Scroggs v. State
| Decision Date | 25 August 2010 |
| Docket Number | Nos. 07–07–0453–CR, 07–07–0454–CR.,s. 07–07–0453–CR, 07–07–0454–CR. |
| Citation | 396 S.W.3d 1 |
| Parties | Larry SCROGGS, Appellant, v. The STATE of Texas, Appellee. Alana Lynn Gariepy, Appellant v. The State of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Frank Lay, Borger, for appellant.
Timothy D. Salley, Assistant District Attorney, for appellee.
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
The motions for rehearing of appellants Larry Scroggs and Alana Gariepy are denied. We withdraw our opinion and judgments of February 23, 2010, and substitute the following.
In these two cases, appellants were indicted for the offenses of aggravated kidnapping 1 and two counts of burglary of a habitation.2 They were tried together, and convicted of the indicted offenses by a jury which assessed probated sentences and fines as punishment. Appellants challenge their convictions and sentences through seven identical issues.
We will reverse and render judgment vacating appellants' convictions for burglary of a habitation predicated on a felony (aggravated kidnapping); modify the judgments as specified herein; remand in part for recalculation of total fees and monthly fees due from appellants; and otherwise affirm.
Because this case presents a protracted factual narrative and appellants challenge on appeal the legal and factual sufficiency of the evidence supporting their convictions under each count of their indictments, we will set forth the background facts below in conjunction with our review of the sufficiency of the evidence issue.
By their second issue, appellants argue the evidence is legally and factually insufficient to support their convictions for aggravated kidnapping and burglary. We measure the legal and factual sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge. See Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App.2008) (); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).
In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001) ( citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If, based on all the evidence, a reasonably-minded jury must necessarily entertain a reasonable doubt of the defendant's guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95, ( citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied,507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993)).
A factual sufficiency review of the evidence is “barely distinguishable” from the legal sufficiency review under Jackson v. Virginia.Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006). A factual sufficiency review considers whether the evidence supporting guilt, though legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury's verdict is against the great weight and preponderance of the evidence. Id.;Watson v. State, 204 S.W.3d 404, 414–15 (Tex.Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). In a factual sufficiency review, we again consider all the evidence, but now in a neutral light. Marshall, 210 S.W.3d at 625;Watson, 204 S.W.3d at 414. Although an appellate court's authority to review factual sufficiency permits the court to disagree with the fact finder's determinations, even to a limited degree those concerning the weight and credibility of the evidence, the appellate court must accord them due deference. Marshall, 210 S.W.3d at 625;Johnson, 23 S.W.3d at 9. When there is a conflict in the evidence, to find it factually insufficient we must first be able to say, with some objective basis in the record, that the great weight and preponderance of all the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417.
A person commits the offense of aggravated kidnapping if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense. Tex. Penal Code Ann. § 20.04(b) (Vernon 2003); Hines v. State, 75 S.W.3d 444, 446 (Tex.Crim.App.2002). “Abduct” includes restraining a person with intent to prevent her liberation by using or threatening to use deadly force. Tex. Penal Code Ann. § 20.01(2) (Vernon 2003). “Restrain” 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. Tex. Penal Code Ann. § 20.01(1) (Vernon 2003). Restraint is without consent if it is accomplished by force, intimidation, or deception. Tex. Penal Code Ann. § 20.01(1)(A) (Vernon 2003). No specific time requirement exists for determining whether a restraint has taken place. Hines v. State, 75 S.W.3d 444, 447–48 (Tex.Crim.App.2002). “Deadly force” is defined as “a force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Holmes v. State, 830 S.W.2d 263, 265 (Tex.App.-Texarkana 1992, no pet.).
A person commits the offense of burglary if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
Testimony showed that Monique Graves and Kevin Hamilton lived together in a Dumas, Texas, apartment. They abused the pain reliever Oxycontin to the point of addiction. Graves purchased the drug from appellant Gariepy. Following the death of her mother, Graves looked to Gariepy as a friend and mentor. When Graves became pregnant, Gariepy supported her effort to cease drug abuse. According to appellant Scroggs' brief, he and Gariepy were close friends.
On December 26, 2006, about mid-day, Graves was dressing in the bedroom of her apartment. Her pregnancy was near term. Suddenly, Scroggs forced open the front door, breaking the lock chain and door frame. He stood in the door while Gariepy entered the bedroom. She was angry and accused Graves and Hamilton of breaking into her home and stealing a bottle of Oxycontin.
Gariepy pushed Graves onto the bed, grabbed her hair, and began slapping her. Graves momentarily saw Scroggs in her bedroom doorway. Gariepy pulled hair from Graves' head and struck her about the head, cutting her lip and leaving marks on her ears and neck. Gariepy demanded that Graves dress and accompany her to Hamilton's workplace in Cactus, Texas, and then to a hospital for a blood test. The blood test was to prove Graves' denial she was taking Oxycontin. Gariepy took Graves' keys and cell phone. Graves voluntarily walked from the apartment into the common area of the apartment complex, hoping a bystander would see the situation and call police. From the parking lot, Graves noticed a neighbor doing yard work. She believed he heard her yelling for Gariepy to stop, but did not specifically call to him for help.
Gariepy remained angry in the parking lot and at times struck Graves. According to Graves, Gariepy screamed that Graves knew “that was her only livelihood.” Scroggs stood at the driver's door of his car and watched. Gariepy grabbed Graves by the hair and throat and forced her into the backseat of Scroggs' car. The vehicle was equipped with front bucket seats. As Gariepy forced her into the car, Graves noticed Scroggs had a handgun. Scroggs pointed the gun toward the backseat.
Jimmy Donoho lived in a house behind the apartment complex where Graves lived. Donoho testified he was doing yard work on that day and saw two unidentified women outside, at the apartment complex. One woman had her hands on the other woman as the other screamed, “Please, please stop, stop, please, I didn't do anything wrong.”
On cross-examination, Donoho said he saw the same women three times at the apartments over a period of about ten minutes. On the last observation, he also saw a man at an apartment door yelling, “That's the way you want it, that's the way you're going to get it.” Donoho had concerns but chose not to call police as he wished not to become involved in the situation.
With Graves in the backseat and Gariepy in the front passenger seat, Scroggs drove toward Hamilton's workplace in Cactus. Along the way, Gariepy called Hamilton on a cell phone, accusing him of thievery and inquiring if he knew how much money he owed her. Hamilton testified that as they spoke he could hear Graves in the background saying, “No, no, no.” He opined she sounded frightened. Gariepy also told Hamilton that Graves would “be around long enough to have that baby.”
Hamilton left work in a company pickup and pulled to the side of the road when he saw Scroggs' car approaching. As Scroggs' car slowed to a stop by Hamilton's pickup, Graves placed her hand on the car's inside door handle. Scroggs told her not to “try anything funny” and Gariepy grabbed Graves and pulled her forward. Hamilton testified he observed from his vehicle Scroggs pointing a gun at Graves. Scroggs gestured with the gun as he spoke. According to Graves,...
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