Cedrick Bernard Lewis v. State ( 2015 )

NO. 12-14-00201-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CEDRICK BERNARD LEWIS, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Cedrick Bernard Lewis appeals his conviction for twenty counts of attempted aggravated
kidnapping and one count of unauthorized use of a motor vehicle. In his sole issue, Appellant
contends the indictment was constitutionally deficient and did not vest the trial court with
jurisdiction. We affirm.
BACKGROUND
On the morning of December 18, 2012, Appellant was involved in an altercation during
which the police were called. In his attempt to leave the premises, he jumped on a public school
bus that was stopped at a bus stop and attempted to drive it away. He was detained and arrested.
Appellant was indicted for one count of unauthorized use of a motor vehicle for trying to
drive the bus away and one count of aggravated kidnapping for each child on the bus at the time.
The jury found Appellant guilty of unauthorized use of a motor vehicle and twenty counts of the
lesser included offense of attempted aggravated kidnapping. In accordance with the jury’s
assessment of punishment, the trial court rendered judgment sentencing Appellant to two years
of confinement in a state jail facility for unauthorized use of a motor vehicle and eighty years of
imprisonment on each count of attempted aggravated kidnapping. Additionally, the court
assessed a $10,000.00 fine for each of the twenty-one counts.
INDICTMENT
In his sole issue, Appellant asserts that the indictment did not allege any offense and
therefore the trial court did not have jurisdiction. He argues that the indictment does not
constitutionally charge the commission of aggravated kidnapping due to the inclusion of the
word “or” between the definition of “restrain” and one of the means by which a person can be
restrained.
Applicable Law
The Texas Constitution requires that, unless waived by the defendant, the State must
obtain a grand jury indictment in a felony case. TEX. CONST. art. I, § 10. The presentment of an
indictment invests the court with jurisdiction of the case. TEX. CONST. art. V, § 12(b); Teal v.
State, 230 S.W.3d 172, 174-75 (Tex. Crim. App. 2007). To constitute an indictment vesting a
court with jurisdiction, the charging instrument must charge (1) a person, and (2) the commission
of an offense. Teal, 230 S.W.3d at 179. If the allegations in the instrument are clear enough that
one can identify the offense alleged, then the instrument charges the commission of an offense.
Id. at 180. An instrument can charge the commission of an offense even if it fails to allege an
element of the offense. Id. at 181.
The essential elements of aggravated kidnapping as charged in this case are (1) a person
(2) intentionally or knowingly (3) abducts (4) another person with intent to facilitate the
commission of a felony or the flight after the attempt or commission of a felony. TEX. PENAL
CODE ANN. § 20.04(a)(3) (West 2011); Bowers v. State, 570 S.W.2d 929, 932 (Tex. Crim. App.
[Panel Op.] 1978). “Abduct” means to restrain a person with intent to prevent his liberation by
secreting or holding him in a place where he is not likely to be found. TEX. PENAL CODE ANN.
§ 20.01(2)(A) (West 2011). “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) (West 2011).
Analysis
The indictment alleged that Appellant “did then and there with the intent to facilitate the
commission of a felony, to wit: Unauthorized Use of A Motor Vehicle, or to facilitate the flight
after the attempt or commission of said felony, intentionally or knowingly abduct [the person].”
Thus, the indictment contains all necessary elements of the offense of aggravated kidnapping.
Bowers, 570 S.W.2d at 932. Because the indictment charges Appellant with the commission of
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an offense, the trial court had jurisdiction over the case. TEX. CONST. art. V, § 12(b); Teal, 230
S.W.3d at 180.
Appellant argues that inclusion of the word “or” between the definition of “restrain” and
one of the means by which a person can be restrained causes the indictment to fail to allege the
offense of aggravated kidnapping. We disagree. We will address the argument in spite of
Appellant’s failure to raise the complaint in the trial court. See TEX. CODE CRIM. PROC. ANN. art.
1.14(b) (West 2005) (providing that a defendant must object to errors in the form or substance of
an indictment before the date on which the trial on the merits commences).
The complained-of portion of the indictment alleged that Appellant did
intentionally or knowingly abduct [the person] by restricting the movements of
said [person] without her consent so as to interfere substantially with her liberty,
by moving her from one place to another, confining her, with the intent to
prevent her liberation, or by secreting or holding her in a place where she was
not likely to be found.
The indictment combines the language of Penal Code subsections 20.01(1) and 20.01(2)(A).
These two subsections define the words “restrain” and “abduct.” TEX. PENAL CODE ANN.
§ 20.01(1), (2)(A). However, the indictment adds the word “or” between “prevent her
liberation” and “by secreting or holding her.” Included in the definition of “abduct,” secreting
and holding are modes of restraining the abducted person. They are not elements of the offense.
See id. § 20.01(2)(A). The extra “or” does not cause the allegations in the indictment to become
so unclear that one cannot identify the offense alleged. See Teal, 230 S.W.3d at 180. The
inadvertent addition of an extra “or” in the portion of the indictment that describes how
Appellant committed the offense does not cause the indictment to fail to allege the offense. We
overrule Appellant’s sole issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered July 22, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 22, 2015
NO. 12-14-00201-CR
CEDRICK BERNARD LEWIS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 31189)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.