Affirmed and Memorandum Opinion filed July 17, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00454-CR

MOSES LOPEZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1352903

M E M O R A N D U M O P I N I O N

A jury convicted appellant Moses Lopez, Jr., of aggravated assault of a 

family member. The trial court sentenced appellant to sixteen years in prison. 

Appellant filed a timely notice of appeal. We affirm.

Appellant’s only claim on appeal is that the evidence is legally insufficient 

to support his conviction for aggravated assault. The manner and means of the 
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aggravated assault were by threatening imminent bodily injury through the use and 

exhibition of a deadly weapon — a rifle. 

Moses Lopez, Sr., (“Lopez Sr.”) appellant’s father, testified he was 

awakened by appellant “busting into” his bedroom. Appellant “came in there with 

a rifle and that he’s going to kill me and he pulled the trigger. It didn’t go off and 

then he threw the rifle at my bed.” Lopez Sr. testified his daughter came in and 

shoved appellant. Lopez Sr. got out of bed and ran out of the house, to his sister’s 

next door. Lopez Sr. testified that he was in fear for his life when appellant was 

pointing the rifle at him.

The rifle was a .22, which Officer Patrick Morrisey of the Houston Police 

Department described as “very deadly.” The record reflects the following 

testimony was given by Lopez Sr.:

Q. [THE STATE]: Now, sir, the gun -- how long have you owned 

that? Was it your gun that was being pointed at you?

A. Yes.

Q. How long have you owned that gun for, sir?

A. Oh, about way over ten years, you know.

Q. Okay.

A. And I’ve just had it in the closet, you know.

Q. Had you ever fired it before?

A. No. No, sir.

Q. But how long, sir, had it been since you’ve even seen the gun 

before that?

A. It’s been in the closet about ten years or more than that, you know.

Q. Sir, so is it fair to say that you got the gun ten years ago and put it 

in the closet and that’s where it stayed?

A. Yes, to eventually fix it because, you know, I never got to it.

Q. Okay. When you say “fix it,” what do you mean about fix it? 
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Change it somehow?

A. Yeah. Just -- yeah. Because it’s an old rifle, you know.

Q. But when your son was pointing it at you and when he squeezed 

that trigger, what was going through your head, sir?

A. Well, like I say, I thought it was going to be over, you know, cause 

he kept hollering he was going to kill me.

On cross-examination, Lopez Sr. testified as follows:

Q. [DEFENSE COUNSEL]: The rifle was always yours? And as far 

as the rifle goes, you’ve never fired it, correct?

A. Never.

Q. Do you even know if it works?

A. I didn’t think it was [sic] worked, you know.

Q. Okay. And as far as ammunition, do you possess any ammunition 

for that rifle?

A. No.

Q. Is there any in your house?

A. No.

Appellant concedes that the .22 rifle was manifestly designed for the 

purpose of inflicting death or serious bodily injury. Thus, the rifle met the 

definition of “deadly weapon” and the State was not required to prove it was 

operable. See Texas Penal Code § 1.07(a)(17)(A); Walker v. State, 543 S.W.2d 

634, 637 (Tex. Crim. App. 1976); and Thomas v. State, 821 S.W.2d 616, 620 (Tex.

Crim. App.1991). 

Appellant argues his father’s testimony established he knew the rifle was not 

capable of causing serious bodily injury because it was unloaded and inoperable. 

Appellant asserts his father’s knowledge distinguishes this case from those finding 

the fact that the firearm was inoperable or unloaded does not render the evidence 
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legally insufficient to support a conviction for aggravated assault by threat. In 

essence, appellant is asking this court to require the State to prove the intended 

victim 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 Supp. 2010). The question of whether 

the threat must be perceived or received by the intended victim was expressly left 

open in Olivas v. State, 203 S.W.3d 341, 350 (Tex. Crim. App. 2006), and remains 

undecided by the court of criminal appeals. See Boston v. State, 410 S.W.3d 321, 

326 (Tex. Crim. App. 2013) (finding there was sufficient evidence for a rational 

jury to infer the threat was perceived); and Schmidt v. State, 232 S.W.3d 66, 68 

(Tex. Crim. App. 2007) (there was ample evidence for the jury to find the 

defendant communicated a threat of further violence). For the reasons stated 

below, it is also unnecessary for us to decide this issue in this case.

We first note the record does not establish whether the gun, in fact, was 

unloaded or inoperable. There was no testimony explaining why the rifle failed to 

fire. Lopez Sr.’s testimony establishes that ten years ago he placed the rifle in the 

closet without ever loading it or having fired it, and he believed it did not work. 

Lopez Sr. testified at trial that it was his gun appellant used. However, he did not 

testify that when he awakened to find his son pointing a rifle at him and 

threatening to kill him, he recognized it as the same rifle and knew it was unloaded 

or inoperable.

The record reflects that Lopez Sr. saw appellant raise a rifle, point it at him 

and pull the trigger, while saying that he was going to kill him. Lopez Sr. testified 

that he was in fear for his life. Assuming, arguendo, the State must prove 

perception of the threat, there was such evidence in this case. See Dobbins v. State, 

228 S.W.3d 761, 766 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d, untimely 
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filed). Accordingly, we find, viewing all the evidence in the light most favorable 

to the verdict, a rational jury could have found the essential elements of the offense

beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. 

App. 2005). Appellant’s issue is overruled and the judgment of the trial court is 

affirmed.

/s/ John Donovan

Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).