Opinion
No. 10-03-00325-CR
Opinion delivered and filed October 27, 2004. DO NOT PUBLISH.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court # 26823CR. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Justice VANCE dissents with a note: I believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions. I would find the evidence legally insufficient to support the kidnapping element, reform the conviction to the lesser-included offense of attempted murder, and remand the cause for a new punishment hearing. See Herrin v. State, 125 S.W.2d 436 (Tex.Crim.App. 2002) ("The critical question is whether the murder was committed in the course of the kidnapping or attempted kidnapping, not the other way around."). Because the majority does otherwise, I respectfully dissent).
MEMORANDUM Opinion
This is an appeal of a conviction for criminal attempt to commit capital murder in the course of kidnapping. See TEX. PENAL CODE ANN. §§ 15.01(a), 20.03(a) (Vernon 2003); id. § 19.03(a)(2) (Vernon Supp. 2004). We will affirm. 1. Sufficiency of the Evidence. In Appellant's first issue, he contends that the evidence that he intended to kidnap the victim was legally and factually insufficient. Appellant went to the victim's bedroom window at night, and told her that he had some strawberries for her at a nearby pond. After the victim came outside, Appellant wrapped a wire pipe cutter around her neck, dragged her, and punched her in the face, and she lost consciousness. When she regained consciousness, she was beside the pond. Appellant points to evidence that the pond was on the property of the victim's family, that the victim initially left the house voluntarily, and that the victim told a nurse that she had walked to the pond, where Appellant attacked her. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant intended to kidnap the victim. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rayford v. State, 125 S.W.3d 521, 526 (Tex.Crim.App. 2003). The evidence is thus legally sufficient. Viewing the evidence in a neutral light, the jury was rationally justified in finding beyond a reasonable doubt that Appellant intended to kidnap the victim. See Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex.Crim.App. Apr. 21, 2004). The evidence is thus factually sufficient. We overrule Appellant's first issue. 2. Recusal Motion. In Appellant's second issue, he contends that the trial judge, and the judge to whom Appellant's motion to recuse the trial judge was referred, erred in not recusing the trial judge. See TEX. R. CIV. P. 18a; De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004) (orig. proceeding). Since the record does not show that Appellant filed a verified motion, Appellant forfeits his complaint. See TEX. R. CIV. P. 18a; Arnold v. State, 853 S.W.2d 543, 544-45 (Tex.Crim.App. 1993); Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex.App.-Waco 2002, no pet.); Madden v. State, 911 S.W.2d 236, 239 (Tex.App.-Waco 1995, no pet.). We overrule Appellant's second issue. 3. Notice of Intent to Seek Deadly Weapon Finding. In Appellant's third issue, he contends that the State failed to give him notice of intent to seek an affirmative finding that he used a deadly weapon in the commission of the offense, and that the trial court thus erred in entering such a finding. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g (Vernon Supp. 2004); Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997). The indictment alleged, in relevant part, that Appellant, "with the specific intent to commit the murder of Sarah Barton, d[id] an act, to-wit: choke Sara[h] Barton with a cable saw." This allegation "specifically mentions a particular object or substance and its use with respect to death or serious bodily injury," and thus provides adequate notice. See Narron v. State, 835 S.W.2d 642, 643 (Tex.Crim.App. 1992) (citing Ex parte Brown, 773 S.W.2d 332, 333 (Tex.Crim.App. 1989) ("stabbing with a knife with the specific intent to commit the offense of murder")). We overrule Appellant's third issue. Having overruled Appellant's issues, we affirm the judgment.