MICHAEL WADE GALLAGHER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 25, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01010-CR
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MICHAEL WADE GALLAGHER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-81706-05
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OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice FitzGerald
        A jury convicted Michael Wade Gallagher of aggravated kidnapping and assessed his punishment at seven years. Gallagher appeals, challenging the sufficiency of the evidence supporting his conviction, the trial court's refusal of his proposed jury instruction, and the State's jury argument. We affirm the trial court's judgment.
Background
        Stacie Ross was shopping for groceries at a McKinney Wal-Mart late on the evening of May 22, 2006. She left the store at approximately eleven o'clock, pushing a cart of groceries. She reached her vehicle, opened the hatch, and began to load her purchases in the car. As Ross stood behind her car, Gallagher approached her from her right side. He held a soft-pellet BB gun in his right hand and pressed it against her right side. According to Ross, Gallagher told her to “[c]ome with me.” Instead, Ross activated her vehicle's panic button and screamed loudly. Gallagher ran toward his car, dropping the gun in the parking lot. Other persons in the parking lot were alerted to the situation by Ross's screams; they wrote down Gallagher's car's license plate number and called the police. When the police arrived, they found the gun and a magazine that fit the gun where Gallagher had dropped them. The orange-red tip on Gallagher's gun that identified it as a toy gun had been blackened by a marker or paint. A warning was printed on the side of the gun: “Warning. Misuse or unsafe use may cause severe injuries or death. Sale of this product to minors is not permitted.”
        The police used the license plate number to identify the registered owner of the vehicle, and they used the registered owner's driver's license and the Wal-Mart security video to identify Gallagher as the man who had accosted Ross. Gallagher was arrested, and he gave a written statement to the police concerning his actions on the day of the incident. Gallagher claimed he had taken the pellet gun to work that day and played with it there. He further claimed that, while driving home from work, he wondered what kind of reaction he would get if he pulled the gun on someone. He stopped at the McKinney Wal-Mart store “to try what [he] was thinking.” He parked his car and went inside. He saw Ross going through the check-out line with groceries, and he followed her to her vehicle. He described the encounter this way:
 
I pulled the toy gun and said Don't move. She proceed[ed] to scream and I tried to calm her down by saying I'm sorry, The gun nots [sic] real. She continued to scream and I ran back to my car. On the way to my car I threw the gun into the shopping cart ben [sic].
 
Gallagher was charged with aggravated kidnapping. The indictment charged that he did:
 
with the intent to terrorize Stacie Ross intentionally or knowingly abduct Stacie Ross by restricting the movements of said Stacie Ross without her consent so as to interfere substantially with her liberty by confining her with the intent to prevent her liberation, by using or threatening to use deadly force, namely, a pellet pistol.
 
The case was tried to a jury, which convicted Gallagher and assessed his punishment at seven years' confinement. He appeals.
Deadly Force
        A defendant is guilty of aggravated robbery if he
 
intentionally or knowingly abducts another person with the intent to inflict bodily injury on that person, or violate or abuse that person sexually, or terrorize that person. Tex. Pen. Code Ann. § 20.04(a)(4), (5) (Vernon 2003). In this context, the defendant “abducts” a person if he restrains the other person with intent to prevent the person's liberation by using or threatening to use deadly force. Id. § 20.01(2)(B) (Vernon Supp. 2007). Each of Gallagher's five issues on appeal deals with this requirement of deadly force.
 
Sufficiency of the Evidence
        In his first issue, Gallagher contends the trial court erred by denying his motion for instructed verdict; his second issue challenges the legal sufficiency of the evidence supporting his conviction. We address these issues together because a challenge to the trial court's ruling on a motion for instructed verdict is a challenge to the legal sufficiency of the evidence. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Billy v. State, 77 S.W.3d 427, 428 (Tex. App.-Dallas 2002, pet. ref'd). Evidence is legally sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 937 S.W.2d 479, 482-83 (Tex. Crim. App. 1996). Gallagher's third issue charges the evidence is factually insufficient to support his conviction. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).         Gallagher initially argues that when approaching Ross, he used an unloaded soft-pellet air pistol in a way that made it incapable of causing deadly force. Thus, he argues, the State offered no evidence he intended to use deadly force. Gallagher's focus is too narrow here: the penal code allows for an abduction based not only on the use of deadly force but also on the threat to use deadly force. See Tex. Pen. Code § 20.01(2)(B). Gallagher argues he never expressly threatened to kill or physically harm Ross. However, Gallagher approached Ross in a parking lot late at night, pushed what she believed to be a firearm in her side, and told her to come with him. A rational juror could easily conclude this was threatening behavior. As to the degree of threat involved, it is significant that Gallagher did not take Ross's purse; instead, he ordered her to come with him. Ross believed she was going to die, and a rational juror could certainly conclude-from Gallagher's conduct-that he intended her to believe that. Finally, Gallagher's intent to threaten deadly force is evidenced by his blacking out the orange-red tip that identified the pellet gun as a toy. Again, a rational juror could have concluded Gallagher's conduct showed a plan to abduct Ross using a threat of deadly force.
        Gallagher argues that because the gun was unloaded, it was incapable of causing death or serious bodily injury. This argument has been specifically rejected by the Court of Criminal Appeals in Adame v. State, 69 S.W.3d 581 (Tex. Crim. App. 2002). In Adame, the State offered no evidence that a BB gun used in a convenience store robbery was loaded. In deciding the gun was a deadly weapon, the court concluded that whether the gun was loaded or unloaded at the time of the robbery was not significant in the analysis. Id. at 582. The court directed:
 
[I]n proving use of a deadly weapon other than a deadly weapon per se, the State need show only that the weapon used was capable of causing serious bodily injury or death in its use or intended use. Id. In this case, Gallagher's gun, which was an exhibit at trial, carried an explicit warning that misuse or unsafe use of the gun could cause severe injuries or death. We conclude the gun was capable of causing serious bodily injury or death if fired at another person; even unloaded, it was capable of threatening that level of injury. See id.
 
        Whether we consider the evidence in the light most favorable to the verdict or in a neutral light, there is ample evidence supporting the jury's findings. We overrule Gallagher's first, second, and third issues.
Jury Charge
        In Gallagher's fourth issue, he complains that the trial court refused to include in the jury's charge his proposed definition of the term “deadly force.” If a term is statutorily defined, the trial judge must submit the statutory definition in the charge to the jury. Alexander v. State, 906 S.W.2d 107, 111 (Tex. App.-Dallas 1995, no pet.). However, words that are not statutorily defined are to be given their common, ordinary, or usual meaning. Moore v. State, 82 S.W.3d 399, 408 (Tex. App.-Austin 2002, pet. ref'd). No specific instruction is required for such words in the jury charge. Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996) (no definition required for word “presence” when word not administratively or legislatively defined). Jurors are presumed to know and apply the common and ordinary meaning of words. Moore, 82 S.W.3d at 408.
        The term “deadly force” is not defined in Chapter 20 of the penal code, which does define a number of terms used in the kidnapping statutes. See Tex. Pen. Code § 20.01. Nor is the term defined in the code section devoted to defining terms for use throughout the code. See id. § 1.07 (Vernon Supp. 2007). Gallagher argued below, and argues here, for use of a definition found within the code's chapter titled Justifications Excluding Criminal Responsibility. That definition states: “'Deadly force' means force that is intended or known by the actor to cause, or in the manner of its use is capable of causing, death or serious bodily injury.” Id. § 9.01(3) (Vernon 2003). Gallagher argues this definition properly stresses the intent of the actor and ignores the perception of the victim. However, within the penal code, this definition is limited to Chapter 9. See id. § 9.01 (introducing enumerated definitions, including deadly force, by “In this chapter:”). Thus, the trial court had no statutory basis for narrowing the jury's understanding of deadly force to the formulation within Chapter 9. The Court of Criminal Appeals has come to the same conclusion. See Phillips v. State, 597 S.W.2d 929, 934 (Tex. Crim. App. 1980). We conclude the trial court's refusal to submit the requested definition was not error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Thus, we overrule Gallagher's fourth issue.
Jury Argument
        Finally, in his fifth issue Gallagher complains the trial court erroneously overruled his objection to a purported misstatement of the law during the State's closing argument. Again, the issue is deadly force. Gallagher objected after the prosecutor stated:
 
Now, I anticipate that [counsel for Gallagher] is going to come up here and he's going to say, look, it was a pellet gun. That's not deadly force. That's not actual deadly force. And that's true. If the gun was actually unloaded, that's not actual deadly force. But what matters here - what matters is how Stacie Ross perceived this situation.
 
Gallagher complained this argument misstated the law, repeating his argument based on the Mason case that deadly force is properly determined by the intent of the actor rather than the perception of the victim. The trial court overruled the objection. We review that decision for an abuse of discretion. Mendiola v. State, 924 S.W.2d 157, 164 (Tex. App.-Corpus Christi 1995, pet. ref'd).
        Initially, we question whether Gallagher preserved this complaint for appeal. After the trial court overruled the objection, the prosecutor went on at some length explaining why the victim's perception of the threat facing her was critical to the deadly force issue, but Gallagher did not raise another objection. “The defendant must continue to object each time the impermissible argument is made.” Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.-Fort Worth 2002, no pet.) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). However, regardless of the preservation issue, we would find no error here. We have already concluded that Gallagher's narrow view of deadly force was based on a definition that was not properly applied in this case. The prosecutor's argument was not a misstatement of the law, so the trial court did not abuse its discretion in overruling Gallagher's objection on that ground. Gallagher's fifth issue is not well taken.
Conclusion
        We have decided each of Gallagher's issues against him. Accordingly, we affirm the judgment of the trial court
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
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Tex. R. App. P. 47
061010F.U05