ItPS-IS ttO& YS
ORIGINAL ^argument re^uested
PD-1105-15 & PD-1106-15
IN THE TEXAS COURT OP CRIMINAL APPEALS
*********************************************
DANIEL HERNANDEZ
Appellant-Petitioner
CoKl!^0 ^
™T 0F CR'» APPALS
v. NOV 03 2015
THE STATE OF TEXAS
Appellee-Respondent ^befACQSfa, Clerk
*************************************************
FROM THE SECOND COURT OF APPEALS PHI IDT r>
CAUSE NOS. 02-13-196-CR & 02-13-197-CR °UUH' OF CRIMINAL APPEALS
APPEAL FROM THE 367TH JUDICIAL DISTRICT COURT K'OV 03 20!J
OF DENTON COUNTY, TEXAS
CAUSE NOS. F-2012-G920-E & F-2012-0923-E ..
THE HONORABLE MARGARET BARNES PRESIDING Atlel AcOSta, Clerk
*******************************************
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
*******************************************
By:
Daniel Hernandez/ Pro Se
TDCJ-CID #1852714
Connally Unit
899 FM 632
Kenedy, Texas 78119
GROUNDS FOR REVIEW
Ground One
Whether, for purposes of determining whether there is sufficient
evidence to support a conviction for aggravated assault under
Tex.Pen.Code § 22.02(a)(2), there must be evidence that the
defendant intended to threaten injury to the specific person named
in the indictment, complainant, and knew that he had done so, or
whether the threat may have arisen solely from the complainant's
view of the circumstances and his conclusions about the intent of
the accused.
Ground Two
Whether the court of appeals erred when it found the evidence
legally sufficient to support Appellant's conviction for aggravated
assault under Tex.Pen.Code § 22.02(a)(2).
Appellant's Petition for Discretionary Review - Page ii
TABLE OF CONTENTS
GROUNDS FOR REVIEW ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv
IDENTITY OF JUDGE, .PARTIES, AND COUNSEL .V
STATEMENT REGARDING ORAL ARGUMENT vi
STATEMENT OF THE CASE vi
STATEMENT OF PROCEDURAL HISTORY vi
INTRODUCTION 1
STATEMENT OF FACTS 2
ARGUMENT 4
Ground One
For purposes of determining whether there is sufficient evidence to
support a conviction for aggravated assault under Tex.Pen.Code §
22.02(a)(2), there must be evidence that the defendant intended to
threaten injury to the specific person named in the indictment,
complainant, and knew that he had done so, and the threat, may not
have arisen solely from the complainant's view of the circumstances
and his conclusions about the intent of the accused 4
Ground Two
The court of appeals erred when it found the evidence legally
sufficient to support Appellant's conviction for aggravated assault
under Tex.Pen.Code § 22.02(a)(2) 8
PRAYER FOR RELIEF 9
DECLARATION 9
CERTIFICATE OF SERVICE 10
APPENDIX: Second Court of Appeals Dissenting Opinion
Second Court of Appeals Majority Opinion
Appellant's Petition for Discretionary Review - Page iii
INDEX OF AUTHORITIES
Cases Page
Adkins v. State, 274 S.W.3d 870, 874 (Tex.App.—Fort Worth
2008, no pet.) 5
Elonis v. United States, 135 S.Ct. 2001, 2009 (2015) 4
Fiore v. White, 531 U.S. 225, 228, 121 S.Ct. 712, 714 (2001) 2
Jackson v. Virginia, 443 U.S. 307, 319-20 (1979) 1, 8
Morissette v. United States, 342 U.S. 246, 250 (1952) 2
Staples v. United States, 511 U.S. 600, 607 n. 3, 114 S.Ct. 1793, 1798
n. 3 (1994) 4
FEDERAL CONSTITUTION
U.S.CONST, amend. XIV 1
STATE STATUTES
Tex.Pen.Code § 6.02(a) 2
Tex.Pen.Code § 6.02(d) 2
Tex.Pen.Code § 22.01(a)(2) 4, 5
Tex.Pen.Code § 22.02(a)(2) passim
Appellant's Petition for Discretionary Review - Page iv
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Appellant: Mr. Daniel Hernandez
TDCJ-CID #1852714
Connally Unit
899 FM 632
Kenedy, Texas 78119
Appellant's Trial Attorney: Mr. Stacey Mooring
Attorney at Law
701 N. Riverside, Suite E
Fort Worth, Texas 76111, Suite 3100
Appellant's Appeal Attorney: Mr. David Wacker
Attorney at Law
P.O. Box 1142
Denton, Texas 76202
Trial Judge: Hon. Margaret Barnes
Judge, 367th District Court
Denton County Courts Bldg.
1450 E. McKinney
Denton, Texas 76201
State's Trial Attorneys: Mr. Matthew Shovlin
Mr. Justin Jones
Assistant District Attorneys
1450 E. McKinney
Denton, Texas 76202
State's Appeal Attorney: Mr. Charles Orbison
Appellate Attorney
Denton County District Attorney's Office
1450 E. McKinney
Denton, Texas 76202
Appellant's Petition for Discretionary Review - Page v
STATEMENT REGARDING ORAL ARGUMENT
This case raises important issues and distinctions regarding Tex.Pen.
Code § 22.02(a)(2) and that statute's application to this case. Mr. Hernandez
believes oral argument would help the Court understand and solve these
problems.
STATEMENT OF THE CASE
This appeal involves two cases from the 367th District Court of Denton
County, Texas. On April 11, 2013, Appellant was convicted by a jury of
aggravated assault with a deadly weapon and felon in possession of a firearm.
(4 RR 181.) The jury assessed punishment at 63 years in prison on each term
to run concurrently. (5 RR 26-28; 5 RR 33.)
Appellate counsel filed a Motion to Withdraw from the appeal of the gun
conviction with an Anders' Brief. Mr. Hernandez filed a Brief in Opposition.
The Second Court of Appeals affirmed the aggravated assault conviction with
Justice Dauphinot dissenting in an 11-page dissent stating, "I would hold the
evidence insufficient to support Appellant's conviction for aggravated
assault." (See Attached Dissenting Opinion at 11.)
The court of appeals also concluded that the appeal of the gun conviction
is wholly frivolous and without merit. (Attached Maj. Op. at 17.) The court
granted counsel's Motion to Withdraw and affirmed the trial court's judgment
in the gun case in cause number 02-13-00197-CR.
Mr. Hernandez here abandons his claims regarding the firearm conviction,
but seeks discretionary review of the court of appeals majority opinion
affirming the aggravated assault conviction and 63-year sentence.
STATEMENT OF PROCEDURAL HISTORY
The court of appeals handed down its opinion on August 6, 2015 with
Justice Dauphinot's dissent filed the same day. Daniel Hernandez v. State of
Appellant's Petition for Discretionary Review - Page vi
Texas, No. 02-13-196-CR, No. 02-13-297-CR (Tex.App.—Fort Worth). Mr.
Hernandez did not file a motion for rehearing. This Court granted Mr.
Hernandez an extension of time to file this Petition. This Petition is due by
November 9, 2015.
Appellant's Petition fee Discreticnary Review - Page vii
COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
DANIEL HERNANDEZ, § CCA #PD-1105-15
TDCJ-CID #1852714, § CCA #PD-1106-15
§
Appellant-Petitioner, §
f COA #02-13-196-CR
| COA #02-13-197-CR
THE STATE OF TEXAS, §
§ TC #F-2012-0920-E
Appellee-Respondent. § TC #F-2012-0923-E
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
INTRODUCTION
The State alleged in the indictment that Petitioner Daniel Hernandez
"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." (1 CR 8.) As
stated below, witnesses testified that Mr. Hernandez pointed a gun at
Francisco San Miguel, but Francisco was not named as a complainant. The jury
acquitted Mr. Hernandez of aggravated assault against another complainant and
found him guilty of the lesser-included offense against the third complainant.
All three complainants denied that Mr. Hernandez pointed a gun at them. The
jury found Mr. Hernandez guilty of aggravated assault against Indalacio. Mr.
Hernandez complained on appeal that the evidence was insufficient to support
conviction for aggravated assault. The court of appeals affirmed. (See
Attached Opinion and Dissenting Opinion.)
After viewing the evidence in the light most favorable to the prosecution,
no rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The State is attempting to punish Mr. Hernandez under Tex.Pen.Code § 22.02(a)
Appellant's Petition for Discreticnary Review - Page 1
(2) based on conduct that does not fall within the definition of that statute.
A person does not commit an offense unless he or she engages in the proscribed
conduct with the culpable mental state that the definition of the offense
requires. See Tex.Pen.Code § 6.02(a) and (d) (West Supp. 2007).
A state cannot, consistently with the Due Process Clause, convict a
defendant for conduct that its criminal statute, as properly interpreted, does
not prohibit. See e.g. Fiore v. White, 531 U.S. 225, 228, 121 S.Ct. 712, 714
(2001); see also Morissette v. United States, 342 U.S. 246, 250 (1952) ("The
contention that an injury can amount to a crime only when inflicted by inten
tion is no provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between good
and evil").
STATEMENT OF FACTS
Complainant Indalacio Quintero testified that he threw a trailer hitch at
the back windshield of a Chevy extended-cab pickup truck while the truck drove
passed him in the parking lot of his corn stand business. (3 RR 167-68; 3 RR
177.) According to testimony at trial, the person driving the truck was Mr.
Hernandez, and he had been burning out in the parking lot and possibly
screeching his tires. (See e.g. 3 RR 41-43, 120.) No one testified why Mr.
Hernandez was in such a hurry to leave. Indalacio testified that he threw the
trailer hitch at the truck twice, once at the door and once thru the back
windshield before he saw—from inside the building—Mr. Hernandez outside the
building with a gun. (3 RR 167-68, 177-79, 180-89; 3 RR 161-62, 166.)
Indalacio testified that before he threw the trailer hitch thru the
windshield, Mr. Hernandez told him he was "going down." (3 RR 167.) When
Indalacio saw him with the gun, he saw him point the gun at his friend. (3 RR
Appellant's Petition for Discreticnary Review - Page 2
161.) Indalacio heard Mr. Hernandez say to his friend, "You're going down."
(3 RR 161.) Upon seeing and hearing that, Indalacio concluded that Mr.
Hernandez thought he was pointing at Indalacio. (3 RR 161.) He never pointed
the gun at Indalacio., (3 RR 161-62.) Indalacio testified that he threw the
trailer hitch at the truck because he wanted to draw Mr. Hernandez out of the
truck to fight him. (3 RR 184.) Indalacio never saw Mr. Hernandez point the
gun at anyone else except his friend. (3 RR 191-92.) Indalacio thought Mr.
Hernandez was thinking while pointing the gun, "Which one of you is Lupe?"
which is Indalacio's middle name, though Indalacio admitted Mr. Hernandez
never actually asked that. (3 RR 166-70.)
His friend, Francisco San Miguel, testifed that Mr. Hernandez pointed the
gun at him, not Indalacio. (3 RR 223.) Francisco's brother, Edgar San Miguel,
testified that Mr. Hernandez pointed the gun at Francisco and several other
customers. (3 RR 238.) Edgar could not identify Mr. Hernandez. (3 RR 240.)
He testifed that the man with the gun at first left the parking lot and
returned displaying the gun after Indalacio threw the hitch thru his wind
shield. (3 RR 253-54.)
It was undisputed that Indalacio was in the building when Mr. Hernandez
was outside with a pistol. (See e.g. 3 RR 161-62, 166.) There was no
scientific evidence obtained by the police. The jury acquitted Mr. Hernandez
of the offense of aggravated assault against Edgar. (4 RR 181.) The jury
also acquitted Mr. Hernandez of the offense of aggravated assault against
Indalacio's wife and found him guilty of the lesser-included charge of deadly
conduct assessing punishment at 365 days county jail. (4 RR 181; 5 RR 27.)
Mr. Hernandez's wife, Norma Hernandez, testified that their daughter was
dating Brian, Indalacio's son. (See e.g. 3 RR 274-75.) As far as she knew,
Mr. Hernandez had no problems with Indalacio. (3 RR 278.) Indalacio
Appellant's letition fbr Discreticnary Review - Page 3
testified that him and Mr. Hernandez had previous altercations. (3 RR 173.)
Ms. Hernandez testified that she saw Mr. Hernandez with a gun the night of the
incident before his arrest (3 RR 281) and that he said his daughters-in-law
ambushed him. (3 RR 265-66.)
Indalacio's wife, Guadalupe Quintero, testified that her son and Indalacio
came inside the building when her son came running saying, "He has a gun, he
has a gun." (4 RR 17-18.) She never saw him point a gun at anyone. (4 RR 37-
41.) She also confirmed that the truck drove thru once and then returned only
once. (4 RR 16.)
While the police were at the corn stand, Mrs. Quintero received a call
from her mother on her cell phone. Her mother said she heard noises like fire
works outside of the Quinteros' house. (4 RR 21.) When Mrs. Quintero got
home, she found bullet holes in the grill and hood of a pickup truck parked
in front of her house. No one was ever arrested for shooting at the pickup
truck. Mr. Hernandez did not testify on his own behalf.
ARGUMENT
Ground One
For purposes of determining whether there is sufficient evidence to
support a conviction for aggravated assault under Tex.Pen.Code §
22.02(a)(2), there must be evidence that the defendant intended to
threaten injury to the specific person named in the indictment,
complainant, and knew that he had done so, and the threat may not
have arisen solely from the complainant's view of the circumstances
and his conclusions about the intent of the accused.
"[A]1 defendant generally must 'know the facts that make his conduct fit
the definition of the offense '" Elonis v. United States, 135 S.Ct. 2001,
2009 (2015) (quoting Staples v. United States, 511 U.S. 600, 607 n. 3, 114
S.Ct. 1793, 1798 n. 3 (1994)). A person commits aggravated assault when he or
she intentionally or knowingly threatens another with imminent bodily injury
while using or exhibiting a deadly weapon. Tex.Pen.Code Ann. § 22.01(a)(2)
Appellant's Petition for Discreticnary Review - Page 4
(West Supp. 2014), § 22.02(a)(2) (West 2011); Adkins v. State, 274 S.W.3d 870,
874 (Tex.App.—Fort Worth 2008, no pet.).
The evidence presented at trial showed that Mr. Hernandez did not see who
threw the trailer hitch at his truck twice. The evidence showed that he did
not know that Indalacio was the person who threw the trailer hitch at his door
and thru his back windshield. The evidence showed that he did not point the
gun at Indalacio and that Indalacio was not even outside when Mr. Hernandez was
outside with the gun. The evidence showed that Indalacio was afraid and hiding
inside the building because he was the person that threw the trailer hitch at
the truck for no justifiable reason. The evidence showed that Mr. Hernandez
did not know that Indalacio was in the building. No rational juror could have
found Mr. Hernandez guilty of the element of intent or knowledge.
In order for conviction to stand, Mr. Hernandez had to know complainant
was present and that he was placing complainant in fear of bodily injury to be
imminently inflicted on him. It's an essential element of the offense. Tex.
Pen.CodeAnn. §§ 22.01(a)(2), 22.02(a)(2). Complainant's own testimony shows
that Mr. Hernandez's conviction for aggravated assault cannot stand:
Q. The first time, he drove through and burned his tires?
A. Yes, sir.
Q. Did you see him with a gun then?
A. No, sir. [3 RR 175.]
Q. Did you see him point a gun at anybody then?
A. On that first time, no, sir.
Q. Did you—he threaten you with shooting you or putting down at
time?
A. No. On that occasion he leaves and exits and does the same
thing. [3 RR 176.]
Appellant's Petition for Discreticnary Review - Page 5
Q. And my question was not that, but my question is very simple.
Did you—did you not tell this jury just a few minutes ago that
[Appellant] never pointed a gun at you?
A. Me, he never pointed it.
Q. And he never threatened to kill you, did he?
A. I imagine he didn't. But if you go to my house and you see some
shots down at my house, what can you think? [3 RR 192.]
Q. So when he comes back the second time, you approach the truck,
you still didn't see a gun, did you?
A. On the second time, that's when he starts burning again.
Q. Did—did you see a gun?
A. No sir.
Q. Did you get threatened with a gun?
A. On the second time, no.
Q. Did he point a gun at you?
A. No, sir. [3 RR 177.]
Q. [By Defense Counsel]' So the second time, when the burnout, you
threw a trailer hitch at the truck in order to get him out of the
truck to confront you; is that right?
A. Not to confront him, but to stop him so that he would stop
driving that vehicle. [3 RR 178.]
The court of appeals erred in its interpretation of Justice Dauphinot's
Dissenting Opinion:
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 complainant's
testimony that he or she has been threatened by the accused.
Appellant's Petition for Discreticnary Review - Page 6
(Maj. Op. at 12.)
Justice Dauphinot's Dissenting Opinion does not say this: "My dissent
is apparently inartfully drafted because the majority does not understand it,
believing it to require corroboration of a complainant's testimony that he or
she has been threatened by the accused." (Dissenting Op. at 6.) What Justice
Dauphinot is saying is that the issue was not whether or not complainant felt
threatened. Just because he felt threatened does not mean he actually was
threatened. In this case, there's a difference between feeling threatened and
being threatened. He felt threatened because he knew he threw the hitch at
the truck for no justifiable reason. He was not actually threatened because
Mr. Hernandez didn't even know he threw the hitch at the truck. The other
issue on appeal was whether or not Mr. Hernandez's conduct was accompanied by
the requisite mental state: Whether Mr. Hernandez intentionally or knowingly
threatened Indalacio Quintero with imminent bodily injury. The requisite
mental states were not proven.
Indalacio speculated that Mr. Hernandez was looking for him. (3 RR 166-
67.) Assuming arguendo that this was true, the record does not show that he
was looking for him to harm him in any way. He did not know which one was
Indalacio. A rational juror would infer that Mr. Hernandez knew Indalacio
owned the business. A rational juror would infer that at most, Mr. Hernandez
was looking for Indalacio to complain to him that someone in his parking lot
threw a trailer hitch at his truck twice and shattered his back windshield. A
rational juror would infer that if Mr. Hernandez did peel out and tell Indala
cio he was "going down," it was because Indalacio threatened him first and
proceeded to attack him. (3 RR 164-66.) A rational juror would infer that
Mr. Hernandez did not recognize Indalacio and unbeknownest to Mr. Hernandez,
the man he sought for help was the man attacking him all along.
Appellant's Petition for Discreticnary Review - Page 7
What Justice Dauphinot means is that complainant's speculative testimony
that "he -is pointing the pistol at my friend, but he thought he was me" (3 RR
162) is but a mere modicum of evidence of the requisite culpable mental state.
What's more is that Indalacio didn't even hear Mr. Hernandez say, "Which one
of you is Lupe?": "[H]e was 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." (3 RR 166-67.) Indalacio was inside the building the
whole time. A mere modicum of evidence is not sufficient to sustain a convic
tion:
[A] mere modicum of evidence may satisfy a "no evidence" standard.
Any evidence that is relevant, that has any tendency to make an
element of a crime more probable than it would be without the
evidence, could be deemed a "mere modicum." Although, it could not
seriously be argued that such a "modicum" of evidence could by itself
rationally support a conviction beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. at 320.
Ground Two
The court of appeals erred when it found the evidence legally
sufficient to support Appellant's conviction for aggravated
assault under Tex.Pen.Code § 22.02(a)(2).
In reviewing the legal sufficiency of the evidence to support a convic
tion, we view all the evidence in the light most favorable to the verdict in
order 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. at 319. For the reasons stated above and the reasons
stated in Justice Dauphinot's Dissenting Opinion, no rational trier of fact
could have found that Mr. Hernandez intentionally or knowingly threatened
Indalacio Quintero with imminent bodily injury by pointing a firearm at
Indalacio Quintero or threatening to shoot Indalacio. The court of appeals
erred when it affirmed Mr. Hernandez's conviction for aggravated assault.
Appellant's Petition for Discreticnary Review - Page 8
PRAYER
For these reasons, Appellant Daniel Hernandez respectfully asks the Court
to grant discretionary review, appoint counsel, order further briefing and
oral argument, and reverse his conviction and punishment with instructions to
the trial court to enter a judgment of acquittal on the charge of aggravated
assault. In the alternative, he asks the Court to enter any other order it
finds appropriate.
SUBMITTED and SUBSCRIBED on this the 3d day of ddJh/faeJf > 2015-
Respectfully submitted,
—Ln^La^W^
*^-s
iniel Hernandez, Pro Se
TDCJ-CID #1852714
Connally Unit
899 FM 632
Kenedy, Texas 78119
DECLARATION
"I, Daniel Hernandez, TDCJ-CID #1852714, presently incarcerated
in the Texas Department of Criminal Justice Correctional Institutions
Division at the Connally Unit in Karnes County, Texas, declare under
penalty of perjury under Chapter 132 of the Texas Civil Practice and
Remedies Code and 28 U.S.C. § 1746, that I have read this Petition
for Discretionary Review, the facts stated in this Petition are true
and correct, and I placed this Petition in the prison mailbox in a
postpaid package on this day.
"Executed on this the3d_ day of OdfTfo/jfLf < 2015."
Daniel Hernandez •c==7"
Appellant's Petition for Discreticnary Review - Page 9
CERTIFICATE OF SERVICE
Icertify that on this thej^ daY °f Od~70h(L¥i 2015, I served the
following parties with a true and correct copy of this Petition for Discre
tionary Review by U.S. mail through the prison mailbox in a postpaid package
to the addresses below:
Charles E. Orbison
Assistant Criminal District Attorney
1450 E. McKinney St., 3rd Floor
Denton, Texas 76209
State Prosecuting Attorney
P.O. Box 13046
Capitol Station
Austin, Texas 78711
^rffin/^fc^
Daniel Hernandez
Appellant's Petition for Discreticnary Review - Page 10
APPENDIX
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
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NOS. F-2012-0920-E, F-2012-0923-E
DISSENTING OPINION
Respectfully, I must dissent from the thoughtful majority opinion. The
issue in this case is whether there must be evidence that the defendant intended
to threaten injury to the specific person named in the charging instrument, the
complainant, and knew that he had done so, or whether the threat may have
arisen solely from the complainant's view of the circumstances and his
conclusions about the intent of the accused. The issue is not whether there is
any way to construe Appellant's actions as threatening.
A person commits aggravated assault when he or she intentionally or
knowingly threatens another with imminent bodily injury while using or exhibiting
a deadly weapon.1 Section 6.03 of the penal code defines culpable mental
states:
(a) A person acts intentionally, or with intent, with respect to
the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the
result.
(b) A person acts knowingly, or with knowledge, with respect
to the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.2
The record is confusing at best. It appears that Complainant threw a
portion of a metal towing hitch at the door of Appellant's pickup and then
smashed out the pickup's back window because Appellant was "burning the tires"
where several shoppers had gathered. Complainant testified,
Q. The first time, he drove through and burned his tires?
A. Yes, sir.
1Tex. Penal Code Ann. § 22.01(a)(2) (West Supp. 2014), § 22.02(a)(2)
(West 2011); Adkins v. State, 21A S.W.3d 870, 874 (Tex. App.—Fort Worth
2008, no pet.).
2Tex. Penal Code Ann. § 6.03(a)-(b) (West 2011).
Q. Did you see him with a gun then?
A. No, sir.
Q. Did you see him point a gun at anybody then?
A. On that first time, no, sir.
Q. Did you—he threaten you with shooting you or putting you
down at that time?
A. No. On that occasion he leaves and exits and does the same
thing.
Q. And my question was not that, but my question is very simple.
Did you—did you not tell this jury just a few minutes ago that
[Appellant] never pointed a gun at you?
A. Me, he never pointed it.
Q. And he never threatened to kill you, did he?
A. I imagine he didn't. But if you go to my house and you see
some shots down at my house, what can you think?
Q. So when he comes back the second time, you approach the
truck, you still didn't see a gun, did you?
A. On the second time, that's when he starts burning again.
Q. Did you—did you see a gun?
A. No, sir.
Q. Did you get threatened with a gun?
A. On the second time, no.
Q. Did he point a gun at you?
A. No, sir.
Complainant's testimony was hard to follow. He testified,
Q. (BY [Defense Counsel]) So the second time, when the
burnout, you threw a trailer hitch at the truck in order to get
him out of the truck to confront you; is that right?
A. Not to confront him, but to stop him so that he would stop
driving that vehicle.
Complainant also testified that when Appellant got out of his truck after the
final time he "burned the tires," Complainant went up to Appellant and asked him
what his problem was. Appellant responded, pointing at Complainant, "You're
going down." The majority interprets the same record as Complainant's not
throwing the hitch until the third time Appellant "burned his tires," but Appellant's
threatening him the second time. Unfortunately, we do not know whether "You're
going down" means "You're going to go to jail," "I'm going to knock you down," or
"I'm going to kill you." The statement is ambiguous and was never explained.
The State concedes that Appellant never directly threatened Complainant
with a firearm, but argues,
The evidence is sufficient to support a conviction of Aggravated
Assault through transferred intent because Appellant pointed a
firearm at Francisco San Miguel, who he thought was [Complainant].
The firearm alone could infer intent, but here intent could have been
inferred from Appellant's words and conduct as well. Even if this
Court does not find a transfer of intent, the evidence is still sufficient
because Appellant pointed the firearm at everyone in the area.
Since the victim was in the area, the firearm was therefore also
pointed at him.
There are two problems with the State's argument. First, there is no
evidence that Appellant thought Francisco San Miguel was Complainant. The
nearest thing to evidence is Complainant's unfounded speculation:
Q. Did you ever see the Defendant with the gun?
A. From the inside of the building, and I kept my hands like this
(indicating), holding the door down because I had my son that
was coming. He was headed this way over here, like this
(indicating). Iwas scared for my life because my son was also
in there.
Q. But did you ever see the Defendant with the gun?
A. Yes. There's my truck, there's another vehicle, and then
there's my friend. And he is pointing the pistol on my friend,
but he thought he was me.
Q. And you saw this happen?
A. Yes, sir.
This speculation is the only thing that could be construed as evidence that
Appellant thought he was pointing the gun at Complainant. Complainant also
testified,
Q. All right. And going back to that night, did you ever see the
Defendant get out of the truck?
A. No, because I was with a pregnant lady. I was doing
something like getting inside the building. I thought he had
left. And that's when my son comes in running, says that he
got out of the vehicle, the truck was parked here, and that he
had a—a pistol—the pistol. And he is putting it on the people
here (indicating). And he walks this—over here, and that's
where my friend was. And he puts the pistol on him. The lady
was standing here, and I was in the building.
Q. What do you mean when you say he's putting it on people?
A. (Indicating) That he was 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.
As for the State's argument that by pointing the gun at the crowd,
Appellant was pointing it at Complainant because he was in the crowd, the
record is clear that Complainant was not in the crowd. He had taken refuge
inside the building.
Q. Now, you testified to this jury that you saw him holding the
gun?
A. Yes, as far as I could see. Because in the building—in the
building, there's an entrance here (indicating), and there is a
window here that you can—you can see from. And between
this window and this door, there is nothing where you can see
through.
Q. How did you feel when you saw him with the gun?
A. (Crying) Iwas scared that he could kill me and leave my family
by itself.
There is, however, no evidence that Appellant knew that Complainant was
watching him. There is no evidence of what Appellant intended to accomplish.
There is no evidence of what Appellant was saying, if anything, while he was
pointing the gun at the crowd.
My dissent is apparently inartfully drafted because the majority does not
understand it, believing it to require corroboration of a complainant's testimony
that he or she has been threatened by the accused. Perhaps the Supreme Court
of the United States has explained my position more clearly than I: "[0]ur cases
have explained that a defendant generally must 'know the facts that make his
conduct fit the definition of the offense '"3 In this case, Appellant must have
known that Complainant was present and that he was placing Complainant in
fear of bodily injury to be imminently inflicted on him. It is an essential element of
the offense.4
In a puzzling conclusion, the majority states that "[t]he totality of the
evidence shows Appellant was hunting [Complainant] with a gun and was
verbally threatening to take him down ... in the location Appellant expected to
find him."5 There is no evidence, and the majority refers to none, that Appellant
was "hunting [Complainant] with a gun."6 Nowhere in the record does Appellant
threaten "to take [Complainant] down"7 while holding a firearm. As far as the
peculiar statement that Appellant was making these fantasy threats "in the
location Appellant expected to find [Complainant],"8 nothing in the record
supports this pronouncement. Perhaps the majority misunderstands the record.
The location the majority speaks of is a parking lot. This is not a huge
Walmart parking lot. It is a parking lot that appears large enough to handle
3Elonis v. United States, 135 S. Ct. 2001, 2009 (2015) (citing Staples v.
United States, 511 U. S. 600, 607 n.3, 114 S. Ct. 1793, 1798 n.3 (1994)).
4Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2).
5Maj. Op. at 11.
6ld.
7ld.
8ld.
twenty to twenty-five cars. The parking lot is a place people gathered to
socialize, to buy corn, and to send packages to Mexico. It was full of people and
cars and the place Appellant, for some reason, chose to "burn" his tires.
The majority makes much of the fact that Appellant was "in the location he
expected to find" Complainant.9 Nothing in the record tells us who or what
Appellant expected to find, or whether, indeed, Appellant expected to find any
specific person.
A building sits at each end of the parking lot, but only one is actually on
the parking lot, the building that was the location of Complainant's corn business.
Officer Acrey described the corn stand as a portable unit with a building behind it.
Complainant described the building as "the business." The building is not a
stand with an open counter. It is a building with a door and windows. Yet, the
record mentions nothing about Appellant's going into Complainant's building, the
logical place he would expect to find Complainant. There is no basis for the
majority's speculation that Appellant expected to find Complainant out on the
parking lot.
The majority then concludes that "[Complainant] was, in fact, there."10 But
Complainant was not out on the parking lot, which was the only place Appellant
went, according to the record. Complainant was inside a building. The majority
9ld.
10/C
8
says that "Appellant's inability to find [Complainant] in the crowd did not change
Appellant's conduct."11 But there is no evidence in the record that Appellant was
searching for Complainant. The case law that the majority relies on goes not to
the defendant's perception that the complainant feels threatened but only to the
question of whether a complainant has been placed in fear when the defendant,
unknown to the complainant, does a threatening act in preparation for assaulting
the complainant. That is not the circumstance before this court. The majority's
pronouncement that "[Complainant's] hiding, far from disproving the commission
of the offense ... proved its commission—it showed both the immediacy and the
efficacy of the Appellant's threat"—12 misses the point.
Nothing in the record suggests that Appellant was aware that Complainant
was in a position to feel threatened or that Appellant had any intention of
threatening Complainant. We may speculate that such was his intent, but our
law requires evidence of each element of the offense, not conviction based on
mere speculation. Appellant was pointing his gun at people on the parking lot,
and in the direction of the corn business, but Complainant was not on the parking
lot. What was the immediacy of the threat? How was Appellant to know he was
placing Complainant in fear of immediate injury when there is no evidence that
he knew Complainant was present?
11
Id.
nld.
It is possible that the shooting of Complainant's truck at his house could be
considered a threatening message. The problem here, however, is the record.
No one saw who did the shooting. Appellant did not take credit for the shooting.
Although the shells collected from the truck were the same brand and caliber as
those found at Appellant's home, there is no description of the gun that Appellant
was carrying on the night in question. The majority concludes that Appellant did
the shooting, but there is no evidence, more than mere speculation, that
Appellant was the shooter.
Appellant was charged with and tried for a specific offense, aggravated
assault of Complainant with a firearm. The State was required to prove the
elements of that offense: that Appellant knowingly or intentionally threatened
that person with a firearm. When asked ifAppellant ever pointed the gun at him,
Complainant answered, "No. Because when my son tells me that he has a pistol
on him, I ran and I got inside the business." The two men had a history and a
family connection such that the State argues that Appellant even knew where
Complainant lived and recognized his pickup. Yet the State argues that, despite
this history and family connection, Appellant could not tell the difference between
Complainant and his friend San Miguel.
The evidence is clear that when Appellant returned to the parking lot where
Complainant had dented Appellant's truck and broken out the window with the
towing hitch, Complainant hid inside the building. Complainant speculated that
Appellant mistook San Miguel for him, but there is no evidence of such a
10
mistake, and, other than Appellant's pointing the gun at someone else, no
evidence of a threat of imminent harm to Complainant. Complainant also
speculated that Appellant was asking the crowd where he was. If that
speculation is evidence, it is evidence only that Appellant knew that Complainant
was not present and, consequently, that he was not there for Appellant to
threaten. Appellant could not believe, therefore, that he was threatening and
placing Complainant in fear of death or serious bodily injury to be imminently
inflicted.
I would hold the evidence insufficient to support Appellant's conviction for
aggravated assault with a firearm. Because the majority does not, I must
respectfully dissent.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: August 6, 2015
11
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
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NOS. F-2012-0920-E, F-2012-0923-E
OPINION
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
1lndalacio, in his testimony, does not refer to Francisco by name but refers
to him, instead, as "my friend."
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
2The jury acquitted Appellant of the offense of aggravated assault against
Edgar.
3The responding officer testified that Indalacio had told him the assailant
had pointed the gun at him.
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
4lndalacio'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.
5The 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.
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
threatened] 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.
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.
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
"[l]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.
App. 1984), cert, denied, 471 U.S. 1009 (1985).6 Consequently, although the
State alleged in the indictment that Appellant "intentionally or knowingly
threatened] 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
threatened] 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
eGarrett 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 othergrounds,
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 Inaaiacio
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.
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
10
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)
("'[Although 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
11
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
i "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, jndalacio'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 he-'! called 9-1-1
by ute 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)
14
("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.
7Because 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.
8On 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, rte 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 02t1 3-00197-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
Hernandez, Daniel
Combined Opinion