IN THE
TENTH COURT OF APPEALS
No. 10-00-221-CR
FORREST LOUIS ARCENEAUX,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 177th District Court
Harris County, Texas
Trial Court # 839607
O P I N I O N
Appellant Arceneaux appeals his conviction for aggravated kidnapping, enhanced by one prior felony conviction, for which he was sentenced to Life in the Texas Department of Criminal Justice - Institutional Division, and assessed a $10,000 fine.
Appellant was indicted for aggravated kidnapping, enhanced by an allegation of a prior conviction for murder. Appellant plead guilty to the aggravated kidnapping charge and true to the enhancement.
At punishment phase, the jury found that Appellant did not voluntarily release the victim in a safe place.
Appellant appeals on one point of error: “The evidence was insufficient to support the jury’s finding that the complainant was not voluntarily released in a safe place.”
Appellant plead guilty and was found guilty of aggravated kidnapping. Tex. Pen. Code § 20.04. This would be a conviction for a first degree felony unless under § 20.04(d) at the punishment stage of the trial, defendant proves by a preponderance of the evidence that he voluntarily released the victim in a safe place; in which event, the charge becomes a second degree felony with a lower punishment range.
Gail Ozane had a long term intimate relationship with Appellant and had a thirty-year old son fathered by him. Ms. Ozane had a similar relationship with Joseph Harmon during much of this same period. Appellant left the Raywood community in which all three lived and was gone for a number of years. Appellant returned to Raywood on March 5, 1999. Harmon and Gail ended their relationship and Gail moved in with Appellant. The renewed relationship did not go well. On August 5, 1999, Appellant came to Harmon’s home and followed him to the store. When they arrived at the store, Appellant had a .20 gauge shotgun in his hand and told Harmon to call Gail and tell her to meet him at the Crosby Motel in Dayton. Appellant and Harmon then drove to Dayton. Gail also drove to Dayton, arriving at about 8:03 a.m. As she drove up, Appellant shot her. She was taken to Herman Hospital where she underwent extensive surgery. Gail told police that Appellant had shot her.
That same evening, Nancy Sadler (complainant) and her sister, Sherry Porter, drove to Dayton to purchase some fried chicken. Nancy was eight and one-half months pregnant and was suffering from severe hypertension. Near the Crosby Motel, Nancy and Sherry saw Appellant crossing the road. They stopped and Appellant put his shotgun to their windshield. Nancy and Sherry jumped out of their car and told Appellant to take the car. Appellant pointed his shotgun at Nancy, told them he needed to get out of there because the cops would be crawling, and that he needed them to drive him. Appellant got in the backseat and directed Nancy to drive through Dayton, then Liberty, and finally to Ames. Nancy was crying and Sherry engaged in conversation with Appellant. Appellant told Nancy and Sherry he had shot to kill his wife, who had been unfaithful. Throughout the drive, Appellant kept the shotgun aimed at the front seat. The two women were scared and thought they were going to be killed. Appellant finally directed Nancy down a rock road in the wooded area of Ames and directed her to stop in front of a house, where he got out and left them. Nancy did not know exactly where she was, did not know where the closest police station or hospital was, and did not feel safe. Nancy then let Sherry drive and they proceeded to an Exxon Station in Liberty, where they sought help. Nancy was taken to a hospital where her baby was born. She identified Appellant from a police photo spread. Sherry also identified Appellant as their kidnapper from a photo spread.
Appellant contends the evidence is insufficient to support the jury’s findings that the complainant was not voluntarily released in a safe place, and argues that the case should be reversed and remanded for a new punishment hearing.
The standard for review in such situation is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof is so obviously weak as to undermine confidence in the jury’s determination of the issue, and is clearly wrong and manifestly unjust. Johnson v. State, 23 S.W.2d 1, 11 (Tex. Crim. App. 2000). A Court of Appeals is not free to reweigh the evidence and set aside the finding because the court feels that a different finding is more reasonable. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Nor may a Court of Appeals reverse a finding simply because it disagrees with the result. The Court must defer to the findings of the fact finder and may find the evidence insufficient only when necessary to prevent manifest injustice. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
A jury verdict is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997).
The jury found that Appellant did not voluntarily release complainant in a safe place.
In determining whether the victim was released in a safe place, the following factors may be considered: 1) the remoteness of the location; 2) the proximity of authorities or persons who could aid or assist; 3) the time of day; 4) climate conditions; 5) condition of the victim; 6) the character of the location and surrounding neighborhood; and 7) the victim’s familiarity with the location or surrounding neighborhood. Lavarry v. State, 936 S.W.2d 690, 696 (Tex. App.—Dallas 1996, pet. dism’d); Harrell v. State, 882 S.W.2d 61, 65 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
Nancy (complainant), testified they turned down a little white rocked road that goes into the back of a mobile home park. Although there were some houses down the road, it was a wooded area. Nancy believed she was going to die. She had never been to the place before and was not familiar with the town of Ames, and had no idea where the closest police station or hospital was located. It was dark. Sherry gave like testimony.
Sgt. Saye testified that Ames is a small town and the street where Appellant got out, Cormier Street, is a high crime area and high in drug traffic. Sgt. Saye is assigned to the town of Ames, and has worked every kind of case on Cormier Street, from homicide to aggravated robbery to sexual assault. Cormier Street has the highest crime rate of any area in Liberty County. Although the Mayor of Ames lives on Cormier Street, one would not be safe if dropped off in front of the Mayor’s house. The entire town of Ames is known for its high crime rate, and police get multiple complaints on a daily basis from this area.
Appellant’s witness, Mary Whitehead, testified that Ames had not been a safe place in the past, but after the county received a drug grant to slow down traffic in the area, she considers Cormier Street and the area to be a safe place.
Appellant’s sister, Barbara Brooks, testified that she is familiar with the area and considers it a safe place.
The jury was entitled to believe from all the evidence presented that Appellant did not prove by a preponderance of the evidence that he released the victim in a safe place.
The evidence is factually sufficient to support the jury’s finding that the area where the complainant was released was unsafe.
Appellant’s point and all contentions made thereunder are overruled.
The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Gray, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed May 2, 2001
Do not publish
ing studies being conducted on behalf of [Relators] nor can they notice the depositions thereof without further order of this Court;
Plaintiffs and their attorneys herein are prohibited from disseminating the information the subject of this Order with any person not a party or attorney in the above styled and referenced causes. All parties who review documents subject to the terms of this Order are hereby bound by the terms of this Order and subject themselves to the jurisdiction of this Court.
APPLICABLE LAW
Relators can obtain mandamus relief only upon showing that the court committed a clear abuse of discretion and that they have no adequate legal remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). To demonstrate a clear abuse of discretion, Relators must show “that the trial court could reasonably have reached only one decision.” Id. at 840. Even if we would have decided the matter differently, we “cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable.” Id.
When a party has sought protection from a particular discovery request, “the court may make any order in the interest of justice necessary to protect the movant from undue burden.” Tex. R. Civ. P. 166b(5).
Specifically, the court’s authority as to such orders extends to, although it is not necessarily limited by, any of the following:
a. ordering that requested discovery not be sought in whole or in part, or that the extent or subject matter of discovery be limited, or that it not be undertaken at the time or place specified.
b. ordering that the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court.
c. ordering that for good cause shown results of discovery be sealed or otherwise adequately protected, that its distribution be limited, or that its disclosure be restricted.
Id.
The Supreme Court has recognized that the otherwise “broad scope of discovery may be circumscribed . . . by the legitimate interest of the opposing party in avoiding discovery based on a compelling, particularized interest in nondisclosure.” Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (orig. proceeding). The Court held in Eli Lilly that because of “compelling public interest considerations manifested by” certain federal regulations related to the discovery request being considered, the plaintiffs were not entitled to discovery of the information sought. Id.
APPLICATION
Compelling Public Interest
Relators contend they have asserted such a compelling public interest in the present case. Specifically, they argue “the public has a compelling interest in the results of these studies and, therefore, has an aligned interest [with Relators] in the non-disclosure of this information prior to the studies’ completion.” They also assert that compliance with Respondent’s order “would harm the public” “which ultimately stands to gain from knowledge of the final results.” (quoting Dow Chemical Co. v. Allen, 672 F.2d 1262, 1269 (7th Cir. 1982)).
We agree that the public indeed has a compelling interest in the integrity of the studies being conducted in this case. However, Relators’ own conduct in the execution of the studies presents conflicting evidence on the extent to which they have sought to preserve this compelling interest. In addition, Pittelli equivocates in his affidavit on whether disclosure of the researchers’ identities will in fact jeopardize the integrity of the studies or result in termination of the studies before completion.
Pittelli states that Wyeth retained a number of CRO’s to conduct the studies. He asserts that an entity which retains CRO’s in studies such as these should not have “any way to know any preliminary results” from the studies and that “the principal investigator—typically a leading academic physician”—will conduct the final “independent review of the study data” and present “the most important findings in a detailed report.” However, Relators’ counsel has provided this Court with copies of the protocols for the ongoing studies which state in pertinent part:
The investigator agrees that Wyeth-Ayerst Laboratories, its employees, or agents, as well as representatives of the U.S. Food and Drug Administration, will have the right from time to time during the course of this study to audit and review pertinent medical records relating to this clinical trial.
This raises a question about whether the studies being conducted at Wyeth’s behest are truly being conducted independently.
According to Pittelli, the CRO’s “tabulate[ ] the results” and “make[ ] the appropriate statistical analysis.” “[T]he scientific method demands detailed statistical analyses.” (emphasis added). If Wyeth has some involvement in the studies beyond establishing the protocols and providing funding, then it has acted inconsistently with the “compelling public interest” it seeks to preserve.
Relators’ counsel argued before the trial court that so far as he knew, the only interim documents relating to the studies which Relators possess are “status report[s]” in which a CRO “would report back: We now enrolled 100 patients. So we’ve now enrolled 150 patients. So we’re at this stage of the process in the protocol. This is how far down the road we are.” In addition, counsel informed the court that Relators “have made reports to the FDA with respect to the administrative status of how the science is going and where the process is.”
Other than possibly revealing the identities of the CRO’s, we fail to see how disclosure of these so-called “status reports” under the terms of Respondent’s order will impact the interest Relators seek to protect. Moreover, Relators have cited no authority prohibiting disclosure of the reports made to the FDA.
The Protective Order
Relators agree that Plaintiffs are ultimately entitled to discovery of the documents sought. However, they argue that disclosure of this information before completion of the studies poses an undue burden because it threatens the “compelling public interest” identified above. Thus, they seek protective orders delaying the timing of the disclosure. See Tex. R. Civ. P. 166b(5)(b) (protective order may require that discovery be undertaken “at the time or place specified” by the court).
Respondent granted Relators much of the relief they sought. He directed that the names of the patients and physicians participating in the studies be redacted. Id. 166b(5)(a). He prohibited Plaintiffs from contacting the researchers involved in the studies without prior permission of the court. Id. 166b(5)(c). He prohibited them from disseminating the information disclosed pursuant to his order to any person not a party to the two lawsuits before him. Id.
Relators place much reliance on Eli Lilly to demonstrate that Respondent should have delayed disclosure of the information sought. In that case, the trial court ordered unrestricted disclosure of the identities of physicians who had reported possible adverse reactions to Prozac experienced by their patients. Eli Lilly, 850 S.W.2d at 157. In this case however, Respondent placed protective restrictions on the disclosure of the information sought. Thus, this case is distinguishable from Eli Lilly.
CONCLUSION
Relators’ own conduct in the execution of the studies presents a question about whether they have acted inconsistently with the compelling public interest they seek to preserve. In addition, their evidence does not clearly establish that disclosure of the researchers’ identities will in fact jeopardize the integrity of the studies or result in termination of the studies before completion. Finally, Respondent’s order places numerous restrictions on the disclosure of the information they seek to withhold.
For each of these reasons, we cannot say Relators have satisfied the onerous burden of demonstrating that Respondent “could reasonably have reached only one decision.” Walker, 827 S.W.2d at 840. Thus, they have failed to establish a clear abuse of discretion. Accordingly, we deny Relators’ petition for mandamus relief. Relators must comply with Respondent’s order within ten days of the date this opinion issues.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Cummings and
Justice Vance
Petition denied
Opinion delivered and filed October 2, 1998
Publish