Larry Samuel Palmer v. State

Court of Appeals of Texas

Larry Samuel Palmer v. State

DecidedDecember 5, 2007

Docket06-07-00053-CR

StatusPublished

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Larry Samuel Palmer v. State, (Tex. Ct. App. 2007).

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Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00053-CR

LARRY SAMUEL PALMER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 114th Judicial District Court

Smith County, Texas

Trial Court No. 11-2447-06

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

A Smith County jury found Larry Samuel Palmer guilty of delivery of a simulated controlled substance. See Tex. Health & Safety Code Ann. § 482.002 (Vernon 2003). The trial court assessed punishment at eighteen months' confinement in a state-jail facility and a $5,000.00 fine. The acts giving rise to the prosecution occurred in and around Troup, Texas, which is located in both Smith and Cherokee Counties. Palmer raises one issue on appeal: that the trial court was without venue, i.e., that the evidence was insufficient to show that any element of the crime of which he was convicted was committed in Smith County.

A. Venue

If there is no specific statute⁽¹⁾ governing the venue of an offense, venue is governed by the general statute, which provides that "the proper county for the prosecution of offenses is that in which the offense was committed." Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 2005). Under Article 13.18, a charged offense is committed in two counties when some of the elements of the offense occur in one county and at least one element of the offense occurs in the other county. Jones v. State, 979 S.W.2d 652, 655 (Tex. Crim. App. 1998) (explaining Wood v. State, 573 S.W.2d 207, 210 (Tex. Crim. App. [Panel Op.] 1978)). When different elements of an offense are committed in different counties, the offense may be prosecuted in any county in which an element was committed. See Wood, 573 S.W.2d at 210-11. The State must prove venue by a preponderance of the evidence. Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003); see also Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005).

B. Standard of Review

In a legal-sufficiency review of a venue determination, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found, by a preponderance of the evidence, that the offense occurred in the county alleged. Duvall v. State, 189 S.W.3d 828, 830 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); Vanschoyck v. State, 189 S.W.3d 333 (Tex. App.--Texarkana 2006, pet. ref'd). A factual sufficiency review of the evidence traditionally (under the reasonable doubt standard) determines, after reviewing all the evidence in a neutral light, whether the evidence supporting the verdict is outweighed by the great weight and preponderance of the evidence or is so weak that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Here, the burden on the State is only to prove the venue facts by a preponderance of the evidence, rather than the beyond a reasonable doubt standard. Evidence sufficiently establishes venue if "from the evidence the jury may reasonably conclude that the offense was committed in the county alleged." Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964). Venue may be established by direct or circumstantial evidence. Duvall, 189 S.W.3d at 831; Sixta v. State, 875 S.W.2d 17, 18 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

C. Elements of the Offense--Delivery of a Simulated Controlled Substance

The offense is defined as follows:

(a) A person commits an offense if the person knowingly or intentionally . . . delivers a simulated controlled substance and the person:

(1) expressly represents the substance to be a controlled substance; [or]

(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance . . . .

Tex. Health & Safety Code Ann. § 482.002(a).

"Simulated controlled substance" is defined as "a substance that is purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be." Tex. Health & Safety Code Ann. § 482.001(4) (Vernon 2003). "Expressly represents," under Section 482.002(a)(1), requires the use of the specific term defined in the Controlled Substances Act, e.g., "methamphetamine," and not a slang equivalent. See Grant v. State, 822 S.W.2d 639 (Tex. Crim. App. 1992); Jenkins v. State, 820 S.W.2d 178 (Tex. Crim. App. 1991); Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). "Represents," under Section 482.002(a)(2), is further explained in Section 482.003, which provides evidentiary rules for determining whether a person has represented a simulated controlled substance to be a controlled substance in a manner that would lead a reasonable person to believe the substance was a controlled substance. See Tex. Health & Safety Code Ann. § 482.003 (Vernon 2003). The statute establishes that, in making the determination, the court:

may consider, in addition to all other logically relevant factors, whether:

(1) the simulated controlled substance was packaged in a manner normally used for the delivery of a controlled substance;

(2) the delivery or intended delivery included an exchange of or demand for property as consideration for delivery of the substance and the amount of the consideration was substantially in excess of the reasonable value of the simulated controlled substance; and

(3) the physical appearance of the finished product containing the substance was substantially identical to a controlled substance.

Tex. Health & Safety Code Ann. § 482.003(a).

Palmer was found to have delivered "by actual transfer" a substance purported to be, by express representation or in a manner that would lead a reasonable person to believe it was, methamphetamine.

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00053-CR

LARRY SAMUEL PALMER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 114th Judicial District Court

Smith County, Texas

Trial Court No. 11-2447-06

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

A Smith County jury found Larry Samuel Palmer guilty of delivery of a simulated controlled substance. See Tex. Health & Safety Code Ann. § 482.002 (Vernon 2003). The trial court assessed punishment at eighteen months' confinement in a state-jail facility and a $5,000.00 fine. The acts giving rise to the prosecution occurred in and around Troup, Texas, which is located in both Smith and Cherokee Counties. Palmer raises one issue on appeal: that the trial court was without venue, i.e., that the evidence was insufficient to show that any element of the crime of which he was convicted was committed in Smith County.

A. Venue

If there is no specific statute⁽¹⁾ governing the venue of an offense, venue is governed by the general statute, which provides that "the proper county for the prosecution of offenses is that in which the offense was committed." Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 2005). Under Article 13.18, a charged offense is committed in two counties when some of the elements of the offense occur in one county and at least one element of the offense occurs in the other county. Jones v. State, 979 S.W.2d 652, 655 (Tex. Crim. App. 1998) (explaining Wood v. State, 573 S.W.2d 207, 210 (Tex. Crim. App. [Panel Op.] 1978)). When different elements of an offense are committed in different counties, the offense may be prosecuted in any county in which an element was committed. See Wood, 573 S.W.2d at 210-11. The State must prove venue by a preponderance of the evidence. Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003); see also Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005).

B. Standard of Review

In a legal-sufficiency review of a venue determination, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found, by a preponderance of the evidence, that the offense occurred in the county alleged. Duvall v. State, 189 S.W.3d 828, 830 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); Vanschoyck v. State, 189 S.W.3d 333 (Tex. App.--Texarkana 2006, pet. ref'd). A factual sufficiency review of the evidence traditionally (under the reasonable doubt standard) determines, after reviewing all the evidence in a neutral light, whether the evidence supporting the verdict is outweighed by the great weight and preponderance of the evidence or is so weak that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Here, the burden on the State is only to prove the venue facts by a preponderance of the evidence, rather than the beyond a reasonable doubt standard. Evidence sufficiently establishes venue if "from the evidence the jury may reasonably conclude that the offense was committed in the county alleged." Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964). Venue may be established by direct or circumstantial evidence. Duvall, 189 S.W.3d at 831; Sixta v. State, 875 S.W.2d 17, 18 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

C. Elements of the Offense--Delivery of a Simulated Controlled Substance

The offense is defined as follows:

(a) A person commits an offense if the person knowingly or intentionally . . . delivers a simulated controlled substance and the person:

(1) expressly represents the substance to be a controlled substance; [or]

(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance . . . .

Tex. Health & Safety Code Ann. § 482.002(a).

"Simulated controlled substance" is defined as "a substance that is purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be." Tex. Health & Safety Code Ann. § 482.001(4) (Vernon 2003). "Expressly represents," under Section 482.002(a)(1), requires the use of the specific term defined in the Controlled Substances Act, e.g., "methamphetamine," and not a slang equivalent. See Grant v. State, 822 S.W.2d 639 (Tex. Crim. App. 1992); Jenkins v. State, 820 S.W.2d 178 (Tex. Crim. App. 1991); Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). "Represents," under Section 482.002(a)(2), is further explained in Section 482.003, which provides evidentiary rules for determining whether a person has represented a simulated controlled substance to be a controlled substance in a manner that would lead a reasonable person to believe the substance was a controlled substance. See Tex. Health & Safety Code Ann. § 482.003 (Vernon 2003). The statute establishes that, in making the determination, the court:

may consider, in addition to all other logically relevant factors, whether:

(1) the simulated controlled substance was packaged in a manner normally used for the delivery of a controlled substance;

(2) the delivery or intended delivery included an exchange of or demand for property as consideration for delivery of the substance and the amount of the consideration was substantially in excess of the reasonable value of the simulated controlled substance; and

(3) the physical appearance of the finished product containing the substance was substantially identical to a controlled substance.

Tex. Health & Safety Code Ann. § 482.003(a).

Palmer was found to have delivered "by actual transfer" a substance purported to be, by express representation or in a manner that would lead a reasonable person to believe it was, methamphetamine. The State presented evidence that the transfer, i.e., the exchange of money for substance, took place outside Troup in Cherokee County. Nonetheless, the State asserts that the representation that the substance was methamphetamine took place during negotiations for the sale at Palmer's house in the Smith County part of Troup.

Palmer asserts that the representation that the substance was methamphetamine must be made contemporaneously with the delivery, which was in Cherokee County. Palmer asserts that myriad cases require that the representation that a substance is a controlled substance be made contemporaneously with the sale or transfer of that substance. See Grant, 822 S.W.2d 639; Jenkins, 820 S.W.2d 178; Boykin, 818 S.W.2d 782; Evans v. State, 945 S.W.2d 259 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd); Holliman v. State, 692 S.W.2d 120 (Tex. App.--Waco 1985, pet. ref'd). We have reviewed Palmer's cited cases and disagree. In all these cases, to the extent the facts indicate any sense of the timing of the delivery and representation, these elements seem to have occurred at least relatively contemporaneously. But in none of these cases is the timing of the elements in issue. None of Palmer's cited cases analyzes, let alone requires, contemporaneity between the representation and the delivery.

Neither is contemporaneity required under the plain language of the statute. See Tex. Health & Safety Code Ann. § 482.002(a). We are also not persuaded by Palmer's contention that the chapter's nonexclusive evidentiary rules (see Tex. Health & Safety Code Ann. § 482.003) mandate that the representation and delivery elements be contemporaneous. While it is true that the first and third considerations (the packaging and physical appearance of the substance actually transferred) cannot be observed until actual transfer, the second consideration (exchange of or demand for property as consideration) does not require actual transfer at all. See Tex. Health & Safety Code Ann. § 482.003(a). This is consistent with the statutory definition of "delivery," which is not limited to physical transfer and "includes offering to sell a simulated controlled substance." Tex. Health & Safety Code Ann. § 482.001(2) (Vernon 2003). To interpret the statute to mean that a representation that a substance is a controlled substance may only be made contemporaneously with actual transfer of the simulated controlled substance would create, rather than resolve, an ambiguity in the statute that otherwise defines the offense in such a way as to not require actual transfer. Where a statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from the statute. Boykin, 818 S.W.2d 782. We decline to add a contemporaneity requirement to the statute.

Thus, if sufficient evidence supports that Palmer made a representation in Smith County that a simulated controlled substance was a controlled substance--either expressly or in a manner that would lead a reasonable person to believe the substance was a controlled substance--then venue in Smith County was appropriate.

D. The Evidence

Steve Henry, a detective with the Smith County Sheriff's Department, testified that on July 20, 2006, he and a confidential informant (CI) went to Palmer's house on the Smith County side of Troup, Texas. Henry remained in the car while the CI spoke with Palmer. Palmer and the CI's brief conversation was recorded, with video and audio, on a camera concealed in a button. The State played the DVD of the July 20 meeting for the jury.⁽²⁾

The State commented at the trial while the DVD was playing: "[y]ou hear the defendant stating that he could basically get an eight ball -- he can get an eight ball for [the CI], isn't that correct?" Detective Henry agreed. Henry explained that, "[w]ith individuals that are in the drug industry," an "eight ball" is a common name for "3.5 grams of methamphetamine." Henry also stated that, based on his training and experience, he reasonably believed that Palmer was going to be producing methamphetamine based on the "offer to sell that dope" on July 20.

The CI testified that on July 20, he received money from Detective Henry to try to purchase drugs from Palmer but that he was not able to purchase on that day. The CI agreed that on July 20, he and Palmer talked about setting up a deal to buy methamphetamine. The CI stated that on July 20, Palmer "said a gram was, like, 100 to 8 bucks. And he couldn't get -- could buy an eight ball for $250; and I didn't have enough money to get an eight ball that day" and Palmer did not have the "eight ball" at that time, either. The CI also said that on July 20, Palmer offered to sell him "an eight ball for 250 bucks."

Henry and the CI returned to Palmer's house in Smith County on July 25, 2006. Again, Henry stayed in the car while the CI went to the house and spoke with Palmer. A second DVD, of the meeting at Palmer's house on July 25, was played for the jury, and Henry again commented as it played.⁽³⁾

Henry related that on the July 25 DVD, the CI said, "[w]e got the money for the eight ball," and Palmer replied it would take forty-five minutes to get an eight ball. The CI said that he engaged in discussions about the methamphetamine and "ice" on July 25 at Palmer's home. The CI agreed that Palmer, at his home, represented that the substance he was going to purchase was methamphetamine by referring to it as an "eight ball" and "ice." The CI also testified that based on Palmer's representations and the CI's knowledge, the CI believed the substance they were discussing was methamphetamine. The CI also said that he is familiar "with some of the suppliers" in the Troup area and with "Palmer as being a supplier."

The DVDs shown to the jury establish that Palmer, in Smith County, first established a price of about $250.00 for an "eight ball" and later agreed to meet to provide a "ball." The jury heard testimony from the CI and Detective Henry that the term "eight ball" carries, in the drug community, a particular and common meaning: 3.5 grams of methamphetamine. The jury heard the testimony of Henry and the CI that, based on Palmer's representations in Smith County, they believed he was representing that he would deliver a controlled substance. The fact that further representations were also made in Cherokee County is of no consequence. See Wood, 573 S.W.2d at 210 (a single element can occur in several counties); Tucker v. State, 751 S.W.2d 919, 924 (Tex. App.--Fort Worth 1988, writ ref'd) (continuing transaction, in which an offense is committed across several counties raises venue in one of those counties).

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, by a preponderance of the evidence, that the representation element of the offense occurred in Smith County. Viewing all the evidence in a neutral light, we cannot say the evidence supporting venue in Smith County is outweighed by the great weight and preponderance of the evidence or is so weak that the finding of venue in Smith County is clearly wrong or manifestly unjust. The jury could reasonably conclude, by a preponderance of the evidence, that the representation element of the offense was committed in the county alleged. We overrule the point of error.

We affirm the judgment.

Bailey C. Moseley

Justice

Date Submitted: November 21, 2007

Date Decided: December 5, 2007

Do Not Publish

1. This is not a case in which the exact location within the State of Texas where the offense occurred cannot be readily identifiable, thus allowing prosecution in the county of the defendant's residence. See Tex. Code Crim. Proc. Ann. art. 13.19 (Vernon 2005). Neither is it a case where the offense occurred on, or within 400 yards of, a county line. See, e.g., Tex. Code Crim. Proc. Ann. art. 13.04 (Vernon 2005) (applicable to an "offense committed on the boundaries of two or more counties, or within four hundred yards thereof").

2. The DVD has poor audio and video quality. Nonetheless, our review of the DVD reveals that the DVD depicts a markedly different exchange than that testified to by the State's witnesses. Our review of this DVD reveals that the CI asked about "coke"; Palmer responded that the CI had contacted him about "weed." Palmer stated he did not know how much a "G" costs. The CI asked how much "an eight ball" would cost and Palmer replied, "normally costs 250. Could be 3-0. I don't know."

3. The second DVD also has poor audio and video quality and, again, our review reveals a different exchange than that testified to by the State's witnesses. In our review of the July 25 DVD, the CI states, "I'm trying to get a ball." Palmer replies, "Oh really? When do you need it?" The CI answers, "Now." Palmer states, "It'll take about 45 minutes."

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-10-00085-CR

EDUARDO GARDUNO HERNANDEZ, Appellant

On Appeal from the 123rd Judicial District Court

Panola County, Texas

Trial Court No. 2008-C-0283

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Moseley

O P I N I O N

Eduardo Garduno Hernandez was sentenced to ten years imprisonment following his conviction for aggravated kidnapping while using or exhibiting a deadly weapon. Tex. Penal Code Ann. § 20.04(b) (Vernon 2003). Hernandez argues that the evidence is legally insufficient^{^[1]} to support his conviction because the undisputed evidence demonstrates that the weapon alleged in his indictment to have been employed was a toy, which was neither used nor intended to be used as a deadly weapon. We agree with Hernandez and, therefore, modify the judgment to reflect his conviction of the lesser-included offense of kidnapping. Tex. Penal Code Ann. § 20.03 (Vernon 2003). Because of the modification, we must reverse the punishment phase of the trial and remand for a new trial on punishment.

I. Factual and Procedural History

As Angela Bush sat in her bed, working on her laptop computer beside her sleeping husband, a masked intruder stole into her bedroom and watched. When she closed the lid, thats when the gun came across the top of the computer just right in my face. And I screamed really loud. Bushs husband, who suffers from paralysis, was instantly awakened by his wifes scream and tri[ed] to sit up and get in front of her, but was helpless. The intruder threatened the terrified couple with the gun for over three hours before finally leaving, stealing $299.00 in cash, a blank check, and several pain pills from the couple. As soon as their tormenter left, Bush ran for the telephone and dialed 9-1-1, describing the intruder to the emergency operator as a male with his face painted and wearing a red bandana.

Officer Hilton Wayne Poindexter arrived at the Bush home, secured the perimeter, and began to search for the intruder by searching the county roads or the different roads in and around the residence. A man on the side of a road attracted Poindexters attention and reported sighting a male accessorized with face paint, a toboggan, red bandanas, gloves, and a gun. Poindexter found Hernandez (who admitted to possessing a gun) in this bizarre disguise. During Hernandezs arrest, Poindexter recovered from him the Bushes money, their blank check, and a realistic-looking toy gun, which bore the words Made in China on one side and Yesheng Toys on the other.

The States indictment alleged Hernandez committed aggravated kidnapping in that he

did then and there intentionally or knowingly abduct Angela Bush, by restricting the movements of said Angela Bush, without [her] consent so as to interfere substantially with her liberty by confining her with intent to prevent her liberation, by using or threatening to use deadly force, namely by displaying a pistol, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a pistol, during the commission of said offense . . . .

Hernandez claims the evidence is legally insufficient to demonstrate that he used or exhibited a deadly weapon during the commission of the offense. We agree.

II. Standard of Review

In evaluating a legal sufficiency challenge, we apply the Jackson standard as explained in Brooks.

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 319.

Here, we consider the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of aggravated kidnapping beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). Legal sufficiency is measured by the elements of the offense as defined by a hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

Under a hypothetically-correct charge in this case, the jury was required to find, beyond a reasonable doubt, that Hernandez intentionally or knowingly abduct[ed] another person and use[d] or exhibit[ed] a deadly weapon during the commission of the offense. Tex. Penal Code Ann. § 20.04(b) (Vernon 2003).

III. The Toy Gun Was Not a Deadly Weapon in this Case

It is undisputed that the gun used in the commission of the offense was not a gun but, rather, a toy.^{^[2]} Under the Texas Penal Code, a deadly weapon is (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(17) (Vernon Supp. 2010). Since this toy gun was not designed for and could not be adapted for the purpose of infliction of death or bodily injury, the State relies on subpart B of the deadly weapon definition.

Objects that are not usually considered dangerous weapons may become so, depending on the manner in which they are used during the commission of an offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). There are myriad items not designed as weaponry whichby their usethe courts of this State have deemed to have been employed as deadly weapons.^{^[3]} The State cites to testimony from Poindexter and Officer Ronnie Wesley Endsley that the toy is a hard plastic replica with sharp edges. Being hard plastic, it could really do a number on them.^{^[4]} Although light in weight, they believed the gun could be used to hit Bush about the face and eye, and concluded it was a deadly weapon capable of causing bodily injury.

However, [c]apability is evaluated based on the circumstances that existed at the time of the offense. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). The toy gun was neither used to strike Bush, nor was there any evidence suggesting either that Hernandez threatened to use or intended to use the toy in that manner. There was no testimony from either Bush or her husband that Hernandez raised the gun as if he would strike them or otherwise threatened to strike them with the gun. Bush and her husband indicated only that Hernandez pointed the gun at them as if he was going to shoot them with (what eventually turned out to be a toy) gun. Because the use and manner of intended use (i.e., pointing and threatening as if to shoot) was not a use of the toy capable of causing serious bodily injury or death, we find such evidence was legally insufficient to allow a jury to infer the toy was a deadly weapon. Cortez v. State, 732 S.W.2d 713, 715 (Tex. App.Corpus Christi 1987, no pet.) (testimony regarding use of pistol insufficient where the pistol was toy). We sustain Hernandezs point of error.

The State urges this Court to reform the trial courts judgment to reflect a conviction for kidnapping. Where, as here, the jury charge includes a lesser-included offense, we may modify a judgment of conviction to reflect conviction of the lesser-included offense if we find that the evidence is legally sufficient to support the lesser-included offense, but insufficient to support conviction of the offense for which the defendant was convicted. Herrin v. State, 125 S.W.3d 436, 44345 (Tex. Crim. App. 2002); Lackey v. State, 290 S.W.3d 912, 920 (Tex. App.Texarkana 2009, pet. refd). Kidnapping is a lesser-included offense of aggravated kidnapping. Schweinle v. State,^{^[5]} 915 S.W.2d 17, 19 (Tex. Crim. App. 1996) (per curiam); Ex parte Gutierrez, 600 S.W.2d 933, 935 (Tex. Crim. App. 1980); see Tex. Penal Code Ann. § 20.03 (Vernon Supp. 2009). We examine the evidence to determine whether it was legally sufficient to establish a conviction for kidnapping.

A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. Tex. Penal Code Ann. § 20.03(a). Abduct means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force. Tex. Penal Code Ann. § 20.01(2) (Vernon Supp. 2010). Since Bush was restrained^{^[6]} in her home, a place where she was likely to be found, in order to convict of aggravated kidnapping, the State was required to prove that Hernandez used or threatened to use deadly force, namely by displaying a pistol as charged in the indictment. Once alleged, the quoted portion of the indictment had to be proved. Curry v. State, 30 S.W.3d 394, 405 (Tex. Crim. App. 2000).

There is no evidence in the record that Hernandez actually used deadly force. On the other hand, Hernandez aimed the ersatz pistol in a manner which suggested that he was threatening to shoot. Bush was unaware that the thing being pointed at her was a toy, but truly believed the object to be a real gun; she testified that she was afraid for her life. This is evidence, which a rational jury could consider, supporting a finding that Hernandez threatened to use deadly force by displaying a pistol.^{^[7]} We find the evidence was legally sufficient to show that Hernandez restrained Bush with intent to prevent her liberation by threatening to use deadly force. With this finding, we modify the trial courts judgment to reflect the conviction of Hernandez of the lesser-included offense of kidnapping. We affirm the trial courts judgment as modified and remand for a new trial only on the issue of punishment. Tex. R. App. P. 21.9.

IV. Conclusion

We modify the trial courts judgment to reflect conviction of the lesser-included offense of kidnapping. We affirm the judgment of conviction as modified. The judgment on punishment is reversed, and we remand the case to the trial court for a new trial on punishment.

Bailey C. Moseley

Date Submitted: October 25, 2010

Date Decided: December 3, 2010

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OPINION ON REHEARING

In the above-captioned case, we modified the aggravated kidnapping conviction of Eduardo Garduno Hernandez to reflect conviction of the lesser-included offense of kidnapping and remanded the case to the trial court for a determination of the punishment for that offense.

The State of Texas has moved that we rehear the matter and confirm the conviction of Hernandez.^{^[8]} In its motion, the State points out that the ten-year sentence which Hernandez received is within the punishment range of kidnapping, a third-degree felony (which has a penalty range of imprisonment for a term of not less than two or more than ten years, plus a fine not to exceed $10,000.00). Tex. Penal Code Ann. § 20.03(c) (Vernon 2003).

Although we understand the logic employed by the State, this is an action which we cannot take. Despite the fact that the punishment previously meted out to Hernandez at trial on his conviction for aggravated kidnapping (a first-degree felony) falls within the permissible range of punishment for kidnapping (a third-degree felony), we cannot assume that the trial court would assess the same punishment on the conviction of a third-degree felony as it would on the conviction of a first-degree felony. Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.Dallas 1994, pet. refd); see Jones v. State, 300 S.W.3d 93, 101 (Tex. App.Texarkana 2009, no pet.); Garrett v. State, 161 S.W.3d 664, 672 (Tex. App.Fort Worth 2005, pet. refd).

We deny the motion for rehearing.

Date: December 29, 2010

^{^[1]}Hernandez also argues the evidence was factually insufficient to support his conviction. With Judge Cochran joining the lead opinion, authoring a concurring opinion, and Judge Womack concurring with the lead opinion and joining the concurrence, in Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at **1, 14 (Tex. Crim. App. Oct. 6, 2010) (4-1-4 decision), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The plurality and Judge Womack agreed that the Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 2010 WL 3894613, at **1, 14. Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address the defendants challenge(s) to the factual sufficiency of the evidence.

^{^[2]}All witnesses testified that the toy gun was the one used during the commission of the offense.

^{^[3]}Stanul v. State, 870 S.W.2d 329 (Tex. App.Austin 1994, pet. dismd, pet. refd [2 pets.]) (defendant used floor as deadly weapon by striking victims head against it); Lozano v. State, 860 S.W.2d 152 (Tex. App.Austin 1993, pet. refd) (defendant used lighter as deadly weapon by using it to start a fire); Enriquez v. State, 826 S.W.2d 191 (Tex. App.El Paso 1992, no pet.) (defendant used soft drink bottle as deadly weapon by striking victim with it); Escobar v. State, 799 S.W.2d 502 (Tex. App.Corpus Christi 1990, pet. refd) (baseball bat used to bludgeon victim constituted deadly weapon); Cooper v. State, 773 S.W.2d 749 (Tex. App.Corpus Christi 1989, no pet.) (defendant used hands as a deadly weapon by dropping infant to floor); Rice v. State, 771 S.W.2d 599 (Tex. App.Houston [14th Dist.] 1989, no pet.) (defendant used gasoline as deadly weapon by pouring it over victim and igniting it); Johnson v. State, 770 S.W.2d 72 (Tex. App.Texarkana 1989) (defendant used hands and feet as deadly weapons by beating and kicking victim to death), affd, 815 S.W.2d 707 (Tex. Crim. App. 1991); Roberts v. State, 766 S.W.2d 578 (Tex. App.Austin 1989, no pet.) (defendant used truck as deadly weapon in colliding with car, injuring and killing occupants); Harper v. State, 753 S.W.2d 516 (Tex. App.Houston [1st Dist.] 1988, pet. refd) (defendant used rope or cord as deadly weapon by tying it around victims neck, restricting her breathing); Shockley v. State, 747 S.W.2d 470 (Tex. App.Houston [1st Dist.] 1988, no pet.) (defendant used fabric or hands as deadly weapon by strangling victim); Cervantes v. State, 706 S.W.2d 685 (Tex. App.Houston [14th Dist.] 1986, no pet.) (defendant used board as deadly weapon by striking victim with it); Garza v. State, 695 S.W.2d 726 (Tex. App.Dallas 1985) (by placing broken metal belt buckle in his hand when striking at officer, defendant used the belt buckle as deadly weapon), affd, 725 S.W.2d 256 (Tex. Crim. App. 1987); Terry v. State, 672 S.W.2d 236 (Tex. App.Waco 1983) (defendant used plastic bag as weapon by placing it over victims head, suffocating her), revd in part on other grounds, 692 S.W.2d 496 (Tex. Crim. App. 1985).

^{^[4]}The officers also testified that Bushs husband was on blood thinner, and if hit with the gun, could endure a lot of bleeding, causing serious bodily injury or death. Because Hernandez was not indicted for commission of any crime against Bushs husband, we need not consider this evidence.

^{^[5]}At the time the Texas Court of Criminal Appeals decided the Schweinle case, the offense now known as unlawful restraint was called false imprisonment. See Schweinle, 915 S.W.2d at 19.

^{^[6]}Restrain means to restrict a persons movements without consent, so as to interfere substantially with the persons liberty, . . . by confining the person. Tex. Penal Code Ann. § 20.01(1) (Vernon Supp. 2010).

^{^[7]}See Gallagher v. State, No. 05-06-01010-CR, 2007 WL 3105642, at **12 (Tex. App.Dallas Oct. 25, 2007, no pet.) (not designated for publication) (finding defendant threatened deadly force by using a soft-pellet air pistol in a manner in which victim feared for her life). Although this unpublished case has no precedential value, we may take guidance from it as an aid in developing reasoning that may be employed. Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.Amarillo 2003, pet. refd).

^{^[8]}Although the argument seems to follow the rationale that the State seeks to maintain the finding of guilt concerning kidnapping as modified on appeal and impose a ten-year sentence for that crime, the State pleads that the conviction and sentence should be in all things confirmed.

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Larry Samuel Palmer v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-samuel-palmer-v-state-texapp-2007.

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