Opinion
NO. 14-16-00816-CR
01-11-2018
DERIC FLETCHER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas
Trial Court Cause No. 1524754
MEMORANDUM OPINION
We consider four issues in this appeal from a conviction for aggravated kidnapping: (1) whether the evidence is legally insufficient to support the conviction; (2) whether the trial court reversibly erred by denying a guilt-phase instruction for the lesser-included offense of aggravated assault; (3) whether trial counsel was constitutionally ineffective because he failed to request a punishment-phase instruction on voluntary release; and (4) whether the trial court reversibly erred by failing sua sponte to give a punishment-phase instruction for extraneous offenses. Finding no reversible error with respect to any of these challenges, we overrule all four issues and affirm the trial court's judgment.
BACKGROUND
After a night of using methamphetamine, appellant accused the complainant, his girlfriend, of stealing a key to a safe. The complainant denied the accusation, but she offered to search for the key. When the key could not be found, appellant grabbed the complainant by the arm, threw her to the ground, and proceeded to attack her.
The attacks eventually abated, and the complainant told appellant again that she would search for the key. Hoping to escape, the complainant ran for the door, but appellant grabbed her and threw her to the ground once more. He then punched her repeatedly in the head.
Appellant confiscated the complainant's phone and the keys to her vehicle. He then accused her of being a demon, dragged her about the house, and assaulted her some more. Over the course of several hours, appellant punched the complainant in the stomach, stabbed her in the back with a needle, choked her with a TV remote, shoved change down her throat, stood on her hands, tied her up with a belt, beat her with a broom, and burned her with a lighter.
Appellant wrote a note to the complainant, apologizing for his actions, but he said that he was unable to stop. He then grabbed a sledgehammer, swung it over his head, and brought it down on the complainant's leg. The swings continued, up and down the leg, breaking both the femur and the patella.
When he ended his attack with the sledgehammer, appellant called his mother and threatened to kill her and the complainant. The mother quickly notified police, who arrived on scene and placed appellant under arrest.
SUFFICIENCY OF THE EVIDENCE
A person commits an aggravated kidnapping if he intentionally or knowingly "abducts" another person and he uses or exhibits a deadly weapon during the commission of the offense. See Tex. Penal Code § 20.04(b). The word "abduct" has its own statutory definition, meaning "to restrain a person with intent to prevent [her] liberation by . . . using or threatening to use deadly force." Id. § 20.01(2)(B). The word "restrain" also has its own statutory definition, meaning "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).
The State is not required to prove that the defendant moved the victim a certain distance or confined her for a minimum length of time. See Griffin v. State, 491 S.W.3d 771, 775 (Tex. Crim. App. 2016). Our law provides that the offense is completed when the defendant, at any time during the restraint, forms the intent to prevent the victim's liberation by using or threatening to use deadly force, and the defendant actually uses or exhibits a deadly weapon. See Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). We examine all of the evidence in the light most favorable to the verdict when deciding whether a rational jury could have found these essential elements beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
We first consider the element of "restraint." The evidence showed that appellant seized the complainant's cellphone and car keys, which limited her movements. He also used force to beat her and tie her up, which contributed to her confinement. Based on this evidence, a rational jury could conclude that appellant restricted the complainant's movements without her consent and that he substantially interfered with her liberty by confining her to his house. See Tex. Penal Code § 20.01(1)(A) (providing that restraint is "without consent" if it is accomplished by force, intimidation, or deception).
To prove the "abduction" element, the State was required to show that, during the restraint, appellant formed the intent to prevent the complainant's liberation by using or threatening to use deadly force. Id. § 20.01(2)(B). "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. See Phillips v. State, 597 S.W.2d 929, 934 (Tex. Crim. App. [Panel Op.] 1980); Kenny v. State, 292 S.W.3d 89, 98 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).
The evidence showed that appellant used a sledgehammer to break the complainant's leg. The complainant testified that she "scream[ed] bloody murder" and that she had "never felt something more painful in [her] entire life." The complainant also said that, after the beating, she tried to stand up but her leg "was pretty much like a noodle" and she "couldn't use it at all." The jury could have reasonably inferred that, by breaking the complainant's leg (i.e., by inflicting serious bodily injury), appellant intended to prevent her liberation through the use of deadly force. See Laster, 275 S.W.3d at 524 ("Because one's acts are generally reliable circumstantial evidence of one's intent, the jury could reasonably infer that Laster intended to do exactly what he did—to inflict bodily injury on B.T.").
Similarly, the jury could have reasonably inferred that appellant's abduction of the complainant was intentional based on the collective force of all of his actions, including his apology to the complainant for what he had done and what he was about to do. See Elizondo v. State, 487 S.W.3d 185, 201 (Tex. Crim. App. 2016) (holding that intent is a question of fact to be determined by the surrounding circumstances).
The jury could have also concluded that appellant used a deadly weapon in the commission of the kidnapping because his use of the sledgehammer actually caused serious bodily injury. See Tex. Penal Code § 1.07(17) (defining "deadly weapon").
Appellant suggests that the evidence is insufficient because the complainant testified that her memory of the events was "jumbled," due to her own use of drugs. This line of argument merely assails the credibility of the complainant's testimony, which we do not reevaluate in a sufficiency analysis. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Appellant also argues that the evidence is insufficient because he did not use or threaten deadly force when he first restrained the complainant. This argument is meritless. A restraint does not require the use or threatened use of deadly force. A restraint may be accomplished with just the use of regular force, as opposed to deadly force. See Tex. Penal Code § 20.01(1)(A). In certain situations, a restraint may even be accomplished with no force at all. Id. § 20.01(1)(B) (referring to the "acquiescence of the victim" if the victim is a child or an incompetent person); see also Brimage v. State, 918 S.W.2d 466, 476 (Tex. Crim. App. 1994) (noting that not even an abduction requires the use of deadly force).
Viewing the record in the light most favorable to the verdict, we conclude that a rational jury could have found every essential element of the offense beyond a reasonable doubt. See Weaver v. State, 657 S.W.2d 148, 150 (Tex. Crim. App. 1983).
LESSER-INCLUDED OFFENSE
Before the trial court submitted the case to the jury, appellant requested an instruction for the lesser-included offense of aggravated assault. The trial court denied the request, and appellant now challenges that ruling.
A trial court reversibly errs by denying a requested instruction for a lesser-included offense if (1) the lesser offense is included within the proof required of the charged offense, and (2) there is some evidence from which a rational jury could acquit the defendant of the charged offense while convicting him of the lesser offense. See Segundo v. State, 270 S.W.3d 79, 90-91 (Tex. Crim. App. 2008).
Aggravated assault is a lesser-included offense of aggravated kidnapping when, as here, the defendant is alleged to have used deadly force during the commission of the kidnapping. See Girdy v. State, 213 S.W.3d 315, 318-19 (Tex. Crim. App. 2006). Thus, the first prong of our error analysis has been satisfied.
To satisfy the second prong, there must be affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the charged offense. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). In other words, the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). It is not enough that the jury may disbelieve crucial evidence pertaining to the charged offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).
Appellant argues that he should have received an instruction on the lesser-included offense because the evidence is legally insufficient to prove an "abduction" under the charged offense. This argument fails for two reasons. First, as we explained in the previous section of this opinion, the evidence is sufficient to prove an abduction. Second, an instruction on a lesser-included offense must be based on affirmative evidence, not the absence of evidence. See Cavazos, 382 S.W.3d at 385.
In what appears to be an alternative argument, appellant suggests that the complainant's attempt to leave is affirmative evidence that rebuts or negates the charged offense. But this evidence establishes that the complainant was restrained, and therefore, it supports the charged offense.
We conclude that no evidence was presented from which a rational jury could conclude that appellant was guilty of aggravated assault but not guilty of aggravated kidnapping. Accordingly, the trial court did not err by denying the requested instruction for aggravated assault.
INEFFECTIVE ASSISTANCE OF COUNSEL
Aggravated kidnapping is ordinarily a first-degree felony, but if a defendant proves by a preponderance of the evidence that he voluntarily released the victim in a safe place, the offense is a second-degree felony. See Tex. Penal Code § 20.04(c)-(d).
Appellant contends that his trial counsel was ineffective because counsel did not request a mitigating instruction on voluntary release during the punishment phase of trial. To prevail on this claim of ineffectiveness, appellant must establish that (1) his trial counsel's performance was deficient, and (2) the deficient performance was so prejudicial that it deprived him of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We need only focus on the first prong of this test.
When assessing counsel's performance, we look at the totality of the representation and to the circumstances of the case, not to isolated instances in the record reflecting errors of commission or omission. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We will only conclude that counsel's performance was deficient if it fell below an objective standard of reasonableness. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). This is not a low threshold. Our review of counsel's performance is highly deferential, and we presume that counsel's decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Thus, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
The record in this case does not reveal counsel's reasons for not requesting an instruction on voluntary release. Even though appellant filed a motion for new trial and even though counsel filed an affidavit, neither focused on this particular issue of a mitigating instruction.
When the record is silent as to counsel's strategy, we will not conclude that a defendant received ineffective assistance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). That exception does not apply here. We can reasonably infer that counsel did not request an instruction on voluntary release because the evidence did not support it.
Before he may be entitled to an instruction for voluntary release, the defendant must produce some evidence that he actually released the victim in safe place. See West v. State, 406 S.W.3d 748, 766 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). And to prove that the release was voluntary, the evidence must also show that the release was not occasioned by rescue or escape. See Brown v. State, 98 S.W.3d 180, 188 (Tex. Crim. App. 2003).
The evidence here did not raise the issue of voluntary release. To the contrary, the evidence showed that appellant tried to conceal the complainant's presence once police officers arrived on scene. Appellant met the officers outside of his house, told them that no one was inside, and insisted that they leave. The officers remained because they heard the complainant inside, screaming for help. Only then did appellant grant the officers permission to enter the home.
Appellant nevertheless believes that he is entitled to relief under this court's decision in Storr v. State, 126 S.W.3d 647 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd), where we held (on a silent record) that counsel was ineffective for failing to request an instruction on voluntary release. The facts of Storr are completely different, however. In that case, the defendant kidnapped a victim at a post office and placed him in the trunk of a car. Id. at 648. The car was later stopped for a traffic violation, but the victim remained silent because he had been threatened, and the police officer drove away without searching the vehicle. Id. After the traffic stop, the defendant returned the victim to the post office and released him unharmed. Id. On that record, we held that the evidence conclusively established a voluntary release. Id. at 652.
The same cannot be said here. Appellant did not release the complainant after the officers left the scene. Quite the opposite, appellant allowed the officers to search his home because they affirmatively heard the complainant screaming inside.
The evidence here did not raise the issue of voluntary release in a safe place, and counsel was not ineffective for failing to request a mitigating instruction on that issue.
EXTRANEOUS-OFFENSE INSTRUCTION
During the punishment phase of trial, the complainant testified that appellant choked her on the day before the aggravated kidnapping. However, the jury received no instructions in the punishment charge regarding this extraneous offense. Appellant now argues that the trial court erred by failing sua sponte to instruct the jury that it could only consider the extraneous offense if it was proven beyond a reasonable doubt.
We review complaints of charge error under a two-step process, considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error does exist, we then analyze that error for harm under the procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
The trial court is required to give an extraneous-offense instruction, even when the defendant does not request one, because the instruction is the law applicable to the case. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000); Lopez v. State, 515 S.W.3d 547, 551 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). Here, the trial court did not give the instruction, and its failure to do so is error.
Under Almanza, the degree of harm necessary for reversal depends on whether the defendant objected to the charge error. See Almanza, 686 S.W.2d at 171. Because appellant did not object here, he can only obtain reversal if the error caused him egregious harm. Id.
Harm is egregious when the error deprives the defendant of a fair and impartial trial. See Orellana v. State, 489 S.W.3d 537, 543 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). The defendant suffers such a deprivation when the error affects the very basis of the case, denies the defendant a valuable right, or vitally impacts a defensive theory. Id. The harm must be actual, not merely theoretical. Id.
We assay harm in light of the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
Beginning with the punishment charge, we note that even though the trial court omitted an extraneous-offense instruction, the court still included a reminder that "the burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant." Neither the parties nor the judge suggested that this burden was anything less than proof beyond a reasonable doubt. We conclude that the charge as a whole weighs neither for nor against a finding that appellant suffered egregious harm. See Martinez v. State, 313 S.W.3d 358, 367 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).
Turning next to the state of the evidence, we note that the punishment hearing was short in relation to the guilt proceedings. Unlike the circumstances surrounding the aggravated kidnapping, which were fully developed, the evidence pertaining to the extraneous offense was sparse. The complainant did not explain why appellant allegedly committed the extraneous offense, nor did she elaborate on any details of the extraneous offense. By comparison, the details of the aggravated kidnapping were brutal and graphic. The State even produced photographic evidence showing the extent of the complainant's injuries. This evidence was clear, direct, and unimpeached, and the jury was far more likely to consider it than the extraneous-offense evidence when assessing appellant's punishment. Accordingly, this factor weighs against a suggestion that appellant suffered egregious harm.
As for the arguments of counsel, neither side mentioned the extraneous offense to the jury. Defense counsel referred to appellant's troubled upbringing and asked the jury to sentence appellant to fifteen years' imprisonment. The prosecutor did not recommend a particular sentence, but she referred to a different extraneous offense—a felony conviction in which appellant assaulted his grandfather (and to which appellant had pleaded true). The prosecutor also referred to the torture and pain that appellant inflicted on the complainant, and suggested that a fifteen-year sentence would be inappropriate.
The jury assessed punishment at sixty-five years' imprisonment, plus a $10,000 fine. Although on the high end, this punishment was still less than the maximum, and it reflected the seriousness of appellant's actions over the course of the aggravated kidnapping.
The record does not show that the omission of the extraneous-offense instruction affected the very basis of the case, deprived appellant of a valuable right, or vitally impacted a defensive theory. Considering all the factors together, we cannot say that the trial court's error resulted in egregious harm.
CONCLUSION
The trial court's judgment is affirmed.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).