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Adkins v. State3/24/2003
. Crim. App. 1979); Hillburn v. State, 627 S.W.2d 546, 548 (Tex. App.--Amarillo 1982, no pet.). The focus of the offense of assault is whether the actor possessed the requisite intent to threaten. Trevino v. State, 752 S.W.2d 735, 736-37 (Tex. App.--Eastland), pet. dism'd, 759 S.W.2d 142 (Tex. Crim. App. 1988) (citing Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982)). It is insufficient to show that someone was frightened by the actor's conduct. See Dues, 634 S.W.2d at 305; Trevino, 752 S.W.2d at 736-37; 6 Michael B. Charlton, Texas Practice: Criminal Law § 13.2 (2d ed. 2001); see also Williams v. State, 827 S.W.2d 614, 616 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd) (comparing robbery statute that requires "plac " another in fear with the assault statute). Thus, there must at least be evidence of some overt conduct by the defendant that suggests he acted with an intent to threaten.
The evidence relevant to our consideration of whether appellant threatened the officers is evidence of appellant's actions when he and the officers reached the truck. Officer Horton's relevant testimony at the suppression hearing is as follows:
[DEFENSE COUNSEL:] Is it your testimony that contrary to your commands [appellant] entered the vehicle?
[HORTON:] Yes, sir.
[DEFENSE COUNSEL:] And emerged with the stick in his hand?
[HORTON:] Yes, sir.
[DEFENSE COUNSEL:] Why did he do that? Can you tell us?
[HORTON:] I have no idea.
[DEFENSE COUNSEL:] Was he attempting to show you what the stick was for or explain what he said -
[HORTON:] In my opinion he was attempting to come after me with the stick. [Emphasis added.]
At trial, Officer Horton testified:
[PROSECUTOR:] . . . Explain to the jury what he did next.
[HORTON:] He-he reaches for the handle and says, "Do you want me to get the club?"
And I told him, "No, don't get in the vehicle."
[PROSECUTOR:] Are you this close to him at this point?
[HORTON:] I am probably closer than what you are, probably right there.
[PROSECUTOR:] Probably about three feet away?
[HORTON:] Yes, sir.
[PROSECUTOR:] He wants to go in and get the club, and you are telling him no?
[HORTON:] I told him no three times. I told him not to enter the vehicle.
[PROSECUTOR:] What happens next?
[HORTON:] I guess he flicked the alarm . . . . And the door flew open, the passenger door, and it looked like he dove in the vehicle. . . . I saw him grab the club, and at that point -
[PROSECUTOR:] Go ahead and grab that club - [HORTON:] As soon as - he flings the door open, he jumps in and grabs the club like this.
[PROSECUTOR:] And the door kind of swung out blocking you?
[HORTON:] Yeah, blocking me. [PROSECUTOR:] Okay. What happens at this point?
[HORTON:] Panic.
[PROSECUTOR:] At this point were you afraid for your safety?
[HORTON:] Yeah. At that point I couldn't understand what was going on because I saw the club, and it was like, what is he doing. It was like panic mode.
[PROSECUTOR:] And he had the club in his hand?
[HORTON:] Yes, sir.
[PROSECUTOR:] Demonstrate that. [HORTON:] He takes the club and he's inside the vehicle with the club. Let me say this. At the time he's got the club like this, I'm already drawing my weapon because I know there is a weapon - I know there is a club in the car. He comes out of the vehicle like this with the club just like this.
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