Jason Jarrett v. State ( 2004 )

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Opinion issued November 18, 2004



In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00894-CR

JASON JARRETT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 33584

MEMORANDUM OPINION

          Appellant Jason Jarrett pleaded not guilty to engaging in organized criminal activity and to the alleged lesser included offense of aggravated kidnapping. The trial court granted Jarrett’s motion for instructed verdict as to organized criminal activity and denied his motion for instructed verdict as to the lesser included offense of aggravated kidnapping. A jury convicted Jarrett of aggravated kidnapping and assessed punishment at forty years’ confinement. On appeal, Jarrett contends that the trial court erred in denying his motion for instructed verdict. We hold that the trial court properly denied the motion for instructed verdict and we therefore affirm. Facts

          On or about July 20, 2000, Ivan Floyd, the complainant, brought a man named “Flip,” who remains unidentified, to Jarrett’s apartment to purchase codeine syrup. During the transaction, Flip fled with the drug. Jarrett and Floyd proceeded, in Jarrett’s Volvo, to look for Flip. When they were unable to find Flip, Jarrett dropped Floyd off at a nearby gas station. Later that day, Floyd accompanied Jarrett back to Jarrett’s apartment so that Floyd could cut someone’s hair. When they arrived, several people were already present in Jarrett’s apartment.

          Once inside the apartment, one of the individuals instructed Floyd, at gunpoint, to lie spread eagle on the floor. A member of the group bound Floyd’s hands behind his back and his ankles together with duct tape. Floyd lay on the ground for approximately six hours before someone transferred him to a chair and blindfolded him with a bandana. During this time, various people in the apartment kicked Floyd, burned him with cigarettes, beat him with a firearm, and threatened his life. Jarrett questioned Floyd on the whereabouts of Flip and the codeine syrup. Jarrett also carried on discussions with the other people in the room. Except for references to the street gang, “the Black Disciples,” Floyd was unable to hear what they were saying. Floyd testified at trial that Jarrett was present in the apartment at all times, that no one tried to prevent these events, and that everyone present, including Jarrett, was acting together.

          Floyd testified that, later that same day, an unidentified person from the group grabbed his arms and walked him, still blindfolded, out of the apartment, placing him in the trunk of a car. He testified that he was unsure of who was in the car, but because of the open trunk, he thought the car was the same Volvo he had been in earlier. Upon arriving at a remote location, someone shot Floyd from behind three times—in the back, left shoulder, and left side. Floyd thought he heard Jarrett’s voice after the shooting, although he was not certain.

          After the car drove away, Floyd got up and removed the blindfold. Despite great pain and thinking he was going to die, Floyd walked down the road, removing the duct tape, leaving it at various points on the road, and eventually dropping the bandana. He walked about four-tenths of a mile to a neighboring residence, where the homeowner called the police.

          When a police officer arrived at the residence, Floyd told him he had been shot within the last thirty minutes and that Jarrett, among others, had kidnapped him. Deputy James Thornton, who was the first officer to arrive at the scene, testified that Floyd was severely injured; he was bleeding and sweating heavily; he was holding his hands over his injuries; and he was complaining of dizziness. Based on the severity of Floyd’s injuries, Officer Thornton believed Floyd was going to die. At the shooting scene, police investigators found blood, three fired shotgun casings and two live shotgun shells. Investigators also found the duct tape and the bandana on the road. Floyd was life-flighted to the hospital, and survived his injuries.Sufficiency of the Evidence

          In his sole issue on appeal, Jarrett contends that the trial court erred in denying his motion for instructed verdict based on legal and factual insufficiency of the evidence to support the conviction for aggravated kidnapping. Legal sufficiency of the evidence is the appropriate standard of review for the denial of an instructed verdict. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Youens v. State, 988 S.W.2d 404, 407 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Jarrett’s challenge to the denial of the instructed verdict in this case thus is a challenge to the legal sufficiency of the evidence, and not, as he suggests, to the legal and factual sufficiency of the evidence. When determining whether a conviction is supported by legally sufficient evidence, we view the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). We consider all of the evidence presented at trial, but we do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses. Grimes v. State, 135 S.W.3d 803, 808 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Obigbo v. State, 6 S.W.3d 299, 304 (Tex. App.—Dallas 1999, no pet.)).

          Organized Criminal Activity

          Jarrett contends that the State failed to prove the elements of organized criminal activity. Specifically, he asserts that the evidence is insufficient to show that he was a person with the “intent to establish, maintain, or participate in a combination,” who committed or conspired to commit aggravated kidnapping. See Tex. Pen. Code Ann. § 71.02(a)(1) (Vernon Supp. 2004-2005). The trial court granted Jarrett’s motion for instructed verdict as to this crime; therefore, he received the relief he requested on this issue. Accordingly, we do not address the legal and factual sufficiency of the evidence related to the organized criminal activity charge, for which he was acquitted.

          Aggravated Kidnapping

          The trial court denied Jarrett’s motion for instructed verdict as to the lesser included offense of aggravated kidnapping and the jury convicted him of this offense. “A person commits aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to inflict bodily injury on him, or intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.” Tex. Pen. Code Ann. § 20.04(b) (Vernon 2003). “‘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 or using or threatening to use deadly force.” Tex. Pen. Code Ann. § 20.01(2) (Vernon Supp. 2004-2005). “‘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. Restraint is ‘without consent’ if it is accomplished by force, intimidation, or deception.” Tex. Pen. Code Ann. § 20.01(1)(A) (Vernon Supp. 2004-2005).

          Jarrett contends that the evidence is legally insufficient to show that he intended to “establish, maintain, or participate in a combination” because there is no evidence that he participated in the kidnapping, beating, and shooting of Floyd. See Tex. Pen. Code Ann. § 71.02(a) (Vernon Supp. 2004-2005). Specifically, Jarrett contends that the evidence is insufficient to show that he was a direct participant in the abduction of Floyd, that he ever had custody of a firearm, that he was involved in Floyd’s beating, that he was involved in transporting him, or that he could be placed at the scene of the shooting. This contention ignores the fact that Jarrett was not convicted of organized criminal activity but rather, the lesser included offense of aggravated kidnapping.

          While the mere presence of an accused at the scene of an offense will not, by itself, make one a party to an offense, it is nevertheless a circumstance tending to prove that a person is a party to the offense and, together with other facts, may be sufficient to show that he was a participant. Wygal v. State, 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977); Diaz v. State, 902 S.W.2d 149, 152 (Tex. App.—Houston [1st Dist.] 1995, no pet.). In determining whether Jarrett participated in the offense as a party, a fact finder may examine the events occurring before, during, and after the commission of the offense. Diaz, 902 S.W.2d at 151-52. “A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, the conduct of another for which he is criminally responsible, or by both.” Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003); see also Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985) (“[e]vidence is sufficient to support a conviction under the law of parties where the actor is physically present and encourages the commission of the offense either by words or other agreement.”); Bryant v. State, 982 S.W.2d 46, 49 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (“evidence must show that parties acted together at time of offense, each contributing to its execution.”); Koontz v. State, 868 S.W.2d 27, 29 (Tex. App.—Fort Worth 1993, pet. ref’d) (holding that appellant’s presence with his companions aided or attempted to aid the commission of aggravated robbery by overwhelming the victim because of the sheer number of people involved).

          Floyd testified at trial that he accompanied Jarrett, on the pretense of giving someone a haircut, to Jarrett’s apartment in Jarrett’s car. Several people were already present in the apartment and when Floyd entered they instructed him, at gunpoint, to lie on the floor where they bound his arms and legs with duct tape. He was on the floor for approximately six hours before they moved him to a chair and blindfolded him. During this time, Jarrett questioned Floyd on the whereabouts of Flip and the whereabouts of his missing drug. Various people in the apartment burned Floyd with cigarettes, beat, kicked, and threatened his life. Floyd testified that Jarrett was present at all times, worked together with the others, and did nothing to prevent the events. Floyd also testified that two people in the apartment had firearms.

          Floyd further testified that he was then transported in the trunk of Jarrett’s car to a remote location, where he was shot three times. Floyd could not identify who was present at the shooting because he was still blindfolded, but he testified that, although he could not be sure, he thought he heard Jarrett’s voice. When the car drove away, he removed the blindfold, got up, and walked down the road to a nearby home, where the owner called the police.

          Deputy Thornton testified that he thought Floyd was going to die to support the fact that Floyd was severely injured. Deputy Thornton further testified that Floyd told him that Jarrett, among others, kidnapped him. See Tex. R. Evid. 803(2) (a statement relating to a startling event made while the declarant was perceiving the event, or immediately thereafter is admissible as an exception to the hearsay rule). The State also presented pictures of Floyd’s gunshot wounds, the shooting scene, the live bullets and casings found at the shooting scene, the pieces of duct tape on the road, the bandana, and the scene where Floyd sought help.

          Jarrett contends that there is no evidence linking him to the shooting scene. An abduction, however, is a continuous, ongoing event—in this case, one that continued from the time Jarrett brought Floyd to the apartment to the time Floyd was driven to the remote location and shot. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). Floyd testified that Jarrett drove him to the apartment, that he was present in the apartment at all times, that he questioned him, that he was working together with the others, that he did nothing to prevent the events, and that two people in the apartment had firearms. This evidence supports a finding that Jarrett aided the commission of an aggravated kidnapping. See Koontz, 868 S.W.2d at 29.

          Jarrett further contends that the State did not present the apartment lease as evidence that the apartment belonged to him, nor did it introduce evidence proving that he owned the Volvo. The State merely presented Floyd’s testimony concerning who lived at the apartment and owned the car. The jury is the sole judge of the credibility and weight given to Floyd’s testimony and it is entitled to believe or disbelieve all or any part of his testimony. See Grimes, 135 S.W.3d at 808; McKinny v. State, 76 S.W.3d 463, 469 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The fact that other evidence was not presented to the jury does not, by itself, make the evidence legally insufficient, and the jury is free to accept or reject competing theories of causation and alternate possibilities. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); see also Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (holding reconciliation of evidentiary conflicts is within exclusive province of jury).

          Viewing the evidence in the light most favorable to the verdict, a rational jury could have found the essential elements of aggravated kidnapping beyond a reasonable doubt. See Swearingen, 101 S.W.3d at 95. We therefore conclude that the evidence is legally sufficient to support Jarrett’s conviction for aggravated kidnapping.

Conclusion

          We hold that the trial court properly denied Jarrett’s motion for instructed verdict as to the aggravated kidnapping charge. We therefore affirm the judgment of the trial court.

                                                                        Jane Bland

                                                                        Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).