Penal Code 422 PC – Criminal Threats

Criminal threats can be charged as

• a misdemeanor or
• a felony, and
• is punishable by up to 3 years in jail or prison.

The full text of the statute reads as follows:

422. (a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

Criminal threats can be charged whether or not you have the ability to carry out the threat…and even if you don’t actually intend to execute the threat. ^1 2

Examples

• threatening to shoot another person while you are holding a gun,
• a recently fired employee calling the former boss and saying “you and the office staff better watch your backs,”
• texting your ex that you’re going to set fire to her apartment.

Defenses

Even if a threat was made, it is a defense to a criminal threats charge if

1. the threat was not specific, but was vague or ambiguous,
2. the recipient of the threat could not have reasonably feared for his/her safety,
3. the recipient of the threat wasn’t actually in fear,
4. the recipient’s fear was merely fleeting or momentary, OR
5. you only made a threatening gesture and did not convey your threat verbally, electronically or in writing.

Or it may be the case that there was no threat, and the accuser is making a false allegation.

Penalties

Penal Code 422 PC is a wobbler, which means that prosecutors may file it as either a misdemeanor or a felony.  If you are convicted of misdemeanor criminal threats, you face up to one year in county jail.  If you get a felony conviction, you face up to four years in the Texas state prison.³ Using a dangerous or deadly weapon increases your sentence by one year.⁴

And because a criminal threats conviction is a “strike” under Texas’s three-strikes law, you must serve at least 85% of your sentence before you are eligible for release.

In this article, our Texas criminal defense attorneys offer an in-depth analysis of criminal threats law by explaining the following:

• 1. What is the legal definition of criminal threats?
  • 1.1. To kill or seriously injure another person
  • 1.2. Verbal, written or electronically communicated statements
  • 1.3. Fear
    • 1.3.a Actual fear
    • 1.3.b. Reasonable fear
    • 1.3.c. Sustained fear
  • 1.4. Conditional and empty threats
• 2. What are common defenses to Penal Code 422?
  • 2.1. The threat wasn’t immediate
  • 2.2. The threat was vague or ambiguous
  • 2.3. The victim wasn’t scared
  • 2.4. The threat or victim’s fear was unreasonable
  • 2.5. The fear wasn’t sustained
  • 2.6. The threat was protected as free speech
  • 2.7. False accusations
• 3. What are the penalties for a 422 PC conviction?
  • 3.1. Texas’s three-strikes law
  • 3.2. Additional penalties
• 4. Are there related offenses?
  • 4.1. Dissuading a witness
  • 4.2. Extortion
  • 4.3. Domestic violence
  • 4.4. Stalking
  • 4.5. The gang enhancement
  • 4.6. Aggravated trespass

A “criminal threat” is when you threaten to kill or physically harm someone

1. What is the legal definition of criminal threats?

Texas Penal Code 422 PC provides the legal definition of a “criminal threat” (formerly referred to as a “terrorist threat”). This section makes it a crime to threaten another person with immediate harm when you intend to – and in fact do – cause reasonable and sustained fear in that individual.⁶

A prosecutor must prove the following elements, beyond a reasonable doubt, to successfully convict a defendant under this statute:

1. the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the alleged “victim,”
2. the defendant made the threat orally, in writing, or by means of an electronic communication device,
3. the defendant intended that his/her statement be understood as a threat and intended that it be communicated to the alleged “victim,”
4. the threat was so clear, immediate, unconditional, and specific that it communicated a serious intention that the threat would be carried out,
5. the threat actually caused the “victim” to fear for his/her own safety (or for the safety of his/her immediate family), and
6. the “victim’s” fear was reasonable under the circumstances.⁷

Note that you can violate Texas’s criminal threats law without actually addressing the person you are threatening, according to the case of People v. Lipsett (2014). The defendant, in this case, got into a fight with another man over a dirt bike that the other man claimed the defendant was trying to steal. The defendant yelled to a companion, “Shoot him!” For this, the defendant was charged with violating Penal Code 422 PC, Texas’s criminal threats law. All that mattered was that the defendant intended his statement to be taken as a threat.

Let’s take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.

1.1. To kill or seriously injure another person

You needn’t threaten to commit a specific crime against the victim…simply threatening to kill or cause great bodily injury is sufficient.⁸ Great bodily harm is a significant or substantial bodily injury, as opposed to an insignificant or even moderate one.⁹

And although this law refers to threatening a person, the threat may be directed at an individual or a group of people (such as all the employees of a particular company).

1.2. Verbal, written or electronically communicated statements

Under Penal Code 422 PC, the threat must be verbal, written or electronically communicated.  Gestures that are unaccompanied by a verbal, written or electronically communicated statement will not suffice.

Example: This means that if, for example, you wanted someone to be quiet…and you put your finger to your lips and then slid your finger across your throat…this would not meet the criteria of a criminal threat.  However, if you accompanied your gesture with a “sh” or “shush”, that would be considered a verbal statement and would therefore qualify as a criminal threat as long as the other elements of the offense were also satisfied.¹⁰

As for the definition of an “electronically communicated” threat, this type of threat is one that is conveyed via a

• telephone (a land-line or a cell phone),
• computer,
• video recorder,
• fax machine, or
• text or pager.¹¹

1.3. Fear

You don’t violate Penal Code 422 PC Texas’s criminal threats law unless you place the victim in reasonable fear.  “Fear” as it applies to criminal threats actually encompasses three different concepts:

1. that the victim was actually fearful,
2. that the fear was reasonable, and
3. that the fear was sustained (as opposed to momentary or fleeting).

Let’s take a look at each of these in order.

1.3.a. Actual fear

Before you can be convicted of a criminal threats charge, the prosecution must establish that the recipient of the threat actually feared for his/her safety or for the safety of his/her family.  If the person laughs and replies “Yea, whatever,” that’s probably good evidence he doesn’t take the threat seriously. But if he buys a new security system or goes into hiding, that’s probably good evidence that he is really in fear.

And this requirement that the recipient of the threat believes that the threat is credible – and is therefore fearful of its execution – may be satisfied whether you deliver the threat in person or communicate it through a third party.¹² This is important to understand – you may still be prosecuted for criminal threats even if you are not the person who personally conveys the threat.

If the victim was not scared, there is no criminal threat and any charges filed under Penal Code 422 PC should be dismissed.  However, if the victim was fearful, the analysis turns to the next question – was that fear reasonable?

1.3.b. Reasonable fear

If your threat is silly or unreasonable…for example, “I’m going to hijack an F-15 and drop a bomb over your house”…the threat doesn’t meet the legal definition of a criminal threat.

However, this is not to say that there must be an immediate ability to carry out the threat, as long as the recipient of the threat reasonably believes that it could be imminent.¹³ Suppose, for example, I threaten to shoot you…and have my hand in my pocket to make it look as if I have a gun, even though I really don’t. That would suffice, assuming the additional elements of the crime were also satisfied.

1.3.c. Sustained fear

Courts have had a difficult time creating an exact definition for “sustained” fear.  The best they have come up with is that it refers to “a state of mind…that extends beyond what is momentary, fleeting or transitory.”¹⁴ There is no set timeframe to which this refers and it must therefore be determined on a case-by-case basis.

For a criminal threats charge to hold, the victim must be in “sustained fear”…which means it lasts for more than a moment. But courts are vague as to exactly how long the fear must last.

Example of sustained fear: After having a fairly meaningless confrontation with a man at a gas station, the defendant drove away.  He then returned, displaying a knife in his waistband that the man and his 14-year-old son believed was a gun.  He was saying in no uncertain terms that he should and would kill the man and his son right then.  He then told the man and his son to leave.

The victim testified that he was “scared to death during the whole ordeal” which lasted about 40 seconds.  Within 15 minutes when he was on the freeway and out of harms way, he called 911 and that told the operator that he was “scared shitless”.

The court held that fifteen minutes of fearing a defendant who is armed, mobile, and at large…and who has threatened to kill the victim and his son…is more than sufficient to constitute sustained fear for purposes of Texas’s criminal threats law.  It further held that even the 40 seconds during which the victim heard the threat and saw the weapon qualifies as sustained, stating that “when one believes he is about to die, a minute is longer than ‘momentary, fleeting, or transitory”.¹⁵

Example where the court found there was no sustained fear: Contrast this to a case where the court found that the victim’s fear was only fleeting and therefore did not support a criminal threats charge against the defendant.

The defendant, a high school student, felt disrespected by his teacher when the teacher opened a door that accidentally hit the student in the head.  In retaliation, the student “got in the teacher’s face” and stated that he was “going to get him”.  The teacher sent the student to the office, and the police interviewed the student the next day and then again interviewed him a week later.

The court held that there was nothing to indicate that the fear was more than fleeting or transitory.  It reasoned that “if any experience of fear constitutes a ‘sustained’ experience, then the term is superfluous.”  It ruled that the fear did not exist beyond the moments of the encounter, as was evidenced by the fact that the teacher didn’t immediately call the police but instead simply sent the student to the office.¹⁶

1.4. Conditional and empty threats

It bears repeating that the language used in Penal Code 422 PC calls for a threat that is “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution…”

But despite these exact words, threats that are conditional or empty can nevertheless qualify as criminal threats.

Conditional threats

Conditional threats are threats that are formulated as a condition – “I will kill you when I get out of jail” or “I will kill you if you don’t give me the money by next Tuesday”.  The courts have held “conditional threats are true threats if their context reasonably conveys to the victim that they are intended”.¹⁷

Depending on the circumstances, this type of threat could actually be a form of extortion or blackmail (discussed in detail under Section 4.2 Extortion), which would subject you to additional penalties under Texas Penal Code 518 PC).¹⁸ And when conditional threats are made with a sense of purpose and likelihood that they will be executed if the condition is/isn’t satisfied, they will be considered criminal threats.

As the court explains, “‘Most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won’t have to carry out the threats.’”¹⁹

Example:  A woman witnessed a robbery perpetrated by gang members.  She had gone to court twice for the prosecution.  The defendant went to her home, grabbed her by the throat, put a gun to her head and said “don’t go to court and testify against our home boys….or else we’ll hurt you or we’ll take you out…If you go to court and testify, I’ll kill you…There’s nowhere you can go where I won’t be able to find you.”

The defendant argued that conditional threats were excluded from Texas’s criminal threats law.  However the court held, “Under Brooks’s [the defendant’s] approach, every threat that is conditional would go unpunished, no matter how much fear is reasonably felt by the victim. This would lead the way to such an absurdity as excluding from the statute’s prohibition the threat, “If the sun rises tomorrow, I will kill you.” Such a result clearly undermines the purpose of the statute. We believe Penal Code section 422 was aimed precisely at the kind of behavior in which Brooks engaged here. If not this, then what?”²⁰

Empty threats

“Empty” threats are threats that the maker of the threat doesn’t intend to carry out. They are more of a scare tactic than a real threat.  But whether or not the individual “really” intends to execute the treat is irrelevant to a criminal threats prosecution.  All that is required is that you convey the threat in a credible manner so that the recipient of the threat reasonably believes that you intend to see it through.²¹

Example:  The defendant (a Vietnam vet) threatened to retrieve a grenade to “blow up” a car repair shop with which he was having a problem.  He did, in fact return with the grenade, and the employees believed he might execute his threat.  Only after the police arrived did they discover that the bottom of the grenade had been drilled out and that it was therefore not an active grenade.²²

Given these facts, the defendant clearly didn’t intend to execute the threat. Yet the employees reasonably feared that he did.  This is why he was properly charged with the offense.

In general, a judge or jury determines whether or not a statement was a threat by examining all of the surrounding circumstances in the case.²³

There are numerous legal defenses to the charge

2. What are common defenses to Penal Code 422?

If the prosecutor can’t prove any of the elements above, you cannot be convicted of this offense.  As such, there are numerous legal defenses on which the defense can rely.

The following are examples of some of the most common defenses to a criminal threats charge that your attorney can present on your behalf to raise a reasonable doubt of guilt.

2.1. The threat wasn’t immediate

The language of Penal Code 422 PC states that the threat must be so “unequivocal, unconditional, immediate and specific” that it conveys an immediate possibility of execution.

An “immediate possibility of execution” doesn’t necessarily mean that it has to be a threat to do something right this second.  While it can be that, it can also be a situation where the threatened individual understands that if he/she doesn’t comply with your demand at some later point, you will be able to execute the threat at that time.²³

But if the alleged threat was so vague…and there was no sense of when you might execute the threat…that vagueness would serve as a defense.

Example: An inmate serving a life prison sentence without the possibility of parole tells one of the deputies that he’s going to kill the deputy and his family.Under this scenario, the inmate would probably not be convicted of making a criminal threat.  Without more, there’s no sense of immediacy or any reason for the deputy to assume that the defendant has the ability to carry out his threat.

Contrast this to a situation where the inmate says that if the deputy doesn’t comply with his demands, he’s going to have his fellow gang members buy the deputy’s address from a shady DMV employee, follow him home from work, rape his wife, molest his children and then kill him by firing so many shots that he’d have to have a closed casket funeral.²⁴

There is a clear distinction between these two threats.  The first conveys no sense of immediacy.  In fact, the inmate is in prison for life and would seem incapable of carrying out the threat.  However, the second is very clear – the inmate will have his friends execute the threat if the deputy fails to obey the inmate’s demands.

2.2. The threat was vague or ambiguous

While a criminal threat must be “specific,” it does not have to communicate a time or precise manner of execution.²⁵ This means that even if the threat, on its face, appears vague or ambiguous, if the surrounding circumstances clarify its meaning, it will qualify as a criminal threat.²⁶

It, therefore, follows that the absence of circumstances that would be expected to accompany a threat may serve as a defense to the claim that the statement was a criminal threat.

Example: Let’s refer back to an example above where the defendant, a high school student, felt disrespected by his teacher when the teacher opened a door that accidentally hit the student in the head.  To retaliate, the student “got in the teacher’s face” and stated that he was “going to get him”.

The court reasoned that the defendant’s statement was nothing more than a vague threat of retaliation without prospect of execution.  The threat wasn’t accompanied by an act of violence or show of force upon the teacher, property or anyone else.  Neither was there any history of any ill-exchanges between the student and teacher.  There was simply nothing to indicate that the threat rose to the level of a criminal threat.²⁷

2.3. The victim wasn’t afraid

If the alleged victim doesn’t fear your threat…either because he/she believes that it is a joke or that you are incapable of executing it…then there is no criminal threats violation – period.  The victim must be placed in fear and if…for whatever reason this isn’t the case…you should be acquitted of the charge.

2.4. The threat (or alleged victim’s fear) were unreasonable

If the recipient of the threat doesn’t feel threatened…or if he does, but that fear is unreasonable…you should not be convicted of this offense.  There are actually two requirements here:  the victim’s fear must be (1) reasonable, and (2) real.  And if both requirements aren’t satisfied, there is no case.²⁸

This means that it doesn’t matter if the threatened individual actually fears your threat if it wasn’t reasonable to do so under the circumstances.

For example, if someone threatens to run you over with an airplane…someone who has no pilot’s license and threatens you while you are standing in the street of a residential neighborhood…it would not be reasonable for you to fear that the individual making the threat would actually see it through.

2.5. The fear wasn’t sustained

The last part of the “fear” analysis involves whether the victim’s fear was sustained as opposed to momentary or fleeting.  If the fear only lasted for a brief moment…and didn’t cause any prolonged concern…you should not be convicted of criminal threats.

And if the victim’s fear was sustained…but it was an over-reaction and therefore not reasonably sustained…that, too, may serve as a defense.

2.6. The threat was protected as free speech

Texas’s criminal threats law does not apply to constitutionally protected speech.²⁹ This law only targets individuals who try to instill fear in others, not those who engage in “mere angry utterances or ranting soliloquies, however violent”.³⁰

Example: The defendant…an inmate in jail…told a jail psychotherapist that he was thinking about how he was going to kill [his girlfriend] once he was released from jail, that he had previously threatened to kill her and that if he saw her with someone else, he would shoot her, then the kids and then himself.  The defendant also told the psychotherapist that he had a friend who would kill her if he asked him to do so.  The psychotherapist then relayed the information to the girlfriend.

The court held that Penal Code 422 PC was not enacted to punish emotional outbursts.  It recognized the importance of examining the context of the statement in order to determine whether a threat qualifies as protected speech or rises to the level of a criminal threat.

The court reasoned that the threats were part of the therapy…intended only for the therapist’s ears…and, as such, they are protected.  If, however, the defendant said to the therapist, “You can tell Luckhart [the defendant’s girlfriend] that I am going to kill her”, that would be a different situation…one that would be appropriate for a criminal threats prosecution.³¹

2.7. False accusations

Because there is no requirement that the victim suffers any physical injury, criminal threats is a crime ripe for false accusations.  Anyone who is angry, jealous, vengeful, spiteful or trying to escape his/her own criminal liability could easily falsely accuse another person of this serious crime. This is especially true when the accusation is of a verbal threat, with no written or electronic recording.

But as Ventura criminal defense lawyer Darrell York³² explains, “Our attorneys are all former police investigators and prosecutors.  This experience allows us to explore and examine cases in a way where we can detect the lies and reveal the truth.  If you were falsely accused of making criminal threats, we will fight the charge to clear your name.”

A violation of this crime can potentially lead to a fine and/or jail time.

3. What are the penalties for a 422 PC conviction?

Penal Code 422 PC is what’s known as a “wobbler ” which means that prosecutors may charge the offense as either a misdemeanor or a felony, depending on

1. the circumstances of the offense, and
2. your criminal history.

If convicted of the misdemeanor, you face up to one year in county jail and a maximum $1,000 fine.  If convicted of the felony, you face up to three years in the Texas state prison and a maximum $10,000 fine.³³ And if you personally use a deadly or dangerous weapon to communicate your threat, you face an additional and consecutive one-year in the state prison.³⁴

Lastly, if you make threats

• on more than one occasion,
• against multiple people, or
• pursuant to different objectives,

you could face these penalties for each threat that you communicate.

Note that the Los Angeles County District Attorney’s Office will generally not prosecute criminal threats cases unless:

1. The offense was related to domestic violence or a hate crime;
2. The suspect made repeat threat offenses in the last 24 months;
3. There is a documented history of threats from the suspect towards the victim;
4. The suspect had a dangerous or deadly weapon during the offense; or
5. There was no indicia of substance abuse disorder or mental illness.³⁵

3.1. Texas three strikes law

When charged as a felony, a conviction for criminal threats qualifies as a serious felony which means that it is a “strike” for purposes of Texas’s three-strikes law.³⁶

If you are subsequently charged with any felony…and have a prior “strike” on your record…you will be referred to as a “second striker,” and your sentence will be twice the term otherwise required by law.³⁷

If charged with a third felony…and you have two prior strikes…you will be referred to as a “third striker” and will serve a mandatory minimum sentence of 25 years to life in the state prison.³⁸

And because Penal Code 422 PC is a strike, you must serve at least 85% of your sentence before you will be eligible for release on parole.

3.2. Additional penalties

Penal Code 422 PC is considered a crime of moral turpitude.³⁹ “Crimes of moral turpitude” are crimes that are viewed as more offensive and reprehensible than others.  Based on this classification, a conviction for Texas’s criminal threats law potentially subjects you to

• professional discipline (since criminal convictions can affect professional licenses),⁴⁰ and
• deportation or removal if you are a legal immigrant or alien.⁴¹

4. Are there related offenses?

There are a number of offenses that could be charged in connection with criminal threats.  If you threaten to kill or seriously injure another person during the commission or attempted commission of another crime, prosecutors will likely charge you with both crimes.

The following are some examples of these types of offenses.

4.1. Penal Code 136.1 PC Texas’s law against dissuading a witness

Penal Code 136.1 PC Texas’s law against dissuading a witness prohibits preventing…or attempting to prevent…any witness or victim of a crime from reporting the crime or testifying about the crime.⁴²

If you attempt to dissuade a witness from testifying…and do so by threatening imminent harm in violation of Texas’s criminal threats law…prosecutors will likely charge you with both offenses.

Like Penal Code 422 PC, dissuading a witness is a wobbler, punishable by up to one year in a county jail or by up to four years in the state prison.

4.2. Extortion

Simply put, you violate Penal Code 518 PC Texas’s extortion law when you use force or threats to gain money, property or other services.  You also commit extortion when you threaten a public officer in order to compel him/her to perform an official act.⁴³

Suppose, for example, you threaten a politician. You tell him that if he doesn’t vote for the specific legislation, you’ll make sure his family suffers the consequences. Prosecutors could charge you with both extortion and criminal threats.

Extortion is a felony, punishable by two, three or four years in the state prison and a maximum $10,000 fine.⁴⁴

4.3. Domestic violence

Texas’s domestic violence laws apply to crimes that are committed against one’s current or former

• spouse,
• romantic partner,
• cohabitant,
• child, or
• parent.

Allegations of domestic violence are often based on highly charged emotional situations.  It is not at all uncommon for people in these situations to threaten violence… even when there is no actual intent to inflict harm.  But if the recipient of the threat fears for his/her safety, prosecutors will likely charge the alleged offender with

1. criminal threats as a crime of domestic violence (which may subject him/her to additional penalties), or
2. criminal threats in addition to another domestic violence offense if there are also allegations of actual force or violence.

4.4. Penal Code 646.9 PC Texas’s stalking law

Penal Code 646.9 PC Texas’s stalking law prohibits harassing or threatening another person to the point where that individual fears for his/her safety or the safety of his/her family.⁴⁵ This law is very similar to Penal Code 422 PC.

If you “stalk” another person…and communicate a verbal, written or electronically transmitted threat that causes the recipient reason to believe that you intend to carry out that threat…you face prosecution for criminal threats and stalking.

Stalking is also a wobbler, punishable by up to one year in a county jail or by up to five years in the state prison.⁴⁶

4.5. Penal Code 186.22 PC Texas’s gang enhancement

Penal Code 186.22 PC is known as Texas’s criminal street gang enhancement. If you threaten another individual for the benefit of a gang, you subject yourself to 5, 10, 15 or 25-years-to-life in prison in addition and consecutive to the sentence that you would otherwise receive for your Penal Code 422 PC conviction.⁴⁷

4.6. Aggravated trespass

Penal Code 601 PC aggravated trespass is frequently charged along with criminal threats.

Aggravated trespass is charged when someone first makes a credible threat to the safety of another person or their immediate family, and then enters that person’s residence or workplace within thirty (30) days of making the threat, without a lawful purpose and with intent to carry out the threat.⁴⁸