Opinion
No. 05-05-00555-CR
Opinion issued July 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-73151-MJ. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
OPINION
Bobby Dwayne Parker appeals his aggravated kidnapping conviction. A jury convicted appellant, and the trial court sentenced him to thirty-five years' confinement. In nine issues, appellant argues the evidence is factually insufficient to support his conviction or to show he used a deadly weapon, and the trial court erred in denying his requested charge on the lesser included offense of terroristic threat, admitting certain evidence of extraneous acts, and denying his motion for a mistrial based on certain witness testimony. We affirm the trial court's judgment. Laquita Bennett, twenty-seven at the time of trial, testified she first met appellant when she was fourteen and appellant was eighteen. The same year, appellant and Bennett started dating and had a sexual relationship. During her relationship with appellant, Bennett would not "get caught with another dude" because she would "get accused of being with that person and get beat up" by appellant. The relationship continued for about a year, and then appellant went "away for a while." Approximately ten years later, Bennett saw appellant in her neighborhood. Appellant would stare at Bennett when he saw her and fight other men if he saw them with Bennett. Bennett testified appellant would say "I'm his ho, I'm his bitch, and there's no nigga gonna disrespect him with his ho because I'm always gonna be his ho. If he can't have me, nobody can have me." On April 30, 2003, Bennett was at the house of a female friend named Pineapple. Appellant came to the door and said he wanted to talk to Bennett, but she refused. When Pineapple opened the door to let a friend of hers out, appellant barged inside and grabbed Bennett. Bennett struggled with appellant and thought that appellant was going to kill her. In an effort to trick appellant into going out the door, Bennett said she would go with him but she needed to get her shoes. Appellant went outside, and Bennett slammed the door and pulled a couch in front of it, but appellant forced his way back inside and grabbed Bennett again. Bennett held on to the door, but appellant hit her in the stomach, and she let go. Appellant dragged Bennett out the door despite her attempts to hold onto the poles holding the porch up. Appellant pried Bennett's hands off the poles, bruising her hands in the process. After a continued struggle, appellant succeeded in forcing Bennett into his car and holding her in the front seat while he started the car and drove away. Appellant was "screaming and yelling" that Bennett and Pineapple were having a sexual relationship, but Bennett denied the accusation. Appellant drove to an apartment complex where Bennett's cousin lived and got out of the car. Appellant had a gun in his hand that he had picked up from the floor of his car. Appellant started "fussing and talking" and trying to "pamper" Bennet and "wipe the blood off from the scratches." Bennett was scared and played along with appellant, agreeing that she would not "put kidnapping charges" on appellant. Appellant took Bennett upstairs into her cousin's apartment where Bennett sat on a couch and appellant lay on the floor. Appellant kept his gun with him, but at one point appellant fell asleep, and Bennett was able to run out the back door and escape to another cousin's house, where Bennett told what had happened and the police were called. Appellant was subsequently charged with and convicted of aggravated kidnapping. This appeal followed. In his first and second issues, appellant challenges the factual sufficiency of the evidence to show appellant committed aggravated kidnapping or used or exhibited a deadly weapon. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the trier of fact may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). The factfinder is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 20.04(b) (Vernon 2003). Here, the record contains Bennett's testimony that appellant forced his way into Pineapple's house, forcibly dragged Bennett outside, held her in his car against her will, drove her to the apartment of Bennett's cousin, and carried a gun while he held her at the apartment until morning. Bennett's cousin Sonda Eaton testified that, on the night of the kidnapping, appellant and Bennett arrived at her apartment complex, and they were "not arguing like arguing" but "talking." According to Eaton, she, another man, Bennett, and appellant sat outside talking until about 3:00 a.m. before going in the house. Eaton asked Bennett if she and appellant were going to stay overnight, and Bennett said they were. Eaton went with the other man and spent the night at his house. In the morning, Eaton came home and "cooked all of us breakfast." The jury was free to disbelieve Eaton's testimony and believe Bennett's testimony that appellant kidnapped her and used or exhibited a handgun during the course of the kidnapping. See Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. Accordingly, we conclude the evidence is factually sufficient to support appellant's aggravated robbery conviction and to show he used or exhibited a deadly weapon. See Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first and second issues. In his third issue, appellant argues the trial court erred in denying his requested charge on the lesser included offense of terroristic threat. In determining whether a defendant is entitled to a charge on a lesser included offense, we first determine whether the lesser-included offense is included within the proof necessary to establish the offense charged and, second, whether some evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). As stated previously, a person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person and uses or exhibits a deadly weapon or if he abducts a person with the intent to inflict bodily injury on the person. Tex. Pen. Code Ann. §§ 20.04(a)(4), (b) (Vernon 2003). A person commits the offense of terroristic threat if he threatens to commit any offense involving violence to any person or property with intent to place any person in fear of imminent serious bodily injury. Tex. Pen. Code Ann. § 22.07(a)(2) (Vernon Supp. 2005). Relying on section 20.04(a) of the penal code, appellant characterizes the charged aggravated kidnapping offense as intentionally or knowingly abducting a person with the intent to inflict bodily injury on the person, abuse the person sexually, or terrorize the person. Tex. Pen. Code Ann. §§ 20.04(a)(4), (5) (Vernon 2003). As appellant rightly points out, "abduct" means to restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found or using or threatening to use deadly force. Tex. Pen. Code Ann. § 20.01(2) (Vernon Supp. 2005). Appellant argues that, even if the evidence shows he went to Pineapple's house and physically forced Bennett to leave with him, the jury could have rationally believed that he did not secret her away or threaten deadly force. We disagree. Appellant has cited no cases, and we have found none, holding that terroristic threat is a lesser included offense of aggravated kidnapping. The offense charged was abducting Bennett, restraining, confining, and moving her, secreting and holding her in a place where she was not likely to be found, and threatening to use deadly force against her with the intent to inflict bodily injury on her and using and exhibiting a deadly weapon. Nowhere in the indictment does it allege appellant threatened to commit any offense involving violence against Bennett. Under these circumstances, terroristic threat was not included within the proof necessary to establish the offense charged. See Rousseau, 855 S.W.2d at 673. Further, Bennett testified appellant dragged her out of Pineapple's house, hitting her in the stomach and bruising her hands in the process. After appellant forced Bennett into his car, he drove away with her and took her to her cousin's apartment where he threatened her with a gun until he dozed off and Bennett ran away. Eaton testified appellant and Bennett arrived at her apartment complex and were just talking until about 3:00 a.m. when Bennett said she and appellant were going to stay overnight. In the morning, Eaton came home and "cooked all of us breakfast." Thus, there is no evidence appellant threatened to commit any offense involving violence to Bennett with intent to place her in fear of imminent serious bodily injury. See Tex. Pen. Code Ann. § 22.07(a)(2) (Vernon Supp. 2005). Instead, Bennett's testimony shows appellant abducted her and intentionally inflicted bodily injury on her and used or exhibited a handgun during the commission of the offense. Eaton's testimony was that Bennett willingly spent the night with appellant and they were just talking. Thus, there is no evidence in the record that would permit a jury rationally to find that if appellant is guilty, he is guilty only of the lesser offense of terroristic threat. See Rousseau, 855 S.W.2d at 673. Accordingly, the trial court did not err in denying his requested charge on the lesser included offense of terroristic threat. We overrule appellant's third issue. In his fourth, fifth, and sixth issues, appellant argues the trial court abused its discretion in admitting evidence of his generalized assaultive conduct, an assault against another man, and an unadjudicated aggravated assault against Bennett. Specifically, appellant argues the extraneous conduct was inadmissible under rules of evidence 403 and 404(b). We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We view the evidence in the light most favorable to the trial judge's ruling. See Corbin v. State, 85 S.W.3d 272, 282 (Tex.Crim.App. 2002). Rule 404(b) disallows evidence of other crimes, wrongs, or acts to prove a person acted in conformity with their character by committing the charged offense. See Tex. R. Evid. 404(b). However, extraneous offense evidence is admissible for other purposes, such as to show motive, intent, plan, or absence of mistake or accident. See id. In determining whether, under rule 403, the probative value of evidence is substantially outweighed by the danger of unfair prejudice, we consider (1) the probative value of the evidence, (2) the potential of the evidence to impress the jury in an irrational and indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000). The last inquiry includes three subparts: (1) whether the proponent has other available evidence to show the fact of consequence that the extraneous misconduct is relevant to show; (2) if so, how strong is that other evidence; and (3) whether the fact of consequence is related to an issue that is in dispute. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). Over appellant's objection, the trial court allowed into evidence Bennett's testimony that, on March 17, 2003, appellant saw Bennett talking to her friend Eric in a group. Appellant would fight other men if he saw them with Bennett. Appellant came up and "started slapping [Eric] like a female." Eric asked what he had done, and appellant told Eric he knew what he had done. Appellant said Eric should not disrespect him in front of Bennett and that Bennett was appellant's property. Eric ran off, leaving Bennett with her cousin Candy and a female friend and appellant with his cousin. Appellant was still angry, but Bennett went to him when he called. Appellant said a man had told him Bennett "was at the room with him" and "what kind of panties [Bennett] had on" and started hitting Bennett. Appellant choked Bennett, held her against a van parked nearby, pulled a chrome handgun and cocked it. Appellant pointed the gun at her and said, "Bitch, I'm gonna kill you." Bennett prayed and then opened her eyes and told appellant to "kill me, go ahead." Appellant gave the gun to his cousin and continued choking Bennett with both hands around her neck. After seeing that Bennett was getting weak, appellant started hitting Bennett with his hands and dragged her away to a nearby street, across the street, and behind some apartments. Bennett knew appellant was trying to take her to his cousin's house, and she knew "if he got me in that house what was gonna happen." Bennett fought back and ended up on the ground in a kind of "tug-of-war" with appellant. Appellant started kicking Bennett and "stomped [her] like [she was] a rag doll." Appellant started choking Bennett again, and Bennett's friends were too afraid to help her. Bennett pretended to be passed out, and appellant left her lying in the dirt. With difficulty, Bennett got up and went to her cousin's house and then to the hospital where she was treated and released that night. Bennett had a concussion and a "big knot." Her neck was so swollen she could barely move it. Her teeth had gone into her bottom lip, and one tooth was broken. Bennett stayed in bed at her mother's house for about a week after the attack. Appellant's extraneous conduct in fighting men he saw with Bennett, slapping Eric, and choking Bennett, pointing a gun at her, and dragging her away were clearly relevant to show appellant's motive, intent, plan, and absence of mistake or accident. See Tex. R. Evid. 404(b). Further, while the extraneous acts are "prejudicial" in the sense that they show appellant's motive, intent, and plan for kidnapping Bennett, we conclude their probative value is not substantially outweighed by the danger of unfair prejudice. See Reese, 33 S.W.3d at 240-41. Accordingly, we conclude the trial court did not abuse its discretion in admitting evidence of the extraneous acts. See Burden, 55 S.W.3d at 615. We overrule appellant's fourth, fifth, and sixth issues. In his seventh issue, appellant argues the trial court erred in denying his motion for mistrial after Eaton testified that Keniqua Anderson was the only witness who had never been in trouble with the law. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). Mistrial is appropriate for only "highly prejudicial and incurable errors." Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. The trial court is required to grant a motion for a mistrial only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. The asking of an improper question will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005). Here, the prosecutor asked Eaton whether it was true that appellant, Bennett, Eaton, and "all these other folks that the defense attorney has mentioned" had "been to prison, used drugs, [and] been around drugs." The prosecutor rephrased the question, asking whether it was true that "the only person we've talked about today that has never been in trouble with the law is [Eaton's] cousin, Keniqua Anderson." The trial court sustained appellant's objection to this question and instructed the jury to disregard the question. However, the trial court denied appellant's motion for a mistrial. We note Eaton did not answer the question. Further, the question indicates that Bennett herself had "been in trouble with the law" as well as appellant. Under these circumstances, we conclude the trial court's instruction to disregard cured any error, and no mistrial was warranted. See Russeau, 171 S.W.3d at 885. We overrule appellant's seventh issue. In his eighth and ninth issues, appellant argues the trial court abused its discretion during the punishment phase of trial by admitting evidence of two pending drug possession cases against him and evidence regarding traffic offenses. Specifically, appellant argues he was not given proper notice that the State would use the evidence, and the evidence was not offered in rebuttal. Again, we review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden, 55 S.W.3d at 615. After a finding of guilty, evidence may be offered during the punishment phase of trial as to any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2005). On timely request of the defendant, notice of intent to introduce evidence under article 37.07 shall be given in the same manner required under rule of evidence 404(b). Id. § 3(g). However, when the State presents extraneous offense evidence in rebuttal to mitigation evidence offered by the defendant, advanced notice of intent to offer the extraneous offense evidence is not possible. Jaubert v. State, 74 S.W.3d 1, 3-4 (Tex.Crim.App. 2002). Moreover, section 3(g)'s notice requirement applies only to case-in-chief evidence. Id. Here, appellant testified at punishment that "I was young when I went to the penitentiary the first time, I made a mistake, and I just apologize." When asked if he thought he had done anything wrong to Bennett, appellant replied, "I think in my past I have, yes. I'm not perfect, and in my past, I have, and I apologize for that." When asked, "Do you apologize to her?" appellant responded, "I apologize to her for the things that I done in my past, yes, I do." The prosecutor then questioned appellant about whether he had committed the charged aggravated kidnapping, which appellant denied. However, appellant admitted he had been to prison for attempted murder, aggravated assault on a police officer, two other aggravated assaults on non-police officers, felony unauthorized use of a motor vehicle, several evading arrest charges, and several unlawful carrying of a weapon offenses. Appellant's counsel did not object to any of this questioning. However, when the prosecutor asked appellant about two pending possession of controlled substances cases and a traffic violation, appellant's counsel objected. We cannot conclude the trial court abused its discretion in overruling appellant's objections to these questions in light of appellant's testimony that his crimes were "in [his] past" and the prosecutor's apparent attempt to show that appellant's crimes were not confined to the past. See Burden, 55 S.W.3d at 615. Further, because the extraneous acts were introduced during cross-examination and rebuttal testimony, not the State's case-in-chief, appellant was not entitled to notice of the extraneous offenses. See Jaubert, 74 S.W.3d at 4. Finally, the trial judge, as the trier of facts in assessing punishment, is presumed to have disregarded any improper evidence. Kimithi v. State, 546 S.W.2d 323, 327 (Tex.Crim.App. 1977). We overrule appellant's eighth and ninth issues. We affirm the trial court's judgment.