IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF

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					                                  IN THE
                            COURT OF APPEALS
                                 FOR THE
                         TENTH DISTRICT OF TEXAS
                              WACO, TEXAS



JOSE ALVITER, JR.,                      §
                                        §
     APPELLANT                          §
                                        §
V.                                      §                  NO. 10-10-00305-CR
                                        §
THE STATE OF TEXAS,                     §
                                        §
     APPELLEE                           §

                                On appeal from the
                            40th Judicial District Court
                                Ellis County, Texas
                         Honorable Gene Knize, Presiding
                         Trial Court Cause No. 34688CR

                       BRIEF OF THE STATE OF TEXAS



                     PATRICK M. WILSON
                     COUNTY AND DISTRICT ATTORNEY
                     STATE BAR NO. 90001783

                     CYNTHIA W. HELLSTERN
                     ASSISTANT COUNTY AND DISTRICT ATTORNEY
                     STATE BAR NO. 00784242

                     109 S. JACKSON
                     WAXAHACHIE, TEXAS 75165
                     PHONE: 972-825-5035
                     FAX: 972-825-5047

                     ATTORNEYS FOR THE STATE OF TEXAS

        ORAL ARGUMENT ONLY IF REQUESTED BY APPELLANT
                       IDENTITY OF PARTIES AND COUNSEL

       Pursuant to Texas Rule of Appellate Procedure 38.1(a), a complete list of the names

of all interested parties is provided below so the members of this Honorable Court may at

once determine whether they are disqualified to serve or should recuse themselves from

participating in the decision of the case.

       Counsel for the State:

              Patrick M. Wilson--County and District Attorney of Ellis County
              Ellis County Courts Building
              109 S. Jackson
              Waxahachie, Texas 75165

              Cynthia W. Hellstern--Assistant County and District Attorney on appeal

              Donald E. Maxfield--Assistant County and District Attorney at trial

       Appellant or criminal defendant:

              Jose Alviter, Jr.

       Counsel for appellant:

              Bruce Anton--counsel on appeal

              Vance Hinds-- counsel at trial

       Trial judge:

              Hon. Gene Knize--Judge of the 40th Judicial District Court




                                             ii
                             TABLE OF CONTENTS

                                                                                Page


STATEMENT REGARDING ORAL ARGUMENT                                                  i


IDENTIFICATION OF THE PARTIES                                                     ii


INDEX OF AUTHORITIES                                                              iv


STATEMENT OF THE CASE                                                              1


STATEMENT OF FACTS                                                                 1


SUMMARY OF THE ARGUMENT                                                            4


STATE'S REPLY TO POINT OF ERROR ONE                                                4
    There is no requirement that a victim must have personally seen the
    threat, and the evidence is sufficient to support the jury's verdict that
    appellant committed the offense of aggravated assault of a public servant
    with a deadly weapon.

CONCLUSION AND PRAYER                                                            13


CERTIFICATE OF SERVICE                                                           13




                                        iii
                              INDEX OF AUTHORITIES

CASES                                                                         Page
U.S.
Holland v. United States, 348 U.S. 121, 75 S. Ct. 127 (1954)                      7

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)                          5


Federal Circuit Courts
Clark v. Procunier, 755 F.2d 394 (5 th Cir. 1985)                                 6

Cosby v. Jones, 682 F.2d 1373 (11 th Cir. 1982)                                   6

Gibson v. Collins 947 F.2d 780 (5 th Cir. 1991)                                   7


Texas

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)                          5, 7

DeLeon v. State, 937 S.W.2d 129 (Tex. App.–Waco 1996, pet. ref’d)               6, 9

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991)                             7

Murphy v. State, 4 S.W.3d 926 (Tex. App.–Waco 1999, pet. ref’d)                   6

Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006)                     8, 10, 11

Porter v. State, Nos. 05-05-00391-CR, 05-05-00392-CR, 05-05-00393-CR,
      05-05-00394-CR, 05-05-00395-CR, 2006 WL 1479877
      (Tex. App.–Dallas 2006, no pet.) (not designated for publication)          10

Teeter v. State, No. PD-1169-09, 2010 WL 3702360
       (Tex. Crim. App. Sept. 22, 2010) (not designated for publication)     11, 12

Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993)                              6




                                             iv
CODES

T EX. P EN. C ODE A NN. § 22.01(a)(2) (West Supp. 2010)   8

T EX. P EN. C ODE A NN. § 22.02(a)(2) (West Supp. 2010)   8


RULES

T EX. R. A PP. P. 38.1(a)                                 ii




                                            v
TO THE HONORABLE COURT OF APPEALS:


                              STATEMENT OF THE CASE

       Appellant was charged by indictment with the offense of aggravated assault on a

public servant, and the indictment alleged the use or exhibition of a deadly weapon, a

firearm, in the commission of the offense. (C.R. at 2). Appellant entered a plea of not guilty,

was found guilty by a jury, and was sentenced to fifty years in prison and a $10,000 fine.

(C.R. at 54). The jury's affirmative finding that appellant used or exhibited a deadly weapon

in the commission of the offense was entered on the judgment. (C.R. at 54).

                                STATEMENT OF FACTS

       The State challenges all statements made by appellant regarding the facts and record

of the case and submits the following account of the facts.

       On December 6, 2009, Officers Anthony Parrish and Chris Eadler of the Waxahachie

Police Department responded separately to a call on Jefferson Street about 11:00 p.m. (VII

R.R. at 40-41, 118-20). The call involved a person who refused to leave the property of the

complainant, Gerardo Sierra. (VII R.R. at 43, 120).

       Eadler went to the location and observed the suspect’s vehicle leave the street at a high

rate of speed. (VII R.R. at 120-22). He radioed Parrish that the vehicle was headed in his

direction. (VII R.R. at 43, 122). Parrish observed the vehicle failing to stop at two stop signs

and followed the vehicle as it made three turns. (VII R.R. at 44-46). After the second turn,


                                               1
Parrish turned on his lights to stop the vehicle, which did not stop immediately. (VII R.R.

at 46). Parrish and Eadler were in marked police vehicles and in uniforms indicating that

they were police officers. (VII R.R. at 41-42, 126). Parrish stopped behind the vehicle, and

Eadler pulled his car next to Parrish’s. (VII R.R. at 123).

       Parrish used his take down lights to illuminate the inside of the suspect vehicle. (VII

R.R. at 48). Eadler shone his spotlight on the driver’s side window, illuminating the vehicle

pretty well. (VII R.R. at 124). Both officers approached the driver’s side, but Eadler kept

an eye on the passenger. (VII R.R. at 125). Eadler saw the driver lean to the left to do

something and also saw the passenger lean toward the center console with both hands down.

(VII R.R. at 125). Eadler drew his duty weapon and instructed the passenger to show his

hands, but the passenger did not comply. (VII R.R. at 126). Eadler made direct eye contact

with the passenger and ordered him again to place his hands on the dashboard. (VII R.R. at

126). The passenger then complied. (VII R.R. at 127).

       As Eadler approached the passenger side to detain the passenger, he could see the back

of the seat and the back of his head. (VII R.R. at 127). The passenger took his hands off the

dashboard and pulled something from between the seat and center console. (VII R.R. at

127). The passenger then raised up a revolver in the direction of Officer Parrish, who had

the driver out of the car. (VII R.R. at 127). Eadler yelled at the passenger to drop the

weapon, which he did. (VII R.R. at 128). The gun fell on the back floorboard behind his

seat. (VII R.R. at 128). The passenger was identified as Jose Alviter, Jr., the appellant. (VII

                                              2
R.R. at 129-30). Alviter did not just throw the gun in the back; his finger was in the trigger

guard and he was raising the weapon toward the back window. (VII R.R. at 128). When

Alviter pointed the gun at Parrish, Parrish was threatened with imminent bodily injury. (VII

R.R. at 137). Eadler was so sure that Officer Parrish’s life was threatened that he was

prepared to shoot Alviter. (VII R.R. at 143).

       As Parrish was dealing with the driver, he heard Eadler say that the passenger had a

gun. (VII R.R. at 53). Because that circumstance created a threat for him, he drew his duty

weapon. (VII R.R. at 53). He looked into the back window of the car and saw Alviter facing

him. (VII R.R. at 53). Eadler told him that Alviter had dropped the gun on the floorboard.

(VII R.R. at 54). Parrish looked in the vehicle and saw the black revolver lying in the back

floorboard. (VII R.R. at 56). Parrish was in fear of imminent bodily injury when he heard

Eadler say “gun.” (VII R.R. at 55).

Defense evidence

       Alviter testified in his own behalf. He stated that the driver, Aaron Noriega, had been

driving the vehicle, which was owned by Alviter’s mother. (VII R.R. at 162-62). They had

been to a party, and Alviter had been drinking and up most of the night. (VII R.R. at 163-

64). He did not remember what had happened until the police pulled them over. (VII R.R.

at 164). When he woke up, the police were pulling Noriega out of the car and a gun was next

to him. (VII R.R. at 165). He was trying to put the gun in the back seat and did not point it

at Officer Parrish. (VII R.R. at 166). The revolver belonged to Noriega, but Alviter did have

                                              3
a Derringer that he had bought that day. (VII R.R. at 167-68).

       On cross-examination, Alviter admitted that he was on probation and knew it was a

violation of his probation to drink alcohol, to possess a firearm, and to leave Dallas County.

(VII R.R. at 170-71). He knew that the officers were police officers and that his probation

could be revoked if they caught him with weapons and intoxicated and outside Dallas

County. (VII R.R. at 171-72). Alviter also admitted that his original statement to the police,

that Noriega had thrown the gun into his chest, was not true. (VII R.R. at 172, 175).

       Delilah Sierra testified that Noriega and Alviter were at her house when her father

called the police. (VII R.R. at 176, 179, 184). She testified that Alviter was pretty much

asleep in the car while they were there. (VII R.R. at 180). He appeared to be intoxicated and

was not conscious enough to get out of the car and drive. (VII R.R. at 187).

                          SUMMARY OF THE ARGUMENT

       Officer Parrish perceived the threat of imminent bodily injury when he heard the other

officer yell that Alviter had a gun. The other officer saw Alviter actually threaten Parrish

with the gun, and there is no requirement that the victim must personally see the threat. The

evidence is legally sufficient under the correct standard of review to support the jury’s

verdict of guilt.

                    STATE'S REPLY TO POINT OF ERROR ONE

       There is no requirement that a victim must have personally seen the
       threat, and the evidence is sufficient to support the jury's verdict that
       appellant committed the offense of aggravated assault of a public servant

                                              4
       with a deadly weapon.

       In his sole point of error, appellant contends the evidence is legally insufficient to

support his conviction because there is no evidence that the victim of his offense saw him

raise the firearm and point it at him.

Additional Relevant Facts

       The indictment charged that appellant did “intentionally or knowingly threaten

Anthony Parrish with imminent bodily injury by pointing a firearm at Anthony Parrish, and

did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission

of said assault, and the defendant did then and there know that the said Anthony Parrish was

then and there a public servant, to-wit: a peace officer, and that the said Anthony Parrish was

then and there lawfully discharging an official duty, to-wit: detaining one Aaron Noriega.”

(C.R. at 2).

Standard of Review

       In reviewing a challenge to the legal sufficiency of the evidence, this Court must view

all the evidence in the light most favorable to the verdict and determine whether any rational

trier of fact could have found the elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). The Jackson v. Virginia

standard for legal sufficiency is the “only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal offense

that the State is required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d

                                              5
893, 895 (Tex. Crim. App. 2010).

       The trier of fact is the sole judge of the weight and credibility of the witnesses and

may believe all, none, or part of the testimony of any witness. DeLeon v. State, 937 S.W.2d

129, 131 (Tex. App.–Waco 1996, pet. ref’d). If inferences raised by the evidence are in

conflict, the reviewing court must presume the trier of fact resolved the conflict in favor of

the prosecution and must defer to that resolution. Murphy v. State, 4 S.W.3d 926, 928 (Tex.

App.–Waco 1999, pet. ref’d) (citing Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App.

1993)).

Appellant’s proposed standard of review

       Appellant urges the Court to use a federal standard of review that states that if “the

evidence, when viewed in the light most favorable to the verdict or judgment, gives equal or

nearly equal support to the theories of innocence and guilt, the evidence is insufficient.”

(Appellant’s brief at 16, citing Clark v. Procunier, 755 F.2d 394, 396 (5 th Cir. 1985)).

However, the cited case actually dealt with circumstantial evidence, as clearly stated in the

actual quote from the case:

       “[I]f the evidence viewed in the light most favorable to the prosecution gives
       equal or nearly equal circumstantial support to a theory of guilt and a theory
       of innocence of the crime charged, then a reasonable jury must necessarily
       entertain a reasonable doubt.”

Clark v. Procunier, 755 F.2d at 396 (quoting Cosby v. Jones, 682 F.2d 1373, 1383 (11 th Cir.

1982)) (emphasis added). The suggested standard is akin to the reasonable alternative


                                              6
hypothesis construct that was rejected by the Texas Court of Criminal Appeals in 1992 in

Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds

by Paulson v. State, 23 S.W.3d 570 (Tex. Crim. App. 2000).

       The State notes that the instant case is not a circumstantial evidence case but relies

instead on the direct eyewitness testimony of police officers. In addition, subsequent Fifth

Circuit cases have made clear that the standard cited by appellant never applied to their

review of State criminal cases and no longer applies to direct appeals of federal criminal

cases. See Gibson v. Collins 947 F.2d 780, 781-82 & n.1 (5 th Cir. 1991) (noting the United

States Supreme Court rejected the standard in 1954 but the Fifth Circuit continued to apply

it for “reasons not readily apparent to us” until 1982 when it joined all the other circuits in

rejecting it).

       In Gibson, the Fifth Circuit stated that the proper standard of review is the Jackson v.

Virginia standard, noting that: “We give great weight to the state court’s determination: a

properly instructed jury was convinced of [the appellant’s] guilt beyond a reasonable doubt,

and ‘we can require no more.’” Gibson, 947 F.2d at 786 (quoting Holland v. United States,

348 U.S. 121, 140, 75 S. Ct. 127, 138 (1954)). As noted earlier, the Jackson v. Virginia

standard for legal sufficiency is the “only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal offense

that the State is required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). This Court should not apply the standard urged by

                                              7
appellant.

Argument and Authorities

         Appellant was convicted under section 22.02 of the penal code. (C.R. at 54). That

section provides that a person commits an offense if the person commits assault as defined

in Section 22.01 and the person uses or exhibits a deadly weapon during the commission of

the offense. T EX. P EN. C ODE A NN. § 22.02(a)(2) (West Supp. 2010). A person commits an

assault as defined in section 22.01 if that person “intentionally or knowingly threatens

another with imminent bodily injury.” T EX. P EN. C ODE A NN. § 22.01(a)(2) (West Supp.

2010).

         Appellant argues that the evidence is insufficient because Parrish, the named victim,

did not personally see or perceive the threat that was created when appellant pointed a gun

at him. Appellant also maintains that the State did not prove that appellant intended to

threaten the officer. Appellant concedes that the controlling statute does not state that an

intended victim must perceive or receive the threat, but argues that Olivas v. State, 203

S.W.3d 341, 345 (Tex. Crim. App. 2006), “requires evidence establishing the complainant’s

perception of a threat, coupled with proof that a threat was made.” (Appellant’s brief at 17,

22).

         The State first responds that, even assuming that a victim must personally perceive the

threat, which the State denies, the evidence in this case is sufficient to uphold the jury’s

verdict. As noted in the Statement of Facts above, the victim, Officer Parrish, testified that

                                                8
he was in fear of imminent bodily injury when he heard his fellow officer announce that

appellant had a gun. (VII R.R. at 55). Parrish clearly perceived the threat at the time it

occurred.1 Any suggestion that the victim must personally see the threat implies that a blind

person could never be the victim of an aggravated assault by threat even if they have been

told that a gun is being held to their head.2

       Appellant also argues that the evidence is insufficient to show that he intended to

threaten the officer, citing his own testimony that he merely picked up the gun and tossed it

into the rear seat. (Appellant’s brief at 23). Appellant argues that Officer Eadler was

undoubtedly panicked and that his testimony is “highly subjective.” (Appellant’s brief at 22-

23). Appellant does not explain why his own self-serving testimony is less “subjective” and

more worthy of belief than that of the officer. The jury is entitled to decide whose testimony

is credible and worthy of belief. DeLeon v. State, 937 S.W.2d 129, 131 (Tex. App.–Waco

1996, pet. ref’d) (trier of fact is the sole judge of the weight and credibility of the witnesses

and may believe all, none, or part of the testimony of any witness). The jury clearly resolved

the conflicting testimony in favor of the State.



       1
        Officer Parrish’s reaction to the threat he perceived is also clearly visible on the video
admitted as State’s Exhibit 16 at time 23:13:25.
       2
         Similarly, the requirement that the victim must personally “perceive” the threat would
suggest that an infant or a mentally disabled person could not be the victim of an aggravated
assault by threat because that person would not be capable of perceiving the actual threat of a gun
being pointed at the person. The State would argue that the testimony of a third person who
witnessed the threat is sufficient to prove that the defendant threatened the victim with imminent
bodily injury.

                                                  9
       Officer Eadler actually testified that he clearly saw appellant raise the gun and point

it at Parrish. (VII R.R. at 128-30, 137). He saw appellant’s finger inside the trigger guard.

(VII R.R. at 128). Parrish was threatened with imminent bodily injury. (VII R.R. at 137).

Eadler was so sure that Parrish was about to be shot that he was prepared to shoot appellant.

(VII R.R. at 143). The jury was free to believe this testimony that proved a threat was made.

       In his brief, appellant cites an unpublished Dallas case that held that evidence similar

to that presented in this case was sufficient to support the conviction. See Porter v. State,

Nos. 05-05-00391-CR, 05-05-00392-CR, 05-05-00393-CR, 05-05-00394-CR, 05-05-00395-

CR, 2006 WL 1479877 (Tex. App.–Dallas 2006, no pet.) (not designated for publication).

In Porter, the Dallas court held that the victim officer who did not see the gun nonetheless

perceived the threat when another officer yelled “gun.” Id. at *2. Even if perception of the

threat by the victim is required, which the State denies, the facts of this case support a finding

that Parrish perceived the threat.

       Appellant argues that the Court of Criminal Appeals has not answered the issue that

he says is presented here, whether the victim must perceive the threat. (Appellant’s brief at

21). The State responds that this case does not present that issue because the evidence shows

that the victim did perceive the threat, as set out above. However, most of the cases cited by

appellant, as well as a recent unpublished case from the Court of Criminal Appeals, suggest

the likely holding of that court if the issue argued by appellant were presented.

       In Olivas, the Court of Criminal Appeals failed to make a firm holding on the issue,

                                               10
finding instead that the evidence in that particular case–as in the instant case--showed that

the victim did perceive the threat. Olivas, 203 S.W.3d at 349-50. The concurring opinion,

authored by Presiding Judge Keller, notes that the court concluded in its analysis that the

assault statute does not require the victim to perceive the defendant’s conduct for that

conduct to constitute a “threat” and expresses frustration that the court stopped just short of

making that conclusion a holding. Olivas, 203 S.W.3d at 351-52 (concurring opinion).

       In September 2010, after Olivas, the Court of Criminal Appeals in an unpublished case

again addressed an argument that the victim in an aggravated assault must have perceived

the threat. Teeter v. State, No. PD-1169-09, 2010 WL 3702360 (Tex. Crim. App. Sept. 22,

2010) (not designated for publication).3 The court set out the history of its cases addressing

that issue.

       In its opinion, the Teeter court explained that the plain language of section 22.01 of

the Penal Code indicates that the legislature intended to punish specified conduct, so “the

focus is not on a victim’s perception of the defendant’s conduct, but rather on the conduct

itself.” Id. at *5. It further noted that Olivas did not hold that a victim must know of a threat

but “suggests that evidence of a victim’s perception of a threat is useful for determining

whether a defendant intended to threaten another with imminent bodily injury.” Id. at *5.

The Teeter court stated that:



       3
         In Teeter, the court was considering whether aggravated assault of a public servant was a
lesser-included offense of attempted capital murder.

                                               11
       The plain language of Tex. Penal Code § 22.01(a)(2) and past jurisprudence of
       this Court indicate that a threat does not require a result–that a victim knew of
       a threat–but it does require proof that, by his conduct, a defendant intended to
       cause an apprehension of imminent bodily injury.

Id. at *6. The opinion further states that “the act of pointing the gun with intent to kill,

without facts negating appellant’s intent to threaten the complainant with imminent bodily

injury, leads us to conclude that the element of threat–an intention to cause apprehension of

imminent bodily injury–is subsumed by pointing the gun at the complainant.” Id. at *6.

       While the Teeter case is unpublished and, therefore, provides no authority, its

language leaves little doubt about the Court of Criminal Appeals’ resolution of the issue

appellant wishes to present. In light of the cases by appellant, the concurring opinion in

Olivas, and the opinion issued in Teeter, it is highly unlikely that the Court of Criminal

Appeals would hold that the evidence that was presented in this case is insufficient to support

the jury’s verdict because it fails to prove that the victim perceived the threat by appellant.

Conclusion

       There is no requirement for the State to prove that the victim saw or perceived the

threat, but even if such evidence were required the State’s evidence was sufficient to prove

that Officer Parrish personally perceived the threat against him made by appellant.

Appellant's point of error one should be overruled.




                                              12
                            CONCLUSION AND PRAYER

      It is respectfully submitted that all things are regular and the conviction should be

affirmed.


                                   Patrick M. Wilson
                                   County and District Attorney
                                   Ellis County, Texas


                            By:    __________________________________________
                                   Cynthia W. Hellstern
                                   Assistant County and District Attorney
                                   State Bar No. 00784242
                                   Ellis County Courts Building
                                   109 S. Jackson
                                   Waxahachie, Texas 75165
                                   Phone: 972-825-5035
                                   Fax: 972-825-5047




                            CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Brief of the State of Texas was

served by U.S. Mail to: Mr. Bruce Anton, Attorney for Appellant, 2311 Cedar Springs, Rd.,

Suite 250, Dallas, Texas, 75201, on March 2, 2011 .


                                   __________________________________
                                   Cynthia W. Hellstern
                                   Assistant County and District Attorney
                                   Ellis County, Texas




                                            13

				
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