BRUCE WILLIAM MACON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed October 5, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00511-CR
No. 05-09-00512-CR
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BRUCE WILLIAM MACON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause Nos. F09-00206-TH, F09-00207-TH
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OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Myers
        Bruce William Macon appeals his convictions for unlawful restraint exposing the victims to a substantial risk of serious bodily injury. After the jury found appellant guilty, the trial court found the punishment-enhancement allegations true and sentenced appellant to forty years' imprisonment in each case. Appellant brings four issues asserting the evidence is legally and factually insufficient to support the jury's finding that appellant unlawfully restrained the victims, the trial court erred by charging the jury on a theory not alleged in the indictment, and the trial court erred by admitting recordings of the 911 telephone calls into evidence. We affirm the trial court's judgments.
BACKGROUND
        On November 29, 2008, appellant lived with his wife, Jeannette Dixon, their infant daughter, and her four-year-old son in a townhouse in Dallas. The house had burglar-bar cages in front of the front and back doors. That evening, appellant left the house, locking the burglar bars behind him, and drove away in Dixon's car. Dixon was upset that he had taken her car, and she called 911. To try to insure the officers' speedy arrival, she told the dispatcher that appellant was shooting at her.
        Dallas Police Officers Daniel Zarate and David Grubbs arrived in separate squad cars. Dixon told them her “boyfriend” had taken her car. The officers explained that because appellant lived in the house, had his own set of keys for the car, and regularly used the car, no crime had been committed. However, they agreed to look for the car. After looking for but failing to find the car, Zarate returned to the house while Grubbs typed the incident report. When Zarate got to the house, he saw the missing car in the driveway and that appellant had gotten out of the car. When appellant saw Zarate's squad car, he ran into the house, locking the burglar bars behind him but leaving the front door open. Zarate approached the house, and he asked appellant to come talk to him. Appellant said, “I'm gonna shoot all of you-all,” and he told E.M., a fourteen-year-old girl who lived with them, to close the door. By this time Grubbs had returned to the house. Zarate moved to the back door; as he approached, he heard appellant say, “Open that door and watch me shoot that motherfucker.” Zarate then heard what sounded like the racking of a weapon. Zarate called for his sergeant to come to the scene.
        Sergeant Stormy Magiera and other officers soon arrived, and Magiera began negotiations with appellant. Appellant appeared at an upstairs window with a child and said, “This is just some domestic violence. If you don't leave or if you come in here, bad things are going to happen.” Appellant later came to the door several times, and he always had with him his four-year-old stepson, whom he placed in front of him, or he held his infant daughter in his arms. Magiera asked appellant to release Dixon and the children, but he refused to release anyone from the house. Magiera and other officers asked appellant to show them his hands, which he kept hidden, and he refused to do that. He told Magiera that if the police tried to enter the house, he would kill everyone in the house. He also appeared at the door with the two children and Dixon. Appellant told Dixon to tell Magiera that she was okay, nothing was wrong, and that the police can go away. In a shaky voice, Dixon repeated what appellant told her to say. Another time when appellant came to the door, he told Magiera he would release Dixon and asked if that would be enough for the police to leave. Magiera said he should release Dixon but that the police could not then leave. Appellant opened the burglar-bar door for Dixon, and Magiera described Dixon's exit from the house: “when she came out the door-she-I mean she hauled it across that lawn. I mean, it was a full sprint. And she didn't stop running till she was three houses down with another officer.” Appellant then became angry that Magiera would not let Dixon return to the house. Magiera eventually called for the SWAT team.
        Officer Kung Seng, a member of the SWAT team, took over negotiations with appellant. However, his negotiations were no more successful than Magiera's. When appellant came to the door, he always had one of the children in front of him, and sometimes he crouched behind the child. Appellant refused to leave the house or release the children, and he threatened to hurt the children if the police did not leave. Appellant's speech toward the police was liberally laced with curses and obscenities. Eventually, the SWAT team placed a hook on the burglar bars connected to an armored personnel carrier and tore the burglar-bar door off the structure. Seng then kicked open the front door, and the SWAT team rushed into the house. They rescued the children, and they arrested appellant, who was hiding behind a sofa. The police searched the house and found a small .22 caliber pistol and a pistol-grip shotgun.
        Two of the children who were inside the house testified about what happened. Eight-year-old T.G. was at the house being babysat by Dixon, and fourteen-year-old E.M. lived there. They testified that when appellant entered the house and saw the police outside, he went upstairs and got “a big gun.” Appellant ordered everyone to go upstairs into the children's bedroom. T.G. testified that when she wanted to go to the bathroom, appellant required her to crawl across the floor so she would not be visible through the window. Dixon tried to fit a mattress through an upstairs window to the ground below to escape from the house with her children, but E.M. told her it would not be safe. Appellant later let everyone go downstairs. The younger children watched television in the living room while E.M. prepared dinner for everyone and used the computer. E.M. testified she showed the police where the guns were and that she had hidden the guns at appellant's direction.
        Dixon testified appellant never had a gun. She stated he did not curse the police and that the only thing she heard him tell the police was “you can talk to me right here.” She did not hear the police ask appellant to release the children. She said she did not run out of the house when appellant released her but walked to a police officer. She stated that she did not want her children to leave the house, and she denied trying to push a mattress out of an upstairs window. In a written statement Dixon prepared a few days after the incident, she stated appellant told the police “he wasn't coming out,” that appellant “was acting crazy that day,” and that he “wanted the kids in the house for safety reasons so the police wouldn't hurt him.”
        Appellant's sister testified she went to appellant's house on the night of the incident. Three squad cars were there when she arrived, and the police would not let her enter the house. She called appellant on her cell phone and asked him to come out of the house and resolve the situation. However, appellant was being stubborn, “which is typical for him,” and he would not leave the house. She testified that when appellant brought the children to the door, he did not put them in front of him or hold them or crouch behind them. She said the older child was playing and laughing and “he kept saying, Leave my daddy alone. You-all get out of here.” She said the children were fine and she did not hear them crying, screaming, or sounding fearful. She testified she heard appellant using profanity, but she said she did not hear him threatening to shoot or kill anyone.
SUFFICIENCY OF THE EVIDENCE
        In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his convictions. In determining the legal sufficiency of the evidence, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex. Crim. App. 2000).
        In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and ask whether the evidence demonstrates the proof of guilt is so weak or the conflicting evidence is so strong as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We set aside a verdict only when, based on some objective basis in the record, we are able to say the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We are permitted to substitute our judgment for the factfinder's when considering credibility and weight determinations, but only to a “very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We must give almost complete deference to the factfinder's decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        Section 20.02(a) of the Penal Code provides, “A person commits an offense if he intentionally or knowingly restrains another person.” Tex. Penal Code Ann. § 20.02(a) (West 2003). The offense is a third degree felony if “the actor recklessly exposes the victim to a substantial risk of serious bodily injury.” Id. § 20.02(c)(2)(A). Appellant contends the evidence is insufficient to show he “restrained” the complainants, appellant's daughter and stepson. Section 20.01 defines “restrain” as follows:
 
“Restrain” means to 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. Restraint is “without consent” if it is accomplished by:
 
 
 
(A) force, intimidation, or deception . . . .
 
Id. § 20.01(1) (West Supp. 2010).
        Appellant argues the evidence is insufficient because neither child asked to leave the house or indicated a desire to leave, and no one testified that the children wanted to leave. However, the jury could rationally conclude appellant intentionally restrained the complainants by exhibiting a “big gun,” which the jury could infer was the pistol-grip shotgun, by threatening to hurt or kill the children, and by repeatedly refusing to release the children. Cf. Jenkins v. State, 248 S.W.3d 291, 293-95 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (defendant restrained complainant by entering house brandishing gun, firing gun, and refusing police demands to release complainant).
        The evidence is both legally and factually sufficient to support appellant's convictions. We overrule appellant's first and second issues.
 
 
JURY CHARGE
 
        In his third issue, appellant contends that egregious harm was caused by the inclusion in the jury charge of a theory not alleged in the indictment. The definition of “restrain” states,
 
Restraint is “without consent” if it is accomplished by:
 
 
 
(A) force, intimidation, or deception; or
 
 
 
(B) any means, including acquiescence of the victim, if:
 
 
 
 
 
(i) the victim is a child who is less than 14 years of age or an incompetent person and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement . . . .
 
 
Tex. Penal Code Ann. § 20.01(1)(A), (B)(i) (West Supp. 2010). The indictments alleged only lack of consent accomplished by “force, intimidation, or deception.” The jury charges, in the abstract definitions, defined restraint as being without consent under both (A) and (B)(i).   See Footnote 1  The application paragraph in each charge, however, limited lack of consent to “force and intimidation and deception,” and the application paragraphs did not include the (B)(i) definition of “without consent.”   See Footnote 2  Appellant did not object to the inclusion of the inapplicable (B)(i) definition of “without consent” in the abstract definition section of the charges. The State acknowledges that charging a jury on a theory not alleged in the indictment is error.
        Because appellant did not object to the error, it is not reversible unless appellant suffered egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). For harm to be egregious, the error must be so harmful that it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). Where the application paragraph correctly instructs the jury but the abstract paragraph is erroneous, any error contained in the abstract instruction is not egregious. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Bazanes v. State, 310 S.W.3d 32, 39 (Tex. App.-Fort Worth 2010, pet. ref'd).
        In these cases, the inclusion of the paragraph (B)(i) definition of “without consent” in the abstract definition of “restrain” was superfluous. The application paragraph properly limited the definition of “without consent” to “force and intimidation and deception.” Accordingly, the error in the abstract definition was not egregious.
        We overrule appellant's third issue.
911 RECORDING
        In his fourth issue, appellant contends the trial court erred in admitting State's Exhibit 2, the 911 telephone calls leading to Zarate and Grubbs's presence at appellant's house. Appellant argues that the recordings were not admissible as contextual evidence and that their probative value was greatly outweighed by the danger of unfair prejudice.
        In the first recording, Dixon told the 911 operator that she and appellant “got into it,” he hid her car around the corner, she was running from him while he was shooting at her, she saw her car hidden around the corner while she was running from him, he had threatened to shoot up her car, he had driven away in a red Grand Marquis with a gun, and he had taken her keys and locked her and everyone else in the house. Dixon explained to the operator that locking the burglar bars prevented anyone from entering or leaving the house. On the second recording seventeen minutes later, an unidentified woman called 911 and said she had called earlier about a person in a red Cadillac who was trying to shoot somebody, and she inquired when the police would be arriving. The dispatcher told her that officers were on their way and would be there soon.
        Appellant objected that the recordings were not relevant, that they contained the extraneous offense of appellant shooting at Dixon, and their probative value was greatly outweighed by their prejudicial effect. The State told the trial court that the recordings involved the same transaction, and the court observed that the recordings were contextual evidence. The court overruled the objections and admitted the recordings, which were played for the jury.
        “Same transaction contextual evidence” is evidence reflecting the context in which a criminal act occurred. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). It is a recognition that events do not occur in a vacuum, and a jury has a right to hear what occurred immediately before and after the offense in order to realistically evaluate the evidence. Id. Extraneous offenses may be admissible as “same transaction contextual evidence” when “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction.” Prible v. State, 175 S.W.3d 724, 731-32 (Tex. Crim. App. 2005). This type of evidence results when an extraneous matter is so intertwined with the State's proof of the charged offense that avoiding reference to it would make the State's case difficult to understand or incomplete. Id. at 732. The jury is entitled to hear “all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)). The purpose of admitting extraneous offense evidence as “same transaction contextual evidence” is to place the instant offense in context. Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd).
        Even if the admission of State's Exhibit 2 was error, the error, if any, would not involve appellant's constitutional rights. Accordingly, we must disregard the error unless it affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a “substantial and injurious” effect or influence in determining the jury's verdict or when the error leaves one in grave doubt about whether it had such an effect. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). “The very process of reaching this decision is the performance of a Rule 44.2(b) harm analysis.” Llamas v. State, 12 S.W.3d 469, 471 n. 2 (Tex. Crim. App. 2000). However, “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
        Having reviewed the entire record, we conclude that State's Exhibit 2 had, at most, only a slight effect on the jury. Aside from the recordings themselves, the only testimony about the calls was Dixon's testimony that her statement to the 911 operator that appellant had been shooting at her was a lie she told because she wanted a quick police response and because she was angry at appellant for taking her car. Zarate and Grubbs testified they went to the scene to investigate a “disturbance,” and neither officer testified to any knowledge of a report that appellant had been firing a gun at Dixon. Their testimony of the conversation with Dixon did not indicate any knowledge of the contents of the 911 calls. No other witnesses testified about appellant shooting at Dixon, and it was not mentioned during voir dire or jury argument. We conclude that any error in admitting the 911 calls was harmless. We overrule appellant's fourth issue.         We affirm the trial court's judgments.
 
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090511F.U05
 
Footnote 1 Each charge stated,
 
 
Restraint is “without consent” if it is accomplished by force, intimidation, or deception; or by any means, including acquiescence of the victim, if the victim is a child less than fourteen years of age OR an incompetent person and the parent OR guardian OR person acting in loco parentis OR institution acting in loco parentis has not acquiesced in the movement or confinement.
 
The record does not disclose the reason for the varying fonts in this definition, and appellant does not assert it caused any additional harm.
Footnote 2 The application paragraphs stated,
 
 
Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about the 29th day of November A.D, 2008 in the County of Dallas and State of Texas, the defendant, Bruce William Macon, did unlawfully then and there intentionally and knowingly, by force and intimidation and deception, restrain [N.N.], hereinafter called the complainant, without complainant's consent, by restricting the movements of said complainant or by moving said complainant from one place to another or by confining said complainant, and said defendant did then and there recklessly expose said complainant to a substantial risk of serious bodily injury by barricading himself and complainant in a residence knowing the residence was surrounded by armed police officers or by using complainant as a human shield to avoid arrest, and you find that the defendant failed to prove his affirmative defense by a preponderance of the evidence, you will find the defendant guilty of unlawful restraint as charged in the indictment.