Daniel Hernandez v. State

470 S.W.3d 862
Court of Appeals of Texas·Decided August 10, 2015·No. NO. 02-13-00196-CR, NO. 02-13-00197-CR·Published·Cited by 10 cases

Opinions

OPINION

ANNE GARDNER, JUSTICE

Appellant Daniel Hernandez appeals his convictions for aggravated assault with a deadly weapon and for unlawful possession of a firearm. The jury assessed punishments of sixty-three years’ confinement for each offense, which the trial court set to run concurrently. Appellant attacks the sufficiency of the evidence in the aggravated assault case. Appellate counsel asserted the appeal in the unlawful possession case was frivolous. Appellant filed a pro se brief asserting it was not. We affirm both judgments.

Evidence

Indalacio and Guadalupe Quintero were married. They owned a refreshment business, called Nikory’s Korn, at 805 McKinney Street in Denton, Texas, in February 2012. They had a portable stand outside on the parking lot with tables and benches set out where customers could sit and eat. From the same parking lot, Francisco San Miguel operated a service whereby he and his brother, Edgar San Miguel, shipped care packages to Mexico. Francisco and Indalacio were friends.1

Around 9:00 p.m. on the Friday night of February 3, 2012, Appellant drove through the Nikory’s Korn parking lot. Witnesses described Appellant as burning tires and peeling out, causing gravel to fly from his tires. Indalacio testified he was concerned because families were in the parking lot with perhaps as many as fifty to sixty people, including women and children, who “startfed] running.”

Shortly thereafter, Appellant drove through the Nickor/s Korn parking lot a second time in the same manner. Indala-cio said he asked Appellant, “[W]hat is going on? What’s your problem?” Appellant responded by telling Indalacio, ‘You are going down,” after which Indalacio told Appellant to get out of his pickup. Appellant’s response was to burn his tires again. Indalacio picked up a tow hitch from behind the corn stand and threw it at Appellant’s pickup, hitting it on the driver’s side door, and then he threw it a second time at Appellant’s pickup’s back window, shattering it, whereupon Appellant left the parking lot.

The third time Appellant returned, Edgar testified he saw Appellant get out of his pickup with a gun in his hand and walk towards Nikory’s Korn. Appellant pointed the gun in the direction of the corn stand and Francisco. Edgar said Appellant never pointed the gun at him or threatened [865] him.2 Indalacio testified that his twelve-year-old son came running to him, very frightened, and said a man had pointed a gun at him and the “multitude that was there,” and that the man had the gun on Indalacio’s friend (contextually, Francisco). Indalacio twice said Appellant never pointed the gun at him, but when he heard Appellant had a gun, he was frightened because Appellant had told him he was “going down,”, so he ran inside his store in the building behind the corn stand.3 From a window inside the building, Indalacio saw Appellant point the pistol at Francisco and heard Appellant say to Francisco, “You’re going down; you’re going down.” Indala-cio said he believed Appellant thought Francisco was Indalacio. “[H]e was pointing at them, like looking for me, okay, which one of you is Lupe? He’s not asking, but that’s what I think he was thinking, to see who it was.”4

Francisco testified and also expressed confusion over whether Appellant was threatening him or threatening Indalacio. Francisco said he hid behind a Suburban, and then Appellant got in his pickup and left. Guadalupe, Indalacio’s wife, said she never saw Appellant point the gun at anyone because she was inside the building. Guadalupe said Appellant never pointed the gun at her or threatened her personally.5

About ten minutes later, someone went to the Quinteros’ home, which was only about a mile away from Nikory’s Korn, and shot up their pickup. Guadalupe said her twelve-year-old daughter told her someone knocked at the door, but her daughter did not answer it, and then her daughter heard something that sounded like fireworks.

Appellant’s wife said Appellant came home that night and complained that her daughter’s in-laws had ambushed him and damaged his pickup; she said Appellant thereafter unloaded and then reloaded his gun and left the house. Contextually, Appellant was referring to the Quinteros: Guadalupe’s brother and Appellant’s wife’s daughter were in a relationship.

Indalacio testified that he had seen Appellant before that night when two similar incidents had occurred, one of which involved physical contact, but he did not know Appellant’s name. He said he later learned from his brother-in-law that Appellant had been constantly asking about him and wanting to know where he was and when. Indalacio concluded that the incident of February 3 was no coincidence but was “planned to hurt [him].”

Aggravated Assault with a Deadly Weapon

In a single point, Appellant contends the evidence is insufficient to support his con[866] viction for aggravated assault with a deadly weapon against Indalacio. The State alleged in the indictment that Appellant “intentionally or knowingly threaten[ed] Indalacio Quintero with imminent bodily injury by pointing a firearm at Indalacio Quintero and threatening to shoot Indala-cio Quintero, and did then and there during the commission of said assault, use or exhibit a deadly weapon, to-wit: a firearm.” As was shown above, the evidence showed Appellant -pointed a gun at Francisco and Indalacio’s son. Neither is named as a complainant in any of the indictments. All three complainants denied Appellant pointed a gun at them, and the jury acquitted Appellant in one instance and found Appellant guilty of a lesser-included offense in the other. Only as to Indalacio did the jury convict Appellant as charged in the indictment.

Standard of Review

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Daniel Hernandez v. State, 470 S.W.3d 862 (Tex. Ct. App. 2015).

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