AFFIRM; Opinion Filed iaiiaiarv 2. 2013.
In 1iie nurt uf Appia1 .Fift1! 1itrirt tif ixa at t1a1Ia No. 05-1 1-01330-CR
DARiUS DESH AD LOCKHART, Appellant
V.
THE STATE OF TEXAS, Appellec
On Appeal from the 204 th Judicial District Court Dallas County, Texas Trial Court Cause No. Fl0-52 177 Q
MEMORANDUM OPINION Before Justices Moseley, Francis, and Lang Opinion By Justice Lang
I)arius Deshad Lockhart appeals his conviction cor aggravated kidnapping. In two issues on appeal, Lockhart argues (1) that the evidence was insufticient to prove the aggravating element of
aggravated kidnapping and (2) that the trial court erred by including a definition of reasonable doubt in the jury charge. We decide against Lockhart on both issues and affirm the trial court’s judgment.
Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEx. R. App. P. 4T4.
1. FACTUAL AND PROCEDURAL BACKGROUND
Lockhart was charged in two separate indictments with the first degree felony offense of kidnapping and the first degree felony offense of aggravated robbery. He pleaded not guilty in each ca’e. The jury Ibund Lockhart not guilty of aggravated robbery. hut guilty of aggravated kidnappine. The jury assessed punishment at 25 ears in the Institutional Division of the Texas Department of Criini nal Justice.
II. SUFFICIENCY OF THE EVH)ENCE
In his first issue, Lockhart argues there was “insufficient proof of the aggrav ating element” of his conviction for aggravating kidnapping. Lockhart refirs to the indictm ent, which stated in part
that Lockhart “did intentionally and knowingly abduct the complainant with the intent to facilitate the delendant’s flight after the attempt and commission otthe felony of robbery.” Lockhart argues his acquittal of aggravated robbery operates as an acquittal for the lesser includ ed offense of robbery. Therefore. Lockhart contends no rational jury could have found he kidnap ped the complainant with the intent to facilitate the felony of robbery.
A. Standard of Review
“Pursuant to the court of criminal appeals’s decision in Brooks v. State, we must apply the .Iackson v. Virginia standard 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.” Ilaiwood v. State, 344 S.W.3d 454, 458 (Tex. App.—Dallas 2011. pet. ref d) (citing Brooks r. State, 323 S.W.3d 893, 894—95 (Tex. Crim. App. 2010) (plurality op.); Jac’kson v. Virginia, 443 U.S. 307, 319 (1979)). Under that standard “[t]o determine whether evidence is sufficient to support a conviction, a reviewing court views all the evidence in the light most favorable to the verdict to decide whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Garcia v. State, 367 S.W.3d 683, 686 (Tex. Crim. App. 2012) (citing Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895. “This requires the reviewing court to defer to the jury’s credibility and weight determinations because the jury is the ‘sole judge’ of witnesses’ credibility and the weight to be given testimony.”Jd. at 687 (citing Jackson. 443 U.S. at 319: Brooks, 323 S.W.3d at 899). “A reviewing court detennines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” id. (citing Clayton v. State, 235 S.W.3d 772,778 (Tex. Crim. App. 2007; Hooper v. State, 214 S.W.3d 9, 16-17 (Ta. Crim. App. 2007)). “When the record supports conflicting inferences, a reviewing court must presume that the fact finder resolve d the conflicts in favor ofthe prosecution and defer to that determination.” Id. (citing Jackson, 442 U.S. at 326).”The reviewing court must give deference to ‘the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Flooper, 214 S.W.3d at 13 (quotingJaclcson, 443 U.S. at 318-19)).
“Evidence is insufficient to uphold a conviction when the record contains no eviden ce, or merely a ‘modicum’ ofeviden.ce, probative ofan element ofthe offense.” Garcia. 367 S.W.3 d at 687 (citing Jackson. 443 U.S. at 320 (“[A] ‘modicum’ of evidence [cannot] by itselfra tionally support a conviction beyond a reasonable doubt”); Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (“After giving proper deference to the factflnder’s role, we will uphold the verdict unless a rational factflnder must have had reasonable doubt as to any essential element”)). “If a reviewing court finds the evidence insufficient under this standard, it must reverse the judgm ent and enter an order ofacquittal.” Id. (citing Tibbs v. Florida,457 U.S. 31(1982)). “‘[S]ufficienc yofthe evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.” Id. (quoting Malik v. State, 953 S.W.3d 234,240 (rex. Crim. App. 1997) (en bane)).
B. Applicable Law
“The elements required to be established by the evidence in order to sustain this conviction
-3- for aggravated kidnapping are: (I) a person (2) intentionally or knowi ngly (3) abducts (4) another person with intent to facilitate the commission of the felony or the flight after the attempt or commission ofa felony.” Bowers r. State. 570 S.W.2d 929. 932 (Tex. Crim. App. 1978) (citing TEN. PENAl. CODE ANN. 20.04fo)(3) (West 2011 )).
( Application of Law to Facts
Lockhart contends the verdict of not guilty on the aggravated robbery charge rendered the evidence insufficient to uphold his conviction for aggravated kidnapping. He argues “[am acquittal of a greater offense operates as an acquittal for all lesser included offenses” and cites Stevens v. State as his only authority. In Stevens. the Court of Criminal Appeals held “when a defendant has obtain ed a reversal of a conviction for a greater offense solely on the ground that there was insufficient evidence to prove the aggravating element of that offense, the Dotible Jeopar dy Clause bars a subsequent prosecution for a lesser included offense.” Stephens v. State, 806 S.W.2d $ 12. 819 (Tex. Crim, App. 1990) (en hanc).The Court of Criminal Appeals held that when a defendant was subjected to only one trial, his right under the double jeopardy clause be to free from multiple trials for the same offense is not implicated. See Lx parte Herron, 790 S.W.2d 623. 624(Tex. Crim, App. 1990) (en banc). However, Lockhart does not argue that his conviction violate s the Doubl e Jeopardy Clause. The Stevens case is inapposite.
The record shows Daniel Felder testified Lockhart forced him to hand over the keys to Daniel’s father’s truck by pointing a gun at his chest. Daniel stated that as Lockhart entered the truck and sped off Daniel screamed at him that Daniel’s two-year-old brothe r Mark Felder was in the truck.
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AFFIRM; Opinion Filed iaiiaiarv 2. 2013.
In 1iie nurt uf Appia1 .Fift1! 1itrirt tif ixa at t1a1Ia No. 05-1 1-01330-CR
DARiUS DESH AD LOCKHART, Appellant
V.
THE STATE OF TEXAS, Appellec
On Appeal from the 204 th Judicial District Court Dallas County, Texas Trial Court Cause No. Fl0-52 177 Q
MEMORANDUM OPINION Before Justices Moseley, Francis, and Lang Opinion By Justice Lang
I)arius Deshad Lockhart appeals his conviction cor aggravated kidnapping. In two issues on appeal, Lockhart argues (1) that the evidence was insufticient to prove the aggravating element of
aggravated kidnapping and (2) that the trial court erred by including a definition of reasonable doubt in the jury charge. We decide against Lockhart on both issues and affirm the trial court’s judgment.
Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEx. R. App. P. 4T4.
1. FACTUAL AND PROCEDURAL BACKGROUND
Lockhart was charged in two separate indictments with the first degree felony offense of kidnapping and the first degree felony offense of aggravated robbery. He pleaded not guilty in each ca’e. The jury Ibund Lockhart not guilty of aggravated robbery. hut guilty of aggravated kidnappine. The jury assessed punishment at 25 ears in the Institutional Division of the Texas Department of Criini nal Justice.
II. SUFFICIENCY OF THE EVH)ENCE
In his first issue, Lockhart argues there was “insufficient proof of the aggrav ating element” of his conviction for aggravating kidnapping. Lockhart refirs to the indictm ent, which stated in part
that Lockhart “did intentionally and knowingly abduct the complainant with the intent to facilitate the delendant’s flight after the attempt and commission otthe felony of robbery.” Lockhart argues his acquittal of aggravated robbery operates as an acquittal for the lesser includ ed offense of robbery. Therefore. Lockhart contends no rational jury could have found he kidnap ped the complainant with the intent to facilitate the felony of robbery.
A. Standard of Review
“Pursuant to the court of criminal appeals’s decision in Brooks v. State, we must apply the .Iackson v. Virginia standard 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.” Ilaiwood v. State, 344 S.W.3d 454, 458 (Tex. App.—Dallas 2011. pet. ref d) (citing Brooks r. State, 323 S.W.3d 893, 894—95 (Tex. Crim. App. 2010) (plurality op.); Jac’kson v. Virginia, 443 U.S. 307, 319 (1979)). Under that standard “[t]o determine whether evidence is sufficient to support a conviction, a reviewing court views all the evidence in the light most favorable to the verdict to decide whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Garcia v. State, 367 S.W.3d 683, 686 (Tex. Crim. App. 2012) (citing Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895. “This requires the reviewing court to defer to the jury’s credibility and weight determinations because the jury is the ‘sole judge’ of witnesses’ credibility and the weight to be given testimony.”Jd. at 687 (citing Jackson. 443 U.S. at 319: Brooks, 323 S.W.3d at 899). “A reviewing court detennines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” id. (citing Clayton v. State, 235 S.W.3d 772,778 (Tex. Crim. App. 2007; Hooper v. State, 214 S.W.3d 9, 16-17 (Ta. Crim. App. 2007)). “When the record supports conflicting inferences, a reviewing court must presume that the fact finder resolve d the conflicts in favor ofthe prosecution and defer to that determination.” Id. (citing Jackson, 442 U.S. at 326).”The reviewing court must give deference to ‘the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Flooper, 214 S.W.3d at 13 (quotingJaclcson, 443 U.S. at 318-19)).
“Evidence is insufficient to uphold a conviction when the record contains no eviden ce, or merely a ‘modicum’ ofeviden.ce, probative ofan element ofthe offense.” Garcia. 367 S.W.3 d at 687 (citing Jackson. 443 U.S. at 320 (“[A] ‘modicum’ of evidence [cannot] by itselfra tionally support a conviction beyond a reasonable doubt”); Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (“After giving proper deference to the factflnder’s role, we will uphold the verdict unless a rational factflnder must have had reasonable doubt as to any essential element”)). “If a reviewing court finds the evidence insufficient under this standard, it must reverse the judgm ent and enter an order ofacquittal.” Id. (citing Tibbs v. Florida,457 U.S. 31(1982)). “‘[S]ufficienc yofthe evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case.” Id. (quoting Malik v. State, 953 S.W.3d 234,240 (rex. Crim. App. 1997) (en bane)).
B. Applicable Law
“The elements required to be established by the evidence in order to sustain this conviction
-3- for aggravated kidnapping are: (I) a person (2) intentionally or knowi ngly (3) abducts (4) another person with intent to facilitate the commission of the felony or the flight after the attempt or commission ofa felony.” Bowers r. State. 570 S.W.2d 929. 932 (Tex. Crim. App. 1978) (citing TEN. PENAl. CODE ANN. 20.04fo)(3) (West 2011 )).
( Application of Law to Facts
Lockhart contends the verdict of not guilty on the aggravated robbery charge rendered the evidence insufficient to uphold his conviction for aggravated kidnapping. He argues “[am acquittal of a greater offense operates as an acquittal for all lesser included offenses” and cites Stevens v. State as his only authority. In Stevens. the Court of Criminal Appeals held “when a defendant has obtain ed a reversal of a conviction for a greater offense solely on the ground that there was insufficient evidence to prove the aggravating element of that offense, the Dotible Jeopar dy Clause bars a subsequent prosecution for a lesser included offense.” Stephens v. State, 806 S.W.2d $ 12. 819 (Tex. Crim, App. 1990) (en hanc).The Court of Criminal Appeals held that when a defendant was subjected to only one trial, his right under the double jeopardy clause be to free from multiple trials for the same offense is not implicated. See Lx parte Herron, 790 S.W.2d 623. 624(Tex. Crim, App. 1990) (en banc). However, Lockhart does not argue that his conviction violate s the Doubl e Jeopardy Clause. The Stevens case is inapposite.
The record shows Daniel Felder testified Lockhart forced him to hand over the keys to Daniel’s father’s truck by pointing a gun at his chest. Daniel stated that as Lockhart entered the truck and sped off Daniel screamed at him that Daniel’s two-year-old brothe r Mark Felder was in the truck. The record reflects Lockhart did not attempt to stop and leave Mark in a safe place, but instead stopped to sell the truck’s rims. The officer who arrested Lockhart testifie d that when Lockhart saw the officer approach, he immediately got back in the truck and fled with Mark still in the backseat.
-4- By fiiiding Lockhart guilty of aggravating kidnapping, the fury, as the trier of tact, resolve d conflicts
in testimony. veihed the evidence, and drew reasonable interences to find sutticient evidence to
support the conviction ot aggravated kidnapping .5cc iloojn r. 2 14 SW 3d at 13: ccc also Bowers.
570 S.W.2d at 032 (citing PFNr\t 20.04(a)( )). Viewing the evidence in the light most favorable
to the verdict, we conclude a rational trier of fact could have tound the essenti al elements of
aggravated kidnapping beyond a reasonable doubt. See Garcia, 367 S.W.3d at 686. Lockhart’s first issue is decided against him.
Ill. DEflNI11ON OF ‘REASONABLE DOUBT” IN JURY CHARGE
In his second issue, Lockhart argues the trial court erred by giving a definition of reason able doubt in the jury charge. Lockhart specifically objects to the following langua ge in the charge: “[lit
is not required that the prosecution prove guilt beyond all possible doubt; it is require d that the prosecution’s proof excludes all reasonable doubt concerning the detendant’s guilt.”
A. Standard of Review & Applicable Law
“In reviewing charge error, we must first determine whether error exists.” Diuerv v. State.
225 S.W.3d 491, 504 (Tex. Crirn. App. 2007) (citing Hutch v. State, 922 S.W.2 d 166, 171 (Tex.
Crim. App. 1996); Alnianza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). “If we find
error, we must then determine whether the error caused sufficient harm to require reversal.” Id. (citing Hutch, 922 S.W.2d at 1 71-2).
The Court of Criminal Appeals has held it is the better practice not to define the term “reasonable doubt” in the jury charge. Mavs v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); PauLcon v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In 0 ‘Canas v. State, this court stated “[w]hat constitutes proof ‘beyond a reasonable doubt’ is not subject to definition by the trial court because it is up to the jurors to determine whether their doubts, if any, about the defend ant’s guilt
- 5— are reasonable.” O’( aiias v. Stale. 140 S.W.3d 695, 702 (Te App—Dallas 20031 (pet. ref’d). This court concluded the same wording Lockhart objects to did not define reasonable doubt, but “simply state[dj the legally correct proposition that the prosecutions burden is to establi sh proof beyond a reasonable doubt and not all possible doubt.” C) ‘Canas, 140 S.W.3d at 702; accord Bates v. State, 164 S.W.3d 92, 931 (Tex. App.—DaIlas 2005, no pet.); Borens v. Stale, No, 05-07- 01 516-CR, 2009 WL 998678, at *5 (Tex. App.—Dallas Apr. 1 5, 2009. no pet.) (mem. op., not designated for publication).
B. Application of Law to Facts
The instruction about which Lockhart complains does not define reasonable doubt. including it in the jury charge is not error. See 0 ‘Canas. 140 S.W.3d at 702; Bate.v 164 , S.W.3d at 93 1; Borens. 2009 WL 998678. at *5, Lockhart’s second issue is resolved agains t him.
IV. CONCLUSION
The evidence is legally sufficient to support Lockhart’s conviction. Also, the trial court did not err when it included the instruction in its jury charge. The trial court’s judgm ent is affirmed.
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d4 DOUGLAS. LANG jusiic
Do Not Publish TEx. R. App. P.47 11 l330F.U05
—6— (!_.i.ntrt tif pprtt ifI! Dtstrttt nf Lrxa tt JaI1ni JUDGMENT DARIUS DESHAD LOCKHART, Appeal from the 204 th Judicial District Court \ppel Ia nt of Dallas County, Texas. (Tr.Ct.No. F 10— 52177 Q). No. 05-1 1-01330-CR Opinion delivered by Justice Lang, Justices Moseley and Bridges participating. THE STATE OF TEXAS, AppeHee
Based on the Court’s opinion of this date, the udgment of the trial court is AFFIRi1ED.
Judgment entered January 2. 2013.
DOUGLAS/S. LANG J U STiC/