*1 she could not read testified that She not read she does lips,
officer’s not because moustache; she but because had
lips, abili- to have the can be assumed
therefore
ty lips. to read appears appellant
Communication hearing than
to be more difficult hearing-impaired many
person or with but it demonstrated
persons, driver, the offi- the other
interactions with court, possible; she
cer, to be and the trial information with
exchanged insurance chal- interpretation, without
other driver testimony of the officer’s
lenged part some of
court, appropriately answered interpreta- questions without judge’s before us and on the record
tion. Based permitted to trial discretion broad
courts, an abuse of discre- cannot find we
tion. of the court. join opinion
I LASTER, Appellant
Tommy G. Texas. STATE
No. PD-1276-07. of Texas. Appeals of Criminal
Court 14, 2009.
Jan. *3 Worth,
Kim Campbell, Fort for Appel- lant.
Kimberly Wesley, Colliet Assistant Atty., Worth, Criminal District Fort Jef- *4 Horn, frey Austin, L. Atty., Van State’s for State.
OPINION KEASLER, J., delivered the opinion of KELLER, P.J., the Court in which MEYERS, WOMACK, HERVEY, JJ., and joined.
Tommy appealed G. Laster his convic- tion, claiming that legally the evidence was and factually insufficient. reviewing When legal sufficiency evidence, of the Forth Worth Appeals Court of stated that circumstantial intent is re- rigorously viewed less than other elements of an offense.1 This statement is incor- We, however, rect. uphold Laster’s con- viction because the legally evidence is and factually sufficient. Background
I. After buying eggs for their mother at a January convenience store on B.T., eight, brother, who and her who ten, began to walk home. While walk- ing sidewalk, on the B.T. pushed bicycle, a and her brother walked beside her. The man, children carrying saw a a closed um- brella, walking toward them. To allow the man to pass, against the children leaned fence to next Instead of sidewalk. passing by, grabbed the man B.T.’s arm. 2007). Laster v. App.-Fort S.W.3d Worth at me. looked put The man then arm around B.T.’s She scared and wide away. and B.T. I pull eyed. go my pace tried let and waist let her hurried yelled go bicycle help. and for Her get the store.... hand, tug
brother charged Laster injury abruptly over B.T. ensued. The man war aggravated kidnap- child and attempted honked go let B.T. when driver ping. convicted him of both man car’s horn. The then continued to counts, judge trial Last- and the sentenced walk down the sidewalk toward store. injur- er to for twenty years’ confinement home The children ran and told their ing forty years’ a child and confinement mother a man tried to take B.T. kidnap for B.T. attempting reported B.T.’s mother the incident to appeal On to the Forth Court of Worth police. Later that B.T.’s day, mother challenged Appeals, Laster his eonvic- walking a man down the street. The saw aggravated kidnapping.2 tion for attempted man, Laster, like Tommy G. looked alleged legally He evidence was police. man that B.T. had described to the insufficient factually prove police B.T.’s mother called contin- prove had the to abduct B.T.3 To police ued follow Laster. The arrived B.T., that Laster had the intent to abduct based, in on part, and arrested Laster *5 specifi- the State to that childrеn him man had show Laster identifying as the who “in police cally B.T. the to or hold B.T. grabbed pulled After intended secrete a Laster, gave place likely arrested he a written state- to where be [s]he [was] describing happened: found; ment what or or to threatened] use us[ed] deadly appeals force.”4 The court of coming [the children] While were toward that no agreed with Laster there was evi- me, my the telling head started voices deadly attempted dence that he to use that me I be better off dead. As would of appeals force.5 But the court affirmed got I kids I closer to the and was watch- conviction, the holding Laster’s evi- ing them, told my the voices head me factually dence was sufficient legally grab girl. to little were the voices prove to that Laster had the intent to hold her, telling get to “Get her.” I me secrete in a she place or B.T. was where grabbed using my right her arm around unlikely Deferring to found.6 to be her I her hair and long waist. saw jury’s the court finding, rejected Laster’s side of face. I her also saw little argument grabbing public B.T. in a boy That I next to her. realized when place he did to showed that not intend take go that I to let of her needed becausе Rather, anywhere.7 court held girl I she was a little and knew how that na- that the “very public brazenness and by. going would look to the cars I was lead ture of could grab [Laster’s] actions” myself, actually to “Did I thinking jury reasonable to infer that Laster did daylight broad all to jury I must be nuts.” She looked intend take B.T.8The also free traffíc[?] at 2. Id. at 1. 6. Id. 793-95. 791 n. Id. at
3. 793. Id. at 7. 793. (Vernon 20.01(2) Tex. Penal Code Ann. Id. at 2003). Laster, Sufficiency reject argument Laster’s that his con- II. Standards Review grab fession showed his intent Legal Sufficiency A. view, B.T.9 In the court’s could The Due Process to the Clause reasonably have inferred that Laster tried requires States that a United Constitution to isolate B.T. from her brother and aban- criminal a ra supported conviction plan only doned his he when realized findings tional trier of fact’s that the ac being risk of caught.10 guilty every cused is element essential beyond of a crime a reasonable doubt.14 dissent, In Justice Dauphinot concluded process guarantee safeguarded This due there no evidence of Laster’s legal sufficiency when a court reviews intent to B.T.11 take She said that there review, of the During evidence.15 such other reasonable explanations were for appellate cоurt must not the role usurp why Laster B.T.12 example, For of the factfinder.16 Appellate courts are bicycle sexually wanted steal her evidence; ill-equipped weigh unlike abuse her on the sidewalk.13 Given these can facial ex factfinder —who observe explanations, other Justice Dauphinot criti- pressions and hear voice inflections first majority cized the for holding that a rea- appellate hand—an court is limited to the sonable factfinder could infer that Laster cold record.17 Our role on is re appeal intended to hold secrete B.T. in a stricted guarding against the rare oc unlikely she be found. currence does factfinder not act rationally,18 jurisdiction have final we petition Laster filed a discretionary for legal sufficiency review evid review, contending that ap- court of ence.19 conducting legal When suffi peals applied an incorrect standard of re- review, ciency a court must ask whether by affording view too much deference to “any rational trier of fact could have found *6 jury’s fact determination when evaluat- the essential elements of the beyond crime ing the circumstantial evidence of intent. а reasonable doubt”—not whether “it be Laster also asked us to adopt Justice Dau- lieves the evidence at the trial estab phinot’s view that the evidence legally guilt beyond lished a reasonable doubt.”20 factually insufficient support so, In doing we assess all of the evidence granted conviction. We review now “in light most prosecu favorable to the 21 affirm the court of appeals’s judgment. tion.” We have said that this same stan- 9. Id. at 793. 17. Id.
10.
Id.
Jackson,
317,
18.
dard def- giving proper After may only direct evidence.22 find the appeals the court of role, up- erence to the factfinder’s we will factually insufficient when neces- evidence factfinder hold the verdict unless rational Al- sary “prevent injustice.”31 manifest must had reasonable doubt as have though the verdict is afforded less defer- essential element.23 review, sufficiency during ence a factual appeals the court of is free override Sufficiency B. Factual disagrees it simply the verdict because sup A also be verdict must Third, appeals it.32 must court But ported by factually sufficient evidence. why the is too explain evidence weak review, is a legal sufficiency unlike a which why conflicting support the verdict or factual process requirement, federal due against the ver- greatly weighs evidence sufficiency is a creature of state review relat- requirement dict.33 This serves two be appeal, On direct a court must law.24 First, it the court purposes. supports ed gin sufficiency its factual review with in- that a manifest appeals’s judgment is suf assumption legally evidence second, occurred.34 And it as- justice has ficient under Jackson.25 Evidence that is ensuring sists us in that the standard of sufficient, however, legally can be deemed properly applied.35 review was (1) factually ways: insufficient in two is “too supporting conviction jurisdiction le Unlike our over verdict, the factfinder’s weak” decisions, jurisdiction gal sufficiency our (2) evidence, considering conflicting appeals’s factual suffi the court of over “against great factfinder’s verdict Factual ciency decisions limited.36 The weight preponderance of the evid final Conclusivity gives appellate Clause con appeals ence.”26 a court of When appeals to the court of on jurisdiction review, it must sufficiency ducts a factual brought fact before the questions set jury’s findings.27 defer to the We have appeals’s the court of court.37 review We implement rules” ground out three “basic analysis to sufficiency factual ensure First, the court of ing this standard.28 legal the correct stan applied the court must consider all of the evidence appeals all of the light to in a dard and considered relevant light,29 opposed in a neutral *7 v. 613 29. Id. 22. Burden 55 S.W.3d Crim.App.2001). 30. Id. 415, State, (Tex. v. S.W.2d 423
23. 840 Narvaiz Crim.App.1992). Cain, at 407. 31. 958 S.W.2d 404, (Tex. State, 24. Watson v. 204 S.W.3d 406 32. Id. Crim.App.2006). Watson, at 414. 33. 204 S.W.3d State, (Tex. 647 v. 944 S.W.2d
25. Jones State, (citing 922 Crim.App.1996) Clewis v. v. 253 S.W.3d 34. See Lancon (Tex.Crim.App.1996)). S.W.2d (Tex.Crim.App.2008). Watson, at 414-15. 204 S.W.3d
26.
35.
Id.
Cain v.
958 S.W.2d
Cain,
at 408.
Crim.App.1997).
V,
Watson,
art.
Tex. Const.
III. Laster the court claims of A. Standard of Review erred appeals finding that the evidence legally factually and sufficient show appeals Laster criticizes the court of for that he intended to hold or secrete B.T. in applying unduly lenient standard when she not likely where to be reviewing the circumstantial evidence of so, In doing found. Laster contends that intent. Quoting Margraves our decision appeals the court of incorrectly appliеd a State,42 appeals the court of stated that less-rigorous standard reviewing “[c]ircumstantial evidence defendant’s circumstantial evidence of intent. Laster guilty knowledge ‘required is not to meet appears argue court ap of rigorous the same criteria for sufficiency peals’s misstatement of law affected both proof as circumstantial of other offensive ”43 legal the court’s factual sufficiency and elements.’ contends Laster this however, His argument, reviews. is not represents statement holdover from the entirely because, clear like the court of obsolete instruction on circumstantial appeals, Laster combines factual and improper. evidence discussions, legal sufficiency thereby dis
counting any
agree
variance between the
On
we
point,
two
with Last-
standards. We
reading
have stated “that deter
of appeals’s opin
er’s
the court
mining
legal
sufficiency
and factual
notion that
any
ion and disavow
circum
requires
implementation
stantial evidence of intent
reviewed less
separate
stringently
distinct
standards.”41
other
type
than
of evi
litigants
language
Courts
should
combine
The quoted
dence.
from Mar-
legal
sufficiency analyses.
them
and factual
graves was taken out of context and is not
recognize
any analyses
So
we
part
sufficiency
while
of our modern
review.
*8
in
given
the facts
naturally
case will
of intent must
Circumstantial evidence
Lancon,
(Tex.Crim.App.2000).
38.
520 scrutiny not, of with the same as other recital the standard “should howev-
reviewed er, mean elements of an offense. be taken to that circumstantial of guilty knowledge evidence defendant’s passage Margraves, in cited the The required to meet same rigorous was the appeals, articulated court of was first circumstantial for sufficiency criteria as our Brown v. State decision.44 The issue proof of other offensive elements” because link Brown was whether the affirmative applied.52 the test was never alsoWe test, used determine an ac- whether rarely noted that reason- applied we drugs, ap- possess cused intended to still hypothesis able test evi- to circumstantial plied hypothesis after the reasonable test of in any type dence intent of case.53 hypothe- The was abolished.45 reasonable of ele- While circumstantial most suspicion sis developed test out our hypothe- ments warranted reasonable wholly convictions based on circumstantial test, rarely test applied sis was implemented The test was evidence.46 intent it circumstantial evidence of because by instructing trial circum- context.54 Exclud- was unworkable “exclude, stantial evidence must to a moral every ing hypothesis reasonable of what certainty, every hypothe- other reasonable im- thinking the accused close to sis except guilt.”47 the defendant’s possible only absolutely the accused can on appeal same standard carried over — his or other know her intent.55 Because sufficiency of test circumstantial evi- reasonable, explanations for a noncriminal recognized dence.48 But that cir- once we always exist, conduct a true defendant’s as cumstantial evidence was valuable application hypothesis reasonable evidence, the reason- direct we abandoned analysis acquittal would lead in most hypothesis able test.49 cases.56 explain why To the affirmative link test case, appeals, The court оf in this termination of reasonable
survived
Margraves
passage
this Court in
took the
test,
opinions
hypothesis
pointed
ap-
we
in Brown to mean that circumstantial evi-
plying the affirmative link test but
to be
dence
intent is
reviewed less strin-
hypothesis
mentioning the
reasonable
than
gently
circumstantial evidence of oth-
downplayed the prece-
test.50 We then
er elements. But
distinction
drug
between
mentioning
dential value of
cases
circumstantial evidence of
and other
hypothesis test.51 We stated
reasonable
that, although
elements
obsolete
the cases mentioned
was rendered
test,
hypothesis
reasonable
test
abandoned.
hypothesis
reasonable
rhetorical
744,
Brown,
1995).
(Tex.Crim.App.
44. 911 S.W.2d
747
50.
45. Id. at 745. 51. Id. at 746. State,
46.
Hankins v.
646 S.W.2d
Id. at
52.
747.
1983) (Onion, P.J., dissenting).
(Tex.Crim.App.
State,
n. 2
v.
820 S.W.2d
Geesa
Id.
1991),
other
(Tex.Crim.App.
overruled
on
State,
grounds by
v.
49. at 56. Id. S.W.2d 155. (B) found; likely to be or juries longer no face the diffi he is not Courts and where excluding every deadly threatening cult task reasonable to use using or hypothesis other than the defendant’s elem force.”59 then includes two “Abduct” re guilt. Under the current standard of First, must ents.60 the defendant have view, no to treat circum there is reason anоther, reus is the actus restrained which stantial of an accused’s mental evidence Second, the defendant requirement.61 any differently state than circumstantial pre intent to specific must had the have as cir evidence other elements. Just req liberation, is the mens rea which vent cumstantial is under the evidence reviewed Secreting holding or another uirement.62 evidence, as direct circum same standard unlikely or is to be found is where he she stantial evidence of intent is reviewed un part requirement of the mens rea der the same standard as circumstantial the actus reus.63 This is an offense—not elements. In a evidence other sufficien important distinction because the State is analysis, cy all of the evidence admitted at required prove that the defendant support the should be trial to conviction In actually secreted or held another.64 equally appeal. on reviewed defen prove stead the State must specific another dant restrained with Applicable B. Law by secreting intent to or prevent liberation To prove that Laster committed The of kid holding person.65 offense attempted aggravated the offense of kid napping legally completed when the de napping, required present State was restraint, fendant, during the at time sufficient “an act Laster did prevent intent to forms the liberation than amounting preparation” to more mere secreting holding place or another the specific aggra with intent to commit unlikely to found.66 A kidnapping.57 person vated commits the offense of if aggravated kidnapping “he kidnapping aggravated A a de- intentionally knowingly or abducts another intentionally knowingly or abducts fendant person” aggravating and commits an elem (1) specific another: intent Thus, required ent.58 two elements are (2) or accomplish purposes one of six “uses (1) prove aggravated kidnapping: intent deadly during the weapon or exhibits a (2) abduct, knowledge commis commission of offense.”67 six aggravating sion of an element. as purposes are follows: “ ‘Abduct’ means restrain (1) reward; him for ransom or hold person prevent his liberation (A) (2) by: hostage; him in him a secreting holding use shield or 62. Id. (Vernon § 57. Tex Penal Code Ann. 15.01 1994). 63. Id. at 475. (Vernon § 20.04
58. Tex Penal Code Ann. 1995). Id. 20.01(2) (Vernon § 59. Tex. Penal Code Ann. 2003). 65. Id. Brimage v. 475-76 66. Id. at 475. 1994). (Tex.Crim.App. 20.04(a)-(b). Tex. Penal Code Ann. Id. at 476. *10 (3) facilitate the of a felony commission Lastеr intended to secrete or B.T. in hold or flight attempt after the or com- place unlikely where she to be found a felony; simply mission of pub- because he restrained her in lic.71 recognized We that a rational have (4) bodily inflict him injury on or violate factfinder can infer such an intent sexually; or abuse him person anyone defendant isolates a from (5) terrorize him a person; or third or might be of B.T. who assistance.72 testi- (6) performance interfere with the grabbed fied that Laster her around the governmental political or function.68 pull away. waist then tried to Corrobo- Here, required prove the State was to rating testimony, B.T.’s her brother stated that beyond Laster committed an act mere away, that when Laster tried to B.T. pull preparation with the intent to secrete or grabbed he her arm and pulled back. The aggravating hold B.T. and commit an ele- jury reasonably could infer from this testi- could, did, ment —not that Laster or actu- mony by pulling away that B.T. from her ally accomplish purpose. this brother, only person help available her, Laster intended to hold or secrete Legal Sufficiency C. Review B.T. in place unlikely where she was Laster argues that the evidencе be found. presented legally at trial was insufficient Second, relying on Justice Dauphinot’s support jury’s finding that he in dissenting opinion, argues Laster that tended to hold secrete B.T. in a there are other explanations reasonable unlikely where she was to be found. We why grabbed for he example, B.T. For he disagree. bicycle to steal sexually wanted conclusion, In of his Laster abuse her. proof expla- Without that one points to three that circumstances he con- another, nation more than reasonable tends show he had no such intent. contends, Laster relying on Justice Dau- arguments
We will consider each of these phinot’s reasoning, that the evidence was in turn. insufficient. But reasoning invades
First, Laster
suggests
the State did the factfinder’s role.
It
toup
the fact-
prove
not
that he intended to take B.T.
finder to
in the
“resolve conflicts
testimo-
grabbed
evidence,
because he
her in front
possible
ny,
weigh
and to draw
eyewitnesses. But the State did not have
reasonable inferences from basic facts to
prove
actually accomplished
By
he
his ultimate
focusing
facts.”73
on other
purpose or
explain why
even that
could have accom-
reasonable
alternatives
plished
B.T.,
purpose.69
The State
had Laster
Dauphinot
Justice
prove
purpose.70 improperly
that he had such a
applied the outdated reason-
Further,
noted,
appeals
hypothesis construct,
as the court of
able
thereby placing
precluded
inferring
from
“posture
herself in the
of a ‘thirteenth
20.04(a).
72. Fann v.
696 S.W.2d
68. Tex. Penal Code Ann.
Crim.App.1985); Megas, 68 S.W.3d
240.
at
Brimage,
aggravated kidnapping. shield, jury reject inflicting bodily injury free to plained ing her as a theory Laster’s of the State’s evidence sexually abusing on her or —that and, instead, believe the children’s testimo- kidnapping. This aggravated for required ny. Because the this case was And kidnapping case. attempted is not an credibility, judge final witnesses’ attempted aggravated certainly it is appeals upholding court of correct re- This is an kidnapping case. unlawful find no error in the jury’s verdict. We straint case.2 appeals the court of standard used its application. I.
IV. Conclusion
*13
“if
commits unlawful restraint
person
A
legally
knowingly
hold that the evidence was
or
restrains an-
intentionally
We
he
sufficient to
Laster’s
for
conviction
“to re-
person.”3
other
Restrain means
aggravated
We
attempted
kidnapping.
con-
person’s
strict a
movements without
the court
appeals properly
also hold that
of
sent,
substantially
so as to interfere
it
applied
law when
found
by moving
person’s liberty,
person
presented
factually
at trial
evidence
by confining
place
from one
to another or
We, therefore,
sufficient.
affirm the court
con-
person.”4
Restraint
is “without
appeals’s judgment.
a child
is less
sent” if “the victim is
who
parent,
“the
years
age”
than
COCHRAN, J.,
dissenting
filed a
acting in
guardian,
person
or
or institution
PRICE, JOHNSON,
in
opinion which
acquiesced
not
in the
parentis
loco
has
HOLCOMB, JJ., joined.
or confinement.”5
movement
OPINION
if
“in-
person
kidnapping
A
commits
tentionally
knowingly
or
abducts another
COCHRAN, J.,
dissenting
filed a
a
person.”6 Abduct means “to restrain
PRICE,
opinion
JOHNSON and
which
prevent
intent to
HOLCOMB, JJ.,
person with
liberation
joined.
(A)
by:
holding
place
or
him in a
secreting
I respectfully
agree
dissent.
I do not
(B)
found;
likely to
or
where he is not
majority
appeals1
with the
of the court of
threatening
deadly
or
to use
force.”
using
that a
trier of
rational
fact could conclude
majority, the offense of
As noted
case, beyond
from the
in this
a
completed
kidnapping
legally
(1)
doubt,
reasonable
had a
appellant
defendant,
during
time
the re-
specific
eight-
to hold or secrete
straint,
libera-
prevent
forms the intent to
year-old
Beatrice
where she was
(2)
by secreting
holding
or
another
tion
found,
unlikely to be
much less
had
place unlikely
other
to be found.
specific
perform
intent to
one of the
(Tex.App.-
20.01(1).
Some felonies cannot be committed with- restraint incident to other separate out some restraint of the This crimes victim. does not convic- has stated that “Legislature Court did tion for kidnapping aggravated kidnap- commission; (c) 1) plated reconnoitering legal for its provide crimes basis for interven- place contemplated for the prevent commission tion of law enforcement to consum- crime; (d) structure, crime; 2) entry subject unlawful generally mation of a actors contemplat- vehicle enclosure in which it activity is disposed towards criminal to the cor- committed; (e) pos- 3) ed the crime will provides; process capture rective that law of materials employed session to be in the actors who fail commit the substantive crime, specially commission that are fortuity). offense due to See also LaFave, designed for such that can unlawful use or 11.4 at 208-10 Law Substantive Criminal purpose no lawful serve under the (“the actor attempts law exists because there circumstances; (f) possession, collection or just stop, as much need to deter and reform employed fabrication of materials to be in the person unsuccessfully attempted or who has crime, commission of the at or near attempting commit a crime that one who contemplated commission, pos- for its such if already has committed such an offense.” session, collection or fabrication serves no Otherwise, "exculpation of those who fail due *15 purpose of the lawful actor circum- under the fortuity inequаlity to a 'would involve of treat- stances; (g) soliciting agent an innocent ment that would shock the common of sense engage constituting in conduct element an of ”). justice.' the crime.” State, 444, 14. Hines v. 75 S.W.3d 448 along LaFave notes that the Model with (nothing Crim.App.2002) kidnapping in the approach legislatures Code Penal and —courts Legislature statute that the indicates intended 1) adopted "proximity approach," have prosecution kidnapping "to bar the of a that (was sufficiently proximate the act to the in- long part parcel is and of another offense” so i.e., act, proximate tended crime? a last an person's as of a there is a restriction move act, indispensable proximate physically or a substantially ments interfere so as to with the 2) act?); “probable approach,” desistance person’s liberty). Herrin v. 125 S.W.3d (was ordinary act one which in the course (Tex.Crim.App.2002) (kidnap 440-441 would of events result the commission of ping, attempted kidnapping proven not target except crime for the intervention of merely not when defendant "did shoot to dis i.e., beyond some extraneous factor? an act Wayne able so that he or hаrm could then 3) stop) which a normal citizen and would him, range abduct shot him at close but in the "equivocality approach” loquitur ipsa or "res organs vital an obvious effort to kill him. (was test” the act of such that it a nature is light appellant’s In of to murder evidence of the itself criminal intent with Wayne, moving Wayne’s body appellant's done, i.e., it is an crimi- which act that bears shooting did after the not amount to evidence face, on its have nal intent act that can no Wayne kidnapping that in the course of a purpose other than the of that commission place.”) (citing when the murder took Urbano crime). LaFave, specific Criminal Substantive (Tex.Crim.App. v. § 11.4 at 224-25. Law 1992) beyond ("proof a reasonable doubt” ALI, weight; proof See carries it means considerable Model Penal Code Commentaries (1985) (laws covering high degree certainty)). at 294 inchoate 5.01 to a golf carrying. he was ping.15 umbrella She
screamed, pulled brother her to- her back II. shove, a gave appellant him and and ward go her a few seconds later appellant let that, undisputed it is at (cid:127)In this ease a and its by when car driver honked drove a.m., Sunday morning, on 10:00 on bike, Raymond grabbed his horn. Worth, busy street in Fort sidewalk they Appellant both ran home. walked appellant eight-year-old Bea- grabbed store, toward the and then who, ten-year-old down the street trice, brother stayed all if neighborhood day, in the Raymond, way home after a on nothing his had occurred.17 Beatrice and trip Raymond the store. had ridden they store, standing Raymond thought ap- testified that bike to the with Beatrice Ap- to take pegs; pellant trying on Beatrice was Beatrice.18 the back wheel walking pellant police on their later told the that riding or bike voices either me I way telling his head “started that would Appellant home.16 waist, him- be Then the told one better off dead.” voices hand around while big, girl.” him to the little letting go “grab Appellant self red-and-white brother, Salamon, My Samuel John 287 Conn. brother's house. See State (2008) ("[A] Laster, apartments 1119-20 considerable A.2d in some on Beach lives majority courts have followed the lead of state Appellant's Street Vicker.” sister testified concluding of New York and California in stage appellant stayed punishment at the kidnapping crime of does not include that the week, days in his home five but room at her involving merely a restraint conduct Saturday physically every take him that "I commission some other incidental to the past Sunday years, for the three four I Although against the victim.... these crime Lancaster, Whataburger drop on him off at varying language statutory cases involve gets snow nonstop, unless it out on theme, analyses, they name- share common ground just way just cold for and he too —it's ly, unlikely legislature that the in- that it is him, nonstop stays I this.” do "He this kidnapping expose an accused to a tended to 3:00, ap- approximately.” until She said conviction, and the severe sanctions accom- pellant Tak- was "on and off" medicine. conviction, restraint panying such a when the ing prerequisite appel- that medicine is merely incidental to the commis- involved is her, shortly being lant to live with allowed but Indeed, underlying separate, sion of a crime. incident, appellant quit taking before it. this regarding majority view the construction delineating kidnap- the crime of statutes Raymond appellant grabbed testified rightly ping has been characterized as *16 Beatrice, then, honked, just when the car "he (citing approach.”) cases from nu- ‘modem’ Raymond immediately go.” upset let was jurisdictions). merous kidnapped crying and "he could have because made statements that Bea- 16. Both children appellant that her.” Beatrice testified bike, appellant riding the and that trice was her, grabbed hurt that this was "of- her and they of it. her off But then almost knocked her, fensive” and that she to her and scared bike, walking was that Beatrice testified thought going to take her. chil- he was Both her, causing her appellant and that any- did not dren that he take her testified against a go which then fell of the bike let anything. say where or way, bike hit the Either never fence. trip ground, completed their and the children during jury opening state- was told bike. home with the 40-year history appellant ments "has a that going Ap- to the mental illness back 1960s.” statement, appellant that his his said In defense, pellant insanity filed a notice of dropped him off at the Whatabur- sister had during apparently but abandoned defense ger Lancaster ‘‘I have on East Street. any jury Although trial. did not hear Sunday every Saturday there and drop me off during appellant's mental illness evidence of buy cigarettes the store and so I can walk to guilt during the my stage, it was admitted I need before I walk to anything else ransom, pipe pocket hostage, had a crack cocaine in his or use as a or to arrested, arresting he and felony facilitate the commission such thought acting “strange,” officer he assault, sexual assault or terrorize her possibly due “to him inducing illegal an Maybe or her brother or mother.20 he narcotic.” intended, as the dissent in the court of scene, noted, “to fondle her on the appeals fully testimony Even crediting scene, on the or to steal her rape her brother, of Beatrice and her who were bicycle.”21 required None these acts understandably terrified their encoun- Maybe appel- Beatrice. to abduct peculiar stranger, ter with this most and lant’s not nefarious. intentions were version, discrediting appellant’s I am nev- Maybe put he Beatrice on his wanted only ertheless left speculation about simply grab her and move her shoulders appellant’s what actual intentions were. way. Maybe he simply out of his intended
Maybe they nefarious; certainly were head, “the in his follow voices” whatever they Maybe children believed that were. they But told him. evidence of his intent
he intended to secret or hold Beatrice
things
lacking.
do
one of these
place
likеly
where she
to be
would
intentionally
that
just
found
for “kicks”
What we do know is
or because “the
(as
by grabbing
him
“restrained” Beatrice
maybe
voices” told
to. Or
found)
waist,
only
here
he intended to secret or
around the
albeit
for a few
hold
second,
was,
her in such a
“aggra-
with a
seconds.22 And that
restraint
as a
intent,”
law,
vated
to hold her
purpose
for the
matter of
without consent because
punishment hearing
judge.
before the
Vari-
22.The most famous
test for
historical
assess-
diag-
ous mental health exhibits contained
ing
sufficiency
of evidence to establish an
schizophrenia
noses of
reports
of "hear-
attempt
"stop
so-called
the film" test:
ing
dating
years
voices"
back several
before
example may
permitted,
If the
it is as
this offense.
appel-
These exhibits also noted
film,
though cinematograph
which has so
rough appearance,
poor hygiene,
lant's
his
merely
depicted
person's
far
the accused
records,
grooming.
dating
bad
These
intention,
stating
acts without
what was his
back to
included some documents from
suddenly stopped,
had been
and the audi-
hospitals
appellant
state
to which
had been
say
ence were asked
to what еnd those
admitted when he was a child. His sister
punishment
appellant
only
testified at
If
was on
acts were directed.
there is
one
Security disability
Social
for several
question
reasons:
reasonable answer to this
then the
"Schizophrenic,
depressant,
manic
can hard-
accused has done what amounts to an "at-
hear,
ly
problems,
back
I
can’t think of
tempt" to attain that end. If there is more
the fifth one.” The
evidence contained
answer,
reasonably possible
than one
then
suggesting
appellant
in the record
yet
enough.
the accused has not
done
young girls
conclusory
interested
was a
Turner,
Crimes,
Attempts
J.W.C.
to Commit
hearsay report
tal,
Big Spring
Hospi-
from
State
120, 237-38 (1934);
Cambridge LJ.
see
old,
appellant
years
made when
was 14
Hamielv.
92 Wis.2d
285 N.W.2d
history
compulsive
said he had “a
(1979) (quoting
stating
Turner and
aggressive
acting
girls
sexual
out toward
attempt,
primarily
"in the crime of
it is
age
*17
younger."
own
and
provide
acts of the accused which
evidence of
requisite
the
mental intent. The acts of the
Strangely, appellant
specifically
did not
accused committed in furtherance
the in
of
challenge
sufficiency
prove
the
of evidence to
tended
secоnd,
substantive crime ‘. must not be so
aggravated,
appeal,
this
intent on
but
is, nonetheless,
equivocal
few or of such an
nature as to
required
it
a
element for con-
requisite
render doubtful the
viction.
existence of the
").
criminal intent.'
Laster,
J.,
(Dauphinot,
530 eases, actually years in the defendant had
Beatrice less than fourteen of those was mother, age waiting and her who isolating was the performed the act of victim children, pancakes home to make for her Fann, from others. In the evidence in the or “acquiesced had not movement showed confinement.”23 kidnapping, a six- that the victim of the case, assuming appellant In this had the infant, along teen month old rape to commit or some other felo- mother, abducted sometime after distinguish it ny, up would be the visiting grave of a p.m. 9:00 while the a substantial interfer- between whether They forcibly deceased brother. were intended, liberty ence the victim’s away cemetery from the and driven Here, just slight a interference. the parts city. other of the The around which, and, only speculate of
jury could
constantly shifting
evidence reveals
course,
no
of intent
there is
throughout
City
Irving.
the
of
The
path
felony
place.24
in the first
commit such
taken some distance frоm
victims were
State,25
to Fann v.
majority points
The
they might reasonably
the area which
Megas
v. State26 as
and
which
cases
kept
been found and
isolated
have
were
held that a rational factfinder
courts have
anyone
might
from
have been of
who
or hold a
may infer an intent
to secret
They
later returned to
assistance.
were
person
person
where that
cemetery by appellant.27
the
unlikely to be found when a defendant
evidence,
held “that
Faced with that
we
anyone
might
isolates a
from
person
who
Indeed,
true,
[of
victims]
be of assistance.
that is
but
forcible removal
evidence,
20.02(a).
insufficiency
the mo-
and
23. See Tex.
Penal
Code
overruled,
being
appeals....
tion
The evidence is insufficient to
State,
e.g.,
24. See
Green v.
67 Miss.
So.
jury.
may conjecture
verdict
We
of
states,
case,
(1890).
syllabus
In that
purpose of the defendant to have been to
appellant
The
of assault
has been convicted
disclosed,
but,
rape,
on the facts
commit a
rape.
prosecu-
with intent to commit
conjecture only,
it is
and not an inference
riding
day-
trix
in the
testified
she was
reasonably
the evidence. The
drawn from
along
time alone and on
horse-back
probabilities may
greater
rape
that a
road,
public
the town
about two miles from
murder;
robbery or
intended rather than
Hazlehurst,
reaching place
where
guilt
particular
probability
mere
but
railroad,
public
road crosses the
she
crime,
that, too, springing
from
more
negro
standing
noticed a
man
on
cross-
facts,
sup-
proved
cannot
instinct than from
ing. Hearing
approaching,
a train
she
guilty.
port a verdict of
stopped and turned the horse’s head to-
danger
improper
great
convic-
There is
man, thinking,
says,
she
wards the
and,
character,
while
of this
tions in cases
frightened
he could assist her if the train
reason invade
the court
not for that
should
riding two
three hun-
her horse. After
danger
jury, the
admon-
province of the
crossing,
yards beyond
dred
she noticed
standing firmly
necessity of
ishes us of the
foot,
following her on
the man was
supervi-
duty
proper
upon
right and
having
briskly,
evidently
and she
traveled
them.
sion and control of
had
but little further when he came
ridden
Id. at 326.
caught
hurriedly up
her and
behind
(Tex.
riding-skirt.
immediately
She
uttered an
Fann v.
696 S.W.2d
horse,
outcry
urged
Crim.App.1985).
on her
man,
having spoken, fled in anoth-
without
Megas
prosecutrix
the trial
er direction. The
on
ref’d)
pet.
App.-Houstоn [1st Dist.]
defendant. This was all the
identified the
*18
jury
evidence. The
convicted the accused.
of the
531 against that, their and taking will of them to The held from Appeals First Court other, places evidence, some jury unknown was sufficient “a could infer that Tan- for the to conclude that the offense ner attempting escape, and that charged was committed as in appellant substantially them the interfered her instructions, court’s and is sufficient liberty by assaulting forcing her and her support their verdict.”28 back into the car.”30 Megas v.
In the evidence was In this case there is no such similarly concrete: an intent to isolate. There was no car Tyler
Linda
appellant
observed
holding waiting around the corner.31 There were
onto Tanner with one hand
beat-
no
ropes
pocket.
while
Laster’s
He did not
ing her
the other. Tyler
also
spring
saw even use both hands. He did not
running away
Tanner
from the car and
out from
hiding place
grab
some
Bea-
attempting
jump over the barricade.
trice.32 He did not
state
intention.33
Tyler pulled
When
to render aid His
except
grabbing
over
for
Beatrice
conduct —
began
horn,
and
honking her
appellant
around the
wholly ambiguous
waist —was
stopped hitting Tanner, dragged
possible
her
as to his
future intent.34 As the
car,
into the
and
away.29
drove
Supreme
noted,
California
Court once
him,
Id.
grabbed
clearly indicating
objec-
that his
abduction);
Martinez,
People
tive was
v.
20
29.
The reason for established act, slight, direct con- however toward of the intent highly indicative defendant’s crime, ... summation of the intended facts, specific to commit a These crime.36 that of cases that majority up the to light in the generously even most viewed defendant, time the conduct of the con- favorably fatally and to the are sisting preparation, acts of has merely of equivocal ambiguous.37 I conclude and equivocal.... to be [S]o never ceased find, a juror beyond that no rational could remains, long equivocal quality as the no that, doubt, ap- at the moment reasonable certainty can the say one what Beatrice, spe- pellant grabbed he had intent of is.35 the defendant place cific to secrete or her in a intent hold speak do for them- Oftentimes facts unlikely to found.38 where she was But criminal selves. the offense of attempted kidnaping, culpability required to otherwise the com- sentenced for years' imprisonment. charged with ten of the crime which he is mission Second, analysis by legal Supreme Id. at 120. The must attempting.... the defendant Mississippi Court of was contained in one engaged have in conduct which constitutes all “Accepting sentence: as true the evidence step substantial toward commission of the conviction, supports case we this which step A conduct crime. substantial must be say are that the unable to conviction strongly corroborative the firmness of the weight against overwhelming of evidence. intent.”). criminal defendant's This claim is therefore without merit.” Id. at analysis This too use- 127. succinct to be argued prosecutor that to the ful. speak for "there’s these facts did themselves: why grown couple of man reasons 527, Miller, People v. Cal.2d 42 P.2d away try girl, physi- would to steal a little 310 (1935). cally sexually Those abuse her or abuse her. See, Cruz-Jiminez, options are six or two of the seven e.g., United States v. Cir.1992) (3d required in You can intent that’s this case. (stating that F.2d 101-02 those, get you infer intent. And that'll there.” many appeals federal courts of have held that attempt in order to an conviction intent, (1) prosecution prove: "the must argued just counsel at his Defense culpability required, kind of otherwise for directed verdict: motion conduct; (2) engage in the criminal con [Tjhe any proof provide has failed State constituting step' duct a 'substantial toward it or evidencе that was Mr. Laster’s substantive commission of the offense the child. abduct intent”); strongly corroborates criminal recall, very you’ll And if abduct has Oviedo, F.2d United 884-85 States specific meaning purposes of the under the (5th Cir.1976) ("When question before kidnapping says that a statute. And that court is certain conduct constitutes whether person or hold means to secrete or secret punishable, preparation mere which is not is, likely in a where to be him he's attempt possibility of error is which testimony in- There's been found.... no mitigated requirement objec by the that the any specific Laster in- dicate that Mr. had tive acts of the defendant evidence commit anywhere, tent to take this child let alone venture and ment to criminal corroborate a place where she couldn’t be found. require extent that the mens rea. To the added that been no evidence Counsel "there's preserved prevents ment is it the conviction of either, presented by case or on the State’s persons engaged in innocent acts on the basis rebuttal, any kind of would show through speculative proved of a mens rea aggravating present.” inferences, factors were these tеstimony, forms of unreliable conduct.”) (internal objected the at- to the inclusion of Counsel past citation criminal omitted); charge tempted aggravated kidnapping "on Mandujano, 499 States v. United Cir.1974) that, (5th been that I do not there's (explaining basis believe F.2d "First, presented warrant that attempt, de sufficient evidence to constitute criminal acting accepts the charge." kind He is correct one fendant have been with the unless must *20 judgment I reverse the would appeals, modify
court of the trial court’s attempted aggravated from an
conviction restraint,
kidnapping to one for unlawful punishment
and remand the case for a new
hearing.39 chai’ged on the
lesser-ineluded offense of re- unlawful
straint, clearly and the evidence is suffi-
cient to it.40 Texas, Appellant,
The STATE of
v. WILLIAMS, Appellee.
Marcus J.
No. 06-08-00148-CR. Texas, of Appeals
Court
Texarkana.
Submitted: Nov.
Decided: Dec.
that,
prosecutor’s proposition
surely
as a matter of
have been admissible and admitted in
law,
why any
appellant’s
there are
two reasons
this case to establish
intent. See
(Tex.
grown
try
away
man "would
to steal
a little
Plante v.
491-92
girl."
accept
legal proposition.
Crim.App.1985).
I cannot
Haynes
I note that the State enhanced this offense