Nino v. State, NUMBER 13-18-00642-CR

DAVID NINO, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-18-00642-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

April 16, 2020

On appeal from the 148th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Hinojosa

Memorandum Opinion by Chief Justice Contreras

Appellant David Nino challenges his conviction for aggravated kidnapping, a first-degree felony. See TEX. PENAL CODE ANN. § 20.04(b). By two issues, appellant argues that there was insufficient evidence to support a finding that (1) he abducted the complainant; and (2) he used or exhibited a deadly weapon during the offense. We affirm.

I. BACKGROUND

On June 15, 2017, appellant was indicted for aggravated kidnapping. See id. Specifically, the indictment alleged that appellant intentionally or knowingly abducted R.G. by restricting her movements without her consent, by confining her with intent to prevent her liberation, and by using or threatening to use deadly force, and that appellant used or exhibited a deadly weapon during the offense. The indictment also alleged appellant was a habitual felony offender.¹ See id. § 12.42(d). Appellant pleaded not guilty and waived his right to a jury trial.

At trial, R.G. testified that she went with appellant to his mother's house to smoke synthetic marijuana. According to R.G., appellant acted like a friend during the first two days, but his demeanor changed on the third day when R.G. told appellant she needed to leave to pick up her daughter. Appellant refused to allow R.G. to leave the house, took her cell phone away, pointed a knife at R.G. and threatened to "cut" and "slice" her and hurt her. Later that evening, as appellant parked in the driveway of the home after a trip to a corner store, R.G. ran down the street and flagged down Officer Curtis Volling of the Corpus Christi Police Department. R.G. testified appellant did not cut her with a knife or grab her.

Officer Volling testified that he encountered R.G. running down the street screaming for help. Volling got out of his patrol vehicle and had a conversation with R.G. A video recording of their interaction was admitted into evidence. In the video, R.G. is crying and tells Volling that: she was "being kidnapped"; appellant would not let her leavehis mother's house; appellant threatened to "cut" and "slice" her with a knife, among other threats; she was afraid for her safety; and she thought she was going to die. Volling testified he requested backup because he considered a knife to be a deadly weapon.

Volling located appellant in front of his mother's house. Appellant admitted R.G. had been with him but said R.G. "was acting crazy." After contacting appellant's mother, Volling retrieved R.G.'s purse and items of clothing from inside the home. The knife allegedly used by appellant to threaten R.G. was never recovered.

Appellant testified that he and R.G. were together for five days, not three. According to appellant, R.G. was smoking synthetic marijuana when she told appellant she wanted to sleep with him. Appellant testified R.G. went with him to his mother's house to continue to smoke synthetic marijuana. According to appellant, while at his mother's house, R.G. received text messages from her boyfriend indicating that he no longer wanted to be with her, and appellant told R.G. that she was welcome to stay at his mother's house if needed. On their final day together, appellant refused to give R.G. any more drugs and R.G. then threatened to leave. According to appellant, R.G. fabricated the story.

The trial court found appellant guilty of the offense. Appellant pleaded true to the enhancement allegations, see id. § 12.42(d) (increasing the punishment range for habitual felony offenders to "life, or for any term of not more than 99 years or less than 25 years"), and the trial court assessed punishment at life with the possibility of parole. Thetrial court ordered that this sentence be served consecutively to another life sentence appellant received for a conviction for aggravated assault.² This appeal followed.

II. DISCUSSION

By both of his issues, appellant challenges the sufficiency of the evidence supporting different elements of his conviction.

A. Standard of Review

In a sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Chambers v. State, 580 S.W.3d 149, 156 (Tex. Crim. App. 2019); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In our analysis, we defer to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When the record contains conflicting inferences, we presume that the trier of fact resolved any such conflicts in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326). The trier of fact is the sole judge of the weight and credibility of the evidence. Cox v. State, 497 S.W.3d 42, 47 (Tex. App.—Fort Worth 2016, pet. ref'd).

Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608 (Tex.Crim. App. 2018) (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. Malik, 953 S.W.2d at 240. A hypothetically correct jury charge would instruct the jury to find appellant guilty if he intentionally or knowingly abducted R.G while using or exhibiting a deadly weapon. See TEX. PENAL CODE ANN. § 20.04(b); Hines v. State, 75 S.W.3d 444, 466 (Tex. Crim. App. 2002).

B. Analysis

1. Restraint

By his first issue, appellant challenges the sufficiency of the evidence supporting the finding that he abducted R.G. and argues that "it was not sufficiently shown that appellant ever restricted the victim's movements without her consent."

"Abduct" means to restrain a person with intent to prevent his or her liberation by: (1) secreting or holding him or her in a place where he or she is not likely to be found; or (2) using or threatening to use deadly force. Griffin v. State, 491 S.W.3d 771, 775 (Tex. Crim. App. 2016) (citing TEX. PENAL CODE ANN. § 20.01(2)). "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with his or her liberty, by moving him or her from one place to another or by confining him or her. Id. (citing TEX. PENAL CODE ANN. § 20.01(1)). Restraint is without consent if it is accomplished by force, intimidation, or deception. Id. Further, the penal code does not define "confine," and terms not defined in a statute are given their plain and ordinary meaning. Cox v. State, 497 S.W.3d 42, 48 (Tex. App.—Fort Worth 2016, pet. ref'd). Thus, "confine" means"to hold within bounds," "to restrain from exceeding boundaries," or "to keep in narrow quarters: imprison." Id.; see Holmes v. State, 873 S.W.2d 123, 126 (Tex. App.—Fort Worth 1994, no pet.) (defining "confine" as "to shut up, imprison, immure, put or keep in detention, to relegate to certain limits"). Finally, "deadly force," in the context of kidnapping, is either (1) force intended or known by the actor to cause death or serious bodily injury or (2) force capable of causing death or serious bodily injury in the manner of its use or intended use. Kenny v. State, 292 S.W.3d 89, 98 (Tex. App.—Houston [14th Dist.] 2007, pet. stricken); see Ferrel v. State, 55 S.W.3d 586, 591-92 (Tex. Crim. App. 2001).

The evidence showed that R.G. initially accompanied appellant voluntarily to his home to consume drugs. According to R.G., on their third day together, she told appellant she needed to leave to pick up her daughter, but appellant refused to allow R.G. to leave appellant's house, took her cell phone away, and pointed a knife at R.G. and threatened to "cut" and "slice" her up and hurt her.³ This evidence supports a finding that appellant restrained R.G. against her will by using or threatening to use deadly force and that he restricted R.G.'s movements by confining her to his mother's house. See TEX. PENAL CODE ANN. § 20.01; Hines, 75 S.W.3d at 447-48 ("[T]here is nothing in the Texas statute that even suggests that it is necessary for the State to prove that a defendant moved his victim a certain distance, or that he held him [or her] a specific length of time before he can be found guilty of kidnapping."); Griffin, 491 S.W.3d at 775; Cox, 497 S.W.3d at 48; West v. State, 406 S.W.3d 748, 757 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (noting that there is no particular way to prove confinement); Kenny, 292 S.W.3d at 98(noting that threats can be communicated by actions, words, or deeds, including acts amounting to an offer to use future force).

Appellant is correct that there is evidence that R.G. initially accompanied him to his mother's house voluntarily; however, there is also evidence that appellant later restrained R.G. against her will and threatened her with a knife while doing so. We must presume the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326; Cox, 497 S.W.3d at 48. Looking at all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact was free to find beyond a reasonable doubt that appellan...