Teer v. State

($3,975.00).3 children The divorce decree judg-

also entitled Faram to a credit on the payments principal on the ment for all payments credit card debts and all again, we loan to Gervitz’ children. Once cannot conclude that the trial court abused awarding judgment its discretion Accordingly, points favor of Gervitz. of er- three, four, five, ror and six are overruled. judgment of the trial court is affirmed. TEER, Appellant,

Robert Texas, Appellee. The STATE of No. 10-94-005-CR. Texas, Appeals Court Waco. April community right estate in exception of the obligations, division with the 3. All of these $9,000.00 separate property reimburse- net value. the ment, received which Faram 27.1% just for in the trial court’s were accounted Reaves, Jr., Waco, appellant. M. for Walter Atty., Segrest, Beth John W. Crim. Dist. Parker, Toben, Attys., Dist. E. Asst. Mark Waco, appellee. for C.J., THOMAS,

Before and CUMMINGS VANCE, JJ.

OPINION

VANCE, Justice. aggra-

Robert Teer was convicted Teer, kidnapping his es- vated of Christina hall. wife, tranged from Waco billiard 20.04(a) (Vernon § TexPenal and, guilty A voluntarily re- he did not also found that in a safe assessed lease Christina gun to Wal-Mart felony at for- took first-degree for the pur- (Vernon back, had been money because it but ty years prison. 12.32 See id. Waco, R.S., were unsuccessful. 1994); May Leg., chased Act of 63rd Buffalo, a broadcast 399,1973 883, 915, Teer heard amend- While ch. Tex.Gen.Laws for his 29, 1993, having been issued a warrant ed Act of 3586, 900, 1.01, § arrest. ch. 1993 Tex.Gen.Laws (current version at TexJPenal Code 3615 broadcast, Teer told healing the After 20.04(c) (Vernon 1994)). In two § Ann. they if her mother to see to call Christina error, complains that the evi- points of house, they which mother’s go to her jury to have dence is insufficient for the there, night spending did. After any aggravating element or to have Alston with called Detective Christina voluntarily release found that he did not him that and told Department Police Waco place. in a In three additional Christina charges. also drop all She she wanted to (1) points, that the court erred he contends say that Family Abuse Center called the

refusing present allow him to found out to return. Teer she wanted attempted he had to commit suicide Limestone requested that Alston (2) offense, overruling prior occasions to the Department arrest him. County Sheriffs argument during pun- his to an returned, house, again, and re- left left the (3) objec- overruling his phase, ishment time, father again. During this turned made tion to an State gave him. He aunt came to see phase. will during guilt-innocence car, leaving father, left in Teer’s to his who a reverse and remand for new Later, as for Teer to drive. his own vehicle hearing. returned, passed father and aunt road, u-turn, and re- made a them on the

FACTS a He was arrested to the house. turned short time later. and Teer had been married for Christina Septem- year separated a Family to the ber 1993. Christina went OF EVIDENCE SUFFICIENCY 3, began she Abuse Center. On October INTENT OF Shooters, a working as a waitress at Waco second asserts 13, Wednesday, billiard hall. On October establish that insufficient to evidence is purpose of for the Teer went Shooters way kidnapping intended to commit mar- persuading to reconcile their Christina See aggravate the offense. that would there, until riage. was not so he waited She 20.04(a)(l)-(6). § Suf Ann. TexJPenal Code him she arrived. After Christina told ficiency evidence is determined together back did not want State, jury. charge given to the Jones him, manager of the club want to talk to 667, (Tex.Crim.App.1991). 668 815 S.W.2d to leave. persuaded Teer jury to convict charge authorized the kidnapping if it found aggravated Teer of father then went to Wal- Teer and his (1) with intent Christina Mart, purchased shotgun, reg- that he abducted where (2) hostage, inflict armed, use her as a shield name. Now istering it in the father’s (3) her, violate or abuse bodily injury on informed Teer returned Shooters (4) her. See sexually, or terrorize leaving him. TexJPenal with that she (5). 20.04(a)(2),(4), Any one refused, struggle began and the After she is sufficient. aggravating elements harm to discharged without serious shotgun if, a conviction will sustain id. Evidence grabbed and forced anyone. Teer light most favorable viewing it in the They spent accompany him to his car. her to verdict, fact could Centerville, any rational trier of days together in the next three the crime time, elements of essential Huntsville, found the During that and Buffalo. v. Vir Jackson reasonable doubt. beyond a alone on several although left Christina 2781, 318-19, 307, S.Ct. ginia, 443 U.S. occasions, escape, or attempt to she did not (1979); 2788-89, Matson Huntsville, L.Ed.2d 560 help. anyone for While contact State, 839, (Tex.Crim.App. ony unless defendant had re- 819 S.W.2d alive in leased victim a safe punishable event offense which “Terrorize” defined Pe is not 24, felony. second-degree Act of Collegiate nal Dietio- Code. “Webster’s New 1973, 399, ch. 1973 Tex.Gen. nary fill defines ‘terror’ as ‘to with intense (amended 1993). The State Laws ” Rog fear or to coerce threat or force.’ proving bore the burden of (Tex.Crim. ers v. or that it was not a safe App.1985). generally “One’s acts are reliable place.1 See Williams circumstantial evidence of intent.” one’s (Tex.Crim.App.1993) (provision op- (Tex. Rodriguez v. defense, legal like the initial erates App. pet.). [1st Dist.] - Houston accused, production burden of but the anticipated The fear of infliction imminent of state). persuasion of on the ultimate burden bodily injury or death is sufficient to indicate Thus, apply we the Jackson standard to de- an intent to terrorize. Id. if, viewing light termine verdict, any to the rational most favorable pointed testified that Teer beyond fact have a rea- trier of said, bitch, up at her shotgun “[G]et and voluntarily not sonable doubt that you.” or I will “felt shoot She said that she that release Christina or he did release really that, also said scared.” She Jackson, Shooters, place. in a safe See 443 U.S. at scared, her “really I left she Matson, 318-19, 2788-89; 99 at 819 S.Ct. thought going that he was to kill me that at alone, 843. testimony jury S.W.2d time.” Based on this justified inferring would be that he intend supports assertion that The record Teer’s her he ed terrorize when returned voluntarily he whether released Christina shotgun. with a See TexPenal Shooters Williams, “hotly contested.” See 20.04(a)(5). Thus, § that we find Ann. Code (evidence raise is at must S.W.2d jury beyond a a rational could have so found sue). he He because took her asserts Jackson, doubt. 443 U.S. at reasonable See Teague to her mother’s house in without 2788-89; Matson, 318-19, 99 S.Ct. at so, being compelled voluntarily re to do at 843. suggests her. that “two factors leased Having found the evidence is suffi- that release,” ie., support finding voluntary of support jury’s finding cient allowing the authorities call Christina, need not intended to terrorize we Family Abuse to tell them and the Center support examine whether is sufficient to leaving and at where finding aggravating of other element. on more than mother’s house when left point We overrule two. State, Wiley pointing one occasion.2 State, argues that the release was not v. OF SUFFICIENCY OF EVIDENCE that interven because knew VOLUNTARY RELEASE by the was imminent. See tion authorities (Tex. State, 401, 411 Wiley v. that there Teer’s first asserts pet.) (finding re App. [he] is “insufficient evidence to establish - Beaumont place” “voluntary in a safe garding alive release release victim viewed, weighed, determined place....” At the time must and in a safe trial, provided solely from conduct the accused and the Penal Code “speculated first-degree possibilities fel- not as to within aggravated kidnapping was not, however, 1, 1994, September We do look to evidence a defendant has 1. Effective contrary supported proof the issue. TexPenal burden on made; at the evidence we look one 20.04(c) (Vernon 1994). would then We light the verdict. See most favorable to sufficiency of the evidence review the factual 307, 318-19, Virginia, v. 443 U.S. Jackson prove. which defendant must issue 2788-89, (1979); L.Ed.2d S.Ct. State, (Tex.Crim.App. 785 S.W.2d 146 Meraz (Tex.Crim. 819 S.W.2d Matson App.1991). 1990). is released victim). punishment if the victim napper’s Wiley that “the grasps” holds safety promote the victim’s is to manner unharmed place in a release must occur kidnapper an well-being by giving realistically conveys to the victim that which unharmed the victim to release captivity and is now incentive freed from is now he/she kidnap is that the place. The incentive surroundings wherein in circumstances felony. degree of for a lower per punished is readily The Beaumont aid is available.” Id. 24,1973, eh. suffi- Act of that the evidence was Court concluded (amended 883, 915 jury’s finding that the support the 1973 Tex.Gen.Laws cient to by the Beaumont reject analysis used voluntarily released be- had not been victim only it does not secure Wiley released he testified that he was court cause mitigating factor police were captors purpose heard that the or benefit of after his See Al coming. Id. face of the statute. evident (Tex.Crim. 619, 623 ford given “vol- interpretation to the term (“The a stat principle rule is that App.1993) Wiley untary” by the Beaumont Court one con ute, to more than susceptible point in time at which the makes critical the struction, to secure interpreted so as will be being sought by kidnapper that he is learns intended.”) (citing purpose or benefit Thus, a would al- authorities. Id. (Tex. 787, 791 Ward v. involuntary. purpose If the always be most Crim.App.1992)).3 mitigating provision of the statute’s victims alive kidnappers to release induce interpreta- court’s the Beaumont Under achieves in a safe conduct which and tion, absolutely incentive for no there is effective to lessen the that result must be once unharmed kidnapper release a victim to up hour.” To to the “eleventh he is imminent because arrest becomes his that, say authorities hold otherwise is to once Thus, in a “voluntarily.” longer acting kidnapper, the the victim begin to search for kidnap- officers and between law stand-off been “written off.” has victim, be no holding there would per release the Wiley for him to incentive under “voluntary” legislature did not define The Wiley’s interpretation unharmed. victim aggravated kid- is used in the as that term “voluntary” from thus detracts the term Therefore, legislature napping the statute. provision— purpose behind defeats given presumed have intended that it be to ie., well-being by promote the victim’s to ordinary meaning. Morrow its to release kidnapper an incentive giving the (Tex.Crim.App.1993) reason we For this (“Where the victim unharmed. by statutory defined terms are not Wiley’s reasoning or result. apply will not those terms legislature, we ascribe to (citing ordinary meaning.”) Vernon their kidnapping. See Christina survived (Tex.Crim.App.1992)). 841 S.W.2d 407 ch. Act of “voluntary” in- ordinary meaning The (amended 883, 915 Tex.Gen.Laws following: “proceeding from the cludes 1993).4 and while she testified She consent”; one’s own choice or will or from motel, they saw at the in Buffalo Teer were intention”; “having power by design or “done and o’clockTV news pictures on the six their choice.” MerRIAM Webster’s of free Colle- issued for had been heard that warrant (10th 1993). giate Dictionary ed. “got real seared. said that arrest. She saying, you have to jumped up and was He legislative policy ad- believe the clear mom, your mom you to call your mitigates a kid- call provision that vanced 6.01(a), concept of free include the does not recognize of Crimi- that in the Court 3. We Alford legislature intend Appeals, Id. nal will.” liability subject person for to criminal to act, "voluntarily” in the term accidental defined significance fact that the We attach no meaning culpability "the ab- the context of provi- voluntary-release amended version act, posses- omission or an accidental sence of requirement the victim be deletes the sion sion.” Alford requirement place” The "safe released "alive.” (Tex.Crim.App.1993); TexPenal appears "alive.” to include context, 6.01(a) (Vernon In that " said, '[Vjohmtarily,’ in section as used Court drop charges.” her came out of the house. and to also said Freeman and Teer She car, gun, put did that “because he was seared he was to it in got Teer went in, going get caught.” it over it had come and turned box his father. she and Teer’s father left When phone, They pay to a drove where go car office in the sheriffs mother, her Christina called Norma Free- Fairfield, they took the with them. man, were, they told her where and asked residence, returning to Freeman While police charges her to call see if road, they met Teer on and turned They around, dropped. then drove and followed them back to the house. around again called her to find if “it mother out okay They to come home.” drove Buf- father, William, that after testified Teague, falo to the Freeman residence in the second left Freeman residence arriving p.m. Friday at about 11:00 eve- time, pickup and Teer’s aunt he drove his “gave ning. Christina said that her mother They law drove the ear. met enforcement big hug” Robert and talked like noth- road. He returned to the officers on the ing happened. stepfa- She said that her them, and the officers arrest- residence night ther did not and talk her ed Teer. “just thing.” sister own dep- Christina testified that when Sheriffs night her mother into while talked late arrived, got “it was a real mess. uties pallet slept on a in the room. same everything, real into the scared and went morning, next Teer asked Christina to room, trying to calm back and his dad was outstanding. if a find out warrant was still down, told him to sit on the bed.” Alston, She tried to call Detective but finally They deputies arrested Teer. get through.” “couldn’t She said that Teer’s Fairfield, took to the courthouse “really upset father arrived and was representatives where she was met everything, crying, haggling he was Family Abuse Center. [Teer], just really about what had scared summary, that In the evidence shows stayed twenty happened.” about min- He Teer decided to take Christina to her moth- utes, they in the that had then left car used house, not know where er’s authorities did during days, taking gun the three the with there, they taking After her he turned were. Later, Alston him. she called Detective and, the over in more gun to his father than arrangements him made for Teer and instance, one left the residence without tak- Monday” and [the next] her to “come in to ing with him. We believe bring the with them. light considering all the evidence the most that, although Christina said she had told verdict, jury’s to the evidence is favorable the during three-day trip Teer that jury’s support implied to find- insufficient “get together,” she intended to would back ing beyond reasonable doubt that Family to Abuse Center. She return release Christina say to that wanted to called the Center she point place. We sustain one. back, and return. Detective Alston called “only go to him that she wanted to told mitigates punishment”; it does not excuse or her that someone would Center. told Williams, justify commission the offense. up to pick return her come to Thus, holding our will at 286. S.W.2d arrest Teer. When Teer Center hearing rather result new arrested, he be he found out that would new trial. See Tex.Code CrimJPROC. than truck], and came “drove off father’s [his 44.29(b) (Vernon Supp.1995). Ann. art. off, back, drove and came back.” She said “they either that she was afraid that would down, go and kill or would out

chase OF PRIOR SUICIDE EVIDENCE something.” or himself ATTEMPTS complains that fourth she went Teer’s aunt testified that prevented presenting him from evi- father court with Teer’s on Freeman residence mother, arrived, dence, through that he at- Saturday morning. When Ms. Tex. tempted months months be without the evidence.” suicide six and two 401; Mayes prior to date of the offense. The State R.CRIM.Evid. (Rule 79, (Tex.Crim.App.1991)

objected probative that the of the testi- value by that facts or issues mony outweighed prejudicial was its ef- makes no demand “remote,” prove “an that fects because it was too was contested before evidence tends regarded as rele- attempt sympathy,” disprove based facts is to elicit and was or those vant). case-in-chief, testi- hearsay. objection During on sustained the State’s was mony from with- over Teer’s relevant had been elicited objection lack of the his threats to kill both show his of intent to commit one out elicited aggravating of the and kill himself. had also elements offense. them suggests testimony during cross-ex- further that his similar emotional state Further, relevant of evidence in the record amination. State’s during testimony “attempt to elicit threatened to commit suicide three-day hearsay journey. sympathy” his and Christina’s and was based relevancy attention to direct the court’s any Evidence is relevant if it has issue. tendency fact make existence of objection invoked Rule The “remote” consequence is determination pro- 403. Rule 403 See Tex.R.Crim.Evid. probable probable of the action more or less relevant, may be “Although vides: than it would Tex. be without evidence. substantially if its value probative excluded is R.CRIM.Evid. 401. When the excludes court outweighed by danger preju- of unfair defendant, testimony by a offered criminal issues, dice, misleading confusion of the or appeal the burden on is to show that delay, jury, or undue considerations of excluding court abused its discretion presentation needless of cumulative evi- evidence. Johnson v. Rule admis- dence.” Id. Because 403 favors denied, (Tex.Crim.App.1985), cert. evidence, sibility presumption of relevant U.S. 93 L.Ed.2d 164 S.Ct. proba- evidence will be more is relevant (1986). of evidence Exclusion will result prejudicial. Montgomery, 810 tive than only right reversal where a substantial (on rehearing). at 389 The court’s Breeding accused has been affected. Rule 403 reviewed determination under (Tex.App . -Amar Id. at 390. the abuse-of-discretion standard. ref'd). pet. illo The record reflects that the court balanced urges that State the test of rele testimony against the probative the value of vancy Montgomery set forth v. State factors, that the the Rule 403 and we believe “[Wjould applied: should a reasonable refusing not court did abuse its discretion person, experience with in the real some the testify mother to about to allow Teer’s particular piece world believe that the of prior attempts. suicide See Tex.R.CRIM. truth helpful determining evidence is the point Evid. 403. We overrule four. falsity any consequence of fact that is of State, Montgomery the lawsuit.” v. 810 JURY ARGUMENTS 372, (Tex.Crim.App.1990). 376 S.W.2d point third asserts the court Teer’s that although agree, we reach a different conclu- objection overruling pros- the erred than the sion State. argument, during punishment ecutor’s the “mean, noted, phase, dangerous, we the that he a wild As issue of was says argument “personal- aggravate was man.” He that the intent that would the offense citing ly improper, is was Although contested. whether an issue abused” him and 228, State, 25 relevancy Swilley of 114 not affect the Tex.Crim. contested does (1929). issue, responds that testimony 1098 The State on that evidence offered S.W.2d recognized the prior attempts argument the fits within four suicide was “evidence jury argument of of having any tendency categories proper to make existence logical from the evidence aggravating intent fac it was deduction to commit [Teer’s State, 493 probable probable Alejandro it presented. more or less than See tor] 852 230, (Tex.Crim.App.1973). to the con

S.W.2d Alter- that the error did not contribute error, natively, says any, punishment if See Tex. State that viction or the assessed. R.App.P. 81(b)(2). Therefore, it not contribute Teer’s conviction or becomes Tex.R.App.P. 81(b)(2). punishment. necessary to at the adduced at See look stages Allridge trial. both of See Because we have we determined that must (Tex.Crim.App.1988), S.W.2d judgment reverse the for a remand new denied, cert. 489 U.S. 109 S.Ct. punishment hearing and because the com- (1989). making In that L.Ed.2d 238 plained-of argument during also occurred determination, following we will consider the punishment phase, we do reach this error; (2) (1) the six factors: source point. (3) error; the nature of the or to whether point urges Teer’s fifth emphasized by error what extent the was in overruling (4) court erred state; implications of probable argument guilt-innocence during (5) State’s error; juror weight much how phase improperly (6) to “ex error; asked probably place whether plain prosecutor their verdict.” The said: declaring error harmless would encour age repeat impunity. the state to it with See you me Now tell that woman was not Harris, 790 do not S.W.2d at 587-88. We you terrorized. don’t think that is ter- If propriety on the of the outcome focus

ror, anybody then I hear don’t want to else trial, integrity process but on the complaining dropped that our office those punishment. led See id. at to conviction kinds of cases. 587. objected grounds argu factors, that, Utilizing hold the Harris we “improper,” ment over court complained of the comments are says arguments ruled it. He that similar and the viewed context the evidence have been condemned in Carter v. whole, argument of the error —if counsel as (Tex.App [14th . -Houston Tex.R.App.P. harmless. See 1982) (“[W]ho wants to walk out and Dist.] —was 81(b)(2). We overrule five. rape ... all victim] tell for [the (Tex.Crim. nought?”), aff'd, CONCLUSION App.1983), and Coble v. (“[I]f Having found that the evidence was suffi- (Tex.Crim.App.1993) you can’t support jury’s guilt verdict of cient you I

do after the trial over want aggravated kidnapping but insufficient why you meet me and tell me couldn’t — release, finding of denied, support the it.”), U.S.—, do cert. 115 S.Ct. (1994). judgment and remand the we reverse the 101, 130 L.Ed.2d 50 The State as healing. cause for new for plea serts that the law 44.29(b). art. Alejandro, 493 S.W.2d at Tex.Code CRIM.Proc.Ann. enforcement. See Alternatively, says State CUMMINGS, Justice, dissenting. overruling objection error in was (1) of the Harris factors harmless because I that Teer re- do not believe Because (2) overwhelming against him. and I a safe leased Christina 587-88 apparent- See Harris majority respectfully dissent. The (Tex.Crim.App.1989). points further out It ly was “released” when assumed Christina that the error in Coble was determined Teer took' her to her mother’s home because Appeals be harm to Court Criminal its is focused on whether entire discussion Coble, 871 at 206. We will voluntary. less. See the “release” was assume, deciding, without analysis I first consider our should believe erred in improper and that the court was when Teer Christina was released whether objection. overruling Teer’s home. If we should took her to her mother’s time, was released at error determine that she must reverse for consider whether the release jury argument un then we should overruling an to place. if voluntary and it was a safe beyond say can a reasonable doubt less we (Tex.App. Because, ley considering the unusual cir- after home, pet.). I not cumstances at her mother’s do -Beaumont took her believe she was released when Teer abduction, day third after On the Therefore, we would not reach there. that a Teer saw on television Christina voluntary or in a whether the release was Teer for his arrest. had been issued warrant place. to call upset and Christina became directed legislature not define “release” police call the request her to her mother and kidnap- aggravated used in the that term is charges. He further not drop would will, therefore, ping use ordi- statute. We its called her until Christina had leave the motel nary meaning which of the fol- includes charges had again to confirm mother “liberation, discharge, free lowing: setting or which, he took dropped, after been from restraint or confinement.” Black’s evidence reveals home. The to mother’s Ed.1979). (5th record Law DICTIONARY Teer had been prior to abduction reveals that Christina had married Teer living home and that at Christina’s mother’s only years when she old and that sixteen quite In de- fond of Teer. her mother was separate to on she had tried from Teer sev- at termining was released whether Christina occasions, going eral each time to her moth- home, to consider it crucial mother’s occasions, er’s home. On each those stayed not her there. He that Teer did leave at would effect a reconciliation her mother’s to to make there and direct her continued to her abduction from Shooter’s home. Prior try get the warrant police to to calls to hall, separated billiard Christina had from to Family to Abuse Center dismissed Family Teer and moved to the Abuse Center moth- that she was safe at her advise them Waco, apparently hoping that Teer would listening, During these calls Teer was er’s. so, not able find her. Even than be less at of the social workers but due to the skills month, found her and a armed with Center, they recognized Family Abuse forcibly against her will shotgun, took her hostage and needed was still place employment. During from her It was due to their efforts rescued. car, flight from billiard to Teer’s hall finally liberated that Christina was pointed “get up, gun at her and told her home her mother’s simultaneous at bitch, you you.” I or will shoot She fell It was then that she was Teer’s arrest. way pointed car and at “home”, the place she called taken to the again. verbally her face He did not threaten Family Center. Abuse time, really her at that she stated “I but scared, thought going I he was kill me that circumstances, I believe that From these begged further stated that she time.” She beyond rea- rational could have her, stating “please don’t not shoot not re- that Christina was sonable doubt me, just anything, don’t shoot shoot I will do at hostage while from her situation leased abduction, they spent me.” After was taken from home until she her mother’s days along three at various motels next found, Having police. so there Houston, during toward which 1-45 corridor necessary to “volun- not be determine would escape opportunities to time Christina had the home was “safe tariness” whether motel room to when Teer would leave the Subject place.” to a decision attempt escape, provisions. She did jury argument concerning improper error however, jury” a “rational reach, I majority which that since Teer from the evidence reasoned judgment. affirm the always she at- found her before when him, escape leave that an tempted to appropriate It seems

have been futile. regarding any judgment “volun- viewed, tary place” must be solely from the con- weighed and determined possibilities as to of the accused duct Wi- speculated grasps of victim. within

Case Details

Case Name: Teer v. State

Court Name: Court of Appeals of Texas

Date Published: Apr 5, 1995

Citation: 895 S.W.2d 845

Docket Number: 10-94-005-CR

Court Abbreviation: Tex. App.