Opinion issued July 11, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00800-CR

———————————

DAMIEN THADDEUS JONES, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Case No. 2337303

MEMORANDUM OPINION

Former state representative Gina Calanni received an anonymous text 

message on December 2, 2019. The message stated, “Republican party knows about 

your sexual relationship with a staffer. There are details and evidence. I’d suggest 

you resign soon or it will make the news. Your choice.” Calanni contacted the 
2

authorities and Damien Thaddeus Jones was subsequently indicted and convicted 

under the “coercion of a public servant statute”―section 36.03(a)(1) of the Texas 

Penal Code as incorporating section 1.07(a)(9)(D) of the Code.1 

In this appeal, Jones challenges his conviction in two issues. First, Jones 

contends that section 36.03(a)(1), as it incorporates section 1.07(a)(9)(D), is 

unconstitutional as facially overbroad.

2 Second, Jones claims that his conviction is 

supported by legally and factually insufficient evidence. 

We affirm.

1

 Prior to trial, Jones sought a pretrial application for writ of habeas corpus in which 

he argued that the “coercion of a public servant statute” was facially overbroad. The 

appellate record contains no express ruling on the habeas application. But the trial 

court proceeded to trial and Jones was ultimately convicted under that statute. 

Accordingly, the record reflects that Jones’s habeas application was overruled 

implicitly and his facial overbroad challenge is thus properly before us. See TEX. R.

APP. P. 33.1(a)(2)(A).

2

 Jones also appears to assert that these Penal Code provisions taken together are 

unconstitutional as applied to him. However, Jones has provided us with no 

substantive argument and no supporting authority to “show that, in its operation, the 

statute is unconstitutional as to him in his situation”—just conclusory assertions. 

See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 916 (Tex. Crim. App. 2011). As a 

result, any as-applied challenge is not properly before us. See TEX. R. APP. P. 

38.1(i); see also Adell v. State, No. 01-21-00439-CR, 2023 WL 4938111, at *40 

(Tex. App.—Houston [1st Dist.] Aug. 3, 2023, pet. ref’d) (mem. op., not designated 

for publication) (holding that appellant waived complaint for inadequate briefing);

see also Nelson v. State, No. 01-17-00746-CR, 2018 WL 6495171, at *8 n.7 (Tex. 

App.—Houston [1st Dist.] Dec. 11, 2018, pet. ref’d) (mem. op., not designated for 

publication) (concluding that appellants waived their constitutional challenge to 

section of the Penal Code where they cited no supporting authority and provided no 

analysis).
3

Background

Gina Calanni was a former state representative who was first elected in 2018. 

When she ran for re-election in 2020, she was unopposed in the Democratic primary. 

On December 2, 2019, seven days before the deadline to apply for re-election, 

Calanni received an anonymous text message, indicating that her purported sexual 

relationship with a staffer could be exposed and suggesting that she resign.

Upon receiving the message, Calanni testified that “I was scared ‘cause I 

didn’t know who it was, or, you know, what was the next threat that was going to 

come, and I was worried about my boys.” Calanni was also worried about her safety 

and her career because voters might not vote for her regardless of the message’s 

truth. She said that voters “would lose faith in me as their public official . . . who’s 

doing inappropriate things.” Calanni was afraid her sons might have seen the 

message and caused them fear. “I thought it was a threat.” 

After Calanni received the text message, she notified her chief of staff and 

Texas Department of Public Safety (“DPS”) officers, who met with her and showed 

her pictures of suspects. Calanni recognized Jones and knew that he used to work 

for another politician. Calanni also testified that Jones was not a public official or a 

member of any government body at the time. 

Robert Mayton, a special agent in the Criminal Investigations Division of the 

DPS, testified that he investigated the anonymous text message sent to Calanni. 
4

Mayton testified that in speaking with Calanni, she felt upset, threatened, that her 

livelihood and political future were at stake, and that the allegations in the message 

were untrue. 

Mayton learned that the text message was received from a phone number

registered to Ad Hoc Labs, the developer of a cell phone application called Burner. 

Mayton further testified that the underlying cell phone number for the text message 

was traced to Jones. During his investigation, Mayton called that number and left a 

message. Jones later returned the call. 

Mayton obtained a driver’s license photo of Jones and showed it to Calanni,

who recognized him. Mayton then determined that Jones worked as a podcaster and 

political strategist. When police later detained Jones during a traffic stop, Mayton 

arrived on scene. He dialed the cell number in question and saw his phone number 

appear on Jones’s cell phone. Mayton testified that he then confiscated Jones’s cell

phone. Jones did not indicate that his cell phone had been lost or stolen, had been 

out of his possession, or was hacked in the previous two months. 

Mayton gave Jones’s cell phone to the Harris County District Attorney’s 

Office. Mayton also obtained records from T-Mobile covering a 10-day period 

between November 29, 2019 and December 9, 2019. Those records confirmed that

Jones owned the cell phone since October 3, 2013 and confirmed his cell phone 

number.
5

Matthew Gray, a digital forensics investigator with the Harris County District 

Attorney’s office, testified that the data from Jones’s phone had been extracted, 

which was included as a report and admitted as an exhibit. Gray testified that 

according to the report, Burner had been installed on Jones’s phone after the 

application was purchased on February 24, 2019. 

The State showed Gray the text message sent to Calanni at 7:49 p.m. on 

December 2, 2019. Gray explained that with an Apple device, if a user enters a 

phone number, an authentication process determines whether the receiver of the 

message is also using an Apple device and it saves the authentication process in the 

device. Gray confirmed that Jones’s phone had performed an authentication process 

on December 2, 2019 at 7:44 p.m.—just minutes before the text message in question 

was sent to Calanni. However, the actual text message sent from Jones’s phone to 

Calanni was no longer available. And the digital forensics report could not identify

who was using the phone at the time or who actually sent any messages. 

After the State rested, Jones asserted that even if it is proven that he sent the

text message, it is “the definition of protected First Amendment speech,” protected 

by the NAACP case3and that even assuming it is a threat, “that threat is allowed 

under the law” because “there’s no threat of violence” and “no threat of harm.”

3 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
6

Jones moved for a directed verdict and further argued that he is allowed to threaten. 

The trial court denied Jones’s request for a directed verdict.4 

The jury convicted Jones under the “coercion of a public servant

statute”―section 36.03(a)(1) of the Texas Penal Code as incorporating section 

1.07(a)(9)(D) of the Code. The trial court then sentenced Jones to one year in county 

jail, suspended the sentence, and placed him on community supervision. Jones filed 

a motion for new trial, arguing that the charge of coercion of a public servant violated

his First Amendment right to free speech and that the evidence was insufficient to 

establish him as the sender of the text message as a matter of law. 

Facial Overbreadth Challenge

In his first issue, Jones argues that the “coercion of a public servant statute”—

section 36.03(a)(1) of the Texas Penal Code, as it incorporates the definition of 

“coercion” in section 1.07(a)(9)(D) of the Penal Code—is unconstitutionally 

overbroad in violation of the First Amendment to the United States Constitution. 

4 At the jury charge hearing, Jones re-urged his directed verdict invoking the First 

Amendment. Jones argued that if he sent the text message, it was protected speech 

under NAACP, “[t]hat you’re allowed to use coercion, you’re allowed to use 

embarrassment, and even up to harassment to a degree.” The trial court again denied 

Jones’s request for directed verdict. 
7

Standard of Review and Legal Principles

The Free Speech Clause of the First Amendment provides that “Congress shall 

make no law . . . abridging the freedom of speech.” U.S. CONST. amend. I. It applies 

to the States by virtue of the Due Process Clause of the Fourteenth Amendment. 44 

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996).

Under the First Amendment’s “overbreadth doctrine,” a statute may be 

declared unconstitutional on its face, even if it might have some legitimate 

applications. Ex parte Nuncio, 662 S.W.3d 903, 917–18 (Tex. Crim. App. 2022) 

(citing Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016)). The person 

challenging a statute “must demonstrate from the text [of the law] and from actual 

fact that a substantial number of instances exist in which the law cannot be applied 

constitutionally.” Nuncio, 662 S.W.3d at 920 (citing New York State Club Ass’n v. 

City of New York, 487 U.S. 1, 14 (1988)). 

It must be shown that the statute covers a substantial amount of protected 

speech, not only in an absolute sense, but also relative to the statute’s plainly 

legitimate sweep. See Virginia v. Hicks, 539 U.S. 113, 119–20 (2003). The danger 

the statute will be applied unconstitutionally must be realistic and not based on some 

“fanciful hypotheticals.” Nuncio, 662 S.W.3d at 918 (citing Perry, 483 S.W.3d at 

902). This type of constitutional defect causes the statute—or its applicable 

portion—to be invalidated altogether. See Ex parte Perry, 471 S.W.3d 63, 89 (Tex. 
8

App.—Austin 2015), aff’d in part, rev’d in part on other grounds, 483 S.W.3d at

902. 

When presented with a challenge to the constitutionality of a statute, we must 

presume that the statute is valid and that the legislature did not act unreasonably or 

arbitrarily in enacting it. TEX. GOV’T CODE § 311.021; see Allen v. State, 570 S.W.3d 

795, 802 (Tex. App.—Houston [1st Dist.] 2018), aff’d, 614 S.W.3d 736 (Tex. Crim. 

App. 2019). The question of whether a criminal statute is facially overbroad under 

the First Amendment is reviewed by an appellate court de novo. See Allen, 570 

S.W.3d at 802. “An overbreadth challenge does not involve the strict scrutiny 

standard.” Nuncio, 662 S.W.3d at 920. 

Here, the State does not dispute that section 36.03(a)(1), as it incorporates 

section 1.07(a)(9)(D), implicates the First Amendment. Indeed, the State asks this 

Court to hold that the statute is valid under the First Amendment. Accordingly, we 

turn to the first step of the overbreadth analysis—construing the literal text of section 

36.03(a)(1), as it incorporates section 1.07(a)(9)(D), to ascertain its scope and 

breadth. See Nuncio, 662 S.W.3d at 918; Perry, 483 S.W.3d at 902.

Step One—Construing the Statute

In construing a statute, we give effect to the plain meaning of its language 

unless the language is ambiguous or the plain meaning leads to absurd results that 

the legislature could not possibly have intended. See Perry, 483 S.W.3d at 902. In 
9

determining plain meaning, we consult dictionary definitions, rules of grammar and 

usage, and consider words in context. Id. We presume that every word has been 

used for a purpose and that each word, phrase, clause, and sentence should be given 

effect if reasonably possible. Id. at 902–03; see TEX. GOV’T CODE § 311.011(a). 

When the meaning of statutory language is not plain or leads to absurd results, 

we may consider extratextual factors including: (1) the object sought to be attained 

by the Legislature; (2) the circumstances under which the statute was enacted; (3) the 

legislative history; (4) common law or former statutory provisions, including laws 

on the same or similar subjects; (5) the consequences of a particular construction; 

(6) administrative construction of the statute; and (7) the title (caption), preamble, 

and any emergency provision. Perry, 483 S.W.3d at 903. 

Texas courts should, if possible, employ a reasonable, narrowing construction 

to avoid a constitutional violation—but only if the statute is readily susceptible to 

such a construction. Id. Additionally, a court may cure an overbreadth problem by 

severing a portion of the statute. Id. However, severance is not feasible if the valid 

and invalid statutory provisions at issue are inextricably intertwined so that a 

severance would render the statute incomplete or contrary to the legislative intent. 

Id.
10

Section 36.03(a)(1) of the Texas Penal Code was enacted by the legislature in 

1973 and amended in 1989 and 1993.5 It provides in relevant part:

(a) A person commits an offense if by means of coercion he:

(1) influences or attempts to influence a public 

servant in a specific exercise of his official 

power or a specific performance of his 

official duty or influences or attempts to 

influence a public servant to violate the 

public servant’s known legal duty.

TEX. PENAL CODE § 36.03(a)(1) (Emphasis added).

6

The word “coercion” in the statute is not defined. It is, however, defined in 

the general definitions provision of the Penal Code, section 1.07(a)(9). See id.

§ 1.07(a)(9). That provision gives “coercion” several meanings in six subsections.

Id. § 1.07(a)(9)(A)–(F). Jones takes issue with the meaning of “coercion” in only 

5 See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 

944 (amended 1989, 1993) (current version at TEX. PENAL CODE § 36.03); Act of 

April 27, 1989, 71st Leg., R.S., ch. 67, §§ 1, 2, 1989 Tex. Gen. Laws 380, 380 

(current versions at TEX. PENAL CODE §§ 1.07(a)(9), 36.03(c)); Act of May 29, 

1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3588, 3659 

(current version at TEX. PENAL CODE §§ 1.07(a)(9), 36.03).

6

 Section 36.03(a)(1) contains an exception to culpability “when the person 

attempting to influence the public servant is himself a member of the governing 

body of a governmental entity and is engaged in an official action.” TEX. PENAL 

CODE § 36.03(c). Jones did not dispute that he was not a member of a governing 

body of a governmental entity at the time this text message was sent. As a result, 

this exception is not part of this appeal. 
11

subsection (D)—“a threat, however communicated to expose a person to hatred, 

contempt, or ridicule.”

7 See id. § 1.07(a)(9)(D) (Emphasis added).

Taken together, section 36.03(a)(1), as incorporating section 1.07(a)(9)(D), 

provides:

A person commits an offense if by means of coercion—a threat, 

however communicated, to expose a person to hatred, contempt, 

or ridicule—he influences or attempts to influence a public 

servant in a specific exercise of his official power or a specific 

performance of his official duty or influences or attempts to 

influence a public servant to violate the public servant’s known 

legal duty.8

The word “threat” is not defined in the Penal Code. But we must ascertain its 

meaning in order to determine the statute’s constitutional scope and breadth. Jones 

does not contend that “threat” has any particular meaning. Instead, he broadly 

asserts that most threats enjoy “broad protection” under the First Amendment and 

that the face of this statute impermissibly criminalizes “any threat.”

The State, on the other hand, maintains that “threat,” as used in this statute, 

should be understood to mean an “extortionate threat.” According to the State, 

7

 The State indicted Jones for coercion of a public servant by “unlawfully, 

intentionally and knowingly attempt to influence Gina Calanni, a public servant, in 

a specific exercise of her official power or a specific performance of her official 

duty, namely to resign from public office, by means of coercion, namely by 

threatening to expose Gina Calanni to hatred, contempt, or ridicule.” 

8 See TEX. PENAL CODE §§ 1.07(a)(9)(D), 36.03(a)(1) (Emphasis added).
12

because extortionate speech is unprotected by the First Amendment, much like true 

threats, section 36.03(a)(1), as incorporating section 1.07(a)(9)(D), cannot be 

facially overbroad because it prohibits only unprotected speech.

9

Stated differently, the State does not actually propose a suggested definition 

of “threat,” but, rather, asks this Court to add the word “extortionate” to the statute

to modify “threat.” This we cannot do. Adding words to a statute is a legislative 

function, not a judicial function. See TEX. CONST. art. II, § 1. It is the legislature’s 

prerogative to enact and amend statutes. See Molinet v. Kimbrell, 356 S.W.3d 407, 

414 (Tex. 2011). And it is the judiciary’s responsibility to interpret and apply those 

statutes according to the plain language used by the legislature. See id. We presume 

that every word has been used for a purpose and that each word, phrase, clause, and 

sentence should be given effect if reasonably possible. Arteaga v. State, 521 S.W.3d 

329, 334 (Tex. Crim. App. 2017) (citing State v. Hardy, 963 S.W.2d 516, 520 (Tex. 

Crim. App. 1997)).

9

“‘True threats’ encompass those statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful violence 

to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 

359 (2003). The State cites to several federal cases that generally involve uses of 

force and require obtaining property. See United States v. Quinn, 514 F.2d 1250, 

1268 (5th Cir. 1975); United States v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 

1972); United States v. Coss, 677 F.3d 278, 289 (6th Cir. 2012). But none of the 

parties here have contended that section 36.03(a)(1) in conjunction with section 

1.07(a)(9)(D) implicates the use of force or constitutes a “true threat” under First 

Amendment jurisprudence.
13

Based on these settled principles, we must presume that the legislature 

purposely chose not to include “extortionate” in the statutory definition of 

“coercion” to limit the meaning of “threat.” Accordingly, we decline the State’s 

invitation to judicially amend this statute by adding a word not included by the 

legislature. See Herron v. State, 625 S.W.3d 144, 153 (Tex. Crim. App. 2021) (“It is 

not for courts to add or subtract [language] from such a statute.”). We thus 

necessarily reject the State’s position that section 36.03(a)(1), as incorporating 

section 1.07(a)(9)(D), prohibits only unprotected extortionate speech.

Yet, we still must ascertain the meaning of “threat.” On this front, the Texas 

Court of Criminal Appeals’ decision in Perry provides important guidance. Perry, 

483 S.W.3d at 904–06.

In Perry, the court was confronted with an overbreadth challenge to the same 

“coercion of a public servant statute.” And, like here, the court in Perry had to 

ascertain the meaning of “threat” as used in the statutory definition of “coercion.”10

Id. at 904–05. The State argued in Perry, similar to here, for a narrow meaning of 

“threat” that would only proscribe unprotected speech. Id. 

The court of criminal appeals rejected the State’s interpretation as 

“misguided.” Id. at 905. It looked instead to dictionaries, grammatical 

10 A different subsection of the statutory definition of “coercion” was at issue in Perry, 

subsection (F) rather than (D) but all six subsections of section 1.07(a)(9) share the 

same undefined term “threat.” TEX. PENAL CODE § 1.07(a)(9)(A)–(F). 
14

considerations, and rules of statutory construction in concluding that “threat,” as 

used in section 1.07(a)(9) and incorporated into section 36.03(a)(1), should be 

broadly construed to mean—“‘[a]n expression of an intention to inflict something 

harmful’” or “‘[a] declaration of an intention or determination to inflict punishment, 

injury, etc., in retaliation for, or conditionally upon, some action or course.’” Id. at 

905–06 (quoting Threat, WEBSTER’S II NEW COLLEGE DICTIONARY (1999); Threat, 

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (2nd ed. [unabridged] 

1987)); see TEX. GOV’T CODE § 311.011(a). “[W]e are not free to arbitrarily carve 

out a different meaning simply to avoid First Amendment complications arising 

from its application to the statute before us.” Perry, 483 S.W.3d at 906.

As an intermediate Texas appellate court, we are bound to apply this meaning 

of “threat” as articulated by the Texas Court of Criminal Appeals. See Bradshaw v. 

State, No. 01-19-00611-CR, 2020 WL 7062589, at *3 (Tex. App.—Houston [1st 

Dist.] Dec. 3, 2020, no pet.) (mem. op., not designated for publication). When we 

do so, section 36.03(a)(1), as incorporating section 1.07(a)(9)(D), provides as 

follows: 

A person commits an offense if by means of coercion—an 

expression of an intention to inflict something harmful or a 

declaration of an intention or determination to inflict punishment, 

injury, etc., in retaliation for, or conditionally upon, some action 

or course, however communicated, to expose a person to hatred, 

contempt, or ridicule—he influences or attempts to influence a 

public servant in a specific exercise of his official power or a 

specific performance of his official duty or influences or attempts 
15

to influence a public servant to violate the public servant’s known 

legal duty.

Our overbreadth analysis is therefore confined to this proscribed offense. 

Step Two—Jones’s Burden to Show Facial Overbreadth

In the next step of the overbreadth analysis, we must determine whether Jones 

met his burden to show that a substantial number of instances exist in which section 

36.03(a)(1), as incorporating section 1.07(a)(9)(D), cannot be applied 

constitutionally within the ambit of the First Amendment. Nuncio, 662 S.W.3d at 

920 (citing New York State Club Ass’n, 487 U.S. at 14). Jones must demonstrate, 

and not based on some “fanciful hypotheticals,” that the statute covers a substantial 

amount of protected speech, not only in an absolute sense, but also relative to the 

statute’s plainly legitimate sweep. Id. 

In that regard, Jones asserts that the statute is overbroad because it 

“criminalize[s] a breathtaking amount of constitutionally protected speech” and 

“would render many common scenarios in political discourse criminal.” Jones 

provides the following eight hypotheticals to show overbreadth:

(1) “[P]ro-choice protesters cannot embarrass a state representative 

if they vote to restrict abortion rights;” 

(2) “A citizen cannot hold signs outside a Justice’s house to show 

their disdain for a particular ruling;” 

(3) “A non-profit, like project veritas, cannot post videos that hold 

elected officials in contempt for failing to act;” 
16

(4) “Online influencers could not ridicule Governor Abbott on his 

handling of electrical power grid;” 

(5) “A local blogger, who investigates local campaign filings could 

not ridicule the expenditure of funds by candidates because it 

might embarrass the official;” 

(6) “Political commentators could not demand the resignation of the 

governor for considering signing an anti-abortion bill;” 

(7) “Citizens could not threaten to release audio tapes of a 

Presidential candidate to drop out of the race if he was caught on 

a ‘hot mic’ saying” inappropriate things; and 

(8) “A lawyer could not threaten to release audio tapes of a Chief of 

Staff of House [of] Representatives bragging about an elected 

District Attorney charging innocent citizens as a political favor.” 

The vast majority of these hypotheticals are inapplicable to sections

36.03(a)(1) and 1.07(a)(9)(D). Hypotheticals 2 through 6 and 8 do not involve a

communication to influence, or attempt to influence, a public servant in the “specific 

exercise of his official power” or “specific performance of his official duty” or to 

violate a “known legal duty.” See TEX. PENAL CODE § 36.03(a)(1). Instead, they all 

concern communications and expressions made in reaction to, rather than to 

influence or to attempt to influence, the exercise of “official power” or “official 

duty” by a public servant. And hypothetical 7, running for office, does not involve 

an “official power,” “official duty,” or “legal duty” of a public servant. 

As a result, Jones’s hypotheticals 2 through 8 are insufficient to satisfy his 

burden under the overbreadth doctrine of showing that the “coercion of a public 
17

servant statute” prohibits a substantial amount of protected expression. Rather, they 

are merely “fanciful hypotheticals.” See Perry, 483 S.W.3d at 902. 

Jones’s hypothetical 1 arguably could implicate section 36.03(a)(1) as 

incorporating section 1.07(a)(9)(D). But it alone fails to satisfy Jones’s burden under 

the overbreadth doctrine. A single purported instance does not demonstrate that the 

amount of protected speech affected by a statute is substantial. See Nuncio, 662 

S.W.3d at 920. Stated differently, a single purported instance is not substantial. This 

follows the directive that “[a]pplication of the overbreadth doctrine is ‘manifestly 

strong medicine’ to be employed ‘sparingly and only as a last resort.’” Id. (citing 

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). 

Accordingly, for all of these reasons, we conclude that Jones has failed to 

meet his burden under the overbreadth doctrine of showing that there is a realistic 

danger that Texas Penal Code section 36.03(a)(1), as it incorporates Texas Penal 

Code section 1.07(a)(9)(D), will be unconstitutionally applied in a substantial 

number of instances beyond its legitimate sweep. We therefore cannot, and will not,

hold that section 36.03 in conjunction with section 1.07(a)(9)(D) is facially and 

unconstitutionally overbroad. 

We overrule Jones’s first issue.
18

Sufficiency of the Evidence

In his second issue, Jones argues that the evidence is legally and factually 

insufficient to support his conviction under the “coercion of a public servant statute”

for two reasons. First, Jones asserts that the evidence of an alleged threat is 

insufficient to convict him because “the sender simply informed Ms. Calanni of what 

the Republican party was planning on doing” and that the message transmitted “is 

normally considered a heads up and not worthy of an investigation.” Essentially, 

Jones argues that the text message sent was not a “true threat.”11 See Black, 538 U.S. 

at 359 (“‘True threats’ encompass those statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful violence 

to a particular individual or group of individuals.”). And second, Jones asserts that 

there is insufficient evidence to show that he sent the text message in question. 

Standard of Review

We determine whether the evidence is sufficient by considering all the 

evidence, in the light most favorable to the jury’s verdict, to determine whether any 

rational factfinder could have found the essential elements of the offense beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Montgomery 

v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We defer to the factfinder 

11 Oddly, Jones’s sufficiency argument is strikingly similar to the State’s position, that 

we rejected under the overbreadth analysis, that “threat” should be understood to be 

an “extortionate threat.” 
19

to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable 

inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 

2007). Our role is that of a due process safeguard, and we consider only whether the 

factfinder reached a rational decision. See Malbrough v. State, 612 S.W.3d 537, 559 

(Tex. App.—Houston [1st Dist.] 2020, pet. ref’d); see also Morgan v. State, 501 

S.W.3d 84, 89 (Tex. Crim. App. 2016) (reviewing court’s role “is restricted to 

guarding against the rare occurrence when a fact finder does not act rationally”).

Sufficiency of the evidence should be measured by the elements of the offense 

as defined by a hypothetically correct jury charge. See Hardy v. State, 281 S.W.3d 

414, 421 (Tex. Crim. App. 2009). We must consider both direct and circumstantial 

evidence, as well as any reasonable inferences that may be drawn from the evidence. 

See Malbrough, 612 S.W.3d at 559 (citing Clayton v. State, 235 S.W.3d 772, 778 

(Tex. Crim. App. 2007)); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. 

App. 2012). Circumstantial and direct evidence are equally probative in establishing 

the defendant’s guilt, and circumstantial evidence alone can be sufficient. Clayton, 

235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 

The State need not disprove all reasonable alternative hypotheses inconsistent 

with a defendant’s guilt for the evidence to be sufficient. Wise, 364 S.W.3d at 903. 

An appellate court “considers only whether the inferences necessary to establish 

guilt are reasonable based upon the cumulative force of all the evidence when 
20

considered in the light most favorable to the verdict.” Id. We review factual and 

legal sufficiency under the same standard of review. See Edwards v. State, 497 

S.W.3d 147, 156 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).

We now address each of Jones’s sufficiency challenges in turn. 

Actual Threat

As discussed earlier, section 1.07(a)(9)(D) defines “coercion” as “a threat, 

however communicated, to expose a person to hatred, contempt, or ridicule.” See 

TEX. PENAL CODE § 1.07(a)(9)(D). And “threat” in the context of this statutory 

definition means “‘[a]n expression of an intention to inflict something harmful’” or 

“‘[a] declaration of an intention or determination to inflict punishment, injury, etc., 

in retaliation for, or conditionally upon, some action or course.’” Perry, 483 S.W.3d 

at 905–06.

Accordingly, section 36.03(a)(1) as it incorporates section 1.07(a)(9)(D) does 

not require a “true threat.” Any expression of an intention to inflict something 

harmful or any declaration of an intention or determination to inflict punishment, 

injury, etc., in retaliation for, or conditionally upon, some action or course to expose 

a person to hatred, contempt, or ridicule suffices under the statute—as long as that

“coercion” was meant to influence or attempt to influence Calanni in a specific 

exercise of her official power or a specific performance of her official duty. See TEX.

PENAL CODE §§ 1.07(a)(9)(D), 36.03(a)(1).
21

Here, the jury heard and saw the text message that stated, “Republican party 

knows about your sexual relationship with a staffer. There are details and evidence. 

I’d suggest you resign soon or it will make the news. Your choice.” The jury also 

heard Calanni’s testimony that she was worried about her safety and her career 

because voters might not want to vote for her regardless of whether the message was 

true. She also testified that voters “would lose faith in me as their public official . . . 

who’s doing inappropriate things.” When asked if the message could have been a 

warning, Calanni responded, “I thought it was a threat.” She further testified that 

she thought her reputation amongst state representatives and the public would look 

bad because they did not know whether the message was true. 

Whether Jones used “coercion” i.e. a threat, against Calanni is an essential 

element of the offense of coercion of a public servant and was a question for the 

jury. See TEX. CODE CRIM. PROC. art. 36.13 (jury is judge of facts); Williams, 235 

S.W.3d at 750 (“[T]he responsibility of the trier of fact [is] to fairly resolve conflicts 

in testimony, to weigh the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts.”). Without objection, the word “threat” was not defined in 

the jury charge. The Texas Government Code provides that undefined terms shall 

be “construed according to the rules of grammar and common usage.” TEX. GOV’T 

CODE § 311.011. Jurors may “freely read [undefined] statutory language to have 
22

any meaning which is acceptable in common parlance.” Kirsch v. State, 357 S.W.3d 

645, 650 (Tex. Crim. App. 2012). 

Here, the jury could use its own common sense and usage in determining that 

Jones’s text message—declaring Calanni’s alleged sexual relationship and that it 

would be shared with the media unless Calanni resigned—was a “threat” as that 

word is commonly understood and defined by standard dictionaries. These were the

same sources that the Texas Court of Criminal Appeals looked to in defining “threat” 

for this statute. See Perry, 483 S.W.3d at 905–06. Consequently, based on the 

contents of the text message and Calanni’s testimony, we conclude that the State 

presented sufficient evidence of a “threat” to support Jones’s conviction under the 

“coercion of a public servant statute.” See TEX. PENAL CODE §§ 1.07(a)(9)(D), 

36.03(a)(1).

Identity of the Sender

Next, the jury heard evidence that Mayton traced the message sent to Calanni 

to the Burner application. The number from the Burner application was 

subsequently traced to Jones’s cell phone, and Mayton called Jones’s phone in front 

of Jones and saw Mayton’s number on Jones’s caller id. Gray testified that a 

subsequent data extraction from Jones’s phone showed that Jones had downloaded 

Burner, that Calanni’s number had been entered into Jones’s phone, and that Jones
23

had been using the phone in the days before and after the text message was sent to 

Calanni. 

Mayton also testified that at no time did Jones claim that anyone else had been 

using his phone or that it had been lost or stolen. From this circumstantial evidence, 

the jury could have rationally concluded that Jones sent the text message in question 

to Calanni. See Butler v. State, 459 S.W.3d 595, 602 (Tex. Crim. App. 2015) 

(holding that phone number or other identifying information, along with 

corroborating witness testimony, may “bridge the logical gap” and permit a proper 

inference that the purported author of an electronic communication actually sent the 

message). Consequently, we conclude that the State presented sufficient evidence 

for the jury to reasonably believe that Jones sent the text message to Calanni.

We overrule Jones’s second issue.

Conclusion

For all of the reasons above, we affirm the trial court’s judgment in all things.

Terry Adams

Chief Justice

Panel consists of Chief Justice Adams and Justices Guerra and Farris.

Do not publish. See TEX. R. APP. P. 47.2(b).