                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-10-00305-CR

JOSE ALVITER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 40th District Court
                               Ellis County, Texas
                            Trial Court No. 34,688CR


                          MEMORANDUM OPINION


      Jose Alviter, Jr. was convicted of aggravated assault on a public servant, a first

degree felony. TEX. PENAL CODE ANN. §§ 22.01(a)(2); 22.02(a)(2), (b)(2)(B) (West Pamp.

2010). He was sentenced to 50 years in prison. Because the evidence is sufficient to

support the conviction, we affirm the trial court’s judgment.

      Officer Anthony Parrish of the Waxahachie Police Department stopped a vehicle

in which Alviter was the front seat passenger. Officer Chris Eadler, also with the

Waxahachie Police Department, arrived in a separate police unit to assist. Although

being ordered to do so by both officers, Alviter would not put his hands in view. When
he finally placed his hands on the dashboard, Parrish pulled the driver out of the

vehicle. Eadler approached the passenger side of the car with his duty weapon drawn.

As he did, he noticed Alviter put his hands down in between the seat and the center

console of the front seat. Eadler saw Alviter raise a revolver in between the bucket seats

and point it at Parrish. He saw Alviter’s finger in the trigger guard. Eadler yelled to

Parrish that Alviter had a gun and then ordered Alviter to drop the gun. Alviter

dropped the gun in the back floorboard. Parrish reacted to Eadler’s alert by drawing

his weapon and leaning over the driver, whom he was holding down on the trunk of

the car, to look into the back window. He saw Alviter facing him. Parrish testified that

at that point he was in fear of imminent bodily injury.

        Alviter was charged with aggravated assault by threatening Parrish with

imminent bodily injury and using a deadly weapon. See TEX. PENAL CODE ANN. §§

22.01(a)(2), 22.02(a)(2) (West Pamp. 2010).    In his sole issue, Alviter contends the

evidence is insufficient to prove that he threatened Officer Parrish with a gun because

Parrish was unaware of the threat. The Jackson v. Virginia standard is the only standard

that a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see Jackson

v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under the Jackson

standard, "the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential



Alviter v. State                                                                    Page 2
elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in

original).

        Alviter argues that to decide his issue, we must require the State to prove beyond

a reasonable doubt that Alviter intended to place Officer Parish in apprehension of

imminent danger by pointing a firearm at him. In other words, Alviter wants us to

require the State to prove that Parrish actually perceived the threat. The statute does

not require actual perception of the threat by the victim. TEX. PENAL CODE ANN. §

22.01(a)(2) (West Pamp. 2010) (“A person commits an offense if the person: (2)

intentionally or knowingly threatens another with imminent bodily injury….”).

Further, the question of whether a victim of assault by threat must perceive the threat

has been left open by the Court of Criminal Appeals. See Olivas v. State, 203 S.W.3d 341,

349 (Tex. Crim. App. 2006).

        Nevertheless, based on this record, we need not make the determination

requested. Eadler saw Alviter raise a gun, have his finger in the trigger guard, and

point it at Parrish. He yelled a warning to Parrish who reacted by drawing his weapon

and looking at Alviter. Parrish said that he was in fear of imminent bodily injury. Even

assuming, arguendo, that the State must prove Parrish perceived the threat, we find the

evidence is sufficient to support the jury's verdict.

        Alviter’s issue is overruled, and the trial court’s judgment is affirmed.



                                           TOM GRAY
                                           Chief Justice


Alviter v. State                                                                    Page 3
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 6, 2011
Do not publish
[CRPM]




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