Joshua Lattimore v. State of Texas ( 2010 )

Opinion filed December 9, 2010
In The
Eleventh Court of Appeals
__________
No. 11-09-00134-CR
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JOSHUA LATTIMORE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 16689B
MEMORANDUM OPINION
Joshua Lattimore pleaded guilty to aggravated kidnapping. After finding that Lattimore
did not voluntarily release the complainant in a safe place, the jury found him guilty of a first
degree felony and assessed his punishment at forty years confinement and a fine of $10,000.
We affirm.
I. Background Facts
Lattimore and Roger Gore were in the custody of the Texas Youth Commission when
they left a halfway house in San Antonio. They got a car and drove toward Abilene, where Gore
claimed to have once lived. The car broke down near Bronte, and they hitchhiked the rest of the
way. In Abilene, they frequented a mall during the day, shoplifted food, and spent their nights in
an empty apartment to which they had gained access through a window. After three or four
days, someone came to show the apartment, and the two ran away. Gore suggested that they get
a car. They went to a Wal-Mart, where Gore stole a BB gun. Lattimore and Gore then went to
the Las Brisas apartment complex.
K.S. was a student at McMurry University. She worked nights at Blue Cross Blue
Shield. At 11:30 p.m. one night, she got off work and drove back to her apartment in the Las
Brisas complex. As she pulled into the parking lot, she saw two people walking around but was
not concerned. She got out of her car and was walking away when she felt as though someone
else was there. She turned around and saw Gore pointing a gun at her face. K.S. screamed, and
Gore told her to shut up or he would kill her. Gore demanded her keys, and she handed Gore her
purse. Gore found the keys and threw them to Lattimore, who then unlocked the car. Gore told
K.S. to get in the backseat. Gore took off his shirt and covered her head. He got in the backseat
with her and gave Lattimore directions on where to drive. Gore then sexually assaulted K.S.
Lattimore drove down Highway 277. At gas stations near Bronte and Sonora, Lattimore
used K.S.’s debit card to get money. Lattimore continually threatened to kill K.S. She remained
blindfolded and had no idea where they were going.
After the stop near Sonora, at around 4:00 a.m., Lattimore turned down a country road off
Interstate 10. He left the country road for a dirt road through a pasture, driving over two cattle
guards and some water. Lattimore saw some cows and commented that they should let the cows
kill and eat K.S. When they finally stopped, Gore pulled K.S. out of the car. He removed his
shirt from her head and ordered her to start walking and not to turn and look at him or he would
shoot her. It was still dark, the grass came up to her thighs, and she worried about rattlesnakes.
She walked through the pasture until she came to the fence line, at which point she started
walking along the fence. She could see the car’s taillights on the road.
When K.S. could no longer see the taillights, she returned to the dirt road. She made her
way back to the highway and discovered that it was Interstate 10. Figuring that Lattimore and
Gore were heading east to San Antonio, she crossed over the interstate and started walking west.
She kept on the side of the road because she was afraid of snakes and other animals. Although
she knew hitchhiking was dangerous, she attempted to flag down a car for help. Eventually, an
eighteen-wheeler stopped and gave her a ride to a gas station near Sonora, around forty-five
miles away. On the way, she used the driver’s cell phone to call her parents. When K.S. arrived
at the gas station, she told the clerk what had happened, and the clerk called the police.
Lattimore was arrested in San Antonio.
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II. Issue
Lattimore argues that the evidence is legally and factually insufficient to support a
finding that he did not voluntarily release his victim in a safe place.1
III. Discussion
Aggravated kidnapping is a first degree felony, punishable by imprisonment for life or a
term of not more than ninety-nine years or less than five years. TEX. PENAL CODE ANN.
§ 12.32(a) (Vernon Supp. 2010), § 20.04(c) (Vernon 2003). However, if the defendant proves
by a preponderance of the evidence that he voluntarily released the complainant in a safe place,
the offense is reduced to a second degree felony, punishable by a term of imprisonment of not
more than twenty years or less than two years. Id. §§ 12.33(a), 20.04(d).
When reviewing the legal sufficiency of the evidence to support a negative issue for
which the defendant has the burden of proof, we first examine the record for evidence that
supports the negative finding while ignoring all evidence to the contrary. Nolan v. State, 102
S.W.3d 231, 238 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). If no evidence supports the
negative finding, we must examine the entire record to determine whether it establishes the
contrary proposition as a matter of law. Id.
To avail himself of Section 20.04(d), the defendant must show that the release occurred
in a place and manner that realistically conveyed to the complainant that she was freed from
captivity and in circumstances and surroundings where aid was readily available. Harrell v.
State, 65 S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The following
factors are useful in determining whether a release was in a safe place: (1) the remoteness of the
location, (2) the proximity of authorities or persons who could aid or assist, (3) the time of day,
(4) climatic conditions, (5) the condition of the victim, (6) the character of the location or
surrounding neighborhood, and (7) the victim’s familiarity with the location or surrounding
neighborhood. Id. at 772-73.
Officer Bryn Thomas Humphrey of the Sonora Police Department testified that the town
of Junction was approximately twelve miles from where K.S. was released by way of a farm-to-
market road. By interstate, Sonora was about forty-four miles away. There were very few houses
in the area. Lattimore and Gore released K.S. at around 4:00 a.m. Even though the moon was
out that night, K.S. had difficulty seeing. Photographs of the area taken by Officer Humphrey
1
The Texas Court of Criminal Appeals has recently held that legal sufficiency is the only standard a reviewing court
should apply. Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010).
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were provided to the jury. Officer Humphrey testified that the land in which K.S. was released
was rugged and desolate and that it would have been very dark at the time. Lattimore himself
admitted that the location was desolate, dry, and hot. Rattlesnakes, hogs, bobcats, and mountain
lions were among the wildlife known to be in the vicinity. Officer Humphrey also testified that
the stretch of Interstate 10 along which K.S. walked was dangerous. Police had recently found a
decapitated body near where she was dropped off. In the previous five years, two hitchhikers
had been accidentally killed on the interstate. K.S. testified that she was familiar with cattle and
with the danger of rattlesnakes and that she was able to figure out roughly where she was when
she got to Interstate 10, but no evidence was presented that she was familiar with the location in
which she was released. Although K.S. generally was in good physical condition, she had been
sexually assaulted only a few hours before and, upon her release, was emotionally distraught and
continued to fear for her life.
Ample evidence supported the jury’s finding that Lattimore did not release K.S. in a safe
place. See Woods v. State, 301 S.W.3d 327, 332 (Tex. App.—Houston [14th Dist.] 2009, no
pet.) (complainant not released in safe place when released at 4:00 a.m. in a sparsely populated
area that had been the site of criminal activity, with no other people present); Harrell, 65 S.W.3d
at 773 (complainant not released in safe place when the area was sparsely populated, dimly lit,
the home of a pack of wild dogs, and the site of numerous burglaries, two sexual assaults, and
two homicides and when the time of release was early morning in winter); Rodriguez v. State,
766 S.W.2d 360, 361 (Tex. App—Texarkana 1989, pet. ref’d) (complainant who had been
sexually assaulted was not released in a safe place when released during a winter night on a rural
dirt road a few minutes walk from a gas station when it was not clear she would find aid in the
vicinity). Lattimore’s sole issue is overruled.
IV. Conclusion
The judgment of the trial court is affirmed.
December 9, 2010 RICK STRANGE
Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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