Fowler v. State
| Decision Date | 26 November 1997 |
| Docket Number | No. 10-96-190-CR,10-96-190-CR |
| Citation | 958 S.W.2d 853 |
| Parties | Robert Ferdinand FOWLER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
William D. Stoneburner, Belton, Walter M. Reaves, Jr., West, for appellant.
John W. Segrest, Crim. Dist. Atty., Beth Toben, Asst. Crim. Dist. Atty., Waco, for appellee.
Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.
Robert Fowler was indicted for and charged with the offense of aggravated kidnapping. TEX.PEN.CODE ANN. § 20.04 (Vernon Supp.1997). Following a jury trial, Fowler was found guilty and withdrew his election for the jury to assess punishment. The court sentenced him to life in prison. Fowler appeals on five points of error. His first three points argue that the court erred in admitting the testimony of Donna Gregory, a family violence counselor, when such testimony was not shown to be reliable, bolstered the testimony of the victim, was not relevant to any issue in the case, and was not on a subject beyond the experience and knowledge of most jurors. His fourth point complains of egregious harm resulting from the submission of a theory in the charge which was not alleged in the indictment. Finally, Fowler asserts that the finding that he did not voluntarily release the victim was against the great weight and preponderance of the evidence. We will affirm the judgment.
Robert and Carol Fowler married in June of 1994. After filing for divorce in October of 1995, Carol attempted a reconciliation with Fowler. Determining that their marriage would not work, Carol left him again on December 3. On Tuesday, December 5, Fowler followed her to work, honking his horn and driving recklessly while trying to run her off the road. When she finally stopped her vehicle, he forced her to leave it behind and get into his truck. He continuously threatened Carol's life, hitting her and scaring her with a shotgun. It was his goal, he told Carol, that they die together. Once he began to calm down, Fowler threw the gun out of the truck and drove to the Bellmead Police Department. He offered to let Carol go, but she did not leave for fear, she testified, that he would run over her once she got out of the truck. Fowler eventually drove to a motel where he intended for them to stay overnight before leaving town. The next morning, they were awakened by a phone call from the police indicating that they were surrounded and requesting that Fowler release Carol. He begged Carol to tell the police that she was with him willingly, but she refused. Fowler eventually opened the door and surrendered, leaving Carol alone in the motel room.
In his fourth point, Fowler asserts that the trial court erred in submitting a theory in the charge that was not alleged in the indictment. See Gooden v. State, 576 S.W.2d 382 (Tex.Crim.App.1979). We agree. Section 20.03 of the Penal Code defines kidnapping as intentionally or knowingly abducting another person. Abduction occurs by restraining a person with intent to prevent his liberation by 1) secreting or holding him in a place where he is not likely to be found or 2) using or threatening to use deadly force. TEX.PEN.CODE ANN. § 20.01(2) (Vernon 1994). Kidnapping is aggravated when the defendant:
(a) intentionally or knowingly abducts another person with the intent to:
(2) use him as a shield or hostage; ...
(5) terrorize him or a third person; ...
(b) intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.
Id. § 20.04. The indictment alleged in pertinent part:
[Fowler] did then and there with intent to use Carol Fowler as a hostage and to terrorize [her], and did then and there intentionally and knowingly abduct Carol Fowler by restricting [her] movements ... without her consent, so as to interfere substantially with her liberty, by moving her from one place to another, with the intent to prevent her liberation by secreting and holding her in a place where she was not likely to be found,
And it is further presented to said Court that during the commission of the above described felony, the said Defendant did use and exhibit a deadly weapon, to-wit: a firearm, that in the manner of its use and intended use was capable of causing death and serious bodily injury.
The charge instructed the jury that aggravated kidnapping was kidnapping "committed with the intent to use [the victim] as a hostage, or to terrorize her; or if the actor uses or exhibits a deadly weapon in the commission of the offense." Thus, the application paragraph authorized a conviction if the jury found that Fowler used or exhibited a deadly weapon when he abducted Carol. This was improper. Although each of these are theories supported by the penal code under which one could be convicted of aggravated kidnapping, the indictment fails to charge Fowler with using or exhibiting a deadly weapon and, as a result, he could not be convicted on this basis.
Because the deadly weapon allegation was not included as part of the substantive offense in the indictment, i.e. it was not listed as an element of the crime, it could not support a conviction if the jury found Fowler used or exhibited a deadly weapon, but did not find that he used Carol as a hostage or terrorized her. Rather, the deadly weapon assertion in the second paragraph of the indictment served only to put Fowler on notice of the State's intention to seek a finding under Article 42.18 of the Code of Criminal Procedure. 1
A defendant is entitled to some form of notice that the use of a deadly weapon will be a fact issue at trial. Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App.1989). In a jury case, the court is authorized to enter an affirmative finding as to whether a deadly weapon was used or exhibited during the commission of a felony in only three situations: when the jury has (1) found guilt as alleged in the indictment and the deadly weapon has been specifically pled as such using "deadly weapon" nomenclature in the indictment; (2) found guilt as alleged in the indictment but, though not specifically pled as a deadly weapon, the weapon pled is per se a deadly weapon; or (3) affirmatively answered a special issue on deadly weapon use. Davis v. State, 897 S.W.2d 791, 793 (Tex.Crim.App.1995). Although due process does not require that such notice appear in the indictment, it "probably should appear there." Ex parte Patterson, 740 S.W.2d 766, 776 (Tex.Crim.App.1987). Thus, to ensure that the defendant receives adequate notice, it is advisable to allege the use or exhibition of a deadly weapon in the indictment. In the present case, the indictment has been used for dual purposes. On one hand, it is the written statement of the grand jury accusing Fowler of aggravated kidnapping under section 20.04(a) of the Penal Code. See id at 775. On the other hand, the indictment gives Fowler notice of the State's intention to seek a finding under Article 42.18 of the Code of Criminal Procedure. Because the indictment did not allege aggravated kidnapping by using a deadly weapon as is authorized under 20.04(b), but rather alleged only that Fowler kidnapped Carol with the intent to terrorize her, or use her as a hostage, the charge should have been limited to those theories.
Because there was no objection to the charge, we must review the record to see if the charge error--authorizing a conviction on a theory not alleged in the indictment--was so egregious that Fowler was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 160 (Tex.Crim.App.1984). In Ross v. State, a similar question was held to be "fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair trial." 487 S.W.2d 744, 745 (Tex.Crim.App.1972). The court went on to say that the harm required reversal because the evidence was insufficient to support a conviction under the allegations in the indictment. Id. However, in Lang v. State the Dallas Court reached a different result under Almanza 2 when the evidence was found to be sufficient to support the conviction under the allegations of the indictment. Lang v. State, 698 S.W.2d 223, 226 (Tex.App.--Dallas 1985, no pet.).
We find the evidence sufficient to support a conviction of the offense alleged in the indictment. First, the evidence that Fowler intended to terrorize Carol is overwhelming. There is Carol's corroborated testimony that Fowler forced her off the road and into his truck. She testified that he threatened to kill her multiple times, claiming that they were going to die together, that she would never see her children again, and that her brains would be "splattered all over the place" if she resisted. Second, there is sufficient evidence to warrant a finding that Fowler intended to use Carol as a hostage. Once the police had him surrounded, Fowler spent approximately forty-five minutes with Carol trying to convince her to tell the police she was there voluntarily. During this entire time, he refused to let Carol speak with the police or leave the room. Both the hostage theory and the theory that he terrorized her are supported by the evidence.
Recently, the Court of Criminal Appeals held in Malik v. State that the sufficiency of the evidence should be measured by the elements of the offense as defined by the "hypothetically correct jury charge for the case." 953 S.W.2d 234, 239 (Tex.Crim.App. 1997). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Using this analysis, we would reach the same answer. The evidence is sufficient to sustain the conviction for the indicted offense using a hypothetically...
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