Second Court of Appeals

Week of August 3, 2015 

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of August 3, 2015.

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Hernandez v. State, Nos. 02-13-00196-CR, 02-13-00197-CR (Aug. 6, 2015) (Gardner, J., joined by Livingston, C.J.; Dauphinot, J., dissents with opinion).

Held:  The evidence was sufficient to show Appellant committed the offense of aggravated assault with a deadly weapon against Complainant notwithstanding the fact that Appellant never successfully located Complainant in the parking lot after returning with a gun. The evidence showed: (1) Appellant and Complainant had two prior incidents, one of which involved physical contact; (2) Complainant had a refreshment stand in a parking lot, and Complainant's customers remained in the parking lot to enjoy their snacks; (3) on the night of the offense, Appellant came to the parking lot in his vehicle, burned tires, peeled out, and caused gravel to fly from his tires, thereby frightening Complainant's customers; (4) after Appellant returned a second time to burn tires and peel out in the parking lot, Complainant confronted Appellant about endangering his customers; (5) Appellant responded by telling Complainant that Complainant was going down; (6) in turn, Complainant responded by throwing a tow hitch at Appellant's vehicle, damaging its car door and breaking out its back window, after which Appellant left; (7) Appellant returned to the parking lot a third time with a gun and headed towards Complainant's refreshment stand; (8) Complainant, having been alerted by his son that Appellant was in the parking lot, brandishing a firearm, and heading his way, successfully hid in a nearby building before Appellant was able to locate him; (9) not being able to find Complainant, Appellant left the parking lot, and a few minutes later, someone shot up Complainant's pickup parked outside Complainant's home a short distance away; (10) later that evening, Appellant went home to his wife, reloaded his pistol, and complained about how Complainant's family had ambushed him and damaged his pickup; and (11) Complainant later learned from his brother-in-law that Appellant had been constantly asking his brother-in-law about where and when Appellant could find Complainant.

Dissent:  There is no evidence that Appellant knew that Complainant was hiding in a building but watching Appellant when Appellant pointed his gun at someone else in the nearby parking lot, and there is no evidence that Appellant later shot Complainant's truck at his house. There is therefore no evidence that Appellant knew that he was threatening Complainant and placing him in fear of imminent death or serious bodily injury.

Smallwood v. State, No. 02-13-00532-CR (Aug. 6, 2015) (op. on reh'g) (Dauphinot, J., joined by Gardner and Walker, JJ.).

Held:  The evidence showed that Appellant made various death threats to keep the minor complainant participating in the relationship over time. She understood those threats to be continuing threats of imminent harm at any time. Under the unique facts of this case, the element of imminence is satisfied for each aggravated sexual assault.