Darrell Lofton v. State
03-15-00475-CR
| Tex. App. | Jul 31, 2017Background
- On Oct. 8, 2014, Darrell Lofton drove alongside Travis County Sheriff Greg Hamilton, held up five fingers and yelled, “you’ve got five days, motherfucker,” then drove off; Lofton was charged with retaliation against a public servant under Tex. Penal Code § 36.06(a)(1).
- The incident followed several weeks of escalating confrontations after CPS removed Lofton’s children; witnesses testified Lofton made multiple threatening statements to deputies, a CPS caseworker, and to sheriff’s office staff in the days before the charged remark.
- Law enforcement testified Lofton said he had been to the sheriff’s home and knew where Hamilton lived; deputies and supervisors took security precautions and considered Lofton a possible danger.
- Lofton waived a jury trial and was tried to the court, found guilty, and sentenced to ten years’ confinement; he appealed raising three issues.
- On appeal Lofton argued (1) improper admission of extraneous-offense evidence under Tex. R. Evid. 404(b), (2) legally insufficient evidence to prove a retaliatory threat, and (3) ineffective assistance of counsel because his jury waiver was allegedly rendered involuntary by the State’s 404(b) notice.
Issues
| Issue | Plaintiff's Argument (Lofton) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of extraneous-offense evidence under Tex. R. Evid. 404(b) | Trial court abused discretion admitting testimony about Lofton’s prior threatening statements and conduct | The testimony showed motive/intent and was admissible under 404(b)(2); many objections were waived | No abuse of discretion; evidence admissible to prove intent and many complaints were waived or not 404(b) evidence |
| Sufficiency of the evidence for retaliation conviction | The “five days” statement was not a threat (no explicit threat, no imminence) and evidence is factually insufficient | Threats can be veiled and intent may be inferred from surrounding conduct; imminence is not required under §36.06(a)(1) | Evidence—circumstantial and direct—was legally sufficient to prove an intentional retaliatory threat; conviction affirmed |
| Ineffective assistance of counsel re: jury-trial waiver | Waiver became involuntary because State filed extensive 404(b) notice the day of trial and counsel failed to object/advise | No record showing counsel received notice late; bench trial reduces risk of unfair prejudice; no deficient performance shown | Ineffective-assistance claim rejected; waiver and counsel’s performance were reasonable under record |
| Preservation and specificity of appellate complaints | Lofton failed to specify portions of testimony challenged and did not preserve some objections | State notes appellate rule requirements and the trial record’s objections or lack thereof | Many challenges waived for lack of specificity or preservation; no reversible error |
Key Cases Cited
- Manning v. State, 114 S.W.3d 922 (Tex. Crim. App. 2003) (definition and treatment of extraneous offenses under Rule 404(b))
- Sewell v. State, 629 S.W.2d 42 (Tex. Crim. App. 1982) (extraneous threats admissible to show intent when similar in time, place, or mode)
- Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) (intent may be inferred from acts, words, and conduct)
- Jackson v. Virginia, 443 U.S. 307 (1979) (legal-sufficiency standard: evidence must permit a rational trier of fact to find guilt beyond a reasonable doubt)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (Jackson standard is sole sufficiency standard on appeal)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)