Mark Minger v. State of Texas ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Mark Minger

Appellant

Vs.                   Nos. 11-01-00107-CR, 11-01-00108-CR, 11-01-00109-CR, 11-01-00110-CR, &

11-01-00111-CR B Appeals from Collin County

State of Texas

Appellee

In one trial involving five indictments, a jury convicted appellant of four counts of aggravated kidnapping, and the jury also found that he committed three violations of a protective order.  The jury assessed punishment in three of the aggravated kidnapping convictions at 25 years confinement and at 20 years confinement for the other aggravated kidnapping conviction.  The jury also assessed 10 years confinement for each violation of the protective order.  We affirm.

Appellant brings two issues on appeal.  In his first issue, appellant contends that the trial court erred when it admitted the videotape of an interview with him which he claims was altered or enhanced. In his second issue, appellant contends that the evidence is legally insufficient  to support the jury=s verdict in the aggravated kidnapping convictions.  There is no challenge to the factual sufficiency of the evidence. We will discuss appellant=s second issue first. 

In order to determine if the evidence is legally sufficient to support the verdict, we must  review all 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 crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000).   The jury is the sole judge of the weight and credibility of the evidence.  TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Cr.App.2000), cert. den=d, 532 U.S. 944 (2001).

A person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person and uses or displays a deadly weapon during the commission of the offense.  TEX. PENAL CODE ANN. ' 20.04(b) (Vernon Supp. 2003).  TEX. PENAL CODE ANN. ' 20.01(2) (Vernon Supp. 2003) provides that: 

AAbduct@ means to restrain a person with intent to prevent his liberation by:  (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force.

TEX. PENAL CODE ANN. ' 20.01(1) (Vernon Supp. 2003) states that:

ARestrain@ 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.

Whether substantial interference has occurred is a question for the finder of fact.  Hines v. State, 75 S.W.3d 444, 448 (Tex.Cr.App.2002).

The evidence introduced at trial shows that appellant and his wife, Tammy Ramsey, separated in July 1999.  Tammy obtained a protective order against appellant in March 2000.   Included in the protective order were appellant=s son, M.M., as well as Tammy=s daughter, B.S., who had lived with Tammy and appellant since B.S. was two years old.

Scott Luesse testified that appellant worked for his father.  He further testified that appellant said that he was going to take Tammy, B.S., and M.M.; that he was going to make Tammy kill B.S. and M.M.; and that afterward he was going to kill Tammy and himself. Luesse and his father called the police.  The police placed appellant in protective custody and transported him to Plano Medical Center.

Sheila Ann Walker testified that she had known appellant for about five or six years.  She further testified that appellant told her in March or April of 2000 that he was going to kill himself and his family.  Walker testified that appellant told her that, A[w]hen someone walked the dog, he was going to go up after them and, you know, kill himself and his family.@  She also testified that appellant told her that:

He was going to hide in [Tammy=s] car in the trunk.  When he got her, he was going to take her off, and he was going to rape her and hurt her, and he was going to come back and finish the job with the rest of his family.

Bruce Alfred Douglas testified that appellant lived with him about three weeks prior to this  offense.  Douglas further testified that appellant told him of his plans to Aforce [Tammy] in the car and drive her someplace, and she was going to die, and it was going to take three days. It was going to be a slow death.@  Douglas also testified that he and appellant would drive past the place where Tammy lived with her parents.  Douglas testified that appellant had redeemed a gun appellant had pawned and that Douglas had put it in his safe until appellant moved.  When appellant moved out about a week before he was arrested, Douglas gave appellant the gun. 

The State alleged that appellant committed the offenses on April 20, 2000.  At that time, Tammy and her two children lived with Tammy=s parents in a garage apartment above a self-storage facility.  Tammy=s mother, Pamela Ramsey, testified that on April 20, 2000, before 7:00 a.m., as she was walking her dog, appellant jumped  from behind some bushes in front of Tammy=s car and pointed a gun at her.  Appellant told Pamela to go inside and A[b]e easy.@  Once they were inside the apartment, appellant told Pamela to tell Tammy to come out.  Pamela told Tammy to come out.  As Tammy came out of the bathroom, B.S. and M.M. came out of their bedroom at that time. Pamela testified that appellant pointed the gun at all of them as he cocked and uncocked it several times. Pamela also testified that, when Tammy told appellant that it was over and that she did not love him anymore:

[H]e comes flying up out of the chair, cocked the gun right in her face and started screaming, AIt=s over?  You=re telling me its over?@ I thought he was going to shoot her right then. 

Pamela further testified that appellant was trying to get B.S., M.M., and Tammy into the car with him.  Pamela got the gun away from appellant, attempted to get the bullets out of the gun, and told him to leave her house.  Appellant wrestled the gun away from Pamela and knocked her down. Pamela talked appellant into giving her the gun; she was able to get the bullets out, and she called 911.  However, she hung up before anyone answered because she was afraid that appellant knew that she was calling the police.  The 911 operator called back, and Pamela told her to send the police because someone was threatening her family with a gun.  Pamela went down the stairs to meet the police.  After he had given the gun to Pamela, appellant grabbed Tammy, B.S., and M.M. and held them tightly around the neck. 

B.S. testified that, as she was getting dressed for school the morning of the offense, she heard her mother and grandmother screaming at someone.  Appellant told B.S. and M.M. to come out of their room and not to move.  B.S. testified that appellant pointed the gun at Tammy one time.  She also testified that, after Pamela had taken the gun from appellant, appellant grabbed her mother, her brother, and herself in a hug on the floor.  Tammy and appellant were sitting on the floor. M.M. was sitting beside them, and B.S. was standing behind them.  B.S. testified that she thought that M.M. was scared and that her mind had gone blank.

Tammy testified that, when Pamela called her out of the bathroom, she saw appellant with the gun.  Tammy further testified that, when she told him that she did not love him anymore, appellant pointed the gun at her face.  After Pamela got the gun from him the second time, appellant pulled Tammy down on the floor with him.  Appellant held her around the neck, and she could not get up or move. Tammy also testified that appellant had B.S. and M.M. in his grip as well.

 Officer William Gardner Rollins with the City of Plano testified, that when he entered the room, B.S. and M.M. were standing to the left and that appellant was not holding them.  He further testified that appellant was holding Tammy by the arms.  Officer Rollins had to physically separate them.  Officer Pat Clark and Officer Bruce Yeager secured the gun, the bullets, and the rest of the scene.  Officer Yeager testified that, when he arrived, appellant and Tammy were sitting close together on the floor and that Tammy had her arm on appellant=s shoulder.  He could not see whether appellant was holding Tammy. Officer Clark  testified that he did not see appellant holding Tammy; he only saw that they were sitting close together on the floor and that B.S. and M.M. were away from appellant.  The officers arrested appellant. 

Officer Cathy Stamm, an investigator from the family violence unit from Dallas, testified that she searched appellant=s vehicle.  A pair of handcuffs, one .357 round of ammunition, and several handmade poster board signs which contained written pleas from appellant to Tammy asking her to let him return to her and work out their problems were found.

The evidence is legally sufficient for the jury to find beyond a reasonable doubt that appellant committed aggravated kidnapping. Appellant=s second issue on appeal is overruled.

Appellant=s first issue is that a videotaped interview of appellant was inadmissible because it was altered.  The afternoon after appellant was arrested, Officer Stamm videotaped an interview with appellant. Officer Stamm testified that she gave appellant the appropriate warnings on the videotape, that the interview was 30 to 45 minutes long, that the tape recorder was self-automated, and that she put the tape in the recorder and pressed record.  However, the interview was recorded at the wrong speed. 

Using various procedures, the State enhanced the recording by slowing it down, filtering out background noise, and restoring treble tones lost in the process of enhancement.  The persons involved in the enhancement process testified about the process, and their testimony showed that the process did not alter the original contents of the taped interview.  Officer Stamm also testified that the enhanced version of the videotape contained an accurate account of the original interview.

A trial court=s ruling on the admissibility of evidence is reviewed under an abuse-of-discretion standard.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997).  The Texas Code of Criminal Procedure provides specific rules for governing the oral statements of an accused.  TEX. CODE CRIM. PRO. ANN. art. 38.22, ' 3 (Vernon Pamph. Supp. 2003) provides in relevant part:

(a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered.

If the video accurately reflects the actual interview, it is assumed that the operator was competent and that the recording device was capable of making an accurate recording.  Falcetta v. State, 991 S.W.2d 295, 298 (Tex.App. B Texarkana 1999, pet=n ref=d).  A person with knowledge need only testify that the video was an accurate portrayal of the interview and had not been altered in order to meet the last two requirements of Article 38.22, section 3.  TEX.R.EVID. 901(b)(1); Angleton v. State, 971 S.W.2d 65 (Tex.Cr.App.1998).  Testimony of persons, who had knowledge of the interview and who viewed the duplicate, that the video reflected the events of the interview was sufficient to show the videotape=s authenticity.  Hall v. State, 67 S.W.3d 870 (Tex.Cr.App.2002).     Here, Officer Stamm clearly had personal knowledge of the interview with appellant because she is the one who conducted the interview.  She testified that the admitted videotape and the audio version of the interview were accurate reflections of her interview with appellant. The videotape meets the requirements of Article 38.22, section 3, and there was no error.  Appellant=s first issue on appeal  is overruled.

The judgments of the trial court are affirmed.

JIM R. WRIGHT

JUSTICE

January 16, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.