No. 05-04-00104-CR
Opinion Filed September 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-01584-PR. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
Opinion By Justice MAZZANT.
A jury convicted Jesus Hilario Barraza of aggravated kidnapping and assessed punishment at seventy-five years confinement. On appeal, appellant's appointed attorney filed a motion to withdraw and supporting brief in which she concludes the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). In a pro se response to counsel's brief, appellant contends he received ineffective assistance of counsel, the evidence was insufficient to support the verdict, and evidence of extraneous offenses was improperly admitted. We affirm.
Ineffective Assistance of Counsel
In his first and fourth grounds, appellant contends he received ineffective assistance of counsel because counsel failed to request a pretrial hearing to present a defense of attempted assault, counsel lacked a cogent defensive strategy, and he failed to prepare adequately for trial. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). During the charge conference, trial counsel requested instructions and application paragraphs that would allow the jury to find appellant guilty of attempted aggravated kidnapping, attempted kidnapping, or assault. The State responded that those offenses were not raised by the evidence. The trial court denied trial counsel's request. See generally Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005) (explaining two-prong test for determining whether the trial court should instruct the jury on a lesser-included offense). See also Warner v. State, 944 S.W.2d 812, 814-15 (Tex.App.-Austin 1997), pet. dism'd, improvidently granted, 969 S.W.2d 1 (Tex.Crim.App. 1998) (applying two-prong test to conclude defendant not entitled to instruction on attempted aggravated kidnapping). The record does not reveal the extent of trial counsel's trial preparation nor does it contain trial counsel's explanation for his trial strategy. Without trial counsel's explanation, we cannot conclude on direct appeal that appellant received ineffective assistance of counsel. See Ortiz, 93 S.W.3d at 88-89; Bone, 77 S.W.3d at 836; Thompson, 9 S.W.3d at 813-14. We conclude that appellant's first and fourth grounds do not raise an arguable issue for direct appeal. Sufficiency Of The Evidence
In his second ground, appellant contends the evidence is factually insufficient because the State did not prove he used a deadly weapon during the offense and the evidence shows merely an unsuccessful attempt to kidnap the complainant. As proof he did not succeed in his kidnapping attempt, appellant points to closing argument wherein the prosecutor declared to the jury that appellant had "almost" total control of the complainant. Although appellant characterizes his complaint as challenging the factual sufficiency of the evidence, he asks us to reverse his conviction. Accordingly, we will consider appellant's contention as raising both legal and factual sufficiency grounds. In reviewing the legal sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). We examine 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 offense beyond a reasonable doubt. Id. The jury is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994). It is the exclusive province of the jury to reconcile evidentiary conflicts. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). The jury may choose to believe some testimony and disbelieve other testimony. Id. The jury may draw reasonable inferences from basic facts to ultimate facts. Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of evidence to support a verdict, we review all of 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 determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Cognizant of the jury's role and unique position, we must defer to the jury's determinations, particularly those determinations involving the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). Our authority to disagree with the jury's determinations is limited to situations "when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. Use or exhibition of a deadly weapon may, in an appropriate case, be a sufficient factor to raise kidnapping to an aggravated offense. See Tex. Pen. Code Ann. § 20.04 (b) (Vernon 2003). However, the aggravated kidnapping statute provides several other means by which kidnapping may be elevated to an aggravated offense. See id. § 20.04 (a). The State charged appellant with intentionally or knowingly abducting the complainant with the intent to inflict bodily injury and to violate or abuse her sexually. See id. § 20.04(a)(4). An offender "abducts" a victim by restraining the victim with intent to prevent the victim's liberation by secreting or holding the victim in a place where the victim is not likely to be found. See Tex. Pen. Code Ann. § 20.01(2) (Vernon Supp. 2004-05). An offender "restrains" a victim if the offender restricts the victim's movements without consent, so as to interfere substantially with the victim's liberty, by moving the victim from one place to another or by confining the victim. See id. § 20.01(1). The State's evidence shows the complainant was rollerblading on a concrete trail in a park. Appellant ran out of the woods beside the trail, knocked the complainant down, and dragged her by her legs a distance of five-to-eight feet into the woods. While appellant dragged her, the complainant struggled and screamed for help. The complainant briefly escaped from appellant when one of her rollerblades came off, and she was able to crawl back out of the woods. Two cyclists, William Beaty and Viviana Prieur, rode by on the trail and saw appellant on top of the complainant. As Beaty and Prieur approached, appellant rose quickly, made a gesture as if he was zipping up or reaching into his pants, and retreated toward the woods. Beaty rode over and ordered appellant not to leave while Prieur called the police. Prieur described the complainant as frightened, scratched up, sweating, panting, and covered with dirt. Dallas police officer Mark Johnson and his partner arrived and took appellant into custody. When Johnson searched appellant's pockets incident to arrest, he found a green cloth with duct tape on it, wire flexicuffs, and two pieces of green twine or rope. Johnson smelled alcohol on appellant's breath. The complainant showed the officers the location in the woods where appellant had dragged her. Within two feet of the spot the complainant indicated, the officers found two bags containing clothes, more rope, and more wire flexicuffs. According to Prieur, appellant told the officers in Spanish that he only wanted to kiss the complainant. During trial, detective B.J. Watkins testified that the items in appellant's possession constituted a "rape kit." Watkins testified the cloth could be used as a gag, the rope or twine could be used to bind the victim's legs, and the flexicuffs could be used to bind the victim's hands or ankles. Watkins testified that the complainant had been distraught when he had interviewed her at the police station after the offense. The State also introduced expert forensic testimony showing some blood on the complainant's shirt contained DNA matching appellant's DNA that would be found in an estimated one in 2.19 trillion persons of Hispanic origin. The defense did not call any witnesses. The fact that appellant knocked the victim down, grabbed her legs, dragged her from the trail to the woods, and laid on top of her shows appellant "restrained" and "abducted" the victim sufficiently to satisfy the statutory definitions. See id. at § 20.01(1), (2). See also Warner, 944 S.W.2d at 814-15 (concluding aggravated kidnapping defendant restrained victim before her escape by tying her, sitting on her, holding her down, and warning her that he would not allow her to escape). The complainant testified she thought appellant intended to sexually assault her and possibly kill her. We conclude the jury could easily infer appellant's intent to inflict bodily injury and to abuse and sexually assault her from his actions and his possession of the "rape kit" materials in his pockets and in the bags. Having reviewed the evidence under the appropriate standards, we conclude that there is no arguable issue regarding the legal or factual sufficiency of the evidence. See Jackson, 443 U.S. at 318-19; Zuniga, 144 S.W.3d at 484-85. Therefore, we overrule appellant's second ground. Extraneous Offense Evidence
In his third issue, appellant contends the evidence was factually insufficient to show he committed two extraneous offenses introduced during the punishment phase of trial. This Court has already determined that factual sufficiency review does not apply to the punishment phase determination of whether the evidence proves beyond a reasonable doubt that the defendant committed an unadjudicated extraneous offense. See Wilson v. State, 15 S.W.3d 544, 549 (Tex.App.-Dallas 1999, pet. ref'd). Furthermore, the trial court did not abuse its discretion in allowing the State to introduce the extraneous offense evidence. During the punishment phase of trial, the State may introduce evidence of extraneous crimes or bad acts that it can show were either committed by appellant or for which he could be held criminally responsible. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a) (Vernon Supp. 2004-05). In the case of unadjudicated offenses, after the trial court makes a threshold determination of whether the evidence is admissible, the jury determines whether the State has proven the unadjudicated extraneous offense beyond a reasonable doubt. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). We can review for an abuse of discretion the trial court's determination to admit the evidence. Id. The trial court held a hearing outside the jury's presence at which the proposed witnesses testified. During the hearing, the State introduced testimony showing that about one week before the current offense, appellant had committed two similar offenses against two other women in the same area where the complainant was attacked. Both women identified appellant in photographic lineups and in court as the man who attacked them. One of the victims, M.O., did admit that she had been unable to positively identify appellant as her attacker when police officers showed him to her about twenty-five minutes after the offense. M.O. explained that she did not identify appellant initially because he had changed his clothing, his breath no longer smelled of alcohol, and he was talking constantly whereas he had been silent during the assault. M.O. testified, however, that she was certain that appellant was the man who attacked her. A complainant's credible identification of the defendant constitutes legally sufficient evidence to support a jury verdict. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). Given the obvious relevance of the extraneous offenses and the victim identifications of appellant, we cannot conclude an arguable issue could be raised regarding the trial court's determination to admit the unadjudicated extraneous offense evidence. See Mitchell, 931 S.W.2d at 953. We overrule appellant's third ground. Conclusion
We have reviewed the record, counsel's brief, and appellant's pro se response. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.