Larry Darnell Latchie Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 2, 2007
• Docket: 13-06-00233-CR
• Status: Published

Opinion

NUMBER 13-06-00233-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LARRY DARNELL LATCHIE, JR. Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 264th District Court of Bell County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Chief Justice Valdez

Appellant, Larry Darnell Latchie, Jr., appeals from his conviction for aggravated assault with a deadly weapon. Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2006). A jury found Latchie guilty and assessed punishment at 15 years in prison and a $1,000 fine. The trial court entered a judgment of conviction and punishment according to the jury's verdict. By two issues, Latchie contends that the trial court erred by: (1) allowing the State to present new and harmful evidence in its closing argument and (2) admitting penitentiary packets during the punishment phase of trial. We affirm.

I. BACKGROUND

Latchie was indicted on a single count of aggravated assault with a deadly weapon for an incident that occurred at a Killeen apartment complex. The indictment included allegations of two prior convictions for burglary of a habitation and burglary of a motor vehicle as enhancements. Latchie exercised his right to a jury trial on both guilt/innocence and punishment.

At trial, the State called Ernest Lawrence, the alleged victim, and two police officers who were dispatched to the scene. Lawrence testified that he was visiting with a friend at the apartment complex when Latchie drove up, got out of a car, and accused Lawrence of talking about him. Lawrence denied talking about Latchie and tried leaving. When Lawrence tried leaving, Latchie pulled out a couple of swords and started chasing Lawrence. Lawrence testified that he was able to escape from Latchie by running through the woods; he called police from a passerby's phone.

Police Officer Samuel Ellis, Jr. testified that he and Officer Debreah Chism arrived at the apartment complex at the same time. The two encountered Lawrence, who ran towards the officers yelling that someone named "Trip" was trying to kill him. The officers told Lawrence to stay away from the apartment complex. Officer Ellis knew "Trip" to be the defendant based on prior experience. Officer Ellis further testified that upon approaching the apartment complex he saw Latchie run from a courtyard in the middle of the complex to a hollowed-out tree behind the complex. As he approached Latchie, Lawrence emerged and started yelling, "that's him."

Officer Chism's testimony echoed Officer Ellis's testimony regarding the encounter with Latchie. After Latchie was handcuffed, Lawrence told Officer Chism that Latchie hide the swords in a hollowed out tree behind the apartment complex. Officer Chism found two swords in the hollowed out tree. Photos of the swords are admitted into evidence and identified by Officer Chism.

Officer Chism also testified that she attempted to speak to a potential witness who refused to identify himself. Officer Chism opined that, "given the circumstances, the person was afraid that something would happen to him, so he didn't want to identify himself." Latchie objected to the statement because it called for hearsay testimony and a conclusion on the witness's part. His objection was sustained, but no further relief was requested.

In addition to live testimony, the State offered a penitentiary packet, which showed that Latchie had been previously convicted for burglary of a habitation and burglary of a motor vehicle. ⁽¹⁾ The penitentiary packet was admitted over Latchie's objection.

Latchie testified in his own defense and denied assaulting Lawrence. According to Latchie, a friend of his named Derrick got into a fight with Lawrence, owned the swords found in the tree, and flashed them at Lawrence during the fight. Latchie opined that Lawrence used drugs and was most likely "spooked" by Derrick. After Lawrence ran from Derrick, Latchie advised Derrick to hide the swords inside the hollowed out tree and that the two of them should go visit "Whisper," another friend. Whisper hosted Latchie, Lawrence, and a few other people who did drugs. When the police arrived, everybody in Whisper's apartment scattered. Latchie was apprehended by the authorities upon exiting Whisper's apartment.

The jury convicted Latchie of aggravated assault. The charge on punishment included two prior convictions and provided for an enhanced punishment range. The jury assessed punishment at 15 years in prison and a $1,000.00 fine. The trial court entered a judgment of conviction and punishment according to the jury's verdict. This appeal ensued.

II. DISCUSSION

A. The State's Closing Argument

By his first issue, Latchie contends that the trial court erred by allowing the State to present new and harmful evidence to the jury in its closing argument during the guilt/innocence phase of trial. Specifically, Latchie objected to the following closing argument:

. . . [Latchie]'s a con. He is a con. He is a con and a bully. He terrorized the people on East Bryce. That is what he does. Nobody would talk. Nobody would give their name. Nobody would give a statement. No one at all because they were afraid, because they live that lie.

Latchie's objection to the quoted argument was overruled. Latchie contends that because his objection to Officer Chism's comment about a witness not wanting to identify himself or give a statement was sustained, the quoted closing argument amounts to the presentation of new evidence. We disagree.

Proper closing arguments consist of: (1) summations of the evidence, (2) reasonable deductions from the evidence, (3) answers to argument of opposing counsel, and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). To determine whether an argument that exceeds these bounds requires reversal, we examine whether, "in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding." Id.

The closing argument can be read as a summation of the evidence. By Latchie's own testimony, Derrick, Whisper, and a few other people in Whisper's apartment were near the scene where Lawrence was allegedly assaulted by Latchie. Everyone scattered when the police arrived. There is thus, some evidence to support the portion of the State's closing argument that nobody would talk to the authorities. Latchie's first issue is overruled.

B. Admission of "Penitentiary Packet"

By his second issue, Latchie contends that the trial court erred in admitting a penitentiary packet containing judgments of conviction for burglary of a habitation and burglary of a motor vehicle. We review the admission of evidence for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991, op. on reh'g). So long as the court's decision was within the zone of reasonable disagreement, we will not disturb it on appeal. Id.

Latchie argues that the penitentiary packet's admission was prejudicial and was not required because he stipulated to having two prior convictions. See Old Chief v. United States, 519 U.S. 172, 191 (1997) (holding that a federal district court abused its discretion in admitting a judgment of a prior felony conviction during the guilt/innocence phase of trial when the defendant stipulated to the conviction).

Latchie's reliance on Old Chief is misplaced. Old Chief is distinguishable from the instant case because it dealt with the admission of a prior felony conviction during the guilt/innocence phase of trial. Old Chief, 519 U.S. at 176. In the instant case, the penitentiary packet was admitted during the punishment phase of trial.

During a hearing on punishment, "evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant[.]" Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon 2006) (Emphasis added).

The penitentiary packet admitted into evidence constitutes a prior criminal record as envisioned by the code of criminal procedure. See id. Additionally, the trial court could have found the relevant and probative information in the penitentiary packet outweighed its prejudicial effect. Tex. R. Evid. 402 (providing that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice). Latchie's second issue is overruled.

III. CONCLUSION ⁽²⁾

The judgment of the trial court is affirmed.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 2nd day of August, 2007.

1. The penitentiary packet contains (1) an affidavit, (2) Latchie's mug shot, (3) a judgment on a plea of guilty or nolo contendere for burglary of a habitation, (4) a judgment adjudicating guilty for burglary of a motor vehicle, and (5) Latchie's fingerprints.

2. Latchie has filed a motion for leave to file a supplemental brief. We construe it to be a motion for hybrid representation. Latchie's motion is hereby denied because an appellant has no right to hybrid representation. See Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex.Crim.App. 2004), cert. denied, 543 U.S. 1059, 125 S. Ct. 872, 160 L. Ed. 2d 785 (2005).