Opinion
No. 07-19-00235-CR
08-14-2020
DONNIE WILLARD, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court Lubbock County, Texas
Trial Court No. 2018-415,808; Honorable William R. Eichman II, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Following a plea of not guilty, Appellant, Donnie Willard, Jr., was convicted by a jury of aggravated kidnapping, a first degree felony, enhanced by a prior felony conviction. The jury assessed his punishment at confinement for a period of twenty-one years. By a single issue, Appellant contends the "evidence is insufficient to support that he used a firearm to facilitate an abduction when the only evidence in the record shows he exhibited the weapon before an abduction occurred and that he voluntarily abandoned the use or exhibition of the weapon prior to the time his conduct could have been considered an abduction." We modify the judgment of the trial court to reflect the correct penal code section of the offense and affirm the judgment as modified.
TEX. PENAL CODE ANN. § 20.04(b), (c) (West 2019). While the charged offense is a first degree felony, the minimum range of punishment was raised to fifteen years confinement, instead of five, based on that enhancement. Id. at § 12.42(c)(1). An offense "punished as" a higher offense raises the range of punishment, not the degree of the offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. Crim. App. 2018).
We note Appellant is not complaining about a deadly weapon finding in the judgment—for there is none. Instead, Appellant's complaint goes to the sufficiency of the evidence to support his conviction.
BACKGROUND
As of the date of Appellant's trial, he and the complainant had known each other for about twenty years. In January 2018, they began a romantic relationship and lived together a few months later. However, their cohabitation was short-lived. According to the complainant, she moved out because she needed a "break" from the relationship.
After Appellant and the complainant separated, the complainant moved in with her best friend, Nina. Nina and Appellant are in-laws. One of Nina's cousins, Jasmon, and other family members also resided in Nina's house. During the evening hours of August 4, Nina hosted a night of dominoes with friends and family members who had long-standing relationships.
Appellant arrived at Nina's house at some point in the evening. At one point, the complainant went to the restroom and left her cell phone behind. It rang but no one answered. The identity of the caller angered Appellant and he began questioning the complainant about the caller when she returned from the restroom. His inquisition escalated into a physical argument.
There was no evidence presented on how Appellant arrived at Nina's house.
According to Nina, while Appellant and the complainant continued to argue, she witnessed Appellant hit the complainant on the head with his hand and also with a revolver. Nina testified that Appellant later used the revolver to compel the complainant to leave with him. Her description of how Appellant used the revolver was that he "had his gun in his hand like an - - like an extension . . . like you would do your finger."
While the argument continued, two other individuals, Isaac and Todd, arrived at Nina's house. At some point, Todd and Appellant began to argue and threats were made, including a threat by Appellant to shoot Todd. Isaac and Todd then left.
Again, while the argument continued, Jasmon went outside to avoid the conflict. However, when he heard the argument escalate, he came back. He witnessed Appellant hitting the complainant with his hand. Appellant also threatened Jasmon by pointing the revolver at him. When Appellant became momentarily distracted, Jasmon ran out of the house and across the street where he hid behind a tree.
The complainant testified that Appellant took her cell phone from her and struck her several times in the back of the head while they argued. She could not recall if he ever used his revolver to strike her, but she did confirm that he displayed it at his side while they argued and while he struck her with his other hand. Appellant ordered the complainant to find her car keys while he held the revolver at his side. She found her keys on the coffee table near the front door. Appellant grabbed the keys from the table and left her cell phone behind. He then pointed the gun toward the door and motioned for her to go outside and get into the driver's side of her car. He got into the front passenger's side and they drove away. She testified that Appellant verbally threatened her while in the car, and she complied with his wishes because she was "in fear" of "what could possibly happen."
Appellant directed the complainant to drive to a dirt road where he ordered her out of the car and assaulted her by choking her and landing several "body blows." She testified she was scared and feared for her life. After the assault, Appellant told her to get into the passenger's side of her car and he got into the driver's seat. They then drove back to Nina's house, but did not stop because they saw police officers there in response to several 911 calls made by Nina.
Instead, Appellant drove to the house that he and the complainant had previously shared. The complainant testified that Appellant kept her car key fob but gave her a key to unlock the house. There was no electricity and the house was hot and dark. According to her, Appellant wanted to discuss why she had left him. He told her to get undressed and she complied so as not to provoke him. They had sex in the bedroom and afterward, she asked him to take her to her mother's house.
They got dressed and got back into her car. Appellant drove by the complainant's mother's house, but her car was not there so they did not stop. He continued driving until he became sleepy and asked the complainant to drive while he lay down in the back seat. According to the complainant, she drove to Appellant's sister's house, woke up Appellant, and told him to get out. He refused and, instead, told her to find a place to park so he could sleep and then they would discuss their relationship. She asked if she could stop at a convenience store to use the restroom. He agreed and she drove to a convenience store. After she had used the restroom, she realized that Appellant was still sleeping and asked the store clerk if she could use the telephone. She called Nina and told her that she intended to drive to a nearby park and to call the police to meet her there. Nina called the police and within minutes, the complainant saw police officers arrive in the area.
The complainant testified that she did not flee because she did not want to abandon her car.
One of the officers positioned his patrol car at an angle behind the complainant's car. He exited his patrol car and communicated with the complainant through the rearview mirror of her car to determine if Appellant was with her. She motioned by placing her hands together with her head resting on them to indicate that Appellant was sleeping. She confirmed for the officer that Appellant was in the back seat and was armed. The officer instructed her to exit her car and run toward him. After she was safely placed in a patrol car, another officer gave Appellant verbal commands to exit. Appellant complied. Once he exited the car, he was handcuffed and taken into custody.
During a search of the car, one of the officers found a black, loaded revolver underneath the driver's seat. According to the officer, the revolver was in a holster and was within reach of where Appellant was sleeping. During her testimony, the officer identified the revolver, holster, and ammunition found during a search of the car.
APPLICABLE LAW
As charged in the underlying case, a person commits the offense of aggravated kidnapping if "he intentionally or knowingly abducts another person" and uses or exhibits a deadly weapon during the commission of the offense. TEX. PENAL CODE ANN. § 20.04(b) (West 2019). The term "abduct" means "to restrain a person with intent to prevent [her] liberation by . . . using or threatening to use deadly force." Id. at § 20.01(2)(B) (West Supp. 2019). "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. at § 20.01(1). Restrain is "without consent" if it is accomplished by force, intimidation, or deception. Id. at § 20.01(1)(A).
"The ultimate issue in a kidnapping offense is the abduction of the victim" and not "how the person restrains or prevents the liberation of another." Gonzales v. State, 270 S.W.3d 282, 288 (Tex. App.—Amarillo 2008, pet. ref'd). Kidnapping is a continuous, ongoing event. See Weaver v. State, 657 S.W.2d 148, 150 (Tex. Crim. App. 1983). A kidnapping becomes a completed offense when a restraint is accomplished, and there is evidence that the actor intended to prevent liberation and that he intended to do so by the use or threatened use of deadly force. Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995). The law does not require any minimum length of time for which the victim must be restrained. Robinson v. State, 568 S.W.3d 718, 723 (Tex. App.—Amarillo 2019, no pet.) (citing Santellan v. State, 939 S.W.2d 155, 163 (Tex. Crim. App. 1997)).
A kidnapping may occur even when a victim willingly accompanies her abductor if she is restrained against her will. See Robinson, 568 S.W.3d at 723 (citing Crews v. State, 06-09-00080-CR, 2009 Tex. App. LEXIS 9677, at *11-12 (Tex. App.—Texarkana Dec. 22, 2009, pet. ref'd) (mem. op., not designated for publication)). The gravamen of a continuing offense is the operation of an "unintermittent force" set in motion by a "single impulse" that causes the offense to be a continuous act without regard to the mere passage of time. See State v. Chinedu Godwin Ojiaku, 424 S.W.3d 633, 636 (Tex. App.—Dallas 2013, pet. ref'd) (citing Grissom v. State, 119 Tex. Crim. 494, 43 S.W.2d 580, 581 (Tex. Crim. App. 1931)).
STANDARD OF REVIEW
The only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each fact need not point directly and independently to the guilt of the accused, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.
In conducting a sufficiency evaluation, we compare the elements of the offense as defined by a hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The trier of fact is the sole judge of the weight of the evidence and credibility of the witnesses and we may not re-evaluate the weight and credibility determinations made by the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume the fact finder resolved the conflicts in favor of the verdict and we must defer to that determination. Jackson, 443 U.S. at 326.
ANALYSIS
The charge brought against Appellant was that he "did then and there intentionally or knowingly abduct [the complainant]" and "did then and there use or exhibit a deadly weapon, to-wit: a firearm . . . ." (Emphasis added). TEX. PENAL CODE ANN. §§ 20.01(2)(B), 20.04(b) (West 2019). He concedes the complainant was restrained, i.e., he restricted her movements without her consent. See TEX. PENAL CODE ANN. § 20.01(1). However, he adamantly refutes that he "abducted" her by secreting or holding her in a place where she was not likely to be found. Id. at § 20.01(2)(A). He also contests the aggravating factor—that he used or exhibited a deadly weapon or used deadly force against the complainant—to support a conviction for aggravated kidnapping. Appellant concludes his argument with a request for this court to reform his conviction to that of unlawful restraint. Id. at § 20.02(a) (providing that a person commits unlawful restraint if he intentionally or knowingly restrains another person).
Appellant was not charged with the offense of abduction by "secreting or holding [the complainant] in a place where [she] is not likely to be found." See TEX. PENAL CODE ANN. § 20.01(2)(A) (West 2019).
We note that an abduction can occur in one of two ways, to-wit: (1) by secreting or holding the person in a place where she is not likely to be found or (2) by using or exhibiting deadly force. Id. at § 20.01(2)(A), (B). (Emphasis added). The statute is written disjunctively so the State is only required to prove one method of how a complainant is abducted—here, that Appellant used or threatened to use deadly force. (Emphasis added). A revolver is a deadly weapon per se. Id. at § 1.07(a)(17)(A) (West Supp. 2019). "Deadly force" is force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Id. at § 9.01(3) (West 2019). (Emphasis added).
The evidence regarding Appellant's use of his revolver during this incident is conflicting. No one conclusively testified that Appellant pointed the gun directly at the complainant to force her to leave Nina's house and get into her car. The State, however, was not required to prove that he pointed the revolver at the complainant. Instead, proof that he threatened to use deadly force was sufficient to meet the State's burden. (Emphasis added). Using a revolver to strike a person on the head may be capable of causing serious bodily injury. (Emphasis added). Whether serious bodily injury was actually sustained by the complainant was not the issue.
The complainant was examined at the scene by emergency responders and her injuries were photographed. Although she did not require further medical attention, she did sustain bruises, pain from the "body blows," and injuries to her lips. The fact that she did not sustain more serious injuries does not lend credibility to Appellant's argument that he did not use or exhibit deadly force.
The State satisfied its burden with testimony from Nina and the complainant. Nina testified that Appellant struck the complainant on the head with the revolver while they were arguing inside the house. The complainant, when asked if she got into her car of her own free will, answered "no" and added that she did so because she feared for her life. Both Nina and the complainant testified that Appellant exhibited the revolver when he motioned for the complainant to exit the house and get inside her car. Thereafter, the complainant did not see the revolver in the car, but she believed that Appellant had it in his possession. Following his arrest, the revolver was located underneath the driver's seat, well within Appellant's reach. Therefore, the aggravating factor was established by testimony that he exhibited the revolver in order to compel the complainant to leave Nina's house and get into her car. As soon as Appellant compelled the complainant to get into her car against her will, the abduction was a completed act.
Appellant also buttresses his argument that he did not kidnap the complainant by pointing out the fact that she had opportunities to flee while he slept in the back seat and when she went inside the convenience store. He also notes that she could have driven to a nearby police station instead of driving to the park. With respect to that argument, there is nothing that requires a victim of an illegal restraint to attempt to flee. See Ransdell v. State, No. 06-06-00166-CR, 2007 Tex. App. LEXIS 3493, at *11 (Tex. App.—Texarkana May 8, 2007, no pet.) (mem. op., not designated for publication). A threat of force, whether real or reasonably perceived, is sufficient to restrain the victim. Id.
The record contains conflicting testimony on whether Appellant used or exhibited his revolver to threaten the complainant with deadly force. Isaac, one of the two friends that showed up at Nina's house, testified for the defense. He testified that he and Appellant are very close. He confirmed that Appellant had threatened to shoot Todd during the incident at Nina's house; however, he also testified that Appellant had put the revolver away before he asked the complainant to accompany him to her car. According to Isaac, the complainant left Nina's house and entered her car of her own free will.
In contrast to Isaac's testimony, Nina testified that Appellant did exhibit the revolver in order to compel the complainant to leave against her will. Furthermore, while Isaac testified that the complainant left with Appellant of her own free will, the complainant herself refuted that allegation. As the sole trier of fact, the jury was free to resolve any of these inconsistencies against Appellant and in favor of the verdict rendered. Because we are not free to re-evaluate these weight and credibility determinations, we find a rational juror could have found the essential elements of the offense of aggravated kidnapping to have been established beyond a reasonable doubt. Accordingly, Appellant's sole issue is overruled.
REFORMATION OF JUDGMENT
In our review of the record, it has come to the attention of this court that the trial court's judgment reflects a clerical error. The summary portion of the judgment under "Statute for Offense" reflects that Appellant was convicted under "§ 20.04(A)(1-6)" of the Texas Penal Code. However, the correct penal code section of the offense charged is 20.04(b).
This court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. TEX. R. APP. P. 43.2(b). Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The power to reform a judgment is "not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Id. at 529-30. Thus, we modify the trial court's judgment to reflect the "Statute for Offense" as "§ 20.04(b)" in the summary portion of the judgment.
CONCLUSION
As modified, the trial court's judgment is affirmed.
Patrick A. Pirtle
Justice Do not publish.