Opinion
No. 05-06-00766-CR.
Opinion Filed February 5, 2007 Do Not Publish.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 053233-336.
Before Justices MORRIS, LANG, and LANG-MIERS. Opinion By JUSTICE LANG.
OPINION
Appellant brings this appeal from the trial court's judgment convicting him of aggravated kidnapping and aggravated assault with a deadly weapon and assessing his punishment, respectively, at sixty and twenty years' confinement. In three issues, appellant argues: (1) the evidence is legally insufficient to support his conviction for aggravated kidnapping, (2) the evidence is factually insufficient to support his conviction for aggravated kidnapping, and (3) the trial court abused its discretion by allowing an undisclosed witness to testify at the punishment phase of the trial. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant dated Shaquanita Goodman for approximately a year and six months prior to the night of May 18, 2005, when Goodman made a 9-1-1 phone call to the police. She stated in the call she was "scared" and "trying to get away" from appellant. Three police officers responded to investigate, entered an apartment by force finding appellant hiding in a closet, and arrested appellant. At trial, Officer Day of the Sherman Police Department testified he was called to the apartment complex because "there was a situation involving a person that was barricaded in an apartment." When he arrived at the apartment, he and Officer Kelly used a "door slam" to break down the door of the locked apartment by force. After entering the apartment, Officer Day located appellant in a closet and pulled him out. Officer Day testified that as he walked appellant out of the apartment to a police vehicle, appellant told him "he did not use any weapons. He had only hit her with his hands." Officer Demoure testified when he arrived at the scene he came into contact with Goodman in a neighbor's apartment where she called 9-1-1. He observed that Goodman suffered from injuries which included a "swollen" left eye, "her bottom lip was busted," and "she also had some blood in the inside of her left ear." The photographs of Goodman's injuries taken by Officer Demoure were admitted into evidence at trial. Goodman testified that around 4:00 PM on the evening of May 18, 2005, she and appellant had "an altercation" in the apartment of appellant's cousins. According to Goodman, she and appellant began arguing because he accused Goodman of lying and cheating on him. Appellant slapped Goodman and pulled out a knife. "He put it, like, maybe three, four inches, maybe five inches, from my eye." Then, appellant said, "I can kill you, Bitch." Appellant's cousin grabbed his arm and said, "It's not worth it." Then, appellant threw the knife in the kitchen sink. Goodman stated she became frightened, but she did not try to leave because, "He just told me I wasn't leaving. I did not try to leave at that time because if I did try to leave at that time, I'm pretty sure it would have been forced." Goodman said appellant told her to "take a nap." Then, Goodman laid on a pallet on the floor with appellant, but she did not sleep. She got up to use the bathroom. Appellant entered the bathroom with her where he started arguing with her and slapped her. When Goodman and appellant emerged from the bathroom, appellant's cousins were also in the apartment and "in and out through the whole situation." According to Goodman, she did not ask appellant's cousins for help because she believed "they were scared of him, too, because of his actions." Appellant continued to slap and hit Goodman. She attempted to "go out the door," but appellant locked the door. When one of appellant's cousins, Tierra Cook, attempted to open the door, appellant closed it. Goodman stated the door was opened and closed at least three times during the argument. When she tried to reach the door she was "thrown back" by appellant onto the couch and he "plowed me in the side of the head." Appellant repeatedly told her, "You're going to hear what I've got to say." Goodman stated she did not feel free to leave the apartment during this time. At approximately 9:00 PM, she did leave the apartment and called the police from a neighbor's apartment. Also, appellant testified at trial. He stated he was living at his cousin's apartment. On May 17, 2005, Goodman was dropped off at the apartment. Appellant asked Goodman to leave the apartment, but she refused. Appellant admitted that he had an altercation with Goodman on May 18, 2005, and that he assaulted her. However, appellant stated he did not refuse to let her leave. He also denied threatening Goodman with a kitchen knife. According to appellant, he locked the door and hid in the closet because he heard the police. On February 23, 2006, a jury found appellant guilty of aggravated kidnapping and aggravated assault with a deadly weapon. The jury assessed punishment for aggravated kidnapping at sixty years confinement and twenty years confinement for aggravated assault with a deadly weapon. Thereafter, appellant filed a motion for new trial which the trial court denied. He now appeals.II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction for aggravated kidnapping. Appellant argues, as a matter of law, there is no evidence to establish that appellant intended to confine Goodman by secreting or holding her in a place not likely to be found. He further contends that "it is undisputed that other people were present in the residence with appellant and Shaquanita Goodman." Therefore, appellant concludes the verdict for aggravated kidnapping is against the overwhelming weight of the evidence. The State responds arguing the evidence is legally and factually sufficient.A. Standard of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex.App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Marshall v. State, No. AP-75,048, 2006 WL 3733198, at *5 (Tex.Crim.App. Dec. 20, 2006). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See Marshall, 2006 WL 3733198, at *5.1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 2006 WL 3733198 at *5; King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Lee, 186 S.W.3d at 654. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000); Lee, 186 S.W.3d at 654. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 2006 WL 3733198 at *5; Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998); Lee, 186 S.W.3d at 654.2. Factual Sufficiency
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. Marshall, 2006 WL 3733198 at *5; Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial. See Marshall, 2006 WL 3733198 at *5; see also King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Marshall, 2006 WL 3733198 at *5; Watson, 204 S.W.3d at 416-17; see also Johnson v. State, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee, 186 S.W.3d at 655. An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. Reversal for factual insufficiency occurs only when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See id.; see also Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.B. Applicable Law
A person commits aggravated kidnapping by intentionally or knowingly abducting another person with the intent to inflict bodily injury or to violate or abuse her sexually. See Tex. Pen. Code Ann. § 20.04(a)(4) (Vernon 2003). An offender "abducts" a person by restraining the person with intent to prevent the person's liberation by secreting or holding the person in a place where the person is not likely to be found. See id. § 20.01(2) (Vernon Supp. 2006). An offender "restrains" a person if the offender restricts the 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. See id. § 20.01(1) (Vernon Supp. 2006).C. Application of Law to Facts
Appellant asserts the evidence is legally and factually insufficient to support his conviction for aggravated kidnapping. Appellant argues he did not confine Goodman by secreting or holding her in a place where she was not likely to be found. See Tex. Pen. Code Ann. § 20.01(2). Therefore, he argues, the State did not meet its burden of proving all of the required elements to support his conviction of aggravated kidnapping. We disagree. The evidence reflects that appellant forced Goodman to "take a nap" and she became frightened. Goodman did not try to leave because, "He just told me I wasn't leaving. I did not try to leave at that time because if I did try to leave at that time, I'm pretty sure it would have been forced." Further, Goodman testified she did not ask appellant's cousins for help because she believed "they were scared of him, too, because of his actions." Appellant has not cited any evidence that contradicts Goodman's testimony. Rather, appellant makes a conclusory allegation that because other people were present in the apartment the State failed to prove the required elements of aggravated kidnapping. Further, appellant does not provide any legal authority in support of his argument that the presence of third parties in the apartment is determinative. At trial, the only evidence presented by appellant was his own testimony that he did not prevent Goodman from leaving the apartment. The existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman, 66 S.W.3d at 287 (Tex.Crim.App. 2001); Lee, 186 S.W.3d at 655. Having reviewed all of the evidence under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's aggravated kidnapping conviction. We resolve appellant's first and second issues against him.III. WITNESS TESTIMONY
In his third issue, appellant complains the trial court erred in allowing an undisclosed witness to testify during the punishment phase of the trial. The State called Cindy Hagan, custodian of records for the Grayson County Sheriff's office, to identify appellant and testify regarding appellant's prior convictions. Appellant asserts the State acted in bad faith in not disclosing Hagan as a witness prior to voir dire. Further, appellant argues he was harmed because he was not able to ask the jurors during voir dire whether the jurors knew or were related to the witness. The State responds it did not act in bad faith and the inadvertent omission was promptly corrected by a supplemental witness list given to appellant on February 21, 2006, prior to the State's case in chief.A. Standard of Review and Applicable Law
A trial court shall allow testimony to be introduced at any time if it appears necessary to a due administration of justice. Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981). When the trial court allows a witness to testify that was not included in the witness list, the standard of review is abuse of discretion. See Patterson v. State, 138 S.W.3d 643, 650 (Tex.App.-Dallas 2004, pet. ref'd); Hightower v. State, 629 S.W.2d 920, 925 (Tex.Crim.App. 1981). In determining whether the trial court abused its discretion, an appellate court shall consider whether the prosecutor exhibited bad faith in failing to disclose the name of the witness at an earlier time. Hightower, 629 S.W.2d at 925. The appellate court shall also consider whether the defendant could reasonably anticipate that the witness would testify even though the name was not included in the witness list. Id. B. Application of Law to Facts Prior to trial, the State filed a supplemental witness list and appellant made the following objection:DEFENSE:
Your Honor, certainly, we don't like witnesses being brought in after we have voir dired the jury on knowledge of witnesses, so we would object to any additional witnesses being added to the list after voir dire. In the alternative, we'd ask this judge dismiss this jury panel, allow me to pick a new jury with complete voir dire as to whether or not the new jury members know the witnesses including the new witness.
COURT:
Okay. The Court is going to allow for the witness to be added and deny the request of the defendant.
DEFENSE:
Note our exception, Your Honor.
However, appellant did not renew his objection when Hagan testified during the punishment phase of the trial or make a similar argument in his motion for new trial. To preserve a complaint on appeal, a defendant must make a timely, specific objection to preserve error for appellate review. See Tex. R. App. P. 33.1(a)(1)(A).
Even assuming appellant preserved his complaint, the trial court did not abuse its discretion in allowing Hagan to testify. Nothing in the record supports appellant's argument that the State acted in bad faith when it failed to disclose Hagan as a witness. To the contrary, the record reflects the State corrected the ommission by filing a supplemental witness list. Further, appellant had knowledge of his own prior convictions and could reasonably anticipate the State would offer such evidence during the punishment phase of the trial. Hagan, the witness disclosed in the supplemental witness list, provided just that evidence as custodian of records for the the Grayson County Sheriff's office. We conclude the trial court did not abuse its discretion in allowing Hagan to testify. We resolve appellant's third issue against him.