Comment

Assault by threat is prohibited by and defined in Tex. Penal Code § 22.01(a)(2). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8).

Definition of “Imminent.” Texas criminal law provides no definition of “imminent,” and none is included in the instruction.

Threat—Various Uses in Penal Code. The term threat is used in a number of other offenses in addition to assault and aggravated assault. When defining threat in instructions for other offenses, this should be kept in mind. For instance, the word threat is used in defining disorderly conduct (Tex. Penal Code § 42.01(a)(4)), robbery (Tex. Penal Code § 29.02(a)(2)), sexual assault (Tex. Penal Code § 22.011(b)(2)), theft (Tex. Penal Code § 1.07(a)(9)), obstruction or retaliation (Tex. Penal Code § 36.06(a)), harassment (Tex. Penal Code § 42.07(a)(2)), and stalking (Tex. Penal Code § 42.072(a)).

Threat as Assault—Generally and Culpable Mental State. Texas law remains unclear about certain key aspects of the crime of assault by threat.

As the court of criminal appeals pointed out in Schmidt v. State, 232 S.W.3d 66, 67–69 (Tex. Crim. App. 2007) (discussing the meaning of threat in the offense of retaliation), Texas criminal law leaves somewhat unclear what constitutes threatening as required for this type of assault. See Schmidt, 232 S.W.3d at 68 (“We do not reach the issue, left open by our opinion in [Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006)], of whether or not a victim must perceive the threat . . . .”). See also Dobbins v. State, 228 S.W.3d 761, 766 n.6 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d, untimely filed) (noting that Olivas suggests that the “complainant need not have perceived the threat in order for an offense to have occurred”). In a 2010 unpublished case, however, it treated the issue as being more settled than published cases suggest: “The plain language of Tex. Penal Code § 22.01(a)(2) and past jurisprudence of this Court indicate that a threat does not require a result—that a victim knew of a threat—but it does require proof that, by his conduct, a defendant intended to cause an apprehension of imminent bodily injury.” Teeter v. State, No. PD-1169-09, 2010 WL 3702360, at *6 (Tex. Crim. App. Sept. 22, 2010) (not designated for publication).

Some Committee members believed that, when applied to certain fact situations, the requirement that the defendant “threaten[ed] another” may be so unclear as to be unconstitutionally vague. The Committee notes that for disorderly conduct by publicly displaying a firearm “in a manner calculated to alarm,” Tex. Penal Code § 42.01(a)(8), the court of criminal appeals adopted a reasonable person standard to avoid vagueness concerns about whose sensitivity (to being alarmed) the defendant must pay attention to in order to comply with the law. State v. Ross, 573 S.W.3d 817, 826–27 (Tex. Crim. App. 2019).

This ambiguity raises at least four questions regarding the meaning of this type of assault:

1. Must the victim have perceived the threat?
2. Must the victim have been put in fear of imminent bodily injury?
3. Must the defendant have intended the victim to be put in fear of imminent bodily injury or otherwise have a culpable mental state concerning that consequence?
4. Must the defendant’s conduct meet some “objective” requirement? Specifically, must the defendant have engaged in verbal or physical actions that would have created a fear of imminent bodily injury in a reasonable person under the circumstances?

In Olivas, the court of criminal appeals held that the proof in a prosecution for assault by using a firearm, if it required the victim to perceive the threat, did not require that the victim perceive the exact threat communicated by the defendant. Olivas, 203 S.W.3d at 350–51. Thus the proof was sufficient when the defendant threatened the victim by shooting at her with a firearm but the victim perceived that the defendant was threatening her by throwing rocks at her.

The Waco court of appeals read Olivas as establishing that the proof must show that the defendant’s conduct was such as would portend an immediate threat of danger to a person of reasonable sensibilities. Whiddon v. State, No. 10-06-00085-CR, 2007 WL 416373, at *3 (Tex. App.—Waco Feb. 7, 2007, no pet.) (not designated for publication). Whether the complainant was actually put in fear is relevant but not necessarily controlling.

The State Bar Committee in its 1970 report recommended that this type of assault be defined as requiring that the accused “intentionally or knowingly cause another to fear imminent bodily injury.” see State Bar Committee on Revision of the Penal Code, Texas Penal Code: A Proposed Revision § 22.01(a)(2) (Final Draft Oct. 1970). The threat terminology used instead by the legislature was apparently first suggested by the Legislative Committee of the Texas District & County Attorneys’ Association.

Most likely, the terminology was intended to change prior law, which had been that a verbal threat alone could not constitute assault.

Almost certainly, the term threat was not intended to have the same content as the State Bar Committee’s proposed language. Similarly, the term was quite likely intended to dispense with the need for the prosecution to prove actual putting in fear. It might, however, have been intended to include the culpable mental state required by the State Bar Committee’s suggestion—essentially the intent to put the victim in fear.

A number of Texas courts have construed the statute to require this. The Fort Worth court of appeals stated:

In re S.B., 117 S.W.3d 443, 450 (Tex. App.—Fort Worth 2003, no pet.) (citations omitted).

In Whiddon, the Waco court of appeals appeared to assume that assault requires proof that the defendant at least knew his actions would place the complainant in fear of imminent bodily injury. Whiddon, 2007 WL 416373, at *2. But see Black v. State, No. 2-05-388-CR, 2006 WL 2507325, at *3 (Tex. App.—Fort Worth Aug. 31, 2006, pet. ref’d) (not designated for publication) (“Aggravated assault by threat is a ‘nature of conduct offense’ that can be committed only by knowingly or intentionally causing the victim to reasonably apprehend imminent bodily injury because of a communicated threat.”); Fitzgerald v. State, No. 11-04-00250-CR, 2006 WL 246277, at *4 (Tex. App.—Eastland Feb. 2, 2006, no pet.) (not designated for publication) (citations omitted) (“Assault by threat under Section 22.01(a)(2) is a ‘nature-of-conduct’ offense unlike assault under [Penal Code section 22.01(a)(1)] where a defendant actually causes bodily injury. The focus is not on a victim’s perception but upon whether a defendant intentionally or knowingly caused the victim a reasonable apprehension of imminent bodily injury.”).

Some of these statements of what section 22.01(a)(2) requires fail to recognize that although the statute might not require proof that the victim was actually put in fear, it might demand that the state prove the defendant intended the victim to be put in fear or at least was aware that his conduct was reasonably certain to put the victim in fear.

Previous versions of this instruction required intent and knowledge of this kind. It defined those mental states as follows:

In 2018, the Dallas court of appeals found these definitions erroneously treated assault by threat as a result-of-conduct instead of nature-of-conduct offense. Leguin v. State, No. 05-17-00706-CR, 2018 WL 3014703, at *3 (Tex. App.—Dallas June 15, 2018, no pet.) (not designated for publication). Although ultimately finding the error harmless, the court held that the Committee’s original definitions connected the mental states to the result of the defendant’s conduct—i.e., that he “intended his conduct to result in another person’s fearing imminent bodily injury or knew that his conduct was reasonably certain to cause that result.” Leguin, 2018 WL 3014703, at *3. The Committee was divided over how to revise the definitions. Some members wanted to maintain the original definitions but clarify that actually causing fear was not required. A majority determined that modifying the definitions to the following would be correct and, for the vast majority of cases, entirely sufficient:

Some Committee members were concerned these definitions might not adequately convey to jurors that the defendant must intend (or be aware of) not only the conduct itself (his words or acts) but its nature as something threatening. For “knowingly threaten,” they preferred the following definition:

Explaining the culpable mental state required for this offense is difficult because of the uncertainty about what constitutes the required threat. Texas courts might find persuasive the approach of the U.S. Supreme Court in Elonis v. United States in construing 18 U.S.C. § 875(c), a federal statute criminalizing the transmission in interstate commerce “any communication containing any threat . . .  to injure the person of another.” Elonis v. United States, 135 S. Ct. 2001, 2002 (2015). Although silent concerning any culpable mental state, the court read one into the statute and further assumed that either purpose (or “intent”) or knowledge would suffice. The court did not reach whether recklessness would be enough. Elonis, 135 S. Ct. at 2012. Thus, it is clear that under the federal statute the prosecution must prove the accused acted at least either “for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” Elonis, 135 S. Ct. at 2012. This means the state must prove that the defendant at least knew that a reasonable person would foresee that the statement would be interpreted by those to whom the statement was communicated as a serious expression of an intent to inflict bodily injury on another.

Definitions of “Threat” in Instruction. The members of the Committee differed in opinion on the extent to which the Committee should attempt to define terms if the statutes do not provide clearly applicable definitions. (See CPJC 1.5.) Therefore the instructions do not offer a definition of the term threat. However, should a particular fact situation make a definition desirable, the Committee offers three possible definitions of threat—actually, of threatening another with bodily injury.

The first defines the offense simply in terms of conduct reasonably likely to produce fear:

The second would add a requirement that the victim experience a fear of imminent bodily injury:

The third would define threat in terms of words or conduct indicating an intention without reference to the likely impact:

Telling Jurors that “Threaten” Does Not Require Placing Another in Fear. Contrary to the second definition of threaten in the above section, a majority of the Committee members believed that even in the absence of a holding by a court of criminal appeals, it is implicit in the statutory language of assault by threat that actually causing fear of imminent bodily injury is not required. Many further believed that jurors should be instructed to that effect. Those members would include the following statement in the relevant statutes unit of the instruction: