Charles Edward Allen v. State

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00205-CR

Charles Edward Allen,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 77th District Court

Limestone County, Texas

Trial Court No. 11449-A

MEMORANDUM  Opinion

            This is an appeal from a plea-bargained conviction.  The trial court’s certification of the defendant’s right to appeal states that this “is a plea-bargain case and the defendant has NO right of appeal.”  See Tex. R. App. P. 25.2(d). In addition, the defendant signed a waiver of appeal.  The defendant’s counsel has notified this Court that the appeal is subject to dismissal for both of these reasons.[1] Under these circumstances, this Court “        must dismiss [the] prohibited appeal without further action.”  Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).  Accordingly, we dismiss the appeal.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed July 23, 2008

[CR25]

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[1]               Because counsel has notified the Court that the appeal should be dismissed, it is unnecessary to notify counsel under Rule of Appellate Procedure 44.3 that the appeal is subject to dismissal.  See Tex. R. App. P. 44.3.

ate, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).  Under the Jackson standard, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."   Jackson, 443 U.S. at 319 (emphasis in original).

Alviter argues that to decide his issue, we must require the State to prove beyond a reasonable doubt that Alviter intended to place Officer Parish in apprehension of imminent danger by pointing a firearm at him.  In other words, Alviter wants us to require the State to prove that Parrish actually perceived the threat.  The statute does not require actual perception of the threat by the victim.  Tex. Penal Code Ann. § 22.01(a)(2) (West Pamp. 2010) (“A person commits an offense if the person: (2) intentionally or knowingly threatens another with imminent bodily injury….”).  Further, the question of whether a victim of assault by threat must perceive the threat has been left open by the Court of Criminal Appeals.  See Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006). 

Nevertheless, based on this record, we need not make the determination requested.  Eadler saw Alviter raise a gun, have his finger in the trigger guard, and point it at Parrish.  He yelled a warning to Parrish who reacted by drawing his weapon and looking at Alviter. Parrish said that he was in fear of imminent bodily injury.  Even assuming, arguendo, that the State must prove Parrish perceived the threat, we find the evidence is sufficient to support the jury's verdict.

Alviter’s issue is overruled, and the trial court’s judgment is affirmed.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Affirmed

Opinion delivered and filed April 6, 2011

Do not publish

[CRPM]