               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                         NO. PD-1169-09



                            LOUIS WAYNE TEETER, Appellant

                                                 v.

                                   THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                            NUECES COUNTY

                K ELLER, P.J., filed a dissenting opinion in which K EASLER and H ERVEY,
JJ., joined.

       The Court says that aggravated assault by threat requires proof that the defendant “intended

to cause an apprehension of imminent bodily injury.”1 Even if the Court is correct on this point,

aggravated assault by threat is not a lesser-included offense of attempted capital murder in this case

because the attempted capital murder charged here does not require that the defendant intend to cause

apprehension.

       According to the Court, aggravated assault by threat requires that the defendant intend for



       1
           Court’s op. at 12.
                                                                                       TEETER — 2

the victim to perceive the threat, even though it does not require that the victim actually perceive the

threat.2 Fair enough. But attempted capital murder—in the abstract or as pled in the indictment in

this case—does not require proof of such an intent. In the abstract, attempted capital murder

necessarily entails an intent to inflict imminent bodily injury. And as the Court says, the “act of

pointing a gun, with the intent to kill, is an expression of an intention to inflict imminent bodily

injury on the complainant.”3 But an intent to inflict imminent bodily injury is not the same as an

intent to cause an apprehension of imminent bodily injury. The would-be murderer may seek to kill

the victim without the victim ever knowing what hit him—e.g. a bullet to the back of the head. An

allegation that the defendant “pointed a gun” does not foreclose that possibility.

       In McGowan v. State, the Court addressed a scenario in which no threat occurred even though

the defendant intentionally inflicted bodily injury:

       In Cause No. 65,965, it is undisputed that Mrs. Mack did not know what appellant
       struck her with. Mrs. Mack was merely trying to pull her daughter away from
       appellant. There is no evidence that prior to stabbing her appellant threatened her in
       any way. She never saw appellant holding a knife nor did she testify that appellant
       threatened her with a knife. Finally, the evidence shows that after appellant stabbed
       Mrs. Mack, he fled. Thus, we are constrained to hold that the evidence is insufficient
       in Cause No. 65,965, to show aggravated assault by threats even though it shows
       bodily injury.4

The result would not change if McGowan had failed in his attempt to stab Mrs. Mack, and the

charge had been attempted aggravated assault by threat. He still would not have possessed an intent


       2
          Incidentally, I disagree with the Court’s discussion of Olivas v. State, 203 S.W3d 341 (Tex.
Crim. App. 2006). My understanding of Olivas is that the victim knew the defendant had threatened
her, but she thought he had thrown a rock at her car and did not know until later that the threat was
with a deadly weapon.
        3
            Court’s op. at 12.
       4
            664 S.W.2d 355, 357-58 (Tex. Crim. App. 1984).
                                                                                    TEETER — 3

to create the apprehension of imminent bodily injury.

        The evidence introduced at trial may well have shown that appellant intended to create an

apprehension of imminent bodily injury when he pointed a gun at the officer. But the attempted

capital murder count in the indictment did not require the State to prove that. Under our precedent,

it is the indictment, not the evidence at trial, that controls.5

        I respectfully dissent.

Filed: September 22, 2010
Do Not Publish




        5
          Ex parte Watson, 306 S.W.3d 259, 271-72 (Tex. Crim. App. 2009) (discussing Hall v.
State, 225 S.W.3d 524 (Tex. Crim. App. 2007)).
