COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00196-CR
NO. 02-13-00197-CR
DANIEL HERNANDEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NOS. F-2012-0920-E, F-2012-0923-E
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OPINION
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Appellant Daniel Hernandez appeals his convictions for aggravated assault
with a deadly weapon and for unlawful possession of a firearm. The jury
assessed punishments of sixty-three years’ confinement for each offense, which
the trial court set to run concurrently. Appellant attacks the sufficiency of the
evidence in the aggravated assault case. Appellate counsel asserted the appeal
in the unlawful possession case was frivolous. Appellant filed a pro se brief
asserting it was not. We affirm both judgments.
Evidence
Indalacio and Guadalupe Quintero were married. They owned a
refreshment business, called Nikory’s Korn, at 805 McKinney Street in Denton,
Texas, in February 2012. They had a portable stand outside on the parking lot
with tables and benches set out where customers could sit and eat. From the
same parking lot, Francisco San Miguel operated a service whereby he and his
brother, Edgar San Miguel, shipped care packages to Mexico. Francisco and
Indalacio were friends.1
Around 9:00 p.m. on the Friday night of February 3, 2012, Appellant drove
through the Nikory’s Korn parking lot. Witnesses described Appellant as burning
tires and peeling out, causing gravel to fly from his tires. Indalacio testified he
was concerned because families were in the parking lot with perhaps as many as
fifty to sixty people, including women and children, who “start[ed] running.”
Shortly thereafter, Appellant drove through the Nickory’s Korn parking lot a
second time in the same manner. Indalacio said he asked Appellant, “[W]hat is
going on? What’s your problem?” Appellant responded by telling Indalacio, “You
are going down,” after which Indalacio told Appellant to get out of his pickup.
Appellant’s response was to burn his tires again. Indalacio picked up a tow hitch
1
Indalacio, in his testimony, does not refer to Francisco by name but refers
to him, instead, as “my friend.”
2
from behind the corn stand and threw it at Appellant’s pickup, hitting it on the
driver’s side door, and then he threw it a second time at Appellant’s pickup’s
back window, shattering it, whereupon Appellant left the parking lot.
The third time Appellant returned, Edgar testified he saw Appellant get out
of his pickup with a gun in his hand and walk towards Nikory’s Korn. Appellant
pointed the gun in the direction of the corn stand and Francisco. Edgar said
Appellant never pointed the gun at him or threatened him.2 Indalacio testified
that his twelve-year-old son came running to him, very frightened, and said a
man had pointed a gun at him and the “multitude that was there,” and that the
man had the gun on Indalacio’s friend (contextually, Francisco). Indalacio twice
said Appellant never pointed the gun at him, but when he heard Appellant had a
gun, he was frightened because Appellant had told him he was “going down,” so
he ran inside his store in the building behind the corn stand.3 From a window
inside the building, Indalacio saw Appellant point the pistol at Francisco and
heard Appellant say to Francisco, “You’re going down; you’re going down.”
Indalacio said he believed Appellant thought Francisco was Indalacio. “[H]e was
2
The jury acquitted Appellant of the offense of aggravated assault against
Edgar.
3
The responding officer testified that Indalacio had told him the assailant
had pointed the gun at him.
3
pointing at them, like looking for me, okay, which one of you is Lupe? He’s not
asking, but that’s what I think he was thinking, to see who it was.”4
Francisco testified and also expressed confusion over whether Appellant
was threatening him or threatening Indalacio. Francisco said he hid behind a
Suburban, and then Appellant got in his pickup and left. Guadalupe, Indalacio’s
wife, said she never saw Appellant point the gun at anyone because she was
inside the building. Guadalupe said Appellant never pointed the gun at her or
threatened her personally.5
About ten minutes later, someone went to the Quinteros’ home, which was
only about a mile away from Nikory’s Korn, and shot up their pickup. Guadalupe
said her twelve-year-old daughter told her someone knocked at the door, but her
daughter did not answer it, and then her daughter heard something that sounded
like fireworks.
Appellant’s wife said Appellant came home that night and complained that
her daughter’s in-laws had ambushed him and damaged his pickup; she said
4
Indalacio’s full name was Indalacio Guadalupe Quintero. His wife’s name
was Guadalupe as well. Francisco referred to Indalacio as Lupe. Edgar knew
Indalacio as Guadalupe. To keep the Quinteros straight during the testimony,
Indalacio was referred to by his first name, but occasionally the witnesses
referred to him as Lupe or Guadalupe.
5
The State charged Appellant with aggravated assault against Guadalupe
as well, but the jury found him guilty of the lesser-included offense of deadly
conduct and assessed his punishment at 365 days’ confinement in the county
jail. Appellant did not appeal that conviction.
4
Appellant thereafter unloaded and then reloaded his gun and left the house.
Contextually, Appellant was referring to the Quinteros: Guadalupe’s brother and
Appellant’s wife’s daughter were in a relationship.
Indalacio testified that he had seen Appellant before that night when two
similar incidents had occurred, one of which involved physical contact, but he did
not know Appellant’s name. He said he later learned from his brother-in-law that
Appellant had been constantly asking about him and wanting to know where he
was and when. Indalacio concluded that the incident of February 3 was no
coincidence but was “planned to hurt [him].”
Aggravated Assault with a Deadly Weapon
In a single point, Appellant contends the evidence is insufficient to support
his conviction for aggravated assault with a deadly weapon against Indalacio.
The State alleged in the indictment that Appellant “intentionally or knowingly
threaten[ed] Indalacio Quintero with imminent bodily injury by pointing a firearm
at Indalacio Quintero and threatening to shoot Indalacio Quintero, and did then
and there during the commission of said assault, use or exhibit a deadly weapon,
to-wit: a firearm.” As was shown above, the evidence showed Appellant pointed
a gun at Francisco and Indalacio’s son. Neither is named as a complainant in
any of the indictments. All three complainants denied Appellant pointed a gun at
them, and the jury acquitted Appellant in one instance and found Appellant guilty
of a lesser-included offense in the other. Only as to Indalacio did the jury convict
Appellant as charged in the indictment.
5
Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170. The trier of fact is the sole
judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.
Ann. art. 38.04 (West 1979); Dobbs, 434 S.W.3d at 170. Thus, when performing
an evidentiary sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Instead, we
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We must
presume that the factfinder resolved any conflicting inferences in favor of the
verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Dobbs, 434 S.W.3d at 170.
6
We measure the sufficiency of the evidence by the elements of the offense
as defined by the hypothetically correct jury charge for the case, not the charge
actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of
the crime are determined by state law.”). Such a charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized
by the indictment means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging
instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)
(“When the State pleads a specific element of a penal offense that has statutory
alternatives for that element, the sufficiency of the evidence will be measured by
the element that was actually pleaded, and not any alternative statutory
elements.”).
Discussion
“[I]t is proper for an indictment to allege the ways an offense may have
been committed in the conjunctive, and for those different ways to be charged to
the jury in the disjunctive.” Garrett v. State, 682 S.W.2d 301, 309 (Tex. Crim.
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App. 1984), cert. denied, 471 U.S. 1009 (1985).6 Consequently, although the
State alleged in the indictment that Appellant “intentionally or knowingly
threaten[ed] Indalacio Quintero with imminent bodily injury by pointing a firearm
at Indalacio Quintero and threatening to shoot Indalacio Quintero,” the jury
charge properly asked the jury whether Appellant “intentionally or knowingly
threaten[ed] Indalacio Quintero with imminent bodily injury by pointing a firearm
at Indalacio Quintero or threatening to shoot Indalacio Quintero.” (Emphasis
added.) See id. (holding charge was not fundamentally defective when charge
provided “by choking or strangling” while indictment alleged “by choking and
strangling”); see also Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App.
1991) (“[A]lthough the indictment may allege the differing methods of committing
the offense in the conjunctive, it is proper for the jury to be charged in the
disjunctive.”), cert. denied, 504 U.S. 958 (1992). The jury charge in this instance
correctly used the disjunctive “or” and not the conjunctive “and.”
Where the charge authorizes the jury to convict a defendant on more than
one theory in the disjunctive, as it did here, we will uphold the verdict of guilt if
the evidence was sufficient on any theory authorized by the jury charge.
Campbell v. State, 426 S.W.3d 780, 786 (Tex. Crim. App. 2014). Indalacio twice
6
Garrett used the “exclusion of reasonable hypotheses” test. Id. at 304.
The Texas Court of Criminal Appeals later abrogated that construct. Geesa v.
State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds,
Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (holding definition
of “beyond a reasonable doubt” not required).
8
denied Appellant pointed the gun at him. We therefore focus on the second
manner and means—whether Appellant threatened Indalacio by threatening to
shoot him and whether during the commission of the assault he used or exhibited
a deadly weapon.
The evidence, which was undisputed, viewed in the light most favorable to
the verdict showed: (1) Even before the date of the offense, Appellant and
Indalacio had two prior incidents, one of which involved physical contact; (2)
upon Appellant’s second drive-through in the parking lot outside Nikory’s Korn,
Indalacio challenged Appellant as to what his problem was; (3) Appellant told
Indalacio in response that he, Indalacio, was “going down”; (4) Indalacio
damaged the door on Appellant’s pickup and broke out its back window; (5) when
Appellant returned the third time, other witnesses observed that Appellant exited
his pickup and walked toward Nikory’s Korn with a gun in his hand; (6) not finding
Indalacio at Nikory’s Korn, Appellant went to Indalacio’s house and shot up his
pickup; and (7) Appellant’s wife’s testimony showed Appellant blamed the
Quinteros (Indalacio) for the damage to his own pickup from the trailer hitch.
From the evidence, the jury could reasonably have concluded that Appellant
went back to Nikory’s Korn the third time for the purpose of confronting Indalacio
with a gun, but Indalacio, whose son had alerted him that Appellant was on his
way and was armed with a gun in his hand, slipped into the building before
Appellant located him.
9
When Appellant came upon Francisco and pointed the gun at him,
Appellant appeared to have been confused by his inability to locate Indalacio.
Indalacio, himself, watched from inside the building and said he believed
Appellant “thought [Francisco] was me” but also described Appellant as “pointing
at them, like looking for me, okay, which one of you is [Indalacio]?” Appellant’s
statements, “You’re going down, you’re going down,” were threats that might
have been addressed to Francisco, but again, viewing the evidence in the light
most favorable to the verdict, the jury could reasonably have inferred that those
threats were addressed to Indalacio because Appellant thought Francisco was
Indalacio and had previously made the identical threat to Indalacio. Francisco
himself expressed confusion over whether Appellant’s threats with the gun were
directed at him or at Indalacio. The jury could have then concluded that
Appellant, not finding Indalacio at Nikory’s Korn, then went to Indalacio’s home,
where he knocked on the door and, when no one answered, resorted to shooting
Indalacio’s pickup.
Indalacio testified that he felt threatened. He said he learned from his son
that Appellant was looking for him, said he saw Appellant with the gun through
the window, said he was scared for his life, and, on the stand, cried when he
said, “I was scared that [Appellant] could kill me and leave my family by itself. I
have worked so hard so that they can . . . do well, and . . . I could lose it all.”
Edgar also testified that he was scared as he saw Appellant walking toward the
corn stand, first holding the gun down and then pointing it toward Francisco and
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several other customers, and that he thought that “somebody was going to get
shot and killed.”
The totality of the evidence shows Appellant was hunting Indalacio with a
gun and was verbally threatening to take him down in the area of Nickory’s Korn,
that is, in the location Appellant expected to find him. Indalacio was, in fact,
there. Appellant’s inability to find Indalicio in the crowd did not change
Appellant’s conduct. See Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim.
App. 2008) (stating that assault by threat is a conduct-oriented offense which
focuses upon the act of making a threat, regardless of any result that the threat
may cause.); Olivas v. State, 203 S.W.3d 341, 347 (Tex. Crim. App. 2006)
(“‘[A]lthough the question whether the defendant’s conduct produced fear in the
victim is relevant, the crucial inquiry remains whether the assailant acted in such
a manner as would under the circumstances portend an immediate threat of
danger to a person of reasonable sensibility.’” (quoting Anthony v. United States,
361 A.2d 202, 206 (D.C. 1976))); see also Montejano v. State, No. 08-12-00235-
CR, 2014 WL 4638911, at *6 (Tex. App.—El Paso 2014, no pet.) (not designated
for publication) (holding that “the operative question is whether the defendant’s
conduct would be perceived as objectively threatening under the
circumstances”).
Indalacio’s hiding, far from disproving the commission of the offense of
assault by threat, proved its commission—it showed both the immediacy and the
efficacy of Appellant’s threat to Indalacio that he was “going down.” The dissent
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suggests that the words Appellant spoke to Indalacio could have meant that
Indalacio was going to jail for damaging Appellant’s truck with the trailer hitch or
that Appellant was going to knock Indalacio down for doing so. But when
Appellant first told Indalacio he was “going down,” Indalacio had not yet damaged
Appellant’s truck. It was after the threat that Indalacio threw the trailer hitch at
Appellant’s truck twice, damaging Appellant’s truck’s back window as Appellant
was leaving the parking lot.
The dissent questions whether a threat of injury to a complainant “may
arise solely from the complainant’s view of the circumstances and his
conclusions as to the intent of the accused.” By this, we interpret the dissent as
questioning whether testimony of the complainant that a threat occurred,
standing alone, could be legally sufficient evidence to establish that the threat
was made. We are not aware that corroboration is required to support a
complainant’s testimony that he or she has been threatened by the accused.
Indalacio positively testified, more than once, that Appellant told him he was
“going down” before Appellant left the parking lot the second time. A short time
later, Indalacio’s son ran to him and told him that Appellant had returned and
gotten out of his truck and was walking toward Indalacio’s corn stand carrying a
gun. Indalacio retreated inside the building behind the corn stand with his son to
hide from Appellant. Indalacio and other witnesses saw Appellant brandishing
the gun and walking toward the corn stand. Indalacio saw Appellant through a
window, pointing the gun at his friend and the building, heard him make the
12
threat again and, not finding him, Appellant left and went to Indalacio’s house
where he shot up his truck. The jury was entitled to accept Indalacio’s testimony
on the stand as to Appellant’s threat as his credibility was within the jury’s sole
province and there was no contrary evidence.
It was also within the jury’s province to resolve any ambiguity or doubt that
“You’re going down” as meaning that Appellant intended to kill Indalacio (for
whatever motive) based on Appellant’s own actions in returning with a gun after
making that threat and walking toward the corn stand, and the jury was entitled to
infer from that conduct that Appellant was, indeed, looking for Indalacio to carry
out his threat by shooting Indalacio, thereby taking him down. Indalacio’s
reaction of going into the building behind the corn stand and hiding himself and
his son in fear that Appellant was going to carry out his threat was supported by
testimony not only of Indalacio, himself, but also by other witnesses whose
testimony the jury was entitled to accept. We must presume that the factfinder
resolved any conflicting inferences in favor of the verdict and defer to that
resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d
at 170.
Indeed, from the record, Appellant’s threats and actions were not fantasies
or imaginings only in Indalacio’s head. Others saw Appellant, were afraid from
his actions, and knew who he was. Indalacio’s wife and others had called 9-1-1
by the time of Appellant’s second drive-through of the parking lot; witnesses were
questioned and statements taken by the police detective; and Appellant, who had
13
fled after apparently scaring everyone in the area with his conduct and the gun
he was waving around, was captured a short time later hiding in a building not far
from the location of the corn stand.
Finally, the dissent argues that there is no evidence of what Appellant
intended to accomplish, that is, no evidence that Appellant was hunting Indalacio
with a gun in the location in which he expected to find Indalacio. To the contrary,
witnesses saw Appellant going toward Nikory’s Korn and pointing the gun in the
direction of the corn stand. This was the area of Indalacio’s business where
Indalacio could be expected to be found and where Appellant, himself, had found
Indalacio earlier when he made the threat that Indalacio was going down.
Indalacio testified that, from inside the building behind the corn stand where he
was hiding, he could see out the window that Appellant had the gun and “was
headed this way over here . . . .” As to whether Appellant was “hunting”
Indalacio, the jury could have credited Indalacio’s testimony that there had been
two prior incidents involving Appellant and that Indalacio learned later, after the
events of that night, that Appellant had been constantly asking about him, where
he had been and when, and that the events were not coincidental but planned to
hurt him.
“[P]roof of a culpable mental state generally relies on circumstantial
evidence.” Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.]
1978); Varnes v. State, 63 S.W.3d 824, 833 (Tex. App.-Houston [14th Dist.]
2001, no pet.); see Lane v. State, 763 S.W.2d 785, 787 (Tex. Crim. App. 1989)
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(“Establishment of culpable mental states is almost invariably grounded upon
inferences to be drawn by the factfinder from the attendant circumstances.”).
Intent may be determined from a defendant’s words, acts, and conduct, and “is a
matter of fact, to be determined from all of the circumstances.” Smith v. State,
965 S.W.2d 509, 518 (Tex. Crim. App.1998).
We hold the evidence was sufficient for a rational trier of fact to have found
beyond a reasonable doubt that Appellant intentionally or knowingly threatened
Indalacio with imminent bodily injury by threatening to shoot Indalacio and that
during the commission of the assault, he used or exhibited a deadly weapon.7
See Jackson, 443 U.S. at 319; Dobbs, 434 S.W.3d at 170; see also Kitchens,
823 S.W.2d at 258 (“It is appropriate where the alternate theories of committing
the same offense are submitted to the jury in the disjunctive for the jury to return
a general verdict if the evidence is sufficient to support a finding under any of the
theories submitted.”). We overrule Appellant’s sole point and affirm the judgment
in cause number 02-13-00196-CR.
Unlawful Possession of a Firearm by a Felon
Appellant’s court-appointed appellate counsel filed a motion to withdraw as
counsel and a brief in support of that motion in related cause number 02-13-
00197-CR. Counsel’s brief and motion meet the requirements of Anders v.
7
Because the evidence is sufficient without the application of a transferred
intent, we do not reach that portion of Appellant’s brief. See Tex. R. App. P.
47.1.
15
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional
evaluation of the record showing why there are no arguable grounds for relief. In
compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014),
counsel notified Appellant of his motion to withdraw, provided him a copy of the
brief, informed him of his right to file a pro se response, informed him of his pro
se right to seek discretionary review should this court hold the appeal is frivolous,
and took concrete measures to facilitate Appellant’s review of the appellate
record.
Appellant filed a pro se brief.8 Appellant asserts the prosecutor relied on
perjured testimony and, effectively, there was insufficient evidence to show he
used or exhibited a weapon. Appellant also complains about the admission of
testimony for which there was no objection and about the effectiveness of trial
and appellate counsel.
8
On March 19, 2014, this court by letter instructed the trial court to make
the record available to Appellant. On April 23, 2014, Appellant filed a pro se
motion to extend time to file his brief in which he complained about not having
volume two (voir dire) and volume five (final arguments and verdict) of the
reporter’s record. This court’s April 25, 2014 order granted Appellant’s motion to
extend time but did not address his complaint regarding the missing portions of
the record. In an April 30, 2014 letter to this court, Appellant again complained
about not having access to volumes two and five of the reporter’s record. It is
our understanding that the trial court clerk sent the entire record to Appellant
again on or about May 1, 2014. In his July 21, 2014 brief, Appellant does not
complain about having an incomplete record.
16
As a reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeal is
frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only
then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S.
75, 82–83, 109 S. Ct. 351 (1988).
We have carefully reviewed the record, counsel’s brief, and Appellant’s pro
se brief. We agree with counsel that this appeal is wholly frivolous and without
merit; we find nothing in the record that arguably might support an appeal. See
Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly,
we grant counsel’s motion to withdraw and affirm the trial court’s judgment in
cause number 02-13-00197-CR.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J., filed a dissenting opinion.
PUBLISH
DELIVERED: August 6, 2015
17