Ballard, Nicholas Duran ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0725-05

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NICHOLAS DURAN BALLARD, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS GREGG COUNTY

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   Cochran, J., filed a concurring opinion.



O P I N I O N

I join the majority opinion. I add these comments only to emphasize that this appeal involves the legal and factual sufficiency of the evidence to support the trial court's rejection of appellant's affirmative defense to aggravated kidnapping of voluntary release in a safe place. ⁽¹⁾ I agree with the Court of Appeals that, although "the evidence does reveal a reduction in Ballard's control over Lambeth," it does not reveal

a voluntary release of Lambeth. While there is conflicting evidence on the matter-and Lambeth's testimony is not entirely clear on whether she felt free to leave-what is clear is that the trial court, acting as finder of fact in the face of conflicting evidence, was authorized to believe or disbelieve any portion of the evidence. ⁽²⁾

The trial judge in this case was able to see Ms. Lambeth for himself, gauge her appearance, demeanor, and any nonverbal interactions between her and her former boyfriend during her testimony. Neither we nor the court of appeals were present during this testimony, nor can we adequately assess the credibility of Ms. Lambeth's in-court testimony.

As the court of appeals's opinion sets out the evidence, appellant and Ms. Lambeth clearly had a "troubled" relationship. They "share a child from their prior relationship," and appellant married another woman, but he continued to be very jealous of Ms. Lambeth's possible relationships with other men. ⁽³⁾ On prior occasions, he had accessed her e-mail, broken into her home, assaulted her, and threatened to kill her if she had another boyfriend. ⁽⁴⁾ It is undisputed that appellant kidnapped Ms. Lambeth at gunpoint from a college campus, and that she went with him because she did not want him to kill her. ⁽⁵⁾

Given the nature of this relationship and of appellant's manner of kidnapping and sexually using Ms. Lambeth, I agree that the trial judge's conclusion that appellant failed to prove, by a preponderance of the evidence, that he voluntarily released Ms. Lambeth in a safe place is supported by the evidence and reasonable inferences from that evidence. That a different factfinder might well have concluded that Lambeth's testimony, including her statement, "I didn't leave because I just got back in the groove that I was used to[,]" supported an inference that Ballard had voluntarily released her in a safe place when he left her alone in the car is of no moment.

Filed: June 7, 2006

Publish

1. Tex. Penal Code § 20.04(d).

2.

Ballard v. State, 161 S.W.3d 269, 277 (Tex. App.-Texarkana 2005).

3.

Id. at 274.

4.

Id.

5.

Id.