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Click here for the full text of this decision FACTS:Antonio Schmidt and the victim had been seeing each other on and off for several years. On the morning of the alleged offense, Schmidt was angry at the victim, because she had given a statement to the police about something that had happened in Dallas. He yelled and cursed at the victim and screamed, “You stupid bitch. I’m probably going to have to do time because of you!” The victim then went outside to the front porch swing while Schmidt continued to yell at her and scream her name from inside. Schmidt went to the porch and grabbed her by the arms. She yelled at him to leave her alone but he pushed her off the swing, causing her to hit her head on the porch. While she was lying on the ground, Schmidt kicked her in the back and stomach, dragged her by her hair and punched her in the face. The victim was then able to get inside the house. She tried to use the phone, but Schmidt took it away from her and threw it across the room each time she tried. The victim finally locked herself in the bathroom until she could safely leave the house. As she left the house, Schmidt laughed and said, “Ha, ha. That’s what you get, bitch.” Authorities arrested and charged Schmidt and a jury convicted him of retaliation. The indictment alleged that he threatened to harm the victim by striking her in retaliation for or on account of her services as a prospective witness. Schmidt appealed his conviction to the 7th Court of Appeals asserting, in part, that insufficient evidence proved that he had “threatened to harm” the victim. The term “threaten” is not statutorily defined. The 7th Court looked to the dictionary definition of “threaten,” along with the statutory definition of “harm” to determine that a defendant threatens harm if he “gives signs or warnings or otherwise communicates an intent to inflict loss, disadvantage, or injury.” Having thus defined “threaten,” the court held that the evidence was insufficient because, viewed in the light most favorable to the verdict, it showed only that Schmidt actually harmed the victim, not that he threatened to harm her as alleged in the indictment. In reaching this conclusion, the court held that “one cannot simultaneously be threatened with harm while the threatened harm is being inflicted,” and that the threat must precede the actual harm. The 7th Court reversed the judgment of the trial court and rendered a judgment of acquittal. The Court of Criminal Appeals granted the state’s petition for discretionary review, which presented two issues: 1. Can a threat of harm and actual harm arise from the same act and occur simultaneously, or must the threat precede the harm? and 2. Was the evidence that Schmidt yelled at, cursed, grabbed, pushed, kicked, dragged and punched the victim sufficient to prove that he threatened to harm her? HOLDING:Reversed and remanded. The 7th Court, the CCA stated, erred in drawing a bright-line rule that a threat of harm and actual harm cannot arise from the same act and occur simultaneously and that the threat must precede the initial harm. Whether a threat has been communicated, the CCA stated, is a fact-specific inquiry, and such a bright-line rule and the court’s application of the rule are too restrictive. For example, the CCA stated, “an actor might threaten to stab by holding a knife overhead and telling the victim, ‘I’ll kill you,’ or by his conduct of waiving the knife in the air or making some other threatening gesture.” During a prolonged assault, the CCA stated, the aggressor’s actions can include both threats and actual harm. In some cases, infliction of harm itself can be a threat of further harm. In other cases, however, infliction of harm is simply infliction of harm without a threat. The 7th court’s approach, the CCA stated, disregarded the reality of an ongoing assault in which a threat of further harm could be communicated during the course of the assault. In this case, the CCA found ample evidence that Schmidt threatened the victim. The victim testified that she was placed in fear through the beating she sustained. Additionally, the victim testified that she felt threatened. OPINION:Meyers, J., delivered the opinion of the unanimous court.

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