                          NUMBER 13-10-00357-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI—EDINBURG
 ____________________________________________________

DEREK JAY MENDENHALL,                                                       Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


                  On appeal from County Court at Law No. 1
                         of Victoria County, Texas
 ____________________________________________________

                          MEMORANDUM OPINION

                 Before Justices Benavides, Vela, and Perkes
                  Memorandum Opinion by Justice Perkes

      A jury convicted appellant, Derek Jay Mendenhall, of the offense of terroristic threat,

a Class B Misdemeanor. See TEX. PENAL CODE ANN. § 22.07(a)(2), (c) (West Supp. 2010).

The jury assessed punishment at ninety days in the county jail, suspended for a period of

community supervision, and a $1,000 fine. The trial court imposed a two-year period of
community supervision.     In a single issue, appellant contends the evidence is legally

insufficient to support his conviction. We affirm.

                                       I. BACKGROUND

       A. State’s Evidence

       Krystin Nicole Williams (Nicole) and appellant ended their relationship on April 18,

2009, the date of the incident in question. On that day, he sent her a text message, which

stated:

       You got 20 minutes to get over here and get all your s*** or it’s going in the
       trash and I mean every bit of it. And don’t bring anybody with you. Come by
       yourself so we can talk. But I’m serious about–I’m serious. About to throw
       all this s*** away and I don’t give a f*** if your mom sees us or not. You want
       this s*** come get it because I know your lying a** was never serious.‖
       [Expletives omitted].

       In reply, she sent him a text, stating she would come over and pick up her things.

When she and her father, Jeffrey Williams, (the complainant) arrived at appellant’s

residence, she saw appellant pull out a nine-millimeter gun.       He cocked it, pointed it

towards their heads, and said, ―I told you to come alone.‖ Nicole testified she was in fear

for her life when he pointed the gun at her. She drove around the corner, and her father

called the police. They waited there until the police arrived.

       Williams testified that when he and Nicole pulled up to appellant’s residence,

appellant had a gun in his hand, which had a red laser light to aim it. Williams felt

threatened and feared for Nicole's life when appellant pointed the gun in their direction.

Williams stated he had never threatened appellant in the past, nor did he threaten him

during the incident in question.

       When Lieutenant Jason Cross arrived at the scene, appellant told him Nicole's

father had pointed a gun at him in the past. He also told Lt. Cross that during the incident
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in question, Williams was "talking mess" to him and told him to ―get away from my truck, or

I’ll kill you.‖ Appellant pulled out the gun and told Nicole and Williams to leave. Appellant

told Lt. Cross the gun was empty and that he pointed it to the grass, not at Nicole and

Williams. Lt. Cross retrieved the gun and a gun case, which contained three magazines

that were not loaded on the gun. He did not see a laser light on the gun or in the case.

         On cross-examination, Lt. Cross testified that under the Castle Doctrine,1 it was not

reasonable to pull a gun on someone who is only ―talking mess.‖ He stated it did not make

sense for appellant to keep the gun empty or point it only at the grass if he was afraid of

Williams.

         B. Appellant’s Evidence

         Appellant's father, Doug Mendenhall, testified that during the incident in question,

he saw Williams attempting to get out of the vehicle, point his finger at appellant, and yell

something at appellant. After Nicole drove away from the residence, Mendenhall took the

gun from appellant. Mendenhall testified the gun had no clip or bullets in it and that

appellant told him that he was trying to scare Williams in order to keep him away from

appellant. Mendenhall said that appellant told him Nicole wanted her belongings, which

were in the back of the truck. Mendenhall grabbed a t-shirt from the back of the truck, and

when he took it to where Nicole and Williams were parked, Williams got out of the vehicle

and told him that ―he was going to kill that little m**–f** bastard.‖ (expletive omitted).

Mendenhall replied that in order to get to appellant, Williams would have to go through him

first.

         Appellant did not testify during the guilt-innocence phase of his trial.

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          Lt. Cross testified that under the Castle Doctrine in Texas, a property owner can protect your
property or your person with any amount of force up to and including deadly force if needed.
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                                  II. STANDARD OF REVIEW

       When reviewing legal sufficiency, a court must ask itself whether, after reviewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt—not whether it

believes the evidence establishes the verdict beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 318–19 (1979). The jury is the sole judge of a witness's credibility

and the weight to be given the testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008). The reviewing court should not act as a thirteenth juror that substitutes

its own opinion of the credibility and weight of the evidence for that of the fact finder. See

Brooks v. State, 323 S.W.3d 893, 905 (Tex. Crim. App. 2010) (plurality op). Instead, the

reviewing court must resolve inconsistencies in testimony in favor of the verdict and then

ask whether a rational trier of fact could have found the elements of the crime beyond a

reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). The jury

may choose to believe or disbelieve any part of a witnesses’ testimony. Sharp v. State,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

       It is not necessary that the evidence directly prove the defendant's guilt;

circumstantial evidence is as probative as direct evidence in establishing the guilt of the

actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kuciemba v. State, 310 S.W.3d 460, 462

(Tex. Crim. App. 2010). A fact-finder may support its verdict with reasonable inferences

drawn from the evidence, and it is up to the fact-finder to decide which inference is most

reasonable. Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009).




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                                        III. ANALYSIS

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)).   Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof, or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id.

       A person commits the offense of terroristic threat if he threatens to commit any

offense involving violence to any person or property with intent to place any person in fear

of imminent serious bodily injury. TEX. PEN. CODE ANN. § 22.07(a) (2); Dues v. State, 634

S.W.2d 304, 305–06 (Tex. Crim. App. 1982); Kingsbury v. State, 14 S.W.3d 405, 408 (Tex.

App.—Waco 2000, no pet.). A person acts 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. TEX. PENAL CODE ANN. § 6.03(a) (West 2003). Intent

can be inferred from the acts, words, and conduct of the accused. Beltran v. State, 593

S.W.2d 688, 689 (Tex. Crim. App. 1980).           However, the accused's intent cannot be

determined merely from what the victim thought at the time of the offense. Indeed, for this

offense to be completed it is not necessary that the victim or anyone else was actually

placed in fear of imminent serious bodily injury. Jarrell v. State, 537 S.W.2d 255, 256–257

(Tex. Crim. App. 1976). Additionally, it is immaterial to the offense whether the accused

had the capability or the intention to carry out his threat. Id. However, the desired and

sought after reaction of the complainant, regardless of whether the threat is real or whether

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the threat is carried out, constitutes some evidence of the intent of the protagonist. Hadnot

v. State, 884 S.W.2d 922, 925–26 (Tex. App.—Beaumont 1994, no pet.). A threatened

injury is ―imminent‖ if it is ―near at hand‖ or ―on the verge of happening.‖ Devine v. State,

786 S.W.2d 268, 270 (Tex. Crim. App. 1989).

       Here, Nicole went to appellant’s residence as a result of his invitation and threat.

She was in fear of losing her personal belongings if she did not retrieve them. When

Nicole and Williams drove up to the driveway of appellant’s residence, appellant was

already standing in the driveway with a gun tucked behind his back. No evidence exists

that appellant knew Williams was accompanying Nicole that evening.

       Considering the evidence in the light most favorable to the verdict, it can be inferred

through the appellant’s actions and conduct that his intent was to place Williams in fear of

imminent bodily injury. Further, Mendenhall’s testimony corroborates this when he testified

appellant told him that he used the gun to scare Williams to keep him off of the appellant.

We conclude the evidence proves beyond a reasonable doubt that appellant committed

the crime of terroristic threat for which the jury found him guilty. We overrule the sole issue

for review.

                                      IV. CONCLUSION

       We affirm the trial court’s judgment.


                                           ________________________________
                                           GREGORY T. PERKES
                                           Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
29th day of September, 2011.

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