Uddin v. State

503 S.W.3d 710

Mashood UDDIN, Appellant

v.The STATE of Texas, Appellee

NO. 14–15–00083–CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed November 10, 2016

Carmen Mae Roe, Houston, TX, for Appellant

Kimberly Aperauch Stelter, Houston, TX, for State

Panel consists of Justices Christopher, McCally, and Busby.

OPINION

J. Brett Busby, Justice

A jury convicted appellant Mashood Uddin of aggravated kidnapping and sentenced him to eight years in prison. He challenges his conviction in this appeal, asserting in part that the jury charge was erroneous because it enlarged the indictment and did not require the jury to find all essential elements of the offense. The State does not dispute these errors but argues that they did not cause egregious harm. Having reviewed the entire charge, the evidence at trial, the closing arguments of counsel, and other relevant information in the record, we conclude that appellant was deprived of his valuable right to a jury determination regarding his guilt of each essential element of aggravated kidnapping as charged in the indictment. We therefore reverse the trial court's judgment and remand this case for a new trial.

BACKGROUND

Appellant was charged with aggravated kidnapping and pleaded not guilty. At trial, the complainant testified that she was at a nightclub with a friend when she met appellant. After dancing with appellant, she gave him her phone number. The complainant then began to look for her friend and appellant followed her. According to the complainant, appellant pushed her down on a couch and, when she got up to leave, followed her out of the club. Appellant pushed her toward a car, where another man forced her into the back seat and sexually assaulted her while appellant drove. The complainant initially resisted the man but stopped resisting after he hit her in the face. Appellant later switched places with the other man and attempted to assault the complainant sexually but stopped when she resisted. Appellant and the other man eventually released the complainant at the same club and drove away. Appellant called the complainant later that morning to ask when she arrived home, and the two spoke on the phone several times thereafter. Recordings of some of the calls were offered into evidence. At the urging of police, the complainant arranged to meet appellant at another club, where he was arrested.

Appellant did not testify at trial. Through cross-examination of the State's witnesses and references to the call recordings, appellant's counsel sought to develop various defensive theories and to undermine the witnesses' credibility by identifying inconsistencies in their testimony. As the State acknowledged in its closing argument, appellant's defensive theories included that the encounter in the car was consensual or that the complainant was mistaken in identifying appellant as a participant in the kidnapping, which may have been committed by the complainant's then-boyfriend.

Appellant complains that the trial court erred in charging the jury on aggravated kidnapping. A person commits aggravated kidnapping if he (1) intentionally or knowingly abducts another person (2) with aggravating intent—in this case, the intent to violate or abuse her sexually. See Tex. Penal Code Ann. § 20.04(a)(4) (West 2011). The first element—abduction—requires proof that the defendant restrained the other person with intent to prevent her liberation by either (a) secreting or holding her in a place where she is not likely to be found, or (b) using or threatening to use deadly force. See Tex. Penal Code Ann. § 20.01(2).

The indictment alleged only the first definition of the abduction element. Specifically, it alleged that appellant "intentionally and knowingly abduct[ed] ... the Complainant, without her consent, with intent to prevent her liberation by secreting and holding the Complainant in a place where the Complainant was not likely to be found and with intent to violate and abuse the Complainant sexually."

The jury charge included instructions that tracked the language of the indictment with two exceptions: (1) the abstract portion listed only the second definition of abduction, which had not been charged in the indictment; and (2) the application paragraph set out the two elements of the offense disjunctively. The relevant definitions from the abstract portion read as follows:

A person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to violate or abuse her sexually.

The term "abduct" means to restrain a person with intent to prevent her liberation by using or threatening to use deadly force.

After additional definitions and instructions on the law of parties, the charge applied the law to the facts of the case in the following paragraph:

Now, if you find from the evidence beyond a reasonable doubt that ... defendant, Mashood Uddin, did then and there unlawfully, intentionally or knowingly abduct [the complainant], without her consent, with intent to prevent her liberation by secreting or holding [the complainant] in a place where she was not likely to be found or with intent to violate or abuse [the complainant] sexually, or if you find from the evidence beyond a reasonable doubt that ... another person or persons, did then and there unlawfully, intentionally or knowingly abduct [the complainant], without her consent, with intent to prevent her liberation by secreting or holding [the complainant] in a place where she was not likely to be found or with the intent to violate or abuse [the complainant] sexually, and that the defendant, Mashood Uddin, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid the other person or persons to commit the offense, if he did, then you will find the defendant guilty of aggravated kidnapping, as charged in the indictment.

(emphasis added). The jury was not charged on any additional counts or lesser-included offenses. Each party told the trial court that it had no objections to the charge. The jury returned a general verdict of guilty, found that appellant voluntarily released the complainant in a safe place, and sentenced appellant to eight years in prison.

ANALYSIS

In his first issue, appellant contends that the jury charge is erroneous because it fails to set forth accurately the law applicable to the case. See Tex. Code Crim. Proc. Art. 36.14 (West 2007). Appellant also contends that the errors deprived him of his right to a unanimous jury verdict because they allowed the jury to convict him without requiring it to reach agreement on the elements necessary to support that conclusion, thus violating his right to a fair and impartial trial. See Sanchez v. State , 209 S.W.3d 117, 125 (Tex. Crim. App. 2006).

I. Standard of review

In a criminal case, we review complaints of jury charge error in two steps. Cortez v. State , 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we determine whether error exists in the charge. Ngo v. State , 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). Second, we review the record to determine whether sufficient harm was caused by the error to require reversal of the conviction. Id.

The degree of harm necessary for reversal depends on whether the appellant preserved the error by objecting to the charge. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). When charge error is not preserved, as in this case, reversal is not required unless the resulting harm is egregious. Id. ; see also Tex. Code Crim. Proc. Art. 36.19.

Charge error is egregiously harmful when it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Sanchez , 209 S.W.3d at 121. That is, the error must have been so harmful that the defendant was effectively denied a fair and impartial trial. Almanza , 686 S.W.2d at 172. Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Under Almanza , the record must show that the charge error caused the defendant actual, rather than merely theoretical, harm. Ngo , 175 S.W.3d at 750. Neither party has the burden to show harm. Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

II. The jury charge included two legal errors.

The trial court's charge must fully instruct the jury on the law applicable to the case and apply that law to the facts adduced at trial. Gray v. State , 152 S.W.3d 125, 127 (Tex. Crim. App. 2004) ; see Tex. Code Crim. Proc. Art. 36.14. "Because the charge is the instrument by which the jury convicts, [it] must contain an accurate statement of the law and must set out all the essential elements of the offense." Dinkins v. State , 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The application paragraph applies the relevant law, the definitions found in the abstract portion of the charge, and general legal principles to the particular facts of the case. Vasquez v. State , 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (citing Gray , 152 S.W.3d at 127–28 ). Because the application paragraph specifies "the factual circumstances under which the jury should convict or acquit, it is the ‘heart and soul’ of the jury charge." Id. at 367 (quoting Gray , 152 S.W.3d at 128 ). "It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion." Reeves , 420 S.W.3d at 818 (citing Williams v. State , 547 S.W.2d 18, 20 (Tex. Crim. App. 1977) ).

In criminal cases, the jury must find every constituent element of the charged offense. Jourdan v. State , 428 S.W.3d 86, 94 (Tex. Crim. App. 2014). The jury is not necessarily required, however, to find that the defendant committed that crime in one specific way or even with one specific act. Landrian v. State , 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). In...