Nathan Sandoval v. the State of Texas

Opinion filed August 15, 2024

In The

Eleventh Court of Appeals
__________

Nos. 11-23-00005-CR & 11-23-00006-CR
__________

NATHAN SANDOVAL, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause Nos. C-21-0663-CR & C-21-0709-CR

MEMORANDUM OPINION
A jury convicted Appellant, Nathan Sandoval, of aggravated assault with a
deadly weapon, a second-degree felony, and aggravated kidnapping, a first-degree
felony. See TEX. PENAL CODE ANN. § 20.04(b), (c) (West 2019); § 22.02(a)(2), (b)
(West Supp. 2023). After Appellant pleaded “true” to two enhancement paragraphs
that alleged prior felony convictions, the jury found them to be “true”, and assessed
his punishment at forty years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice (TDCJ), for each offense. See id. § 12.42(d) (West
2019). The trial court sentenced Appellant accordingly and ordered that the
sentences run concurrently. In a single issue in each appeal, Appellant argues that
the evidence was legally insufficient to support his convictions for the offenses. We
affirm.
Factual and Procedural History
At trial, Edward Leyva, the complainant in the aggravated-assault case,
testified that he knew Appellant through Edward’s siblings, who had attended school
with Appellant. Appellant developed a relationship with Edward’s youngest sister,
Abigail Leyva, the complainant in the aggravated-kidnapping case. Appellant and
Abigail lived together and had a daughter. However, the relationship eventually
ended, and Abigail developed a relationship with another man.
In March 2021, Edward was working as a bartender at Genghis Grill. Edward
was aware that Appellant had been trying to contact Abigail. During the night of
March 6 or early morning of March 7, Edward returned home from work to discover
Appellant outside of Edward’s apartment. Appellant inquired into Abigail’s
whereabouts, and Edward notified Appellant that she was not there. Appellant asked
Edward if he could go inside but Edward had a “weird feeling, just like that sense of
guard” about the situation and tried to stall Appellant. According to Edward,
Appellant was wearing a grey zip-up hooded sweater jacket. Edward could see the
imprint of a firearm in Appellant’s jacket pocket. Edward explained that Appellant’s
hand was in the jacket pocket, pointing the firearm at Edward. Edward felt “a little
threatened.” When Edward reached for his cell phone to notify his girlfriend, Alexia
Estrada, Appellant “told [him] to leave it in [his] pocket and not to reach for it.”
Although Edward attempted to stall Appellant, he ultimately admitted
Appellant into his apartment. Alexia was there, and she joined Appellant and
Edward in the living room. Appellant directed the two to place their cell phones on
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the table. Hearing sirens going by, Edward described Appellant as becoming
paranoid and he saw Appellant remove the firearm from his pocket while looking
out the door’s peephole. Edward eventually convinced Appellant to leave, and he
called 9-1-1. Edward explained that he was concerned for his safety and felt
threatened by Appellant pointing the firearm at him. Based on his observations,
Edward did not believe that the firearm used and exhibited by Appellant was a toy
or was fake.
Alexia described Appellant as “[a]gitated, like he was nervous about
something” during the encounter. Alexia testified that Appellant repeatedly asked
about Abigail’s whereabouts. Alexia also saw Appellant’s firearm when he had
removed it from his pocket while looking out the peephole.
The following day, Alexia was with Abigail as they went to get groceries. The
two returned to Alexia’s apartment and unloaded the groceries. While Alexia was
inside and Abigail was outside, Alexia “heard a big bang” and Abigail screaming.
Alexia testified that the noise “sounded like a gun.” Alexia looked outside and saw
“[Appellant] trying to get in[to] Abigail’s car” on the driver’s side. Alexia ran
outside to get Abigail but, by the time she got to the car, Appellant was inside the car
and drove off with Abigail. Alexia stated that Abigail looked terrified.
Abigail testified that she began a relationship with Appellant when she was
fifteen years old and he was twenty years old. Abigail became pregnant with
Appellant’s daughter and dropped out of high school in the ninth grade. While their
relationship did not last, Appellant maintained a relationship with their daughter.
Abigail explained that Appellant’s behavior changed over the course of their
relationship, stating that “he used to be like loving, caring . . . and then like out of
nowhere he just switched to just being conniving, so rude, so angry, so hateful just
so . . . always mad and like just unhappy.” Abigail also described Appellant’s

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escalating acts of violence, including choking her and pointing a firearm at his
grandfather and young cousin.
Appellant began contacting Abigail about one week before the kidnapping,
expressing discontent with Abigail for ending their relationship and for becoming an
exotic dancer. Text messages between Appellant and Abigail in the days leading up
to and following the alleged kidnapping were admitted into evidence. Several of the
messages sent before the alleged kidnapping indicate that Appellant was following
Abigail and was making veiled threats.
On March 8, 2021, Abigail went to Edward’s apartment to retrieve clothes.
Abigail was driving a silver Nissan, which she confirmed was the same car shown
in the State’s photographs that were taken by Odessa Police Department (OPD)
crime scene technician Cynthia Gomez. After returning from grocery shopping,
Abigail was sitting in her car when she saw Appellant “creeping by . . . my car” as
he drove though the parking lot. Abigail moved her car into another parking spot
and Appellant “parked halfway in front of [her] car.” Appellant attempted to open
Abigail’s passenger’s side door but when he could not, he moved to the driver’s side
door. When Appellant was unable to open the driver’s side door, he “pistol
whip[ped]” the window; however, the window did not break; Appellant shot the
window. Appellant then crawled into Abigail’s car, pointed the firearm at Abigail,
prevented her from exiting, and drove Abigail’s car away. Appellant left his firearm
in his lap while driving. Abigail described feeling scared, believing that Appellant
intended to kill her.
Abigail explained that law enforcement called Appellant after the kidnapping
and tried to convince him to let Abigail go, but he was unwilling to do so. Appellant
directed Abigail to tell the police that nothing was wrong, and, out of fear, she
complied. Abigail was eventually able to get her phone and forward her location to
her sister. Appellant subsequently obtained her phone and held onto it. Abigail
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testified that she was eventually able to get free when Appellant noticed police
vehicles patrolling in the immediate vicinity. They were standing outside of the car
when—although Abigail did not know exactly what prompted Appellant—
Appellant took off running and Abigail ran in a different direction. Abigail flagged
down the driver of another vehicle, who drove her to Edward’s apartment. Several
days after the alleged kidnapping, Appellant sent Abigail a video of him wearing a
“Dia de los Muertos” facemask and pointing a firearm at the camera—the video was
admitted into evidence.
Jesusita Barriga, Edward’s and Abigail’s mother, testified that on March 8,
2021, she was watching Edward’s son while Abigail and Alexia went to the grocery
store. After Abigail and Alexia returned and brought the groceries in, Abigail went
back outside. While Abigail was outside, Barriga heard a gunshot and Alexia ran
inside the apartment saying, “[Appellant] has got [sic] Abigail.” Barriga ran outside
and observed Appellant driving the car with Abigail inside. Barriga described
Abigail as screaming and appearing “terrified.” Barriga testified that Abigail
returned several hours later, scared and disheveled.
Darla Durham, who lived in the same apartment complex as Edward, testified
that on March 8, 2021, she “heard what sounded like a gunshot, shattered glass
falling, hitting the ground, yelling, [and] screaming.” Durham saw “a lot of fighting”
in a silver car after she heard the gunshot. Durham explained that, after a struggle,
the man drove away.
Gomez testified that she responded to the scene of an alleged aggravated
kidnapping on March 8, 2021. Upon arrival, Gomez collected a bullet casing from
the ground. Photographs taken at the scene and admitted as exhibits showed a single
bullet casing lying next to a pile of broken glass. Gomez acknowledged that she did
not “have any way” of tying the bullet casing to Appellant and did not recover a
firearm.
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On March 9, 2021, Gomez took photographs of a silver Nissan Sentra that
was recovered by OPD, which were admitted as exhibits. The photographs show a
broken driver’s side window, shattered glass in the driver’s seat, and what appears
to be a bullet hole through the passenger’s side door.
OPD Detective Holly Hughes testified that she is a certified hostage negotiator
and that she responded to the alleged kidnapping. Detective Hughes explained that
she was able to speak with Appellant on the phone with the assistance of one of
Abigail’s family members. Detective Hughes attempted to build rapport with
Appellant and encouraged him to drop Abigail off, but he was unwilling to do so.
While speaking with Detective Hughes, Appellant denied using a firearm. Detective
Hughes also briefly spoke with Abigail, who sounded “very upset” and who stated,
“that everything was fine.” A recording of the conversation was admitted as an
exhibit.
Sufficiency of the Evidence
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d
729, 732 (Tex. Crim. App. 2018); Brooks, 323 S.W.3d at 895; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
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State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we must defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is
deferential and accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from the facts.
Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Instead, we determine whether the necessary inferences are based
on the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict. Clement v. State, 248 S.W.3d 791, 796 (Tex. App.—
Fort Worth 2008, no pet.). Therefore, if the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d
516, 525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
The evidence need not directly prove the defendant’s guilt; circumstantial
evidence is as probative as direct evidence in establishing the defendant’s guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Carrizales v. State,
414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently
to the defendant’s guilt if the cumulative force of all incriminating circumstances is
sufficient to support the defendant’s conviction. Hooper, 214 S.W.3d at 13.
Therefore, in evaluating the sufficiency of the evidence, we treat direct and
circumstantial evidence equally, and we must consider the cumulative force of all
the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.

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State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); Isassi, 330 S.W.3d at 638;
Hooper, 214 S.W.3d at 13.
B. Applicable Law
As relevant here, a person commits aggravated assault if he “intentionally or
knowingly threatens another with imminent bodily injury” and “uses or exhibits a
deadly weapon during the commission of the assault.” PENAL §§ 22.01(a)(2),
22.02(a)(2). “[T]hreats can be conveyed in more ways than in a verbal manner; a
threat may be communicated by acts, words, or conduct.” Knight v. State, 406
S.W.3d 578, 587 (Tex. App.—Eastland 2013, pet. ref’d) (citing McGowan v. State,
664 S.W.2d 355, 357 (Tex. Crim. App. 1984)).
A person commits aggravated kidnapping if he “intentionally or knowingly
abducts another person and uses or exhibits a deadly weapon during the commission
of the offense.” PENAL § 20.04(b). To “abduct” a person “means to restrain a person
with intent to prevent his liberation by: (A) secreting or holding him in a place where
he is not likely to be found; or (B) using or threatening to use deadly force.” Id.
§ 20.01(2).
While a firearm is a deadly weapon per se, generally, mere possession of a
firearm is not enough to support aggravated assault with a deadly weapon; instead,
“[t]he deadly weapon must, in some manner, help facilitate the commission of the
felony.” Plummer v. State, 410 S.W.3d 855, 865 (Tex. Crim. App. 2013); see PENAL
§ 1.07(a)(17)(A). In this regard, “[t]he act of pointing a loaded [firearm] at someone,
by itself, is threatening conduct that supports a conviction for aggravated assault.”
Mitchell v. State, 546 S.W.3d 780, 786 (Tex. App.—Houston [1st Dist.] 2018, no
pet.). To “use” a deadly weapon means to utilize, employ, or apply the weapon to
achieve its intended result: “the commission of a felony offense or during immediate
flight therefrom.” Safian v. State, 543 S.W.3d 216, 223 (Tex. Crim. App. 2018)
(quoting Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). In
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contrast, to “exhibit” a deadly weapon only requires that the actor showed,
displayed, or presented the weapon during the commission of a felony offense or
during the immediate flight therefrom. Id. “Using” a deadly weapon during the
commission of a felony offense extends to employing the deadly weapon, including
simply possessing it, in such a manner that facilitates the associated felony. Id. at
223–24. Under these definitions, one can “use” a deadly weapon without exhibiting
it. Id. at 224.
C. Analysis
1. Aggravated Assault with a Deadly Weapon
Appellant challenges the sufficiency of the evidence supporting his conviction
for aggravated assault with a deadly weapon on two grounds: (1) “there was
insufficient evidence that he used or exhibited a firearm”; and (2) “there was no
evidence adduced at trial that [Appellant] ever threatened Edward.”
Appellant’s contention that there was insufficient evidence that he “used or
exhibited” a firearm is grounded in Edward’s and Alexia’s alleged failure to provide
specific testimony describing the firearm that Appellant possessed, and the fact that
the firearm was not recovered by law enforcement. Law enforcement is not required
to recover the alleged firearm or present it as evidence and a complainant does not
need to describe the firearm with specificity to support a conviction. See Gomez v.
State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985) (“[I]f a weapon is not recovered,
corroboration of the complainant’s description of the weapon in the form of expert
testimony is not required.”); Riddick v. State, 624 S.W.2d 709, 711 (Tex. App.—
Houston [14th Dist.] 1981, no pet.) (“Where the witness has positively identified the
weapon as a pistol, we do not believe . . . that it is required that she have seen the
trigger, handle or cylinder or other indicia of a [firearm] in order to support the
conviction of the use of a deadly weapon.”); see also Bowers v. State, No. 11-17-
00257-CR, 2019 WL 4509715, at *2 (Tex. App.—Eastland Sept. 19, 2019, no pet.)
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(mem. op., not designated for publication). Here, Edward was able to identify the
firearm through Appellant’s jacket pocket and actually saw the firearm when
Appellant removed it while looking through the peephole of the door. See Riddick,
624 S.W.2d at 711. The firearm was also identified by Alexia when Appellant
removed it from his jacket pocket. Moreover, although Appellant argues that the
witnesses could not “testify to characteristics of the alleged firearm [or] . . . to the
manufacturer, model, or specific appearance of the [firearm],” they were not asked
or required to do so. See id.
Appellant next argues that there was no evidence of a threat because Edward
did not testify that Appellant threatened to shoot or otherwise physically harm him,
Alexia, or their child or that Appellant “brandished the weapon at Edward or
Alexia.” However, importantly, a threat does not need to be conveyed verbally;
certain conduct may support the element of threatening one with serious bodily
injury. See Knight, 406 S.W.3d at 587. Edward testified that Appellant pointed the
firearm at him through Appellant’s jacket pocket, that he could see the outline of a
firearm, that he knew it to be a firearm, and that he felt threatened and feared for his
safety. See Mitchell, 546 S.W.3d at 786 (holding that the act of pointing a loaded
firearm is sufficient to support a conviction of aggravated assault); see also Adame v.
State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (noting that it is “not significant”
whether a deadly weapon is loaded or unloaded during the commission of the
offense); Ogren v. State, 447 S.W.2d 682, 683 (Tex. Crim. App. 1969) (“When a
pistol is used in an assault but not used or attempted to be used as a bludgeon, the
presumption is that it was loaded, in the absence of proof to the contrary.”).
Moreover, Appellant’s actions of controlling Edward and Alexia by requiring
them to place their cell phones on the table to prevent them from calling law
enforcement, coupled with his paranoid behavior at the sound of sirens passing by,
support an inference that Appellant understood that he was threatening the use of the
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firearm against Edward through his actions. See Jackson, 443 U.S. at 319
(permitting jurors to draw inferences from basic facts); Villa, 514 S.W.3d at 232
(directing us to consider “the cumulative force of all the evidence”); Mitchell, 546
S.W.3d at 786. Accordingly, we conclude that there was sufficient evidence to
support the jury’s conclusion that Appellant threatened Edward with imminent
bodily harm with a deadly weapon: a firearm. See Safian, 543 S.W.3d at 224 (noting
that a deadly weapon may be used without being exhibited); see also Malone v. State,
No. 05-02-01206-CR, 2003 WL 22072689, at *3–4 (Tex. App.—Dallas Sept. 8,
2003, no pet.) (not designated for publication) (affirming conviction for aggravated
robbery where Appellant pointed a firearm at store clerk, who testified they
recognized the weapon as a firearm, and no weapon was recovered).
2. Aggravated Kidnapping
As to his conviction for aggravated kidnapping, Appellant only challenges the
sufficiency of the evidence supporting a finding that he used or exhibited a deadly
weapon. Like his challenge to the aggravated-assault conviction, Appellant argues
that the evidence was insufficient to support aggravated kidnapping because Abigail
was not able to describe the firearm used and law enforcement did not recover it. As
noted, law enforcement is not required to recover the firearm and a witness does not
need to describe the firearm in detail to support a conviction. See Gomez, 685
S.W.2d at 336; Riddick, 624 S.W.2d at 711. At trial, several witnesses described
hearing a gunshot, Abigail specifically testified that Appellant shot her window out
in order to gain access to her car, a bullet casing was found with the broken glass at
the scene of the kidnapping, and the car had what appeared to be a bullet hole in the
passenger’s side door. See Carrizales, 414 S.W.3d at 742 (noting that
“circumstantial evidence is as probative as direct evidence”). Accordingly, we
conclude there was sufficient evidence to support the jury’s conclusion that

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Appellant used or exhibited a firearm during the commission of the kidnapping
offense. See Safian, 543 S.W.3d at 223.
Appellant’s sole issue in each appeal is overruled.
This Court’s Ruling
We affirm the judgments of the trial court.

W. BRUCE WILLIAMS
JUSTICE

August 15, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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