                        NUMBER 13-12-00775-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

ANTONIO DELEON,                                                          Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 24th District Court
                        of Victoria County, Texas.


                        MEMORANDUM OPINION
      Before Chief Justice Valdez, Justices Perkes, and Longoria
              Memorandum Opinion by Justice Perkes
      Appellant Antonio Deleon III appeals his conviction for the offense of aggravated

assault, a second-degree felony, see TEX. PENAL CODE ANN. § 22.02(a) (West, Westlaw

through 2013 3d C.S.), enhanced to a first-degree felony. See id. § 12.42(b) (West,

Westlaw through 2013 3d C.S.).      A jury found appellant guilty, and the trial court

assessed punishment at life imprisonment in the Texas Department of Criminal Justice.
By a single issue, appellant contends that the evidence is legally insufficient to support a

conviction of aggravated assault. We affirm.

                                    I. BACKGROUND

       Trial testimony established that at around 2:00 a.m., Anton Eggebeen and a group

of his colleagues exited a bar. According to Eggebeen, the group encountered appellant

and another man in the parking lot. Both men appeared to be intoxicated. After a brief

interaction, the two men got into a truck and pulled alongside Eggebeen’s group.

Appellant was the passenger and the other man was the driver.

       Eggebeen testified that the driver asked the group, “Y’all want to f__k it up?,” after

which appellant said, “Get him with that nine. Get him with that nine.” Appellant then

produced a handgun and fired it out the driver’s side window in Eggebeen’s direction.

Eggebeen saw a flash and smoke.          After the shot was fired, the truck sped away.

Eggebeen testified that appellant’s act of shooting at him placed him in fear of imminent

bodily injury. Other evidence connecting appellant to the shooting included a positive

gunshot residue test, indicating appellant fired or handled a gun, an empty shell casing in

the driver’s truck, and the testimony of a third party who overheard the driver yelling at

appellant for shooting a handgun.

                                  II. STANDARD OF REVIEW

        “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing 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.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

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see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).

“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in

the evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc)

(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).               Juries are

permitted to make reasonable inferences from the evidence presented at trial, and

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

actor. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).

       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.   Under such a charge, appellant is guilty of

aggravated assault if he intentionally or knowingly threatened another with imminent

bodily injury by using or exhibiting a deadly weapon. See TEX. PENAL CODE ANN. §

22.02(a)(2). A person acts with intent with respect to the nature of their conduct or to the

result of their conduct when it is their “conscious objective or desire to engage in the

conduct or cause the result.” Id. 6.03.02(a) (West, Westlaw through 2013 3d C.S.).

Direct evidence of intent or knowledge is not necessary; a jury may infer intent or

knowledge from a defendant’s acts, words, conduct, and the method of committing the

crime and the nature of the wounds inflicted on the victim. See Hart v. State, 89 S.W.3d

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61, 64 (Tex. Crim. App. 2002) (en banc) (quoting Manrique v. State, 994 S.W.2d 640, 649

(Tex. Crim. App. 1999)); Linden v. State, 347 S.W.3d 819, 822 (Tex. App.—Corpus Christi

2011, pet. ref’d). Section 22.02 does not define “threat,” but case law has established

that the term “threat” is not restricted to verbal statements but includes actions, words, or

deeds. See McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984) (en banc);

Boston v. State, 373 S.W. 3d 832, 840 (Tex. App.—Austin 2012); DeLeon v. State, 865

S.W.2d 139, 142 (Tex. App.—Corpus Christi 1993, no pet.).

                                      III. DISCUSSION

       By his sole issue, appellant argues the evidence is insufficient to convict him of

aggravated assault. Specifically, appellant, relying on McGowan, contends he never

articulated a threat to Eggebeen. Appellant explains that his statement —“Get him with

that nine. Get him with that nine”— was directed to the driver rather than Eggebeen.

Appellant emphasizes that he fired no warning shot and that no testimony indicated

anyone felt threatened by him before he fired the handgun. Appellant does not contest

that he shot a handgun out the driver’s window.

       In McGowan, the court of criminal appeals determined that the evidence was

insufficient to convict the defendant of aggravated assault by threat because the victim

was stabbed from behind; [the victim] never saw appellant holding a knife nor did she

testify that appellant threatened her with a knife.” 664 S.W.2d at 357. McGowen, however,

does not stand for the principle that a person who does see someone point a weapon at

them is unthreatened, and the facts of McGowan are distinguishable from this case. See

id. In this case, Eggebeen testified that he saw appellant produce a handgun, point it in

his general direction, and fire it.

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       Appellant is correct in his assertion that the State needed to prove the existence

of a threat, but the term “threat” is not limited to verbal statements. Id.; Boston, 373 S.W.

3d at 840; DeLeon, 865 S.W.2d at 142. A jury can find that a defendant’s actions, words,

or deeds conveyed a threat, see McGowan, 664 S.W.2d at 357, and proof of a verbal

threat is unnecessary. See Cantu v. State, 953 S.W.2d 772, 775 (Tex. App.—Corpus

Christi 1997, writ ref'd) (citing Preston v. State, 675 S.W.2d 598, 601 (Tex. App.—Dallas

1984, pet. ref'd)). Appellant’s act of pointing the handgun at Eggebeen was sufficient to

establish the threat requirement under the aggravated assault statute. See Dickerson v.

State, 745 S.W.2d 401, 403 (Tex. App.—Houston [14th Dist.] 1987, pet. ref'd) (holding

that the pointing of a gun alone establishes the threat); see also Dorough v. State, 639

S.W.2d 479, 480 (Tex. Crim. App. [Panel Op.] 1982) (holding evidence that a gun was

pointed at another’s head sufficient to prove threat); Brown v. State, 576 S.W.2d 820, 822

(Tex. Crim. App. 1978) (same).

       After reviewing the evidence in the light most favorable to the judgment, we

conclude that a reasonable juror could have found beyond a reasonable doubt the

elements of aggravated assault. See Johnson, 364 S.W.3d at 293–94. We overrule

appellant’s sole issue on appeal.

                                        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
19th day of June, 2014.
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