JAMES THOMAS GUYMON v. The State of Texas--Appeal from 103rd District Court of Willacy County

 NUMBER 13-01-00674-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

JAMES THOMAS GUYMON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 103rd District Court of Willacy County, Texas.

 MEMORANDUM OPINION ON REMAND

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

A jury found appellant, James Thomas Guymon, guilty of the offenses of kidnapping[1] and unlawful restraint of a child.[2] Enhanced by two prior felony convictions, the trial court assessed his punishment at life imprisonment. On direct appeal, this Court affirmed the kidnapping conviction and life sentence, but vacated the unlawful restraint conviction on double jeopardy grounds. Guymon v. State, No. 13-01-674-CR, 2003 Tex. App. LEXIS 914,(Tex. App.BCorpus Christi Jan. 30, 2003), rev=d, No. PD-0465-03 (Tex. Crim. App. Jan. 12, 2005). In an unpublished opinion, the Texas Court of Criminal Appeals reversed appellant=s conviction and sentence for the offense of kidnapping because the evidence was legally insufficient and rendered a judgment of acquittal on that charge. The court of criminal appeals remanded the case to this Court to review appellant=s unlawful restraint conviction in light of its holding. Guymon, No. PD-0465-03, slip op. at 11. We now do so.

Because the parties are familiar with the facts, and they are set out at length in our original opinion and the opinion of the court of criminal appeals, we will not recite them here. See Tex. R. App. P. 47.4.

In his second issue, appellant contends the evidence is legally and factually insufficient to support his conviction of unlawful restraint of a child fourteen years of age or younger because the evidence does not prove he unlawfully restrained the child.

When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). A person commits the offense of unlawful restraint if he intentionally or knowingly restrains another person. Tex. Pen. Code Ann. ' 20.02 (Vernon 2003). The word Arestrain@ means Ato restrict a person=s movements without consent, so as to interfere substantially with the person=s liberty, by moving the person from one place to another or by confining the person.@ Tex. Pen. Code Ann. ' 20.01 (1) (Vernon 2003).

After reviewing the sum of the evidence in this case showing appellant=s intent to prevent the child=s liberation, the court of criminal appeals found, AEven if this evidence is viewed only >in the light most favorable to the verdict,= no reasonable jury could find that appellant=s act of giving a ride to a strange child who appeared to be incapacitated is sufficient to prove that appellant intended to prevent G.C.=s liberation. . . .@ Guymon, No. PD-0465-03, slip op. at 9. The court explained that A[w]hile G.C.=s request for a ride could not make any restraint that existed consensual because G.C. was a child under the age of 14 and legally incapable of consenting to restraint, it does provide evidence that appellant did not initiate contact,@ and AG.C.=s testimony tends to show that appellant did not exercise any physical restraint on G.C. other than the normal >restraint= of riding in a moving vehicle. . . .@ Id. at 10.

After reviewing the evidence in the light most favorable to the verdict, we agree with the findings of the court of criminal appeals, and conclude that no rational trier of fact could have found that appellant restricted G.C.=s movements so as to substantially interfere with G.C.=s liberty. Accordingly, we hold the evidence is legally insufficient to support appellant=s conviction for unlawful restraint. We sustain appellant=s second issue.

In his third issue, appellant asserts the trial court erred in denying his motion for mistrial based on improper jury argument by the prosecutor. In our original opinion, we found that appellant had failed to preserve error because he did not obtain an adverse ruling on his motion for mistrial. The court of criminal appeals concluded that the trial court had overruled appellant=s motion and held that we should have addressed this issue. However, because we have sustained appellant=s second issue, it is unnecessary to address this issue. See Tex. R. App. P. 47.1.

We reverse appellant=s conviction and sentence for the offense of unlawful restraint and render a judgment of acquittal of that charge.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 30th day of August, 2005.

[1] See Tex. Pen. Code Ann. ' 20.03(a) (Vernon 2003).

[2] See Tex. Pen. Code Ann. ' 20.02(a) (Vernon 2003).