Nos. 05-03-00148-CR, 05-03-00149-CR, 05-03-00150-CR
Opinion filed July 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F99-21711-H, F00-56655-H, F01-74581-H. Affirm.
Before Justices FITZGERALD, RICHTER, and LANG.
Opinion By Justice LANG.
Andre P. Edwards appeals his convictions for sexual assault of a child, aggravated assault, and aggravated kidnapping. Appellant waived a jury trial and pleaded not guilty. The trial court found appellant guilty on all three counts and assessed punishment for each conviction at imprisonment for twenty years, twenty years, and life, respectively. In four issues, appellant argues the evidence is legally and factually insufficient to support the trial court's holding that the aggravated kidnapping victim was not released in a safe place. In two issues appellant contends the evidence is legally and factually insufficient to support appellant's aggravated assault conviction. For the reasons that follow, we affirm the trial court's judgment.
Appellant raises issues only regarding the aggravated kidnapping and aggravated assault convictions.
FACTUAL BACKGROUND
The issues raised on appeal involve appellant's aggravated kidnapping and aggravated assault convictions. These two unrelated incidents occurred on December 8, 2000, and June 10-11, 2001. The events of June 10-11, 2001 gave rise to appellant's aggravated kidnapping conviction. The victim, Heather Heald, testified that appellant had been her pimp for about 30 days, but that she had determined to stop working for appellant and to get out of the business. Heald had been "lying low" for about three or four days, not working and avoiding appellant. On the evening of June 10, 2002, Heald drove to an apartment complex where she planned to return appellant's red convertible to him and later find a ride to a friend's house. When she arrived she saw appellant, a man identified only as "P," and two women, one of them named Tammy Ray, in the parking lot of the complex. Appellant took the car keys from Heald and handed them to Ray who left with the other woman in the red car. Before Ray left, she saw appellant strike Heald in the face. Appellant told Heald it would not be smart for her to run, exhibited a handgun, and had her sit in the backseat of a blue Volvo with him. Appellant struck Heald several times as P drove the car to a remote field. There appellant and P took turns hitting Heald with the gun and a stick. The beating stopped and the three left after seeing approaching headlights. P drove them back to appellant's apartment where appellant told Heald to take a shower and change clothes. Appellant then took Heald to a bar at the intersection of Samuel and Dolphin, a high crime area, and told her to "make some money." Heald, who was still bleeding from her head, understood that appellant would be back to collect her and the money she made from prostitution. Also, appellant told Ray, who was also at the bar, to keep an eye on Heald. Heald spent the next few hours, until the bar closed, looking for someone to drive her to her friend's house. Just before the bar closed, around 3 or 4 a.m. on June 11, Heald found a ride. She called 911 from her friend's house and was soon thereafter admitted to the hospital. She gave a statement to the police from the hospital. Appellant's aggravated assault conviction stems from events occurring on the evening of December 8, 2000. That evening, the complainant, Charles Singleton, answered the door to his apartment, saw a woman backing away, and was then confronted by appellant. Appellant held a shotgun to Singleton's face and demanded to know where Singleton's stepson was. Appellant claimed that the stepson had robbed appellant's apartment and threatened Singleton that if his stepson was not there in two hours, appellant would kill Singleton and his girlfriend. Singleton called 911 after appellant left. Later, appellant was arrested as he exited an apartment in that same complex for assaulting a man appellant claimed to have robbed the apartment. Appellant pleaded not guilty to the sexual assault of a child, aggravated assault, and aggravated kidnapping charges. He waived his right to a jury and all three charges were tried together before the trial judge. The trial judge found appellant guilty on all three counts and assessed appellant's sentences. This appeal followed. AGGRAVATED KIDNAPPING
In four issues, appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated kidnapping. Specifically, he argues that the evidence at trial established that he voluntarily released the victim in a safe place and the State did not disprove this evidence. A. Standard of Review and Applicable Law
Safe release of the victim is a defensive issue that can mitigate sentencing. Tex. Pen. Code Ann. § 20.04(d) (Vernon 2003). At the punishment stage of trial, if the defendant proves by a preponderance of the evidence that he voluntarily released the victim in a safe place, the offense is a felony in the second degree. Id. Otherwise conviction carries a first-degree felony punishment range. See id. When an appellant challenges the legal sufficiency of the rejection of a defense, we view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against appellant on the defensive issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991); Reaves v. State, 970 S.W.2d 111, 115 (Tex.App.-Dallas 1998, no pet.). When an appellant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and determine whether (1) the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the evidence in support of the defense is so strong that the fact-finder's rejection of the defense does not meet the beyond-a-reasonable-doubt standard. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). In conducting this analysis, we give deference to the fact finder's verdict, as well as to determinations involving the credibility and demeanor of witnesses. See id. at *4; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). To prove the offense of aggravated kidnapping, the State had to show that appellant intentionally or knowingly abducted another person with the intent to inflict bodily injury on her or used or exhibited a deadly weapon during the commission of the offense. Tex. Pen. Code Ann. § 20.04(a)(4), (b). To avail himself of the mitigating effect of § 20.04(d), the accused must have performed some overt and affirmative act that brings home to the victim the fact of safe release from captivity. Harrell v. State, 65 S.W.3d 768, 772 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Hernandez v. State, 10 S.W.3d 812, 822 (Tex.App.-Beaumont 2000, pet. ref'd.). The release must occur in a place and manner which realistically conveys to the victim that she is now freed from captivity and is now in circumstances and surroundings wherein aid is readily available. Harrell, 65 S.W.3d at 772; Hernandez, 10 S.W.3d at 822. In determining whether the location where the victim was released is a "safe place," the courts consider the following factors: (1) the remoteness of the location; (2) the proximity of authorities or persons who could aid or assist; (3) the time of day; (4) climatic conditions; (5) the condition of the victim; (6) the character of the surrounding neighborhood; and (7) the victim's familiarity with the location or surrounding neighborhood. Harrell, 65 S.W.3d at 772-73; Lavarry v. State, 936 S.W.2d 690, 696 (Tex.App.-Dallas 1996, pet. dism'd). We bear in mind that these factors are only aids to assist our review. See Harrell, 65 S.W.3d at 773. B. Application of Law to Facts
As to the elements of the aggravated kidnapping offense, the victim, Heather Heald, testified that when she returned appellant's car to him, he was in an apartment complex parking lot with a man known as "P." Appellant took the keys from Heald and directed her to sit in the backseat of a different car. She testified that appellant held a gun in his hand and threatened her that it would not be smart to run away. Another eyewitness, Tammy Ray, testified that she saw appellant hit Heald in the face before Heald got in the car. Heald testified that she complied with appellant because she was scared. She testified that P drove her and appellant to a remote field where P and appellant beat her with their fists, the gun, and a stick. The record contains medical records, photographs, and testimony from the investigating police officer describing injuries consistent with Heald's account of the beating. Therefore, a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly abducted Heald with the intent to inflict bodily injury on her or that he used or exhibited a deadly weapon, a gun, during the commission of the offense. We turn now to the defensive issue. Appellant contends the trial court erred in rejecting his defensive issue because he presented legally and factually sufficient evidence that he voluntarily released Heald in a safe place. Specifically, appellant points to evidence he asserts proves that he released Heald in a safe place. Appellant left Heald at a bar near the intersection of Samuel Boulevard and Dolphin in East Dallas around midnight. The record reveals that all the witnesses testified that the area was not remote. Rather the testimony was consistent that the location was urban having at least one bar, a motel, and a gas station that was open at that time and that numerous people were in and around the bar. Also, appellant directs us to Heald's own testimony that the night was warm and that the mini-dress she wore was appropriate for the weather. Heald's testimony revealed that she was somewhat familiar with the area because she had passed by it before when being driven through that part of Dallas. However, appellant fails to address evidence that weighs against the location being considered a "safe place." Although the area was not remote and numerous people were in the area, appellant does not show that authorities or persons who could aid or assist were present. Rather, the record shows that Heald spent about two hours trying to find someone to assist her. Additionally, the record reveals that clientele of the bar where she was left was predominantly Spanish-speaking and that Heald knew just a little Spanish. Ray testified that she saw a patrol car in the area, but Heald testified she had not seen it or police present. As for the time of the release and the victim's condition, the record shows that appellant left Heald at the location either very late at night or very early in the morning without any money. Although appellant had given Heald a chance to shower, she was still bleeding from her head and only an hour or two had passed since she had been beaten. Heald's testimony indicated she was somewhat familiar with the location from having been driven through it, but that she had never worked as a prostitute in that area or visited the bar before. The record shows she was not familiar enough with the area to know that a payphone was located near the street. Finally, the character of the surrounding neighborhood weighs heavily against a finding that the location was a "safe place." Ray, Officer Bollon, and Detective Olivarez testified that the location was not safe. Ray testified that she did not consider the location to be safe and that it was populated by "dope fiends, dope dealers, prostitutes, [and] pimps." Officer Bollon testified that it was not a safe place for a prostitute due the high rate of violent crime. Detective Olivarez testified that the area had a higher rate of homicides and aggravated assault compared to the rest of the beat, and that the beat in which the bar was located had a higher crime rate than the Dallas norm. Thus, a rational trier of fact could have found that the location was not a "safe place." Additionally, we question whether appellant actually "released" Heald. He left her at the bar ordering her to "make some money." The record shows that this meant appellant expected Heald to earn money by prostitution and deliver the money to him when he returned to pick her up from the bar. Heald testified that she focused on getting a ride to her friend's house instead of immediately calling the police was because she feared appellant would come back to get her before she had a chance to get away. Also, Ray testified that appellant told her to keep an eye on Heald. We disagree with appellant's position that the manner in which he "released" Heald realistically conveyed that she was now freed from captivity. Viewing all of the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of the offense, and also could have found against appellant on the defensive issue, beyond a reasonable doubt. Further, we conclude that the evidence of appellant's guilt, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt and the evidence in support of the defense is not so strong that the trial court's rejection of the defense does not meet the beyond-a-reasonable-doubt standard. Accordingly, we conclude the evidence is legally and factually sufficient to support the trial court's rejection of appellant's defense. We resolve issues one through four adversely to appellant. AGGRAVATED ASSAULT
Appellant argues the evidence is legally and factually insufficient to support his conviction for aggravated assault. Specifically, appellant contends the complainant misidentified appellant as the person who pointed the gun at him, appellant was in Tammy Ray's apartment all evening and could not have been outside complainant's apartment, and no shotgun was found to connect appellant to the offense. A. Standard of Review and Applicable Law
In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7. In making this determination, we bear in mind that the trier of fact is the exclusive judge of the witnesses' credibility and the weight of the testimony and may accept or reject all or part of the evidence of either side. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or when the contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Zuniga, No. 539-02, 2004 WL 840786, *7. To prove the offense of aggravated assault, the State had to show that appellant used or exhibited a deadly weapon during the commission of an assault. Id. § 22.02(a)(2). The State could show that the appellant intentionally, knowingly, or recklessly threatened another person with imminent bodily injury to prove the assault. Id. § 22.01(2). B. Application of Law to Facts
The record reveals that on the night of December 8, 2002, the complainant, Charles Singleton, answered a knock on his apartment door and saw a woman backing away shouting, "It's not him, it's not him, he don't have a gun." Singleton testified that as the woman backed away, appellant appeared from around a corner, pointed a shotgun at Singleton's face, and demanded to know where Singleton's stepson was. Appellant claimed that Singleton's stepson had robbed him and threatened Singleton that if his stepson had not returned in two hours appellant would kill "both you whores," referring to Singleton and his girlfriend, Letitia Mackintosh. Singleton testified that he was scared and thought appellant was about to shoot him in the head. When appellant left Singleton called 911 to report a man in the complex carrying a shotgun. In response to Singleton's call, Officer Bollon arrived at the scene where Singleton and Mackintosh flagged Bollon down. Bollon testified that Singleton and Mackintosh told him the man with the shotgun was now in an apartment. As Bollon approached the entrance of that apartment another person told Bollon that a man inside was being beaten. Bollon testified that he interviewed Singleton after the people inside the apartment, including appellant emerged and were handcuffed. The record shows that appellant was identified as the man who pointed a shotgun at Singleton earlier that evening. Officer Bollon testified that a shotgun is a deadly weapon. However, Officers Bollon and Harmon testified that the police did not locate a shotgun during a search of the apartment. Ray, appellant's friend and a reluctant witness, testified that appellant never left her apartment on December 8, 2000. She testified that while she, appellant, and others were in her apartment, four men forced their way into the apartment and robbed it. Additionally, she testified that one of the robbers who got away had a shotgun, that she didn't know Singleton or his stepson, and that she had no reason to believe appellant knew Singleton or his stepson. Appellant's points to the conflicting testimony as to his whereabouts on the night of December 8, 2000, and to the fact that no shotgun was found to support his argument that the evidence is legally and factually insufficient to support conviction. However, Ray's testimony that she and appellant were robbed corroborates Singleton's testimony that appellant was looking for a man that robbed them. Further, we may not reverse simply because the testimony conflicts. See Cain, 958 S.W.2d at 407. Rather, we must defer to the trier of fact as the exclusive judge of the witnesses' credibility and the weight of the testimony, recognizing that it may accept or reject all or part of the evidence of either side. Bowden, 628 S.W.2d at 784. As to appellant's contention that Singleton misidentified him, an eyewitness's testimony may be sufficient to sustain a conviction. See id.; Hester v. State, 909 S.W.2d 174, 178 (Tex.App.-Dallas 1995, no pet.). Again, the trier of fact is the exclusive judge of the witnesses' credibility and the weight to given to the testimony. Bowden, 628 S.W.2d at 784; Hester, 909 S.W.2d at 178. Examining the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of aggravated assault beyond a reasonable doubt. Accordingly, we conclude the evidence is legally sufficient to support the verdict, and we resolve appellant's fifth issue against him. Further, after conducting a neutral review of all the evidence, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt. Accordingly, we conclude that the evidence is factually sufficient to support appellant's conviction. We resolve appellant's sixth issue against him. CONCLUSION
Having resolved appellant's six issues adversely to him, we affirm the trial court's judgment.