*1 judgment of the trial court is af- firmed. J.,
KELLER, point concurs in of error joins
one and opinion. otherwise
WOMACK, J., delivered a concurring
opinion. J.,
WOMACK, concurring. join
I judgment I the court. do agree appellant’s that the fifth point of briefed,
error inadequately see ante at I n. 2. would appellant’s hold that the
challenge to the of the evi-
dence, fact, as a matter of has no merit. Troy CURRY, Appellant,
Steven
The STATE of Texas.
No. 1521-99. Appeals
Court of Criminal of Texas.
Sept. *2 allegation.
clude this conclude that allegation, once the State made this it had it. We also conclude sufficiency of the must be ana- evidence lyzed using phrase. And in con- *3 analysis, this the ducting we find evidence to support Curry’s sufficient conviction.
FACTS Jetterson Williams testified that he was parking Nightclub the lot of the Spices at 8 p.m. Curry about when and two other “put” him car individuals into a and drove off. He testified that not want he did to car, Curry be in the car. inWhile the up Curry beat him with his hands. twist- punched ed Williams’ knee and arm and in the Williams head. Williams did not length beating, recall the whether any stops, Curry the car made him, anything Curry said or whether got gun any a at time. Williams admitted previously telling police Curry that had him car, Curry dragged that and the brick, men other had beaten him with a Curry up put that had tied him and a plastic bag face, Curry over his had a gone by friend’s house and obtained a .38 pistol, Curry had the car at one exited Freeman, Houston, appel- Charles for point gun- and Williams had heard three lant. shots, Curry had and forbidden Horn, Jeffrey L. Van First State’s Asst. anyone to tell to what had hap- Williams Paul, Austin, Atty., Atty., Matthew State’s pened. for the State. Williams then that he never testified police gun, a Curry told the had OPINION car, Curry gotten had out or that KEASLER, J., opinion delivered the im- Curry had threatened him. The State P.J., Court, McCORMICK, in which credibility peached Williams’ with the MANSFIELD, KELLER, PRICE, and previously that he had made to statements HOLLAND, J.J., WOMACK, joined. and cross-examination, police. On Curry The State’s indictment of Steven Williams testified that he had no recollec- charged aggravated kidnapping anyone him with anything tion of he said to from the “by deadly was thrown in ear until using and to use time he Curry’s a firearm.” namely, hospital. force Over time he awoke On re- examination, that, objection, permitted trial court admitted direct Williams incident, in a placed State to this trial be- after he was hold- delete after gan. Curry We must decide whether trial over cell with and had been con- deletion, trial, allowing safety. court and for his Later erred cerned and got in- back on the stand testi- analysis whether a should Williams ... Williams person Curry “abduct[ed] who Jetterson Curry not the fied that consent, intent to up. prevent and him his kidnapped him beat without using threatening to and his liberation by emergency medi- Williams was found firearm, on deadly namely, a use force district. cal technicians a warehouse bodily with intent to inflict and [Williams] his up pants He was tied with his around and terrorize injury [Williams] uncontrollably. shaking ankles and was and abuse and violate [Williams] knee a dislocated hospitalized He was sexually.” [Williams] head, elbow, gross trauma to the instability. case, it moved rested its After the State
Tracy using he phrase “by testified that saw threat- Jacobs to delete the night similar-looking namely, fire- getting out of force ening use *4 Curry holding arm, a gun. car and shot the indictment. [Williams]” on from individual, to killed then returned over granted another trial that motion The court car car off. testi- the and the drove Other objection. Curry’s had mony Curry’s that home revealed that appeal, appeals the court of held On bur- day before. The burglarized been the 28.10(b) the under Art. for it was error by broken his home break- glars had into motion, the grant court State’s trial to suspected that ing Curry down door. the Curry.1 Curry’s On suf- the error harmed responsible burglary. for the Williams was ficiency point, appeals the court of held routinely a thief petty Williams was who was sufficient to that the evidence convict.2 jewelry Spices sold at the He stolen Club. discretionary re- Curry petition filed a for had several theft convictions. argued the view in which he that court Curry an alibi John presented defense. sufficiency by analysis in its appeals erred working testified that he was on McCalep to v. State.3 We failing apply Malik Curry’s p.m. front door about from court and remanded the case the agreed He that p.m. night. about 11 testified Curry’s sufficiency appeals to reconsider apartment or Curry either was light Malik.4 point nearby Curry the entire time. testified remand, appeals again the court of On similarly. ruling trial court’s found testimony The State refuted that the indictment motion amend State’s testimony Floyd, Curry’s of Cynthia Curry.5 the error harmed was error and girlfriend at time. She testified sufficiency the court con- analysis, In its time apartment she at the the entire was theory that it was “bound cluded door, McCalep working while on the as amended.”6 alleged the indictment 7 or 8 Curry apartment left around nor jury charge given neither the Since testi- p.m. and never returned. She also required proof the amended indictment Curry say fied her to that she told firearm, found Curry a the court used evening. with him that support convic- the evidence sufficient to tion.7 BACKGROUND PROCEDURAL petitions Curry filed Curry
The for Both the State aggravated indicted review, which we discretionary from alleged The kidnapping. indictment (Tex Curry 177-79 5. v. Curry 1. 205-06 1998). 1999). .App. App. Paso Paso — El — El 2. Id. at 207. Id. at (Tex.Crim.App.1997).
3. 953 S.W.2d (Tex.Crim. S.W.2d 629 1998). App. granted Legal grounds. Background three The through Attorney Prosecuting the State Both the U.S. Constitution and the County Attorney, and the Harris District guarantee Texas Constitution an accused phrase contends that the issue “to right be informed the nature and surplusage, unnecessary indictment was against cause of accusation” him.8 The indictment, so the permitted State was charging convey instrument must suffi language to “abandon” the even after trial prepare cient notice to allow the accused to began. Curry argues that the court of Legislature provided defense.9 has appeals analysis, adequacy its some guidance erred as to the of notice Malik, Chapter 21 Code of through of the Crimi hypothetically under nal In particular, Procedure.10 Art. 21.03 jury charge correct would have included provides that “[everything should be stat improperly which the State was ed in is necessary an indictment which allowed to abandon. Since the resolution proved.”11 of Curry’s depends claim on our resolution contention, of the State’s we address the An generally indictment is suffi State’s claim first. provide cient to notice if it follows the
statutory language.12 But
tracking the
language
may
statute
be insufficient
*5
MODIFICATION OF INDICTMENT
if
statutory language
completely
the
not
is
Initially,
that
we note
this case does not
descriptive,
particularity
so that more
is
really
an
involve an “abandonment” of
alle-
required
provide
example,
to
For
notice.13
gation.
was
to
permitted
The State
delete when a statute defines the manner or
its specific allegation regarding
type
the
of
means of commission
several alternative
result,
sought
prove.
abduction
to
it
As
ways, an indictment will fail for lack of
permitted
it
at
prove
was
trial to
either
if
specificity
neglects
identify
it
to
which of
definition of abduction. Rather than “los-
statutory
the
it
means
addresses.14 On the
deleted,
hand,
ing”
essentially
it
allegation
the
it
plead
other
the State need not
evi-
allegation
retained
al-
matters.15
dentiary
and
the
added
abduction, giving
ternative definition of
it
every
in a
Not
list of alternatives
statute
the
to
opportunity
prove either one
or- will
or
constitute
“manner
means” of
der to
By deleting
obtain a conviction.
the
committing
example,
the offense. For
did,
words it
State actually
the
broadened
State,
v.
we
the
Thomas
held
State need
scope
alleged
the
of the offense
so as to
allege
statutory
which
definition of
include both theories of abduction. This is
prove
it seeks to
in a theft case.16
“owner”
“abandonment,”
not like a standard
which We reached this conclusion because the
results in
at
limiting
the State
its theories
“go
term
did
to an act
“owner”
or
17
trial.
refer
of
We will
to the deletion
the
Similarly,
omission
the defendant.”
phrase in
this case as a modification
the we held the State need not further define
indictment,
consent,”
than
phrase
rather
an abandonment.
“without effective
as
I,
VI.;
8. U.S.
13.
Ibid.
Const.,
Amend.
Tex. Const. Art.
§ 10.
Mays,
14.
9. State v. 967 S.W.2d 406 1998). Crim.App. State, 800, (Tex. Berg 15. v. 747 S.W.2d State, 846, 1984) Ferguson Crim.App. (op. 10. v. 622 S.W.2d reh’g). on (Tex.Crim.App.1981) (op. reh’g). on (Tex. v. Thomas Proc Art. 21.03. Tex.Code Crim. 1981) (op. reh’g). Crim.App. Olurebi v. 1994). Crim.App. defendant, and charge against or act did not constitute an are to indictment detriment part defendant.18 without omission on contrast, may held be surplusage, v. we as mere Ferguson treated exception to allege, in the face of entirely disregarded.”27 did need to State unnecessary method of deliv- “the matter quash, a motion to which rule is when delivery in a ery legally it to that which is es- sought prove descriptive of is This prosecution.19 Upchurch controlled substance charge a crime.”28 sential by “the delivery act language extra we crimi- eonstitute[d] [defendant] of the of- “descriptive” of element is nal conduct.”20 if it the offense more nar- “define[s] fense placets] specific setting, it in a rowly, State,21 we recently, in More Saathoff which it was the method describe[s] concept beyond acts extended language “must committed.”29 Such There, we held omissions to conduct.22 needlessly though even alleged, as proven of a allege, must in the face the State stated.”30 quash, type motion to intoxication invol prosecution it seeks to in a con- important distinguish It two untary manslaughter.23 argued The State fails to cepts. Whether an indictment that intoxication was not an act or omis entirely is an charge an offense all sion, merely a condition. We held from the indict- different issue interpreted concept of “act provide adequate fails notice ment narrowly.24 too We concluded omission” quash.31 subject to a motion to is therefore prohibited “[i]f the conduct is statuto today only with what are concerned rily more man defined include than one provide no- allege the indictment commission,” ner or means of the State tice to the defendant. *6 allege, upon timely request, which manner or means it seeks establish.25 Application in this alleges the State evi- To determine whether the Sometimes our cases dentiary matters in was review surplusage, its indictment case we majority of our proved” surplusage. are not to be under vast “necessary language Art. allegations surplusage 21.03. These are consid cases involve State,26 any ered from statute. those “surplusage.” Burrell v. not derived cases, at un- “allegations language we essen issue is either not offense, be necessary language tial that need not to constitute the might entirely affecting descriptive language that must proved32 be omitted without 18. Id. at Id. at 161. 27. 802. Ferguson,
19.
622
at
S.W.2d
850-51.
28. Ibid.
State,
638,
20.
Id. at 850.
Upchurch v.
S.W.2d
641
29.
703
1985).
(Tex.Crim.App.
1994).
(Tex.Crim.App.
21.
be even al- Penal Code leged.33 surplusage have handful of cases con- cerning statutory language. of hand, Some
inBut
the language
case at
at
statute,
comes
directly
specifi-
issue
from
those
that statutory language
cases hold
charged
party
property
by
dant
as
committed which con
case that
was "owned
Karen
manner
stituted
or means
which he solic
unnecessary
alleged,
Johnson” was
but once
ited,
directed,
encouraged,
primary
aided
proved, presumably
had to be
because it was
actor);
State,
937,
Mays v.
726 S.W.2d
941-42
State,
descriptive
property);
of
Polk v.
749
1986)
(Tex.Crim.App.
(allegation of conduct of
813,
(Tex.Crim.App.1988) (allega
S.W.2d
816
person
surplusage
another
was
and need not
grand
tion that
was
individual
"unknown” to
proved
any
be
because
not
did
describe
con
jurors
descriptive
was
of element of "anoth
defendant’s); Upchurch, supra (allega
of
duct
er,”
alleged,
proved);
so once
had to be
Huff
"exempt"
tion
vehicle was
was not de
State,
155,
(Tex.
man v.
726 S.W.2d
156-57
scriptive
any
of
element of offense of failure
Crim.App.1987)
(allegation of "Black Hat
responsibility
maintain
financial
so was
unnecessary
descriptive
Bar” was
"li
surplusage
proved); Carberry
and need
be
premises”
alleged,
censed
so once
had to be
State, 701
(Tex.Crim.App.1985)
S.W.2d 255
State,
631,
proved); Wray v.
711 S.W.2d
634
(excessive markings by bank on tenor of
(Tex.Crim.App.1986) (allegation "by pointing
alleged
forgery
check
indictment were sur-
Mary
weapon
said
Ann Henderson”
plusage
proved);
parte
and need
be
Ex
Williams,
876,
(Tex.Crim.
descriptive
was
an
622
of element
S.W.2d
877
App.1981)
(allegations
bodily
credit
injury,
card abuse
other with imminent
so once
State,
indictment
“owned
card was
com
alleged,
proved);
had
be
Clark v.
665
plainant”
complainant”
and stolen "from
476,
(allega
(Tex.Crim.App.1984)
S.W.2d
484
surplusage
proved,
were
and need not be
even
tion that
used
defendant
instrument "known
State,
though alleged); Hardie v.
psychological
as a
stress
de
evaluator” was
936,
(Tex.Crim.App.1979)
(allegation
938-39
offense,
scriptive
element of
of “instrument"
culpable
surplusage
mental state was
proved);
alleged,
so once
to be
had
Franklin
proved
need not be
offense);
where not an element of
1983)
(Tex.Crim.App.
Smallwood v.
S.W.2d
(unnecessary allegation that defendant knew
1979)
(Tex.Crim.App.
(allegation
in rob
Herzberg
property
from
was stolen
Elmer L.
bery
property
indictment
stolen was
descriptive
property
of stolen
element
pair
"three
surplusage
women's slacks” was
offense,
alleged,
proved);
so
had
once
to be
property
taken not essential element
(Tex.
Windham v.
S.W.2d
proved,
though
offense so
even
need not be
Crim.App.1982) (phrase "by shooting at her
alleged); Green v.
401
But
evidentiary
an
matter.38
merely
if
hold was
proved
alleged.34
be
Others
must
language is sur-
of a
statutory
that excessive
that
in the face
we also indicated
The
need
plusage
proved.35
notice,
not be
for
quash
motion to
lack
authority
relies on this latter line of
State
alle-
required to make this
would be
State
statutory lan-
contention that the
for its
to conflict
reasoning
This
seems
gation.39
surplusage
here
guage alleged
was
evidentiary
holding
Thomas’s
with
proved.
not
been
need
have
in the
not
even
alleged
matters need
be
already
contrary to the
quash.40
have
held
motion to
But since
We
face of a
position
precise
to this
regard
State’s
in
was that the indictment
holding
Porter
Gibbons,
aggra-
In
held in an
statute.
we
defective,
fundamentally
the state-
not
was
must
kidnapping
vated
case that the State
merely dicta.
regarding notice are
ments
quash,
face of
allege,
a motion
Porter’s,
issue
holding is irrelevant to the
prove.36
type
of abduction it seeks
dicta,
us,
it refutes
though
and its
before
argues
holding Gib-
The State
that our
State,
not
does
questionable.
is
Porter
incorrect,
Berg,
was
conflicts with
bons
conflict with Gibbons.
Porter;37
Ward,
parte
and Ex
and should
argues
Berg41 con-
The
also
State
disagree.
We
be overruled.
Berg
we stated
flicts with Gibbons.
Porter, we
need
held that the State
“appropriate” need not be
that the term
“forgery” it
allege
not
which definition of
The
contends
further defined.42
State
prove.
seeks to
contends
State
the same.
and “abduct” are
“appropriate”
no
But
“forge.”
different than
“abduct”
itself is not
disagree. Appropriation
the allegations
Porter concerns
the State
Rather,
Penal
Code.
defined
make in order for an indictment
must
in which
describes
circumstances
Code
an offense.
concern
allege
It does not
appropriation is unlawful.43 We
allegations
make
needs to
Berg
acquisition
that the “manner of
in order to
did state
provide notice. We
forgery
surrounding
acquisition
particular
definition of
circumstances
688,
and would
34. Thomas v.
is within definition
"restrain”
753 S.W.2d
Crim.App.1988) (allegation
surplusage);
did
S.W.2d
that owner
Jackson v.
be
897,
give
unnecessary
(Tex.Crim.App.1982) (allegation
his "assent in fact”
public”
descriptive
open
effective
element of lack of
"was
then
to the
habitation
consent,
proved);
alleged,
unnecessary
burglary
so once
had to be
indictment so
685,
alleged).
Reynolds
proved,
though
686-87
even
need not
(Tex.Crim.App.1986) (statutory alternatives
restraint,
moving
type
vic
Gibbons,
The term “abduct” is different from would be no need for the State make First, “appropriate.” “appropri- unlike allegation provide in an ate,” indictment “abduct” is defined in the Penal given notice. It ais under the statute that merely Code. The Penal Code does not all restraint is In describe without consent. con circumstances which an abduc- unlawful; trast, only thing “given” is it an tion defines an abduction as about ab a accompanied by restraint an intent duction is that it includes restraint. The prevent liberation.48 So treatment of intent element is not a given, since there “appropriate” the terms “abduct” statutory are two alternatives. So Ward is Second, the Penal Code is different. distinguishable. there is no legislative history pertaining to Although rely the State does not kidnapping statute similar to that of State,53 Jackson Marrs v. we note that the theft statute. There has been no ef- too, Jackson, they, distinguishable. are In Legislature’s part codify fort on the alleged burglary-of-a-habi- many types kidnapping different into a tation indictment that the habitation was single statute. We conclude the rationale open “not then public.”54 to the This lan- Berg and applicable behind McClain is not guage appears portion of the statute kidnapping
to the
statute.
criminalizing burglary
building,
of a
not a
Ward,
the issue was whether infor- habitation.55 We held the State did not
charging
imprisonment
mations
false
were
need to make
it
allegation
and was
fundamentally
failing
defective for
to al-
surplusage.56
distinguishable
This case is
lege that the restraint
“without
con-
statutory
because the
language at issue
holding
sent.”
the informations were
was not even an element of the offense
defective,
we stated that
seeking
prove.
the State was
“without consent”
surplusage.50
This
First,
Finally,
there
no conflict between
distinguishable.
case is also
“ab-
conduct,
Marrs and Gibbons. We held in Marrs
duct” is
but “without consent” is
act, omission,
nor
“enter” need
be further defined
neither
conduct.51 So
Thomas,
burglary
indictment. “Enter” is defined
Ferguson,
Saathoff,
under
intruding any part
must be
while
in the Penal
as
“abduct”
defined
“without
Code
object
body
intruding any physical
consent” need not be.
Thomas,
Berg,
(allegation
connected invita the State’s decline Ferguson.65 We in enter- that the “act” involved in Marrs In today. new rule create this statutory alter- tion to intrusion.58 The ing is the in Gibbons stead, our decision between we reaffirm not differentiate natives listed do in the allege, must intrusion, are the State because both and hold that of methods type of require quash, motion to essentially the same.59 Both face of a directly give in order to body, prove it to to use his either seeks defendant abduction “by Daw- us phrase Professors Dix and The indirectly.60 or notice. the defendant statutory deadly force alterna- to use son have described ing and aspects” surplusage, of “peripheral here as the was not namely, tives a firearm” allowing in entering.61 the act of erred trial court and the Curry’s phrase over delete this State It adds to Abduction is different. begun. had objection after trial liberation prevent the intent to “restraint” issue, the or on this by secreting argument its ways: in one of two either Within exception An to overrule the urges threat of force.62 us by the use or if provides that the surplusage element of abduction is rule which essential libera ele- prevent descriptive intended to of an essential phrase defendant is offense, this complainant.63 proved of the Without it must be tion ment state, is no in phrase mental there But the accompanying surplusage. cannot be abduction; only restraint. an merely descriptive there of this case was what trans offense; mental state is accompanying it a manner element of So restraint into abduction. forms mere element of committing means nothing “peripheral” about there is here does not offense. Since The two alternative men intent element. exception surplusage to the fall within the (and not) statute are the provided tal states rule, decide we need not should engaging “manner or means” of exception to to abandon the whether of abduction. The rationale conduct surplusage rule. specific
Marrs involved the definition burglary statute. It did not “enter” THE OF EVIDENCE SUFFICIENCY statutory any general principle of set forth contention that Curry’s address We next definition construction. The Penal Code’s erred in its appeals the court of analogous to its simply of “enter” is the court original opinion, analysis. its definition of “abduct.” elaborating stated without appeals con- Curry “that the record agreed it have never before held that abduct- ... evidence” or means” tains no statutory alternative “manner threatening to “by using and act, omission, or conduct ed Williams engaging in an firearm.”66 namely, a Indeed, deadly force we held use surplusage. constitutes (State allege, must at 686-87 64. 723 S.W.2d 30.02(b). § Code 57. Tex. Penal statutory quash, which in face of motion 290. 58. 647 S.W.2d at restraint it or means of alternative manner by moving victim prove, seeks Ibid. 59. confining vic- place to another from one tim). George E. Dix & Robert O. 61. Dawson, (State allege at 849 65. § 20.119 Practice and Procedure Criminal delivery type it seeks (1995). delivery sub- of controlled prosecution for stance). 20.01(2). § Penal Code Tex. Carpenter S.W.2d at 66. 966 1977). (Tex. Crim.App. *10 Malik, explain why agreed The court did not it sufficiency of the evidence is to be Curry give any or for rationale its against measured the hypothetically cor- It conclusion. made this statement with jury charge. rect A hypothetically correct reciting out the facts of the case or exam jury charge “accurately is one which sets Nevertheless, ining any relevant caselaw. law, by out the is authorized the indict- the court held the evidence sufficient be ment, unnecessarily does not increase the it against cause measured the evidence proof unnecessarily State’s burden of or jury charge given, charge and that did not liability, restrict the theories of State’s require jury Curry to find that abduct adequately particular describes the offense by using ed Williams a firearm.67 We for which the defendant was tried.”72 apply remanded for the court to Malik.68 necessarily This list is not exhaustive.73 remand, appeals On the court of Determining by the “law” as “authorized stated as follows: requires the indictment” first that we de- As we have found in our discussion of termine which indictment: the State’s error, Curry’s point first Curry’s rem- original indictment or the amended indict- edy for in amending error the indict- ment. Since we have concluded the indict- ment after began trial is a new trial. amended, ment erroneously hypo- adequately error is addressed with thetically jury correct charge must be one remedy and we need not fashion an by original which is authorized indict- remedy acquittal additional based on ment, not the amended indictment. failure of the evidence as un- measured We believe the “law” as “authorized original der the indictment.69 by the statutory indictment” must be the disagree. If the evidence is insuffi- aggravated elements the offense of conviction, support Curry’s cient to by kidnapping charging as modified remedy acquittal. remedy is That say, Curry’s hy- instrument. That is to greater simply than granting Curry a new pothetically jury charge correct could Curry’s trial. sufficiency point of error statute, simply language quote addressed, regardless must be of the fact instructing jury Curry to find guilty prevailed point that he has on his of error if it found that he abducted “another concerning erroneous amendment of person,” specifi- because the indictment the indictment. Curry cally charges abducted appeals briefly The court of then ad- Williams, required and the State was Curry’s sufficiency dressed point. It held prove that element of the offense. it theory alleged that was “bound the indictment as Similarly, jury amended.”70 Since the correct hypothetically statute, charge, against court’s as measured charge simply could not track the indictment, require jury did to find alleging Curry abducted Williams firearm, (1) used a the court found him “with the intent to hold [either] sup- (2) it “irrelevant whether the evidence reward; him as a shield ransom or use ported finding.”71 (3) such a hostage; facilitate the commission of or attempt felony flight or the after the
Hypothetically
Jury Charge
Correct
(4)
felony;
bodily
inflict
commission of a
him
considering
ap
injury
the court of
on him or violate or abuse
(5)
peals’ analysis,
per-
him a
sexually;
we look to Malik. Under
terrorize
third
Ibid.
68.
69.
different methods of jury concerning only charged trial court alleges one of those meth- indictment detention.75 jury legality correct of the defendant’s hypothetically ods. So the charge merely related to noted that this charge phrase would have to include the evidence, any admissibility not to deadly the “by using threatening to use the offense.”76 We Curry’s a indict- “element of namely, force firearm.” judgment acquittal should a conviction on a ment would “authorize” in which there element, for those instances reserved proof less than of this proof al- failure the State’s phrase surplusage; this is not once “actual leged, proved. it had to be the crime.”77 including We next consider Here, a at issue is language operates “unnecessarily increase phrase element of the or means of an manner proof.” the State’s burden of The indict- If the State failed offense. Curry charged ment abducted means, was an “ac then there manner prevent Williams with intent to his libera- proof of the tual failure State’s by using threatening tion to use dead- Malik, it follows that crime.” So under ly Including “by using phrase force. phrase must factor into a threatening deadly to use force name- Curry’s hypo analysis. We conclude ly, hypothetically a firearm” in the correct have jury charge would thetically correct jury charge does not increase the State’s if it jury Curry to convict instructed the Rather, it proof. keeps burden of knowingly intentionally or found that he proof exactly burden of the same. State’s pre with the intent abducted Williams prove what simply required The State is by using or vent his liberation contrast, to delete alleged. it firearm, deadly namely, force to use in a charge from the would result phrase bodily to inflict and with intent Williams proof. in the State’s burden decrease to terrorize Williams injury on Williams or sexually. or to violate and abuse Williams inclusion
Finally, we consider whether “using and jury charge Application namely, force threatening to use consider whether We next “adequately describe firearm” would Curry to convict was sufficient [Curry] evidence particular offense charge. correct hypothetically under this for which tried.” The offense 20.04(a). Id. at 240. § 74. Tex. Penal Code Id. *12 reviewing sufficiency Curry revenge the of the evi- believed that wanted dence, in we must view the evidence the against Williams for the break-in. The light most favorable to verdict and Curry jury also could have believed that any determine whether rational trier of Floyd asked to lie for him he had fact could have found the essential ele- evening. violated the law that beyond ments of the offense a reasonable only remaining question The doubt.78 We resolve inconsistencies in the jury rationally could have testimony in favor of the verdict.79 Curry found that restrained Williams Williams testified that around 8 prevent “by using intent to his liberation p.m. Curry put against him in a car his deadly namely, threatening to use force Curry him up will. He testified that beat jury a firearm.” believe the could Though and broke his knee and arm. he An have reached this conclusion. abduc Curry later testified that it was not who continuous, ongoing a event.80 tion is jury him him up, took and beat There limit for an is no time abduction.81 testimony free to find his initial more cred So the abduction did not cease once impeached ible. cred The State Williams’ in put Williams was the car. It continued ibility with previously statements he had throughout time was in the entire he jury police. made to the The could have until car he was released the warehouse entirely found that Williams was not an that district. Since Jacobs testified he saw witness, portions credible that of some Curry gun night, jury with a that could testimony his were true while others were Curry gun have had that and believed that not. it during used the course of the abduction Curry testified that saw that Jacobs he prevent Williams’ liberation. addi night, getting similar-looking same out of a tion, credibility Williams’ was im since car, holding gun. Curry He saw and State, jury free to peached someone, and kill then return to the shoot testimony Curry disbelieve Williams’ that Floyd Curry car. testified that left their Curry gun did not have a and that did not apartment p.m. around 7 or 8 and did not jury reasonably him. could threaten The evening. the entire She testi- return also that these have believed Williams denied Curry say fied that asked her to that he things at trial because he was afraid of evening. The evidence was with her that Curry. retribution from Curry suspected also revealed for a We deem the evidence sufficient burglary Williams was involved jury proved rational find that the State Curry McCalep and Although his home. beyond all the elements of the offense Curry apartment was at the testified reasonable doubt. evening, jury the entire was free to Floyd Curry and disbelieve believe
McCalep. CONCLUSION “by using We conclude that the testimony, jury
Based
could
to use
force name-
reasonably
Curry
have believed that
re-
The
ly,
surplusage.
a firearm” was not
without his
stricted Williams’s movement
erroneously
permitted
trial court
Curry
to inflict
consent and that
intended
Curry’s ob-
allegation
to delete this
over
bodily
him.
injury on Williams or terrorize
court of
jection
begun.
after trial had
The
jury
could have believed
motive,
this error
jury
appeals
could have
has determined
had a
that the
(Tex.
307, 319,
150
80. Weaver v.
Virginia,
443 U.S.
Jackson
2781, 2789,
(1979).
Crim.App.1983).
S.Ct.
harmed
and we did not
re-
(Tex.Crim.App.1998)
affirm
S.W.2d
issue. We therefore
view of
appeals
vacated
(judgment of court
holding
grants
appeals’
court
of de
for reconsideration
cause remanded
Curry a new trial.
light
Ma
sufficiency claim
fendant’s
Curry’s hypothetically
We also find that
); Blanco v.
respectfully disposi- dissent from the final
tion case, appeals instant the court of hypothetically-correct
concluded
jury charge “by did not include the phrase
using force use DANIELS, Appellant, Frederick firearm, namely, Complainant.” on 175, Curry v. S.W.3d 180-81 1999). majority
App. Paso The finds — El The of Texas. STATE error, hypotheti this was No. 1612-99. cally-correct jury charge would include - Ante, Thus, phrase. at 404 405. Texas, Appeals of Criminal Court appeals applied court of is found to have En Banc. wrong standard in its anal Oct. ysis. majority performs then its own sufficiency analysis using proper hypo Ante,
thetically-correct jury charge.
406-407. pre- with our
Such action is inconsistent See, e.g.,
cedents Malik v. (Tex.Crim.App.1997)
S.W.2d vacated and
(judgment appeals of court of apply that court to
cause remanded for analyzing
correct standard of review