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Whaley v. State

Court of Appeals of Texas, Seventh District, Amarillo

September 15, 2017

DANNIE WHALEY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

         On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2014-404, 207, Honorable Jim Bob Darnell, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          OPINION

          James T. Campbell Justice

         Appellant Dannie Whaley appeals from his conviction by jury of the offense of aggravated assault by threat with a deadly weapon[1] and the resulting sentence of forty years of imprisonment.[2] Appellant challenges his conviction through two issues. We will affirm the judgment of the trial court.

         Background

         Appellant was indicted for an aggravated assault by threat against his wife, Judy, by threatening her with bodily injury through the use of gasoline and a lighter.

         Appellant's wife filed for divorce but the couple was still living together. The events leading to appellant's conviction occurred the next month, after a conversation in which Judy told appellant she was not in love with him anymore. Judy testified appellant tried to talk with her about her statement but she refused. Later that night, while she was sleeping in their home's master bedroom with the couple's two young children, she was awakened by appellant coming into the room, asking to speak with her. She again told him she did not feel like talking. She went back to sleep but woke later to find something cold being poured on her. She realized it was gasoline, jumped out of the bed, and asked appellant what he was doing. She attempted to use her phone but appellant told her to "chunk" it or he would "strike" the lighter he was holding. She complied, she said, because their children were still in the bed and because she was "extremely scared."

         Judy begged appellant to allow her to take a shower to wash the gasoline from her body. He permitted her to do so. She cried during her shower and appellant told her to stop "whining." Appellant also removed the gasoline-covered mattress from the bed and placed it in another room. The two apparently slept the rest of the night in the same bed.

         When the couple awoke in the morning, appellant asked Judy for the passcode to her phone. Judy testified she believed his request was related to his belief she was not faithful to him. She told appellant to leave her alone but then decided to look for the gas can appellant had used the night before. She could not find it and ran out of the house, screaming for help because she was afraid appellant had the gas can and was going to pour gas on her again. Appellant grabbed her neck and scratched her face, trying to get her back into the house. A neighbor called the police, informing them a woman was calling for help.

         Two officers, Wedeking and Stucky, responded to the call. Wedeking approached the house and heard arguing. Judy answered the door. She was "crying, very upset, distraught." The officer saw "a scratch on the right side of her face." When Wedeking entered the home, he smelled an "excessively strong" odor of gasoline inside the house. The smell was coming from Judy as well. Judy told the officers what had happened.

         Wedeking spoke to appellant. Appellant told him he was cleaning spark plugs for a lawnmower and he and Judy got into an argument. Judy accidentally knocked the gas can out of his hand and some of the gas spilled. Wedeking arrested appellant, and among the items he found during his pat-down search of appellant was a cigarette lighter. The officers also observed the mattress had a yellow stain and a strong odor of gasoline. The officers also found a gas spigot for a gas can on the floor next to the mattress and smelled an "extremely strong" odor of gasoline inside the washing machine where the sheets were being washed. Judy's clothes from the night before were found in the bathroom trash can and were "saturated" with gasoline. A gas can was found on the step just outside the back door. It was nearly empty.

         Appellant did not testify at trial, but for his version of the events relies on Wedeking's testimony relating what appellant told him.

         Analysis

         Sufficiency ...


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