                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-16-00225-CR


                  CHRISTOPHER MATTHEW CONWAY, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 251st District Court
                                    Randall County, Texas
                  Trial Court No. 26341C, Honorable Ana Estevez, Presiding

                                   November 21, 2016

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Following a bench trial, appellant Christopher Matthew Conway was found guilty

of aggravated assault with a deadly weapon,1 enhanced.2 The trial court sentenced him

to forty years’ confinement in prison and made a deadly weapon finding. Through three




      1
          TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
      2
        TEX. PENAL CODE ANN. § 22.02(b) (providing offense is a second degree felony);
§ 12.42(b) (West Supp. 2016) (providing enhancement of second degree felony to a first
degree felony on proof of a prior felony conviction).
issues appellant challenges his conviction. We will overrule each issue and affirm the

judgment of the trial court.


                                      Background


       The indictment alleged appellant threatened A.S. with imminent bodily injury and

used or exhibited a firearm.       Evidence showed appellant and A.S. had been

romantically involved. One an occasion, appellant came to A.S.’s apartment and found

her in the company of a male neighbor. Appellant became angry and left saying he

would not bother her again.


       But early the next morning he returned, banging on an outside wall and the

windows and yelling A.S.’s name. Hoping appellant would not awaken her neighbors,

A.S. opened the door and allowed him inside her apartment.


       A.S. testified appellant “wasn’t himself.” She descried him as “very energetic.”

He had a gun in his hand, which made her “nervous.” She was nervous also because

appellant had previously told her of an occasion on which he “pistol-whipped” another

girlfriend. At A.S.’s request he unloaded the weapon and put the bullets in his pocket.

Appellant and A.S. walked outside and appellant smoked a cigarette.          They then

reentered the apartment and appellant reloaded the gun.        He told A.S. he did so

because he did not want to lose the bullets.


       A.S. recounted in trial testimony that, once back inside the apartment, appellant

paced around the living room. He scratched his head with the gun and commented that

he could tell A.S. was scared. She agreed she was scared. He then said he wanted

her to say he terrified her. She complied. In a recorded jail conversation admitted into

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evidence at trial, appellant stated that he put a gun to A.S.’s head and threated to “blow

her head off.”


       A.S. went to the bedroom for her cellphone. Appellant told her she could call the

police but that doing so would give him ten minutes to do “whatever he needed to do” to

A.S. He added if they were inside the apartment when the police arrived “it would turn

into a hostage situation.” Appellant further stated he was not going back to prison “and

would take [A.S.] out with himself.” According to A.S., the gun remained in appellant’s

hand as he spoke.


       A.S. further testified that appellant said he did not care if he woke the neighbors

and “he would go over there and take care of [the neighbor] too, if he needed to.” A.S.

testified that her encounter with appellant that morning lasted about four hours. As the

event transpired, according to A.S., appellant moved the gun from his hand to the back

of his pants to his hand and waived it at himself and A.S. At one stage he pointed it at

A.S.’s head and said, “B****, do you think this is a game?”


       A.S. finally was able to calm appellant and he left her apartment. As he departed

he told her he would watch her “because if he couldn’t have [her], nobody would.” He

added, if he found another man in her apartment he would “blow . . . [their] brains out.”


       A.S. reported the occurrence to police that afternoon and appellant was arrested.

While appellant was held in the county jail A.S. communicated with him by telephone.

She agreed on cross-examination that most of these conversations were “friendly” in

nature. When asked at trial by the prosecutor why she continued communicating with

appellant after his incarceration, A.S. explained she wanted to believe appellant’s bad


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behavior was drug induced and he could be a good person. A.S. testified she told

appellant she would drop the charges if he would leave her alone and not come for her

when he was released from prison.         In a recorded jail conversation in evidence,

appellant related to another female that A.S. sought the promise because she was

scared. During November 2015, A.S. ceased all contact with appellant. A county jail

corrections officer testified that appellant told her he took a gun to A.S.’s house

“because he wanted [A.S.] to know he was serious.” The officer also testified that

appellant stated he did not mean A.S. any harm.


                                         Analysis


First and Third Issues


       In his first issue, appellant argues Texas Penal Code section 22.02(a)(2) is

facially unconstitutional because it does not require a culpable mental state and in his

third issue he contends Penal Code sections 12.42(b) and 12.46 are facially

unconstitutional because they violate the Double Jeopardy Clauses of the United States

and Texas Constitutions.


       “In a facial challenge to a statute, evidence of how the statute operates in actual

practice is irrelevant; courts consider only how the statute is written, not how it operates

in practice.” Salinas v. State, 464 S.W.3d 363, 368 (Tex. Crim. App. 2015). We agree

with the State’s contention the record shows appellant did not raise in the trial court the

constitutional challenges he now urges. A challenge that a statute is facially

unconstitutional may not be made for the first time on appeal. Karenev v. State, 281




                                             4
S.W.3d 428, 434 (Tex. Crim. App. 2009); TEX. R. APP. P. 33.1(a)(1),(2). Accordingly,

nothing is preserved for our review. Appellant’s first and third issues are overruled.


Second Issue


       In his second issue appellant asserts the evidence was insufficient to prove he

intentionally or knowingly threatened to cause A.S. imminent bodily injury and was

insufficient to prove A.S. perceived or received the threat.


       To determine whether the evidence is sufficient to support a conviction, a

reviewing court must consider all of the evidence in the light most favorable to the

verdict and determine whether, based on that evidence and reasonable inferences

therefrom, a rational fact finder could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

This “familiar standard gives full play to the responsibility of the trier of fact fairly 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.


       “Each fact need not point directly and independently to the guilt of the appellant,

as long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

And if the record supports conflicting inferences, we must presume that the factfinder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination.   Jackson, 443 U.S. at 326.        Further, circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial


                                             5
evidence alone can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. Finally, it

is well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).


       Here, the State bore the burden of proving beyond a reasonable doubt that

appellant intentionally or knowingly threatened A.S. with imminent bodily injury while

using or exhibiting a deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2) (West

Supp. 2016); 22.02(a)(2) (West 2011).


       A.S. was nervous, then scared during her ordeal with appellant. He pointed a

loaded gun at her head. As he described his action in the recorded jailhouse call,

appellant put the gun to her head and threatened to “blow her head off.” He brandished

the gun and said that she could call police but he would have time to do “whatever he

needed to do” to A.S., that making the call would lead to a hostage situation, and that

he was not going back to prison but “would take [A.S.] out with himself.” Appellant told

A.S. he could tell she was scared and she agreed. Indeed, at his instruction she told

him she was terrified.


       Whether assault by threat under the Penal Code requires that the victim perceive

the defendant’s threat is a question that remains open. Olivas v. State, 203 S.W.3d

341, 349 (Tex. Crim. App. 2006); see also Schmidt v. State, 232 S.W.3d 66, 67-68 (Tex.

Crim. App. 2007); Boston v. State, 410 S.W.3d 321, 322 (Tex. Crim. App. 2013)

(concerning aggravated robbery, the court discussed but did not resolve the question of

whether victim must perceive the threat). Appellant’s actions reflected in the evidence



                                              6
were taken in the presence of A.S. If the State was required to prove A.S. perceived

appellant’s threat, the evidence we have noted was sufficient.


         Viewed in the light most favorable to the verdict, the evidence was sufficient to

permit the court as trier of fact to find appellant intentionally or knowingly threatened to

cause A.S. imminent bodily injury. If required, the evidence was equally sufficient to

establish that A.S. perceived or received appellant’s threat to cause her imminent bodily

injury. Appellant’s second issue is overruled.


                                        Conclusion


         Having overruled appellant’s three issues, we affirm the judgment of the trial

court.



                                                        James T. Campbell
                                                           Justice


Do not publish.




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