Robert Drew Stephenson v. State ( 2008 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NOS. 2-07-034-CR
    2-07-035-CR
    2-07-036-CR
    ROBERT DREW STEPHENSON                                            APPELLANT
    V.
    THE STATE OF TEXAS                                                     STATE
    ------------
    FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    Appellant Robert Drew Stephenson appeals his convictions for retaliation,
    aggravated kidnapping, and aggravated assault. We affirm.
    Introduction
    Appellant’s ex-girlfriend, Lisa Cleveland, claimed that appellant abducted
    her on March 5, 2006, and confined her until she escaped on March 24, 2006.
    1
    … See T EX. R. A PP. P. 47.4.
    During the course of the abduction, appellant burned Cleveland on the back
    with a torch and locked her in his grandmother’s old trunk. Although the pair
    left appellant’s house on several occasions, Cleveland did not seek help or
    escape because of appellant’s threats.
    Following a three-day trial, a jury convicted appellant of retaliation,
    aggravated kidnapping, and aggravated assault, and it set punishment at ten
    years’, life, and twenty years’ imprisonment, respectively.       The trial court
    sentenced appellant in accordance with the jury’s verdict and ordered the
    sentences to run concurrently.
    Motion to Withdraw
    In his first issue, appellant contends that the trial court erred by denying
    his trial counsel’s motion to withdraw and refusing to appoint different counsel.
    The right to counsel afforded an indigent defendant by the Sixth
    Amendment may not be manipulated to obstruct the orderly procedure in the
    courts or to interfere with the fair administration of justice.2 A defendant does
    not have the right to his own choice of appointed counsel, but there are
    circumstances in which a defendant may be entitled to a change of counsel. 3
    2
    … See Hubbard v. State, 
    739 S.W.2d 341
    , 344 (Tex. Crim. App. 1987).
    3
    … Garner v. State, 
    864 S.W.2d 92
    , 98 (Tex. App.—Houston [1st Dist.]
    1993, pet. ref’d).
    2
    A defendant must bring the matter to the trial court’s attention and must carry
    the burden of proving he is entitled to new counsel.4 We review a trial court’s
    denial of an attorney’s motion to withdraw for an abuse of discretion, assessing
    the ruling in light of the information before the trial court at the time.5
    When a possible conflict of interest is brought to the trial court’s
    attention, the court must take adequate steps to ascertain whether the risk of
    the conflict is too remote to warrant remedial action.6 A conclusory allegation
    of a conflict of interest, however, has been held to be insufficient to carry the
    defendant’s burden. 7
    4
    … Malcolm v. State, 
    628 S.W.2d 790
    , 791 (Tex. Crim. App. [Panel Op.]
    1982); Webb v. State, 
    533 S.W.2d 780
    , 784 n.3 (Tex. Crim. App. 1976).
    5
    … King v. State, 
    29 S.W.3d 556
    , 566 (Tex. Crim. App. 2000);
    Weatherred v. State, 
    15 S.W.3d 540
    , 542 (Tex. Crim. App. 2000); Williams v.
    State, 
    154 S.W.3d 800
    , 802 (Tex. App.—Houston [14th Dist.] 2004, pet.
    ref’d).
    6
    … Holloway v. Arkansas, 
    435 U.S. 475
    , 484–87, 
    98 S. Ct. 1173
    ,
    1178–80 (1978) (holding that trial court erred in not investigating counsel’s
    assertion of conflict of interest based on multiple representation); Lerma v.
    State, 
    679 S.W.2d 488
    , 492–93, 497 (Tex. Crim. App. [Panel Op.] 1982) (op.
    and op. on reh’g) (presuming conflict of interest and harm, and reversing and
    remanding for new trial, where trial court knew or should have known of
    potential conflict of interest but failed to hold hearing); see also Dunn v. State,
    
    819 S.W.2d 510
    , 519 (Tex. Crim. App. 1991) (declining to limit rule to
    conflicts of interest based on representation of co-defendants), cert. denied,
    
    506 U.S. 834
    (1992).
    7
    … See Calloway v. State, 
    699 S.W.2d 824
    , 830–31 (Tex. Crim. App.
    1985) (finding no error where trial counsel did not elaborate on his claim of
    3
    Appellant’s trial counsel filed a motion to withdraw on December 11,
    2006, citing a conflict of interest with appellant.8 The trial court heard the
    motion on January 8, 2007, three weeks before trial. At the brief hearing, trial
    counsel stated only,
    In each of these file numbers, I have heretofore filed a motion
    to withdraw stating that a conflict of interest has arisen between
    myself and [appellant].
    I would state for the record that I am constrained in what I
    can explain to the Court about this. There are certain mandates
    placed on me as a private attorney which restrict the amount of
    information which I can provide the Court at this time. I would just
    ask the Court to understand that I seriously believe there is a
    conflict of interest and I do not see how I can continue to represent
    [appellant].9
    conflict of interest); Thompson v. State, 
    94 S.W.3d 11
    , 20–22 (Tex.
    App.—Houston [14th Dist.] 2002, pet. ref’d) (holding no error where attorney
    stated conflict arose from representation of another private client but refused
    to give details); Harrell v. State, No. 12-00-00356-CR, 
    2002 WL 31656213
    ,
    at *3 (Tex. App.—Tyler Nov. 26, 2002, pet. ref’d) (not designated for
    publication) (holding trial court was not obligated to conduct further inquiry
    following mere assertion of a conflict of interest); Frazier v. State, 
    15 S.W.3d 263
    , 265–66 (Tex. App.—Waco 2000, no pet.) (finding no abuse of discretion
    to deny post-conviction motion to withdraw that alleged conflict of interest
    where trial counsel did not offer any specific facts).
    8
    … Appellant also filed several pro se documents complaining of his trial
    counsel. On December 4, 7, and 11, 2006, appellant filed pro se declarations
    of conflict between attorney and client. On December 7, 2006, he filed a
    motion to request appointed counsel. On December 7, 2006, and January 29,
    2007, appellant filed handwritten letters complaining of trial counsel.
    9
    … Appellant did not testify at the hearing but the trial court noted he
    “[shook] his head in the negative” after his attorney rested.
    4
    The trial court denied the motion without inquiry or explanation.
    Here, trial counsel did not elaborate on the alleged conflict of interest. 10
    Under the facts of this case, therefore, we hold that the trial court did not
    abuse its discretion by summarily denying trial counsel’s motion to withdraw.11
    We overrule appellant’s first issue.
    Double Jeopardy
    In his third and fourth issues, appellant argues that his Fifth Amendment
    protection against double jeopardy was violated because his aggravated assault
    conviction is a lesser included offense of both his aggravated kidnapping and
    retaliation convictions.   Appellant concedes that he did not raise a double
    jeopardy objection in the trial court.
    Appellant has the burden to “preserve, in some fashion,” a double
    jeopardy objection at or before the time the charge is submitted to the jury.12
    Because of the fundamental nature of double jeopardy, however, a double
    10
    … One of appellant’s handwritten letters to the trial court (dated
    December 7, 2006) stated that Cleveland hired his trial counsel’s law firm to
    defend her common law husband in another criminal matter. On appeal,
    however, appellant concedes that there is no indication that the trial court was
    aware of this document on the January 8 hearing.
    11
    … See 
    Calloway, 699 S.W.2d at 830
    –31; 
    Thompson, 94 S.W.3d at 20
    –22; Harrell, 
    2002 WL 31656213
    , at *3; 
    Frazier, 15 S.W.3d at 265
    –66.
    12
    … Gonzalez v. State, 
    8 S.W.3d 640
    , 642 (Tex. Crim. App. 2000).
    5
    jeopardy claim may be raised for the first time on appeal when “the undisputed
    facts show that the double jeopardy violation is clearly apparent on the face of
    the record and when enforcement of usual rules of procedural default serves no
    legitimate state interests.” 13 For the reasons discussed below, we hold that the
    alleged double jeopardy violations are not clearly apparent on the face of the
    record.
    Appellant’s double jeopardy complaints allege multiple punishments for
    the same offense.14 A multiple punishment double jeopardy violation is clearly
    apparent on the face of the record when the record affirmatively shows multiple
    punishments resulting from the commission of a single act that violated two
    separate penal statutes, one of which is, on its face, subsumed in the other.15
    To determine whether two convictions impose multiple punishments
    under the double jeopardy clause, we apply the “same elements” test
    articulated in Blockburger v. United States.16 This test “inquires whether each
    13
    … 
    Id. at 643.
          14
    … See Langs v. State, 
    183 S.W.3d 680
    , 685 (Tex. Crim. App. 2006).
    15
    … See Perez v. State, No. 02-06-00225-CR, 
    2007 WL 2744914
    , at *6
    (Tex. App.—Fort Worth Sept. 20, 2007, pet. ref’d) (mem. op., not designated
    for publication).
    16
    … 
    Langs, 183 S.W.3d at 685
    (citing Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    (1932)); see also Garrison v. State, Nos. 02-04-
    6
    offense contains an element not contained in the other; if not, they are the
    ‘same offen[s]e’ and double jeopardy bars additional punishment and successive
    prosecution.” 17    The Texas Court of Criminal Appeals has held that, under
    Blockburger, we are to consider both the statutory elements and any additional
    nonstatutory allegations found in the charging instruments.18
    We turn first to appellant’s double jeopardy claim based on the
    aggravated kidnapping and aggravated assault convictions. The face of the
    record shows that appellant was indicted for aggravated kidnapping as follows:
    [Appellant], in the County of Tarrant and State [of Texas], on or
    about the 24th day of March 2006, did with the intent to inflict
    bodily injury on Lisa Cleveland or violate or abuse Lisa Cleveland
    sexually or terrorize Lisa Cleveland intentionally or knowingly
    abduct Lisa Cleveland by restraining Lisa Cleveland without consent
    by moving Lisa Cleveland from one place to another or confining
    Lisa Cleveland with the intent to prevent the liberation of Lisa
    Cleveland by secreting or holding Lisa Cleveland in a place Lisa
    Cleveland was not likely to be found or using or threatening to use
    deadly force, namely burning Lisa Cleveland with a deadly weapon,
    to wit: a torch, that in the manner of its use or intended use was
    capable of causing death or serious bodily injury.
    00450-CR, 02-04-00451-CR, 
    2005 WL 1594258
    , at *6 (Tex. App.—Fort
    Worth July 7, 2005, pet. ref’d) (not designated for publication) (applying
    Blockburger to determine whether error was clearly apparent on face of the
    record).
    17
    … United States v. Dixon, 
    509 U.S. 688
    , 696, 
    113 S. Ct. 2849
    , 2856
    (1993).
    18
    … See Parrish v. State, 
    869 S.W.2d 352
    , 354 (Tex. Crim. App. 1994).
    7
    The jury charge on aggravated kidnapping tracked the indictment.
    The indictment for aggravated assault stated,
    [Appellant], in the County of Tarrant and State [of Texas], on or
    about the 24th day of March 2006, did intentionally or knowingly
    cause bodily injury to Lisa Cleveland by burning Lisa Cleveland with
    a torch and [appellant] did use or exhibit a deadly weapon during
    the commission of the assault, to-wit: a torch, that in the manner
    of its use or intended use was capable of causing death or serious
    bodily injury.
    The jury charge on aggravated assault also tracked the indictment.
    A close comparison of the two charged offenses shows that they are
    based not on the commission of a single act, but rather on different acts that
    include a common element. The aggravated kidnapping charge required the
    State to prove not only that appellant abducted Cleveland, but also that he did
    so with the intent to inflict bodily injury on her, violate her, abuse her sexually,
    or terrorize her; or that he used or exhibited a deadly weapon.19 To prove that
    appellant committed aggravated assault, as charged, it was necessary for the
    State to prove that appellant intentionally or knowingly caused bodily injury to
    Cleveland by using or exhibiting a deadly weapon.20         Therefore, no double
    jeopardy violation clearly appears on the face of the record in this case because
    19
    … See T EX. P ENAL C ODE A NN. § 20.04(a)(4)–(5), (b) (Vernon 2003).
    20
    … See 
    id. §§ 22.01,
    22.02(a)(2) (Vernon 2003 & Supp. 2007).
    8
    the record does not affirmatively show that the punishments for aggravated
    kidnapping and aggravated assault resulted from the commission of a single act.
    We turn next to appellant’s argument that his double jeopardy rights were
    violated by his convictions for both aggravated assault and retaliation. The
    offense of retaliation required the State to prove that appellant intentionally or
    knowingly harmed Cleveland by an unlawful act (burning her with a torch) in
    retaliation for or on account of the service or status of Cleveland as a person
    who has reported the occurrence of a crime. 21       The offense of aggravated
    assault, on the other hand, required the State to prove that appellant
    intentionally or knowingly caused bodily injury to Cleveland and used or
    exhibited a deadly weapon (a torch) during the commission of the assault.22
    Although both offenses are based on the commission of a single
    act—burning Cleveland with a torch— the State was required to prove one or
    more different elements to obtain a conviction for each offense. Retaliation
    required the State to prove that appellant harmed Cleveland in retaliation for or
    on account of reporting a crime, whereas aggravated assault required the State
    21
    … See 
    id. § 36.06(a)(1)(B)
    (Vernon 2003 & Supp. 2007).
    22
    … See 
    id. §§ 22.01(a)(1),
    22.02(a)(2).
    9
    to prove the torch was a deadly weapon.23 Thus, a double jeopardy violation
    does not clearly appear on the face of the record because the record does not
    affirmatively show that the offense of aggravated assault is subsumed within
    the offense of retaliation.24
    Accordingly, because appellant’s alleged double jeopardy violations are
    not clearly apparent on the face of the record, we cannot address them. We
    overrule appellant’s third and fourth issues.
    Improper Argument
    23
    … See Girdy v. State, 
    213 S.W.3d 315
    , 319 (Tex. Crim. App. 2006)
    (holding that if the State, in proving the elements of one charged offense, also
    necessarily proves another charged offense, then that other offense is a lesser
    included offense and multiple punishments are barred); Landry v. State, 
    227 S.W.3d 380
    , 382 (Tex. App.—Texarkana 2007, no pet.) (holding that, where
    State did not allege use of a deadly weapon in capital murder indictment,
    aggravated assault by the use or exhibition of a deadly weapon contained an
    additional element and was, therefore, not a lesser included offense of capital
    murder as alleged); Rodriguez v. State, No. 04-04-00230-CR, 
    2005 WL 899963
    , at *2 (Tex. App.—San Antonio Apr. 20, 2005, pet. ref’d) (mem. op.,
    not designated for publication) (“Proof of the use or exhibition of a deadly
    weapon is an essential element of the offense of aggravated assault as it was
    charged in the indictment [under penal code section 22.02(a)(2)].”).
    24
    … See T EX. P ENAL C ODE A NN. §§ 22.01(a)(1), 22.02(a)(2),
    36.06(a)(1)(B); cf. Jacob v. State, 
    892 S.W.2d 905
    , 909 (Tex. Crim. App.
    1995) (holding that “because evidence showing a completed aggravated assault
    is not part of the facts legally required to show burglary with intent to commit
    aggravated assault . . . aggravated assault is not a lesser included offense of
    burglary under Section 30.02(a)(1)”).
    10
    In his fifth issue, appellant argues that the prosecutor struck at him over
    the shoulders of his counsel in the State’s closing argument. To preserve a
    complaint for our review, a party must have presented to the trial court a timely
    request, objection, or motion that states the specific grounds for the desired
    ruling if they are not apparent from the context of the request, objection, or
    motion.25 Further, the trial court must have ruled on the request, objection, or
    motion, either expressly or implicitly, or the complaining party must have
    objected to the trial court’s refusal to rule. 26
    Appellant concedes that he did not preserve error as to the allegedly
    improper comment. We, therefore, overrule his fifth issue.27
    Ineffective Assistance of Counsel
    In his second and sixth issues, appellant argues that his trial counsel
    rendered ineffective assistance by inadequately presenting the motion to
    withdraw and failing to preserve his double jeopardy and improper closing
    argument complaints.
    25
    … T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 
    983 S.W.2d 249
    , 265
    (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 
    526 U.S. 1070
    (1999).
    26
    … T EX. R. A PP. P. 33.1(a)(2); Mendez v. State, 
    138 S.W.3d 334
    , 341
    (Tex. Crim. App. 2004).
    27
    … See Threadgill v. State, 
    146 S.W.3d 654
    , 667 (Tex. Crim. App.
    2004) (overruling appellant’s improper argument point where appellant failed
    to preserve error).
    11
    To establish ineffective assistance of counsel, appellant must show by a
    preponderance of the evidence that his counsel’s representation fell below the
    standard of prevailing professional norms and that there is a reasonable
    probability that, but for counsel’s deficiency, the result of the trial would have
    been different.28 Review of counsel’s representation is highly deferential, and
    the reviewing court indulges a strong presumption that counsel’s conduct fell
    within a wide range of reasonable representation.29
    A reviewing court will rarely be in a position on direct appeal to fairly
    evaluate the merits of an ineffective assistance claim.30     In the majority of
    cases, the record on direct appeal is undeveloped and cannot adequately reflect
    the motives behind trial counsel’s actions. 31 To overcome the presumption of
    reasonable professional assistance, any allegation of ineffectiveness must be
    firmly founded in the record, and the record must affirmatively demonstrate the
    28
    … Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    ,
    2064 (1984); Salinas v. State, 
    163 S.W.3d 734
    , 740 (Tex. Crim. App. 2005);
    Mallett v. State, 
    65 S.W.3d 59
    , 62–63 (Tex. Crim. App. 2001); Thompson v.
    State, 
    9 S.W.3d 808
    , 812 (Tex. Crim. App. 1999).
    29
    … See 
    Salinas, 163 S.W.3d at 740
    ; 
    Mallett, 65 S.W.3d at 63
    .
    30
    … 
    Thompson, 9 S.W.3d at 813
    –14.
    31
    … 
    Salinas, 163 S.W.3d at 740
    (quoting 
    Mallett, 65 S.W.3d at 63
    ).
    12
    alleged ineffectiveness.32 It is not appropriate for an appellate court simply to
    infer ineffective assistance based upon unclear portions of the record. 33
    Regarding trial counsel’s performance in presenting the motion to
    withdraw, the record does not contain counsel’s reasons for failing to elaborate
    on the alleged conflict of interest or for failing to call appellant to allow him to
    elaborate. It appears that trial counsel was guarded in his explanation to the
    trial court because he believed professional ethical rules prevented him from
    discussing the possible conflict of interest in greater detail.
    Trial counsel should ordinarily be afforded an opportunity to explain his
    actions before being denounced as ineffective even where the incident
    reasonably raises questions as to certain trial strategy decisions. 34 Here, the
    record suggests that trial counsel apprised the trial court, both in writing and
    orally, of a possible conflict of interest, while also attempting to honor ethical
    obligations. In the absence of evidence of counsel’s reasoning, the record is
    32
    … Id. (quoting 
    Thompson, 9 S.W.3d at 813
    ).
    33
    … Mata v. State, 
    226 S.W.3d 425
    , 432 (Tex. Crim. App. 2007).
    34
    … See Rylander v. State, 
    101 S.W.3d 107
    , 110–11 (Tex. Crim. App.
    2003); Bone v. State, 
    77 S.W.3d 828
    , 836 (Tex. Crim. App. 2002).
    13
    insufficient to overcome the presumption that trial counsel’s conduct falls
    within the wide range of professional, competent assistance. 35
    Appellant next argues trial counsel was ineffective in failing to preserve
    his double jeopardy arguments. While in some cases a “single egregious error”
    may constitute ineffective assistance of counsel,36 an isolated failure to object
    generally does not constitute ineffective assistance. 37   Again, the record is
    silent on trial counsel’s reasons for not objecting to the charge based on double
    jeopardy. Trial counsel may have considered the charge and concluded that
    double jeopardy was not violated, and, as we have already determined, a double
    jeopardy violation is not clearly apparent on the face of the record. Or trial
    counsel may have decided not to object for reasons of trial strategy. We hold
    that appellant failed to rebut the presumption that counsel acted reasonably.38
    35
    … See Freeman v. State, 
    125 S.W.3d 505
    , 506–07 (Tex. Crim. App.
    2003); Rylander, 101 S.W .3d at 110–11; 
    Bone, 77 S.W.3d at 836
    –37;
    
    Thompson, 9 S.W.3d at 814
    .
    36
    … E.g., Andrews v. State, 
    159 S.W.3d 98
    , 103 (Tex. Crim. App. 2005)
    (holding that record was sufficient to allow decision on merits and that counsel
    rendered ineffective assistance by failing to object to prosecutor’s misstatement
    of the law).
    37
    … See Scheanette v. State, 
    144 S.W.3d 503
    , 510 (Tex. Crim. App.
    2004); Ingham v. State, 
    679 S.W.2d 503
    , 509 (Tex. Crim. App. 1984).
    38
    … See 
    Thompson, 9 S.W.3d at 814
    .
    14
    Finally, appellant complains of trial counsel’s failure to object to the
    prosecutor’s statement in closing argument.         In rebuttal argument, the
    prosecutor stated,
    Ladies and gentlemen, I guess when you are sitting next to
    a guilty man, you will say anything. What is the Defense here?
    Was this rough sex or was it [appellant] spilling the gas out of this
    canister on Lisa Cleveland?
    See, when you are sitting next to a guilty man, you have got
    to throw as much stuff against the wall and see what will stick.
    But ladies and gentlemen, I implore you to look at the facts . . . .
    Again, an isolated failure to object generally does not constitute
    ineffective assistance. 39 In context, trial counsel may have believed that the
    argument merely referenced the presence of multiple defensive theories and did
    not impugn his character.40 Appellant has failed to rebut the presumption that
    counsel acted reasonably.41
    For all of these reasons, we overrule appellant’s second and sixth issues.
    Roxanne Hayes’s Testimony
    39
    … See 
    Scheanette, 144 S.W.3d at 510
    ; 
    Ingham, 679 S.W.2d at 509
    .
    40
    … See Guy v. State, 
    160 S.W.3d 606
    , 617 (Tex. App.—Fort Worth
    2005, pet. ref’d) (holding that “a prosecutor risks improperly striking at a
    defendant over the shoulder of counsel when the argument refers to defense
    counsel personally and when the argument explicitly impugns defense counsel’s
    character”).
    41
    … See 
    Thompson, 9 S.W.3d at 814
    .
    15
    In his seventh issue, appellant argues that the trial court improperly
    admitted Roxanne Hayes’s testimony relating an incident somewhat similar to
    Cleveland’s allegations. Over appellant’s objection, Hayes testified that she had
    dated appellant from 1997 through 1999, he had assaulted her, and she had
    also felt “confined” in his house. Appellant also told Hayes that he would
    retaliate against her and had locked her in the same trunk that Cleveland
    identified.      Hayes further testified that, although she left the house with
    appellant, she did not feel that she could leave because he had threatened to
    kill her.
    At trial, appellant objected to this testimony based on Texas Rules of
    Evidence 402 and 403.42 We review the trial court’s rulings on both of these
    grounds for an abuse of discretion.43
    Rule 402 provides, “All relevant evidence is admissible, except as
    otherwise provided . . . . Evidence which is not relevant is inadmissible.” 44
    Evidence is relevant if it has any tendency to make the existence of any fact
    42
    … On appeal, he also briefs Rule 404(a) and (b). We consider, however,
    only those grounds that appellant advanced in the trial court. T EX. R. A PP. P.
    33.1; see 
    Mendez, 138 S.W.3d at 341
    –42.
    43
    … Wyatt v. State, 23 S.W .3d 18, 26 (Tex. Crim. App. 2000) (Rule
    403); Brown v. State, 
    96 S.W.3d 508
    , 511 (Tex. App.—Austin 2002, no pet.)
    (Rule 401).
    44
    … T EX. R. E VID. 402.
    16
    that is of consequence to the determination of the action more probable or less
    probable than it would be without the evidence. 45
    The fact that appellant also locked Hayes in the same trunk in the past
    made it more probable that he had done the same to Cleveland.          Further,
    Hayes’s testimony that she did not feel free to leave appellant while they were
    in public together, because of his threats, tended to rebut appellant’s defense
    that Cleveland stayed with him voluntarily. Hayes’s testimony was, therefore,
    relevant, and the trial court did not abuse its discretion in admitting the
    evidence over his Rule 402 objection.
    Rule 403 provides that “[a]lthough relevant, evidence may be excluded
    if its probative value is substantially outweighed by the danger of unfair
    prejudice, confusion of the issues, or misleading the jury, or by considerations
    of undue delay, or needless presentation of cumulative evidence.” 46 The Rule
    403 balancing test includes the following factors:
    (1) how compellingly the extraneous offense evidence serves to
    make a fact of consequence more or less probable—a factor which
    is related to the strength of the evidence presented by the
    proponent to show the defendant in fact committed the extraneous
    offense;
    45
    … T EX. R. E VID. 401.
    46
    … T EX. R. E VID. 403.
    17
    (2) the potential the other offense evidence has to impress the jury
    in some irrational but nevertheless indelible way;
    (3) the time the proponent will need to develop the evidence,
    during which the jury will be distracted from consideration of the
    indicted offense;
    (4) the force of the proponent’s need for this evidence to prove a
    fact of consequence, i.e., does the proponent have other probative
    evidence available to him to help establish this fact, and is this fact
    related to an issue in dispute.47
    The first and third factors weigh heavily in favor of admissibility. First,
    Hayes’s testimony was compelling. Cleveland claimed that appellant abducted
    her, yet several witnesses claimed to have seen appellant and Cleveland
    together in public during the relevant time.     Hayes’s testimony supported
    Cleveland’s claim that she did not leave, even when in public, because of
    appellant’s threats. Further, Hayes’s entire testimony before the jury comprises
    four pages in the record; thus, the jury was drawn away from the indicted
    offenses only briefly.
    The second and fourth factors are neutral. Regarding the second factor,
    the jury had already heard Cleveland’s allegations of the abuse suffered at
    appellant’s hands; Hayes’s testimony was less detailed and no worse by
    comparison.      Hayes’s testimony, however, did reveal that appellant had
    abducted her in the late nineties, which may have suggested that appellant had
    47
    … 
    Wyatt, 23 S.W.3d at 26
    (internal quotation marks omitted).
    18
    a chronic pattern of abducting and abusing women.             Regarding the fourth
    factor, the question of whether Cleveland was abducted or stayed voluntarily
    was disputed at trial; thus, Hayes’s testimony was important to the State. The
    State, however, did have some other evidence to prove abduction—Cleveland’s
    testimony, which was corroborated to some extent by that of her daughter and
    son.48
    Because the first and third factors weigh heavily in favor of admissibility,
    and the second and fourth factors are neutral, we hold that the trial court did
    not abuse its discretion in concluding that the danger of unfair prejudice did not
    substantially outweigh the probative value of this evidence.
    For all of these reasons, we overrule appellant’s seventh issue.
    Factual Sufficiency
    In his eighth, ninth, and tenth issues, appellant challenges the factual
    sufficiency of the evidence to support his three convictions.
    48
    … Cleveland’s daughter testified that her mother told her on March 24
    that appellant had abused her and would not let her leave. Further, her son
    testified that appellant denied knowing where Cleveland was one week after
    she went missing, although appellant later admitted that she was with him
    during that time.
    19
    When reviewing the factual sufficiency of the evidence to support a
    conviction, we view all the evidence in a neutral light, favoring neither party. 49
    We then ask whether the evidence supporting the conviction, although legally
    sufficient, is nevertheless so weak that the fact-finder’s determination is clearly
    wrong and manifestly unjust or whether conflicting evidence so greatly
    outweighs the evidence supporting the conviction that the fact-finder’s
    determination is manifestly unjust. 50 To reverse under the second ground, we
    must determine, with some objective basis in the record, that the great weight
    and preponderance of all the evidence, though legally sufficient, contradicts the
    verdict.51
    In determining whether the evidence is factually insufficient to support a
    conviction that is nevertheless supported by legally sufficient evidence, it is not
    enough that this court “harbor a subjective level of reasonable doubt to
    overturn [the] conviction.” 52 We cannot conclude that a conviction is clearly
    wrong or manifestly unjust simply because we would have decided differently
    49
    … Watson v. State, 
    204 S.W.3d 404
    , 414 (Tex. Crim. App. 2006);
    Drichas v. State, 
    175 S.W.3d 795
    , 799 (Tex. Crim. App. 2005).
    50
    … 
    Watson, 204 S.W.3d at 414
    –15, 417; Johnson v. State, 
    23 S.W.3d 1
    , 11 (Tex. Crim. App. 2000).
    51
    … 
    Watson, 204 S.W.3d at 417
    .
    52
    … 
    Id. 20 than
    the jury or because we disagree with the jury’s resolution of a conflict in
    the evidence. 53     We may not simply substitute our judgment for the fact-
    finder’s.54 Unless the record clearly reveals that a different result is appropriate,
    we must defer to the jury’s determination of the weight to be given
    contradictory testimonial evidence because resolution of the conflict “often
    turns on an evaluation of credibility and demeanor, and those jurors were in
    attendance when the testimony was delivered.” 55 Thus, we must give due
    deference to the fact-finder’s determinations, “particularly those determinations
    concerning the weight and credibility of the evidence.” 56
    The evidence at trial showed as follows:
    Appellant and Cleveland were drug addicts who regularly                  used
    methamphetamine during the course of their five-year relationship.                 In
    December 2005, appellant assaulted Cleveland and was sent to jail for some
    time. On March 5, 2006, in violation of a protective order, appellant appeared
    53
    … 
    Id. 54 …
    Johnson, 23 S.W.3d at 12
    ; Cain v. State, 
    958 S.W.2d 404
    , 407
    (Tex. Crim. App. 1997).
    55
    … 
    Johnson, 23 S.W.3d at 8
    .
    56
    … 
    Id. at 9.
    21
    at Cleveland’s house and persuaded her to accompany him to his house to do
    drugs and have sex, promising that he would “bring [her] right back.”
    Cleveland testified that, when they arrived at appellant’s house, they took
    drugs and began to have sex, but appellant soon became angry. Appellant said
    Cleveland could not be trusted because she filed charges against him that
    caused him to be sent to jail, he was not going to go back to jail, and he
    believed that she had been having sex with other men.            Appellant tied
    Cleveland’s hands and feet, put a sock in her mouth, attached a strap to her
    feet, and hoisted her from the rafters of the bedroom so that only her shoulder
    and head were touching the mattress. While Cleveland was hanging upside
    down, appellant burned her back three times with a torch. After cutting her
    down from the rafters, appellant twice poured “something similar to Drano” on
    Cleveland’s burns.57
    The next day, appellant panicked when he realized the extent of
    Cleveland’s injuries. Appellant locked Cleveland in his grandmother’s old trunk,
    again saying she was not to be trusted. Appellant locked Cleveland in the trunk
    57
    … When officers later searched appellant’s home, they found, among
    other items, “a gas cannister typically used with a portable torch” (although the
    torch component was not found), straps attached to exposed rafters in the
    bedroom, a pipe, and “a plastic bag containing a drain flow bottle.” Detective
    Brian Jamison testified that the torch would be considered a deadly weapon if
    used on a person.
    22
    on several later occasions as well, sometimes dropping burning pieces of paper,
    urine, and feces inside. Outside of the trunk, appellant poured acetone on
    Cleveland; threw matches at her; hit, kicked, and tripped her; put needles under
    her toenails; and beat her hands and feet with a pipe.           Further, when
    Cleveland’s son came looking for her a week after she went missing, appellant
    denied knowing where she was.
    Cleveland said that appellant locked her inside his house, and there was
    evidence that the front door was difficult to open because it could be unlocked
    only by key, from the outside, and the back door was nailed shut. During this
    confinement, appellant said that Cleveland would never see her kids again and
    that he would burn down the house with her children in it. Cleveland did not
    attempt to leave because she was afraid of appellant’s threats, even though she
    and appellant left the house together more than once. Several witnesses who
    saw appellant and Cleveland together around the time of the kidnapping
    testified that Cleveland did not seek their help or appear to be held against her
    will. Many of these witnesses, however, were unsure of the exact date that
    they had seen Cleveland, and it might have been before the kidnapping.
    On March 24, 2006, while appellant appeared to be asleep with another
    woman, Cleveland found appellant’s keys, unlocked the front door, and drove
    23
    appellant’s car to a friend’s house.     The friend and Cleveland’s daughter
    observed several injuries on Cleveland and insisted that she go to the hospital.
    Brenda Lobley, an emergency room doctor at Harris Methodist Fort Worth
    Hospital, testified that Cleveland presented on March 24, 2006, with healing
    burns on her back and buttocks, bruises, abrasions, healing lacerations to the
    scalp, an ankle fracture, and three relatively new rib fractures.     Dr. Lobley
    opined that Cleveland’s injuries constituted “serious bodily injury.” Dr. Lobley,
    however, did not notice anything consistent with acid being poured on
    Cleveland’s burn and said Cleveland reported that she had been “locked in the
    trunk of a car” for twenty days.
    Appellant testified in his own defense. He admitted assaulting Cleveland
    in December but denied being upset with her for turning him in for that offense.
    Appellant claimed that he accidentally burned Cleveland while trying to warm
    himself and Cleveland with the torch during sex.       He further asserted that
    Cleveland tripped over loose boards in his house, causing her broken ribs.
    Appellant denied abducting, assaulting, and retaliating against Cleveland, and
    he claimed she was angry with him only because he was having sex and doing
    24
    drugs with another woman.58 He also denied locking Cleveland or Hayes in his
    grandmother’s trunk.
    Appellant contends that Cleveland’s testimony was not credible.
    Cleveland admitted that she had done drugs a few days before trial, and several
    witnesses—many of whom were related to appellant—testified that Cleveland
    had a bad reputation for telling the truth. Credibility determinations, however,
    are the sole province of the jury.59
    Applying the appropriate standard, we conclude that the evidence is
    factually sufficient to prove that appellant committed retaliation, aggravated
    kidnapping, and aggravated assault as charged.         Accordingly, we overrule
    appellant’s eighth, ninth, and tenth issues.
    Conclusion
    Having overruled all of appellant’s issues, we affirm the trial court’s
    judgment.
    PER CURIAM
    PANEL F: CAYCE, C.J.; WALKER and MCCOY, JJ.
    58
    … Cleveland admitted that she was mad that appellant was ignoring her
    immediately before her escape.
    59
    … E.g., Margraves v. State, 
    34 S.W.3d 912
    , 919 (Tex. Crim. App.
    2000) (holding that the jury is the exclusive judge of the credibility of witnesses
    and the weight to be given their testimony).
    25
    PUBLISH
    DELIVERED: March 20, 2008
    26