## In the Cour t o f Appe als Second Appellate District of Texas at Fort Worth

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___ _______________________ _

On Appeal from the 362nd District Court Denton County, Texas Trial Court No s . F17

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Before Sudderth, C .J.; B assel and Walker, JJ. M emoran dum Opinion by Justice Bassel 

### S COTT 

### Z ANDI 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury found Scott Zandi guilty of six counts of aggravated assault on a public

servant and three counts of deadly conduct

. In a single issue o n appe al, Zandi challenges the su f fic iency o f the eviden c e to support the ag gravated assault

con victions. He specifically challenges the sufficiency of the evidence to s how that (1) he was aware that the six complainant s were police offi cers , and (2) those offi cers pe r ceived any th reat f ro m him

. We affirm. Background In July 2017, the m anager of a Comfort Suites hotel in The Colony heard
gun shots from room 109 and called 911

. The occupant of that room was later
identified as Zandi. Several pol ice of fic ers res ponded to the “ shots fired ” call, including complainants Kenneth Arrington III , Hector Garcia, Salim Plumb, Marc Hamm, Brian McDaniel, and Brian Baker. Hamm te stified that “ [ t ] h e entire police department was basically there. ” Arrington , the first officer to arrive, testified that he was wearing his police uniform and driving a marked police car , which he parked directly outsid e the
shattered window of the room where t he shots were b eing fired. Garcia similarly
testified that he was in uniform and arrived in a marked police ca r with its lights and
siren activated. He also testified that other offi cers on the scene , including McDaniel,
H am m, Bak er, and Plu mb, we re in uniform

. The evidence does not show, however,
that Zandi actually saw the officers or th ei r police cars. Although the hot el manager3 t estified that r oom 109 ’ s window curtai ns were open when he went outside to
inv es tigate the gunfir e, Arr ington testified that they were closed when he arrived. Arrington spoke to Zandi through the door of room 109 an d i dentified himself as a police office r . Zandi t old Arrington that there were children a nd dogs in the

room with him and expressed concern that there were snipers outside. Zandi asked that an officer go outside to talk to him throug h the window. Arr ingto n did not send
an offic er outside because it w as un safe

. It was late r dete rmined that Zandi was in t h e

room alone. Arrington tried to open the room ’ s door with a key supplied by the hotel manager, but the door was double

- locked

. Arrington a n d Garcia then took up positions di ag onal ly across th e hall from r oom 109. They were aff orded some protection by a corner wall and were able to maintain a direct line of sight to room 109 ’ s door

. W h ile Arri ngton a nd Garcia were stationed to the r ig ht of the d oor, M cDaniel, Plumb , Hamm, and Baker took up positions across the hall and to the left
of the door. Ma ny o th er officers were also on the scene but were not in the ha llway.
The office rs in the hallway continued to hear sporadic gunfire from room 109
and ultim ately decided to try to breach the door. McD aniel f ired a shot gun into the
door seve ra l times but was u nable to open it. T h e blasts did, however, create a
softball

- sized hole in the door. Arrington, Garcia, Hamm , and M cDaniel all testif ied
tha t they saw t he barrel of a h andgu n protrude th rough that hole from inside the

room and move back and forth and up and down.4 Arrington testified that , at one point, the gun was pointed in his direction and
that he felt th reatened. Garcia test if

i ed that he saw t he gu n point in the direction of
himself , Arrington, Hamm, Baker, Plum b , and Mc Daniel, and that he felt threatened.
Hamm also saw the gun point toward him and the officers in close p roximit y to him,
as well as toward Arri ngt on and Garc ia

. McDaniel saw the gun point in his direction
and in the direction of Plumb, Baker, Hamm, Arrington, and Gar cia. Plu mb did not see the gun but heard Arrington and Garcia sa y that they saw it point at them. Bake r al so d id not see the gun but heard an officer on his police radi o say that he saw a gun being pointed out the hole in the door. Bo th Plumb and Baker testi fied that they felt

t hreatened des pite not seeing the gun themselves

. S hortly after displaying the gun through the hole in the door, Zandi jumped out the broken wind ow and was taken into custody by waiting offic ers. He was even tuall y indicted fo r , and convicted of, agg rava ted as sa ult on Arrington, Gar cia, Plumb, Hamm, McDaniel, and Baker , and three counts of deadly conduct

. W hile h e fi le d

no tices of appeal from all nine convictions, the sole issue he raises in his brief

— sufficiency of the evidence

— relates onl y to the convictions for aggravated assault

. Standard of Review In our evidentiary

- sufficiency review, we view all the evidence in the lig ht most
favorable to th e verdict to determine whether any rational fact finder could have found
the c rime’ s e ssential e le ment s beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State , 520 S.W.3d 616, 622 (Te x.5 Crim. App. 2017). The standard of review is the same f or di rect and circumstantial evidence cases; circums ta ntia l evidence is as probative as direct evidence in establishing guilt. Jenki n s v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016)

. Aggrava t ed Assau lt A person commits the of fense of assault if he “ inte ntionally or knowingly
threatens another with i mm inen t bodily injury

. ” Tex. P ena l Code Ann. § 22.01 (a) (2)

. A person commi ts agg ra vated assault if he “ uses or exhibits a deadly weapon during

t he commission of the assault

. ” Id. § 22.0 2(a)(2). The of fense is a first

- degree f elony
if it is commi tted “ a ga inst a person the actor knows is a public serva nt while the public servant is la wful ly discharging an official duty

. ” Id. § 22.0 2 ( b)(2)( B).
E ach of the aggravated assau lt indictme nts charges that Zandi did then and there intentionally or knowingly thr ea ten [named officer] with imminent bodily injury by

. . . pointing a firearm at, toward s, or in the direction of [named officer] , and the defen dant did then and there use or exhibit a deadly weapon , to

- w it: a firearm, during the commission of said assault , and the defendant did then and t here know that the said [named officer] was the n and t here a public servant , to

- wit: a certified peace officer , and that the said [named officer] was then and there lawfu lly discharging an official duty , to

- wit: responding t o or investigating a call for se rvice [

. ] Zandi contends that the evid ence is ins ufficient to support findings that he
knew that t he six named complain ants were police officers and t ha t th ose officers perceived any threat from him.6 Identity as Police Officers
Za ndi first contends that the evidence is insufficient to prove that he knew that
the six complainants were police officers. H e argues that there is no evidence that he

saw an y of t he office rs or any of the police cars and that no witness was able to
def i ni tively tes tify that Zandi knew that the per sons he p ointed his gun at in th e hallway were police officers. Th ere i s , howe ver, evidence from whic h the jury could
have inferr ed tha t Zandi knew that th os e persons were police of ficers.
At least two witness e s testified t hat officers arrived on the scene with th eir cars ’ lights and /or sirens activated. Arrington spoke to Zandi through the room ’ s door
and iden ti fied himself as a police officer. Zandi re spo nded appropri a te ly to Arrington, indica ting that he was able to he ar and understan d what Arrington said

. Zan di a lso asked for an o fficer to go outside to speak with hi m th ro ugh the window
and said he was worried that there were sn ipers out s id e. T h ese st atements demonstrate t hat Zandi knew that Ar rington was not the only pol ice officer p resent. The record also supports the inference that Zandi kn ew t hat multiple officers

were in the hallway outside his room. He wa s c ertainly aware of the effort s to blast
the door open with a shotgun

. Given the circumstances, it is not un reas onable to
i nfer that Zandi knew that it was the p olice who were tryi n g to g ain entry to the room.
See Tex. Penal Code Ann. § 6.03 (b) ( “ A pers o n acts knowingly, o r with knowle dge, with respect

. . . to circumstances surrounding his conduct when he is aware

. . . that
the circumstances exist

. ” )

. S i milarly, it is n ot unreason ab le t o infer that, after Zandi7 had fired his weapon n umer ous times and t he police had tried t o shoot his d oor open, the o nly per sons remaining in the hallway were police officers. See id.
We conc lude that t he evidence is sufficient to support a finding t ha t Za ndi
knew , when he poi nted his gun toward the per sons in the hallwa y , that those persons

w ere police of ficers.
Perc eption of T hreat
Zandi also urges that the evidence is insuffic ient to prov e that the officers perceived a threat from him. He relies o n Mc Gowan v. State , 664 S.W.2d 355 (Tex. Crim. App. 1984 ) (en banc) , f o r the proposition that th e Stat e wa s required to prove such perception

. The appellant in that case stabbed the c ompla inant in the ba ck of
the head as she was kneeling down t o assist h e r da ughter. Id. at 357. The court of criminal appeals noted that the r e was no e vidence that the appellant thr eatened t he complainant in any way be fore stabbing her and that the co mp la inant “ nev er saw appellant holding a knife nor did she testi fy that ap pell ant threatened her with a
knife. ” Id. The court concluded that th e e vi dence was insufficient to support a

c onvict ion for aggravated assault by threat

. Id. at 358.
The court of criminal appe als addressed McGowan in a later case and explaine d
that i t “ did n ot define assault by threat as requiring a victim ’ s perception of th e threat

. ” Olivas v. State , 203 S.W.3d 3 41, 348 (Tex. Crim. App. 2006)

. It more

accurate l y desc ri b e d its h olding in McGo wa n as requiring that there “ be some evidence
of a threat be ing made to sustain a conviction of assault by threat

. ” Id

. at 3498 (em p ha sis in original). That is what wa s lacking in McGo wan

— “ t he defend a nt just
stabbed [the complainant], he di d not threaten her first. ” Id.
The court in Olivas left open the quest io n of “ whether

. . . assault by threat requires an intended victim to per c ei ve the threat

. ” Id. It has since , however, recogni zed that a ssault by threat is a conduct

- orien ted o ff ense. Landrian v. State , 268
S .W.3d 532, 536 (Tex. Crim. App. 2008) ; see also In re S.B. , 1 17 S .W.3d 443, 450 (Tex. App.

— Fort Worth 2003 , no pet. )

. T h e offense focuses on the act of m aking a threat not the percep tion of the t hreat or any result that it might cause

. Landr ian , 268 S.W.3d at 536; In re S.B. , 117 S.W.3d at 4 50. That does not r en der perception of a threat irrelevant, though. As we have pr eviously recognized, “ a victim ’ s perception of
a threat is the be st and most common type of c ircumstantial evidence that t he
defendant acted with t he requisite intent to thr eaten bodily injury

. ” In r e S.B. , 117 S.W.3d at 450 n.2.
The ultimate inquiry i n t his case is thus whether the e vidence is sufficient to
prove that Zandi t hreatened the office rs , not whether they perceived a threat from
him. A threat doe s not require wor ds but may be commun ic ated by conduct. Blount
v. State , 542 S.W.2d 164, 166 (Te x . C rim. App. 1976) ; Black v. State , No. 2

- 05

- 388

- CR, 2006 WL 2507325, at *3 (Tex. App.

— Fort Worth Aug. 31, 2006 , pet. ref ’d.) (mem.
op. , not designated for p ublication)

. Fo r example, “ [t] he act o f po inting a loaded gun at an individual is, by itself, thr e ate ning conduct which sup ports a conviction for9 aggravated assault. ” Fagan v . State , 36 2 S.W.3d 796, 799 (Tex. App.

— T exar kan a 2012 , pet. ref ’d)

. The State pr esented evidence that Zandi repeat e dl y fi red a gun while locked in
his hotel room. This conduct res ulted in several polic e officers respondi ng to the scene, six of whom took up positio ns in the hallway outside the room. Zandi was undoubtedly awar e that someo ne was in the hallway when McDaniel tried to shoo t th e door open

. The jury could also infer that Zand i wa s aware that there were multiple peop le in the hallway by the way he moved the gun around as he stuck it

t hr ough the hole in the door. Hamm described t he mov ement of the gun as “ t rying
to aim at us ” and “ trying to find a target. ” Finally, s ev eral officers testified that they saw the barrel of the gun point in th e di rection of Arrington, Garcia, Hamm, Baker, Pl um b , and M c Dani el

. This occurred
after Zandi had alread y fire d the w eapon numerous times

. A ll six officers testified that they felt thr e aten ed by Zandi pointing t he gun through the door in their
directions

. Z andi ’ s conduc t of pointing a loaded w eapon in the direction of the officers is,
in i tsel f, sufficient to uphold his convic tions for aggravated assa ult by threat. See id

. In addition , while perception of the t hreat is not required, the officer s ’ perception in
this case provides additional evidence supporting those c onvi ctions. See In re S.B. , 117 S.W.3d at 450 n.2.
Zandi ’ s sole issue on app eal is overruled.10 C o nclusion The judgments of conviction are affirmed

. /s/ Dabney Bassel Dabney Bassel Justice
Do Not Publ ish Tex. R. App. P. 47.2(b)
Delivered : March 18, 2021