                        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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                                   OPINION

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      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

      1
       Indalacio, in his testimony, does not refer to Francisco by name but refers
to him, instead, as “my friend.”


                                         2
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




      2
         The jury acquitted Appellant of the offense of aggravated assault against
Edgar.
      3
      The responding officer testified that Indalacio had told him the assailant
had pointed the gun at him.


                                         3
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


      4
       Indalacio’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.

      5
        The 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.


                                         4
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

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.” 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.


                                          5
                               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.


                                         6
      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

      “[I]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.




                                          7
App. 1984), cert. denied, 471 U.S. 1009 (1985).6 Consequently, although the

State alleged in the indictment that Appellant “intentionally or knowingly

threaten[ed] 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

threaten[ed] 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


      6
       Garrett 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 other grounds,
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 Indalacio

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.




                                        9
      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)

(“‘[A]lthough 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

“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.          Indalacio’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 had called 9-1-1

by the 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.


      7
        Because 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.




      8
       On 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, no 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 02-13-00197-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
