dissenting.
Regretfully, I must dissent. Until the Court of Criminal Appeals overrules McGowan v. State, 664 S.W.2d 355 (Tex.Crim.App.1984), we are bound by it regardless of the participants.2 I believe it is clear that Officer Ener never saw the weapon and was never threatened or placed in imminent fear by Edwards. The record reflects:
Direct Examination of Ener.
Q Did you ever see the gun that was in his hand?
A No, sir. If I would have been in a position to see the gun then I would have been in a position where it would have been easy to shoot me.
Cross Examination of Ener
Q Officer, before the shots were fired, did you ever see the gun?
A No, sir, I wasn’t in a position to see the gun.
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Q Now, right before the shots were fired, did you hear Mr. Edwards say anything ?
A No, sir, I never heard him say anything until after the shots were fired.
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Q Did you ever get closer to the driver’s side than is shown on the video?
A (No response)
Q In other words, however close you got to that car is shown on the video?
A Yes, sir.
Q And if it’s at the rear of the car or a little forward to that, it’s shown on the video.
A Yes, sir.
Q And you never saw the gun.
A No, sir, I was never standing in a position to see it.
The video tape — comments by Ener
To Officer Anderson: I’m glad you saw that. I couldn’t see s* *t, Rick. That’s why I stayed back; something, something wasn’t right.
Clearly Edwards was a wrongdoer and at least guilty of unlawfully carrying a weapon, Tex. Pen.Code Ann. § 46.02 (Vernon Supp.2001), but under the evidence and case law, he did not threaten Officer Ener because Officer Ener never perceived the threat. I would urge our Court of Criminal Appeals to review this case, overrule McGowan and affirm the majority. But until it does so, I must follow McGowan.
. The court also refused to review Tullos v. State, 698 S.W.2d 488 (Tex.App.—Corpus Christi 1985, pet. ref’d), and Richardson v. State, 834 S.W.2d 535 (Tex.App.—Houston [1st Dist.] 1992, pet. ref’d).