                                    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
