Lockett, Arvin DeWayne v. The State of Texas--Appeal from 212th District Court of Galveston County

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State: Texas

Court: Texas Northern District Court

Docket No: 14-03-00601-CR

Case Date: 11/24/2004

Plaintiff: Lockett, Arvin DeWayne

Defendant: The State of Texas--Appeal from 212th District Court of Galveston County

Preview:Robert Solis v. The State of Texas--Appeal from 338th District Court of Harris County
Opinion issued March 25, 2004

In The Court of Appeals For The First District of Texas

NO. 01-02-01069-CR NO. 01-02-01070-CR

ROBERT SOLIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court Harris County, Texas Trial Court Cause Nos. 906939 & 906940

MEMORANDUM OPINION

A jury convicted appellant, Robert Solis, of aggravated assault // and aggravated kidnapping. // See Tex. Pen. Code Ann. 22.02, 20.04 (Vernon 2003). After finding that appellant had voluntarily released his child in a safe place, the jury assessed appellant s punishment at 20 years confinement for each offense, the sentences to run concurrently. See id. 20.04(d) (stating that, if defendant proves that he released his victim in safe place, the offense is second-degree felony, rather than first-degree felony).

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We determine (1) whether the evidence is legally and factually sufficient to support appellant s conviction for aggravated kidnapping and (2) whether the trial court erred by denying appellant s request to instruct the jury on the use of deadly force to protect a third person s property. We affirm. Facts On the morning of February 11, 2002, Harry Hill and his girlfriend, Andrea Aguilar, had an argument at Aguilar s apartment. At that time, both Hill and Aguilar were living in the apartment, although the lease was in Aguilar s name only. After the argument, Aguilar left the apartment and drove to appellant s house. When Aguilar arrived, appellant noticed that she had scratches on her face and that she had been crying. When Aguilar informed appellant that Hill had hit her, appellant grabbed a gun from a closet and took Aguilar s car back to her apartment to find Hill. A few minutes later, appellant arrived at Aguilar s apartment and found that Hill had deadbolted the door. Hill walked out onto the balcony to see who was at the door. Appellant told him to come outside because they needed to settle something. By the time that Hill got outside, appellant had gone back down the steps to the apartment. Hill rushed down the steps toward appellant and saw that appellant had a gun. Hill turned to run back up the stairs, and appellant shot him in the back of the leg. After the shooting, appellant went back to his house and told Aguilar to go back to the apartment and to give the police appellant s address, indicating that appellant intended to surrender to the police at his house. When the police arrived at appellant s house, they were under the impression that appellant was going to surrender, but appellant did not allow the police to approach him. Appellant sat in a chair in the garage with the door open, holding a gun in one hand and his four-year-old son in the other. Appellant never pointed his gun at anyone, but he refused to surrender, and he kept his son on his lap. Appellant eventually closed himself and his son inside the garage. Appellant surrendered and released his son approximately an hour after the police had arrived and after a SWAT team was in the process of breaking into appellant s garage by force. Legal and Factual Sufficiency The standard of review for legal sufficiency requires us to view the evidence in the light most favorable to the conviction and to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). This standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). The standard of review for factual sufficiency is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak, or so contrary to the overwhelming preponderance of the evidence, as to undermine confidence in the jury s determination of guilt. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). A. Legal Sufficiency In his first point of error, appellant asserts that the evidence is legally insufficient to support his conviction for aggravated kidnapping in cause number 906940 because there was no evidence that appellant restricted his son s movement without his son s consent. For the purposes of this case, the pertinent definition of aggravated kidnapping is intentionally or knowingly to abduct a person with intent to use him as a shield or hostage or to exhibit a deadly weapon during the commission of the kidnapping. See Tex. Pen. Code Ann. 20.04(a)(2), (b) (Vernon 2003). Abduct is defined as restraining a person with intent to prevent his liberation by using or threatening to use deadly force. Id. 20.01(2)(B) (Vernon 2003). 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. Id. 20.01(1)(A). There is no dispute that appellant exhibited a deadly weapon, a gun, when the police arrived at his home and that appellant s son was present the entire time that the police attempted to take appellant into custody. The officers testimony established that appellant held his son in one hand and held a gun in the other hand from the time that the police arrived until just before appellant surrendered. Appellant also held his son in front of him and ducked down
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when the officers pointed their weapons at appellant. One officer testified that appellant was not going to put down either the gun or the child until appellant talked to a certain secret service agent. Based on appellant s holding a deadly weapon and placing his son between himself and the officers weapons for approximately one hour, the jurors could reasonably have inferred that appellant intended to restrain his son by force to protect himself from arrest. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (asserting that jurors may draw reasonable inferences from basic facts to find ultimate facts). Additionally, appellant asserts that he was somehow justified in holding his son on his lap because he is the child s parent and because the child wanted to be there. It is immaterial whether appellant s son consented to stay with his father during the encounter because the child was only four years old. As appellant concedes in his brief, a child under 14 cannot consent to restraint without a parent s acquiescence. See Tex. Pen. Code Ann. 20.01(1)(B)(i). Under the kidnapping statute, it is an affirmative defense that, among other things, the actor was a relative of the person abducted. See Tex. Pen. Code Ann. 20.03(b)(2) (Vernon 2003). However, this affirmative defense is not permitted for aggravated kidnapping. See id. 20.04. Therefore, even though appellant is the father of the child, appellant cannot use his son as a shield. Accordingly, when viewed in the light most favorable to the verdict, the evidence was legally sufficient to support appellant s conviction for aggravated kidnapping. B. Factual Sufficiency Also under his first point of error, appellant asserts that the evidence is factually insufficient to prove that he held his son without his son s consent. Appellant points to his testimony and the officers testimony to show that the evidence is insufficient to prove that he committed aggravated kidnapping. Two officers testified that appellant never pointed the gun at the child or threatened to hurt the child in any way. One of the officers also testified that he never saw the child crying. Appellant testified that his son was on his lap because he wanted to sit with his dad and that appellant put his son down behind him before he went into the garage and shut the door. Aguilar testified that, at some point, appellant stood up from his chair in the garage and put his son down. However, the officers also testified that appellant never let go of the gun or his son until just before he was arrested. One officer testified that appellant was holding his son around the midsection and that appellant lifted his son and ducked when the officer pointed his rifle at appellant. The officer stated that he was unable to use his weapon at any time because the child was always there. It is well settled that the jury is the sole judge of the weight and credibility of witness testimony. Johnson, 23 S.W.3d at 7. Consequently, the jury was entitled to believe the officers testimony that appellant used his son as a shield and to disbelieve the testimony of the defense witnesses that appellant s son was merely staying near appellant because he wanted to be with his father. Accordingly, we hold that the evidence was not so weak or so overwhelmingly in favor of appellant that the jury s verdict was manifestly wrong and unjust. We overrule appellant s first point of error. Defense of Property In his second point of error, appellant contends that the trial court erred by denying his request for a jury instruction on the use of deadly force to defend another person s property. See Tex. Pen. Code Ann. 9.43 (Vernon 2003) (defining circumstances under which person is justified in using deadly force to protect property of another). This point of error applies only to appellant s conviction for aggravated assault in cause number 906939. Assuming, without deciding, that the trial court did commit error in denying appellant s request for an instruction on defense of property, appellant must still show that the error was harmful. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Appellant timely objected to the trial court s denial of the instruction at trial. See Tex. Code Crim. Proc. Ann. art 36.19 (Vernon 1981) (stating that [a]ll objections to the charge . . . shall be made at the time of the trial. ). As a result, the denial of the instruction to the jury is reversible error if it was not harmless. Almanza, 686 S.W.2d at 171. This means that any actual harm, regardless of degree, is sufficient to require reversal. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). To determine whether there is any harm, we examine the entire jury charge; the state of the evidence, including the contested issues and the weight of probative evidence; counsels argument; and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.
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We now examine appellant s version of the incident to begin the harm analysis. Appellant testified that Aguilar had instructed him to go to her apartment and to make sure that Hill did not take her property from the apartment. When appellant arrived on the street outside of Aguilar s apartment, he observed Hill moving stuff from the house to his truck. Appellant believed that Hill was not supposed to be there. When appellant approached the stairs to the apartment, Hill was standing near the apartment s balcony, and appellant waved for Hill to come down. At that point, Hill quickly opened the door to the apartment and rushed down the steps toward appellant. Appellant believed that Hill had a weapon. Hill s aggressive movement scared appellant, and appellant pulled out his gun and fired a warning shot. Hill then dropped a knife and, when he turned to pick it up, appellant shot him in the back of the leg. Appellant asserts that this evidence raises the defense of protection of a third person s property. See Tex. Pen. Code Ann. 9.43 (stating that person is justified in using deadly force to protect third person s property if, among other things, the actor reasonably believes that the third person has requested his protection of the land or property. ). Appellant requested that a jury instruction be given regarding the use of deadly force to protect property. The trial court denied appellant s request. The statute regarding the use of deadly force to protect property states that a person is justified in using deadly force to protect property: (1) if he would be justified in using force against the other under Section 9.41[justifying the use of force against another when the actor reasonably believes force is immediately necessary to prevent or terminate the other s trespass on the land or unlawful interference with the property]; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A)to prevent the other s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B)to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A)the land or property cannot be protected or recovered by any other means; or (B)the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Tex. Pen. Code Ann. 9.42 (Vernon 2003). Under appellant s version of the facts, Hill was inside the apartment when appellant arrived, and appellant waved for him to come down. At that point, appellant contends that Hill rushed at him with a weapon. Appellant testified that he shot Hill because he had feared for his life and that he had not had time to take any other action to avoid the imminent attack. As a result, appellant asserts that his actions fulfilled the requirements for use of deadly force to protect a third person s property because the use of any other force would have exposed him to a substantial risk of death or serious bodily injury. See id. 9.42(3)(B). However, the self-defense instruction that was submitted to the jury provided that appellant s actions were justified if [appellant] reasonably believe[d] that such deadly force [was] immediately necessary to protect himself against the other person s use or attempted use of unlawful force, and if a reasonable person in [appellant s] situation would not have retreated. Therefore, according to appellant s version of the incident, both the statute regarding self-defense and the statute regarding protection of a third person s property provided appellant with the same justification for having used deadly force to protect himself from Hill, who had been coming at him with a knife. Consequently, any error that the trial court committed in denying appellant s request for an instruction on the protection of a third person s property

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was harmless because the jury could not have found a different justification for appellant s use of deadly force even if it had been instructed on both self-defense and protection of a third person s property. In other words, the instruction on protection of a third person s property would have afforded appellant no greater advantage than did the self-defense instruction that was given. // Under these circumstances, appellant has not shown any actual harm in the trial court s refusal to give an instruction on protection of a third person s property. We overrule appellant s second point of error. Conclusion We affirm the judgment of the trial court. Tim Taft Justice Panel consists of Justices Taft, Hanks, and Higley. Do not publish. See Tex. R. App. P. 47.2(b).

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