MICHAEL SHANE WALKER v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

NUMBER 13-01-568-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

MICHAEL SHANE WALKER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court

of Victoria County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Castillo

Appellant, Michael Shane Walker, was charged with the felony offense of aggravated kidnapping.[1] Walker was found guilty by a jury and sentenced to twenty years imprisonment. In his sole issue presented, Walker contends that the trial court erred in holding the evidence legally sufficient to prove the abduction element of aggravated kidnapping. We affirm.

FACTS

At around 4:00 on the afternoon of December 29, 2000, a mentally handicapped eleven-year-old boy, F.S., went with his father and sister to Crescent Valley, between Bloomington and Victoria, where they had a trailer and kept horses. F.S., a friendly boy, would go with people if he thought they were nice people. The boy stayed in the trailer to watch television while his sister and father worked to repair the water well. About twenty to thirty minutes after they began working on the well, F.S.=s father and sister heard a loud Ahitting or banging@ noise coming from the trailer and believed it was F.S. Abumping a door back or something.@ After approximately thirty more minutes, the two started looking for F.S., because the well was fixed and his medicine was overdue.[2] F.S. was not in the trailer, and so they began looking for him outside and calling him by his nickname. F.S.=s father thought he heard F.S. say, AHere I am, Daddy@ but his daughter did not hear it. He was unable to determine where the voice had come from, and so he concluded that perhaps he had imagined it.

Unable to find his son, F.S.=s father contacted the sheriff=s department and was advised that F.S. was at the hospital emergency room. F.S. had been found in a shed behind the second house away from the trailer. The resident, Joyce Matchett, was not known to the family. F.S. told his father that appellant appeared at the trailer door asking for John, who had previously worked on the property. F.S. went with the man to take him to John. The man lead F.S. away and over toward Matchett=s house. The man asked F.S., AYou want to [engage in sexual intercourse]?@

F.S.=s father did not give permission for his son to be taken to the shed. Previously, F.S. Anever left@ the trailer and Anever went out the gate@ unless his father was holding his hand. He would wait until his father held his hand to walk him to the gate of the property because his father was afraid he might run out onto the road. Two gates on the property were locked, one with a lock and key, the other with a wooden latch too high for F.S. to reach. F.S. could not climb over the driveway gate because it had barbed wire on it.

Joyce Matchett, a corrections officer with the Texas Department of Criminal Justice, lived with appellant until early December 2000 in the house in front of the shed where F.S. was found. After an argument on December 29, 2000, she drove appellant to his home in Bloomington. Upon returning home, she decided to put appellant=s things in a box Ain the event he came back@ because he needed to work the next day, but she did not want him at her house any more. She put his clothes and snack foods in the box and placed the box on her front porch. Appellant pulled into her driveway in a pickup truck and knocked on her front door. When Matchett opened the door, she noticed appellant was on the porch and a child she did not know was behind him at the bottom of a ramp leading up to the porch. The child was eating one of the fruit pies she had placed in the box for appellant. When Matchett asked about the child and about his parents, appellant responded that Ashe@ was slow and Ashe@ was old. Matchett shut the door and told appellant she did not want to see him anymore. Later, she heard some yelling and looked out the window but did not see appellant or the child anymore. She opened up the front door and saw F.S.=s father calling out a name, which she thought was a horse=s name. She did not connect the name with the child because she did not know that the man had any children. After that, she heard noise in her back yard and saw things being thrown out of the shed. She assumed it was appellant acting out of anger toward her. Later, she went to the back yard through her back door because the noise was continuing and items were still being thrown from the shed. She explained that she had to walk down some stairs, go through a door, and turn around in order to see into the shed. She described seeing a little boy standing there. He had his shirt and boots on, but did not have his pants on. His underwear was down around one ankle. Appellant Awas standing there with his hand above his head and he had struck the child.@ Appellant struck the child once in her presence. Appellant said, AHe=s got a dick@ several times, and the child, bloodied[3], Ajust stood there@ and said he Awas sorry@ a couple of times.

Matchett called 911 and kept telling appellant to Aget away from the child@ and Atried to get the child away@ from appellant, but, at one point, appellant came toward her and threw a stroller out of the shed. She kept telling the child to get away from appellant, and F.S. ultimately walked into her house with appellant following. She told appellant to leave but he did not; he tried to wash the blood off the child. The child kept apologizing.

A criminal trespass warning had been given to appellant in early December, advising him that Afurther entry onto the property was illegal.@ Matchett had reported then to law enforcement that she did not want him at her residence and requested that he be issued the warning.

F.S. sustained a bite to his cheek, a laceration to his finger, scratches to his face and head, large abrasions to his left upper hip and thigh, bleeding from his nose and mouth, and a Asubstantial@ blow to the back of his head. He told the emergency medical technician attending him that Asomebody took him into a truck and took him to a shed@ and Akept hitting@ him.

At trial, the sole witness for the defense testified that, at about 2:00 p.m. on the same day, he gave appellant a ride to his girlfriend=s house. When he approached, a little boy was on the side of the road throwing rocks at his truck. While appellant was on the porch of his girlfriend=s house, the little boy was standing next to him. The witness believed the child belonged to the girlfriend, because he walked up to the door.

STANDARD OF REVIEW

Walker=s issue questions the legal sufficiency of the evidence. When reviewing legal insufficiency claims, we view the evidence in the light most favorable to the conviction and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). If the fact finder=s conclusion is warranted by the combined and cumulative force of all the incriminating circumstances, then the evidence is sufficient. Flores v. State, 551 S.W.2d 364, 367 (Tex. Crim. App. 1977).

ANALYSIS

Walker contends the trial court erred in finding him guilty of aggravated kidnapping because the evidence was legally insufficient to prove he abducted the child. A person is guilty of aggravated kidnapping if he Aintentionally or knowingly abducts another person with the intent to . . . violate or abuse him sexually.@ Tex. Pen. Code Ann. ' 20.04(a)(4) (Vernon Supp. 2002). The term Aabduct@ means Ato restrain a person with intent to prevent his liberation by . . . secreting or holding him in a place where he is not likely to be found.@ Tex. Pen. Code Ann. ' 20.01(2)(A) (Vernon Supp. 2002). The term Arestrain@ means:

to restrict a person=s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. . . . Restraint is Awithout consent@ if it is accomplished by any means, including acquiescence of the victim, if he is a child 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. Pen. Code Ann. ' 20.01(1)(B) (Vernon Supp. 2002).

Within the meaning of the term Aabduct,@ the phrase Asecreting or holding him in a place where he is not likely to be found@ does not modify the meaning of the term Arestrain.@ Brimage v. State, 918 S.W.2d 466, 475 (Tex. Crim. App. 1994, reh=g granted, overruled on other grounds); see also Mason v. State, 905 S.W.2d 571, 575 (Tex. Crim. App. 1995) (holding that Asecretion . . . (is) part of the mens rea of kidnapping, not the actus reus@). This phrase illustrates one possibility of how the mens rea requirement of intent can be satisfied. Brimage, 918 S.W.2d at 475. When restraint is established, a person is guilty of aggravated kidnapping if there is evidence that he intended to prevent the victim=s liberation and that he intended to do so by secretion. Mason, 905 S.W.2d at 575.

Restraint

Walker contends that there is no evidence suggesting he restrained the child because there is no evidence he transported the child to the shed or held him there. However, because the child was under the age of fourteen, Walker need only have restricted the child=s movement by Aany means, including acquiescence of the victim,@ in order for his actions to constitute restraint, provided that the child=s parents did not consent or acquiesce to Walker=s actions.[4] Tex. Pen. Code Ann. '20.01(1)(B)(i)(Vernon Supp. 2002). Restraint exists even if the child merely followed Walker into the shed. See id.

Several factors in this case support the conclusion that Walker walked with the child to the shed: (1) the child and he were in front of Matchett=s house not long before they were found together in the shed behind the house; (2) as Walker=s clothes were left outside the house readily accessible to him, the jury could reasonably conclude he had no reason to be behind the house in the shed and no reason to be in the shed with the child;[5] (3) according to the child=s father, the child later said Walker had asked the child for sexual favors; and (4) the child told a medical technician that someone had taken him into a truck and into a shed. A rational juror could conclude the evidence established restraint.

We note that Walker=s argument on appeal relies heavily on the Fourteenth Court of Appeal=s decision in Hines v. State, 40 S.W.3d 705 (Tex. App.BHouston [14th Dist.] 2001), rev=d, 75 S.W.3d 444 (Tex. Crim. App. 2002). The court of appeals in Hines stated that neither temporary confinement nor slight restraint constitute the required substantial interference element of restraint. Id. at 713-14. However, the Texas Court of Criminal Appeals recently reversed the court of appeals decision. Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. May 22, 2002) (holding that to interfere substantially with a victim, one need not move the victim a certain distance or hold him a certain amount of time). The court of criminal appeal=s decision in Hines negates a central pillar in Walker=s argument and further supports the conclusion that Walker satisfied the physical requirement for aggravated kidnapping.

Intent to prevent liberation by secretion

Aggravated kidnapping requires a person to Aintend to prevent (the victim=s) liberation by . . . secreting or holding him in a place where he is not likely to be found.@ Tex. Pen. Code Ann. '20.01(2)(A)(Vernon Supp. 2002); Mason, 905 S.W.2d at 575. Considering all of the evidence in this case, we find that it establishes legally sufficient evidence of this intent. After asking the child for sexual favors, Walker was found inside a shed with the semi-nude child. Under notice of criminal trespass, Walker had no lawful business in the shed with or without the child. While in the shed, Walker was seen striking the child who was injured and bleeding. In addition, when Matchett tried to retrieve the child from the shed, Walker threw a stroller to keep her away. From the evidence, a rational juror could infer the requisite intent to prevent liberation.

The evidence before the jury also showed that the these events occurred in a shed where the victim was not likely to be found. Matchett was unknown to the child=s family. The property on which the shed was located was the second residence away from F.S.=s family=s property. The shed was out of immediate sight in a back yard in which F.S. did not belong with or without Walker. After looking for F.S. around the area, his father and sister could not find him. A juror could have found from this circumstantial evidence that Walker intended to prevent the child=s liberation by secreting him in a place he was not likely to be found. Thus, a rational trier of fact could conclude beyond a reasonable doubt that Walker possessed the necessary state of mind for aggravated kidnapping.

Viewing the evidence in the light most favorable to the conviction, a reasonable jury could have found the elements of restraint and abduction beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Therefore, the evidence is legally sufficient to support the verdict, and Walker=s sole issue is overruled.

CONCLUSION

Accordingly, the trial court=s judgment is affirmed.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P.47.3(b).

Opinion delivered and filed

this 8th day of August, 2002.

[1] Tex. Pen. Code Ann. '20.04(a)(4) (Vernon Supp. 2002).

[2]F.S. takes Ritalin and when the medication wears off, he becomes nervous and disoriented.

[3] F.S. had blood on Ahis face, head and hands.@

[4]There is no dispute that the child=s parent did not acquiesce to the alleged restraining of the child.

[5]One investigating officer testified that the shed was full of Ajunk.@