                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-066-CR


JAMES ALLEN GROVE                                               APPELLANT

                                             V.

THE STATE OF TEXAS                                                    STATE

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            FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

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                         MEMORANDUM OPINION 1

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     A jury convicted Appellant James Allen Grove of attempted capital

murder and assessed his punishment at life imprisonment.      The trial court

sentenced him accordingly. In four issues, Appellant challenges the legal and

factual sufficiency of the evidence and the trial court’s order granting the

State’s motion to change venue. Because we hold that the evidence is legally



     1
         … See T EX. R. A PP. P. 47.4.
and factually sufficient and that the trial court did not abuse its discretion by

changing venue, we affirm the trial court’s judgment.

                              S TATEMENT OF F ACTS

      The evidence shows that on the afternoon of May 21, 2006, Appellant

and his dog walked down the streets of Breckenridge, Stephens County, Texas.

Appellant was carrying a double-bladed ax. He told a neighbor who lived less

than a block from him “that he was tired of all the electronic BS [and] that he

was heading down to the police station and was going to take care of business

and kill somebody.”    Appellant had a “normal” look on his face. After the

conversation, Appellant walked south.         The neighbor called the police

department to report that Appellant “was coming down with an ax to take care

of the electronics” and also mentioned the dog, but he did not say anything

about Appellant’s threat to kill anyone.

      Meanwhile, Appellant told another neighbor who lived south of him and

who also saw him walking down the street and carrying an ax that he was

“going to go up to the police department and get rid of some of them cops

down there.”    His demeanor was “normal.”       That neighbor did not have a

telephone, so she drove to the courthouse to let the police know that Appellant

was coming. By the time she got there, she heard gunshots, so she knew that

something had already happened.

                                       2
      DPS Trooper Grant Atkinson, the complainant, was in the dispatch office

of the Breckenridge Police Department when the call came in. He was wearing

his uniform. Soon after the dispatcher radioed the information to other officers

and requested assistance, Atkinson saw Appellant outside, on the other side of

the police station’s outer door. As Atkinson walked from the interior door to

the outer door, he saw Appellant turn around and head away from the building.

But when Atkinson exited the building, Appellant turned back around, facing

him. Atkinson drew his pistol and repeatedly screamed at Appellant, who was

about twelve feet away, to drop the ax.         Then Appellant yelled, “Shoot

me . . . [;] just shoot me.”

      At that point, Appellant was holding the ax over his shoulder. But as the

incident progressed, Appellant “pulled the ax down in front of him, put both

hands on it, and took a step towards [Atkinson].       The blade was pointing

towards [Atkinson] like in a woodchopper stance, and . . . that . . . is when

[Atkinson] fired [his] weapon.” Appellant did not drop the ax until after the

third shot.

      Atkinson answered affirmatively when asked whether Appellant was

close enough to him that he could have gotten to Atkinson really fast. Atkinson

also testified that he was trained about a “sphere of capability,” or area around

him in which he needed to be careful because he could be injured before he

                                       3
would be able to shoot, and that Appellant was within that sphere. Atkinson

described Appellant’s action in stepping forward with the ax as fast and

aggressive but conceded that Appellant did not swing the ax at him, verbally

threaten to kill him, or injure him.   But Atkinson also testified that after

Appellant raised the ax in an aggressive manner, he believed that Appellant was

about to attack him with it, that Appellant was about to hit him with the ax,

and that “[h]e could have even thrown the ax.” Atkinson fired the first shot

when Appellant “had positioned [the ax] in front of him with the blade pointed

towards [Atkinson].”

      John Williams, a firefighter who was standing behind Atkinson during the

incident, testified that at first, Appellant turned around with his back to

Atkinson while Atkinson still had his gun pointed at Appellant and was telling

him to drop it, but then Appellant suddenly turned to face them again with the

ax raised. Appellant had a “real belligerent look on his face” when he took a

step towards them “with the ax raised up.” He also testified that Appellant had

“choked up” on the ax and was in the process of taking another step toward

them before Atkinson shot him.

      The crime scene investigator, a Texas Ranger, determined that Appellant

had been standing about twelve and a half feet from Atkinson when Atkinson

shot him and that when an edged weapon is involved, the “danger zone” is

                                       4
considered to be a distance of twenty-one feet. He also testified that an ax is

a deadly weapon.

      The EMS paramedic who transported Appellant to the hospital testified

that Appellant told him during the ride that his father had been shot, that now

he was just like his dad, and that Appellant had gotten what he wanted.

      Appellant has a history of mental illness. Evidence shows that before the

offense, he had been in and out of treatment facilities from 1996 to January

2004, that he had been diagnosed with “[b]ipolar I disorder, manic phase,

severe with psychotic features; caffeine-induced anxiety disorder; alcohol

dependence; [and] sexual disorder, not otherwise specified,” and at another

time had been diagnosed with schizophrenia, paranoid-type. After the offense

he was diagnosed with, “[s]chizoaffective disorder, largely remitted with

treatment[, t]he most recent episode manic,” a personality disorder, not

otherwise specified, with paranoid traits, and “alcohol dependence in

remission.” There was also evidence that bipolar disorder can be controlled by

medication but does not go away.

      The evidence showes that Appellant had tried to hang himself while in jail

in 2004. His half-brother, who lived out of state, testified that when he visited

Appellant within the three years preceding trial, he found that Appellant was

living in a house without running water and without enough food. Appellant

                                       5
had torn all the water pipes out of his house after an altercation with the water

department.

      About two months before the offense before this court, Appellant had

told a neighbor that the police and FBI had been bugging his house and had

previously yelled to other neighbors “to stop sending radio waves to his mind.”

Appellant told the nurse who treated him while he was confined in jail for this

offense that he heard voices and saw UFOs and that we have aliens on Earth.

      Michael Jumes, the Director of Psychology at the North Texas State

Hospital, reviewed Appellant’s previous psychiatric records, and he also

evaluated Appellant after the offense. Jumes testified that he believed that

Appellant’s mental illness is “consistent with a mental disease under . . . the

statute that defines insanity” but also testified that Appellant “had the capacity

to appreciate that his behavior was wrong and that it was provocative and

consequently it would have consequences.” Jack Price, the State’s expert,

testified that at the time of his evaluation of Appellant for trial, Appellant said,

“I know what’s right and wrong. I know the law. Shooting a gun at another

person is wrong. Driving while intoxicated is wrong. Public intoxication is

wrong. Assault and battery is wrong. Taking an ax to the police department

is wrong. It’s a deadly weapon.” Price also opined,




                                         6
      [T]here was nothing, no mental illness, so severe that it would have
      precluded him at the time from knowing right from wrong. He did
      have some symptoms of mental illness. He was paranoid. He did
      have some really bizarre ideas, but none of them that I was able to
      find any evidence of had any connection to not knowing [that]
      taking an ax to the police department and threatening them is
      wrong.

 S UFFICIENT E VIDENCE TO S HOW THAT A PPELLANT A TTEMPTED TO S TRIKE A TKINSON

      In his second issue, Appellant contends that the evidence is legally and

factually insufficient to show that he attempted to strike the complainant with

an ax on May 21, 2006, as alleged in the indictment. Appellant concedes that

he stepped toward Atkinson with the ax raised but claims that he did not

position himself close enough to the trooper to actually hit him and that there

is no evidence that he swung the ax or attempted to strike the trooper with the

ax.

      Section 15.01 of the penal code provides that a person commits the

offense of criminal attempt if, “with specific intent to commit an offense, he

does an act amounting to more than mere preparation that tends but fails to

effect the commission of the offense intended.” 2      Applying the appropriate

standards of review,3 we conclude that the evidence that Appellant brought the



      2
          … T EX. P ENAL C ODE A NN. § 15.01(a) (Vernon 2003).
      3
      … See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (both

                                         7
ax up into a woodchopping stance and advanced on Atkinson, penetrating the

danger zone, is legally and factually sufficient to show that Appellant attempted

to strike Atkinson with the ax. We overrule Appellant’s second issue.

     S UFFICIENT E VIDENCE OF A PPELLANT’S S PECIFIC INTENT TO K ILL A TKINSON

      In his third issue, Appellant contends that the evidence is legally and

factually insufficient to show that he specifically intended to kill the

complainant on May 21, 2006. Appellant contends that he did not have the

specific intent to kill anyone at the police station but instead wanted the police

to kill him, as evidenced by his repeated entreaties to Atkinson and his

statements to the paramedic and psychiatric professionals after the incident.

In addition to this testimony, however, the jury heard that Appellant had told

one neighbor that he was headed to the police station to “kill somebody” and

had told another one that he “was going to go up to the police department and

get rid of some of them cops down there.”

      Appellant also argues that the State failed to prove that he had the

requisite state of mind at the time of his offense because of “the overwhelming



providing legal sufficiency standard of review); Watson v. State, 204 S.W.3d
404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799
(Tex. Crim. App. 2005); Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.
2003); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (all
providing factual sufficiency standard of review).


                                        8
evidence of his diminished capacity.” As the Texas Court of Criminal Appeals

has pointed out,

      Texas does not recognize diminished capacity as an affirmative
      defense i.e., a lesser form of the defense of insanity. In contrast,
      the diminished-capacity doctrine at issue in this case is simply a
      failure-of-proof defense in which the defendant claims that the
      State failed to prove that the defendant had the required state of
      mind at the time of the offense. 4

The jury was the sole judge of the credibility of the evidence. 5 Based on the

evidence detailed above, and applying the appropriate standards of review, 6 we

hold that the evidence is legally and factually sufficient to show that Appellant

had the requisite specific intent to commit capital murder.          We overrule

Appellant’s third issue.

     S UFFICIENT E VIDENCE TO S UPPORT J URY’S R EJECTION OF INSANITY D EFENSE

      In his fourth issue, Appellant contends that the jury’s rejection of his

insanity defense was so against the great weight and preponderance of the

evidence as to be manifestly unjust. Section 8.01(a) of the penal code provides



      4
          … Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005).
      5
      … Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d
at 778; Johnson, 23 S.W.3d at 8–9.
      6
      … See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778 (both providing legal sufficiency standard of review); Watson,
204 S.W.3d at 414; Drichas, 175 S.W.3d at 799; Sims, 99 S.W.3d at 603;
Johnson, 23 S.W.3d at 11 (all providing factual sufficiency standard of review).

                                        9
that “[i]t is an affirmative defense to prosecution that, at the time of the

conduct charged, the actor, as a result of severe mental disease or defect, did

not know that his conduct was wrong.” 7 Appellant alleges that he has proved

by a preponderance of the evidence that he was insane at the time of the

alleged offense and that he has shown that, at the time of the offense and as

the result of his mental illness, he did not know that his conduct was wrong.

Our review of the record, however, does not reveal any evidence that Appellant

did not know that his conduct was wrong at the time of the act, nor does

Appellant point to any such evidence. Based on the applicable standard of

review,8 we hold that the verdict is not so against the great weight of the

evidence as to be manifestly unjust. We overrule Appellant’s fourth issue.

                 C HANGE OF V ENUE W ITHIN T RIAL C OURT’S D ISCRETION

      In his first issue, Appellant contends that the trial court abused its

discretion by granting the State’s motion to change venue. Article 31.02 of the

code of criminal procedure provides,

      Whenever the district or county attorney shall represent in writing
      to the court before which any felony or misdemeanor case
      punishable by confinement, is pending, that, by reason of existing



      7
          … T EX. P ENAL C ODE A NN. § 8.01(a) (Vernon 2003).
      8
      … See Meraz v. State, 785 S.W.2d 146, 154–55 & n.2 (Tex. Crim. App.
1990).

                                          10
      combinations or influences in favor of the accused, . . . a fair and
      impartial trial as between the accused and the State cannot be
      safely and speedily had; . . . the judge shall hear proof in relation
      thereto, and if satisfied that such representation is well-founded
      and that the ends of public justice will be subserved thereby, he
      shall order a change of venue to any county in the judicial district
      in which such county is located or in an adjoining district.9

We review the trial court’s ruling on the State’s motion to change venue for an

abuse of discretion.10

      After Appellant filed a notice of his intent to raise the insanity defense,

the State filed its motion to change venue, contending that because of “existing

combinations and influences in [Stephens County] in favor of [Appellant], . . .

a fair and impartial trial” could not be had there. As Appellant acknowledges,

a local grocery store owner testified that he thought Appellant had mental

issues because he had seen Appellant riding a bicycle while wearing a dress.

The witness testified that he believed others in the community held the same

opinion. A legal secretary also testified that she thought Appellant had mental

problems because she saw him riding a bicycle while wearing a dress. The

Sheriff of Stephens County testified that most people in Breckenridge were




      9
          … T EX. C ODE C RIM. P ROC. A NN. art. 31.02 (Vernon 2006).
      10
        … See Aranda v. State, 736 S.W.2d 702, 705 (Tex. Crim. App. 1987),
cert. denied, 487 U.S. 1241 (1988); Gregory v. State, 37 S.W. 752, 752 (Tex.
Crim. App. 1896).

                                         11
familiar with Appellant and would be predisposed to believe that he had mental

health issues.

         Appellant argues that “[t]he testimony elicited from the witnesses did not

show any favoritism in the community on [his] behalf . . . [;] to the contrary,

the opinions were that [he] was looked on with disdain and disfavor.” Given

his plan to raise the insanity defense, however, the Breckenridge citizens’

beliefs that he had mental heath issues could reasonably be seen as “influences

in favor of the accused.” 11 We therefore hold that the trial court did not abuse

its discretion by changing venue to Young County and overrule Appellant’s first

issue.

                                         C ONCLUSION

         Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.

                                                        PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 26, 2008




         11
              … See T EX. C ODE C RIM. P ROC. A NN. art. 31.02.

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