No. 05-04-01491-CR
Opinion issued May 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-01704-PN. Affirmed.
Before Justices MORRIS, O'NEILL, and MAZZANT.
Opinion By Justice MORRIS.
A jury convicted Jesus Martinez, Jr. of aggravated kidnapping and sentenced him to life imprisonment. In six issues, appellant now challenges the legal and factual sufficiency of the evidence, the trial court's denial of his request to instruct the jury on lesser included offenses, the trial court's admission of extraneous offense evidence at punishment, and the trial court's denial of a jury instruction on voluntary release. Concluding appellant's issues lack merit, we affirm the trial court's judgment.
Factual Background
The events underlying this case arose as Dallas police officers attempted to execute an arrest warrant for appellant. A marked police car pulled behind the van appellant was driving as it stopped for a red light. The police car's lights were activated and a uniformed officer approached the driver's side window of appellant's van. Appellant's girlfriend, Daniella Baron, was also in the van. The officer instructed appellant to stop the car, but appellant attempted to speed away. A chase ensued involving several police vehicles. A few minutes after the chase began, police found appellant's vehicle parked on a dead-end street. Baron, who was still in the van, advised police that appellant had left. At trial, Baron testified that before he left, appellant obtained a gun from somewhere in the van, slid the gun's chamber back, and said, "This was it." Officers ran between houses and backyards searching for appellant. In his attempt to evade police, appellant entered the home of Betty Calvert by breaking a bedroom window. Calvert testified that she was drinking coffee in her kitchen when she heard a noise. As she investigated the noise, she confronted appellant walking out of a bedroom with a gun in his hand. Appellant did not point the gun at Calvert and told her he was not going to hurt her, but she still thought she was going to die. Appellant ordered Calvert into her living room and told her to sit on the sofa. While he was still holding the gun, appellant demanded that Calvert show him the location of the telephone. He then ripped the telephone out of the wall and ordered Calvert to return to the living room sofa. After looking through the front window, appellant suddenly put the gun on the table in Calvert's entryway and attempted to leave through the front door. When he could not open the door himself, Calvert opened it for him. Appellant was taken immediately into custody by police officers who had surrounded the house. Discussion
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated kidnapping. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). A person commits aggravated kidnapping by intentionally and knowingly abducting another person while using or exhibiting a deadly weapon. Tex. Pen. Code Ann. § 20.04(b) (Vernon 2003). "Abduct" is defined, in part, as "to restrain a person with intent to prevent his liberation by . . . using or threatening to use deadly force." Id. § 20.01(2)(B) (Vernon Supp. 2005). "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Id. § 20.01(1). Appellant argues the evidence shows he did not use or threaten to use deadly force against Calvert. In fact, he urges that rather than threatening Calvert with deadly force, he assured her he was not going to harm her. It is uncontroverted that appellant, while holding a gun, brought Calvert into her living room and ordered her to sit on the sofa. Still exhibiting the gun, he made her show him where the telephone was so that he could rip the cord out of the wall, and then ordered Calvert to return to the living room sofa. By definition, the gun appellant was holding while he ordered Calvert around was a deadly weapon. See Tex. Pen. Code Ann. § 1.07(17) (Vernon Supp. 2005). Based on appellant's actions, Calvert felt he was going to kill her. We conclude the evidence is legally and factually sufficient to establish appellant threatened deadly force as required for an aggravated kidnapping conviction. Appellant's statement that he was not going to hurt Calvert does not negate the evidence that deadly force was threatened. We resolve appellant's first and second issues against him. In his third and fourth issues, appellant asserts that the trial court erred in denying his requests for jury instructions on the lesser included offenses of kidnapping and unlawful restraint. A lesser included offense should be submitted when the lesser offense is included within the proof necessary to establish the offense charged and there is some evidence that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004). Kidnapping and unlawful restraint are lesser included offenses of aggravated kidnapping because they are included within the proof necessary to establish aggravated kidnapping. See Rogers v. State, 687 S.W.2d 337, 344 (Tex.Crim.App. 1985) (kidnapping); Anderson v. State, 125 S.W.3d 729, 731 (Tex.App.-Texarkana 2003, no pet.) (unlawful restraint). Appellant argues he was entitled to instructions on these lesser included offenses because evidence that he had the gun before the police chase began would permit the jury to conclude that his holding the gun was merely incidental to his restraint of Calvert. In other words, he contends there is some evidence showing, at a minimum, that he did not use or exhibit a deadly weapon during the commission of the offense and that he merely entered Calvert's house to evade arrest. Appellant also relies on evidence that once inside the house, he indicated he would not harm Calvert and told her to sit on the couch. We do not agree that this evidence entitles appellant to the requested instructions. Again, the evidence was undisputed that appellant held a deadly weapon while ordering Calvert around the house and restricting her freedom of movement. The evidence on which appellant relies to support his position does not rebut or negate his use or exhibition of a firearm while he restricted Calvert's movement within the house. Accordingly, appellant could not have been convicted of anything less than aggravated kidnapping. In such circumstances, the trial court did not err in denying appellant's requests for jury instructions on the lesser included offenses of kidnapping and unlawful restraint. We resolve appellant's third and fourth issues against him. In his fifth issue, appellant argues the trial court abused its discretion in admitting evidence of an extraneous offense at the punishment phase of his trial because he had no notice of the state's intention to introduce the evidence and the offense was not proven beyond a reasonable doubt. Appellant complains specifically about testimony that appellant hit a five-year old child and tried to drown the child in a tub. Appellant did not object to the testimony or to the lack of notice. He has thus failed to preserve this issue for review. See Tex.R.App.P. 33.1(a); Malpica v. State, 108 S.W.3d 374, 379 (Tex.App.-Tyler 2003, no pet.). We resolve appellant's fifth issue against him. In his sixth issue, appellant contends the trial court erred in rejecting his request to instruct the jury on the affirmative defense of voluntary release. Our review of the record reveals that the trial court granted appellant's request to instruct the jury on voluntary release. Because the jury charge included an instruction on voluntary release, we resolve appellant's sixth issue against him. We affirm the trial court's judgment.