Description: Appellant was originally charged by indictment with aggravated assault with a deadly
weapon against a member of his family in violation of TEX. PENAL CODE ANN. § 22.02.
Appellant entered a plea of nolo contendere, waived his right to a jury, and was tried before the
trial court. The trial court found the evidence “substantiated [appellant’s] guilt.” A finding of
guilt was deferred and appellant was placed on five years deferred adjudication probation. Notice
of appeal was timely filed.
The testimony at trial began with the complainant, Alveena Flander. She told the trial court
she was introduced to appellant in 2009 by telephone while she was living in India. Appellant
received Alveena’s contact information from Alveena’s father and uncle, who lived in the United
States and attended the same church as appellant.
After being introduced, Alveena and appellant spoke on the phone daily, but did not meet in
person until January 10, 2010 when appellant traveled to India. Alveena and appellant were
married five days later on January 15, 2010. However, Alveena did not move to the United
States until three years later.
When Alveena arrived in the United States, she lived in appellant’s house from April 2013 to
July 2013. After two weeks of living together, appellant’s behavior towards Alveena changed
and he started “bothering” Alveena by using profanity and calling her names such as “whore.”
When Alveena told appellant she wanted to work outside the home, appellant told her he would
take her to a strip club where Alveena could “do the same thing” as the strippers. Also, the
appellant “kicked [Alveena] out of the room” when she refused to have sex with him.
The incident that gave rise to the complaint occurred about June 15, 2013 while Alveena and
appellant were sitting on opposite sides of their king-sized bed. Appellant was cleaning a rifle
next to a gun safe while Alveena was watching television. Then, appellant pointed a two and a
half to three foot long rifle “right in front” of Alveena and asked, “Should I shoot you or not?”
Alveena did not know if appellant had his finger on the trigger or if the rifle was loaded, but she
“Many days” after the incident, Alveena asked appellant why he pointed the gun towards her
and appellant responded he was “kidding around.” However, Alveena did not think appellant
was “kidding” because he was not smiling when he pointed the rifle and made the statement.
Next, Susan Flander testified. Susan is appellant’s adult daughter who lived with appellant
and Alveena at the time of the incident. About a month after the incident, on July 13th, 2013 at
around 12:30 a.m., Alveena awakened Susan. Alveena asked for a ride to Alveena’s father’s
house and Susan drove her there the next morning. Alveena lived at her father’s house for about
one and half months, but left to live at a woman’s shelter because appellant called and harassed
her “constantly.” At the time of trial, Alveena no longer lived at the woman’s shelter. However,
she did not tell her “relatives” or appellant her new address because she was “scared of [the
Appellant took the witness stand and stated he disagreed with Alveena’s version of the
events. He denied ever pointing a gun at Alveena. However, appellant acknowledged he owned
guns and he had two gun cabinets located in their bedroom. Additionally, appellant stated he
owned about twelve “long guns”, “seven handguns”, and approximately seventeen or eighteen
guns total. After the complaint was made, the Mesquite Police Department inventoried nineteen
guns of various sizes that belonged to appellant.
According to appellant, he and Alveena only had three “minor argument[s]” while they were
living together. One argument occurred on July 10th, 2013 when appellant tried to hug Alveena.
Alveena “pushed [appellant] off the bed”, prompting him to tell her to “get out from here”.
Appellant believed it was this altercation, not the pointing of the gun and the question he asked
her, which resulted in Alveena’s leaving his home.
II. Standard of Review
The legal effect of a plea of nolo contendere is the same as that of a plea of guilty. TEX.
CODE CRIM. PROC. ANN. art. 27.02(5) (West 2006). The State is not required to prove the
defendant’s guilt beyond a reasonable doubt. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—
Dallas 2006, no pet.). Rather, the State must introduce evidence that “embraces every essential
element of the offense charged.” Wright v. State, 930 S.W.2d 131, 133 (Tex. App.—Dallas 1996,
no pet.); Stone v. State, 919 SW.2d 424, 427 (Tex. Crim. App. 1996). TEX. CODE CRIM. PROC.
ANN. art. 1.15 (West 2017).
III. Applicable Law
A person commits aggravated assault if the person 1) intentionally or knowingly threatens
another with imminent bodily injury 2) while using or exhibiting a deadly weapon. TEX. PENAL
CODE ANN. § 22.02(a)(2)(a)(4) (West). A firearm is defined as a deadly weapon. TEX. PENAL
CODE ANN. § 1.07(17)(A) (West). To establish an offense under § 22.01(a)(1), “threats may be
conveyed by action or conduct as well as words.” De Leon v. State, 865 S.W.2d 139, 142
(Tex.App.—Corpus Christi 1993, no pet.) The Court of Criminal Appeals has described
“imminent” to mean “near at hand; mediate rather than immediate; close rather than touching;
impending; on the point of happening; threatening; menacing; perilous.” Devine v. State, 786
S.W.2d 268, 270 (Tex. Crim. App. 1989). Imminent harm has also been construed to “require a
present, not a future threat.” Id.
In evaluating whether a threat of imminent harm exists, courts have considered the demeanor
of the defendant during the assault and whether the defendant possessed a weapon. Gaston v.
State, 672 S.W.2d 819 (Tex. App.—Dallas 1983, no pet.); De Leon, 865 S.W.2d 139; Young v.
State, 993 S.W.2d 390, 391 (Tex. App. —Eastland 1999, no pet.). For example, in Gaston, the
Fifth Court of Appeals in Dallas concluded a complainant felt “threatened with imminent bodily
injury” when the defendant approached the complainant from behind, put “one hand over her
mouth,” and held a shotgun in “very close proximity” to her. Id. The defendant did not “point the
shotgun at [the complainant]” and “never verbally threatened her.” Id. at 821. On that record, this
Court concluded “it was the presence of the gun in appellant's hand that instilled fear in
complainant and made her feel threatened with bodily injury.” Further, a weapon “need not be
functioning during the assault” to threaten another with imminent bodily injury. Id.
In De Leon, the Thirteenth Court of Appeals concluded a threat of imminent bodily harm
occurred when three individuals were approached by an appellant who “rapidly” left his car
“brandishing a ‘Rambo’ –style knife.” De Leon, 865 S.W.2d at 141. During the assault, the
complainant “was several feet away from appellant, so that if appellant had lunged at him with
the knife, appellant would have gotten ‘nothing but air.”’ Id. at 140. Nevertheless, the
complainant testified he was “very frightened.” Id. The complainant also “could not remember
whether appellant said anything to him” because he was “concentrating on the knife.” Id. The
court concluded there was evidence in the record that showed the appellant “used the knife to
intentionally and knowingly threaten [the complainant] with imminent bodily injury” regardless
of whether the appellant “said anything to” the complainant. This was because “the knife and
appellant’s demeanor caused [complainant] to feel threatened and afraid.” Id. at 142.
In Young, the complainant testified she “heard a gunshot . . . saw appellant trying to break in
the back door” and was “afraid that appellant was trying to kill her.” Young, 993 S.W.2d at 391.
Although the complainant “never saw the gun”, “a reasonable inference from the evidence”
showed the appellant “threaten[ed] bodily injury.” Id. The Eleventh Court of Appeals concluded
this “evidence was sufficient to embrace every element of” aggravated assault to support a nolo
contendere plea. Young, 993 S.W.2d at 391.
A different result obtained in the Devine case. There, the Court of Criminal Appeals
concluded the evidence did not “show [the complainant] was threatened with imminent bodily
injury” when there was “no evidence the appellant was carrying a gun”, the appellant took no
“overt action, such as displaying a weapon”, and only made “threats of future harm.” Devine,
786 S.W.2d 268.
IV. Application of the Law to the Facts
In his sole point on appeal, appellant asserts no evidence was presented showing a threat of
imminent bodily harm because the statement “Should I shoot you or not?” was a question that
did not contain temporal wording such as “Should I shoot you now or not?” We disagree.
Evidence of threatening imminent bodily injury does not require temporal language or even a
“verbal threat.” McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). In fact, “[i]t is
well established that threats can be conveyed in more varied ways than merely a verbal manner.”
Id. at 357. “A threat may be communicated by action or conduct as well as words.” Id.
As stated above, in Gaston, a threat of imminent harm was supported by evidence of the
close proximity of a shotgun. See Gaston, 672 S.W.2d 819. In this case, in close proximity to
Alveena, appellant pointed a “long” gun “right in front” of Alveena and threatened her by asking
“Should I shoot you or not?” See id. Alveena testified appellant’s actions “scared” her.
Therefore, evidence of appellant’s demeanor and the presence of the gun were sufficient to
embrace the element of imminent harm.
Also, appellant argues that pointing a firearm in Alveena’s direction did not threaten
imminent harm because Alveena did not know if the rifle was loaded. Further, he contends no
ammunition was recovered from appellant’s home. Appellant cites no case law to support his
argument. However, this Court has long ago concluded a “weapon need not be functioning
during the assault” to show there was a threat of imminent bodily injury. Gaston, 672 S.W.2d at
821. Additionally, “[t]he State need not prove the ability to commit a battery for a defendant to
be convicted of assault.” De Leon 865 S.W.2d at 142. The fact that Alveena did not know if the
gun was loaded is not dispositive to whether the evidence embraced the element of imminent
Next, appellant argues there was no threat of imminent harm because he told Alveena “many
days later” he was “kidding around”. However, as the Second Court of Appeals concluded, the
“focus of the inquiry should be whether the complainant was afraid of imminent serious bodily
injury at the time of the offense.” In re A.C., 48 S.W.3d 899, 904 (Tex.App.—Fort Worth 2001,
pet. denied) (emphasis added). Here, Alveena testified four separate times that she was “scared”
at the time of the offense.
Finally, appellant cites Devine for the proposition that the evidence does not embrace a threat
of imminent harm. However, Devine does not support appellant’s argument. In Devine, the
appellant was not carrying a weapon, made no threatening movements, and only made threats of
future harm. See Devine, 786 S.W.2d 268. In contrast, in this case, appellant held a large gun,
was sitting near several other guns, and made a present threat.
V. Modification of Adjudication Order
The State raised a cross-issue requesting this Court modify the trial court’s order of deferred
adjudication to correctly reflect appellant entered a plea of nolo contendere.
A. Applicable Law
This court may modify the trial court’s judgment and affirm it as modified. See TEX. R. APP.
P. 43.2(b); Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993). This Court “has the power to
correct and reform the judgment of the court below to make the record speak the truth when it
has the necessary data and information to do so.” Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref'd). Appellate courts may reform trial court judgments where “the
evidence necessary to correct the judgment appears in the record.” Id.
B. Application of the Law to the Facts
The record reflects appellant entered a plea of nolo contendere to the charged offense.
However, the trial court’s order of deferred adjudication states appellant entered an “open” plea
of guilty. We modify the trial court’s order of deferred adjudication to correctly reflect that
appellant entered a plea of nolo contendere in this case.
Outcome: Appellant’s sole issue is decided against him. We affirm the trial court’s judgment as modified.