No. 05-07-01425-CR
Opinion Filed November 18, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-88782-T.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
Opinion By Justice LANG-MIERS.
Jason Cavil waived a jury and pleaded guilty without the benefit of a plea bargain to the offense of aggravated kidnapping, a first degree felony. See Tex. Penal Code Ann. § 20.04 (Vernon 2003). The trial judge rejected appellant's affirmative defense that he voluntarily released the victim in a safe place and assessed punishment at thirty years in prison. See id. § 20.04(d). In two points of error, appellant argues that the evidence is legally and factually insufficient to support the trial judge's rejection of his affirmative defense. We issue this memorandum opinion because all dispositive issues are settled in law. Tex. R. App. P. 47.2(a), 47.4. We affirm.
Background
K.M. was sixteen at the time of trial. About a year earlier, one day in September 2007, he was visiting friends at an apartment complex in north Dallas. He and his friends decided to go across the street to a convenience store to buy snacks. K.M. saw appellant there. K.M. knew appellant because he had bought marijuana from appellant on several occasions. Appellant asked K.M. to come over because he wanted to show him something. K.M. walked over to appellant, and appellant put a handgun to K.M.'s stomach and told him to get in the car. Edward Castillo was already in the car. Appellant then drove to two other houses and picked up Michael Jimison and Castillo's cousin Martin. The evidence showed that appellant, Castillo, Jimison, and Martin were drug dealers. The evidence also showed that appellant and the others accused K.M. of breaking into their drug house and stealing their marijuana. K.M. denied it. Jimison pointed a shotgun at K.M. and said, "We got you now. We got you now. We know it's you. We know it's you." K.M. thought they were going to kill him. Appellant drove to an abandoned house where he and the others took turns beating K.M. They accused K.M. of smoking their marijuana and having fun. Appellant punched K.M. in the face, and Castillo hit him with the handgun. At some point, K.M. was told to get on his knees and say his final prayers. Castillo held a pillow to K.M.'s head, pointed the gun at his head, and pulled the trigger, but it did not fire. Castillo laughed and said, "You thought you were dead." K.M. estimated that appellant and the others beat him for about four to five hours. Then they put him back in the car and started driving. While Martin and Jimison held K.M. down in the back seat, Castillo tried to carve "777," a gang symbol, on K.M.'s back with broken glass. K.M. asked where they were taking him, and appellant said they were back in north Dallas. K.M. thought appellant was lying. K.M. promised not to tell the police about what happened if they would let him live. He said Castillo threatened to hurt K.M.'s mother if K.M. told anybody about what happened. Appellant stopped at an apartment complex and someone in the car opened the door. K.M. ran out of the car; he could not believe they were letting him go. It was about 6 p.m. on the same day that he was kidnapped. Appellant testified that the apartment complex was "close by" where he kidnapped K.M., but K.M. said he was unfamiliar with that area. K.M. saw a fence nearby and jumped over it. Then he jumped over another fence, but by that time was too tired to do anything. He saw some people standing outside an apartment, and they motioned for him to come over. They called 9-1-1. K.M. was hospitalized for his injuries. He sustained a fractured bone under his eye which required surgery a few months later. He must wear eyeglasses as a result of the injury. He also sustained a broken nose, which required surgery, and injuries to his back, which required stitches. K.M. testified that Castillo also broke a beer bottle over his head, but it did not cause any injury. The evidence showed that the medical bills totaled around $8000. Appellant testified in his own defense. He stated that his apartment was robbed, but that the robbers did not take any drugs, just "stuff." He said it was Martin's idea to kidnap K.M. because Martin had some "stuff" in the apartment that was stolen, too. Appellant confirmed K.M.'s testimony about the events of that day, but he minimized his role in K.M.'s beating. Standards of Review
In conducting a legal sufficiency review of the fact-finder's rejection of an affirmative defense, we examine the evidence in the light most favorable to the fact-finder's rejection and reverse only if the evidence conclusively establishes the opposite. See Clark v. State, 190 S.W.3d 59, 62 (Tex.App.-Amarillo 2005, no pet.); Ballard v. State, 161 S.W.3d 269, 272 (Tex.App.-Texarkana 2005), aff'd, 193 S.W.3d 916 (Tex.Crim.App. 2006); Nolan v. State, 102 S.W.3d 231, 238 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). In conducting a factual sufficiency review, we review all of the evidence in a neutral light and determine whether the rejection of the affirmative defense is so against the great weight and preponderance of the evidence as to be manifestly unjust. Clark, 190 S.W.3d at 63; Ballard, 161 S.W.3d at 271. Applicable Law
A defendant charged with aggravated kidnapping may seek to mitigate punishment by offering evidence that he voluntarily released the victim in a safe place. Tex. Penal Code Ann. § 20.04(d). The defendant has the burden to prove the affirmative defense by a preponderance of the evidence. Id.; Nolan, 102 S.W.3d at 236-37. If he is successful, the punishment range is reduced to that of a second degree felony. Tex. Penal Code Ann. § 20.04(d). In determining whether the victim was released in a safe place, we consider factors such as the remoteness of the location of release, the proximity of authorities or persons who could aid or assist, the time of day, climatic conditions, the condition of the victim, the character of the location or surrounding neighborhood, and the victim's familiarity with the location or surrounding neighborhood. Clark, 190 S.W.3d at 62-63. See Ballard v. State, 193 S.W.3d 916, 919 (Tex.Crim.App. 2006); Lavarry v. State, 936 S.W.2d 690, 697 (Tex.App.-Dallas 1996, pet. dism'd). Analysis
Appellant contends that the evidence conclusively proves that he released K.M. in a safe place. He argues that he returned K.M. to the same location on the same day, under the same weather conditions, while it was still daylight, and the release location was urban, help was at hand, K.M. was familiar with the neighborhood, and he was in good enough condition to run and jump fences after he was released. We cannot agree. The record shows that appellant released K.M. near an apartment complex in north Dallas. Although appellant testified that it was close to where he kidnapped K.M., K.M. testified that he was not familiar with the area. Appellant did not offer any evidence that the apartment complex was near authorities or others who could aid or assist K.M., or that K.M. had access to transportation or means of communicating with anyone who could assist him. Additionally, the record shows that K.M. required hospitalization as the result of the injuries inflicted by appellant and the others, yet appellant did not release K.M. at a hospital where medical attention was readily available. It was fortuitous that K.M. was able to run from the area to a location where he saw bystanders who assisted him by calling 9-1-1. There was some evidence that it was still daylight when appellant released K.M. at 6 p.m. on that September evening; however, there was no evidence of what the weather conditions were at that time. Additionally, appellant did not offer any evidence to show that the area in which he released K.M. was known to be safe. We conclude that the evidence is legally sufficient to support the trial judge's rejection of appellant's affirmative defense that he released K.M. in a safe place. Additionally, we cannot conclude that the trial judge's rejection of appellant's defense was so against the great weight and preponderance of the evidence as to be manifestly unjust. We resolve appellant's two points of error against him. Conclusion
We affirm the trial court's judgment.