Summary
holding evidence sufficient to prove the abduction element of aggravated kidnapping
Summary of this case from Dunn v. StateOpinion
No. 04-15-00594-CR
04-12-2017
Bo Jett LITTLETON, Appellant v. The STATE of Texas, Appellee
Travis Ketner, San Antonio, TX, for Appellant. Lauren Scott, Bexar County District Attorney's Office, San Antonio, TX, for Appellee.
Travis Ketner, San Antonio, TX, for Appellant.
Lauren Scott, Bexar County District Attorney's Office, San Antonio, TX, for Appellee.
Sitting: Karen Angelini, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice
Opinion by: Luz Elena D. Chapa, Justice
Bo Jett Littleton was convicted by a jury of aggravated kidnapping, burglary, and two counts of aggravated sexual assault. Littleton raises six issues on appeal contending: (1) the evidence is legally insufficient to support his convictions; (2) his conviction for burglary violates his protection against double jeopardy; (3) the jury charge contained egregious error because it allowed for a non-unanimous verdict; (4) his privacy rights were violated because the record does not reflect the trial court notified the victim to maintain the confidentiality of his mandatory AIDS test result; (5) the evidence is insufficient to support the assessment of the $35 peace officer fee; and (6) the trial court abused its discretion in admitting evidence of a prior bad act during the punishment phase of trial because the evidence of the bad act is legally insufficient. We overrule Littleton's issues and affirm the trial court's judgment.
BACKGROUND
On October 28, 2014, the victim and her roommate encountered Littleton at their apartment complex when he asked about the apartment numbering apparently in an effort to locate an apartment. The victim briefly explained the apartment numbering. Around 12:30 a.m. on October 29, 2014, a fire alarm caused the victim and her roommate to evacuate their apartment. They returned to their apartment about an hour later but failed to lock their door. Shortly thereafter, Littleton entered the apartment, pointed a gun at the victim and her roommate, and ordered them to lie face-down on the floor. Littleton handcuffed their arms behind their backs and took them into the victim's bedroom where he again ordered them to lie face-down on the floor. Littleton gagged them and tied or taped their ankles together.
Littleton then forced the victim into her roommate's bedroom. Littleton untied the victim's ankles and pulled out a knife. He cut the victim's shirt open, put the knife to her neck, and told her to cooperate if she wanted to live. Littleton then forced the victim to perform oral sex on him and penetrated the victim's vagina with his finger. As this was occurring, Littleton and the victim heard a noise. After forcing the victim back out of her roommate's bedroom, they discovered the roommate had escaped. Littleton then attempted to barricade himself in the apartment and tied the victim to the toilet in the bathroom.
The roommate summoned help from the police officers and firemen who were still on-site due to the earlier fire alarm. After a standoff, Littleton surrendered himself to the authorities and was arrested.
Littleton was subsequently charged with one count of aggravated kidnapping, one count of burglary, and two counts of aggravated sexual assault. A jury found Littleton guilty on all counts. Littleton was sentenced to sixty years' imprisonment for each offense with the sentences to run concurrently. Littleton appeals.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Littleton challenges the sufficiency of the evidence to support each of his convictions. When conducting a legal sufficiency review, we consider all of the evidence in the light most favorable to the verdict to determine whether, based on the evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Ramsey v. State , 473 S.W.3d 805, 808 (Tex. Crim. App. 2015). "The trier of fact is the exclusive judge of the credibility and weight of the evidence and is permitted to draw any reasonable inference from the evidence so long as it is supported by the record." Ramsey , 473 S.W.3d at 809.
A. Aggravated Kidnapping
In the amended indictment, Littleton was charged with aggravated kidnapping by three separate manner or means, including: (1) intentionally or knowingly abducting the victim with the intent to facilitate the commission of a felony, to wit: sexual assault; (2) intentionally or knowingly abducting the victim with the intent to violate or abuse the victim sexually; or (3) intentionally or knowingly abducting the victim and using or exhibiting a deadly weapon, namely a firearm, during the commission of the offense. In his brief, Littleton contends the evidence is legally insufficient to support his conviction because the State failed to prove the element of abduction.
Section 20.01(2) of the Texas Penal Code defines the term "abduct" in relation to the offense of aggravated kidnapping to mean "to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force." TEX. PENAL CODE ANN. § 20.01(2) (West 2011). This same definition was included in the jury charge. Littleton argues the jury could not have found he intended to secrete or hold the victim in a place where she was unlikely to be found because he held the victim in her own apartment. Littleton's argument ignores the jury could have found he abducted the victim by using or threatening to use deadly force. The evidence established Littleton used a gun when he initially entered the apartment and forced the victim to lie on the floor while he handcuffed her. Accordingly, we overrule Littleton's challenge to the sufficiency of the evidence to support his conviction for aggravated kidnapping.
B. Aggravated Sexual Assault
Littleton was charged with two counts of aggravated sexual assault by penetrating the victim's mouth with his sexual organ and by penetrating the victim's female sexual organ with his finger while using or exhibiting a deadly weapon and compelling the victim to submit and participate by the use of physical force or violence or by threatening to use force or violence. See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2016). Littleton argues the evidence is legally insufficient to support his conviction for the two counts of aggravated sexual assault because after the victim identified the defendant as the perpetrator of the offenses, she was asked, "And like how sure are you that it's the same person?" The victim responded, "Like 99 percent sure." Because the victim did not state she was 100% certain, Littleton contends the evidence is legally insufficient to support the aggravated sexual assault convictions.
In support of his argument, Littleton cites Johnson v. State , 23 S.W.3d 1 (Tex. Crim. App. 2000). As Littleton acknowledges, however, the Texas Court of Criminal Appeals in Johnson was reviewing the intermediate appellate court's application of a factual sufficiency review. Id. at 12. In Brooks v. State , however, the court overruled its prior opinion adopting a factual sufficiency standard for reviewing evidence and held a reviewing court should only apply a legal sufficiency standard in determining whether evidence is sufficient to support a conviction. 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).
In addition to considering a different standard of review, the facts in Johnson with regard to the state's proof of the defendant's identity are also readily distinguishable from the instant case. In Johnson , the defendant was wearing a ski mask during part of the offense, and the victim "never got a lengthy, unobstructed view of his face." 23 S.W.3d at 4. In the instant case, the victim had a conversation with Littleton earlier in the day and saw his face when he initially entered the apartment. More importantly, unlike in Johnson , where the defendant was not arrested until almost two years after the attack, id. , Littleton was arrested when he exited the victim's apartment and surrendered himself after a brief standoff. Finally, in Johnson , the DNA evidence was conflicting. Id. at 5. The State's expert determined the defendant was within the 8-1/2% of the black male population who could have contributed the DNA found in the sperm extracted from the victim's dress, while the defense expert testified the defendant was within the 26% of the black male population that could have produced the sperm. Id. In this case, the forensic scientist testified Littleton was not excluded as the person whose DNA profile was found on the victim's left breast, and "the random match probability in the Caucasian population is one and seven hundred and forty-nine quadrillion, one hundred trillion individuals." The forensic scientist explained, "what that number indicates is that if you had a — a group of that many people, you would expect to have this profile observed on the item of evidence once in that — that group of people." Similarly, the victim was not excluded as the person whose DNA profile was found on the penile swab tips taken from Littleton, and "the random match probability of seeing the profile on the item of evidence was one in forty-three quintillion, six hundred and ten quadrillion individuals."
Having reviewed the record as a whole, we overrule Littleton's challenge to the legal sufficiency of the evidence to support his conviction of the two counts of aggravated sexual assault.
C. Burglary
Littleton finally challenges the evidence to support his conviction for burglary. The argument Littleton asserts with regard to this offense, however, is that if the evidence is insufficient to prove he committed the aggravated kidnapping or aggravated sexual assault offenses, then the evidence is insufficient to prove the burglary offense. Because we have rejected his sufficiency complaints with regard to the aggravated kidnapping and aggravated sexual assault offenses, we also overrule this complaint.
Littleton's first issue is overruled.
DOUBLE JEOPARDY
In his second issue, Littleton contends his convictions violate his constitutional right to be free from double jeopardy. In support of this contention, Littleton cites Langs v. State , 183 S.W.3d 680 (Tex. Crim. App. 2006).
A double jeopardy claim based on multiple punishments for the same offense can arise if "the same conduct is punished twice; once for the basic conduct and, a second time for that same conduct plus more." Langs , 183 S.W.3d at 685. "The ‘same elements’ test first articulated by the United States Supreme Court in Blockburger v. United States , is used to determine if two convictions constitute ‘multiple punishments’ under the Double Jeopardy Clause." Id. (citing 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ) (footnote omitted). The test requires the court to consider whether each of the offenses "requires proof of a fact which the other does not." Id. (quoting Blockburger , 284 U.S. at 304, 52 S.Ct. 180 ).
Under section 30.02(a)(3), a person commits the offense of burglary if, without the effective consent of the owner, the person:
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). In Langs , the Texas Court of Criminal Appeals explained the double jeopardy analysis applicable when a defendant is charged with burglary as defined in section 30.02(a)(3) as follows:
It is well-settled that a defendant may not be punished for both the underlying felony and burglary if the burglary allegation is that the defendant entered a home without the consent of the owner and then committed the underlying felony within the home as defined in § 30.02(a)(3). Thus, the State may obtain either a burglary or the underlying felony (or theft or assault) conviction if it alleges a burglary under
Section 30.02(a)(3) of the Penal Code, but not both. Under Blockburger , burglary under Section 30.02(a)(3) requires proof of a fact that the felony charge does not, namely, entry without consent. However, to prove the burglary charge, the State must prove all of the elements of the underlying felony. Thus, the felony offense would not require proof of an additional element that the burglary offense does not also require.
183 S.W.3d at 686 (footnotes omitted).
In the instant case, Littleton believes the analysis in Langs applies because he asserts he was "convicted of both kidnapping and sexual assault against the victim as well as burglary and committing sexual assault and burglary and committing kidnapping." In the burglary count of the indictment, however, Littleton was charged with intentionally and knowingly entering a habitation without the effective consent of the victim and committing or attempting to commit a felony which the indictment alleged to be either sexual assault or kidnapping. The indictment also charged Littleton with aggravated kidnapping and two counts of aggravated sexual assault, as opposed to kidnapping and sexual assault. The jury charge tracked the offenses charged in the indictment, and the jury found Littleton guilty of aggravated kidnapping, burglary, and two counts of aggravated sexual assault.
Applying Blockburger's "same elements" test, we note in proving the aggravated kidnapping offense the State was required to prove a fact which it was not required to prove to establish Littleton committed the offense of burglary with intent to commit kidnapping. In this case, the additional fact was that Littleton abducted the victim: (1) with the intent to facilitate the commission of the felony of sexual assault; (2) with the intent to violate or abuse the victim sexually; or (3) using or exhibiting a deadly weapon. Similarly, in proving the aggravated sexual assault the State also was required to prove a fact which it was not required to prove to establish Littleton committed the offense of burglary with intent to commit sexual assault. In this case, the additional fact was that Littleton compelled the victim to submit or participate by the use of physical force or violence or by threatening to use force or violence and used or exhibited a deadly weapon in the course of the criminal episode. Finally, in proving the burglary offense, the State was required to prove Littleton entered the victim's habitation; however, the State was not required to establish this fact in proving the aggravated kidnapping or aggravated sexual assault offenses. Therefore, because each offense required proof of a fact which the others did not, Littleton's double jeopardy rights were not violated. Littleton's second issue is overruled.
UNANIMOUS VERDICT
In his third issue, Littleton contends the jury charge for count III contained egregious error because it allowed for a non-unanimous verdict. Littleton relies on the victim's testimony that he placed his penis in her mouth twice during the assault. In support of his argument, Littleton cites Cosio v. State , 353 S.W.3d 766 (Tex. Crim. App. 2011).
"Texas law requires that a jury reach a unanimous verdict about the specific crime that the defendant committed." Id. at 771. The Texas Court of Criminal Appeals has recognized three situations in which non-unanimity issues arise. Id. In his brief, Littleton relies on the second situation, which the court describes as follows:
Second, non-unanimity may occur when the State charges one offense and presents evidence that the defendant
committed the charged offense on multiple but separate occasions. Each of the multiple incidents individually establishes a different offense or unit of prosecution. The judge's charge, to ensure unanimity, would need to instruct the jury that its verdict must be unanimous as to a single offense or unit of prosecution among those presented.
Id. at 772 (footnotes omitted).
In this case, the victim testified Littleton forced her head down to his genital area while she was standing beside her roommate's bed and forced himself into her mouth. Littleton then removed his penis, ordered the victim to lay down on the bed, and put his penis back into her mouth. We disagree that this testimony was evidence that Littleton "committed the charged offense on multiple but separate occasions." See id. Instead, we hold the evidence established the charged offense was committed on a single occasion. Accordingly, we overrule Littleton's third issue.
AIDS TEST
In his fourth issue, Littleton contends his privacy rights were not protected because the trial court failed to notify the victim of her responsibility to keep the results of his AIDS test confidential. In support of his contention, Littleton cites section 81.103(c) of the Texas Health and Safety Code which requires a trial court to notify a victim receiving the results of a defendant's AIDS test of the requirements of section 81.103, including the requirement to maintain the confidentiality of the test result. See TEX. HEALTH & SAFETY CODE ANN. § 81.103(c) (West Supp. 2016). Littleton then argues the record contains "no notation, paper or order" demonstrating the trial court notified the victim in compliance with the statute. As the State notes in its brief, however, section 81.103(c) does not require the trial court to notify the victim in writing or to require such notice to be filed in the trial court record. Finally, Littleton's privacy rights would not be affected unless the record contained proof that the victim released or disclosed his test results. Accordingly, Littleton's fourth issue is overruled.
PEACE OFFICER FEE
In his fifth issue, Littleton contends the record contains no evidence to support the $35 peace officer fee assessed against him. The Texas Court of Criminal Appeals has rejected the argument that we review the assessment of a court cost or fee to determine if sufficient evidence was offered at trial to prove such a cost. See Johnson v. State , 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). Instead, we review the record to determine if there is a basis for the cost. Id. In this case, the record contains the certified bill of cost prepared by the district clerk which includes the peace officer fee. This is sufficient evidence to support the assessment of the fee. See id. at 396 (concluding "[a]bsent a challenge to a specific cost or basis for the assessment of that cost, a bill of costs is sufficient" to support the assessment of a cost); Guyton v. State , No. 04-13-00179-CR, 2014 WL 2917213, at *3 (Tex. App.—San Antonio June 25, 2014, no pet.) (mem. op., not designated for publication) (holding certified bill of costs constitutes sufficient evidence to support assessment of costs); Cardenas v. State , 403 S.W.3d 377, 385-89 & n.10 (Tex. App.—Houston [1st Dist.] 2013), aff'd , 423 S.W.3d 396 (Tex. Crim. App. 2014) (rejecting argument that record must contain a fee record in support of sheriff's costs and holding bill of cost sufficient evidence). Littleton's fifth issue is overruled.
EXTRANEOUS OFFENSE
In his sixth issue, Littleton contends the trial court erred in admitting evidence of a prior bad act during the punishment phase of trial because the evidence is legally insufficient to support a finding that he committed the act beyond a reasonable doubt.
During the punishment phase, "evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing," including "evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act." TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2016). In ruling on the admissibility of a prior bad act, the trial court is responsible for determining the threshold issue of whether the prior bad act is relevant. Mitchell v. State , 931 S.W.2d 950, 953 (Tex. Crim. App. 1996) ; Arzaga v. State , 86 S.W.3d 767, 781 (Tex. App.—El Paso 2002, no pet.). If admitted, the jury then determines whether or not the State has proven the prior bad act beyond a reasonable doubt. Mitchell , 931 S.W.2d at 953 ; Arzaga , 86 S.W.3d at 781. The trial court satisfies its threshold responsibility by making an initial determination that sufficient evidence exists from which a jury could reasonably find beyond a reasonable doubt that the defendant committed the prior bad act. Arzaga , 86 S.W.3d at 781. We apply an abuse of discretion standard in reviewing a trial court's admission of evidence under article 37.03. McGee v. State , 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). A trial court abuses its discretion only if it acts outside the zone of reasonable disagreement. Id.
During the punishment phase in the instant case, the State sought to introduce evidence that Littleton attempted to burglarize another home several years before the offenses in question. The trial court conducted a hearing outside the presence of the jury and ruled the evidence was admissible. Littleton contends the trial court abused its discretion because the evidence did not show beyond a reasonable doubt that he committed the bad act and points to the fact that he was never convicted of a burglary offense arising from the incident.
First, the statute does not require that Littleton be convicted of an offense before evidence of a prior bad act is admissible. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (providing evidence of bad act is admissible "regardless of whether [the defendant] has previously been charged with or finally convicted of the crime or act"). In addition, "[u]nlike the guilt-innocence phase, the question at punishment is not whether the defendant has committed a crime, but instead what sentence should be assessed." Haley v. State , 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). "Whereas the guilt-innocence stage requires the jury to find the defendant guilty beyond a reasonable doubt of each element of the offense, the punishment phase requires the jury only find that these prior acts are attributable to the defendant beyond a reasonable doubt." Id. Accordingly, we construe Littleton's complaint as asserting the trial court abused its discretion in determining a jury could reasonably find the prior bad act was attributable to him beyond a reasonable doubt.
Several witnesses provided testimony regarding Littleton's prior bad act. Rolla Lashay Kelley testified she was asleep at her parents' home when she heard their dogs barking in the backyard around 8:00 a.m. Kelley testified her parents lived in a very small town, and her parents had already left for work. Kelley looked out the window and saw a person wearing a hoodie. Kelley was alarmed because the person had to go through a gate and walk around the house to reach the back door. Kelley heard the person trying to open the back sliding glass door. Kelley took pictures on her cell phone and watched him because she did not have cell phone reception inside the house and the landline was by the sliding glass door. When she saw the man walking down the street and knew he had left, she grabbed the landline and called her mother. Kelley then locked herself in her parents' bedroom, and the 911 dispatch operator called her. Kelley left the bedroom when she saw her mother arrive and went outside to meet her. Her father arrived shortly thereafter. As she was talking to her mother, Kelley saw a person walking toward the direction of the house and told her mother the person was the man who had attempted to enter their house. Kelley recognized the man from his hoodie and the backpack he was carrying. Her mother and father went to confront the man, and the police arrived. Kelley's mother then returned to the house and shared with Kelley that the man was Littleton, who Kelley and her family knew since childhood.
In his brief, Littleton isolates the following question and answer referencing "they;" however, the rest of Kelley's testimony clearly refers to one man:
Q. (By [the State]) All right. And — and when you saw somebody that you did not recognize, can you tell the Judge like exactly where were they in relation to the house?
A. They were — they were in the backyard to where — I had thought it was my father that left his keys and he was coming back from work to come back. We go through the back door. But when I looked out the window it was somebody in a hoodie and I couldn't see the face. And so immediately I said something's not right. Who is this?
Kelley's mother testified she confronted Littleton after her daughter pointed him out. Littleton admitted to her that he had gone into their yard, stating he wanted to use their phone. When Kelley's mother asked if he tried to get inside their house, Littleton admitted he did. Littleton stated his phone was not working, and he needed to make a phone call because his car broke down by the river.
Deputy Sheriff Nathan Johnson testified he was dispatched to Kelley's home for a burglary in progress. When he arrived at the scene, Deputy Johnson saw Littleton with Kelley's parents and detained him. When Deputy Johnson patted down Littleton, he removed several items from his pockets, including leg irons, zip ties, a gag rag, condoms, rubber gloves, wire, tape, a knife, and a cell phone. Littleton told Deputy Johnson he was trying to get into the house because he knew someone was in the house who could let him use the phone. Littleton stated his vehicle broke down by the river and he needed a ride to work. Deputy Johnson sent another officer to look for the vehicle and received a report that no vehicle could be located. In addition, Deputy Johnson discovered Littleton's cell phone was operable and functioning. Upon questioning Kelley, Deputy Johnson learned Kelley owned a very identifiable yellow car which was the only car at the house at the time, so Kelley believed Littleton knew she was home.
Based on the foregoing, we hold the trial court did not abuse its discretion in determining a jury could reasonably find the prior bad act was attributable to Littleton beyond a reasonable doubt. Littleton's sixth issue is overruled.
CONCLUSION
The trial court's judgment is affirmed.