Texas Stamp


PD-0703-20 11/11/2020

“When the State includes a deadly-weapon allegation in its aggravated assault by threat indictment and then fails to prove its manner and means of the threat, can the State still prove assault by threat based on use or exhibition of the deadly weapon?”

Brooks was indicted for aggravated assault by threat. The indictment alleged Brooks threatened his girlfriend “by telling her that he was going to end her life” and alleged he used or exhibited a piece of wood as a deadly weapon. At trial, Brooks’s girlfriend testified that, as she was leaving for work one morning, Brooks beat her with a wooden two-by-four, and as she tried to protect herself, he kept hitting her with it. There was no evidence of any verbal threats. The only evidence he said anything in particular was that she “need[ed]” hitting. Over Brooks’s objection, the jury charge omitted the phrase “by telling her he was going to end her life.” The trial judge reasoned that it was superfluous and that the State only had to prove the elements: that he intentionally or knowingly threatened the victim with imminent bodily injury and used or exhibited a deadly weapon, to wit: a piece of wood. The jury found him guilty.

On appeal, Brooks challenged the sufficiency of the evidence, arguing there was a material variance between the indictment (which alleged a verbal threat) and the evidence (which was a non-verbal threat). The court of appeals agreed and acquitted Brooks. It found that assault by threat is a nature-of-conduct offense that centers on the specific threat alleged. It held that the non-verbal threat of exhibiting the two-by-four constituted a separate assault from a verbal threat to end the victim’s life. It then concluded that the material variance prejudiced Brooks because he lacked sufficient notice of the non-verbal threat charge, his defense centered around the absence of a verbal threat, and his prosecution would not bar a future indictment for the non-verbal threat.   

The State argues that the deadly weapon allegation and its implicit threat formed part of the unit of prosecution and that the verbal threat was subsumed within the other implicit threat. It thus contends that the variance was not material. It points out that months before trial, the State gave notice it wanted to strike the “by telling her…” phrase from the indictment and that this, while not effective in amending the indictment, should have put the defense on notice. Finally, the State disputes that the defense at trial centered on the lack of verbal threats; in reality, it was the lack of any threat whatsoever.

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