Walton v. State

641 S.W.3d 861

Derrick WALTON, Appellant

v.The STATE of Texas

No. 02-20-00036-CR

No. 02-20-00037-CR

No. 02-20-00038-CR

Court of Appeals of Texas, Fort Worth.

Delivered: February 17, 2022

Discretionary Review Refused April 20, 2022

ATTORNEY FOR APPELLANT: KRISTIN R. BROWN, DALLAS, TEXAS.

ATTORNEYS FOR STATE: PAUL JOHNSON, CRIMINAL DISTRICT ATTORNEY, ANDREA SIMMONS, CHIEF APPELLATE DIVISION; KATHRYN LOWE, GINA MORGAN, BRENDAN HYDE, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR DENTON COUNTY, DENTON, TEXAS.

Before Sudderth, C.J.; Kerr and Walker, JJ.

Opinion by Justice Walker

Appellant Derrick Walton was charged in three indictments with unlawful restraint and two acts of aggravated assault. A jury found Walton guilty of unlawful restraint but found him guilty of the lesser-included offenses of deadly conduct as to the two aggravated assault charges. Walton appeals his conviction for unlawful restraint. He argues in four points that the evidence is legally insufficient to support the jury's guilty verdict. In his last issue, Walton asserts that the trial court erred by assessing fines and fees in each of his three cases because the trial court ordered his sentences to run concurrently.

We affirm the unlawful restraint judgment as is, modify the trial court's deadly conduct judgments to delete the fines and the fee assessed by the trial court, and affirm the deadly conduct judgments as modified.

I. FACTS

Belinda Wright was Walton's girlfriend in 2017. One night that summer, as Walton was leaving Wright's apartment in Irving, Walton asked Wright to talk with him in his truck. Wright was hesitant to talk to Walton because he had just used cocaine. As soon as Wright stepped into the truck cab's interior, Walton "sped off." Wright immediately asked Walton to stop the truck and let her out, but he refused. Walton's driving was "erratic" and "dangerous." He told Wright that something had happened to his kids and that, "I'm going to die. You're going to die." Wright repeatedly asked Walton to stop or slow down, but he refused to do either.

Multiple drivers observed Walton "traveling at a high rate of speed" and "swerving in and out of traffic." Walton nearly sideswiped one driver. Wright was seen by at least one driver frantically waving her arms and asking for help. That driver called 911 to report what he had seen.

Walton drove through Coppell to Lewisville, toward Denton, and eventually ended up in Flower Mound. While speeding through Flower Mound, Walton ran a red light and hit a parked car, totaling it. The truck stalled, and Wright was able to escape and run away from Walton.

Shortly after the crash, police arrived and made contact with Walton, who appeared intoxicated. An officer asked him if he was under the influence, and Walton answered that he had "dabbled in cocaine." Police officers eventually arrested Walton at the scene for driving while intoxicated and found baggies that contained the residue of a white, powdery substance in Walton's pockets.

II. SUFFICIENCY OF THE EVIDENCE

In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

In Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), the Court of Criminal Appeals articulated the modern Texas standard for ascertaining what the "essential elements of the crime" are; they are "the elements of the offense as defined by the hypothetically correct jury charge for the case." Johnson v. State , 364 S.W.3d 292, 294 (Tex. Crim. App. 2012). The hypothetically correct jury 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." Id. The law "as authorized by the indictment" is "the statutory elements of the offense ... as modified by the charging instrument." Curry v. State , 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). The hypothetically correct jury charge does not necessarily have to track all the charging instrument's allegations such as those that give rise to immaterial variances. Gollihar v. State , 46 S.W.3d 243, 253, 256 (Tex. Crim. App. 2001).

A. RECKLESSNESS EVIDENCE

In his first issue, Walton claims that the evidence is insufficient to support the jury's verdict that he recklessly exposed Wright to a substantial risk of serious bodily injury during the unlawful restraint.¹ A person commits the offense of unlawful restraint when the person "intentionally or knowingly restrains another person." Tex. Penal Code Ann. § 20.02(a). This offense is a third-degree felony if "the actor recklessly exposes the victim to a substantial risk of serious bodily injury" during the unlawful restraint. Id. § 20.02(c)(2)(A). In this case the indictment alleged, and the charge required the jury to decide, whether Walton recklessly exposed Wright to a substantial risk of serious bodily injury by not allowing her to exit the vehicle he drove.

Walton concedes that the State elicited testimony that his cocaine-addled driving, while he unlawfully restrained Wright in the truck, was "erratic" and "potentially reckless." Nevertheless, Walton claims that the State failed to present any evidence at trial of the manner and means of recklessness alleged in the indictment at trial—that is, whether his action in not allowing Wright to exit the truck exposed her to a substantial risk of serious bodily injury. Consequently, Walton claims that there is insufficient evidence to support the recklessness element as set out in a hypothetically correct jury charge. We disagree.

First, we note that the alleged manner and means of creating a substantial risk of serious bodily injury is not an essential element of the offense and therefore is not included within the hypothetically correct jury charge. See e.g., Phelps v. State , 999 S.W.2d 512, 515 (Tex. App.—Eastland 1999, pet. ref'd) (holding the variance in the manner and means of the alleged act (striking head of the victim with his hands) and proof at trial (no evidence that defendant used his hands) was immaterial since the manner and means was not included in the hypothetically correct jury charge); Botello v. State , No. 08-04-00127-CR, 2005 WL 2044667, at *2–3 (Tex. App.—El Paso Aug. 25, 2005, pet. ref'd) (mem. op., not designated for publication) (holding variance between the alleged manner and means (striking the head of the complainant against a door frame) and the actual manner and means used (pushing complainant) immaterial since the manner and means was not included in the hypothetically correct jury charge). Therefore, the language "by not allowing Belin[d]a White to exit a vehicle driven by Derrick Walton" is not an element of the third-degree felony offense of unlawful restraint and is thus not included in this court's sufficiency review.

To the extent that Walton claims Texas Code of Criminal Procedure Article 21.15's notice requirement requires a hypothetically correct jury charge to include the act or acts relied upon to constitute recklessness, such an argument also fails. See Tex. Code Crim. Proc. Ann. art. 21.15. Recklessly exposing a victim to a substantial risk of serious bodily injury is a result-of-conduct element. Lugo-Lugo v. State , 650 S.W.2d 72, 86 n. 5 (State Bar Committee on Revision of the Penal Code (Final Draft 1970)) (Tex. Crim. App. 1983) (Clinton, J., concurring). Regarding a result-of-conduct element, any variance in pleading and proof is immaterial. Ramos v. State , 407 S.W.3d 265, 270 (Tex. Crim. App. 2013). And "allegations that give rise to immaterial variances" need not be "incorporate[d]" into the hypothetically correct jury charge for the case. Johnson , 364 S.W.3d at 294. Accordingly, the acts constituting recklessness as pled in the indictment were not required to be included in the hypothetically correct jury charge. Ramos , 407 S.W.3d at 270–71.

Finally, in the context of this case, the evidence demonstrates that Walton's refusal to allow Wright to exit his truck did in fact put her at a substantial risk of serious bodily injury. Most significantly, the State presented evidence that Walton crashed the truck into another car while he held Wright captive. We do not doubt that crashing a truck into another car would put a passenger in the truck at a substantial risk of serious bodily injury. And the State presented additional evidence of Walton's driving that the jurors could have found put Wright at a substantial risk of serious bodily injury

Wright testified that Walton sped out of her apartment parking lot without turning on the truck's headlights. Walton then drove onto the entrance ramp of the highway at such a high speed that Wright said it felt like the truck was balanced on just two of its wheels. Wright explained that while Walton was driving the large truck, he weaved in and out of traffic, ran red lights, and repeatedly told her that she was "going to die."

A witness on his way home from work in Flower Mound called 911 after seeing what was later determined to be Walton's truck. The witness described a "large vehicle traveling at a high rate of speed ... swerving in and out of traffic." The witness noticed a woman in the passenger seat of the truck "waving [her] hands violently, asking for help." The witness described the female passenger as "[f]rantic."

Another witness who saw Walton driving the truck that night testified that Walton was speeding, swerving in and out of the lanes of traffic, and driving "very, very bad[ly]." The witness said that Walton almost "sideswiped" his car and that he was not surprised that Walton crashed into another car. The witness...