Nos. 05-04-00749-CR, 05-04-00750-CR, 05-04-00751-CR, 05-04-00752-CR, 05-04-00753-CR, 05-04-00754-CR, 05-04-00755-CR
Opinion Filed October 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 199-80597-04, 199-80598-04, 199-80599-04, 199-80600-04, 199-80824-04, 199-80825-04, and 199-81779-01. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice RICHTER.
A jury convicted Jerry W. Riley of the aggravated robbery and aggravated kidnapping of Eva Silvius, Jesus Hernandez, Joe Bolin, Jr., and Ryan Thompson. Following the jury's assessment of punishment at life imprisonment and a $10,000 fine in each case, the trial judge ordered these sentences to be served concurrently but consecutively to previously imposed seventy-five year sentences for the unrelated aggravated sexual assaults of Riley's three-year old daughter. On appeal, Riley asserts multiple points of error grouped into claims that (a) the evidence is legally and factually insufficient to support the convictions, (b) the convictions for aggravated robbery and aggravated kidnapping violate the prohibition against double jeopardy, and (c) the ordering of the sentences to be served consecutively to the previously imposed seventy-five year sentences constitutes cruel and unusual punishment. We affirm.
The State charged Riley in separate indictments for each offense against Silvius, Bolin, and Thompson, but in a single indictment for the offenses against Hernandez.
Riley raises this complaint only with respect to the offenses against Bolin, Silvius, and Thompson. He does not raise it with respect to the offenses against Hernandez.
Background
These cases arose after Riley and four others-Bob Leach, Bryan Riley ("Bryan"), Jeremy Reynolds, and Gerald Gantt-escaped from the Grayson County jail and took over the Jolabec Riding Stables in McKinney, Texas. There, Riley and the others held Silvius, the Stables's owner, and her employees Hernandez, Bolin, and Thompson hostage for several hours and robbed them. Silvius and Bolin did not testify at trial, but the testimony of Hernandez and Thompson, along with the videotaped jail interview of Riley, revealed that Riley and the other escapees were looking for a "safe house" and went to the Stables where Leach had worked. They were armed with several knives and at least one gun and also had marijuana. Their goal was to "take over" the Stables and "obtain" guns and money from Silvius. Silvius was taken captive first, followed by Hernandez, Bolin, and Thompson, each of whom were restrained upon arriving to the Stables. All four were "tied up" for portions of the, if not the entire ordeal and were threatened at different times with the gun. The escapees took Hernandez's money and the keys to Silvius's, Bolin's, and Thompson's cars. Additionally, Silvius was threatened her "throat would be slit" if she did not cooperate and Hernandez was forced to smoke marijuana and drink beer until he passed out. Throughout the entire ordeal, a bowie knife was in plain view and within arm's reach of at least one escapee. Eventually, Reynolds left in Silvius's car and Gantt and Leach left in Thompson's car, taking Silvius with them and leaving Riley and Bryan with Hernandez, Bolin, and Thompson. The ordeal ended for Hernandez, Bolin, and Thompson when officers, alerted to the situation by a volunteer who had driven to the Stables but turned around after recognizing one of the escapees, surrounded the Stables. Both Riley and Bryan surrendered without incident. Silvius escaped from Gantt and Leach two days later, and they along with Reynolds were subsequently arrested. None of the victims were physically injured, although all were "terrified" and "traumatized" by the ordeal. According to Hernandez and Thompson, the escapees worked together, although each one played a different role, and no one escapee appeared to be the leader. Sufficiency of the Evidence
Riley's first complaints concern the legal and factual sufficiency of the evidence to support the convictions. Riley maintains that none of the convictions can stand because no evidence was presented showing he personally participated in every aspect of the offenses. Riley also maintains, with respect to the offenses against Silvius, Hernandez, and Bolin that the convictions cannot stand because neither Silvius nor Bolin testified at trial or otherwise provided a statement and Hernandez was "passed out" for a portion of time. Finally, with respect to the kidnapping cases, Riley notes that some of the victims were not tied up the entire time and all of them worked at the Stables and were scheduled to be there the day of the ordeal. In reviewing a legal sufficiency challenge, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). 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 the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Based on the indictments in these cases, to obtain the convictions for aggravated robbery, the State had to prove Riley intentionally or knowingly threatened or placed each victim in fear of imminent bodily injury or death and used or exhibited a deadly weapon, either a gun or knife, while in the course of unlawfully appropriating each victim's property with the intent to deprive each victim of that property. See Tex. Pen. Code Ann. §§ 1.07(a)(17), 29.02(a)(2), 29.03(a)(2), 31.03(a) (Vernon 2003 Supp. 2004-05). To obtain the convictions for aggravated kidnapping, the State had to prove Riley intentionally or knowingly restrained each victim without the victim's consent and with the intent to prevent the victim's liberation by using or threatening to use deadly force. See id. §§ 20.01(1), 20.03(a) (Vernon 2003 Supp. 2004-05). Additionally, the State had to prove Riley used or exhibited a deadly weapon, either a gun or knife, during the kidnapping. See id. § 20.04(b). The State could prove the offenses by showing Riley acted either individually or as a party, that is, with the intent to promote or assist the commission of the offenses, he solicited, encouraged, directed, aided, or attempted to aid any of the other escapees in committing the offenses. See id. § 7.02(a)(2) (Vernon 2003). Viewing the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the convictions. The record reflects Silvius, Hernandez, Bolin, and Thompson were held against their will, threatened with the gun, and robbed. Although all of them were scheduled to be at the Stables that day and may not have been "tied up" the entire time, they were not free to leave. The victims were surrounded by the escapees and a knife laid in plain view and within arm's reach of at least one escapee throughout the entire ordeal. The record further reflects that all the victims were "terrified." Moreover, although Riley may not have participated in each aspect of each offense, he was present the entire time, personally participated in some aspects, and did not prevent the other escapees from "doing their part." From this evidence the jury could rationally find beyond a reasonable doubt that Riley acted as a party to each offense. See Hines v. State, 75 S.W.3d 444, 447-48 (Tex.Crim.App. 2002) (in aggravated kidnapping case, evidence showing appellant forced his way into bank, threatened employee by pointing gun at her, led her to vault, and ordered her to open vault legally sufficient to support finding appellant abducted and restrained employee); Santellan v. State, 939 S.W.2d 155, 163 (Tex.Crim.App. 1997) (offense of kidnapping does not require defendant restrain victim for any particular time); Louis v. State, 159 S.W.3d 236, 245 (Tex.App.-Beaumont 2005, pet. ref'd) (evidence legally and factually sufficient to support appellant's guilt as party to robbery where evidence showed conduct by one gunmen constituted offense charged and other gunmen acted with intent to promote or assist in robbery). That Bolin and Silvius did not testify and that Hernandez may have been "passed out" for a portion of the ordeal is of no consequence with respect to the offenses against them as the testimony of Thompson, along with the videotaped jail interview of Riley, was sufficient to establish the offenses against them occurred and Riley participated in them. We overrule Riley's legal and factual sufficiency points. Double Jeopardy
Riley's second group of complaints stems from his being convicted for both aggravated robbery and aggravated kidnapping. Because the offenses occurred as part of a single criminal episode and were committed against the same victims, Riley maintains the convictions constitute multiple punishment for the same offense in violation of the Double Jeopardy Clause of the United States Constitution. See U.S. Const. Amend V. Riley is correct that the Double Jeopardy Clause, applicable to the states through the Due Process Clause of the Fourteenth Amendment, prohibits multiple punishments for the same criminal conduct. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App. 1991). For double jeopardy purposes, "same criminal conduct" refers to a single criminal act that violates two separate penal statutes, one of which is subsumed in the other. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Here, although the kidnappings and robberies occurred as part of a single criminal episode, against the same victims, and shared the same aggravating factor-use or exhibition of a deadly weapon, they were distinct acts-restraining of the victim and theft of property-and constituted different offenses with unique elements of proof. Whereas kidnapping requires restraint of the victim, robbery requires the taking of property. See Tex. Pen. Code Ann. §§ 20.01(1),(2), 20.03(a), 29.02(a), 31.03(a). Riley's complaints are without merit. We overrule these complaints. Cruel and Unusual Punishment
Riley's last points of error concern the judge's order that Riley serve the sentences in these cases consecutively to the sentences imposed for the aggravated sexual assaults of his daughter. Riley maintains this order constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because he was "one of five escapees, not the leader, surrendered to the authorities, and none of the complainants were injured." See U.S. Const. amend. VIII. In response, the State argues Riley failed to preserve these points for review because he did not assert at trial that the order constituted cruel and unusual punishment. See Tex.R.App.P. 33.1(a)(1). We agree. Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). To have preserved error, Riley needed to have asserted in the trial court that his punishment was cruel and unusual. His failure to do so has waived any error. We overrule these complaints. We affirm the trial court's judgments.