Opinion issued May 13, 2004
In The
Court of Appeals
For The
First District of Texas
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NO. 01-02-01192-CR
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DONALD THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 33,580-A (Count No. 2)
MEMORANDUM OPINION
A jury found appellant, Donald Thompson, guilty of aggravated kidnapping and assessed his punishment at 20 years in prison and a $10,000 fine. See Tex. Pen. Code Ann. §§ 12.32, 20.04(b) (Vernon 2003). Finding the evidence factually sufficient to support appellant’s conviction, we affirm.
Background
The incident started one morning when the complainant, Ivan Floyd, who was also a barber, brought a customer known as “Flip” to the apartment of Jason Jarrett, a drug dealer, to buy codeine syrup. Flip ran off with the syrup without paying and could not be found despite a search. Floyd then went home. Having come to suspect Floyd of participating with Flip in the theft, Jarrett, appellant, and some other individuals brought Floyd back to Jarrett’s apartment later that day under the pretense of taking him to cut someone’s hair. Jarrett, appellant, and Floyd, entered Jarrett’s apartment, in which other individuals were present. Floyd was restrained for hours in the apartment, hit and kicked repeatedly, threatened with firearms and with torture, blindfolded, driven to a remote place in the trunk or back of a car, and shot three times.
Floyd testified that appellant bound his hands and feet; duct-taped him to a chair; discussed torture in a phone call made in Floyd’s hearing; kicked Floyd repeatedly; and untaped Floyd’s feet so that Floyd could be moved to the car’s trunk. After being blindfolded, Floyd recognized appellant’s voice twice: right after Floyd was placed in the trunk and also when appellant ordered him out of the trunk just before the shooting. Floyd also testified that appellant and others had earlier that day retrieved guns from another location before looking for Flip.
Appellant testified that he did not participate in the offense in any way; that he had not participated in getting guns that morning, did not have a gun, and did not know that a shotgun was in Jarrett’s apartment; that he tried to leave the apartment while others were attacking Floyd, but was not allowed to; that he refused to accompany the others when they drove Floyd away and instead followed them in another car; and that he confronted Jarrett later about the shooting.
Appellant was charged in a three-count indictment with attempted capital murder, aggravated kidnapping, and engaging in organized criminal activity. The jury was charged on those offenses and on the lesser-included offense of kidnapping. The jury found appellant guilty only of aggravated kidnapping. The Court of Criminal Appeals granted appellant an out-of-time appeal.
Sufficiency of the Evidence
In his sole point of error, appellant claims that the evidence was factually insufficient to support his conviction because
the weight of the credible evidence supported Appellant’s version of the facts. Ivan Floyd was in some confusion after the shooting and was unfamiliar with some of the people who were involved. He had admittedly gone to Jason Jarrett’s apartment to buy drugs. Floyd had been charged with driving while license suspended and those charges had gone away after he agreed to testify. He was simply not a credible witness. Appellant’s testimony was consistent with his earlier statement.
When determining the factual sufficiency of the evidence, we review all of the evidence neutrally. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The Court of Criminal Appeals has recently stated the standard as follows:
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, No. 539-02, slip op. at 8 (Tex. Crim. App. Apr. 21, 2004). “Under both [a] legal and factual sufficiency [review], the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony.” Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury could have believed all, some, or none of any witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Under the charge given, appellant committed aggravated kidnapping if he intentionally or knowingly abducted Floyd and used or exhibited a deadly weapon during the commission of the offense. See Tex. Pen. Code Ann. § 20.04(b). The jury was also charged on the law of parties.
The jury was entitled to believe Floyd instead of appellant, regardless of whether Floyd demonstrated any confusion after the shooting or did not know some of his attackers. See Jaggers, 125 S.W.3d at 672. A victim’s not knowing every attacker’s identity does not necessarily render the victim’s story incredible or preclude the jury from believing it. Moreover, Floyd positively identified appellant at trial as one of his attackers and testified that he had recognized appellant’s voice while Floyd was being put into and taken out of the trunk.
Additionally, Floyd’s admitted involvement in Flip’s drug purchase did not preclude the jury from nonetheless believing Floyd’s testimony concerning the elements of the offense. Defense counsel did thoroughly impeach Floyd by high-lighting numerous inconsistencies in Floyd’s trial testimony and in his prior statements. However, appellant’s testimony was not without its own inconsistencies. And the jury also heard evidence that appellant had belonged, at least at some prior time, to a gang that regularly committed crimes ranging from trespass to narcotics crimes and murder.
Finally, appellant is incorrect that charges against Floyd of driving while his license was suspended “went away” after Floyd agreed to testify. According to Floyd’s testimony, he had twice been charged with driving while his license was suspended and had served out a 15-day sentence for one of the offenses. The prosecution of the second offense was apparently still pending. For this reason, Floyd was granted use immunity in exchange for his testimony in appellant’s case. In any event, it was the jury’s prerogative to determine what effect, if any, Floyd’s charges or convictions would have on his credibility.
Simply put, Floyd’s and appellant’s inconsistencies and credibility were for the jury to sort out. See Jaggers, 125 S.W.3d at 672. We thus overrule appellant’s sole point of error and affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).