Isaac Pugh v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 28, 2023
• Docket: 05-22-00414-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed February 28, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00414-CR

ISAAC PUGH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-81674-2021

MEMORANDUM OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Reichek Following a jury trial, Isaac Pugh appeals his conviction for the offense of

burglary of a habitation while committing or attempting to commit kidnapping. In

two issues, appellant contends (1) the evidence is legally insufficient to prove he

committed or attempted to commit kidnapping and (2) the jury charge erroneously

allowed the jury to convict on a theory of guilt not alleged in the indictment. For

reasons that follow, appellant’s issues lack merit. On our own motion, we modify

the trial court’s judgment to correct certain clerical errors. As modified, we affirm

the trial court’s judgment.

Background The evidence at trial showed that on Tuesday, February 2, 2021, appellant

broke into his ex-wife Misti Pugh’s house in Celina, Texas, and took their two-year-

old child, LP. Under their custody arrangement, appellant had custody of LP every

first, third, and fifth weekend and every Wednesday night for a couple of hours. The

Wednesday prior to the offense Misti did not exchange LP with appellant. A few

days before the break in, Misti’s neighbor saw appellant stop his truck in front of

Misti’s house and then drive off. Although the neighbor did not know appellant,

appellant stopped to talk to her about LP. Appellant said the child’s mom “is going

to get what’s coming to her.”

The break in occurred at about 8 p.m. on February 2. Appellant broke through

a glass storm door, shattering the glass, and a wooden front door at Misti’s house.

Misti and LP were in the living room at the time. Appellant began yelling and

screaming and also ripped off his shirt. He yelled at Misti, “[Y]ou can’t keep my

kid from me.” Appellant moved toward LP, and Misti got in between the two of

them. When she tried to phone for help, appellant knocked the phone out of her

hand, grabbed her hair, and threw her on the floor. He then stepped on Misti’s hand

so she could not retrieve her phone. Appellant grabbed LP and ran out of the house.

He had left his truck running and left the truck door open. He threw LP into the

truck and drove off.

The Celina Police Department (CPD) tracked the GPS location on appellant’s

cell phone. Pings first indicated appellant was in Whitesboro, Texas, about 25 miles

–2– northwest of Celina, and then in Sherman. Around midnight, police got a couple of

pings from McKinney. The information from the cell phone pings was not specific

enough to ever pinpoint appellant’s location. Eventually, CPD issued an AMBER

Alert for LP. After the AMBER Alert went out, police stopped receiving the pings.

The phone company informed CPD it was likely appellant turned off his cell phone.

Police tried to track appellant through his credit card usage, without success.

Officers also contacted appellant’s friends and family in an attempt to locate him.

Multiple people told CPD Detective Joshua Armstrong that appellant was unstable

and thought LP was being sexually assaulted. One person said she loaned appellant

money for an attorney a few hours before appellant showed up at Misti’s house.

Appellant’s cell phone records revealed that before he took LP he had been

trying to contact a family law attorney named George Parker. Police spoke to Parker

early on the morning of February 3, and Parker informed them he did not represent

appellant and had not spoken with him about LP. That afternoon, appellant showed

up with LP at Parker’s law office in downtown McKinney. On the advice of Parker,

appellant called the CPD. He spoke to Detective Armstrong. Armstrong convinced

appellant to step outside, where he was arrested by officers with the McKinney

Police Department. LP was found unharmed. He was missing for about 16 hours.

Appellant was charged by indictment with burglary of a habitation while

committing or attempting to commit kidnapping. See TEX. PENAL CODE ANN. §

–3– 30.02(a)(3), (d). The jury found appellant guilty, and the trial court assessed his

punishment at nine years’ confinement. This appeal followed.

Sufficiency of the Evidence

In his first issue, appellant contends the evidence is legally insufficient to

support his conviction because the State did not prove he committed or attempted to

commit kidnapping. He argues the evidence is insufficient to show he intended to

prevent LP’s liberation by secreting him or holding him in a place where he was not

likely to be found.

We measure the legal sufficiency of the evidence by the elements of the

offense as defined by a hypothetically correct jury charge. Hammack v. State, 622

S.W.3d 910, 914 (Tex. Crim. App. 2021) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). A hypothetically correct charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried. Id.

In assessing the sufficiency of the evidence, we consider all the evidence in

the light most favorable to the verdict and determine whether, based on that evidence

and reasonable inferences therefrom, a rational factfinder could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979); Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44 (Tex. Crim.

App. 2019). This standard requires that we defer “to the responsibility of the trier

–4– of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Zuniga v. State, 551

S.W.3d 729, 732 (Tex. Crim. App. 2018). Each fact need not point directly and

independently to guilt if the cumulative force of all incriminating circumstances is

sufficient to support the conviction. Nisbett v. State, 552 S.W.3d 244, 262 (Tex.

Crim. App. 2018).

As charged in this case, a person commits burglary of a habitation when he

enters a habitation without the effective consent of the owner and commits or

attempts to commit a felony, theft, or assault. TEX. PENAL CODE ANN. § 30.02(a)(3).

Burglary of a habitation is generally a second-degree felony, but is a first-degree

felony when the defendant commits or attempts to commit a felony other than felony

theft. Id. § 30.02(d). Here, the underlying felony was kidnapping. A person

commits the offense of kidnapping if he intentionally or knowingly abducts another

person. Id. § 20.03(a). “Abduct,” as it applies in this case, means to restrain a person

with intent to prevent his liberation by secreting him or holding him in a place where

he is not likely to be found.1 Id. § 20.01(2)(A).

Appellant argues the evidence showed he took LP to the office of a “well

known family lawyer,” who had about 20 employees, and had intended to do so

1 A person can also abduct someone by restraining him with intent to prevent his liberation by using or threatening to use deadly force. TEX. PENAL CODE ANN. § 20.01(2)(B). There was no evidence appellant used or threatened to use deadly force. –5– before he took LP. According to appellant, because he took LP to a law office, the

State did not prove he intended to secret LP to a place where he would not likely be

found. Appellant also argues the evidence is insufficient to show he intended to hide

LP before they arrived at the law office. Appellant refers to that 16-hour time period

as the time “en route to George Parker’s office.” He argues that placing LP in the

passenger’s seat of his truck did not show an intent to secret the child and suggests

the evidence needed to show more overt actions to secret LP.

The State was not required to prove that appellant actually secreted or held LP

in a place he was not likely to be found. See Laster v. State, 275 S.W.3d 512, 521

(Tex. Crim. App. 2009). “Abduct” involves two elements; the defendant must have

restrained another and also must have had the specific intent to prevent liberation.

Id. The offense of kidnapping is legally completed when the defendant, at any time

during the restraint, forms the intent to prevent liberation by secreting or holding

another in a place unlikely to be found. Id.

We conclude the evidence was legally sufficient to prove appellant

intentionally or knowingly abducted LP. The evidence showed that prior to the

offense, appellant indicated that something bad was going to happen to Misti. A

short time later, he took two-year-old LP from Misti’s house with force. He violently

entered Misti’s home to get LP and attacked her when she tried to phone for help.

Appellant left his vehicle running with the door open to make it easier for him to get

away with the child. Then he did not remain in one place; he drove to different

–6– locations in North Texas, from Celina to Whitesboro to Sherman to McKinney.

After an AMBER Alert was issued, police stopped receiving GPS information from

appellant’s phone. The jury could have reasonably inferred appellant turned off his

cell phone to prevent being located. The fact that appellant showed up with LP at a

busy law office 16 hours after taking him does not mean that appellant did not

commit kidnapping. Viewing the evidence in the light most favorable to the verdict,

the jury could have found that appellant intended to prevent LP’s liberation by

secreting or holding him in a place where he was unlikely to be found. We overrule

appellant’s first issue.

Alleged Jury Charge Error

In a second issue, appellant contends the trial court erroneously charged the

jury on a theory of guilt that was not alleged in the indictment.2 The indictment

alleged appellant entered the habitation without effective consent of the owner and

committed or attempted to commit kidnapping. The application paragraph instructed

the jury:

if you find from the evidence beyond a reasonable doubt that . . . the defendant, ISAAC PUGH, did then and there intentionally and knowingly, without the effective consent of Misti Pugh, the owner thereof, enter a habitation with the intent to commit the felony offense of kidnapping, attempted to commit or committed the felony offense of

2 After appellant’s brief was filed, his court-appointed counsel moved to withdraw. We granted the motion and ordered the trial court to appoint new counsel for appellant. Once appointed, new counsel had the option to file a new brief replacing the brief filed by former counsel, file a supplemental brief, or adopt the original brief. Counsel filed a supplemental brief raising this issue. –7– kidnapping, then you will find the defendant guilty as charged in the indictment.

(Emphasis added.) Appellant was not charged with committing burglary by entering

a habitation with intent to commit kidnapping. See TEX. PENAL CODE ANN. §

30.02(a)(1). Appellant contends the error caused him egregious harm.

As the State concedes, the charge erroneously authorized a conviction on a

theory of burglary not alleged in the indictment. See Sanchez v. State, 376 S.W.3d

767, 773 (Tex. Crim. App. 2012) (instructions must conform to allegations in

indictment). Because no objection was made to the charge, we consider whether the

error egregiously harmed appellant. See Alcoser v. State, No. PD-0166-20, 2022

WL 947580, at *3 (Tex. Crim. App. March 30, 2022). Harm is assessed in light of

the entire jury charge, the state of the evidence, including the contested issues and

weight of the probative evidence, the argument of counsel, and any other relevant

information revealed by the record of the trial as a whole. Id. An erroneous jury

charge is egregiously harmful if it affects the very basis of the case, deprives the

accused of a valuable right, or vitally affects a defensive theory. Id. A finding of

egregious harm must be based on actual harm rather than theoretical harm. Id.

Egregious harm is a difficult standard to meet, and the analysis is a fact-specific one.

Id.

We conclude appellant was not egregiously harmed. At trial, the focus was

on whether what happened after appellant entered Misti’s home without consent was

–8– a kidnapping. During closing arguments, the State did not argue that appellant

committed something short of a completed kidnapping. It did not argue appellant

attempted to kidnap LP, which was a theory authorized by the indictment. Its theory

was that appellant completed the offense of kidnapping. Defense counsel argued

that for various reasons a kidnapping had not occurred, all of which acknowledged

that appellant removed LP from his mother’s home: appellant took LP to protect

him; appellant did not commit kidnapping because he did not take LP somewhere

he could not be found; a father could not kidnap his own child; and the amount of

time appellant had LP was not long enough to constitute kidnapping.

Further, the evidence overwhelmingly showed that appellant completed the

offense of kidnapping. Appellant broke into his ex-wife’s home to grab LP and take

off with him in his vehicle, evading detection for 16 hours. There was nothing in

the evidence to show that appellant broke into Misti’s house without her consent

with an intent to commit a kidnapping that was not actually carried out. In addition,

the verdict form did not include the intent to commit kidnapping theory. It stated,

“We, the Jury, find the defendant GUILTY of the offense of Burglary of a Habitation

attempting to commit or having committed Kidnapping as charged in the

indictment.” The erroneous charge did not affect the very basis of the case, deprive

appellant of a valuable right, or vitally affect a defensive theory. We overrule

appellant’s second issue.

Clerical Errors in the Judgment

–9– Although not raised by either party, the trial court’s judgment contains several

clerical errors. First, the judgment does not accurately reflect that the trial court

assessed punishment in this case. The record shows that appellant elected for the

trial judge to assess his punishment, and the judge did so. Next, the judgment

incorrectly states that the degree of the offense was a second-degree felony.

Burglary of a habitation while committing or attempting to commit kidnapping is a

first-degree felony. TEX. PENAL CODE ANN. § 30.02(d). Similarly, the judgment

reflects the wrong statute for the offense. It lists § 30.02(c)(2), which is second-

degree burglary of a habitation, instead of § 30.02(d), the first-degree felony

provision at issue here. In addition, the judgment states “APPEAL WAIVED, NO

PERMISSION TO APPEAL GRANTED.” The trial court’s certification of

appellant’s right of appeal certified that this was not a plea-bargain case and

appellant had the right of appeal.

This Court has the power to modify a judgment to make the record speak the

truth when we have the necessary information before us to do so and may do so on

its own motion. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 28

(Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—

Dallas 1991, pet. ref’d). Accordingly, we modify the trial court’s judgment in the

following ways: to reflect that the trial court, not the jury, assessed punishment; to

reflect that the degree of the offense was a first-degree felony; to reflect that the

–10– statute for the offense was penal code § 30.02(d); and to delete the language stating

that appellant waived his appeal and was not given permission to appeal.

As modified, we affirm the trial court’s judgment.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

Do Not Publish. TEX. R. APP. P. 47.2(b). 220414F.U05

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ISAAC PUGH, Appellant On Appeal from the 219th Judicial District Court, Collin County, Texas No. 05-22-00414-CR V. Trial Court Cause No. 219-81674- 2021. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Reichek. Justices Nowell and Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

On the first page of the judgment:

The section titled “Statute for Offense:” is modified to state “30.02(d) Penal Code.”

The section titled “Degree of Offense:” is modified to state “1ST DEGREE FELONY.”

The section titled “Punishment Assessed by:” is modified to state “Court.”

On the second page of the judgment:

The section titled “Punishment Assessed by Jury/Court/No election (select one)” is modified to uncheck the box next to “Jury” and to check the box next to “Court.”

On the third page of the judgment: –12– The following language is deleted: “APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.”

As modified, the judgment is AFFIRMED.

Judgment entered this 28th day of February, 2023.

–13–