                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                             NO. 02-09-00237-CR


JAMES CLAYTHAN BLEVINS                                         APPELLANT

                                          V.

THE STATE OF TEXAS                                                  STATE

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            FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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               MEMORANDUM OPINION ON REHEARING1

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      We have considered Appellant’s motion for rehearing and motion for

reconsideration en banc of our opinion issued August 31, 2010. We deny both

motions, withdraw our August 31, 2010 opinion and judgment, and substitute

the following.




      1
          See Tex. R. App. P. 47.4.
        In three issues, Appellant James Claythan Blevins appeals his convictions

for attempted murder and felony violation of a protective order. We affirm.

        After threatening to kill his wife Amy and their two young sons, Appellant

moved out of the house and signed an agreed protective order prohibiting him

from coming within three city blocks of the home. The next month, Appellant

violated the protective order and Amy filed for divorce. Appellant later pleaded

guilty to the misdemeanor offense of violating a protective order.

        Two months later, on June 13, 2008, Amy was at the house packing up

to move. Jason Myers, a friend of her sister’s husband, had offered his pickup

truck to help. He had parked the truck out front and was inside helping her

pack. Around seven in the evening, Appellant appeared at the front door and

walked into the house. When he saw Amy, he started screaming at her. And

when he saw Jason rounding the corner from the dining room, he shoved Amy

aside and attacked the former Marine and Iraqi war veteran, punching him in the

face.    Jason subdued Appellant by holding him against the wall as Amy

announced that she was calling the police. Appellant warned her that he would

kill her if she did, and when Jason released his hold on him, Appellant stormed

out of the house, climbed into his car, and sped away. He called his mother

and told her that he was going to get his guns and go kill Amy.




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      Wichita Falls Police Officer Robert Rosdahl responded to Amy’s 911 call.

He and Amy stood in her driveway filling out his report when Appellant’s car

passed by and made the turn onto her street. When the driver’s side came into

view, Amy saw that Appellant was leaning out the window with a shotgun. As

Appellant pulled in front of the house, Officer Rosdahl drew his service weapon

and ordered him to put the shotgun down. Appellant complied, dropping the

shotgun after a brief standoff. As the officer wrestled him into the patrol car,

Appellant yelled to Amy that no matter how long he was locked up, he would

get out, get another gun, and come kill her.

      After securing Appellant in the patrol car, Officer Rosdahl retrieved the

shotgun from Appellant’s car. It was loaded with four .410 shotgun shells.

Underneath the driver’s seat, the officer also found a knife and a Derringer

chambered for a .410 shotgun shell.

      The grand jury indicted Appellant for attempted murder, retaliation, and

felony violation of a protective order. A jury found him not guilty of retaliation

but guilty of attempted murder and felony violation of a protective order. It

assessed his punishment at eleven years’ confinement with a $5000 fine for

attempted murder and five years’ confinement for violation of a protective

order. The trial court sentenced Appellant accordingly.




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      In his first issue, Appellant contends that the evidence is insufficient to

sustain the verdict for attempted murder. In reviewing the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most

favorable to the prosecution in order to determine whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt. 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).

      One of the essential elements of attempted murder is that, while acting

with specific intent to commit murder, the defendant does an act amounting to

“more than mere preparation” that tends but fails to effect the murder. See

Tex. Penal Code Ann. § 15.01(a) (Vernon 2003). Appellant claims that the

evidence is insufficient to prove this essential element. He argues:

      The evidence produced at trial, when viewed in the light most
      favorable to the verdict, showed that after [Appellant] stated that
      he intended to kill his estranged wife, he went home, retrieved his
      shotgun, got into his vehicle and drove towards her home. While
      [Appellant] was still approximately 40 yards away from the house,
      however, he was intercepted by Officer Rosdahl. Officer Rosdahl
      testified that [Appellant] did not attempt to fire the weapon [and]
      was unable to point the firearm out of the window.

[Emphasis added]

      Appellant’s account of the evidence produced at trial misapplies the

standard of review, which requires us to view the evidence in the light most



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favorable to the verdict. He entirely ignores Amy’s testimony that she saw

Appellant with “a shotgun hanging out the driver’s side window” as he drove

around the corner; that Officer Rosdahl turned around and noticed “the shotgun

hanging out the window”; that although Appellant did not fire the weapon, “he

aimed it”; and finally, that he “was pointing it” at her. Furthermore, Jason

testified that as Appellant pulled up he could see the “firearm coming around

and out the window”; that “he had it out the window pointed”; that “he looked

very intent on shooting”; and that if the officer had not been there nothing

would have stopped Appellant from shooting Amy.

      In Godsey v. State, the court of criminal appeals noted that the purpose

and usefulness of the criminal attempt statute is that it permits law

enforcement personnel to intervene and prevent the harm intended and that the

precise intent of the statute is to punish action for the intended offense while

allowing intervention before an act constituting the offense itself occurs. 719

S.W.2d 578, 583 (Tex. Crim. App. 1986). The case before us is an example

of the legislature’s “precise intent” as set out in the criminal attempt statute put

to good effect.    As Jason testified, had Officer Rosdahl not been there to

intervene, there would have been little or nothing to have stopped Appellant

from committing murder.




                                         5
      Although Officer Rosdahl’s testimony that Appellant could not manage

to get the shotgun pointed out the window—despite trying to—appears to

contradict testimony from Amy and Jason that Appellant pointed it out the

window, we presume the jury resolved the apparent conflicts in favor of the

prosecution, and we defer to that resolution. See Jackson, 443 U.S. at 319,

326, 99 S. Ct. at 2789, 2793; Clayton, 235 S.W.3d at 778. Thus, viewing

the evidence in the light most favorable to the verdict, we hold that the

evidence is sufficient to show that Appellant took a loaded shotgun to Amy’s

house intending to kill her with it and that his act amounted to more than mere

preparation that tended but failed to effect Amy’s murder. Accordingly, we

hold that the evidence is sufficient to support the verdict, and we overrule

Appellant’s first issue. See Godsey, 719 S.W.2d at 583.

      In his second and third issues, Appellant contends that the evidence is

legally and factually insufficient to support his conviction for felony violation of

a protective order by committing family violence against Amy because Amy

testified that when Appellant shoved her, she did not feel any pain. Because

the court of criminal appeals has recently held that sufficiency of the evidence

claims will only be reviewed under the standard set out in Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789, we consider the evidence in the light most favorable




                                         6
to the verdict and not in a neutral light. See Brooks v. State, 323 S.W.3d 893,

894–95 (Tex. Crim. App. 2010).

      Appellant argues that although family violence includes acts intended to

result in assault as defined by Texas Penal Code section 22.01(a)(1) and (a)(2),

it excludes assault defined by subsection (a)(3).

      A person against whom a protective order is in place commits the offense

of violating a protective order if he knowingly or intentionally commits an act

of family violence. Tex. Penal Code Ann. § 25.07(a)(1) (Vernon Supp. 2010).

“Family violence” has the meaning assigned by chapter 71 of the family code,

which defines it as “an act by a member of a family or household against

another member of the family or household that is intended to result in physical

harm, bodily injury, assault, or sexual assault . . .” Id. § 25.07(b)(1); Texas

Fam. Code Ann. § 71.004(1) (Vernon 2008) (emphasis added). Under the plain

meaning of penal code section 22.01(a)(3), assault includes intentionally or

knowingly causing contact with another when the person knows or should

reasonably believe that the other will regard the contact as offensive or

provocative. Tex. Penal Code Ann. § 22.01(a)(3) (Vernon Supp. 2010). We

reject Appellant’s invitation to hold that assault includes less than what the

legislature wrote into the plain language of the statute. Applying the plain

meaning, therefore, we hold that the evidence is sufficient to support the jury’s

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implied finding expressed in its verdict that Appellant’s shoving Amy, whether

or not she felt any pain, was intended to result in intentional or knowing

offensive physical contact. Accordingly, we overrule Appellant’s second and

third issues.

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

judgment.




                                          ANNE GARDNER
                                          JUSTICE

PANEL: GARDNER and MEIER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)


DELIVERED: December 30, 2010




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