Opinion
NUMBER 13-14-00754-CR
06-23-2016
ASHLEY RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
Appellant Ashley Rodriguez appeals her conviction for one count of aggravated kidnapping, a first-degree felony, see TEX. PENAL CODE ANN. § 20.04 (West, Westlaw through 2015 R.S.); and one count of retaliation, a third-degree felony, see id. § 36.06 (West, Westlaw through 2015 R.S.), which was enhanced to a second-degree felony after Rodriguez pleaded true to a previous conviction of burglary of a habitation, a second- degree felony. See id. § 12.42(a) (West, Westlaw through 2015 R.S.).
By five issues, which we treat as four, Rodriguez asserts that: (1) the evidence was insufficient to sustain her conviction for (a) aggravated kidnapping or (b) kidnapping; (2) the trial court's jury charge contained an incorrect statement of law which violated Rodriguez's right to a unanimous jury verdict; (3) the prosecutor's final argument on punishment was impermissible and caused incurable harm; and (4) Rodriguez's punishment violated the federal and state constitutions because it is cruel and unusual. We affirm.
I. BACKGROUND
The record at trial revealed the following: on August 23, 2014, Rodriguez and her husband Rosendo Torres prepared to move out of their apartment located on Reid Street in Corpus Christi. Assisting in the move, among others, was neighbor Christine Rohm.
During the course of packing up boxes and moving, Rodriguez accused Rohm of attempting to steal two bottles of nasal spray and a debit card from her. Torres testified that sometime during the move, the debit card went missing. Rohm testified that she did not take either the nasal spray or the debit card, but Rodriguez continued to accuse her. Rohm testified that after the initial accusations, Rodriguez pushed Rohm into her kitchen and proceeded to punch Rohm in the head. According to Rohm, who was forty-seven years old at the time of trial and disabled, she did not fight back against Rodriguez's attacks because Rodriguez was pregnant at the time. After the scuffle in the kitchen, Rodriguez ordered Rohm to sit on a chair located in the living room of the apartment and told Rohm that if she attempted to leave Rodriguez's apartment, "she was really going to hurt [Rohm]." Rohm testified that at that point, Rodriguez left the apartment and returned a short time later with a jewelry box and a roll of black electrical tape that Rohm kept in her apartment. Rohm told jurors that Rodriguez took the jewelry box in retaliation for her belief that Rohm stole her debit card.
At that point, Rodriguez ordered Rohm to sit still and proceeded to tape Rohm's mouth with the electrical tape "from above the lip of her mouth to the back of her head. And, also, some tape around her chin, neck area." According to Rohm, as she was taped up, Rodriguez proceeded to burn her skin with a lit cigarette and also tried choking her with the electrical tape. Rohm admitted that she was not physically restrained to the chair, but that Rodriguez threatened her with bodily injury if she decided to get up and leave. Rohm testified that a short time later, Torres returned to the apartment from moving boxes, removed the tape from Rohm's face, and asked Rohm: "What did you do to her?"
This description was recounted by the State's prosecutor and noted on the record by the trial court, as Rohm gestured for the jury.
Subsequently, Corpus Christi Police Officer Justin Hicks arrived at the Rodriguez apartment in response to a disturbance call. Officer Hicks testified that he knocked on the door and Rodriguez answered the door. When the door opened, Officer Hicks noticed several people in the Rodriguez apartment, including Rohm, and explained the reason for his visit. Rodriguez proceeded to tell Officer Hicks that "[e]verybody here is fine. There is nothing going on. Everything is good." However, Officer Hicks noticed Rohm standing next to a chair in the living room, appearing "very scared," and mouthing the word "help" to him. Officer Hicks then entered the apartment and made contact with Rohm who told him that she had been taped up and hit by Rodriguez. Officer Hicks told jurors that he observed scratches, abrasions, and cigarette burns on Rohm's body. The trial court admitted photographs taken of Rohm depicting Officer Hicks's observations. After speaking to all of the parties, Officer Hicks—at his lieutenant's orders—arrested Rodriguez.
Rodriguez's neighbor Michelle Esquivel testified that she heard an argument ensue between Rodriguez and Rohm on August 23, 2014. Esquivel stated that Rohm had upset Rodriguez for allegedly taking two bottles of nasal spray from Rodriguez, and Rodriguez had accused Rohm of taking her missing debit card. While Esquivel was not in Rodriguez's apartment during the argument, she stood outside and heard Rohm crying and telling Rodriguez "no, stop" as Rodriguez proceeded to "slap[], [and] hit[]" Rohm. Esquivel also testified that she heard Rodriguez tell Rohm that she was not to leave the apartment until she returned her debit card.
Two witnesses testified on behalf of Rodriguez. Alejandro Martinez told jurors that he assisted Rodriguez and Torres move that day and was in the bedroom at the time that the State alleges Rodriguez committed acts against Rohm. According to Martinez, he did not hear any arguing or screaming from the living room to indicate that a fight or disagreement was in progress between Rodriguez and Rohm, but he did overhear an exchange of words regarding the missing debit card. Martinez testified that when police arrived at the apartment, he was asked to leave. Finally, Torres testified that when he returned from taking some moving boxes in Martinez's truck to his brother's house, he found Rohm sitting in the chair in the living room. When Torres asked Rohm what she was still doing at the apartment, Rohm "did not know what to say." Torres testified that he did not observe "anything out of the ordinary" that day and that Rodriguez was in the shower when he returned to the apartment. A short time before the police arrived, however, Torres noticed that Rohm had tape stuck in her hair. Torres told jurors that the debit card went missing that day, but was later found on a clipboard in the apartment.
Recordings of jail telephone calls made between Rodriguez and Torres were admitted into evidence as State's Exhibits 23 and 24.
After a three-day trial, the jury found Rodriguez guilty as charged. Further, the jury assessed Rodriguez's punishment at seventy-five years and twenty years imprisonment for the aggravated kidnapping and retaliation charges, respectively. The trial court sentenced Rodriguez according to the jury's findings, and this appeal followed.
II. SUFFICIENCY CHALLENGE
By her first and second issues, Rodriguez asserts that the evidence is insufficient to support the trial court's finding of guilt on aggravated kidnapping and kidnapping.
Rodriguez does not challenge her conviction for retaliation.
A. Standard of Review and Applicable Law
In reviewing sufficiency of evidence to support a conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in the light most favorable to the verdict, we defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilty is warranted by the cumulative force of all incriminating evidence. Winfrey, 393 S.W.3d at 768.
The elements of the offense are measured as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Under a hypothetically correct jury charge in this case, Rodriguez is guilty of aggravated kidnapping if she (1) intentionally or knowingly abducted Rohm; (2) with the intent to inflict bodily injury on her, or terrorize her. See TEX. PENAL CODE ANN. § 20.04(a). To "abduct" means to restrain a person with intent to prevent her 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. Id. § 20.01(2) (West, Westlaw through 2015 R.S.). To "restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Id. § 20.01(1). Restraint is "without consent" if it is accomplished by: force, intimidation, or deception. Id.
B. Discussion
Rodriguez concedes in her brief that the evidence shows that she "restrained" Rohm. Rodriguez solely contends, however, that the evidence is insufficient to show that she "abducted" Rohm under the penal code's definition because the evidence does not support her specific intent to restrain her by secretion or deadly force. We disagree.
First, Rodriguez argues that the evidence shows that the apartment was "a central hub of activity" within the apartment complex on the day of the move to indicate that Rodriguez never intended to isolate Rohm from other people. However, a rational factfinder may infer such an intent when a defendant isolates a person from anyone who might be of assistance. Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009). Furthermore, the mere presence of third persons unconnected with the offense does not mean that she was, as a matter of law, "likely to be found" because the victim may be unable to ask for assistance. See Cortez v. State, 738 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1987, no writ). An assailant may "hold" her victim by force or threats. See id. In this case, the evidence is sufficient to establish that Rohm was held by force and threats. The record shows that after Rodriguez proceeded to punch Rohm repeatedly in the head, she ordered her to sit on the chair. Further, Rodriguez told Rohm that if she attempted to leave the apartment, the beating was going to, as Rohm testified, "happen again[,] again[, and] again." Rohm also told the jury that Rodriguez told her that if she were to walk out of the apartment, "[Rodriguez] was going to really hurt me." Additionally, the record shows that Rodriguez wrapped electrical tape across Rohm's mouth, chin, and neck. Rohm told jurors that at that point, she felt that her life was endangered. Finally, even taking Martinez's and Torres's testimony as true that they had no knowledge that Rodriguez held Rohm by force or threats, a rational factfinder could infer that this further isolated Rohm from someone who might have been of assistance to her. See Laster, 275 S.W.3d at 522.
Lastly, Rodriguez argues that while the evidence may show that Rodriguez made threats of deadly force upon Rohm, "these threats did not occur during this period of Rohm's restraint." Again, we disagree. The record shows that Rodriguez continually made threats to Rohm during her restraint. Specifically, Rohm testified that Rodriguez burned Rohm's skin with a lit cigarette as she sat, taped up in Rodriguez's living room, when Rodriguez told her "If you keep up [sic], I'm going to make you spend the night here and make you sleep on the floor. And you will never walk out that door again."
Therefore, after considering all of the evidence in the light most favorable to the verdict, we determine that a rational fact finder could have found that Rodriguez committed the offense of aggravated kidnapping beyond a reasonable doubt. See Winfrey, 393 S.W.3d at 768. We overrule Rodriguez's first and second issues.
Because the offense of kidnapping is a lesser-included offense of aggravated kidnapping, see Lavarry v. State, 936 S.W.2d 690, 694 (Tex. App.—Dallas 1996, pet. dism'd), and because we hold that sufficient evidence supports Rodriguez's conviction of aggravated kidnapping, we need not address Rodriguez's second issue. See TEX. R. APP. P. 47.1. --------
III. JURY CHARGE
By her third issue, Rodriguez asserts that the trial court included an improper statement of law in the jury charge.
A. Standard of Review
Our first inquiry is whether the charge contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error exists, we then analyze for harm. Id. If the error was preserved by objection, any error that is not harmless will constitute reversible error. Id. If the error was not preserved by objection, the error will not reverse the conviction without a showing of egregious harm—that is, harm that deprives a defendant of a "fair and impartial trial." Id.
B. Discussion
Rodriguez argues that the trial court improperly included the term "restraint" as an element of committing aggravated kidnapping instead of unlawful restraint. The relevant portion of the charge in this case stated the following:
AGGRAVATED KIDNAPPING
1.
"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.
"Restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person.
Restraint is "without consent" if it is accomplished by force, intimidation, or deception.
When delivering a charge to the jury, a trial court shall deliver "a written charge distinctly setting forth the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2015 R.S.). This rule requires that the charge include "definitions of those words and phrases that have been legislatively provided." See Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986) (en banc). "Abduction" requires two elements, the first being that the defendant must have restrained another, which is the actus reus requirement. See Laster, 275 S.W.3d at 521. The second is the specific intent to prevent liberation, which is the mens rea. Id. Thus, the term "restrain" is used in the legislative definition of "abduct" in penal code section 20.01(2) and is likewise legislatively defined on its own by penal code section 20.01(1). See TEX. PENAL CODE ANN. § 20.01(1)-(2). Accordingly, we hold that the trial court's charge was not erroneous. The trial court's inclusion of the statutory definition of "restraint" was required under article 36.14 because it set forth the law applicable to the case. See Arline, 721 S.W.2d at 352 n.4. We overrule Rodriguez's third issue.
IV. PROSECUTOR'S ARGUMENT AT PUNISHMENT
By her fourth issue, Rodriguez asserts that the prosecutor's argument during the punishment phase of trial was impermissible and caused incurable harm to Rodriguez.
A. Preservation of Error
A defendant's failure to object to a jury argument forfeits her right to complain about the argument on appeal. Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) overruling Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989)). However, when a defendant is faced with an incurable harm, the defendant should move for a mistrial to properly preserve her complaint on appeal. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (en banc).
B. Discussion
Rodriguez specifically complains about the following argument made by the State's prosecutor during the punishment-phase of trial:
As you know and I have mentioned this before, this is a media case. What you decide as a community will set a bench mark throughout our community and send a message to our community what this type of case is worth.At no time following this statement or after the State's closing argument did Rodriguez lodge an objection or move for mistrial. As a result, we hold that this issue is not properly preserved for our review. See Estrada, 313 S.W.3d at 303; Young, 137 S.W.3d at 70. We overrule Rodriguez's fourth issue.
V. CRUEL AND UNUSUAL PUNISHMENT
By his fifth and final issue, Rodriguez asserts that the trial court's ordered sentence of seventy-five years' imprisonment for Rodriguez's aggravated kidnapping conviction is grossly disproportionate to the crime committed.
A. Preservation of Error
To preserve error regarding the cruelty, unusualness, or excessiveness of a sentence, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. See Trevino v. State, 174 S.W.3d 925, 927 (Tex. App.—Corpus Christi 2005, pet. ref'd); see also TEX. R. APP. P. 33.1(a) (discussing generally how to preserve error for appellate review in the trial court). Even constitutional claims can be waived by a failure to object. Trevino, 174 S.W.3d at 927 (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)).
B. Discussion
The record in this case reveals that Rodriguez made no objection, either at the time of sentencing or in a post-trial motion, regarding any allegedly cruelty, unusualness, or excessiveness of the sentence imposed in this case. As a result, we hold that this error was not properly preserved for our review today. Rodriguez's final issue is overruled.
VI. CONCLUSION
We affirm the trial court's judgment.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 23rd day of June, 2016.