Opinion
No. 05-02-01762-CR
AFFIRM and Opinion Filed December 9, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80715-02.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINION
Arvell Lee Hairston appeals his conviction for aggravated assault. After a jury convicted appellant, it assessed punishment at five years' confinement, probated for five years. In four points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment. We review challenges to the sufficiency of the evidence using well-known standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). To support appellant's conviction for aggravated assault, the State must show that appellant intentionally or knowingly threatened Sarah Reiling with imminent bodily injury and used or exhibited a deadly weapon during the assault. See Tex. Pen. Code Ann. §§ 22.01 (a)(2), 22.02 (a)(2) (Vernon Supp. 2003). The gist of the offense is that one acts with the intent to cause a reasonable apprehension of imminent bodily injury; it is not necessary to show that the defendant actually intended to cause harm. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981). The mere presence of a deadly weapon, under proper circumstances, can be enough to instill fear and threaten a person with bodily injury. Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.-Dallas 1983, no pet.); DeLeon v. State, 865 S.W.2d 139, 142 (Tex. App.-Corpus Christi 1993, no pet.). The accused's intent may be inferred from his words, acts, and conduct at the time of the offense. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991). Reiling testified that when she got home from work, her son, Owen Hairston, was waiting outside for her. Hairston told her not to go into their apartment because appellant "was acting crazy." A short time later, Reiling went into the apartment. Appellant was "so agitated and acting so — so different than he usually acted that — that [Reiling] just did not feel safe." She left and went to a hotel for the night. Reiling returned to the apartment the next day. When she went into the apartment, appellant seemed much calmer. After she had gone to sleep that night, Reiling was awakened by "a pounding, a kicking, like kicking a wall, and some shouting." She went to see what was happening. Appellant was "very upset" yelling at Hairston to leave. Hairston went outside and waited on the porch. When appellant noticed Hairston had not left, appellant went and got a gun from his dresser. Reiling went to the front door and told Hairston to leave because she was afraid appellant would shoot him. After she warned Hairston, appellant began telling Reiling to leave. Appellant was waving the gun, pacing around the room, telling Reiling to "get out, get out now, you go too." Reiling was in fear for both her and Hairston's lives. Reiling and Hairston left the apartment and went to the Richardson police station. Although appellant contends this evidence is insufficient to support his conviction because he did not verbalize any threats toward her and he testified that he did not threaten Reiling but was using the weapon for protection, we disagree. After appellant became angry that Hairston was still outside, he went and got one of his guns. He was waving the gun while repeatedly telling Reiling to get out of the apartment. Reiling was afraid and felt threatened. Viewed under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. See Gaston, 672 S.W.2d at 821-22 (shotgun plainly visible in hands with no physical motion and no verbal threats); DeLeon, 865 S.W.2d at 142 (brandished hunting knife without verbal threats). We overrule appellant's first through fourth points of error. Accordingly, we affirm the trial court's judgment.