Robert Drew Stephenson v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NOS. 2-07-034-CR
2-07-035-CR
2-07-036-CR

ROBERT DREW STEPHENSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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Appellant Robert Drew Stephenson appeals his convictions for retaliation,

aggravated kidnapping, and aggravated assault. We affirm.

Introduction

Appellant’s ex-girlfriend, Lisa Cleveland, claimed that appellant abducted

her on March 5, 2006, and confined her until she escaped on March 24, 2006.

1
… See T EX. R. A PP. P. 47.4.
During the course of the abduction, appellant burned Cleveland on the back

with a torch and locked her in his grandmother’s old trunk. Although the pair

left appellant’s house on several occasions, Cleveland did not seek help or

escape because of appellant’s threats.

Following a three-day trial, a jury convicted appellant of retaliation,

aggravated kidnapping, and aggravated assault, and it set punishment at ten

years’, life, and twenty years’ imprisonment, respectively. The trial court

sentenced appellant in accordance with the jury’s verdict and ordered the

sentences to run concurrently.

Motion to Withdraw

In his first issue, appellant contends that the trial court erred by denying

his trial counsel’s motion to withdraw and refusing to appoint different counsel.

The right to counsel afforded an indigent defendant by the Sixth

Amendment may not be manipulated to obstruct the orderly procedure in the

courts or to interfere with the fair administration of justice.2 A defendant does

not have the right to his own choice of appointed counsel, but there are

circumstances in which a defendant may be entitled to a change of counsel. 3

2
… See Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987).
3
… Garner v. State, 864 S.W.2d 92, 98 (Tex. App.—Houston [1st Dist.]
1993, pet. ref’d).

2
A defendant must bring the matter to the trial court’s attention and must carry

the burden of proving he is entitled to new counsel.4 We review a trial court’s

denial of an attorney’s motion to withdraw for an abuse of discretion, assessing

the ruling in light of the information before the trial court at the time.5

When a possible conflict of interest is brought to the trial court’s

attention, the court must take adequate steps to ascertain whether the risk of

the conflict is too remote to warrant remedial action.6 A conclusory allegation

of a conflict of interest, however, has been held to be insufficient to carry the

defendant’s burden. 7

4
… Malcolm v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.]
1982); Webb v. State, 533 S.W.2d 780, 784 n.3 (Tex. Crim. App. 1976).
5
… King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000);
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Williams v.
State, 154 S.W.3d 800, 802 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref’d).
6
… Holloway v. Arkansas, 435 U.S. 475, 484–87, 98 S. Ct. 1173,
1178–80 (1978) (holding that trial court erred in not investigating counsel’s
assertion of conflict of interest based on multiple representation); Lerma v.
State, 679 S.W.2d 488, 492–93, 497 (Tex. Crim. App. [Panel Op.] 1982) (op.
and op. on reh’g) (presuming conflict of interest and harm, and reversing and
remanding for new trial, where trial court knew or should have known of
potential conflict of interest but failed to hold hearing); see also Dunn v. State,
819 S.W.2d 510, 519 (Tex. Crim. App. 1991) (declining to limit rule to
conflicts of interest based on representation of co-defendants), cert. denied,
506 U.S. 834 (1992).
7
… See Calloway v. State, 699 S.W.2d 824, 830–31 (Tex. Crim. App.
1985) (finding no error where trial counsel did not elaborate on his claim of

3
 Appellant’s trial counsel filed a motion to withdraw on December 11,

2006, citing a conflict of interest with appellant.8 The trial court heard the

motion on January 8, 2007, three weeks before trial. At the brief hearing, trial

counsel stated only,

In each of these file numbers, I have heretofore filed a motion
to withdraw stating that a conflict of interest has arisen between
myself and [appellant].

I would state for the record that I am constrained in what I
can explain to the Court about this. There are certain mandates
placed on me as a private attorney which restrict the amount of
information which I can provide the Court at this time. I would just
ask the Court to understand that I seriously believe there is a
conflict of interest and I do not see how I can continue to represent
[appellant].9

conflict of interest); Thompson v. State, 94 S.W.3d 11, 20–22 (Tex.
App.—Houston [14th Dist.] 2002, pet. ref’d) (holding no error where attorney
stated conflict arose from representation of another private client but refused
to give details); Harrell v. State, No. 12-00-00356-CR, 2002 WL 31656213,
at *3 (Tex. App.—Tyler Nov. 26, 2002, pet. ref’d) (not designated for
publication) (holding trial court was not obligated to conduct further inquiry
following mere assertion of a conflict of interest); Frazier v. State, 15 S.W.3d
263, 265–66 (Tex. App.—Waco 2000, no pet.) (finding no abuse of discretion
to deny post-conviction motion to withdraw that alleged conflict of interest
where trial counsel did not offer any specific facts).
8
… Appellant also filed several pro se documents complaining of his trial
counsel. On December 4, 7, and 11, 2006, appellant filed pro se declarations
of conflict between attorney and client. On December 7, 2006, he filed a
motion to request appointed counsel. On December 7, 2006, and January 29,
2007, appellant filed handwritten letters complaining of trial counsel.
9
… Appellant did not testify at the hearing but the trial court noted he
“[shook] his head in the negative” after his attorney rested.

4
The trial court denied the motion without inquiry or explanation.

Here, trial counsel did not elaborate on the alleged conflict of interest. 10

Under the facts of this case, therefore, we hold that the trial court did not

abuse its discretion by summarily denying trial counsel’s motion to withdraw.11

We overrule appellant’s first issue.

Double Jeopardy

In his third and fourth issues, appellant argues that his Fifth Amendment

protection against double jeopardy was violated because his aggravated assault

conviction is a lesser included offense of both his aggravated kidnapping and

retaliation convictions. Appellant concedes that he did not raise a double

jeopardy objection in the trial court.

Appellant has the burden to “preserve, in some fashion,” a double

jeopardy objection at or before the time the charge is submitted to the jury.12

Because of the fundamental nature of double jeopardy, however, a double

10
… One of appellant’s handwritten letters to the trial court (dated
December 7, 2006) stated that Cleveland hired his trial counsel’s law firm to
defend her common law husband in another criminal matter. On appeal,
however, appellant concedes that there is no indication that the trial court was
aware of this document on the January 8 hearing.
11
… See Calloway, 699 S.W.2d at 830–31; Thompson, 94 S.W.3d at
20–22; Harrell, 2002 WL 31656213, at *3; Frazier, 15 S.W.3d at 265–66.
12
… Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000).

5
jeopardy claim may be raised for the first time on appeal when “the undisputed

facts show that the double jeopardy violation is clearly apparent on the face of

the record and when enforcement of usual rules of procedural default serves no

legitimate state interests.” 13 For the reasons discussed below, we hold that the

alleged double jeopardy violations are not clearly apparent on the face of the

record.

Appellant’s double jeopardy complaints allege multiple punishments for

the same offense.14 A multiple punishment double jeopardy violation is clearly

apparent on the face of the record when the record affirmatively shows multiple

punishments resulting from the commission of a single act that violated two

separate penal statutes, one of which is, on its face, subsumed in the other.15

To determine whether two convictions impose multiple punishments

under the double jeopardy clause, we apply the “same elements” test

articulated in Blockburger v. United States.16 This test “inquires whether each

13
… Id. at 643.
14
… See Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).

15
… See Perez v. State, No. 02-06-00225-CR, 2007 WL 2744914, at *6
(Tex. App.—Fort Worth Sept. 20, 2007, pet. ref’d) (mem. op., not designated
for publication).
16
… Langs, 183 S.W.3d at 685 (citing Blockburger v. United States, 284
U.S. 299, 52 S. Ct. 180 (1932)); see also Garrison v. State, Nos. 02-04-

6
offense contains an element not contained in the other; if not, they are the

‘same offen[s]e’ and double jeopardy bars additional punishment and successive

prosecution.” 17 The Texas Court of Criminal Appeals has held that, under

Blockburger, we are to consider both the statutory elements and any additional

nonstatutory allegations found in the charging instruments.18

We turn first to appellant’s double jeopardy claim based on the

aggravated kidnapping and aggravated assault convictions. The face of the

record shows that appellant was indicted for aggravated kidnapping as follows:

[Appellant], in the County of Tarrant and State [of Texas], on or
about the 24th day of March 2006, did with the intent to inflict
bodily injury on Lisa Cleveland or violate or abuse Lisa Cleveland
sexually or terrorize Lisa Cleveland intentionally or knowingly
abduct Lisa Cleveland by restraining Lisa Cleveland without consent
by moving Lisa Cleveland from one place to another or confining
Lisa Cleveland with the intent to prevent the liberation of Lisa
Cleveland by secreting or holding Lisa Cleveland in a place Lisa
Cleveland was not likely to be found or using or threatening to use
deadly force, namely burning Lisa Cleveland with a deadly weapon,
to wit: a torch, that in the manner of its use or intended use was
capable of causing death or serious bodily injury.

00450-CR, 02-04-00451-CR, 2005 WL 1594258, at *6 (Tex. App.—Fort
Worth July 7, 2005, pet. ref’d) (not designated for publication) (applying
Blockburger to determine whether error was clearly apparent on face of the
record).
17
… United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856
(1993).
18
… See Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994).

7
The jury charge on aggravated kidnapping tracked the indictment.

The indictment for aggravated assault stated,

[Appellant], in the County of Tarrant and State [of Texas], on or
about the 24th day of March 2006, did intentionally or knowingly
cause bodily injury to Lisa Cleveland by burning Lisa Cleveland with
a torch and [appellant] did use or exhibit a deadly weapon during
the commission of the assault, to-wit: a torch, that in the manner
of its use or intended use was capable of causing death or serious
bodily injury.

The jury charge on aggravated assault also tracked the indictment.

A close comparison of the two charged offenses shows that they are

based not on the commission of a single act, but rather on different acts that

include a common element. The aggravated kidnapping charge required the

State to prove not only that appellant abducted Cleveland, but also that he did

so with the intent to inflict bodily injury on her, violate her, abuse her sexually,

or terrorize her; or that he used or exhibited a deadly weapon.19 To prove that

appellant committed aggravated assault, as charged, it was necessary for the

State to prove that appellant intentionally or knowingly caused bodily injury to

Cleveland by using or exhibiting a deadly weapon.20 Therefore, no double

jeopardy violation clearly appears on the face of the record in this case because

19
… See T EX. P ENAL C ODE A NN. § 20.04(a)(4)–(5), (b) (Vernon 2003).
20
… See id. §§ 22.01, 22.02(a)(2) (Vernon 2003 & Supp. 2007).

8
the record does not affirmatively show that the punishments for aggravated

kidnapping and aggravated assault resulted from the commission of a single act.

We turn next to appellant’s argument that his double jeopardy rights were

violated by his convictions for both aggravated assault and retaliation. The

offense of retaliation required the State to prove that appellant intentionally or

knowingly harmed Cleveland by an unlawful act (burning her with a torch) in

retaliation for or on account of the service or status of Cleveland as a person

who has reported the occurrence of a crime. 21 The offense of aggravated

assault, on the other hand, required the State to prove that appellant

intentionally or knowingly caused bodily injury to Cleveland and used or

exhibited a deadly weapon (a torch) during the commission of the assault.22

Although both offenses are based on the commission of a single

act—burning Cleveland with a torch— the State was required to prove one or

more different elements to obtain a conviction for each offense. Retaliation

required the State to prove that appellant harmed Cleveland in retaliation for or

on account of reporting a crime, whereas aggravated assault required the State

21
… See id. § 36.06(a)(1)(B) (Vernon 2003 & Supp. 2007).
22
… See id. §§ 22.01(a)(1), 22.02(a)(2).

9
to prove the torch was a deadly weapon.23 Thus, a double jeopardy violation

does not clearly appear on the face of the record because the record does not

affirmatively show that the offense of aggravated assault is subsumed within

the offense of retaliation.24

Accordingly, because appellant’s alleged double jeopardy violations are

not clearly apparent on the face of the record, we cannot address them. We

overrule appellant’s third and fourth issues.

Improper Argument

23
… See Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006)
(holding that if the State, in proving the elements of one charged offense, also
necessarily proves another charged offense, then that other offense is a lesser
included offense and multiple punishments are barred); Landry v. State, 227
S.W.3d 380, 382 (Tex. App.—Texarkana 2007, no pet.) (holding that, where
State did not allege use of a deadly weapon in capital murder indictment,
aggravated assault by the use or exhibition of a deadly weapon contained an
additional element and was, therefore, not a lesser included offense of capital
murder as alleged); Rodriguez v. State, No. 04-04-00230-CR, 2005 WL
899963, at *2 (Tex. App.—San Antonio Apr. 20, 2005, pet. ref’d) (mem. op.,
not designated for publication) (“Proof of the use or exhibition of a deadly
weapon is an essential element of the offense of aggravated assault as it was
charged in the indictment [under penal code section 22.02(a)(2)].”).
24
… See T EX. P ENAL C ODE A NN. §§ 22.01(a)(1), 22.02(a)(2),
36.06(a)(1)(B); cf. Jacob v. State, 892 S.W.2d 905, 909 (Tex. Crim. App.
1995) (holding that “because evidence showing a completed aggravated assault
is not part of the facts legally required to show burglary with intent to commit
aggravated assault . . . aggravated assault is not a lesser included offense of
burglary under Section 30.02(a)(1)”).

10
 In his fifth issue, appellant argues that the prosecutor struck at him over

the shoulders of his counsel in the State’s closing argument. To preserve a

complaint for our review, a party must have presented to the trial court a timely

request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or

motion.25 Further, the trial court must have ruled on the request, objection, or

motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. 26

Appellant concedes that he did not preserve error as to the allegedly

improper comment. We, therefore, overrule his fifth issue.27

Ineffective Assistance of Counsel

In his second and sixth issues, appellant argues that his trial counsel

rendered ineffective assistance by inadequately presenting the motion to

withdraw and failing to preserve his double jeopardy and improper closing

argument complaints.

25
… T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
26
… T EX. R. A PP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341
(Tex. Crim. App. 2004).
27
… See Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App.
2004) (overruling appellant’s improper argument point where appellant failed
to preserve error).

11
 To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.28 Review of counsel’s representation is highly deferential, and

the reviewing court indulges a strong presumption that counsel’s conduct fell

within a wide range of reasonable representation.29

A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim.30 In the majority of

cases, the record on direct appeal is undeveloped and cannot adequately reflect

the motives behind trial counsel’s actions. 31 To overcome the presumption of

reasonable professional assistance, any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

28
… Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
29
… See Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.
30
… Thompson, 9 S.W.3d at 813–14.
31
… Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

12
alleged ineffectiveness.32 It is not appropriate for an appellate court simply to

infer ineffective assistance based upon unclear portions of the record. 33

Regarding trial counsel’s performance in presenting the motion to

withdraw, the record does not contain counsel’s reasons for failing to elaborate

on the alleged conflict of interest or for failing to call appellant to allow him to

elaborate. It appears that trial counsel was guarded in his explanation to the

trial court because he believed professional ethical rules prevented him from

discussing the possible conflict of interest in greater detail.

Trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective even where the incident

reasonably raises questions as to certain trial strategy decisions. 34 Here, the

record suggests that trial counsel apprised the trial court, both in writing and

orally, of a possible conflict of interest, while also attempting to honor ethical

obligations. In the absence of evidence of counsel’s reasoning, the record is

32
… Id. (quoting Thompson, 9 S.W.3d at 813).
33
… Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
34
… See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App.
2003); Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

13
insufficient to overcome the presumption that trial counsel’s conduct falls

within the wide range of professional, competent assistance. 35

Appellant next argues trial counsel was ineffective in failing to preserve

his double jeopardy arguments. While in some cases a “single egregious error”

may constitute ineffective assistance of counsel,36 an isolated failure to object

generally does not constitute ineffective assistance. 37 Again, the record is

silent on trial counsel’s reasons for not objecting to the charge based on double

jeopardy. Trial counsel may have considered the charge and concluded that

double jeopardy was not violated, and, as we have already determined, a double

jeopardy violation is not clearly apparent on the face of the record. Or trial

counsel may have decided not to object for reasons of trial strategy. We hold

that appellant failed to rebut the presumption that counsel acted reasonably.38

35
… See Freeman v. State, 125 S.W.3d 505, 506–07 (Tex. Crim. App.
2003); Rylander, 101 S.W .3d at 110–11; Bone, 77 S.W.3d at 836–37;
Thompson, 9 S.W.3d at 814.
36
… E.g., Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005)
(holding that record was sufficient to allow decision on merits and that counsel
rendered ineffective assistance by failing to object to prosecutor’s misstatement
of the law).
37
… See Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App.
2004); Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
38
… See Thompson, 9 S.W.3d at 814.

14
 Finally, appellant complains of trial counsel’s failure to object to the

prosecutor’s statement in closing argument. In rebuttal argument, the

prosecutor stated,

Ladies and gentlemen, I guess when you are sitting next to
a guilty man, you will say anything. What is the Defense here?
Was this rough sex or was it [appellant] spilling the gas out of this
canister on Lisa Cleveland?

See, when you are sitting next to a guilty man, you have got
to throw as much stuff against the wall and see what will stick.
But ladies and gentlemen, I implore you to look at the facts . . . .

Again, an isolated failure to object generally does not constitute

ineffective assistance. 39 In context, trial counsel may have believed that the

argument merely referenced the presence of multiple defensive theories and did

not impugn his character.40 Appellant has failed to rebut the presumption that

counsel acted reasonably.41

For all of these reasons, we overrule appellant’s second and sixth issues.

Roxanne Hayes’s Testimony

39
… See Scheanette, 144 S.W.3d at 510; Ingham, 679 S.W.2d at 509.
40
… See Guy v. State, 160 S.W.3d 606, 617 (Tex. App.—Fort Worth
2005, pet. ref’d) (holding that “a prosecutor risks improperly striking at a
defendant over the shoulder of counsel when the argument refers to defense
counsel personally and when the argument explicitly impugns defense counsel’s
character”).
41
… See Thompson, 9 S.W.3d at 814.

15
 In his seventh issue, appellant argues that the trial court improperly

admitted Roxanne Hayes’s testimony relating an incident somewhat similar to

Cleveland’s allegations. Over appellant’s objection, Hayes testified that she had

dated appellant from 1997 through 1999, he had assaulted her, and she had

also felt “confined” in his house. Appellant also told Hayes that he would

retaliate against her and had locked her in the same trunk that Cleveland

identified. Hayes further testified that, although she left the house with

appellant, she did not feel that she could leave because he had threatened to

kill her.

At trial, appellant objected to this testimony based on Texas Rules of

Evidence 402 and 403.42 We review the trial court’s rulings on both of these

grounds for an abuse of discretion.43

Rule 402 provides, “All relevant evidence is admissible, except as

otherwise provided . . . . Evidence which is not relevant is inadmissible.” 44

Evidence is relevant if it has any tendency to make the existence of any fact

42
… On appeal, he also briefs Rule 404(a) and (b). We consider, however,
only those grounds that appellant advanced in the trial court. T EX. R. A PP. P.
33.1; see Mendez, 138 S.W.3d at 341–42.
43
… Wyatt v. State, 23 S.W .3d 18, 26 (Tex. Crim. App. 2000) (Rule
403); Brown v. State, 96 S.W.3d 508, 511 (Tex. App.—Austin 2002, no pet.)
(Rule 401).
44
… T EX. R. E VID. 402.

16
that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence. 45

The fact that appellant also locked Hayes in the same trunk in the past

made it more probable that he had done the same to Cleveland. Further,

Hayes’s testimony that she did not feel free to leave appellant while they were

in public together, because of his threats, tended to rebut appellant’s defense

that Cleveland stayed with him voluntarily. Hayes’s testimony was, therefore,

relevant, and the trial court did not abuse its discretion in admitting the

evidence over his Rule 402 objection.

Rule 403 provides that “[a]lthough relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, or needless presentation of cumulative evidence.” 46 The Rule

403 balancing test includes the following factors:

(1) how compellingly the extraneous offense evidence serves to
make a fact of consequence more or less probable—a factor which
is related to the strength of the evidence presented by the
proponent to show the defendant in fact committed the extraneous
offense;

45
… T EX. R. E VID. 401.
46
… T EX. R. E VID. 403.

17
 (2) the potential the other offense evidence has to impress the jury
in some irrational but nevertheless indelible way;

(3) the time the proponent will need to develop the evidence,
during which the jury will be distracted from consideration of the
indicted offense;

(4) the force of the proponent’s need for this evidence to prove a
fact of consequence, i.e., does the proponent have other probative
evidence available to him to help establish this fact, and is this fact
related to an issue in dispute.47
The first and third factors weigh heavily in favor of admissibility. First,

Hayes’s testimony was compelling. Cleveland claimed that appellant abducted

her, yet several witnesses claimed to have seen appellant and Cleveland

together in public during the relevant time. Hayes’s testimony supported

Cleveland’s claim that she did not leave, even when in public, because of

appellant’s threats. Further, Hayes’s entire testimony before the jury comprises

four pages in the record; thus, the jury was drawn away from the indicted

offenses only briefly.

The second and fourth factors are neutral. Regarding the second factor,

the jury had already heard Cleveland’s allegations of the abuse suffered at

appellant’s hands; Hayes’s testimony was less detailed and no worse by

comparison. Hayes’s testimony, however, did reveal that appellant had

abducted her in the late nineties, which may have suggested that appellant had

47
… Wyatt, 23 S.W.3d at 26 (internal quotation marks omitted).

18
a chronic pattern of abducting and abusing women. Regarding the fourth

factor, the question of whether Cleveland was abducted or stayed voluntarily

was disputed at trial; thus, Hayes’s testimony was important to the State. The

State, however, did have some other evidence to prove abduction—Cleveland’s

testimony, which was corroborated to some extent by that of her daughter and

son.48

Because the first and third factors weigh heavily in favor of admissibility,

and the second and fourth factors are neutral, we hold that the trial court did

not abuse its discretion in concluding that the danger of unfair prejudice did not

substantially outweigh the probative value of this evidence.

For all of these reasons, we overrule appellant’s seventh issue.

Factual Sufficiency

In his eighth, ninth, and tenth issues, appellant challenges the factual

sufficiency of the evidence to support his three convictions.

48
… Cleveland’s daughter testified that her mother told her on March 24
that appellant had abused her and would not let her leave. Further, her son
testified that appellant denied knowing where Cleveland was one week after
she went missing, although appellant later admitted that she was with him
during that time.

19
 When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party. 49

We then ask whether the evidence supporting the conviction, although legally

sufficient, is nevertheless so weak that the fact-finder’s determination is clearly

wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the fact-finder’s

determination is manifestly unjust. 50 To reverse under the second ground, we

must determine, with some objective basis in the record, that the great weight

and preponderance of all the evidence, though legally sufficient, contradicts the

verdict.51

In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” 52 We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

49
… Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
50
… Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).
51
… Watson, 204 S.W.3d at 417.
52
… Id.

20
than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. 53 We may not simply substitute our judgment for the fact-

finder’s.54 Unless the record clearly reveals that a different result is appropriate,

we must defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because resolution of the conflict “often

turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered.” 55 Thus, we must give due

deference to the fact-finder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” 56

The evidence at trial showed as follows:

Appellant and Cleveland were drug addicts who regularly used

methamphetamine during the course of their five-year relationship. In

December 2005, appellant assaulted Cleveland and was sent to jail for some

time. On March 5, 2006, in violation of a protective order, appellant appeared

53
… Id.
54
… Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997).
55
… Johnson, 23 S.W.3d at 8.
56
… Id. at 9.

21
at Cleveland’s house and persuaded her to accompany him to his house to do

drugs and have sex, promising that he would “bring [her] right back.”

Cleveland testified that, when they arrived at appellant’s house, they took

drugs and began to have sex, but appellant soon became angry. Appellant said

Cleveland could not be trusted because she filed charges against him that

caused him to be sent to jail, he was not going to go back to jail, and he

believed that she had been having sex with other men. Appellant tied

Cleveland’s hands and feet, put a sock in her mouth, attached a strap to her

feet, and hoisted her from the rafters of the bedroom so that only her shoulder

and head were touching the mattress. While Cleveland was hanging upside

down, appellant burned her back three times with a torch. After cutting her

down from the rafters, appellant twice poured “something similar to Drano” on

Cleveland’s burns.57

The next day, appellant panicked when he realized the extent of

Cleveland’s injuries. Appellant locked Cleveland in his grandmother’s old trunk,

again saying she was not to be trusted. Appellant locked Cleveland in the trunk

57
… When officers later searched appellant’s home, they found, among
other items, “a gas cannister typically used with a portable torch” (although the
torch component was not found), straps attached to exposed rafters in the
bedroom, a pipe, and “a plastic bag containing a drain flow bottle.” Detective
Brian Jamison testified that the torch would be considered a deadly weapon if
used on a person.

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on several later occasions as well, sometimes dropping burning pieces of paper,

urine, and feces inside. Outside of the trunk, appellant poured acetone on

Cleveland; threw matches at her; hit, kicked, and tripped her; put needles under

her toenails; and beat her hands and feet with a pipe. Further, when

Cleveland’s son came looking for her a week after she went missing, appellant

denied knowing where she was.

Cleveland said that appellant locked her inside his house, and there was

evidence that the front door was difficult to open because it could be unlocked

only by key, from the outside, and the back door was nailed shut. During this

confinement, appellant said that Cleveland would never see her kids again and

that he would burn down the house with her children in it. Cleveland did not

attempt to leave because she was afraid of appellant’s threats, even though she

and appellant left the house together more than once. Several witnesses who

saw appellant and Cleveland together around the time of the kidnapping

testified that Cleveland did not seek their help or appear to be held against her

will. Many of these witnesses, however, were unsure of the exact date that

they had seen Cleveland, and it might have been before the kidnapping.

On March 24, 2006, while appellant appeared to be asleep with another

woman, Cleveland found appellant’s keys, unlocked the front door, and drove

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appellant’s car to a friend’s house. The friend and Cleveland’s daughter

observed several injuries on Cleveland and insisted that she go to the hospital.

Brenda Lobley, an emergency room doctor at Harris Methodist Fort Worth

Hospital, testified that Cleveland presented on March 24, 2006, with healing

burns on her back and buttocks, bruises, abrasions, healing lacerations to the

scalp, an ankle fracture, and three relatively new rib fractures. Dr. Lobley

opined that Cleveland’s injuries constituted “serious bodily injury.” Dr. Lobley,

however, did not notice anything consistent with acid being poured on

Cleveland’s burn and said Cleveland reported that she had been “locked in the

trunk of a car” for twenty days.

Appellant testified in his own defense. He admitted assaulting Cleveland

in December but denied being upset with her for turning him in for that offense.

Appellant claimed that he accidentally burned Cleveland while trying to warm

himself and Cleveland with the torch during sex. He further asserted that

Cleveland tripped over loose boards in his house, causing her broken ribs.

Appellant denied abducting, assaulting, and retaliating against Cleveland, and

he claimed she was angry with him only because he was having sex and doing

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drugs with another woman.58 He also denied locking Cleveland or Hayes in his

grandmother’s trunk.

Appellant contends that Cleveland’s testimony was not credible.

Cleveland admitted that she had done drugs a few days before trial, and several

witnesses—many of whom were related to appellant—testified that Cleveland

had a bad reputation for telling the truth. Credibility determinations, however,

are the sole province of the jury.59

Applying the appropriate standard, we conclude that the evidence is

factually sufficient to prove that appellant committed retaliation, aggravated

kidnapping, and aggravated assault as charged. Accordingly, we overrule

appellant’s eighth, ninth, and tenth issues.

Conclusion

Having overruled all of appellant’s issues, we affirm the trial court’s

judgment.

PER CURIAM

PANEL F: CAYCE, C.J.; WALKER and MCCOY, JJ.

58
… Cleveland admitted that she was mad that appellant was ignoring her
immediately before her escape.
59
… E.g., Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App.
2000) (holding that the jury is the exclusive judge of the credibility of witnesses
and the weight to be given their testimony).

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PUBLISH

DELIVERED: March 20, 2008

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