Evans v. State
| Decision Date | 29 April 2022 |
| Docket Number | 12-21-00123-CR |
| Parties | JOHNNY LEE EVANS, SR., APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
DO NOT PUBLISH
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Appellant Johnny Lee Evans, Sr. appeals his conviction for kidnapping. In four issues, Appellant challenges the sufficiency of the evidence and argues that the trial court erred by failing to properly instruct the jury, the prosecutor struck at him over the shoulders of defense counsel during closing argument, and his twenty-five-year sentence, which the trial court ordered would run consecutively to his sentence in another case, is grossly disproportionate and constitutes cruel and unusual punishment. We affirm the trial court's judgment.
Appellant was charged by indictment with kidnapping his infant son J.E.[1] He pleaded "not guilty," and the matter proceeded to a jury trial. Sergeant Destry Wallsworth of the Tyler Police Department testified that J.E.'s mother, N.D reported the kidnapping at 1:31 a.m. N.D. testified that she had left J.E. in the care of another adult at her residence. Wallsworth was dispatched to investigate, and he learned from other investigating officers that Appellant was a suspect. Detective April Molina of the Tyler Police Department also responded to the scene. According to N.D. and Wallsworth Appellant was not identified as the father on J.E.'s birth certificate, and N.D. and Appellant did not have a custody agreement. Additionally, N.D. explained that she and Appellant never married, Appellant was not supporting J.E., Appellant moved to Dallas, and Appellant had not visited the child. N.D. further testified that she did not consent to Appellant taking J.E.
N.D. testified that before the kidnapping occurred, she received threatening messages from Appellant about coming to take J.E. Detective Dennis Mathews testified that upon performing a forensic examination of N.D.'s phone, he found messages from Appellant to N.D., in which Appellant threatened to take J.E. According to N.D., the residence where she and J.E. lived was in horrible condition, lacked running water, and was infested with rats.
Investigating officers made contact with Appellant using N.D.'s cell phone. Appellant initially told investigating officers that J.E. was with a family member, and although Appellant denied being in the Tyler area, officers who were pinging Appellant's cell phone knew that Appellant was not being truthful. Appellant eventually told Wallsworth that he was at an apartment in Tyler with J.E., and when Wallsworth went to that location, he found J.E. inside the apartment with Appellant's teenage daughter. The apartment belonged to the mother of Appellant's daughter's friend, who N.D. did not know. Appellant's daughter testified that Appellant instructed her to tell law enforcement that his aunt dropped off J.E.
Appellant and his daughter continued to tell officers that another individual brought J.E. to the apartment, but Appellant ultimately confessed that he took J.E. from N.D.'s residence. Wallsworth testified that Appellant Wallsworth testified that Appellant "basically stalked them like a lion stalking [its] prey."
Appellant admitted to Wallsworth that after he watched N.D. leave the residence, he "snuck in and took the child[.]" Wallsworth explained that Appellant initially tried to enter through a bedroom window, which made too much noise, so he entered N.D.'s residence through the unlocked front door. Appellant's daughter told Wallsworth that Appellant asked her to lie about how J.E. got to the apartment, and she told officers the truth about what transpired after Appellant asked the officers to tell her that he no longer wanted her to lie. Wallsworth testified that Appellant told him J.E. was asleep when Appellant took him from the residence, and Wallsworth testified that J.E. was not in imminent danger. N.D. testified that when the Department removed J.E., she learned that J.E. had "an enormous amount" of illegal drugs in his system. According to Wallsworth, Appellant could have called law enforcement, and law enforcement would have checked on J.E.'s welfare. Because N.D.'s residence was infested with rats and lacked running water, Wallsworth contacted the Texas Department of Family and Protective Services after arresting Appellant.
Appellant testified that he was unaware that he was not listed as the father on J.E.'s birth certificate. Appellant explained that prior to the day he took J.E., he was concerned about J.E.'s "well-being, his safety, the people that he was around[, ] and the things that [were] going on with the people that he was around." Appellant testified that he did not contact the authorities to check on J.E.'s welfare because he feared that J.E. would be taken from N.D. if they saw the conditions in which J.E. and N.D. were living. Appellant explained that when he saw N.D. get into her car and leave the house, he knocked on the front door, which "just came open[, ]" and he could hear J.E. crying. He denied telling officers that he first attempted to enter through a window. Appellant stated that when he entered N.D.'s residence, he saw "J.E. laying in the bed with nothing on but a diaper, and he was crying, all red, and his eyes [were] puffy." According to Appellant, "you could smell feces, you could see feces on the wall, . . . rats running around in the room on the floor, rats in the living room on the couch[.]" Appellant testified that he saw drug paraphernalia, including crack pipes and bags of "weed" and cocaine, and he could smell drugs. Another individual was asleep in bed, but that person did not respond when J.E. was crying, so Appellant then picked up J.E. and left the residence.
Appellant explained that he called his daughter and told her he was coming to the apartment with J.E. Appellant also called his mother, who told him that police officers were at her home, so Appellant contacted Wallsworth. Appellant admitted lying to Wallsworth when he told him he was forty-eight miles away because he feared that J.E. would be taken from him. Appellant ultimately disclosed his actual location to law enforcement officers, and he met them outside the apartment building. Appellant denied intending to hide or conceal J.E. or to prevent his liberation. During cross-examination, Appellant testified that he lied to the officers when he told them that J.E. was asleep when Appellant entered the residence, and he asserted that J.E. was crying. Appellant's mother testified that Appellant suspected that N.D. might be using drugs either one day or a few days before he took J.E.
The jury found Appellant "guilty" as charged, found the allegations in two enhancement paragraphs to be "true" pursuant to Appellant's pleas of "true," and assessed punishment at twenty-five years of imprisonment. The trial court ordered that Appellant's sentence would run consecutively to his twenty-year sentence for possession of a controlled substance in trial cause number 241-1084-20.[2] This appeal followed.
In issue one, Appellant challenges the legal sufficiency of the evidence supporting his conviction.
The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). We examine the evidence in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789; Johnson, 871 S.W.2d at 186. The jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899; see also Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We give full deference to the factfinder's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). If the record contains conflicting inferences, we must presume that the factfinder resolved such facts in favor of the verdict and defer to that resolution. Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also "'determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.'" Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 16-17).
A person commits the offense of kidnapping "if he intentionally or knowingly abducts another person." Tex Penal Code Ann. § 20.03(a) (West 2019). "'Abduct' means to restrain a person with intent to prevent his liberation by . . . secreting or...
To continue reading
Request your trial