UNITED STATES of America, Plaintiff-Appellee v. Felmo James HARDEMAN, Defendant-Appellant.
No. 10-51104
United States Court of Appeals, Fifth Circuit.
Nov. 11, 2011.
408 F. App‘x 409
Summary Calendar.
Judy Fulmer Madewell, Assistant Federal Public Defender, Henry Joseph Bemporad, Federal Public Defender Office, San Antonio, TX, for Defendant-Appellant.
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Felmo James Hardeman appeals his jury trial conviction under the Assimilative Crimes Act (ACA),
The ACA pertains to offenses committed within the special and maritime territorial jurisdiction of the United States, as defined by
Hardeman‘s assertion that the evidence was insufficient to show that any threat of serious bodily injury was imminent is without merit. The jury heard testimony that (1) Hardeman had previously stated to a different representative, “What do I have to do? Bring a pistol in here for you people“; (2) in the past and on the day of the underlying statement, Hardeman was aggressive, violent, and loud; (3) just prior to making the underlying statement, Hardeman had reached into a very large bag numerous times; and (4) while in the process of being escorted out of the building, Hardeman walked to an area behind the representative, then returned and made the above-quoted statement. After Hardeman made the statement, other patrons of the SSA were fearful and moved as far away from him as possible. Finally, the representative testified that he perceived Hardeman‘s statement as a threat of imminent serious bodily injury. See Stults v. State, 23 S.W.3d 198, 205 (Tex.App.2000) (stating that the focus of the inquiry should be whether the complainant was afraid of imminent serious bodily injury at the time of the offense). Viewing the evidence in the light most favorable to the jury‘s verdict, see United States v. Resio-Trejo, 45 F.3d 907, 910, 911 (5th Cir.1995), we conclude that a rational jury could have found beyond a reasonable doubt that Hardeman threatened the representative with bodily injury that was near at hand, mediate, impending, or on the point of happening. See id.; see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Hardeman‘s claim that the evidence was insufficient to prove that any statement he made was a threat is likewise meritless. As Hardeman did not specifically object to the sufficiency of the evidence to prove this element, our review is limited to determining whether there was a manifest miscarriage of justice, “that is, whether the record is devoid of evidence pointing to guilt.” United States v. Delgado, 256 F.3d 264, 274 (5th Cir.2001) (internal quotation marks and citation omitted). Based on the testimony cited above, the record is not devoid of evidence that Hardeman threatened the representative with imminent bodily injury. See id.; see also Walker v. State, 327 S.W.3d 790, 793-95 (Tex.App.2010) (holding that the statement, “Let‘s do it, [Judge] Nekhom. It‘s me and you now,” was a threat to commit serious bodily injury based on the defendant‘s aggressive behavior, tone, and demeanor at the time of the statement and based on the
Finally, Hardeman‘s contention that the prosecution committed misconduct by misstating the law on “imminence” is unpersuasive. Even assuming arguendo that the prosecution‘s remarks were improper, Hardeman has nevertheless failed to establish, based on the foregoing testimony, that “the prosecutor‘s remarks cast serious doubt on the correctness of the jury‘s verdict.” United States v. Thompson, 482 F.3d 781, 785 (5th Cir.2007) (internal quotation marks and footnote citation omitted).
Accordingly, the judgment of the district court is AFFIRMED.