In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00535-CR ____________________
TIMOTHY EUGENE LEGGETT, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 22846 ________________________________________________________ _____________
MEMORANDUM OPINION
Rhett Cyrvin Lathan (Lathan) died on October 13, 2012, from gunshot
wounds. A Polk County grand jury indicted Timothy Eugene Leggett (Leggett) for
the first degree murder of Lathan. Leggett was indicted under Texas Penal Code
section 19.02(b)(1), and charged with “intentionally or knowingly caus[ing] the
death of Rhett Cyrvin Lathan by shooting him with a firearm[.]” The indictment
further alleged:
1 And it is further presented in and to said Court that the said Defendant in the County of Polk and State aforesaid on or about the 12th day of October, 2012, did then and there with the intent to cause serious bodily injury to Rhett Cyrvin Lathan commit an act clearly dangerous to human life, to-wit: shooting a firearm into an occupied motor vehicle, that caused the death of Rhett Cyrvin Lathan;
And it is further presented in and to said Court that the said Defendant in the County of Polk and State aforesaid on or about the 12 t h day of October, 2012, did then and there intentionally or knowingly commit or attempt to commit a felony, to-wit: Criminal Mischief and in the course of and in furtherance of the commission or attempt commit said felony attempt to commit or commit an act clearly dangerous to human life, to-wit: shooting a firearm into an occupied motor vehicle that caused the death of Rhett Cyrvin Lathan;
And it is further presented in and to said Court that the said Defendant in the County of Polk and State aforesaid on or about the 12th day of October, 2012, did then and there intentionally or knowingly commit or attempt to commit a felony, to-wit: Deadly Conduct and in the course of and in furtherance of the commission or attempt commit said felony attempt to commit or commit an act clearly dangerous to human life, to-wit: shooting a firearm into an occupied motor vehicle that caused the death of Rhett Cyrvin Lathan[.]1 A jury convicted Leggett of murder and assessed his punishment at ninety-nine
years of confinement and a $10,000 fine. In a single appellate issue, Leggett
complains that the jury charge was defective. We affirm the trial court’s judgment
of conviction.
1 There was a second count on the indictment which was dismissed by the State. 2 FACTUAL BACKGROUND
T.M., a friend of Lathan, testified that on the night of October 12, 2012, he
and Lathan drove T.M.’s truck to the house of another friend, J.S. They heard J.S.
was hosting a party. At the time they pulled up to J.S.’s house, Lathan was driving
T.M.’s truck.
According to T.M., it was about 10:00 p.m. when they arrived at J.S.’s
house. They saw two people standing outside: J.S.’s mother Rachel Leggett, and a
man (later identified as the defendant). Lathan and T.M. concluded there was no
party and decided to leave. Lathan backed up the truck, and as he “started heading
out[,]” someone “started shooting.” T.M. testified that he heard three or four shots
in rapid succession, which he thought came from a rifle, and he heard two of the
shots hit the truck on the driver’s side of the truck. After the shots were fired,
Lathan lost control of the truck and slid into T.M.’s lap, bleeding “from his neck
and head.” T.M. exited the truck on the passenger side and went around to the
driver’s side to control the truck. T.M. then drove to the local hospital in
Livingston because he could tell Lathan needed immediate medical attention. As
he neared the hospital, T.M. called 911 in order to find the emergency room
entrance.
3 Brandi Paske, a 911 operator for the Polk County Sheriff’s Office, testified
that she spoke with T.M. three times that night. According to Paske, when T.M.
called he said “their friend told them he was having a party. When they pulled up,
the parents were outside and just started shooting at them.”
Craig Finegan, a lieutenant in the Criminal Investigation Division of the
Polk County Sheriff’s Office, testified that Timothy Leggett first told him the
Leggetts called 911 right away, but later Finegan learned the Leggetts did not call
911 until twenty minutes after the shooting occurred. Ricardo Leal, a records
custodian for Sprint, testified that Rachel Leggett called J.S. at 10:01 and 10:02
that night, but she never called 911. Leal further stated that twenty minutes after
Rachel’s first call to J.S., phone records reflected that Timothy Leggett called 911.
Wanda Parker, a second 911 operator for the Polk County Sheriff’s Office,
testified that she received the 911 call from Timothy Leggett on the night of
October 12th, in which “he had at first said ‘we shot’; and then, he said ‘she shot’
. . . we had somebody come in our yard . . . causing a big disturbance and we fired
shots.”
Lathan was unresponsive upon admittance to the hospital. He had an
apparent gunshot wound to his head. While Lathan was receiving medical
attention, T.M. waited in the lobby, where he received a phone call from J.S. J.S.
4 asked T.M. why Lathan and T.M. “showed up in his yard and started doing
doughnuts.” T.M. told J.S. they did not do any “doughnuts” and that they were at
the hospital because Lathan “had been shot.”
After providing some treatment, the Livingston hospital transferred Lathan
to Memorial Hermann Hospital in Houston because he required greater care.
Lathan died on October 13th as a consequence of severe brain damage caused by
the gunshot wound to his head. Lathan’s autopsy report listed the manner of death
as homicide.
J.S. testified that his mother, Rachel Leggett, called him about 10:01 p.m. on
October 12th saying, “we shot at someone” because “someone had come in the
yard and done a doughnut.” J.S. further told the jury that Rachel told him, “[i]f
anybody asked, I done it.” J.S. testified that he had not planned to have a party at
his home on the night of the shooting, but he had hosted a birthday party the
previous month. He further stated that Leggett disapproved of his parties and
would become upset if J.S.’s friends came to the house at night.
Rachel also admitted that, on the night of the incident, she told the police “a
number of lies,” including that she was “the one that fired the gun.” She testified
that she did not shoot Lathan, but rather her husband Timothy Leggett shot him;
that she told a lie that night because she “didn’t know that anybody was hurt”; and
5 she said she “loved [her] husband enough to protect him that much.” She said she
could not think of anything Lathan or T.M. did that justified Lathan being shot.
At the time of the incident, Leggett was on probation for his second DWI
offense. The Leggetts’ neighbor, James McGaha, testified at trial that he heard
“more than four” gunshots that evening between 9:30 and 10:00 p.m. and that
Leggett came over to McGaha’s house shortly after the shots were fired. According
to McGaha, Leggett told McGaha that Leggett needed help and was scared, and
that they had shot at someone. McGaha said Leggett told him “they had trouble,
and someone was trying to run over them,” and “they spun out in the yard doing
doughnuts.” McGaha described Leggett as “scared, nervous-looking[,]” and he
overheard Leggett talking with his wife about “being on probation” for DWI and
“[h]e would get in a lot of trouble.”
Leggett’s probation officer testified that, on the date of the shooting, Leggett
was on probation for his second DWI, and one condition of his probation
prohibited him from consuming alcohol. J.S. testified that Leggett was drinking
that day and that “he would get mean” when he drank alcohol. J.S. explained that
he was concerned enough about Leggett’s drinking that day to put the gun away
because he “didn’t want it around him while he [Leggett] was drinking.” Polk
County Sheriff’s Detective Craig Finegan testified that he interviewed Timothy
6 and Rachel Leggett on the night of the shooting, and he thought Timothy Leggett
had been drinking that night because Leggett smelled “strongly” of beer.
Various witnesses testified they saw no evidence of “doughnuts” or other
aggressive driving on the property, including testimony from James McGaha, Polk
County Patrol Deputy Dustin Lowery, Polk County Sheriff’s Office Detective Stan
Galloway, and Texas Highway Patrol Sergeant Samuel Lattner. Lattner, who
worked on accident reconstruction in the case, also testified that the only
aggressive actions appeared to result from leaving the property.
A number of witnesses also testified that Rachel Leggett did not shoot the
gun that night and that Timothy Leggett had confessed that he was the one who
shot Lathan. J.S. testified that a few weeks after the shooting, his mother told him
she “wasn’t the one that had pulled the trigger . . . that Timmy” shot the gun. J.S.
said he asked Timothy Leggett about it, and Leggett replied “yeah, I done it,”
because “they were trespassing and they were spinning out in the yard.” J.S. told
the jury that Timothy said “if [Rachel] could get off with just probation[,] he
wasn’t going to say anything; but if she got anything more than probation, he
[Timothy] was going to go confess to the sheriff’s department.”
One of Leggett’s co-workers testified that although Leggett had initially told
him that Rachel shot the gun at the truck, Leggett later said “Rachel did not shoot
7 the boy.” Another of Leggett’s co-workers testified that Leggett told him “there
was a shooting at his house and that someone had got hit and that his wife admitted
to doing it but that he [Leggett] was the one that actually did it.” The witness also
testified that Leggett told him that Rachel was taking the blame for the shooting
“because he [Leggett] was on probation.”
Detective Finegan testified that in a telephone conversation between the
Leggetts concerning the shooting, recorded while Rachel was in jail, Timothy
Leggett told Rachel “Look. I done it.” Texas Ranger Duff testified that J.S. had a
conversation with Leggett that was covertly recorded, and during that conversation
Leggett “expressed some intention of coming forward and telling the authorities
that he was the person who had committed the murder[.]” Furthermore, Duff
testified that he conducted and recorded a noncustodial interview of Leggett on
May 20, 2013, during which Leggett admitted that he was the shooter. Leggett said
the truck was “doing doughnuts . . . almost ran over Rachel” and “almost hit the
house,” so Leggett said he “just started shooting.” Leggett further said he “ran,
grabbed the gun, and just started firing shots.” Leggett said he did not shoot until
the truck had “spun back around . . . and was heading back out.” Leggett also said
that during the time after dinner and before 10:00 p.m. that night, he had consumed
“five [or] six” beers. During the interview, Leggett agreed that he intended to shoot
8 at the truck and that he knew someone was in the truck. Leggett also admitted to
another co-worker he shot the gun. This co-worker testified at the trial that
“[Leggett] just told me that he had done it” and “his wife was originally going to
take the fall” for the shooting.
The trace evidence laboratory manager for the Harris County Institute of
Forensic Science testified concerning the analysis of gunshot residue. He testified
that the analysis on the gunshot residue specimen taken from Rachel Leggett was
“negative” and showed “[n]o particles confirmed as having a composition
characteristic of GSR [gunshot residue].” As to the gunshot residue specimen taken
from Timothy Leggett, he testified it “[c]onfirmed as having composition
characteristic of GSR which could have resulted from activities such as firing a
weapon” and “[t]he results of this examination are determined inconclusive.”
Testimony from various witnesses confirmed the presence of trailers,
campers, or RVs on the Leggetts’ property the night of the shooting. J.S. testified
that, on the night of the shooting, “three or four” RVs or camper trailers were on
the Leggetts’ property. For example, former detective Galloway described the
Leggetts’ property as having a “travel trailer on [the] side and then a white pickup
truck and a little storage shed and another little RV in the back before you get to
the barn.” Deputy Lowery testified that multiple campers were on the Leggetts’
9 property the night of the shooting, and one had a “new scratch” on it that he
believed was from the ricochet of a bullet. McGaha testified that Leggett “said
something [to McGaha] about checking bullet holes in my house to see if I had any
bullet holes in my house where he had shot.” In his recorded interview, Leggett
also said “we had all the travel trailers there” and Leggett thought a “bullet even
ricocheted off one of the travel trailers[.]”
Near the end of the State’s case, following the Texas Ranger’s testimony
concerning his recorded interview with Leggett, Leggett’s attorney informed the
court “we will stop and no longer contest the guilt issue in this case[,]” that “we,
basically, will shut down and . . . not cross-examine the rest of the witnesses[.]”
For his closing argument, Leggett’s attorney stated “. . . in accordance with the
directions that I have received from my client to cease contesting guilt, I would
merely say at this point to please consider everything you have heard, consider the
Judge’s instructions and reach the verdict you think is appropriate.” The jury
returned a verdict finding Leggett guilty of murder and assessed punishment at
ninety-nine years plus a fine of $10,000. Leggett appealed.
ANALYSIS
Leggett raises only one issue on appeal. He contends that the jury charge
was defective because the charge authorized conviction for murder on facts that do
10 not constitute murder under section 19.02(b) of the Texas Penal Code. Tex. Penal
Code Ann. § 19.02(b) (West 2011). He argues that the jury charge described
alternate theories under which the jury could find Leggett guilty of murder, and
that one of the four theories (the criminal mischief instruction) was defectively
submitted. The charge contained the following language:
I. Murder.
Our law provides that a person commits the offense of Murder:
1) if he intentionally or knowingly causes the death of an individual; or,
2) if he intends to cause serious bodily injury and intentionally or knowingly commits an act clearly dangerous to human life that causes the death of an individual; or,
3) if he commits or attempts to commit felony criminal mischief and in the course of and in furtherance of the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual; or,
4) if he commits or attempts to commit felony deadly conduct and in the course of and in furtherance of the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
...
11 III. Felony Criminal Mischief and Felony Deadly Conduct.
A person commits the offense of felony Criminal Mischief if, without the effective consent of the owner he intentionally or knowingly damages or destroys the tangible property of the owner and if the damage or destruction is caused by a firearm.
A person commits an offense of felony Deadly Conduct if he knowingly discharges a firearm at or in the direction of a vehicle and is reckless as to whether the vehicle is occupied.
....
Section 28.03 of the Texas Penal Code provides, in relevant part, that a
person commits the offense of criminal mischief “if, without the effective consent
of the owner[,] . . . he intentionally or knowingly damages or destroys the tangible
property of the owner[.]” See Tex. Penal Code Ann. § 28.03(a)(1) (West 2011).
Under section 28.03(b)(4)(B) the offense is a “state jail felony” if the amount of
pecuniary loss is less than $1,500 and “the property damaged or destroyed is a
habitation and if the damage or destruction is caused by a firearm or explosive
weapon[.]” Id. § 28.03(b)(4)(B). Appellant argues that the jury charge described
only misdemeanor criminal mischief because it did not include the requirement of
damage to a habitation. Therefore, Leggett argues the jury charge permitted the
jury to convict Leggett on proof of facts not constituting felony murder. Leggett
admits that he made no objection to the jury charge. But he contends that the error
12 he identifies for the first time on appeal is a fundamental error, and he argues the
error is so egregious and created such harm that he has not had a fair and impartial
trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
When reviewing alleged charge error, we must first determine whether error
existed in the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009).
When, as here, the appellant did not object to the alleged error, we will reverse
only if the error is “‘so egregious and created such harm’” that the defendant did
not receive a fair and impartial trial. Id. at 26 (quoting Almanza, 686 S.W.2d at
171). We consider (1) the entire jury charge, (2) the state of the evidence, including
contested issues and the weight of probative evidence, (3) the parties’ arguments,
and (4) any other relevant information found in the record as a whole. Allen v.
State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). The record “must demonstrate
that the appellant has suffered actual, not just theoretical, harm from the erroneous
jury instruction.” Id. at 268 (citing Almanza, 686 S.W.2d at 174) (emphasis in
original).
In Sanchez v. State, 376 S.W.3d 767, 770 (Tex. Crim. App. 2012), the Court
of Criminal Appeals addressed the issue of alleged charge error in a murder case
where the charge included alternative theories of guilt. The Sanchez court stated:
In a jury charge alleging alternative theories, harm must be measured “at least in part, against the likelihood that the jury’s verdict was 13 actually based upon an alternative available theory of culpability not affected by the erroneous portions of the charge.” Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). When a jury returns a general guilty verdict on an indictment charging alternative methods of committing the same offense, the verdict stands “if the evidence is sufficient to support a finding under any of the theories submitted.” Kitchens [v. State], 823 S.W.2d [256,] 258-59 [(Tex. Crim. App. 1991)]; see also Rosales [v. State], 4 S.W.3d [228,] 231 [(Tex. Crim. App. 1999)]. “[T]he presence of overwhelming evidence of guilt plays a determinative role in resolving the issue” and may be considered when assessing jury-charge error. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).
376 S.W.3d at 775.
Assuming, without deciding, that the criminal mischief instruction was
incomplete, we conclude that the harm, if any, was not egregious. Moreover, there
were still three other alternative theories of murder presented in the charge, and
Leggett raises no complaint about the other alternative theories. Upon review of
the entire record, we conclude there is overwhelming evidence of guilt and
sufficient evidence to support a finding under one or more of the other three
alternative theories submitted to the jury. There was sufficient evidence submitted
to the jury to support a finding that Leggett intentionally or knowingly caused the
death of Lathan; that with intent to cause serious bodily injury, he committed an
act clearly dangerous to human life that caused the death of Lathan; and that he
committed or attempted to commit felony deadly conduct and in the course of and
14 in the furtherance of the commission or attempt, he committed or attempted to
commit an act clearly dangerous to human life that caused the death of Lathan. See
Tex. Penal Code Ann. §§ 19.02(b)(1), (2), and (3); 22.05 (West 2011).
Viewing the charge in its entirety, we conclude that it weighs against a
finding that Leggett was denied a fair and impartial trial. See Sakil, 287 S.W.3d at
26; Allen, 253 S.W.3d at 264. Similarly, the weight of the probative evidence is
substantial and supports the jury’s finding of guilt. See Allen, 253 S.W.3d at 264.
The overwhelming evidence of guilt in this case weighs heavily against finding
that the alleged charge error denied Leggett a fair and impartial trial. See id.
Next, we review the arguments of counsel and other relevant information
found in the record. See id. Notably, in the guilt-innocence phase of the trial, and
after multiple witnesses testified, Leggett instructed his attorney to stop contesting
his guilt, and he made it known to the jury in his closing argument
[i]n accordance with the directions that I have received from my client to cease contesting guilt, I would merely say at this point to please consider everything you have heard, consider the Judge’s instructions and reach the verdict that you think is appropriate. And we’ll go from there.
The physical evidence and the testimony from the witnesses, Leggett’s
multiple admissions to third parties that he was the shooter, and his confession to
authorities that he shot Lathan without any legal justification and then persuaded
15 his wife to falsely accept responsibility for the crime, provided sufficient evidence
to support the jury’s guilty verdict. There is no indication in the record that would
support the appellant’s conclusory and hypothetical statement that “[t]here is a
reasonable probability that at least one of the jurors voted to convict Leggett upon
the theory that he had committed an act clearly dangerous to human life in the
course of committing, or attempting to commit, misdemeanor criminal mischief.”
We find it likely that the jury’s verdict was actually based upon an
alternative available theory of culpability not affected by the portion of the charge
pertaining to criminal mischief. Viewing the arguments of counsel and other
relevant information in the record as a whole, we conclude that they also weigh
against a finding that Leggett was denied a fair trial. See id. Based on the record
before us, we further conclude that Leggett was not denied a fair and impartial
trial, and he has failed to establish harmful error. See Sakil, 287 S.W.3d at 25-26.
We overrule Leggett’s issue, and we affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on October 28, 2014 Opinion Delivered January 14, 2015 Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ. 16