            ItPS-IS                               ttO& YS
ORIGINAL                                              ^argument re^uested
                        PD-1105-15 & PD-1106-15


                IN THE TEXAS COURT OP CRIMINAL APPEALS

             *********************************************




                           DANIEL HERNANDEZ
                         Appellant-Petitioner
                                                          CoKl!^0      ^
                                                          ™T 0F CR'» APPALS
                                  v.                           NOV 03 2015
                          THE STATE OF TEXAS
                         Appellee-Respondent              ^befACQSfa, Clerk
           *************************************************



                   FROM THE SECOND COURT OF APPEALS        PHI IDT r>
                CAUSE NOS. 02-13-196-CR & 02-13-197-CR     °UUH' OF CRIMINAL APPEALS
            APPEAL FROM THE 367TH JUDICIAL DISTRICT COURT            K'OV 03 20!J
                        OF DENTON COUNTY, TEXAS
               CAUSE NOS. F-2012-G920-E & F-2012-0923-E         ..
               THE HONORABLE MARGARET BARNES PRESIDING          Atlel AcOSta, Clerk
             *******************************************



            APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

             *******************************************




                                  By:
                       Daniel Hernandez/ Pro Se
                          TDCJ-CID #1852714
                            Connally Unit
                              899 FM 632
                         Kenedy, Texas 78119
                                     GROUNDS FOR REVIEW


                                          Ground One


      Whether, for purposes of determining whether there is sufficient
      evidence to support a conviction for aggravated assault under
      Tex.Pen.Code § 22.02(a)(2), there must be evidence that the
      defendant intended to threaten injury to the specific person named
      in the indictment, 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.


                                          Ground Two


      Whether the court of appeals erred when it found the evidence
      legally sufficient to support Appellant's conviction for aggravated
      assault under Tex.Pen.Code § 22.02(a)(2).




Appellant's Petition for Discretionary Review - Page ii
                                     TABLE OF CONTENTS


GROUNDS FOR REVIEW                                                           ii

TABLE OF CONTENTS                                                           iii

INDEX OF AUTHORITIES                                                        iv

IDENTITY OF JUDGE, .PARTIES, AND COUNSEL                                     .V

STATEMENT REGARDING ORAL ARGUMENT                                           vi

STATEMENT OF THE CASE                                                       vi

STATEMENT OF PROCEDURAL HISTORY                                             vi

INTRODUCTION                                                                  1

STATEMENT OF FACTS                                                            2

ARGUMENT                                                                      4

      Ground One


      For purposes of determining whether there is sufficient evidence to
      support a conviction for aggravated assault under Tex.Pen.Code §
      22.02(a)(2), there must be evidence that the defendant intended to
      threaten injury to the specific person named in the indictment,
      complainant, and knew that he had done so, and the threat, may not
      have arisen solely from the complainant's view of the circumstances
      and his conclusions about the intent of the accused                     4

      Ground Two


      The court of appeals erred when it found the evidence legally
      sufficient to support Appellant's conviction for aggravated assault
      under Tex.Pen.Code § 22.02(a)(2)                                        8

PRAYER FOR RELIEF                                                             9

DECLARATION                                                                   9

CERTIFICATE OF SERVICE                                                      10

APPENDIX:     Second Court of Appeals Dissenting Opinion
              Second Court of Appeals Majority Opinion




Appellant's Petition for Discretionary Review - Page iii
                                    INDEX OF AUTHORITIES


Cases                                                                      Page

Adkins v. State, 274 S.W.3d 870, 874 (Tex.App.—Fort Worth
   2008, no pet.)                                                             5

Elonis v. United States, 135 S.Ct. 2001, 2009 (2015)                          4

Fiore v. White, 531 U.S. 225, 228, 121 S.Ct. 712, 714 (2001)                  2

Jackson v. Virginia, 443 U.S. 307, 319-20 (1979)                           1, 8

Morissette v. United States, 342 U.S. 246, 250 (1952)                         2

Staples v. United States, 511 U.S. 600, 607 n. 3, 114 S.Ct. 1793, 1798
    n. 3 (1994)                                                              4

FEDERAL CONSTITUTION


U.S.CONST,    amend.   XIV                                                    1


STATE STATUTES


Tex.Pen.Code § 6.02(a)                                                        2

Tex.Pen.Code § 6.02(d)                                                        2

Tex.Pen.Code § 22.01(a)(2)                                                4, 5

Tex.Pen.Code § 22.02(a)(2)                                               passim




Appellant's Petition for Discretionary Review - Page iv
                        IDENTITY OF JUDGE,     PARTIES, AND COUNSEL


Appellant:                                      Mr.    Daniel Hernandez
                                                TDCJ-CID #1852714
                                                Connally Unit
                                                899 FM 632
                                                Kenedy, Texas 78119

Appellant's Trial Attorney:                     Mr. Stacey Mooring
                                                Attorney at Law
                                                701 N. Riverside,     Suite E
                                                Fort Worth, Texas 76111, Suite 3100

Appellant's Appeal Attorney:                    Mr.    David Wacker
                                                Attorney at Law
                                                P.O.     Box 1142
                                                Denton, Texas 76202

Trial Judge:                                    Hon. Margaret Barnes
                                                Judge, 367th District Court
                                                Denton County Courts Bldg.
                                                1450 E. McKinney
                                                Denton, Texas 76201

State's Trial Attorneys:                        Mr.    Matthew Shovlin
                                                Mr. Justin Jones
                                                Assistant District Attorneys
                                                1450 E. McKinney
                                                Denton,     Texas 76202

State's Appeal Attorney:                        Mr. Charles Orbison
                                                Appellate Attorney
                                                Denton County District Attorney's Office
                                                1450 E. McKinney
                                                Denton,     Texas 76202




Appellant's Petition for Discretionary Review - Page v
                            STATEMENT REGARDING ORAL ARGUMENT


      This case raises important issues and distinctions regarding Tex.Pen.

Code § 22.02(a)(2) and that statute's application to this case.            Mr. Hernandez

believes oral argument would help the Court understand and solve these

problems.

                                   STATEMENT OF THE CASE


      This appeal involves two cases from the 367th District Court of Denton

County, Texas.      On April 11, 2013, Appellant was convicted by a jury of

aggravated assault with a deadly weapon and felon in possession of a firearm.

(4 RR 181.)     The jury assessed punishment at 63 years in prison on each term

to run concurrently.       (5 RR 26-28; 5 RR 33.)

      Appellate counsel filed a Motion to Withdraw from the appeal of the gun

conviction with an Anders' Brief.          Mr. Hernandez filed a Brief in Opposition.

The Second Court of Appeals affirmed the aggravated assault conviction with

Justice Dauphinot dissenting in an 11-page dissent stating, "I would hold the

evidence insufficient to support Appellant's conviction for aggravated

assault."     (See Attached Dissenting Opinion at 11.)

      The court of appeals also concluded that the appeal of the gun conviction

is wholly frivolous and without merit.            (Attached Maj. Op. at 17.)   The court

granted counsel's Motion to Withdraw and affirmed the trial court's judgment

in the gun case in cause number 02-13-00197-CR.

      Mr. Hernandez here abandons his claims regarding the firearm conviction,

but seeks discretionary review of the court of appeals majority opinion

affirming the aggravated assault conviction and 63-year sentence.

                             STATEMENT OF PROCEDURAL HISTORY


      The court of appeals handed down its opinion on August 6, 2015 with

Justice Dauphinot's dissent filed the same day.           Daniel Hernandez v. State of


Appellant's Petition for Discretionary Review - Page vi
Texas, No. 02-13-196-CR, No. 02-13-297-CR (Tex.App.—Fort Worth).             Mr.
Hernandez did not file a motion for rehearing.             This Court granted Mr.

Hernandez an extension of time to file this Petition.             This Petition is due by

November 9, 2015.




Appellant's Petition fee Discreticnary Review - Page vii
                            COURT OF CRIMINAL APPEALS OF TEXAS
                                         AUSTIN,    TEXAS


DANIEL HERNANDEZ,                               §                  CCA #PD-1105-15
TDCJ-CID #1852714,                              §                  CCA #PD-1106-15
                                                §
      Appellant-Petitioner,                     §
                                                f                  COA #02-13-196-CR
                                                |                  COA #02-13-197-CR
THE STATE OF TEXAS,                             §
                                                §                  TC #F-2012-0920-E
      Appellee-Respondent.                      §                  TC #F-2012-0923-E

                     APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

                                         INTRODUCTION


      The State alleged in the indictment that Petitioner Daniel Hernandez

"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."   (1 CR 8.)    As

stated below, witnesses testified that Mr. Hernandez pointed a gun at

Francisco San Miguel, but Francisco was not named as a complainant.            The jury

acquitted Mr. Hernandez of aggravated assault against another complainant and

found him guilty of the lesser-included offense against the third complainant.

All three complainants denied that Mr. Hernandez pointed a gun at them.               The

jury found Mr. Hernandez guilty of aggravated assault against Indalacio.              Mr.

Hernandez complained on appeal that the evidence was insufficient to support

conviction for aggravated assault.           The court of appeals affirmed.   (See

Attached Opinion and Dissenting Opinion.)

      After viewing the evidence in the light most favorable to the prosecution,

no rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.        See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The State is attempting to punish Mr. Hernandez under Tex.Pen.Code § 22.02(a)


Appellant's Petition for Discreticnary Review - Page 1
(2) based on conduct that does not fall within the definition of that statute.

A person does not commit an offense unless he or she engages in the proscribed

conduct with the culpable mental state that the definition of the offense

requires.     See Tex.Pen.Code § 6.02(a) and (d) (West Supp. 2007).

        A state cannot, consistently with the Due Process Clause, convict a

defendant for conduct that its criminal statute, as properly interpreted, does

not prohibit.     See e.g. Fiore v. White, 531 U.S. 225, 228, 121 S.Ct. 712, 714

(2001); see also Morissette v. United States, 342 U.S. 246, 250 (1952) ("The

contention that an injury can amount to a crime only when inflicted by inten

tion is no provincial or transient notion.               It is as universal and persistent

in mature systems of law as belief in freedom of the human will and a

consequent ability and duty of the normal individual to choose between good

and evil").

                                     STATEMENT OF FACTS


        Complainant Indalacio Quintero testified that he threw a trailer hitch at

the back windshield of a Chevy extended-cab pickup truck while the truck drove

passed him in the parking lot of his corn stand business.              (3 RR 167-68; 3 RR

177.)    According to testimony at trial, the person driving the truck was Mr.

Hernandez, and he had been burning out in the parking lot and possibly

screeching his tires.       (See e.g. 3 RR 41-43, 120.)         No one testified why Mr.

Hernandez was in such a hurry to leave.            Indalacio testified that he threw the

trailer hitch at the truck twice, once at the door and once thru the back

windshield before he saw—from inside the building—Mr. Hernandez outside the

building with a gun.       (3 RR 167-68, 177-79, 180-89; 3 RR 161-62, 166.)
        Indalacio testified that before he threw the trailer hitch thru the

windshield, Mr. Hernandez told him he was "going down."              (3 RR 167.)   When

Indalacio saw him with the gun, he saw him point the gun at his friend.               (3 RR


Appellant's Petition for Discreticnary Review - Page 2
161.)     Indalacio heard Mr. Hernandez say to his friend, "You're going down."

(3 RR 161.)     Upon seeing and hearing that, Indalacio concluded that Mr.

Hernandez thought he was pointing at Indalacio.              (3 RR 161.)     He never pointed

the gun at Indalacio.,       (3 RR 161-62.)      Indalacio testified that he threw the

trailer hitch at the truck because he wanted to draw Mr. Hernandez out of the

truck to fight him.       (3 RR 184.)     Indalacio never saw Mr. Hernandez point the

gun at anyone else except his friend.            (3 RR 191-92.)    Indalacio thought Mr.

Hernandez was thinking while pointing the gun, "Which one of you is Lupe?"

which is Indalacio's middle name, though Indalacio admitted Mr. Hernandez

never actually asked that.         (3 RR 166-70.)

        His friend, Francisco San Miguel, testifed that Mr. Hernandez pointed the

gun at him, not Indalacio.         (3 RR 223.)     Francisco's brother, Edgar San Miguel,

testified that Mr. Hernandez pointed the gun at Francisco and several other

customers.     (3 RR 238.)     Edgar could not identify Mr. Hernandez.           (3 RR 240.)

He testifed that the man with the gun at first left the parking lot and

returned displaying the gun after Indalacio threw the hitch thru his wind

shield.     (3 RR 253-54.)

        It was undisputed that Indalacio was in the building when Mr. Hernandez

was outside with a pistol.         (See e.g. 3 RR 161-62, 166.)          There was no

scientific evidence obtained by the police.              The jury acquitted Mr. Hernandez

of the offense of aggravated assault against Edgar.              (4 RR 181.)    The jury

also acquitted Mr. Hernandez of the offense of aggravated assault against

Indalacio's wife and found him guilty of the lesser-included charge of deadly

conduct assessing punishment at 365 days county jail.              (4 RR 181; 5 RR 27.)

      Mr. Hernandez's wife, Norma Hernandez, testified that their daughter was

dating Brian, Indalacio's son.          (See e.g. 3 RR 274-75.)      As far as she knew,

Mr. Hernandez had no problems with Indalacio.              (3 RR 278.)     Indalacio


Appellant's letition fbr Discreticnary Review - Page 3
testified that him and Mr. Hernandez had previous altercations.               (3 RR 173.)

Ms. Hernandez testified that she saw Mr. Hernandez with a gun the night of the

incident before his arrest (3 RR 281) and that he said his daughters-in-law

ambushed him.     (3 RR 265-66.)

        Indalacio's wife, Guadalupe Quintero, testified that her son and Indalacio

came inside the building when her son came running saying, "He has a gun, he

has a gun."     (4 RR 17-18.)      She never saw him point a gun at anyone.        (4 RR 37-

41.)     She also confirmed that the truck drove thru once and then returned only

once.     (4 RR 16.)

        While the police were at the corn stand, Mrs. Quintero received a call

from her mother on her cell phone.         Her mother said she heard noises like fire

works outside of the Quinteros' house.            (4 RR 21.)     When Mrs. Quintero got

home, she found bullet holes in the grill and hood of a pickup truck parked

in front of her house.       No one was ever arrested for shooting at the pickup

truck.     Mr. Hernandez did not testify on his own behalf.

                                           ARGUMENT


                                          Ground One

       For purposes of determining whether there is sufficient evidence to
       support a conviction for aggravated assault under Tex.Pen.Code §
       22.02(a)(2), there must be evidence that the defendant intended to
       threaten injury to the specific person named in the indictment,
       complainant, and knew that he had done so, and the threat may not
       have arisen solely from the complainant's view of the circumstances
       and his conclusions about the intent of the accused.

        "[A]1 defendant generally must 'know the facts that make his conduct fit
the definition of the offense             '"   Elonis v. United States, 135 S.Ct. 2001,

2009 (2015) (quoting Staples v. United States, 511 U.S. 600, 607 n. 3, 114
S.Ct. 1793, 1798 n. 3 (1994)).         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.               Tex.Pen.Code Ann. § 22.01(a)(2)


Appellant's Petition for Discreticnary Review - Page 4
 (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.).

      The evidence presented at trial showed that Mr. Hernandez did not see who

threw the trailer hitch at his truck twice.               The evidence showed that he did

not know that Indalacio was the person who threw the trailer hitch at his door

and thru his back windshield.          The evidence showed that he did not point the

gun at Indalacio and that Indalacio was not even outside when Mr. Hernandez was

outside with the gun.        The evidence showed that Indalacio was afraid and hiding

inside the building because he was the person that threw the trailer hitch at

the truck for no justifiable reason.           The evidence showed that Mr. Hernandez

did not know that Indalacio was in the building.               No rational juror could have

found Mr. Hernandez guilty of the element of intent or knowledge.

      In order for conviction to stand, Mr. Hernandez had to know complainant

was present and that he was placing complainant in fear of bodily injury to be

imminently inflicted on him.          It's an essential element of the offense.       Tex.

Pen.CodeAnn. §§ 22.01(a)(2), 22.02(a)(2).                Complainant's own testimony shows

that Mr. Hernandez's conviction for aggravated assault cannot stand:

      Q.   The first time, he drove through and burned his tires?

      A.   Yes, sir.

      Q.   Did you see him with a gun then?

      A.   No, sir.     [3 RR 175.]



      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 down at
           time?


      A.   No.     On that occasion he leaves and exits and does the same
           thing.     [3 RR 176.]


Appellant's Petition for Discreticnary Review - Page 5
       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?       [3 RR 192.]



       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—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?

      A.    No, sir.    [3 RR 177.]



      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.       [3 RR 178.]

      The court of appeals erred in its interpretation of Justice Dauphinot's
Dissenting Opinion:

      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 complainant's
      testimony that he or she has been threatened by the accused.


Appellant's Petition for Discreticnary Review - Page 6
(Maj. Op. at 12.)

       Justice Dauphinot's Dissenting Opinion does not say this:             "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."            (Dissenting Op. at 6.)    What Justice

Dauphinot is saying is that the issue was not whether or not complainant felt

threatened.     Just because he felt threatened does not mean he actually was

threatened.     In this case, there's a difference between feeling threatened and

being threatened.       He felt threatened because he knew he threw the hitch at

the truck for no justifiable reason.           He was not actually threatened because

Mr.    Hernandez didn't even know he threw the hitch at the truck.           The other

issue on appeal was whether or not Mr. Hernandez's conduct was accompanied by

the requisite mental state:         Whether Mr. Hernandez intentionally or knowingly

threatened Indalacio Quintero with imminent bodily injury.              The requisite

mental states were not proven.

       Indalacio speculated that Mr. Hernandez was looking for him.            (3 RR 166-

67.)    Assuming arguendo that this was true, the record does not show that he

was looking for him to harm him in any way.              He did not know which one was

Indalacio.     A rational juror would infer that Mr. Hernandez knew Indalacio

owned the business.       A rational juror would infer that at most, Mr. Hernandez

was looking for Indalacio to complain to him that someone in his parking lot

threw a trailer hitch at his truck twice and shattered his back windshield.                A

rational juror would infer that if Mr. Hernandez did peel out and tell Indala

cio he was "going down," it was because Indalacio threatened him first and

proceeded to attack him.        (3 RR 164-66.)      A rational juror would infer that

Mr. Hernandez did not recognize Indalacio and unbeknownest to Mr. Hernandez,

the man he sought for help was the man attacking him all along.


Appellant's Petition for Discreticnary Review - Page 7
        What Justice Dauphinot means is that complainant's speculative testimony

that "he -is pointing the pistol at my friend, but he thought he was me" (3 RR

162) is but a mere modicum of evidence of the requisite culpable mental state.

What's more is that Indalacio didn't even hear Mr. Hernandez say, "Which one

of you is Lupe?":       "[H]e 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."       (3 RR 166-67.)      Indalacio was inside the building the

whole time.     A mere modicum of evidence is not sufficient to sustain a convic

tion:


        [A] mere modicum of evidence may satisfy a "no evidence" standard.
        Any evidence that is relevant, that has any tendency to make an
        element of a crime more probable than it would be without the
        evidence, could be deemed a "mere modicum." Although, it could not
        seriously be argued that such a "modicum" of evidence could by itself
        rationally support a conviction beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. at 320.

                                          Ground Two


        The court of appeals erred when it found the evidence legally
        sufficient to support Appellant's conviction for aggravated
        assault under Tex.Pen.Code § 22.02(a)(2).

        In reviewing the legal sufficiency of the evidence to support a convic

tion, we view all the evidence in the light most favorable to the verdict in

order 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. at 319.        For the reasons stated above and the reasons

stated in Justice Dauphinot's Dissenting Opinion, no rational trier of fact

could have found that Mr. Hernandez intentionally or knowingly threatened

Indalacio Quintero with imminent bodily injury by pointing a firearm at

Indalacio Quintero or threatening to shoot Indalacio.          The court of appeals

erred when it affirmed Mr. Hernandez's conviction for aggravated assault.



Appellant's Petition for Discreticnary Review - Page 8
                                            PRAYER


     For these reasons, Appellant Daniel Hernandez respectfully asks the Court

to grant discretionary review, appoint counsel, order further briefing and
oral argument, and reverse his conviction and punishment with instructions to
the trial court to enter a judgment of acquittal on the charge of aggravated

assault.    In the alternative, he asks the Court to enter any other order it

finds appropriate.

   SUBMITTED and SUBSCRIBED on this the 3d day of ddJh/faeJf > 2015-
                                                         Respectfully submitted,

                                                                      —Ln^La^W^
                                                                             *^-s
                                                          iniel Hernandez, Pro Se
                                                         TDCJ-CID #1852714
                                                         Connally Unit
                                                         899 FM 632
                                                         Kenedy, Texas 78119

                                         DECLARATION


            "I, Daniel Hernandez, TDCJ-CID #1852714, presently incarcerated
      in the Texas Department of Criminal Justice Correctional Institutions
      Division at the Connally Unit in Karnes County, Texas, declare under
      penalty of perjury under Chapter 132 of the Texas Civil Practice and
      Remedies Code and 28 U.S.C. § 1746, that I have read this Petition
      for Discretionary Review, the facts stated in this Petition are true
      and correct, and I placed this Petition in the prison mailbox in a
      postpaid package on this day.

            "Executed on this the3d_ day of OdfTfo/jfLf < 2015."

                                                         Daniel Hernandez           •c==7"




Appellant's Petition for Discreticnary Review - Page 9
                                   CERTIFICATE OF SERVICE


      Icertify that on this thej^ daY °f Od~70h(L¥i 2015, I served the
following parties with a true and correct copy of this Petition for Discre

tionary Review by U.S. mail through the prison mailbox in a postpaid package

to the addresses below:


      Charles E.    Orbison
      Assistant Criminal District Attorney
      1450 E. McKinney St., 3rd Floor
      Denton, Texas 76209

      State Prosecuting Attorney
      P.O. Box 13046
      Capitol Station
      Austin, Texas 78711


                                                          ^rffin/^fc^
                                                          Daniel Hernandez




Appellant's Petition for Discreticnary Review - Page 10
APPENDIX
                         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




         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
            TRIAL COURT NOS. F-2012-0920-E, F-2012-0923-E



                          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.



      1Tex. Penal Code Ann. § 22.01(a)(2) (West Supp. 2014), § 22.02(a)(2)
(West 2011); Adkins v. State, 21A S.W.3d 870, 874 (Tex. App.—Fort Worth
2008, no pet.).

      2Tex. Penal Code Ann. § 6.03(a)-(b) (West 2011).
 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?
       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.
        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). Iwas 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?
       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) Iwas 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: "[0]ur cases
have explained that a defendant generally must 'know the facts that make his
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

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

     7ld.

     8ld.
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


      9ld.

      10/C



                                        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.

      nld.
       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 ifAppellant 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




                                       11
                         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




         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
            TRIAL COURT NOS. F-2012-0920-E, F-2012-0923-E



                                   OPINION




      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

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




      2The jury acquitted Appellant of the offense of aggravated assault against
Edgar.

      3The responding officer testified that Indalacio had told him the assailant
had pointed the gun at him.
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


      4lndalacio'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.


      5The 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.
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
threatened] 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.
                               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.
      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

      "[l]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.
App. 1984), cert, denied, 471 U.S. 1009 (1985).6 Consequently, although the
State alleged in the indictment that Appellant "intentionally or knowingly

threatened] 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

threatened] 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


      eGarrett 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 othergrounds,
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 Inaaiacio

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.
      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)

("'[Although 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

i "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, jndalacio'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 he-'! called 9-1-1
by ute 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.


        7Because 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.




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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.




      8On 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.




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      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, rte 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 02t1 3-00197-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




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