FILED

United States Court of Appeals

Tenth Circuit

June 16, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-6190

ALEX JOE HERNANDEZ,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. CR-08-48-F-1)

William P. Earley, Assistant Federal Public Defender, Office of the Federal

Public Defender, Oklahoma City, Oklahoma, for Appellant.

Edward J. Kumiega, Assistant United States Attorney, Office of the United States

Attorney, Oklahoma City, Oklahoma, for Appellee.

Before MURPHY, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Alex Joe Hernandez appeals the district court’s conclusion that his deadly

conduct conviction under Texas law constitutes a prior violent felony under the

Armed Career Criminal Act (ACCA). We agree that Hernandez’s conviction

under Texas Penal Code § 22.05(b)(1) for firing a gun at or in the direction of
-2-

another person constitutes a violent felony because it involves the use, attempted

use or threatened use of physical force against another person. We therefore

AFFIRM. 

I. Background

Hernandez pleaded guilty to violating 18 U.S.C. § 922(g)(1), and the

government sought an enhanced penalty under the ACCA. See 18 U.S.C.

§ 924(e)(1) (“In the case of a person who violates section 922(g) of this title and

has three previous convictions by any court referred to in section 922(g)(1) of this

title for a violent felony . . . committed on occasions different from one another,

such person shall be . . . imprisoned not less than fifteen years . . . .”). The

government put forward four predicate felony convictions to satisfy the ACCA

requirements: (1) attempted robbery with a dangerous weapon under Oklahoma

law; (2) burglary in the second degree under Oklahoma law; (3) deadly conduct in

the third degree under Texas law (Case No. 96-052); and (4) deadly conduct in

the third degree under Texas law (Case No. 96-053).

Hernandez did not challenge the Oklahoma crimes, but objected to the

classification of his Texas deadly conduct convictions as violent felonies. The

district court concluded Hernandez’s Texas deadly conduct conviction in case

number 96-052 constituted a violent felony for ACCA purposes. Therefore, that

conviction, coupled with his Oklahoma convictions, satisfied the ACCA’s prior

violent felony requirement.
1

 We need not address the second deadly conduct conviction in case

number 96-052, under Texas Penal Code § 22.05(b)(2), since three convictions

suffice under the ACCA.

-3-

II. Discussion

Hernandez contends the district court erred because neither one of his

Texas deadly conduct convictions constitute violent felonies. We disagree, and

conclude that Hernandez’s conviction under Texas Penal Code § 22.05(b)(1)

constitutes a violent felony. And because the ACCA only requires three prior

violent felonies, the court did not err in applying the enhancement.1

 

A.

We review de novo the legal question of whether prior convictions qualify

as violent felonies under the ACCA. United States v. Rowland, 357 F.3d 1193,

1195 (10th Cir. 2004).

The ACCA defines “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year

. . . that (i) has as an element the use, attempted use, or threatened use of

physical force against the person of another; or (ii) is burglary, arson, or

extortion, involves use of explosives, or otherwise involves conduct that

presents a serious risk of potential physical injury to another.

18 U.S.C. § 924(e)(2)(B). 

To determine whether a prior conviction qualifies as a violent felony under

the ACCA, “we apply a ‘categorical approach,’ generally looking ‘only to the

fact of conviction and the statutory definition of the prior offense, and do not

generally consider the particular facts disclosed by the record of conviction.’”
-4-

United States v. Scoville, 561 F.3d 1174, 1176 (10th Cir. 2009) (citing United

States v. West, 550 F.3d 952, 957 (10th Cir. 2008)). “That is, we consider

whether the elements of the offense are of the type that would justify its inclusion

within the ACCA, without inquiring into the specific conduct of this particular

offender.” Id. (citing West, 550 F.3d at 957) (internal quotation marks omitted).

If, however, “a criminal statute proscribes conduct broader than that which

would satisfy the ACCA’s definition of a violent felony or serious drug offense, a

federal court may then also look at the charging documents and documents of

conviction to determine whether the defendant in a particular case was convicted

of an offense that falls within the ACCA.” Id. (citing West, 550 F.3d at 957–58). 

This is the “so-called ‘modified categorical’ approach.” Id. (citing United States

v. Zuniga-Soto, 527 F.3d 1110, 1119–20 (10th Cir. 2008)).

B.

With this background, we turn to the specific convictions at issue

before the district court. Texas law defines the crime of deadly conduct, in

pertinent part, as:

(a) A person commits an offense if he recklessly engages in conduct that

places another in imminent danger of serious bodily injury.

(b) A person commits an offense if he knowingly discharges a firearm

at or in the direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is reckless as to whether

the habitation, building, vehicle is occupied.

(c) Recklessness and danger are presumed if the actor knowingly pointed

a firearm at or in the direction of another whether or not the actor

believed the firearm to be loaded.
-5-

. . . 

(e) An offense under Subsection (a) is a Class A misdemeanor. An

offense under Subsection (b) is a felony of the third degree.

Tex. Penal Code Ann. § 22.05. 

Hernandez has two prior convictions in violation of this statute. He argues

the statute is too broad to categorically constitute a violent felony because some

conduct would not implicate the ACCA’s “physical force” requirement. But even

assuming this interpretation is a correct understanding of the statute, we can

employ the modified categorical approach to determine whether Hernandez was

convicted of an offense that falls within the ACCA. See Scoville, 561 F.3d at

1176, 1178. Under the modified categorical approach, we look to the charging

documents and documents of conviction to discover under which portion of the

statute Hernandez was convicted. See id.; see also Zuniga-Soto, 527 F.3d at

1117, 1121–22. 

Looking at the charging documents, they disclose that Hernandez was

indicted and convicted of violating Texas Penal Code § 22.05(b)(1). In particular,

the indictment alleges that Hernandez “knowingly discharge[d] a firearm at and in

the direction of an individual, to wit: Michael Newberry.” R., Vol. 1, Doc. 31,

Ex. 2. Therefore, we must decide whether this conduct in violation of Texas

Penal Code § 22.05(b)(1) constitutes a violent felony for ACCA purposes.

We conclude that it does. Indeed, this conduct “has as an element the use,

attempted use, or threatened use of physical force against the person of another.” 
2

 See also United States v. Hays, 526 F.3d 674, 677–79 (10th Cir. 2008)

(interpreting 18 U.S.C. § 921(a)(33)(A), we found that physical force means more

than mere physical contact and that under Wyoming law, the offense of

unlawfully touching another in a rude, insolent, or angry manner does not contain

an element of the use or attempted use of physical force); United States v.

Gonzales, 558 F.3d 1193, 1200 (10th Cir. 2009) (applying Hays in the 

§ 924(e)(2)(B)(i) context); see also United States v. Herron, 432 F.3d 1127, 1138

(10th Cir. 2005) (concluding defendant’s convictions for having “knowingly

place[d] or attempt[ed] to place another person in fear of imminent serious bodily

injury . . . by the use of a deadly weapon” constituted violent felonies under 

§ 924(e)(2)(B)(i) because this “conduct easily satisfies the requirement of ‘the

threatened use of physical force against the person of another’”). 

-6-

See 18 U.S.C. § 924(e)(2)(B)(i). Although the ACCA does not define “physical

force,” Black’s Law Dictionary defines “force” as “[p]ower, violence, or pressure

directed against a person or thing,” and “physical force” as “[f]orce consisting in

a physical act.” Black’s Law Dictionary (8th Ed. 2004).2

 Section 924(e)(2)(B)(i),

moreover, includes not only the actual or attempted use of physical force against

the person of another, but also the threatened use of such force. See United

States v. Herron, 432 F.3d 1127, 1137 (10th Cir. 2005).

Given that Hernandez was convicted of knowingly discharging a firearm at

or in the direction of one or more individuals, this conduct plainly involves the

statutory requirement of the “use, attempted use or threatened use of physical

force against the person of another.” Discharging a firearm at or in the direction

of an individual necessarily involves at least the threatened use of power,

violence, or pressure directed against that person. We therefore have no trouble

in concluding that knowingly discharging a firearm at or in the direction of an
3

 Because of the similarity in language between the ACCA and the USSG,

we have occasionally looked to precedent under one provision for guidance under

another in determining whether a conviction qualifies as a violent felony. See,

e.g., West, 550 F.3d at 960 n.5 (discussing § 924(e)(2)(B) and USSG § 4B1.2(a)). 

-7-

individual constitutes a real threat of the use of physical force against that

individual and satisfies § 924(e)(2)(B)(i). See Herron, 432 F.3d at 1138.

The Fifth Circuit addressed a closely related question in United States v.

Hernandez-Rodriguez, 467 F.3d 492, 495 (5th Cir. 2006), and reached the same

conclusion. In that case, the court concluded that Texas Penal Code § 22.05(b)(1)

constituted a crime of violence under the United States Sentencing Guidelines

(USSG) § 2L1.2(b)(1), which contains identical language to § 924(e)(2)(B)(i).3

Id.; see also United States v. Neal, 310 F. App’x 663, 664 (same). The

Hernandez-Rodriguez court found that knowingly shooting in the direction of an

individual, as well as at an individual, constitutes the use of force against the

person of another. 467 F.3d at 495. “Whereas the knowing pointing of a firearm

at another when done in obvious jest would not necessarily constitute threatened

use of a deadly weapon, . . . it is unreasonable to conclude that the purposeful

discharge of that weapon in the direction of a person would not import[ ] [a]

communicated intent to inflict physical or other harm.” Id. (citing United States v.

White, 258 F.3d 374, 383–84 (5th Cir. 2001) (internal quotation marks omitted)). 

According to the court, this “element of a conscious choice to discharge a

firearm in the direction of an individual would constitute a real threat of force
-8-

against his person.” Id. Because the statute requires proof of “knowing” conduct

as an element of the offense, the court concluded no possibility of conviction

existed on the basis of reckless or negligent behavior. Id. at 495 n.2. 

Hernandez contends our decision in United States v. Dennis, 551 F.3d 986

(10th Cir. 2008), requires a different result. But Dennis did not concern the

ACCA’s “use of force” prong, which is at issue here. Instead, in that case we

construed USSG § 4B1.2’s residual clause, which provides that a conviction is a

crime of violence if it otherwise involves conduct that presents a serious risk of

potential physical injury to another. Id. at 989–90 (citing USSG § 4B1.2(a)). 

We found in Dennis that the statute at issue—a prohibition against taking

immodest, immoral or indecent liberties with a minor—was too broad to

categorically constitute a crime of violence because it reached a wide array of

conduct, much of which failed to present a serious potential risk of physical

injury to another. Id. (noting the statute had been challenged repeatedly based on

its breadth). Interpreting the residual clause, the proper inquiry is whether the

conduct encompassed by the elements of the offense, in the ordinary case,

presents a serious risk of injury to another. Id. We concluded that “[i]t is hard to

argue that the indecent liberties statute, which requires a jury assessment based on

the totality of the circumstances and common sense as to whether it has been

violated, . . . necessarily involves conduct that presents a serious potential risk of

physical injury to another.” Id. at 990 (emphasis in original). Here, conversely,
-9-

any argument that a violation of § 22.05(b)(1) does not, at the least, necessarily

involve the threatened use of physical force against another person lacks merit. 

Additionally, Hernandez argues that Dennis requires us to consider only the

elements of the statute and prevents us from looking to any mens rea component. 

See Dennis, 551 F.3d at 990 (“[T]he focus must be on the elements.”). But an

element of the Texas offense is that the action was “knowingly” undertaken. 

Thus, to violate § 22.05(b)(1), the discharge of a firearm at or in the direction of

an individual must necessarily be undertaken with awareness. See United States

v. Williams, 559 F.3d 1143, 1148 (10th Cir. 2009) (“The battery statute here

required Williams to knowingly, willfully, and unlawfully use ‘force or violence’

against a police officer. . . . Such intentional conduct is necessarily purposeful,

violent, and aggressive (emphasis in original)).

Finally, Hernandez contends that although the statute requires the knowing

discharge of a firearm at or in the direction of an individual, it does not also

require an intent to injure or kill that individual. To be a violent felony, however,

the statute only needs to involve the use, threatened use, or attempted use of

physical force against another. For example, in Herron, we concluded that the

Colorado menacing statute constituted a violent felony under the ACCA’s “use of

force” prong. 432 F.3d at 1137–38. That statute required knowingly placing or

attempting to place another person in fear of imminent serious bodily injury, and

it provided that menacing is a class 3 misdemeanor, but, if committed by the use
-10-

of a deadly weapon, it is a class 5 felony. Id. at 1137. We found that knowingly

placing someone in fear by the use of a deadly weapon constitutes threatening

someone, and “easily” satisfies the requirement of the threatened use of physical

force against the person of another. Id. at 1138. 

Following Hernandez’s logic, however, we should not have deemed that

conviction a violent felony unless the statute contained some requirement of an

intent to injure or kill, rather than simply the intent to undertake the proscribed

action—to place a person in fear. That statute, though, had no such element. 

Even if we were to assume that it is possible to knowingly place someone in fear

by the use of a deadly weapon without actually intending to injure that person,

and that it is possible that one could knowingly discharge a firearm at or in the

direction of an individual without actually intending to injure him, both statutes

still involve the purposeful threatened use of physical force against the person of

another. Both constitute violent felonies. As the Fifth Circuit explained in

Hernandez-Rodriguez, the element of a conscious choice to discharge a firearm at

or in the direction of an individual would constitute a real threat of force against

that person. 467 F.3d at 495. 

In short, Hernandez’s purposeful conduct—discharging a firearm at or in

the direction of an individual—fully qualifies as the use, attempted use, or

threatened use of physical force against another.
-11-

III. Conclusion

Accordingly, we AFFIRM the district court’s application of the ACCA

enhancement.