Jerome Williams A/K/A Ed Williams v. State

NUMBER 13-06-220-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JEROME WILLIAMS A/K/A Appellant, ED WILLIAMS v. THE STATE OF TEXAS, Appellee. On appeal from the 421st District Court of Caldwell County, Texas MEMORANDUM OPINION Before Chief Justice Valdez, Justices Benavides and Vela Memorandum Opinion by Justice Vela Appellant, Jerome Williams a/k/a Ed Williams, was charged in a two-count indictment for the aggravated kidnapping of Tracy Nieto (Count 1) and the aggravated kidnapping of Chrystal Gonzales (Count 2). A jury convicted him on both counts and assessed punishment at twenty years' confinement, plus a $10,000 fine on the first count, and fifty years' confinement, plus a $10,000 fine on the second. By one issue, appellant argues that the trial court erred by refusing to charge the jury with the lesser-included offense of unlawful restraint. We affirm. BACKGROUND Tracy Nieto and Chrystal Gonzales testified that on May 17, 2005, they, along with George Williams (hereafter "Williams"), Damoine King, and appellant, were outside Williams's house in Luling, Texas. Williams and Nieto were arguing about stolen drugs or money. The group went inside the house where appellant grabbed a gun and gave it to Williams. Williams waved the gun around and put it to Nieto's forehead while appellant and King told Williams that he needed to make an example out of Nieto. They then went outside the house, and appellant told Williams to put Nieto and Gonzales in the trunk of Williams's car. Williams told Nieto and Gonzales to get in the trunk. Both Wiliams and appellant alternatively had possession of the gun while locking Nieto and Gonzales in the trunk. Appellant locked them inside. While in the trunk, Nieto and Gonzales heard the three men discussing where to take them, what to do with them, and what to do with Nieto's vehicle in order to dispose of the evidence. The men finally released Nieto so that she could retrieve the money or drugs that Williams had previously accused her of taking. Gonzales remained in the custody of the three men as a guarantee that Nieto would return. Nieto, however, called the police. GOVERNING LAW By a single issue, appellant contends that the trial court erred by refusing to instruct the jury on the lesser-included offense of unlawful restraint. Courts apply a two-step test when assessing whether to give a charge on a lesser-included offense. Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005). In Hall v. State, No. PD-1594-02, 2007 WL 1343110, at *8-9 (Tex. Crim. App. May 9, 2007), the court stated: The first step in the lesser-included-offense analysis, determining whether an offense is a lesser-included offense of the alleged offense, is a question of law. It does not depend on the evidence to be produced at the trial. It may be, and to provide notice to the defendant must be, capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense. The evidence adduced at trial should remain an important part of the court's decision whether to charge the jury on lesser-included offenses. The second step in the analysis should ask whether there is evidence that supports giving the instruction to the jury. "A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense." In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. In other words, the evidence must establish the lesser-included offense as "a valid, rational alternative to the charged offense." Id. (citations omitted). ANALYSIS Applying the first step of the lesser included-offense analysis to this case, we do not consider the evidence that was presented at trial. See id. at *9. Instead, we consider only the statutory elements of aggravated kidnapping as they were modified by the particular allegations in the indictment. Id. Aggravated kidnapping, as alleged in this case, occurs when the actor "intentionally or knowingly abducts another person with the intent to: . . . inflict bodily injury on him . . . ." Tex. Penal Code Ann. § 20.04(a)(4) (Vernon 2003). Count 1 of the indictment stated, in relevant part: Jerome Williams a/k/a Ed Williams, hereinafter styled Defendant, on or about May 17, 2005, and before the presentment of this indictment, in the County and State aforesaid, did then and there intentionally and knowingly abduct another person, to-wit: Traci Neito, and said Defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm . . . . Count 2 of the indictment is worded the same as Count 1 except that Count 2 names Chrystal Gonzales. Next, we compare the statutory elements of aggravated kidnapping with the elements of the lesser offense of unlawful restraint that could be included in charged offenses of aggravated kidnapping. Hall, 2007 WL 1343110, at *9. A person commits the offense of unlawful restraint if he or she "intentionally or knowingly restrains another person." Tex. Penal Code Ann. § 20.02(a). Our final task in analyzing the first step is to ask the question that article 37.09(1) of the Texas Code of Criminal Procedure poses: are the elements of the lesser offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged?" Hall, 2007 WL 1343110, at *9. The answer is yes. Aggravated kidnapping is accomplished by abduction, which includes restraint. See Tex. Penal Code Ann. § 20.01(2) (Vernon Supp. 2006). Unlawful restraint is committed by restraint only. Consequently, unlawful restraint is a lesser-included offense of aggravated kidnapping. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996). Applying the second step of the lesser-included offense analysis to this case, we ask whether there is evidence that supports giving the instruction to the jury. Hall, 2007 WL 1343110, at *9. We conclude that the trial court did not err in denying the request for a lesser-included offense jury instruction for two related reasons. First, Texas case law states that a person is not entitled to a lesser-included offense charge if he or she simply denies the allegations altogether. Second, there is no evidence that if appellant is guilty of anything, it is only of the lesser offense. I. Appellant did not offer any evidence validating the commission of the lesser offense of unlawful restraint. A defendant is entitled to a charge of a lesser-included offense if there is some evidence offered in the record establishing guilt of only the lesser offense. Id. However, when a defendant altogether denies the allegations for which he is charged and submits no evidence of the commission of the lesser crime, he is not allowed the inclusion of the lesser-included offense in the jury instruction. Fraga v. State, 940 S.W.2d 736, 738 (Tex. App.–San Antonio 1997, pet. ref'd); see also Broadway v. State, 732 S.W.2d 93, 95 (Tex. App.–Beaumont 1987, no pet.); Brooks v. State, 690 S.W.2d 61, 63 (Tex. App.–Houston [14th Dist.] 1985, no pet.); Johnson v. State, 665 S.W.2d 554, 557 (Tex. App.–Houston [14th Dist.] 1984, no pet.). In this case, appellant denied any involvement in the aggravated kidnapping of Nieto and Gonzales. All other evidence proffered at trial was consistent, uncontradicted, and supported the indictment for aggravated kidnapping. At no time during the trial did appellant present evidence that would support a guilty verdict of only unlawful restraint. Because appellant simply denied the aggravated kidnapping charges and offered no evidence of the lesser offense of unlawful restraint, he is not entitled to a lesser-included offense jury instruction. II. The evidence did not show that if appellant was guilty of anything, he was only guilty of the lesser offense. As stated in the Hall test above, appellant is entitled to a lesser-included offense jury instruction as long as there is some evidence that if he is guilty of any offense, he is only guilty of the lesser one. Hall, 2007 WL 1343110, at *9. There are two possibilities for the evidence to show that the lesser offense is the only one applicable to the defendant: 1) there may be evidence which refutes or negates other evidence establishing the greater offense, or 2) there may be evidence presented that is subject to at least two different interpretations. Saunders v. State, 840 S.W.2d 390, 391-92 (Tex. Crim. App. 1992). "[F]or the trial court to have erred, there must be some evidence directly germane to an unlawful restraint offense for such an instruction to be warranted." Anderson v. State, 125 S.W.3d 729, 731 (Tex. App.–Texarkana 2003, no pet.). Specifically, there would have to be some evidence that the victims were not actually abducted or that there was no use or threat of deadly force. A. Abduction There was no evidence adduced at trial contrary to the requisite abduction element to mitigate the crime to unlawful restraint. The greatest difference between unlawful restraint and aggravated kidnapping is whether the victim was "abducted": restrained with the intent to prevent the victim's liberation by secreting or holding her in a place not likely to be found, or using or threatening to use deadly force. Tex. Penal Code Ann. § 20.01(2)(a)(b) (Vernon Supp. 2006). Appellant argues that there are at least two different interpretations of the type of restraint employed during the commission of the crime. He asserts that a juror could reasonably believe that Nieto and Gonzales were simply "restrained" (1) and not "abducted" because the prosecution did not specify the particular event which constituted the abduction (e.g., Nieto and Gonzales inside the house with the gun present or in the trunk of the car). This assertion, however, is inaccurate. The prosecution outlined that the abduction (here, both a secretion and threat of deadly force) occurred when the three men locked Nieto and Gonzales in the trunk of the car with the gun still present. Moreover, locking a person in the trunk of a car would suffice as a secretion or holding in a place not likely to be found. See Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995). At minimum, the State met its burden without contradiction. As stated above, there must be some evidence pointedly relevant to the offense of unlawful restraint for a jury charge to be submitted on a lesser-included offense. Anderson, 125 S.W.3d at 731. It is not sufficient that the jury may disbelieve or doubt critical evidence regarding the greater offense of aggravated kidnapping. Id. Because there is no evidence offered in the record to negate, refute, or assert varying interpretations of the facts surrounding the secretion or holding of Nieto and Gonzales, we must reject appellant's contention that the jury could have found mere restraint instead of abduction. B. Exhibition of Deadly Weapon There was no evidence presented at trial to refute the fact that appellant had possession of the gun and exhibited it. A required element of aggravated kidnapping is the use or exhibition of a deadly weapon during the commission of the offense. Tex. Penal Code Ann. § 20.04(b) (Vernon 2003). A gun is per se a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon 2003); see also Walker v. State, 543 S.W.2d 634, 637 (Tex. Crim. App. 1976) (holding that a gun was still a deadly weapon under the statute, even though missing a firing pin and without a clip). Appellant argues that the gun was missing its clip-though it still had a bullet in the chamber-and was therefore no longer a deadly weapon. Appellant further posits that the exhibition of the gun could simply have been to instill fear in Nieto and Gonzales as a means of securing the return of the stolen drugs or money, not as a tool of the abduction. Along that line of reasoning, appellant puts forward an alternative theory that Nieto and Gonzales were restrained by the men's anger over the stolen items. Offered as evidence negating or refuting other evidence establishing the greater offense, appellant asserts that while Nieto was on the stand, she failed to place the gun outside of the house just before being locked in the trunk. These suppositions, while possibly valid at trial, are inadequate here. First, though the gun was missing its clip, the bullet lodged in the chamber still serves to make it a deadly weapon, especially when put to Nieto's forehead. More so, unrefuted evidence at trial indicated that Nieto and Gonzales would not have been able to tell that the clip was missing. The gun remained a deadly weapon. Second, varying interpretations presented by appellant are not viable because there is no evidence from any source in the record substantiating the claims. This appeal is the first time appellant presented alternative theories of the crime. However, the second prong of the Hall test requires that there must be some evidence to indicate the defendant is guilty of only the lesser offense. Hall, 2007 WL 1343110, at *9. Similar to the reasoning in Section I.A., because appellant did not bring these varying interpretations to the fore during the trial, there is no evidence now to make these alternatives viable. Lastly, appellant mistakenly claims a contradiction in the testimonies of Nieto and Gonzales. Both victims testified that the gun was present inside and outside the house and that it was in appellant's possession at various times throughout the kidnapping. Again, because there is no other evidence to negate the corresponding testimony because appellant denied the charges entirely, there is no way to establish that if he is guilty at all, it is only of the lesser offense. CONCLUSION Appellant is not entitled to a jury instruction on the lesser-included offense of unlawful restraint because 1) he did not answer the aggravated kidnapping charges in any way other than to deny them altogether, and 2) his arguments at trial and in his brief fail to establish any evidence that would negate, refute, or assert varying interpretations of the crime. If, at trial, appellant had presented evidence that Nieto and Gonzales were not in fact abducted or the gun was not in fact present during the abduction, he may have had sufficient evidence entitling him to a lesser-included offense jury charge. Because the trial court did not err, there is no harm to assess. The judgment of the trial court is affirmed. ROSE VELA Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 5th day of July, 2007. 1. "'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." Tex. Penal Code Ann. § 20.01(1) (Vernon Supp. 2006).