Memorandum Opinion by Justice Wallach, 02-24-00438-CR, February 05, 2026.
On appeal from the 396th District Court of Tarrant County.
Synopsis
The Second Court of Appeals held that evidence of a defendant brandishing a knife and assuming a combative stance is sufficient to establish an “imminent threat” of bodily injury, even if the victim is armed and separated from the defendant by a physical barrier like a glass door. Furthermore, while a trial court errs by failing to limit culpable-mental-state definitions to the specific conduct elements of the offense in a jury charge, such error does not constitute egregious harm when the evidence of guilt is overwhelming and the contested issues at trial do not center on the defendant’s specific intent.
Relevance to Family Law
For family law practitioners, particularly those litigating Protective Orders under the Texas Family Code, this criminal holding is a strategic asset. The definition of “family violence” often hinges on the “threat of imminent physical harm.” This case clarifies that a threat remains “imminent” even when the victim takes defensive measures—such as retrieving a firearm or retreating behind a door—provided the aggressor’s conduct signals that violence is “near” or “on the verge of happening.” It effectively closes the door on respondents who argue that a petitioner could not have been in “imminent” danger because they were protected by a barrier or possessed the means to defend themselves.
Case Summary
Fact Summary
The dispute began at a laundromat where the complainant, Eduardo Vazquez, discovered his clothes had been stolen. He later encountered the appellant, Dayton Joseph Gannon, wearing his stolen shirt and shorts. When Vazquez demanded the return of his property, Gannon refused, claiming the clothes were his own. The situation escalated when Gannon brandished a knife—witnesses differed on whether he pulled it from a backpack or grabbed it from atop a dryer, but the presence of the weapon was undisputed.
Vazquez, a security guard, retreated to his vehicle to retrieve or load his firearm. Despite being armed and standing outside the laundromat’s glass walls, Vazquez testified he felt “threatened immediately.” Cell phone footage captured Gannon “bowing up” in a combative stance and approaching the glass door while wielding the knife, daring Vazquez to “come take” the clothes. Although Vazquez maintained distance and did not discharge his weapon, Gannon’s aggressive posturing continued until he eventually fled the scene. Gannon was subsequently convicted of aggravated robbery.
Issues Decided
The Court of Appeals addressed two primary issues:
1. Whether the evidence was legally sufficient to prove Gannon placed the complainant in fear of “imminent” bodily injury or death given the distance and barriers between the parties.
2. Whether the trial court’s failure to limit the definitions of “intentionally” and “knowingly” to the specific conduct elements of aggravated robbery in the jury charge resulted in egregious harm under the Almanza standard.
Rules Applied
The court relied on Texas Penal Code § 29.02 and § 29.03, noting that a person commits aggravated robbery if they use or exhibit a deadly weapon while threatening or placing another in fear of imminent bodily injury. “Imminent” was defined by the court as “near, at hand, or on the verge of happening,” citing Devine v. State.
Regarding the jury charge, the court applied the Almanza v. State framework. While aggravated robbery is a “result of conduct” or “nature of conduct” offense depending on the element, the court noted that definitions for culpable mental states must be tailored to the specific conduct element—either nature, result, or circumstances—of the underlying offense.
Application
In evaluating the sufficiency of the evidence, the court rejected Gannon’s argument that the threat was not imminent because Vazquez was outside behind a glass door and armed with a gun. The court reasoned that Gannon’s conduct—wielding a knife, “bowing up,” and approaching the door—sufficiently demonstrated a threat that was “on the verge of happening.” The victim’s possession of a firearm did not negate the threat; rather, it was a response to it.
On the jury charge issue, the court acknowledged that the trial court erred by providing the full statutory definitions of “intentionally” and “knowingly” instead of limiting them to the “nature of the conduct” (the threat) and the “result of the conduct” (the theft). However, the court found no egregious harm. The parties’ primary dispute at trial was whether a threat occurred at all, not Gannon’s mental state. Given the video evidence and the clarity of the arguments presented to the jury, the broad definitions did not mislead the panel.
Holding
The court held that a defendant’s display of a deadly weapon combined with aggressive physical posturing constitutes sufficient evidence of an imminent threat, regardless of whether the victim is armed or separated from the defendant by a glass partition. The focus remains on the defendant’s actions and the immediate possibility of violence rather than the victim’s defensive capabilities.
The court further held that while a jury charge that fails to properly limit the definitions of culpable mental states is erroneous, the error is not reversible as “egregious harm” when the record as a whole—including overwhelming evidence of the defendant’s conduct and the focus of the trial—indicates the jury reached its verdict based on the proper legal standards.
Practical Application
This case is a potent tool for practitioners seeking or defending against Family Violence Protective Orders (FVPOs). In many domestic situations, an aggressor may argue that a threat made through a window, from the driveway, or while the other spouse held a can of mace was not “imminent.” Gannon clarifies that the “imminence” of the threat is judged by the aggressor’s display of volatility and weaponry, not by the victim’s relative safety or ability to repel the attack. Litigators should use this to argue that “imminence” does not require the certainty of injury, only that the injury is “on the verge” of occurring.
Checklists
Establishing “Imminent” Threat in Protective Order Hearings
- Identify Conduct Elements
- Did the respondent “bow up” or take a combative stance?
- Was a weapon (even if not a firearm) brandished or kept within reach?
- Did the respondent move toward the petitioner, even if a barrier was present?
- Neutralize Defensive Arguments
- Document that the petitioner’s possession of defensive tools (mace, firearms, etc.) was a reaction to the threat, not a negation of it.
- Argue that glass doors or locked interiors are penetrable and do not extinguish “imminence.”
- Corroborate with “Nature of Conduct”
- Use video or 911 audio to show the “nearness” of the threat.
- Focus on the respondent’s verbal dares (e.g., “come and get it”).
Evaluating Jury Charge/Finding of Fact Errors
- Review Mental State Language
- Ensure the “intentionally” and “knowingly” definitions are limited to the specific conduct at issue (e.g., the nature of the threatening act).
- Check for broad, “boiler-plate” definitions that could lead to a finding of intent based on the wrong element.
- Assess Harm for Appeal
- Determine if the mental state was the “contested issue” at trial.
- Analyze whether the weight of the evidence (like the video in Gannon) makes the error harmless.
Citation
Dayton Joseph Gannon v. The State of Texas, No. 02-24-00438-CR (Tex. App.—Fort Worth Feb. 5, 2026, no pet.) (mem. op.).
Full Opinion
Family Law Crossover
In the context of a high-conflict divorce or a Title 4 Protective Order application, Gannon is a “shield-piercer.” Often, a respondent will argue that they were merely “venting” or that they were separated from the petitioner by a door or a car window, and therefore no “imminent” danger existed. This ruling allows family law litigators to weaponize the aggressor’s posturing. By focusing the court on the “combative stance” and the display of a weapon, you can satisfy the “imminent” prong of family violence even if the petitioner was technically “safe” in the moment. It shifts the evidentiary focus from the petitioner’s vulnerability to the respondent’s aggressive intent.
~~553fb54c-9c2c-4e24-bc46-c8da290c26d9~~
Share this content: