Wheaton v. State

• Decision Date: 01 March 2004
• Docket Number: No. 13-02-426-CR.,13-02-426-CR.
• Citation: 129 S.W.3d 267
• Parties: Peter Hansen WHEATON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

129 S.W.3d 267

Peter Hansen WHEATON, Appellant, v. The STATE of Texas, Appellee.

No. 13-02-426-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 1, 2004.

Jesus L. Santos, Sinton, Juan Martinez Gonzales, Alice, for appellant.

Michael Hess, Asst. Dist. Atty., Patrick L. Flanigan, Dist. Atty., Sinton, for state.

Before the Court en Banc.

OPINION

Opinion by Justice RODRIGUEZ.

A panel of this Court issued a memorandum opinion and a concurring memorandum opinion on January 22, 2004. Without filing a motion for rehearing, appellant, Peter Hansen Wheaton, filed a petition for discretionary review arguing that the Malik standard should have been applied in this case. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). On February 17, 2004, the Court, sitting en banc, issued an order sua sponte withdrawing the panel's memorandum opinion and concurrence. See Tex.R.App. P. 50. We now substitute the following as the opinion of the Court. See id.

Appellant brings this appeal following a conviction for the offense of deadly conduct. See Tex. Pen.Code Ann. § 22.05(b) (Vernon 2003). Pleading not guilty and waiving his right to trial by jury, the case was tried to the bench. The trial court found appellant guilty of the felony offense of deadly conduct and assessed punishment at four years incarceration, probated for a term of four years. By two points of error, appellant complains of the legal and factual sufficiency of the evidence to support his conviction. Using Malik to measure the sufficiency of the evidence, we affirm.

I. FACTUAL BACKGROUND

Appellant's wife, Frances Sue Wheaton, testified that on October 27, 2001, she was at home with her husband. He was drunk and they argued. Two or three hours later, Mrs. Wheaton was either in the kitchen or lying on the living room couch when she heard a gunshot. It came from appellant's room. Afraid appellant had killed himself and not wanting to go into his room, Mrs. Wheaton called 911 using the telephone in the dining room. Mrs. Wheaton testified that while she was on the phone appellant came into the room and said, "Boy, that sure was loud." Mrs. Wheaton told the dispatcher that appellant was all right and no one was needed, but a unit was already there. When Mrs. Wheaton went to open the front door appellant again appeared from the bedroom, pointed a gun in her direction, and said, "If you open that door, you're dead." Mrs. Wheaton testified that she returned to the dining room and told the dispatcher what appellant had said. When appellant went back into his bedroom, Mrs. Wheaton told him she was taking the dog out. She testified that appellant passed out in the bedroom. Mrs. Wheaton also testified that when she left the house she did not see an officer in the back; she only saw an officer out front. Appellant told her the gun went off accidentally when he was trying to unload it, and she believed him.

Several Ingleside Police Department officers testified at trial. Sergeant David Perkins, one of the first police officers to arrive at the house, and Detective Sergeant David Zamora entered the house approximately six hours after they arrived. Detective Zamora testified that they decided they would have to go in when appellant started shutting the curtains and cutting off the lights, acting as if he was not coming outside. After entering the house, Detective Zamora handcuffed appellant, made sure appellant did not have weapons on him, and cleared the rest of the house.

Because appellant complained that his chest hurt, a medic unit was called. After appellant was placed in the ambulance, Detective Zamora heard him say that it was a misunderstanding, that he was cleaning his weapon when it accidentally went off.¹ Detective Zamora explained that when a gun is cleaned it must be emptied and cleaned in a downward position; a gun is not cleaned in an upward position when it is loaded. Detective Zamora testified that in this case, however, the gun had been fired while in a raised position.

The next day Detective Zamora returned to the residence to take photographs. A number of the photographs, admitted as trial exhibits, illustrated the trajectory of the bullet from the bedroom through the wall and into the living room to a final resting point directly above the living room sofa. Detective Zamora explained that it was very possible that a person of average height seated or standing in the living room could have been hit by the bullet from the mid-torso to the head. He also testified that a person leaving the bedroom and walking by the wall between the bedroom and living room could definitely have been hit.

When asked, "Do you have any evidence at all that Mr. Wheaton knew where [Mrs. Wheaton] was when he fired—that bullet went off?" Detective Zamora responded as follows:

Just the comments that Ms. Wheaton made that they had just had an argument. She was walking out of the bedroom going into the living room and then she heard a shot fired. She didn't know if he had shot himself or if....

* * * * *

She didn't know what happened. There was [sic] a lot of what-ifs. She was scared.

Detective Zamora acknowledged he did not put this statement in a written report because he was only part of the entry team. Nonetheless, because appellant could have seen someone leaving his room and the area, Detective Zamora concluded that "if [Mrs. Wheaton] was walking in front of [the wall between the bedroom and the living room], the trajectory was aimed toward her."

Officer Joe James, who covered the back of the residence during the standoff, testified that he saw Mrs. Wheaton walk out of the residence. As she came from the house, Officer James heard a man inside the residence yelling, "I'm going to kill you." The man repeated this three times. Mrs. Wheaton said something in response and then told the man she was just going to walk the dog and she would be right back. Officer James asked Mrs. Wheaton to go around the house, which she did.

Officer Jason Arrington knew Mrs. Wheaton. When Mrs. Wheaton came out of the house, she was directed to Officer Arrington to seek cover. Officer Arrington testified Mrs. Wheaton appeared upset. She was crying a little bit and shaking.² Mrs. Wheaton told Officer Arrington her husband had been drinking for several days, they had been arguing, he had threatened to hurt her, and he had a gun. Officer Arrington told Mrs. Wheaton to go down the street to stay with her neighbors.

Finally, Detective Gracie Taylor testified that after appellant was taken into custody she interviewed Mrs. Wheaton at the residence as part of her investigation. When Detective Taylor asked if she could look for the handgun, Mrs. Wheaton went into the bedroom and pointed out where she thought it would be.³ From between the box springs and the mattress, Detective Taylor recovered the revolver that she believed had been fired that evening. She testified that the gun had four live rounds and one spent round. There was one empty chamber.

Testifying in his own defense, appellant stated he did not remember much of the day in question. He thought he argued with his wife, but that it was at least two to three hours before the incident according to what Mrs. Wheaton told him. Appellant remembered sitting on the edge of the bed and trying to rotate the cylinder out to unload the shells. He did not realize "the thing was cocked." Appellant testified that he did not know why he had the gun out, but it may have been because he thought a loaded gun under the mattress was not safe. When the gun went off it "practically blinded" him, and he could not hear. He remembered going out of the room after the shot was fired and saying how loud it was. Appellant did not remember putting the gun back underneath his mattress although that is what he thinks he did. He did not remember pointing a gun at his wife in a threatening way, but testified that he would not point a gun at anybody unless he was going to shoot them. Appellant did not recall telling Mrs. Wheaton he would kill her. Although he did not remember saying "You'd be dead if you open the door," he testified it was possible he said it because Mrs. Wheaton said he did.

Appellant testified that the bullet went through the living room wall right next to the television and into the wall at an angle above the love seat. He further testified that he did not know where Mrs. Wheaton was when the gun discharged. Appellant said he could not see Mrs. Wheaton from where he was in the bedroom. She was on the far side of the living room. Appellant testified that when he went into the living room, he saw Mrs. Wheaton standing by the couch. Later appellant testified that she was sitting in the living room.⁴

Appellant testified he did not have the gun in his hand when he saw the police. Appellant explained he was asleep in the front bedroom of the house during the standoff. He did not hear anything. He acknowledged that while he was in jail being given a hard time about the shooting, he told police "I could have shot a couple of you probably before you got me.... But I wasn't out to shoot anybody."

Appellant testified that he is an alcoholic, and at the time of the shooting he had been drinking. He remembered very little about October 27, most of which was what Mrs. Wheaton told him happened. When asked why he was unloading the gun at that time, appellant testified that Mrs. Wheaton was yelling at him and he guessed he figured it was a good idea to unload it. The gun had been loaded, under the bed, for fifteen years. Appellant also testified, however, that getting the gun out from under the mattress had nothing to do with an argument he may have had with his wife hours before.

Appellant testified that he knew the bullet went in the direction of the living room. After the gun went off, his first concern was getting out in the living room and seeing what happened. He was concerned his wife was in the line of fire because he had not seen...