Opinion
05-19-01247-CR
10-27-2021
ANDREW JACOBY DUFFY, Appellant v. THE STATE OF TEXAS, Appellee
DO NOT PUBLISH
On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F18-42085-J
Before Justices Osborne, Pedersen, III, and Nowell Opinion by Justice Osborne
MEMORANDUM OPINION
LESLIE OSBORNE JUSTICE
Andrew Jacoby Duffy appeals the trial court's judgment convicting him of aggravated kidnapping. The jury found him guilty, found that he used or exhibited a deadly weapon during the commission of the offense, and assessed his punishment at 13 years of imprisonment. In one issue, Duffy argues the evidence is insufficient to support his conviction. In a cross point, the State argues the trial court's judgment should be modified to accurately reflect the jury found Duffy used or exhibited a deadly weapon during the offense. We conclude the evidence is sufficient and the trial judge signed a judgment with mistakes in it. The trial court's final judgment is affirmed as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Although Duffy and Valerie Okray have a child together, their dating relationship ended prior to his birth. To avoid Duffy's "bizarre," unpredictable, and harassing behavior, Okray moved to a new apartment complex in December 2017 and did not give Duffy her new address. Instead, she told him that she had moved to Forney, Texas. Also, Okray contends that when she started a new job at a memory care facility she did not tell Duffy where she was working or invite him to meet her there.
Duffy provided inconsistent support for his son. However, at times he would provide Okray with items like diapers. In April 2018, Duffy contacted Okray stating he had "stuff" for his son and Okray agreed to meet him at a park to accept the items. This was the last time Okray met with Duffy before the November 2018 incident at her place of work.
On November 6, 2018, Okray was working the night shift from 10:00 p.m. until 6:00 a.m. Around midnight, Okray began receiving text messages from Duffy. When Okray did not respond-she explained there are certain times she is not permitted to be on her phone while at work-Duffy became more persistent and eventually called her. Okray answered the call and informed Duffy that she was at work and was not able to take his calls but Duffy continued to text her. When he called again, Okray answered and told him to stop calling, she could not speak with him, it was late, and they did not have anything to discuss. However, Duffy did not stop calling Okray. In response, Okray texted Duffy stating, "Don't text or call my phone after 8 p.m. Thanks." But Duffy called again immediately after she sent him the text.
Around 2 a.m., Okray went outside during her break. While she was walking back to the facility, Duffy grabbed her arm from behind. Duffy pushed her to the side and Okray resisted stating she needed to go into the building to return to work. However, she was not able to get away and Duffy threw her into a wicker chair that was in a small courtyard. Then, standing over Okray, Duffy demanded to know who "Jermond" was. Okray could smell alcohol on Duffy and told him that she did not know what he was talking about and that he was not supposed to be there. In response, Duffy hit Okray in the face, dislodging one of her earrings and knocking her and the chair over. Okray fell onto her stomach but, before she could rise, Duffy was on top of her repeatedly punching her in the head and telling her that he was going to kill her. Then, he grabbed her ponytail pulling her head to the side and told her that he was going to snap her neck. Okray tried to scream for help but Duffy had his arm around her neck and, each time she screamed, he would squeeze her neck and jerk up so she could not breathe. At one point, when Duffy's hand got near her mouth, she bit him.
Then, Duffy jerked Okray to a standing position, put his arm around her neck and pushed Okray from behind telling her that if she screamed again, he would kill her. At this point, Okray's vision was blurry and her right eye was so swollen she could not see out of it. Duffy pushed Okray down the sidewalk toward a dark area but did not state where he intended to take her. Okray was afraid that, if Duffy took her to the "little ditch creek" behind the memory care facility, no one would hear her screams so she dug her heels into the ground and clawed at him causing her nails to be "torn off."
When they got closer to some bushes, Okray let her body go limp hoping to throw Duffy off balance. This caused Okray to fall face down in the bushes with her face in the dirt and Duffy to fall on top of her back. Duffy began choking Okray until there were red and blue lights on the side of the building. On seeing the lights, Duffy got off of Okray and said, "The police are here. We're going to tell them this was a misunderstanding; we was [sic] talking, ain't nothing going on." Okray rolled to a sitting position and saw a police officer. Okray's scrubs were torn, her shoes were muddy, and her pants and underwear had been pulled down below her buttocks.
Meanwhile, a memory care resident called 9-1-1. When Officer Collin Smythe arrived at the memory care facility, he saw a resident standing in the front doorway holding the door open and pointing further down the parking lot. He continued driving to a darker area where there were no lights. As he approached, he rolled down his vehicle's window and heard a man say the police were there and a woman calling for help. He could not see them, but when he shined his flashlight into the area where the voices had come from, he observed a man-Duffy-on top of a woman-Okray-who was face down in the bushes. He observed that Duffy had a struggling Okray in a chokehold with the crook of his elbow and forearm around her neck. After seeing that Duffy did not appear to have any weapons, Officer Smythe grabbed him. At that point, Duffy acted confused and began asking what was going on and why the officer was there. Officer Smythe arrested Duffy for assault and secured him in a patrol car. While in the patrol car, Duffy yelled out to Okray "to make things right" and "not to tell [the police] anything."
Officers Ryan Mobley and Miguel Perez arrived. When they searched the area, they found a shoe on the sidewalk, Okray's earring, and a robe near the front door of the memory care facility. They also found Duffy's cell phone as well as a book and binder belonging to Duffy hidden in a cubby across the street in a townhome area. When the police went to speak to the resident who had called 9-11, she had already forgotten that she had called the police. Officer Mobley observed that Okray was upset, crying, hyperventilating, and scared. After the police spoke with Okray, they changed the charge against Duffy from assault to aggravated kidnapping.
Paramedics examined Okary and offered to take her to the hospital but she declined to go with them, preferring to go on her own. And, shortly afterward, Okray went to the emergency room with her mother and brother. The hospital noted that Okray had bilateral abrasions and small lacerations to her face, an abrasion on her left hip, multiple contusions over her face and head, and her eyes had "multiple subconjunctival hemorrhages bilaterally." Also, because she had a bite mark that broke the skin on her face, Okray was given a tetanus shot.
Duffy continued to call Okray from the Mesquite Police Department. As a result, she called the police to let them know that Duffy was still harassing her.
Duffy was indicted for aggravated kidnapping. Duffy testified at trial that Okray was flirting with him during their phone conversations and she invited him to the memory care facility. He also asserted that it was not uncommon for them to meet for liaisons in the area around the facility. Further, Duffy maintained that he came to offer Okray her robe, to confront her about infidelity, and to declare his love for her. He claimed Okray's chair slipped causing her to fall and, when he attempted to help her up, she struggled against and bit him. When he tried to escape her bite, he became tangled in her hair causing her bruises. Then, as he was leaving, Duffy claimed Okray called out that she cared for him, he returned to her, and he was cradling her head in his arm when the police arrived. Duffy denied choking Okray and disputed that he was arrested in an area different from the courtyard seating area. The jury found Duffy guilty, found that he used or exhibited a deadly weapon during the commission of the offense, and assessed his punishment at 13 years of imprisonment.
II. SUFFICIENCY OF THE EVIDENCE
In issue one, Duffy argues the evidence is insufficient to support his conviction because it fails to establish that he abducted Okray. Duffy contends the evidence is insufficient to prove restraint because Okray invited him to visit her at work that evening. Also, he maintains there is no evidence he intended to prevent Okray's liberation because she was not secreted or held in a place where she was not likely to be found and they were always in a highly visible and conspicuous place and any alleged restraint was merely incidental to the alleged assault. The State responds that the record shows Duffy secreted or hid Okray in a place where she would not be discovered because he restrained and eventually dragged her away from the lighted areas outside the memory care facility. Further, the State argues that abduction can be achieved by the use or threatened use of deadly force and such evidence was admitted at trial.
A. Standard of Review
Under the Due Process Clause, a criminal conviction must be based on legally sufficient evidence. Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021). When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Harrell, 620 S.W.3d at 913-14. Further, an appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight assigned to their testimony. See Jackson, 443 U.S. at 319, 326; Harrell, 620 S.W.3d at 914. An appellate court will consider all evidence when reviewing the sufficiency of the evidence, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or defense. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
B. Applicable Law
Two elements are required to prove aggravated kidnapping: (1) intentionally or knowingly abducting another person; and (2) the commission of an aggravating element. TEX. PENAL CODE ANN. § 20.04(a); Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). The intent to facilitate the commission of a felony or the flight after the attempt or commission of a felony is an aggravating element of aggravating kidnapping. PENAL § 20.04(a)(3).
"Abduct" is defined as "restrain[ing] a person with intent to prevent his liberation." See id. § 20.01(2). As a result, "abduct" includes two elements: (1) the defendant must have restrained another-the actus reus requirement; and (2) the defendant must have had the specific intent to prevent liberation-the mens rea requirement. Laster, 275 S.W.3d at 521. The offense of kidnapping is a completed offense when a restraint is accomplished and, at any time during the restraint, the defendant forms the "intent to prevent liberation" by one of the two subsets of the mens rea component. See id. at 521; Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995).
"Restrain" is defined as "restrict[ing] 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." PENAL § 20.01(1). "Restraint is 'without consent' if it is accomplished by force, intimidation, or deception." Id. § 20.01(1)(A). The law imposes no minimal requirement for restraint other than the interference with the person's liberty be substantial. Griffin v. State, 491 S.W.3d 771, 775 (Tex. Crim. App. 2016). The restraint need not last a certain amount of time or span a certain distance. Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002). Further, the fact that a victim initially accompanied the defendant somewhere does not preclude the possibility that a restraint subsequently occurred. See Valdez v. State, No. 08-10-00331-CR, 2012 WL 4928905, at *8 (Tex. App.-El Paso Oct. 17, 2012, pet. ref'd) (not designated for publication). However, the mere use of force does not make every assault a kidnapping. Griffin, 491 S.W.3d at 776.
For the purposes of an abduction, the intent to prevent a person's liberation may be proved by two means: (1) the secreting or holding of the person in a place where he is not likely to be found; or (2) using or threatening to use deadly force. PENAL § 20.01(2). The secretion and deadly force subsets of restraint modify the mens rea element of "intent to prevent liberation"; they do not describe a conduct element. Laster, 275 S.W.3d at 521; Brimage v. State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994). In other words, they describe two alternative components of the specific intent element. Laster, 275 S.W.3d at 521; Brimage, 918 S.W.2d at 475-76. This is an important distinction because the State is not required to prove the defendant actually secreted or held another. Laster, 275 S.W.3d at 521; Brimage, 918 S.W.2d at 476. The defendant's intent can be inferred from his conduct, remarks, and surrounding circumstances. West v. State, 406 S.W.3d 748, 759 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd).
C. Application of the Law to the Facts
The jury found Duffy guilty of "aggravated kidnapping with the intent to facilitate the commission of the felony of family violence assault by impeding [the] breath or circulation [of Okray] as charged in the indictment." Duffy's argument on appeal challenges the sufficiency of the evidence to prove the elements of abduction that require: (1) he restrained Okray; and (2) he intended to prevent her liberation. Duffy does not challenge the sufficiency of the evidence to prove he committed the aggravating element of assault involving family violence or that he impeded Okray's breath or circulation.
The Texas Penal Code does not contain a separate offense of "family violence assault." However, we note that this nomenclature is often used to refer to the offense of "assault" where the offense is aggravated because it was committed against a person with a familial relationship to the defendant and, as a result, the offense level is increased to a felony. See PENAL § 22.01(b)(2), (b-3).
First, we address Duffy's argument that the evidence is insufficient to prove restraint because Okray invited him to visit her at work that evening. There was conflicting evidence at trial as to whether Okray invited Duffy to meet with her at work on the night of the incident. Okray stated she never told Duffy where she worked and did not invite him. Also, text messages admitted into evidence showed Okray told Duffy that she was working and he should not contact her. On the other hand, Duffy testified that they frequently met for liaisons in the area around the facility and she invited him to meet with her that night. To the extent that Duffy challenges the sufficiency of the evidence to establish restraint on the basis of a conflict of evidence, it is actually an attack on the credibility and weight assigned to the evidence by the jury. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight assigned to their testimony. See Jackson, 443 U.S. at 319, 326; Harrell, 620 S.W.3d at 914. Nevertheless, even if Okray invited Duffy to meet with her that night, it does not preclude the possibility that she was subsequently restrained. See Valdez, 2012 WL 4928905, at *8 (concluding fact that victim initially accompanied defendant somewhere does not preclude possibility that restraint subsequently occurred).
Second, we address Duffy's argument that the evidence is insufficient to prove he intended to prevent Okray's liberation because: (1) there is no evidence Okray was secreted or held in a place where she was not likely to be found as they were always in a highly visible and conspicuous place; and (2) any alleged restraint was merely incidental to the alleged assault. We note that Duffy appears to mistake the requirement relating to secreting or holding of Okray as a conduct element of abduction. However, the State was not required to prove Duffy actually secreted or held Okray, only that he intended to prevent her liberation by doing so. See Laster, 275 S.W.3d at 521; Brimage, 918 S.W.2d at 476.
The record includes evidence of Duffy's intent to prevent Okray's liberation by both secreting or holding her in a place where she was not likely to be found and using or threatening to use deadly force. Okray testified that Duffy grabbed her from behind, pushed her to the seating area of the courtyard, and then pushed her down the sidewalk toward a dark area while she struggled against him until she went limp causing them to fall into the bushes. Also, she stated Duffy punched her in the face and choked her and, at the emergency room, she was treated for a bite mark that broke the skin on her face. Officer Smythe stated that he found Duffy on top of Okray in the bushes but he could not see them until he shined his flashlight into the area. He also stated that he saw Duffy assaulting Okray. Further, police found Okray's earring in the courtyard and a shoe on the sidewalk. Although Duffy testified that he was arrested in the courtyard seating area and was cradling Okray's head in his arm when the police arrived, these conflicts in the evidence go to the credibility and weight assigned to that evidence by the jury. Again, we are required to defer to the jury's credibility and weight determinations. See Jackson, 443 U.S. at 319, 326; Harrell, 620 S.W.3d at 914.
After reviewing the evidence, we conclude that a rational jury could have found the elements of the offense beyond a reasonable doubt. Accordingly, we conclude the evidence is sufficient to support Duffy's conviction for aggravated kidnapping.
Issue one is decided against Duffy.
III. MODIFICATION OF THE JUDGMENT
In a cross point, the State requests that this Court modify the trial court's judgment to accurately reflect the jury found Duffy used or exhibited a deadly weapon during the offense. The jury charge shows that the jury answered "yes" to the special question on whether he used or exhibited a deadly weapon during the commission of the offense.
An appellate court has the authority to modify an incorrect judgment to make the record speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref d) (en banc). We conclude the trial court's final judgment should be modified as follows: "Findings on Deadly Weapon: N/A" is modified to read "Findings on Deadly Weapon: Yes." See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30.
The State's cross point is decided in its favor.
IV. CONCLUSION
The evidence is sufficient to support Duffy's conviction for aggravated kidnapping, and the trial judge signed a judgment with mistakes in it.
As modified, the trial court's final judgment is affirmed.
The trial court is directed to prepare a corrected judgment that reflects the modifications made in this Court's opinion and judgment in this case. See Shumate v State, No. 05-20-00197-CR, 2021 WL 4260768 (Tex. App.-Dallas Sept. 20, 2021, no pet. h.).
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The portion of the judgment that states "Findings on Deadly Weapon: N/A" is modified to read "Findings on Deadly Weapon: Yes."
As REFORMED, the judgment is AFFIRMED.
We DIRECT the trial court to prepare a corrected judgment that reflects this modification.