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Click here for the full text of this decision FACTS:Appellant began stalking and harassing the complainant Kim Tunnell in November 2001. Tunnell had been romantically involved with appellant, but after deciding to attempt reconciliation with her husband, she ended the relationship. Appellant began calling Tunnell and leaving voice messages on her cell phone. While the messages were initially innocuous, they became increasingly violent and demanding. Tunnell began to fear for her safety. On Nov. 27, 2001, she recorded the messages that appellant had left over a two-week period and took that recording to the police. She then went to her attorney to get a restraining order against appellant. When she arrived at her attorney’s office, she saw appellant in the parking lot, walking toward her truck. As she tried to back out of the parking lot to avoid him, he began hitting the passenger side window with a pistol. Tunnell sped off. After she was sure appellant was not following her, she returned to her attorney’s office, and her attorney called the police. Just two weeks later, on Dec. 12, 2001, Tunnell was driving to the laundromat when appellant drove up behind her. He then drove his car into the oncoming-traffic lane, and Tunnell noticed that the front passenger window was rolled halfway down. She recognized the car it belonged to appellant’s mother but she could not immediately tell who was driving it. She heard a pop, followed by another pop, and thought that appellant had possibly thrown rocks at her truck. Later, she discovered a bullet hole in the rear driver’s side extended-cab portion of her truck, and she immediately called the police. Appellant called Tunnell on several occasions following this incident. On two of those occasions, the police were able to find appellant, but both times he led the police on high-speed chases and was able to escape arrest. Finally, the police worked with Tunnell to set up a meeting between her and appellant so that they could arrest him. She agreed, and, on Dec. 27, 2001, the police finally arrested appellant. A jury convicted appellant and sentenced him to 35 years in prison. He appealed, arguing that the state failed to prove the element of “threaten with imminent bodily injury.” He argued that, because Tunnell did not realize that he was shooting at her car while he was committing the act, she had not been threatened as required under Texas Penal Code �22.01(a)(2). The court of appeals found that Tunnell “did not perceive the threat at the time the offense occurred,” and thus the state had not proven that Tunnell was threatened with imminent bodily injury. HOLDING:Reversed and remanded. The Court of Criminal Appeals (CCA) did not resolve the issue of whether a victim must perceive a threat to establish the crime of assault by threat. The court stated that even assuming that the state must prove Tunnell perceived the threat, there was legally sufficient evidence to sustain the jury’s verdict. In concluding that Tunnell did not perceive a threat, the CCA stated that the court of appeals failed to view all of the evidence in the light most favorable to the verdict. The court noted: “The record is replete with evidence that Tunnell felt threatened by appellant on several occasions leading up to the charged incident. While this evidence does not prove that Tunnell perceived a threat on the evening in question, it does support an inference that her state of mind on that evening was affected by appellant’s previous actions.” The court also refuted appellant’s argument that the victim of an assault by threat must be aware “of her imminent peril as the shots were being fired.” The statute requires the state to prove that the defendant “threaten[ed] another with imminent bodily injury,” but the court found no statutory requirement that a victim must instantaneously perceive or receive that threat of imminent bodily injury as the actor is performing it. “Ms. Tunnell did not comprehend that she was being shot at as appellant fired at her car, but the realization moments later of what he had done nonetheless placed her in great fear.” The court stated there was ample evidence to find that appellant threatened Tunnell as required under the Texas Penal Code. It reversed the judgment of the court of appeals and remand the case to that court to address appellant’s remaining points of error. OPINION:Cochran, J., delivered the opinion of the court, in which Meyers, Womack, Johnson and Holcomb, J.J., joined. Price, J., joined Parts I and III, and concurred in the judgment. CONCURRENCE:Keller, P.J., filed a concurring opinion, in which Keasler and Hervey, J.J., joined. “[I]t would be better simply to hold, as the Court almost does, that a threat need not be perceived in order to be a threat.”

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