Opinion
No. 14-03-00178-CR
Memorandum Opinion filed November 13, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 905,436. AFFIRMED.
Panel consists of Chief Justice BRISTER and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
Appellant Darrell Burton appeals from his felony conviction for aggravated kidnapping. After appellant waived a jury, the trial court found him guilty and sentenced him to fifty years' confinement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We affirm. In his only two issues, appellant argues the evidence was legally and factually insufficient to support a guilty verdict for the charged offense. We apply the usual standards of review. See Reyes v. State, 84 S.W.3d 633, 636 (Tex.Crim.App. 2002) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000) (factual sufficiency). A person commits the offense of aggravated kidnapping by intentionally or knowingly abducting another person with the intent to terrorize them. See Tex. Pen. Code § 20.04(a). Knowledge and intent can be inferred from an accused's acts, words, or conduct. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. 1982). "Abduct" means "to restrain a person with intent to prevent his liberation" by either secreting or holding him in a place where he is unlikely to be found or using or threatening to use deadly force. Tex. Pen. Code § 20.01(2). "Restrain" means to "restrict a person's movements without consent" by either "moving him from one place to another" or by "confining" him. Tex. Pen. Code § 20.01(1). Restraint is "without consent" if achieved by force, intimidation, or deception. Id. "Confine" means to put or keep in detention or to relegate to certain limits. See Holmes v. State, 873 S.W.2d 123, 126 (Tex.App.-Fort Worth 1994, no pet.). "Deadly force" is either force intended or known by the actor to cause death or serious bodily injury or force capable of causing death or serious bodily injury in the manner of its use or intended use. See Ferrel v. State, 55 S.W.3d 586, 591-92 (Tex.Crim.App. 2001). First, appellant contends there is legally insufficient evidence to establish the element of restraint. Gloria Caldwell testified that appellant assaulted her in the living room of their residence, knocked her to the floor, and told her to stay down. According to Caldwell, appellant prevented her from escaping by physically pinning her to the floor, and thereafter threatening to kill her if she moved. Appellant later ordered her to crawl to the dining room and forced her to remain on the floor there. We hold there was legally sufficient evidence that appellant restrained the victim. Second, appellant contends there is legally insufficient evidence to support a deadly-weapon finding. Caldwell testified that appellant brandished a pocket knife with a thick two-inch blade, stabbed her repeatedly with it, and threatened to disembowel her with it. This evidence is thus legally sufficient to support a deadly-weapon finding. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Crim.App. 2000) (holding carrying of butcher knife during violent attack showed it was deadly weapon). Finally, appellant argues there is factually insufficient evidence to support either of the above findings, pointing to inconsistencies between Caldwell's testimony and the other evidence presented at trial. Specifically, appellant points to Caldwell's claims that she was stabbed thirty times in the head and thirty times in the shoulders, and suffered a broken arm as a result of a blow struck by appellant with a hammer. The medical records admitted at trial showed Caldwell suffered "multiple" wounds and bruises, as well as some bleeding on her head and shoulders, and a fractured left wrist. By contrast, appellant testified Caldwell sexually assaulted him, that the injuries she sustained were the result of his attempts to defend himself from her attacks, and that he spent hours at the residence trying to escape from her. While Caldwell's testimony may have been exaggerated to some extent, it appears appellant's testimony may have been as well. Moreover, appellant's credibility was impeached by prior convictions for delivery of a controlled substance, theft, assault, criminal trespass, and burglary of a motor vehicle. As the physical evidence supported the victim's assertions regarding some of her injuries, and as the appellant's testimony also suffered from credibility problems, we cannot say the proof of guilt here is either so obviously weak as to be clearly wrong and manifestly unjust, or greatly outweighed by contrary proof. Therefore, we find the evidence is both legally and factually sufficient to support appellant's conviction for aggravated kidnapping. Accordingly, appellant's first and second issues are overruled. The judgment is affirmed.