Andrews v. State

OPINION

DIES, Chief Justice.

Appellant was tried by the court, without a jury, for aggravated assault [V.T.C.A., Penal Code, Sec. 22.01(a)(2) and 22.-02(a)(4)], He was found guilty and given two years probated sentence, from which he brings this appeal.

Appellant’s first three grounds of error challenge the sufficiency of the evidence to support the conviction. Complaining witness, Barrett, went to appellant’s residence; appellant refused to talk; so, Barrett and appellant’s brother had a conversation. Barrett then got into his car and, when driving away, heard an explosion and saw glass flying. He (Barrett) looked back and saw appellant pointing a gun (which appellant denied). Appellant’s contention is that shooting the glass in the car did not constitute a threat within the meaning of Sec. 22.01 because an act cannot be a threat. “Threat” is not defined in the Texas Penal Code, and our Court of Criminal Appeals has apparently never defined “threat” in the context of Sec. 22.01. However, in Berry v. State, 579 S.W.2d 487 (Tex.Cr.App.1979), the Court held that a threat “is not limited to the use of verbal aggression but may include acts amounting to an offer to use future force. Threats may be communicated by actions, words or deeds,” id. at 489. See Brown v. State, 576 S.W.2d 820 (Tex.Cr.App.1978) (holding a gun to victim’s head), and Church v. State, *757552 S.W.2d 138 (Tex.Cr.App.1977) (holding a knife to victim’s throat).

It seems safe to assume that when Barrett realized his car window was shot out, he fled from future violence, and Berry v. State, supra, would be controlling. These grounds of error are overruled.

Appellant’s next ground of error complains of improper testimony regarding an extraneous offense. However, the objection he made in the trial court is not the same as he makes here. Therefore, no error is shown. Canada v. State, 589 S.W.2d 452 (Tex.Cr.App.1979). Furthermore, since this trial was to the court, he is presumed to have ignored inadmissible evidence. Moton v. State, 540 S.W.2d 715 (Tex.Cr.App.1976). This ground of error is overruled.

In his fifth ground of error, appellant complains the court failed to approve his waiver of a jury trial. A jury waiver, signed, is a part of the court papers. Neither Sec. 1.13 nor Sec. 1.15 of the Texas Code of Criminal Procedure requires that the consent and approval of the court be in writing. The trial court certainly knew he had no jury in the box and is, under these circumstances, presumed to consent to appellant’s waiver. This ground of error is overruled.

It is difficult for us to follow appellant’s last ground of error. It is that the trial court did not listen to his evidence. The sole reason for this contention is the trial court’s assertion: “I’ve lost you somewhere.” We have no authority to cite to support our overruling this ground of error.

The judgment of the trial court is affirmed.

AFFIRMED.