JAMES MONROE LIPSCOMB, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed August 23, 2000
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-98-01520-CR
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JAMES MONROE LIPSCOMB, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-80043-98
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OPINION
Before Justices Morris, Roach, and FitzGerald
Opinion By Justice Morris
        This case is about James Monroe Lipscomb's entering a children's daycare center with a pistol, holding hostage the children and adults inside, and threatening a police officer in the process. A jury convicted appellant of the aggravated kidnapping of Denise Anderson and sentenced him to fifty years' confinement. FN:1 In nine points of error, he now complains that the trial court erred by failing to grant his motion to change venue and by failing to change venue on its own motion; that the evidence is legally and factually insufficient to prove he intentionally or knowingly abducted Anderson, restrained Anderson, and used or threatened to use deadly force on Anderson; and that the trial court erred by allowing a police officer to testify appellant was on probation for dealing drugs at the time of the offense. Concluding appellant's complaints are without merit, we affirm the trial court's judgment.         
Factual Background
        Appellant and his wife, Kristen Lipscomb, had separated, but she agreed to meet with him at her apartment so he could help her pay one of her bills. At the apartment, appellant pulled out a gun and pointed it at his wife. He started crying and accused her of arranging to have him killed. She was afraid he was going to shoot her. After they talked for a while in the house, she convinced him that they should go out so she could take care of her errands and pick up the children at daycare before they continued their talk.
        They drove together to the bank. Appellant sat in a chair in the back of the bank as his wife did her business at the counter. She was upset and crying. She tried to cash a check, but the amount was greater than the balance of her account, so she had to write a second check. On the first check, she wrote, “[Appellant has] a gun in the car.” When they left, a teller at the bank called 911 and gave the police a description of their car.
        After they left the bank, appellant told his wife that he was sorry. Before they got to their children's daycare center, where she also worked, he made his wife promise she would not call the police. She promised him she would not. At the daycare center, however, she told Karen Shannon, the director of the daycare, that she did not want to put her children in the car with appellant and the gun. She asked Shannon to call the police. Shannon urged her to stay inside the daycare.
        Plano police were mistakenly informed that the driver of the car described by the bank teller was a suspect in a robbery at the bank. The officers were also informed that the driver was possibly armed. Jeff Rich, a uniformed officer in the Plano Police Department, was dispatched to the daycare center, where it had been reported that someone who matched the vehicle description for the robbery was displaying a gun.
        Near the daycare center, Rich parked his marked squad car behind appellant's car. Through his rear view mirror, appellant looked at Rich for a split second, then got out of the car with a semi- automatic pistol in his hand. Rich pulled out his gun, got out of his car, and started to approach appellant, who was running toward the daycare's entrance. When he was approximately twenty feet from appellant, Rich yelled at appellant to stop and drop the gun. Appellant turned around and pointed his gun at Rich. In response, Rich pointed his gun at appellant. Rich thought appellant was going to kill him. When Rich noticed there were children in the vicinity, he decided not to fire at appellant.
        Appellant's wife ran out of the daycare center screaming. She told a female officer that appellant had her son and was going to kill her. Appellant lowered his weapon and ran toward the daycare. Rich followed appellant. At the daycare center door, a woman inside tried to prevent appellant from entering by locking the door, but appellant pushed the woman aside and went into the building. Rich took a position behind a nearby van and caught his breath. He could hear screaming and crying inside the center.
        Rich fell back to a more secure position behind a car. He requested more units to report to the center. Moments later, appellant came to the door. He was holding his stepson Xavier in his arms; his pistol was pointed at the child's neck. Rich tried to reason with appellant, asking appellant to come outside and let the child go. Appellant responded that he would “do what he has to do.” He asked to speak with his wife, then he told Rich to put his wife out where he could see her. Rich was concerned that appellant planned to kill his wife.
        Over the next thirty to forty-five minutes, Rich tried to talk appellant into letting the approximately 104 children in the daycare center go. Appellant wanted to see his wife. He wanted the police, who were gathering at the scene, to leave. As he talked, he pointed his gun at Rich and at Xavier.
        Shannon walked down the hall from her office to check on the children. When she passed the infant room, she heard Dorteria Harris, one of the teachers, praying aloud, “Lord, please don't let him hurt any of the kids.” Harris also screamed, “He has a gun.” Shannon gathered all the children into a closet in one room. Then she spread herself in front of the closet to protect the children.
        Appellant walked up to Shannon and pushed open the closet door. He grabbed Shannon's shirt and cursed at her as he tried to push her. Shannon went with appellant to her office. As they walked to the office, appellant warned the teachers that if they opened the doors he was going to kill them. He ordered them to stay away from the windows and doors. Shannon told her employees to shut the doors and keep the children inside. In Shannon's office, the phone was ringing, but appellant would not let Shannon talk with anyone. He was acting “crazy.” When he heard the police calling his name, he put the gun in Shannon's ear. He told Shannon that she was going to be the “first one to go.” She was afraid she was going to die.
        At one point, appellant brought Shannon to the front doorway. He held a pistol to her face as she told Rich that appellant did not want to hurt anyone. She said that appellant wanted to see his wife. After they talked to Rich in the doorway, appellant and Shannon returned to her office. Eventually, appellant agreed to let twenty children go. Another teacher, Shenelle Hutchinson, lined up twenty children, and appellant counted them as they went by. Appellant's son and stepson were in the line to leave, but appellant pulled them out. Shannon's four-year-old son was allowed to leave. She asked appellant if she could kiss her son goodbye, and appellant said yes. After they left, Shannon broke down in tears and pleaded with him to let all the children go. Appellant refused.
        Later, appellant agreed to let the police give him a “throw phone,” which allowed him to communicate with police negotiators who had arrived on the scene. The phone also recorded what was happening inside the daycare center. Sammy Knapp, one of the police negotiators, said he heard appellant over the throw phone threaten that if the police entered the daycare “the kids are dead as a doorknob.” Appellant gradually let other groups of children leave.
        Shenelle Hutchinson testified that she felt threatened by the gun and was “very much afraid.” She was also afraid for the lives of the children. She heard appellant say that no one was going to leave the daycare until he talked with his wife. At one point, Hutchinson was able to speak with her young daughter over the telephone. It was important to Hutchinson to speak with her daughter because she did not know “when [she] would get to see [her] daughter again.”
        Denise Anderson, another teacher at the daycare, heard appellant say that “if any teacher come [sic] toward the door that was it and he meant business.” She felt that if she left her room, both she and the children in the room would be in danger. She did not try to figure a way to get out to the playground because she feared for the safety of the children. She was afraid that appellant would shoot them if they tried to leave. One of the older children asked Anderson if they were going to die.
        Late in the evening, after the first group of twenty children had gone, appellant told Hutchinson to get the remaining children something to eat. As she was passing out snacks, appellant instructed her to count out twenty-two more children. Hutchinson chose the infants and toddlers because there was not enough formula to feed all of them. She tried to release Crystal Conner, who was less than three years old, but appellant said she could not go because she was his wife's goddaughter. Hutchinson and Anderson helped the children out through cribs and strollers. Anderson left with the children, and Hutchinson returned to the daycare.         
        Shannon continued to try to dissuade appellant from proceeding with his plan. He told her that if she “rush[ed] up on him” he would kill her. Finally, appellant told Shannon he was going to do her a favor and allow her to leave. Shannon, however, kept talking with appellant because she did not want to abandon the children left in the daycare. Eventually, she went outside to kiss her son. She had promised appellant she would return, and he told her he would not harm any of the other children if she did, but the police would not let her back into the center. When Shannon left the daycare, the only children left with appellant were his son James, his stepson Xavier, and his wife's goddaughter, Crystal Conner.
        Hutchinson testified that she never left the daycare through the unlocked back door because she felt she would be risking her life to do so. She stated that appellant restrained her in the daycare and that he did so with the threat that he would use the gun he was carrying. Ultimately, when Hutchinson told appellant she was not feeling well, he told the officer that Hutchinson was free to go. When she left, only one teacher, Dorteria Harris remained inside with appellant and the three children. Over time, appellant released Crystal Conner but kept his son and stepson. He finally released the two boys just before his surrender. By that time, he had stayed in the daycare center for approximately thirty hours.         Crystal Conner's mother testified that although she knew appellant and had lived with him and his wife for a short period of time, she did not consent for appellant to keep her daughter confined with him in the daycare. She had hoped appellant would release Conner earlier than the other children because he knew who she was. After fifteen minutes had passed, she “honestly felt” that appellant was going to kill Conner.         
        Anderson admitted that appellant told the people in the daycare center that he did not want to hurt anyone. In her recollection, appellant kept the gun pointed at the floor. Anderson acknowledged telling a television reporter that appellant never threatened her with a gun; she explained that the reporter had caught her off guard when she was trying to get to work. She specifically testified that appellant restrained her in the daycare without her consent. She was afraid that if she left, appellant would shoot her.
        Dorteria Harris testified for the defense. She said she never saw appellant point his gun at anyone. In her opinion, the adults and children inside the daycare were free to go whenever they wished. Harris admitted that at one point in her life she had thirteen different personalities. She believed the different personalities were caused by a demon possessing her body.         
Discussion
        In his first and second points of error, appellant complains the trial court erred by denying his motion for a change of venue and failing to change the venue for the trial on its own motion. The code of criminal procedure provides that a trial court may grant a defendant's motion to change venue if the defendant proves there is so great a prejudice against him in the county where the prosecution is commenced that he cannot obtain a fair and impartial trial. See Tex. Code Crim. Proc. Ann. art. 31.03(a) (Vernon 1989). A trial court may also change the venue of a case on its own motion. See Tex. Code Crim. Proc. Ann. art. 31.01 (Vernon 1989). To prevail on his motion, appellant had to demonstrate that publicity about the case was “pervasive, prejudicial, and inflammatory.” Dewberry v. State, 4 S.W.3d 735, 745 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 2008 (2000). We review the trial court's denial of the motion under an abuse of discretion standard. See id.
        At the hearing on appellant's motion, a defense attorney who represented appellant's brother, James Ricardo Lipscomb, in a similar aggravated kidnapping case that occurred two weeks after appellant's, testified for the defense. He stated that, in subpoenaing records for the brother's motion to change venue, he found extensive coverage of appellant's case, including coverage by the national news media. Out of a potential jury panel of 100 people for the brother's case, approximately seventy-nine people indicated they had heard about either appellant's case or his brother's. In the defense attorney's opinion, appellant could not receive a fair trial in Collin County because of the extensive publicity the case received.
        The ex-wife of one of the defense attorneys in appellant's case, who was also a Collin County resident, testified she heard about appellant's case through newspaper, television, and radio. She indicated she had followed the incident on and off for the entire thirty hours it occurred. In her opinion, the potential jurors from Collin County could not put the media coverage of the events out of their minds and assume appellant was innocent of the offenses. She admitted, however, that if she were a juror, she could put aside her feelings from the news coverage and act as a fair and impartial juror.
        In argument on the motion, appellant's attorney acknowledged that he believed Collin County jurors were generally fair. He argued that the problem with the case was that they were going to have to go through many jury pools before they could find a sufficient group of people who could indicate they had not yet made up their mind about whether appellant was guilty.
        The trial judge acknowledged there had been extensive publicity of the events. He nevertheless denied the motion, noting that he would be willing to reconsider the motion if the parties encountered difficulties during the jury selection process. He set up the jury selection to begin with 200 people, stating that they could “revisit” the issue if they were unable to find a sizable group of people who could be fair and impartial jurors.
        In this case, appellant failed to meet his burden of proving the pre-trial publicity was pervasive, prejudicial, and inflammatory. Therefore, the trial court did not abuse its discretion in denying the motion and in failing to grant its own motion to change venue. We overrule appellant's first and second points of error.
        In his third and fourth points of error, appellant complains the evidence is legally and factually insufficient to prove he intentionally or knowingly abducted the complaining witness, Denise Anderson. A person is guilty of kidnapping if he intentionally or knowingly abducts a person. Tex. Pen. Code Ann. § 20.03(a) (Vernon 1994). Abduction is defined, in part, as restraining a person with intent to prevent her liberation by using or threatening to use deadly force. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3614-15 (amended 1999) (current version at Tex. Pen. Code Ann. § 20.01(2) (Vernon Supp. 2000)). The offense becomes aggravated if the person uses or exhibits a deadly weapon during the offense or commits kidnapping with the intent to use the complainant as a shield or hostage or to interfere with the performance of a governmental function, in this case, appellant's arrest. See Tex. Pen. Code Ann. § 20.04 (Vernon Supp. 2000).         Appellant argues that Anderson was already in the daycare center when he went inside. But after appellant went inside, Anderson heard him say that “if any teacher come [sic] toward the door that was it and he meant business.” She felt that if she left her room, both she and the children in the room would be in danger. She did not try to figure a way to get out to the playground because she feared for the safety of the children. She was afraid that appellant would shoot them if they tried to leave. Viewing the record under the appropriate standards, we conclude the evidence is legally and factually sufficient to prove appellant intentionally or knowingly abducted Anderson. We overrule his third and fourth points of error.
        In his fifth and sixth points of error, appellant complains the evidence is legally and factually insufficient to prove he restrained Anderson. Restrain means, in part, to restrict a person's movements without consent, so as to interfere substantially with her liberty, by confining the person. Restraint is without consent if it is accomplished by force, intimidation, or deception. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3614 (amended 1999) (current version at Tex. Pen. Code Ann. § 20.01(1) (Vernon Supp. 2000)). Appellant argues that Anderson heard appellant state that he was not going to hurt anyone and believed him. Nevertheless, Anderson feared for her life; in the context of this fear, it appears she believed he would hurt the hostages only if he had to. Moreover, Anderson specifically testified that appellant restrained her in the daycare. Viewing the record under the appropriate standards, we conclude the evidence is legally and factually sufficient to prove appellant restrained Anderson. We overrule his fifth and sixth points of error.
        In his seventh and eighth points of error, appellant complains the evidence is legally and factually insufficient to prove he used or threatened to use deadly force on Anderson. Deadly force is defined in section 9.01 of the penal code as “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Tex. Pen. Code Ann. § 9.01(3) (Vernon Supp. 2000). Appellant relies on Anderson's testimony that she did not see appellant point the gun at anyone and her statement to a reporter that appellant never threatened her with a gun. Anderson explained that the comment made to the reporter was an error she made while she was rushing into work. The fact that appellant never pointed the gun at Anderson did not change Anderson's belief, based upon appellant's actions while carrying the gun, that she would be shot by him if she tried to escape. Viewing the record under the appropriate standards, we conclude the evidence is legally and factually sufficient to prove appellant threatened to use deadly force. We overrule appellant's seventh and eighth points of error.
        In his final point of error, appellant complains the trial court erred by allowing Plano Police Officer Sandra Tomeo to testify that appellant was on probation for dealing drugs during the offense. Tomeo, one of the police negotiators, testified that appellant told her he felt there was no good reason for him to leave the daycare center because his actions were going to hurt him on the probation he was serving for a drug offense.
        Appellant claims the admission of the evidence violated rule 404(b) of the Texas Rules of Evidence, which states that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity with that character. See Tex. R. Evid. 404(b). But by the time Tomeo testified about the probation, the defense had already admitted the audiotapes from the throw phone into evidence; on the tapes, appellant explicitly admits he had dealt drugs and was on probation as a result. Even if the trial court erred by allowing Tomeo's testimony, evidence that appellant had been on probation for drug dealing during the offense was already in evidence. Therefore, the testimony was harmless. See Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987); see also Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999). We overrule appellant's ninth point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47                         
 
FN:1
1 Appellant was also convicted of two other aggravated kidnapping offenses and an aggravated assault on a peace officer. We address those convictions in separate opinions.