        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-05-00758-CR




                                 John Edward Cantu, III, Appellant

                                                    v.

                                     The State of Texas, Appellee



   FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
         NO. B-04-0705-5, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                              MEMORANDUM OPINION


               A jury found appellant John Edward Cantu, III guilty of aggravated assault with a deadly

weapon and assessed punishment, enhanced by two previous felony convictions, at thirty years’

imprisonment. See Tex. Pen. Code Ann. § 22.02(a)(2) (West Supp. 2006). Appellant challenges the

sufficiency of the evidence in a single point of error. We will affirm the conviction.

               Appellant’s point of error urges that the trial court erred by overruling his motion for an

instructed verdict of acquittal. This contention is, in effect, a challenge to the legal sufficiency of the

evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Williams v. State, 937

S.W.2d 479, 482 (Tex. Crim. App. 1996). In his prayer for relief, however, appellant asks this Court

to reverse and remand for a new trial. In the interest of justice, we will treat the point of error as a

challenge to both the legal and factual sufficiency of the evidence.
                When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979)

(legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal sufficiency);

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency). In a legal sufficiency

review, all the evidence is reviewed in the light most favorable to the verdict; it is assumed that the trier

of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Griffin, 614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19). In

a factual sufficiency review, all the evidence is considered equally, including the testimony of defense

witnesses and the existence of alternative hypotheses. Clewis v. State, 922 S.W.2d 126, 129 (Tex.

Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). Although

due deference still must be accorded the fact finder’s determinations, particularly those concerning the

weight and credibility of the evidence, the reviewing court may disagree with the result in order to

prevent a manifest injustice. Johnson, 23 S.W.3d at 9; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.

App. 1997). The evidence will be deemed factually insufficient if the evidence supporting the verdict

is so weak as to make the finding of guilt clearly wrong or manifestly unjust, or if the verdict is against

the great weight and preponderance of the available evidence. Watson v. State, No. PD-469-05, 2006

Tex. Crim. App. LEXIS 2040, at *30-31 (Tex. Crim. App. Oct. 18, 2006); Johnson, 23 S.W.3d at 11.

                The jury found that appellant intentionally or knowingly threatened Samantha Aguirre,

with whom he had once been romantically linked, with imminent bodily injury while using or exhibiting

a firearm. Samantha testified that on the day in question she was staying with her former husband, Nick

Aguirre, and their children at Nick’s house in San Angelo. Shortly after Nick left the house with the

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children to take them to school and then go to work, appellant called and told Samantha that he was

coming to get her. She testified, “He was furious. He insisted that I was going to leave with him

whether I wanted to or not. Obviously, he had had a confrontation with my brother the evening before

and it didn’t go the way he had wanted it to. So he wanted me to see what he was going to do to my

brother . . . for crossing him.” Appellant told Samantha that “he was a couple of minutes away from

where I was at and that I was going to leave with him. He was going to take me so I could see what he

was going to do to my brother.” Samantha said that she did not know what had happened between

appellant and her brother, but appellant “was very angry.”

               Immediately after the call ended, Samantha called her brother and “told him the threats

that were given to me to him. And then I hung up with my brother and I called my ex-husband to please

come home.” Samantha testified that she had no doubt that appellant was coming to get her and that

she had never been so scared in her life. In his own testimony, Nick said that Samantha “sounded very

scared” when she called him and that he immediately “took off toward the house.”

               Five or ten minutes after appellant called Samantha, he arrived at the Aguirre house in

his pickup. Samantha watched him through a crack in the door as he walked to the front porch carrying

what proved to be a shotgun. Appellant called out, “Come on, Samantha.” When asked by the

prosecutor if appellant pointed the gun at her, she answered, “When I opened the door, it was right

there, ma’am, right at me.” Later, during cross-examination, she insisted that the shotgun “was pointed

at me.” Samantha testified that she “[m]ost definitely” felt threatened by appellant’s conduct.

               Nick Aguirre drove up before appellant could step onto the front porch. When Nick

yelled at him, appellant turned without saying another word, walked back to his pickup truck, and drove

away. Nick testified that he did not see appellant point the shotgun at Samantha.

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               Appellant contends that the State failed to prove that he threatened Samantha Aguirre

with imminent bodily injury. He argues that he did not verbally threaten her and that, while a threat can

be conveyed in a nonverbal manner, the evidence that he walked up to the house while carrying the

shotgun was not sufficient to support the jury’s determination that he threatened Samantha with a

firearm. He contrasts the evidence in this case with that held sufficient in earlier prosecutions. See

Horn v. State, 647 S.W.2d 283, 285 (Tex. Crim. App. 1983) (holding that evidence defendant swung,

hit, nicked, flicked, and nipped at complainant with knife was sufficient to prove threat of imminent

bodily injury); Berry v. State, 579 S.W.2d 487, 489-90 (Tex. Crim. App. 1979) (holding that evidence

defendant grabbed complainant’s arm and pressed flat, sharp object against her neck was sufficient to

prove threat of serious bodily injury); Church v. State, 552 S.W.2d 138, 141 (Tex. Crim. App. 1977)

(holding that evidence defendant grabbed complainant and held knife to her throat was sufficient to

prove threat of serious bodily injury).

               We agree that appellant’s conduct is distinguishable from the conduct of the defendants

in the opinions cited by appellant. And this case might present a close question if, as appellant would

have it, the evidence showed only that he walked up to the Aguirre house while carrying the shotgun.

But that is not all the evidence shows. Before driving to the house, appellant called Samantha and,

obviously furious, told her that he was “coming to get her” and that she “was going to leave with him

whether [she] wanted to or not.” Minutes after making this verbal threat to kidnap Samantha, by force

if necessary, appellant arrived at Samantha’s residence, approached it while carrying a shotgun, and

demanded that she come with him. When Samantha opened the door, appellant pointed the shotgun

at her. Viewing all the evidence in the light most favorable to the verdict, we conclude that it is legally



                                                    4
sufficient to support a finding beyond a reasonable doubt that appellant threatened Samantha Aguirre

with imminent bodily injury, and that he did so while using or exhibiting a firearm.

               Appellant testified that he was not in San Angelo on the day of the alleged offense. In

addition, two months after the alleged incident Samantha executed an affidavit, admitted in evidence

by the defense, stating that she had been abusing drugs, that appellant “never was at my house,” and that

appellant never threatened her with a firearm. Samantha explained that she made this affidavit after

being asked to do so by appellant and his mother. Obviously, the jury did not believe this defensive

evidence. Giving the jury’s credibility determination the deference it is due, we do not believe that the

evidence supporting the verdict is so weak as to make the finding of guilt clearly wrong or manifestly

unjust, or that the verdict is against the great weight and preponderance of the available evidence.

               Finding the evidence to be both legally and factually sufficient to support the jury’s

verdict, we overrule the point of error and affirm the judgment of conviction.




                                       __________________________________________

                                       David Puryear, Justice

Before Justices B. A. Smith, Puryear and Waldrop

Affirmed

Filed: December 21, 2006

Do Not Publish




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