                        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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                          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.


      1
       Tex. Penal Code Ann. § 22.01(a)(2) (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.).
      2
          Tex. Penal Code Ann. § 6.03(a)–(b) (West 2011).


                                           2
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?



                                      3
      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.




                                          4
       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). I was 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?


                                        5
      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) I was 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: “[O]ur cases

have explained that a defendant generally must ‘know the facts that make his



                                        6
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

      3
       Elonis 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)).
      4
       Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2).
      5
       Maj. Op. at 11.
      6
       Id.
      7
       Id.
      8
       Id.


                                          7
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


      9
       Id.
      10
          Id.


                                         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.
      12
        Id.


                                         9
      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 if Appellant 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




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