The Herald Banner, Greenville, TX

March 6, 2009

Whytus loses appeal, convicted of driving car into daycare

By BRAD KELLAR

GREENVILLE — Richard Leonar Whytus has lost the appeal of his sentence and conviction on seven counts of aggravated assault with a deadly weapon for driving a car into a Greenville daycare filled with sleeping children.

Last July, Whytus received an 18 year sentence in the Texas Department of Criminal Justice-Institutional Division, for being intoxicated when he drove his car into a Greenville daycare and injuring several children and adults.

Whytus appealed the decision by 196th District Court Judge Joe Leonard, claiming he should have been convicted of simple assault without a deadly weapon.

The Court of Appeals for the Sixth Appellate District of Texas at Texarkana disagreed and denied the appeal in a Feb. 27 ruling.

Hunt County District Attorney Noble D. Walker Jr. said he believed the Court of Appeals ruling was justified.

“Both the verdict and lengthy prison sentence were appropriate,” Walker said, crediting Assistant District Attorney Keli Aiken for her work prosecuting the case.

Whytus was found guilty by a jury on May 21, 2008 of the seven counts of aggravated assault. Whytus chose to have Leonard decide his punishment, rather than a jury.

Prosecutors alleged Whytus had twice the legal limit of alcohol in his system and was driving at up to 80 miles per hour through a residential neighborhood when he drove his car into the southwest corner of Wee Wisdom Play School in the 4100 block of Moulton on the afternoon of Jan. 30, 2006.

Two of the people inside the daycare — a toddler and a Hurricane Katrina refugee — received serious injuries.

Whytus was observed by witnesses to be speeding along Moulton before his Pontiac Firebird hit a curb, clipped a stop sign and crashed into the wall of the daycare, where 11 children were just waking up from a nap.

Whytus ran from the scene while one of the witnesses, already on the phone with a police dispatcher, followed Whytus until officers caught the defendant a short distance away.

Walker said Greenville Police Department Officer Richard Clark, who performed the accident scene reconstruction and Officer Chris Neaville, who took Whytus into custody, should also be commended for their efforts.

Prosecutors said a computer taken from the vehicle indicated it had been traveling at speeds of between 50 to 80 miles per hour along Moulton, which has a 30 mile per hour speed limit. Blood tests revealed that at the time of the accident, Whytus had a blood-alcohol level of .16. The legal limit for intoxication in Texas is .08.

Because the jury found that there was a deadly weapon used in the commission of the offense, an automobile, Whytus will have to serve one-half of the sentence, or nine years, in prison before he could be considered for parole.

However, in his appeal, Whytus argued that the trial court erred by refusing to submit his requested charge on the lesser included offense of assault causing bodily injury for the jury to consider.

The appeals court agreed that assault causing bodily injury is a lesser-included charge, but questioned whether Whytus proved he was guilty of the lesser charge.

“There is no question of evidence that Whytus committed no offense,” wrote Justice Bailey C. Moseley. “The question is thus whether there is any evidence that if guilty, he is guilty of the lesser-included offense.”

The appeals court said evidence showed Whytus was intoxicated and drove the vehicle into the daycare with sufficient speed to crash through a wall and cause injuries to several people.

“This is evidence that Whytus actually used the vehicle in a manner capable of causing death or serious bodily injury,” Bailey wrote in overruling the appeal and upholding the judgment of the trial court. “There is no affirmative evidence to the contrary.”