Nos. 05-04-00781-CR, 05-04-00782-CR
Opinion Filed August 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 354th Judicial District Court, Hunt County, Texas, Trial Court Cause Nos. 21,954 and 21,955. Affirm and Affirm as Modified.
Before Justices O'NEILL, RICHTER, and FRANCIS.
Opinion by Justice RICHTER.
A jury convicted Darius Lamonde Mitchell of robbery (appellate cause number 05-04-00781-CR) and aggravated kidnapping (appellate cause number 05-04-00782-CR) and the trial judge assessed punishment in each case at eight years confinement. Although he appeals both cases, Mitchell's points of error concern the aggravated kidnapping case only. Specifically, in four points of error, Mitchell asserts the indictment in the aggravated kidnapping case was defective and the evidence was legally and factually insufficient to support the conviction. In an additional two points of error, Mitchell contends the court erred in denying his request for a jury instruction on the lesser-included offense of kidnapping, and his counsel rendered ineffective assistance of counsel by advising him he could receive probation from the judge when, in fact, because he had been convicted of a "3(g) offense" he could not. Because Mitchell does not assert any points of error in the robbery case, we affirm that judgment. We modify the judgment in the aggravated kidnapping case to reflect a conviction for kidnapping and, as modified, affirm. We remand this cause for a new punishment hearing only. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. Pamph. 2005).
See Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (g) (Vernon Supp. 2004-05) (providing that a defendant found guilty of aggravated kidnapping is not eligible for judge-ordered community supervision).
Background
Sixteen-year-old Richard Belcher was stopped at an intersection when Mitchell climbed into his truck, told him he had a gun, and demanded he drive him to a neighboring town. Belcher complied. At some point while driving to the neighboring town, Mitchell told Belcher to "switch" with him so he could drive. Belcher again complied. Mitchell then drove to an apartment complex where they were approached by acquaintances of Mitchell. After a few minutes, Mitchell drove to another apartment complex where he released Belcher and drove off. A grand jury subsequently returned two indictments against Mitchell: one for robbery and the other which alleged that Mitchell did then and there intentionally and knowingly abduct another person, to wit: RICHARD ODIE BELCHER, by restraining the said RICHARD ODIE BELCHER with intent to prevent his liberation by using and threatening to use deadly force and without RICHARD ODIE BELCHER'S consent did then and there restrain RICHARD ODIE BELCHER, so as to interfere substantially with his liberty, by confining the said RICHARD ODIE BELCHER.
Although this indictment alleges a kidnapping, see Tex. Pen. Code Ann. § 20.01, 20.03 (Vernon 2003 Supp. 2004-05), the State proceeded to trial as if Mitchell had been charged with aggravated kidnapping, with the robbery and/or "threat and use of a deadly weapon" serving as the aggravating factor(s).See id. § 20.04 (listing seven different means by which kidnapping becomes aggravated). At trial, Belcher testified the ordeal lasted "between an hour to an hour-and-a-half" and although he never actually saw a gun, he complied with Mitchell's demands because he was scared and believed Mitchell did have a gun. Belcher also testified that he did not feel free to leave at any point before Mitchell released him. Belcher's mother testified that she received a call from Belcher that he had been kidnaped and robbed. She then received a call from someone who was using Belcher's cell phone. The caller did not identify himself but told her he had Belcher's truck and they would be able to pick it up later. Officer Craig Betteron testified that he received the report of the carjacking and spoke to Belcher. Belcher's car was found later that day. It had been damaged in an accident and the speakers and radio were missing. Mitchell did not testify or call any witnesses, but moved for an instructed verdict. When his motion was denied, Mitchell requested instructions on the lesser-included offenses of kidnapping and unlawful restraint. See id. 20.02. These, too, were denied. Discussion
In his fourth point of error, Mitchell asserts for the first time on appeal the indictment is defective. At the heart of his complaint is that because the indictment alleges only kidnapping, he could not be convicted of the greater offense of aggravated kidnapping. We agree. A trial court is bound to the confines of the offense charged and may not enter a judgment for an offense greater than the one alleged. See Cunningham v. State, 726 S.W.2d 151, 152 (Tex.Crim.App. 1987); Houston v. State, 556 S.W.2d 345, 347 (Tex.Crim.App. 1977); Nassar v. State, 797 S.W.2d 318, 320 (Tex.App.-Corpus Christi 1990, pet. ref'd). Here, the indictment alleged the offense of kidnapping in accordance with section 20.03 of the Texas Penal Code. Under that section, a person commits the offense of kidnapping if he intentionally or knowingly abducts another person. See Tex. Pen. Code. Ann. § 20.03. Abduct means restraining a person with the intent to prevent his liberation by either (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. Id. § 20.01(2). And, "restrain" means restricting a person's movements without consent, so as to interfere substantially with his liberty by confining the person or moving the person from one place to another. Id. § 20.01(1). The indictment in this case tracks the language in section 20.03 and specifies that the abduction occurred by means of the use or threat of use of deadly force and that the restraint occurred by confining Belcher. By tracking the language in 20.03, the indictment alleged on its face the complete offense of kidnapping, and the trial court was bound by the confines of that offense. Accordingly, Mitchell could not be convicted of aggravated kidnapping. In concluding that Mitchell could not be convicted of aggravated kidnapping, we reject the State's argument that the indictment charged Mitchell with aggravated kidnapping but simply omitted the aggravating factor, an error that Mitchell waived by failing to object to the indictment prior to trial. Generally, to complain about a substantive defect in the indictment, such as the omission of an essential element of the offense, a defendant must object prior to trial or error is waived. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App. 1990). However, that requirement applies only where the indictment fails on its face to charge a complete offense. See Tex. Code Crim. Proc. Ann. art. 1.14(b); Thomason v. State, 892 S.W.2d 8, 11 (Tex.Crim.App. 1994). An indictment that facially charges a complete offense cannot, by definition, be substantively defective. As stated, the indictment here alleged on its face the offense of kidnapping. That the inclusion of another element-the aggravating factor-in the indictment would have alleged aggravated kidnapping is of no consequence. See Thomason, 892 S.W.2d at 11 (indictment facially charging theft under Texas Penal Code 31.03 could not be construed as a defective indictment charging aggregated theft under penal code 31.09 but omitting essential element making theft aggregated). We conclude Mitchell was not required to object under the facts of this case and thus Mitchell did not waive any error. We sustain Mitchell's fourth point of error. Because of our disposition of this point, we need not address Mitchell's remaining complaints. We must now determine the appropriate remedy. In doing so, we note that although the indictment alleged Mitchell restrained Belcher by confining him but the proof showed Mitchell restrained him by moving him from one place to another, Mitchell does not dispute he is guilty of kidnapping and the evidence supports his guilt beyond a reasonable doubt. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999) (legal sufficiency standard of review); Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004) (factual sufficiency standard of review). Accordingly, we modify the judgment to reflect a conviction for kidnapping and, as modified, affirm. See Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999) (holding in case where defendant indicted on greater offense that intermediate court may modify judgment reflecting conviction for greater offense to reflect conviction for a lesser offense if lesser offense is included within proof of greater offense and party requested charge on lesser offense which was denied). Kidnapping is a felony of the third degree, punishable by imprisonment for a term not less than two years or more than ten years, while Mitchell was punished for second-degree felony aggravated kidnapping with a range of not less than two years or more than twenty years. See Tex. Pen. Code Ann. §§ 12.33, 12.34, 20.03(c), 20.04(d). Here, the trial judge assessed Mitchell's punishment at eight years, on the lower end of the second-degree felony range. In light of this and the fact that Mitchell would be eligible to receive probation from the judge with a kidnapping conviction, see Tex. Code Crim. Proc. Ann. art. 42.12, § 3(g), we remand this case for a new hearing on punishment only. See id. art. 44.29(b). We affirm the conviction in the robbery case. We modify the judgment in the aggravated kidnapping case to reflect a conviction for kidnapping. As modified, we affirm and remand for a new trial on punishment only.