waived his right to be present in the courtroom later in the day once he refused to return as requested. Nevertheless, he argues that he did not waive his right to be present during complainant's testimony when the trial court removed him. We disagree. A criminal defendant can waive his constitutional right to be present during trial if he exhibits disruptive behavior and "if, `after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.'" Ramirez v. State, 76 S.W.3d 121, 129 (Tex.App.-Houston [14 Dist.] 2002, pet. ref'd) (citing Illinois v. Allen, 397 U.S. 337, 343 (1970)). Moreover, expulsion is not constitutionally improper when a defendant fails to assure the trial court that he will remain quiet and the trial court lacks any reason to believe his misbehavior will cease. Id. at 130. Here, appellant disrupted complainant's testimony and refused to cease his disruptive behavior even after being warned by the trial court. The trial court had no reason to believe appellant's disruptive behavior would cease. We overrule appellant's sixth issue.
The Trial Court's Denial of Appellant's Second Motion for Mistrial
In his seventh issue, appellant complains about the trial court's denial of his second motion for mistrial. Appellant's counsel made a second motion for mistrial after the State played the audio recordings of appellant's calls to complainant but did not mute one of appellant's statements during those recordings-"I done stole a car"-which appellant contends the State had agreed to mute. In response, the State argues that appellant's objection was untimely because he did not bring the agreement to the court's attention beforehand through an agreed motion in limine or otherwise, and did not object when that statement in the recording was being played and give a legal reason why the statement should be excluded. We agree with the State that this issue has not been preserved for appellate review. See Tex. R. App. P. 33.1(a)(1) (timely and specific objection required to preserve complaint for appellate review). We overrule appellant's seventh issue.Appellant's Requested Jury Instruction on the "Lesser-Included" Offense of Terroristic Threat
In his eighth issue, appellant argues that the trial court erred in refusing his request that the jury be instructed on the "lesser-included" offense of terroristic threat. In response, the State argues that the offense of terroristic threat is not a lesser-included offense of stalking.Applicable Law and Standard of Review
Texas courts use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense. See Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005). The first step is to determine whether the offense is a lesser-included offense of the alleged offense. Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007); Salinas, 163 S.W.3d at 741. This determination is a question of law and does not depend on the evidence presented at trial. Hall, 225 S.W.3d at 535. We review questions of law under a de novo standard of review. See State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). An offense is a lesser-included offense if:(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006). When the greater offense may be committed in more than one manner, the manner alleged will determine the availability of any lesser-included offenses. Hall, 225 S.W.3d at 531. If we conclude that an offense is a lesser-included offense, the second step is to determine if there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater offense. Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at 741.
Analysis
Here, it is the first prong of the analysis that is in dispute, i.e., whether the misdemeanor offense of terroristic threat is included within the proof necessary to establish the third-degree-felony offense of stalking as charged in the indictment. Appellant argues that he was entitled to an instruction on terroristic threat because "the elements of terroristic threat were established by proof of less than all the facts required to establish the commission of the offense of stalking." The State disagrees. To resolve this issue, we first consider only the statutory elements of stalking as they were modified by the particular allegations in the indictment:(1) defendant
(2) on more than one occasion and pursuant to the same scheme or course of conduct
(3) knowingly
(4) engaged in conduct directed specifically toward another person, that
(a) he knew or reasonably believed the other person would regard as threatening bodily injury or death for the other person,
(b) caused the other person to be placed in fear of bodily injury or death, and
(c) would cause a reasonable person to fear bodily injury or death for himself or herself.See Tex. Penal Code Ann. § 42.072(a); see also Hall, 225 S.W.3d at 536. We then compare these elements with the elements of the lesser offense of terroristic threat:
(1) defendant
(2) threatened to commit any offense involving violence
(3) to any person
(4) with intent
(5) to place any person in fear
(6) of imminent serious bodily injury.Tex. Penal Code Ann. § 22.07(a)(2) (Vernon Supp. 2008); see also Hall, 225 S.W.3d at 536. The offense of terroristic threat cannot be proven by the same or less facts than those required to prove stalking. Terroristic threat requires fear of imminent serious bodily injury, whereas stalking only requires fear of bodily injury or death. In other words, the offense of terroristic threat requires proof of at least one additional fact. Cf. Helleson v. State, 5 S.W.3d 393, 395-96 (Tex.App.-Fort Worth 1999, pet. ref'd) (terroristic threat not lesser-included offense of retaliation because terroristic threat requires threat of imminent bodily injury and retaliation only requires threat of harm); see also Hudson v. State, No. 02-06-00432-CR, 2008 WL 3918024, at *1 (Tex.App.-Fort Worth Aug. 26, 2008, no pet.) (mem. op.) (not designated for publication) (defendant who threatened to kill complainant trial judge or his family not entitled to additional instruction on terroristic threat as a lesser-included offense of retaliation because terroristic threat requires threat of imminent serious bodily injury and retaliation does not). Appellant acknowledges that the offense of terroristic threat requires "imminent" bodily injury. But he cites the statement in Hall that "the elements of the lesser offense do not have to be pleaded if they can be deduced from the facts alleged in the indictment," Hall, 225 S.W.3d at 535, and contends that the "element of `imminent' can be `deduced' from the facts alleged in the indictment." We disagree. We conclude that the element of "imminent" cannot be deduced from the bare allegation in the indictment that appellant threatened to kill complainant. Consequently, we conclude that the offense of terroristic threat is not a lesser-included offense of stalking as alleged in this case. We overrule appellant's eighth issue.