DAVID LYNN LATTIMORE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM and Opinion Filed August 6, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01054-CR
 
No. 05-07-01055-CR
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DAVID LYNN LATTIMORE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause Nos. 055141-59, 055142-59
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        David Lynn Lattimore appeals his convictions for aggravated assault of a public servant and aggravated assault with a deadly weapon. After finding appellant guilty, the jury assessed punishment at five years' confinement, probated for ten years, and a $500 fine in cause number 05- 07-01054-CR, and ten years' confinement in cause number 05-07-01055-CR. In four points of error, appellant contends the evidence is legally and factually insufficient to support his convictions. We overrule appellant's points of error and affirm the trial court's judgments.
 
 
Background
        Karen Lattimore testified that she and appellant had been married for twenty-four years, and had a son Dakota. Lattimore and appellant's relationship was troubled and violent, and they had separated “at different times” over the years. In April 2006, Lattimore and Dakota moved to an apartment in Bells. Over the next six weeks, appellant became increasingly violent. He often called and visited the apartment uninvited. Appellant threatened her both in person and on the telephone that she needed to leave Bells. Lattimore called the police on more than one occasion. One such time before Lattimore left Bells, she called the police because appellant “busted the windows out of [her] . . . truck with a baseball bat.” Lattimore testified he did so because he was angry. While she was on the telephone with the 911 operator, appellant told her that if she called the police again he was “going to throw down on them.” Lattimore understood this to mean that appellant would “be prepared with a gun or something.” On another occasion, he came to her apartment and slapped her. He left because Lattimore “was hollering loud and it was at the apartment complex.” On another occasion, he came to her apartment with a gun saying he wanted to talk. Appellant “put [the] gun to [Lattimores's] head and actually put it to himself at one point.” Another time, he came to her apartment at 4:30 in the morning and rang the doorbell several times. Lattimore let him in because it was cold outside. Appellant was there for a few hours, “talking to [Lattimore and Dakota], wanting [Lattimore] to come back, wanting answers.” Lattimore told appellant she “wasn't coming back . . . . [because she] wasn't going to put [herself] in that position again.” Eventually, Lattimore went to her bedroom to get ready for work. Appellant followed her into the bedroom, lay on the bed, put a gun under his chin, and shot himself. Lattimore and Dakota ran outside and called 911. Although the bullet went through his chin, appellant was able to get up, put a towel to his chin, and walk down the stairs. An ambulance arrived a short time later and took him to the hospital. When a police officer asked appellant what had happened, he replied, “I shot myself because of that stupid bitch there.” Appellant spent one night at the hospital, and was then transferred to the behavioral health center for four days before being discharged.
        Lattimore had not seen appellant for almost two weeks, when he told Lattimore he was leaving town and was “going as far as his money [could] take him.” When neither she nor anyone in appellant's family had heard from appellant for two or three days, Lattimore thought he had left town, and she and Dakota went to the house to check on the family dog. When they arrived, the gate to the property was locked, and appellant's car was not in sight. Thinking it was safe to do so, Lattimore pulled into the yard, and she and Dakota got out of the truck. Lattimore went into the backyard and noticed the sliding glass door was open. As Lattimore was telling Dakota the door was open, appellant came “running down the tree house steps” carrying a “high-powered rife with a scope” and said he wanted to talk. Lattimore and Dakota began walking to her truck to leave. Appellant said, “You're not going anywhere,” then “shot out the driver side front tire.” Appellant then told Lattimore and Dakota to go into the house. Although Lattimore was “scared to death,” she refused to go inside and walked past the truck and down the driveway toward the neighbor's house. After she had gone six or eight feet past the truck, appellant started “to raise his gun.” Dakota told Lattimore to “just talk” to appellant, so she stopped. Appellant then sat down on the tailgate of her truck and began blaming Lattimore for “everything.” Appellant was cursing, gritting his teeth, and then pointed at his chin saying Lattimore was “the one that deserved this.” At that time, “he started to raise the gun up again.” Lattimore explained that although appellant did not point the gun directly at her, appellant had the gun in his lap, and was “bringing it up.” Dakota then said, “No, don't,” and stepped between Lattimore and the gun. Appellant looked at Dakota, got off the tailgate, and walked towards the front of the truck. Dakota told Lattimore to “get out of here,” and Lattimore ran to the neighbor's house and called 911.
        Dakota testified to substantially the same version of events. He explained that when his mother saw the back door open, she told him they needed to “get out of here.” As they “started taking off,” appellant came down the stairs of the tree house carrying a gun, saying he wanted to talk to them. Appellant shot out the tire on the truck, and Lattimore began running “trying to get out of the way.” Appellant then “brought the gun up,” and Dakota yelled at Lattimore to stop because Dakota thought appellant was going to shoot her. Lattimore stopped, and appellant sat on the tailgate of the truck with the gun in his hands, yelling. Appellant was “getting angrier by the second, and started to raise his gun up at her.” Dakota “jumped in and said, “No, it's not her fault. She doesn't deserve this.” According to Dakota, he jumped between them because he was “afraid that if [he] didn't [appellant] would kill [his] mom.” Appellant looked at Dakota; he then walked to the front of the truck and started shooting it. As he did so, Dakota told Lattimore to run. After shooting the side and front of the truck, appellant went back to the tree house and Dakota went to the neighbor's house where he and his mother spent the night at the sheriff's department's request.
        David Brown testified he is a trained hostage negotiator and crisis intervention specialist for the Grayson County sheriff's department. Brown arrived after the sheriff's department had formed a perimeter around appellant's. Brown called appellant on appellant's cellular telephone and spoke with him for a few hours. Appellant then left his telephone on the ground, went up in the tree house, and was out of contact for several hours. The next morning, he came out of the tree house and again began talking with Brown. Eventually, appellant agreed to meet with officers and discuss what had happened.
        Sergeant Ricky Wheeler testified he was the commander for the special response team that was called to the scene. Wheeler explained that the special response team is the equivalent to a “SWAT team.” Wheeler was dressed in his uniform when he and Deputy McClaran   See Footnote 1  went to meet with appellant “face to face.” Wheeler carried his pistol and a shotgun loaded with “less lethal beanbag rounds.” He loaded the shotgun with the beanbag rounds because members of the special response team used binoculars and saw Wheeler place his pistol on a fencepost and walk to the middle of the driveway. Because appellant was not carrying a rifle and did not appear to be armed, Wheeler hoped to “take him down . . . without causing him any harm other than just being stunned.” Wheeler and McClaran drove to the end of the driveway, then walked to the front of the car. Appellant was about forty feet away and told the officers he wanted to give his statement and “continue on with everyday activities.” He also told them he wanted to play “the three corner game.” Appellant explained to the officers “the gun that [appellant] had laid on the fence post was one corner, [appellant] was a second corner, and [Wheeler and McClaran] were the third corner.” Appellant told Wheeler he was about 30 feet from his gun, and he wanted the officers to stop 40 feet away from him. After speaking with appellant for a time, Wheeler made the determination appellant was “not going to come . . . [ with the officers and ] was not going to give a statement.” Wheeler told McClaran that when Wheeler had a chance, he would discharge a beanbag round and McClaran should run for appellant's pistol. A short time later, Wheeler looked to appellant's left, held up his hand, and said, “Stop. Don't come any closer.” When appellant turned to look, Wheeler fired a beanbag round. The round was faulty, and appellant began running for his pistol on the fencepost. At the same time, McClaran ran towards the gun. Wheeler shot more beanbag rounds, then dropped the shotgun and ran after appellant. McClaran tackled appellant about eight to ten feet from the gun and, with help from Wheeler and other officers, was able to subdue appellant. During the struggle to subdue appellant, Wheeler's hand was cut. He was treated at the hospital but did not require sutures.
        After hearing this and other evidence, the jury convicted appellant for the aggravated assaults of Wheeler and Lattimore. These appeals followed.
 
Standard of Review
        When addressing legal sufficiency complaints, we apply well-known standards: we consider the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). We must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214 S.W.3d at 13 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
        Evidence that rationally supports a guilty verdict beyond a reasonable doubt under the legal sufficiency standard can still be factually insufficient. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625. The difference between the legal and factual sufficiency standards is that “the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions 'albeit to a very limited degree.'” Rollerson, 227 S.W.3d at 724 (quoting Marshall, 210 S.W.3d at 624); Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006)). However, a “factual-sufficiency review is 'barely distinguishable' from a Jackson v. Virginia legal sufficiency review.” Rollerson, 227 S.W.3d at 724 (quoting Watson, 204 S.W.3d at 415).
Discussion
        In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction for the aggravated assault of Lattimore. According to appellant, because Lattimore admitted appellant did not point a firearm at her or fire in her direction, we must reverse his conviction. We disagree.
        The jury in this case was authorized to convict appellant for the aggravated assault of Lattimore if it found beyond a reasonable doubt that appellant “intentionally, knowingly, or recklessly threaten[ed] . . .Lattimore with imminent bodily injury by pointing a firearm at [her] or in her direction or by firing a firearm in her direction,” and used or exhibited a firearm during the commission of the offense. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2008) (person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits deadly weapon during commission of assault); Garza v. State, 50 S.W.3d 559, 563 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (State must prove needlessly pled language if it describes method of commission of offense).
        In this case, the record shows Lattimore and appellant had a troubled and violent relationship. After Lattimore left appellant and moved to an apartment, appellant threatened Lattimore, broke the windows in her truck with a baseball bat, held a gun to her head, and shot himself in the chin. Thereafter, he pretended to leave town and, when she arrived at the house to feed the dog, was in the treehouse with a highpowered rifle loaded with a sixty round “banana clip.” He ran down the stairs and shot out the tire on her truck to keep Lattimore from leaving. When she stopped, he began cursing her and became increasingly angry and agitated. Eventually he “started to raise the gun up.” Lattimore explained that although appellant did not point the gun directly at her, appellant had the gun in his lap, and was “bringing it up.” Dakota testified appellant was “getting angrier by the second, and started to raise his gun up at her.” At that point, he jumped between them because he was “afraid that if [Dakota] didn't [appellant] would kill my mom.” Although appellant contends this evidence shows appellant was prevented from pointing the gun in Lattimore's direction, we disagree. Lattimore testified her son prevented appellant from pointing the gun “directly at me just like that.” Even though appellant did not point the gun directly at Lattimore nor fire it in the direction, we conclude a rational jury could infer when appellant “raised the gun up at [Lattimore]” and Dakota got between the gun and Lattimore, appellant was pointing the rifle in Lattimore's general direction. After viewing the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction for the aggravated assault of Lattimore. We overrule appellant's first and second issues.
        In his third and fourth issues, appellant contends the evidence is insufficient to support his conviction for the aggravated assault of Wheeler. Specifically, appellant maintains we must reverse his conviction because the jury was required to find that appellant “knowingly or recklessly ran after being fired at” by Wheeler and was also required “to exercise some type of convoluted logic that [appellant] purposely disarmed himself to lure Wheeler into firing five twelve gauge rounds at him so that [appellant] would run like hell so that Wheeler would chase him and hurt himself-thereby 'displaying' a weapon to complete the ridiculous, unjustified, comedic charge” of aggravated assault. We interpret this as a challenge to the sufficiency of the evidence to support the deadly weapon element.
        To support the deadly weapon allegation, the evidence must demonstrate that the deadly weapon was used or exhibited “during the transaction from which” the felony conviction is obtained. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing Ex parte Jones, 957 S.W.2d 849, 851 (Tex. Crim. App. 1997)). In relation to a deadly weapon, the term “use” means to employ or to apply the deadly weapon to achieve an intended result. Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989); see also McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 2000) (concluding Patterson analysis is relevant when determining whether deadly weapon was used or exhibited during aggravated robbery). A deadly weapon is exhibited when it is consciously shown, displayed or presented for view. Patterson, 769 S.W.2d at 940. “[O]ne can 'use' a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it.” Id. Finally, to sustain a deadly weapon finding, there must be evidence that others were actually endangered, not “merely a hypothetical potential for danger if others had been present.” Cates, 102 S.W.3d at 738.
        Here, following an overnight standoff with the special response team and lengthy negotiations with the crisis intervention officer, appellant placed his loaded pistol on the fencepost and walked about 30 feet away from the gun. A short time later, when Wheeler and McClaran arrived, appellant had them stop about 40 feet away from the gun. He then told the officers he wanted to play “the three corner game” and reminded the officers he was closer to the loaded pistol than they were. After speaking with appellant, Wheeler determined appellant would not come with the officers voluntarily and it would be necessary to subdue appellant. He then distracted appellant and attempted to stun him with a non-lethal beanbag round. When the round failed to subdue appellant, appellant ran for the fencepost and was tackled eight to ten feet away from his loaded pistol. Wheeler's hand was injured during the struggle to subdue appellant. Although appellant contends the evidence is insufficient to support the deadly weapon finding because the record reflects only “hypothetical endangerment” and that he abandoned his weapon before the assault, we disagree. Examining the entire transaction, we conclude that appellant consciously showed and displayed a deadly weapon during the commission of a felony and that others were actually endangered. This record does not, as appellant suggests, establish merely a hypothetical potential for danger if others had been present. Thus, after reviewing the record under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction for the aggravated assault of Wheeler. We overrule appellant's third and fourth issues.
        Accordingly, we affirm the trial court's judgments.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071054F.U05
 
Footnote 1 The record does not show McClaran's given name.

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