Taylor v. State

550 S.W.2d 695, 1977 Tex. Crim. App. LEXIS 1122

Opinions

OPINION

DOUGLAS, Judge.

Lynn Taylor appeals from a conviction for false imprisonment, a third degree felony under V.T.C.A., Penal Code, Section 20.-02(c).¹

He contends that the evidence is insufficient to support the conviction and there was reversible error during the prosecutor’s arguments to the jury. We overrule both contentions and affirm.

On the evening of January 25, 1975, at approximately 7:45 p.m., Richard James, the manager of a Safeway store in Amarillo, observed three men enter. The three took a “buggy” and started to shop. Around 8:45 p.m., James looked up from his desk in the office and noticed that they were still there but had split up and gone to different areas of the store. He noticed that the buggy was only partially filled and knew that they had been in the store an exceptionally long time for grocery shopping. They left the store at 9:05 p.m.

James testified that the store meat locker was required to be kept at a temperature between 30 and 38 degrees. The Health Department made periodic checks and only recently found it in compliance. He also stated that the locker door was equipped with a safety feature to prevent someone from being trapped therein, an inside release mechanism.

Gloria Currie, on duty at the checkout stand the night of the offense, testified that the three men appeared to be watching her the entire time they were in the store. One of the three kept trying to get her to go back to the freezer area. She was so uneasy she notified James. Currie stated that the three men left the store without buying anything. Their partially filled cart had been left near the frozen food section near the freezer. Two knives were on top of the cart; one had been removed from its package.

Joe McMahan, the assistant manager, testified that on the night in question he was the butcher and supervisor of the cold storage locker. His duties included checking the temperature within the locker. McMa-han stated that the temperature reading is taken from the center part of the locker and maintained at that point between 30 and 38 degrees. The coldest part of the cooler would be the concrete floor. McMa-han said that the temperature range was necessary to protect the meat yet not freeze it. The meat is kept hanging since the top of the locker is warmest and if allowed to lie on the concrete floor it would probably freeze.

Randall Bright and Monroe Davis, the complaining witnesses, were the two young men imprisoned by appellant and another in the locker. Both were employees of the store. Bright testified that appellant and another man approached him in the stock room and asked for some empty boxes. As Bright looked for empty boxes appellant pointed to a box next to the meat locker. Bright went to get the box for them. As he did, the other man grabbed him and pushed him in the meat locker. The two men then “. . . put tape around my mouth, all around my head and then told me to put out my arms and put tape around my arms, around my wrists.” Then they made him lie on the concrete floor, removed his belt and tied his feet. Davis, bound in the same manner, was lying on the concrete floor. Bright and Davis both were clad only in short sleeve shirts and pants.

Davis related the same story about appellant and his companion inquiring for empty boxes. As he tried to reach a box next to the meat locker, one of the two men grabbed him by the neck, actually choking him, and pulled him to the floor. The other started taping him. He testified that the bottom of his arms was beginning to be frostbitten. “I began to lay on my chest-hold my arms up trying to warm them up a little.” His arms were in contact with the concrete floor which he stated was very cold.

The State contends that “[b]ound and gagged as Bright and Davis were, the jury could find that they were exposed to a substantial risk of frost-bite, pneumonia, or any of the other well-known health hazards associated with near-freezing and sub-freezing temperatures hazards clearly meeting the law’s definition of serious bodily injury-”

The evidence was sufficient for the jury to find a “substantial risk of serious bodily injury.” Webster’s New International Dictionary (1917) defines “substantial” as “not seeming or imaginary; not illusive; real; true.” It is defined in Webster’s Seventh New Collegiate Dictionary (1963) as “real, true.” McMahan testified that the locker was coldest on the concrete floor. He was asked, “And, if meat was placed on the floor, would that freeze it?” He answered, “Very could, possibly, yes, sir.” It is common knowledge that human flesh will freeze. Bright’s and Davis’ escape is of no consequence. They did not escape with the help of the three men. The method by which they were bound shows appellant’s intent to leave them there for an indefinite period of time. The evidence shows that they unsuccessfully attempted to lure Gloria Currie to the same meat locker. It was near closing time and the two young men may not have been discovered. Davis testified that he was “real cold”, that he was beginning to feel frostbite in his lower arms. Likewise, it is inconsequential that appellant or his companion did not lock the door. As long as the two were inside the locker bound and tied, the three apparent robbers did not expect them to use the door. It would be unreasonable to believe that if appellant and the other two had completed their apparent mission of robbery, by locking all of the employees in the locker, they would have later released them.

The evidence is sufficient to show that when the two young men were bound and gagged and left on the freezing floor inside the locker there was a substantial risk of serious bodily injury and they were intentionally restrained.

Next, he complains of the trial court’s refusal to grant his motion for mistrial following his objection to certain remarks by the prosecutor. The remarks are as follows:

“I ask you to consider that — I ask you to consider the fact that it could have been filed in County Court as a misdemeanor. But, we brought it to the Grand Jury, and the Grand Jury, based on the evidence we brought before them, found this should be brought as a felony offense in this court.”

Following counsel’s objection and motion for mistrial, this court instructed the jury that it had previously been charged that any action taken by the grand jury was not evidence and instructed them to disregard the prosecutor’s statement. An instruction to disregard jury argument is ordinarily sufficient to cure any error. Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974); Hunnicutt v. State, 500 S.W.2d 806 (Tex.Cr.App.1973).

The judgment is affirmed.

1 . The appeal was originally abated so that counsel could be appointed to file a brief for appellant who was determined to be indigent.