Isaac Pugh v. the State of Texas ( 2023 )

AFFIRMED as MODIFIED and Opinion Filed February 28, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00414-CR
ISAAC PUGH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-81674-2021
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Garcia
Opinion by Justice Reichek
Following a jury trial, Isaac Pugh appeals his conviction for the offense of
burglary of a habitation while committing or attempting to commit kidnapping. In
two issues, appellant contends (1) the evidence is legally insufficient to prove he
committed or attempted to commit kidnapping and (2) the jury charge erroneously
allowed the jury to convict on a theory of guilt not alleged in the indictment. For
reasons that follow, appellant’s issues lack merit. On our own motion, we modify
the trial court’s judgment to correct certain clerical errors. As modified, we affirm
the trial court’s judgment.
Background
The evidence at trial showed that on Tuesday, February 2, 2021, appellant
broke into his ex-wife Misti Pugh’s house in Celina, Texas, and took their two-year-
old child, LP. Under their custody arrangement, appellant had custody of LP every
first, third, and fifth weekend and every Wednesday night for a couple of hours. The
Wednesday prior to the offense Misti did not exchange LP with appellant. A few
days before the break in, Misti’s neighbor saw appellant stop his truck in front of
Misti’s house and then drive off. Although the neighbor did not know appellant,
appellant stopped to talk to her about LP. Appellant said the child’s mom “is going
to get what’s coming to her.”
The break in occurred at about 8 p.m. on February 2. Appellant broke through
a glass storm door, shattering the glass, and a wooden front door at Misti’s house.
Misti and LP were in the living room at the time. Appellant began yelling and
screaming and also ripped off his shirt. He yelled at Misti, “[Y]ou can’t keep my
kid from me.” Appellant moved toward LP, and Misti got in between the two of
them. When she tried to phone for help, appellant knocked the phone out of her
hand, grabbed her hair, and threw her on the floor. He then stepped on Misti’s hand
so she could not retrieve her phone. Appellant grabbed LP and ran out of the house.
He had left his truck running and left the truck door open. He threw LP into the
truck and drove off.
The Celina Police Department (CPD) tracked the GPS location on appellant’s
cell phone. Pings first indicated appellant was in Whitesboro, Texas, about 25 miles
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northwest of Celina, and then in Sherman. Around midnight, police got a couple of
pings from McKinney. The information from the cell phone pings was not specific
enough to ever pinpoint appellant’s location. Eventually, CPD issued an AMBER
Alert for LP. After the AMBER Alert went out, police stopped receiving the pings.
The phone company informed CPD it was likely appellant turned off his cell phone.
Police tried to track appellant through his credit card usage, without success.
Officers also contacted appellant’s friends and family in an attempt to locate him.
Multiple people told CPD Detective Joshua Armstrong that appellant was unstable
and thought LP was being sexually assaulted. One person said she loaned appellant
money for an attorney a few hours before appellant showed up at Misti’s house.
Appellant’s cell phone records revealed that before he took LP he had been
trying to contact a family law attorney named George Parker. Police spoke to Parker
early on the morning of February 3, and Parker informed them he did not represent
appellant and had not spoken with him about LP. That afternoon, appellant showed
up with LP at Parker’s law office in downtown McKinney. On the advice of Parker,
appellant called the CPD. He spoke to Detective Armstrong. Armstrong convinced
appellant to step outside, where he was arrested by officers with the McKinney
Police Department. LP was found unharmed. He was missing for about 16 hours.
Appellant was charged by indictment with burglary of a habitation while
committing or attempting to commit kidnapping. See TEX. PENAL CODE ANN. §
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30.02(a)(3), (d). The jury found appellant guilty, and the trial court assessed his
punishment at nine years’ confinement. This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant contends the evidence is legally insufficient to
support his conviction because the State did not prove he committed or attempted to
commit kidnapping. He argues the evidence is insufficient to show he intended to
prevent LP’s liberation by secreting him or holding him in a place where he was not
likely to be found.
We measure the legal sufficiency of the evidence by the elements of the
offense as defined by a hypothetically correct jury charge. Hammack v. State, 622
S.W.3d 910, 914 (Tex. Crim. App. 2021) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). A hypothetically correct charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried. Id.In assessing the sufficiency of the evidence, we consider all the evidence in
the light most favorable to the verdict and determine whether, based on that evidence
and reasonable inferences therefrom, a rational factfinder could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44 (Tex. Crim.
App. 2019). This standard requires that we defer “to the responsibility of the trier
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of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Zuniga v. State, 551
S.W.3d 729, 732 (Tex. Crim. App. 2018). Each fact need not point directly and
independently to guilt if the cumulative force of all incriminating circumstances is
sufficient to support the conviction. Nisbett v. State, 552 S.W.3d 244, 262 (Tex.
Crim. App. 2018).
As charged in this case, a person commits burglary of a habitation when he
enters a habitation without the effective consent of the owner and commits or
attempts to commit a felony, theft, or assault. TEX. PENAL CODE ANN. § 30.02(a)(3).
Burglary of a habitation is generally a second-degree felony, but is a first-degree
felony when the defendant commits or attempts to commit a felony other than felony
theft. Id. § 30.02(d). Here, the underlying felony was kidnapping. A person
commits the offense of kidnapping if he intentionally or knowingly abducts another
person. Id. § 20.03(a). “Abduct,” as it applies in this case, means to restrain a person
with intent to prevent his liberation by secreting him or holding him in a place where
he is not likely to be found.1 Id. § 20.01(2)(A).
Appellant argues the evidence showed he took LP to the office of a “well
known family lawyer,” who had about 20 employees, and had intended to do so
1
A person can also abduct someone by restraining him with intent to prevent his liberation by
using or threatening to use deadly force. TEX. PENAL CODE ANN. § 20.01(2)(B). There was no
evidence appellant used or threatened to use deadly force.
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before he took LP. According to appellant, because he took LP to a law office, the
State did not prove he intended to secret LP to a place where he would not likely be
found. Appellant also argues the evidence is insufficient to show he intended to hide
LP before they arrived at the law office. Appellant refers to that 16-hour time period
as the time “en route to George Parker’s office.” He argues that placing LP in the
passenger’s seat of his truck did not show an intent to secret the child and suggests
the evidence needed to show more overt actions to secret LP.
The State was not required to prove that appellant actually secreted or held LP
in a place he was not likely to be found. See Laster v. State, 275 S.W.3d 512, 521
(Tex. Crim. App. 2009). “Abduct” involves two elements; the defendant must have
restrained another and also must have had the specific intent to prevent liberation.
Id. The offense of kidnapping is legally completed when the defendant, at any time
during the restraint, forms the intent to prevent liberation by secreting or holding
another in a place unlikely to be found. Id.We conclude the evidence was legally sufficient to prove appellant
intentionally or knowingly abducted LP. The evidence showed that prior to the
offense, appellant indicated that something bad was going to happen to Misti. A
short time later, he took two-year-old LP from Misti’s house with force. He violently
entered Misti’s home to get LP and attacked her when she tried to phone for help.
Appellant left his vehicle running with the door open to make it easier for him to get
away with the child. Then he did not remain in one place; he drove to different
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locations in North Texas, from Celina to Whitesboro to Sherman to McKinney.
After an AMBER Alert was issued, police stopped receiving GPS information from
appellant’s phone. The jury could have reasonably inferred appellant turned off his
cell phone to prevent being located. The fact that appellant showed up with LP at a
busy law office 16 hours after taking him does not mean that appellant did not
commit kidnapping. Viewing the evidence in the light most favorable to the verdict,
the jury could have found that appellant intended to prevent LP’s liberation by
secreting or holding him in a place where he was unlikely to be found. We overrule
appellant’s first issue.
Alleged Jury Charge Error
In a second issue, appellant contends the trial court erroneously charged the
jury on a theory of guilt that was not alleged in the indictment.2 The indictment
alleged appellant entered the habitation without effective consent of the owner and
committed or attempted to commit kidnapping. The application paragraph instructed
the jury:
if you find from the evidence beyond a reasonable doubt that . . . the
defendant, ISAAC PUGH, did then and there intentionally and
knowingly, without the effective consent of Misti Pugh, the owner
thereof, enter a habitation with the intent to commit the felony offense
of kidnapping, attempted to commit or committed the felony offense of
2
After appellant’s brief was filed, his court-appointed counsel moved to withdraw. We granted
the motion and ordered the trial court to appoint new counsel for appellant. Once appointed, new
counsel had the option to file a new brief replacing the brief filed by former counsel, file a
supplemental brief, or adopt the original brief. Counsel filed a supplemental brief raising this
issue.
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kidnapping, then you will find the defendant guilty as charged in the
indictment.
(Emphasis added.) Appellant was not charged with committing burglary by entering
a habitation with intent to commit kidnapping. See TEX. PENAL CODE ANN. §
30.02(a)(1). Appellant contends the error caused him egregious harm.
As the State concedes, the charge erroneously authorized a conviction on a
theory of burglary not alleged in the indictment. See Sanchez v. State, 376 S.W.3d
767, 773 (Tex. Crim. App. 2012) (instructions must conform to allegations in
indictment). Because no objection was made to the charge, we consider whether the
error egregiously harmed appellant. See Alcoser v. State, No. PD-0166-20, 2022
WL 947580, at *3 (Tex. Crim. App. March 30, 2022). Harm is assessed in light of
the entire jury charge, the state of the evidence, including the contested issues and
weight of the probative evidence, the argument of counsel, and any other relevant
information revealed by the record of the trial as a whole. Id. An erroneous jury
charge is egregiously harmful if it affects the very basis of the case, deprives the
accused of a valuable right, or vitally affects a defensive theory. Id. A finding of
egregious harm must be based on actual harm rather than theoretical harm. Id.Egregious harm is a difficult standard to meet, and the analysis is a fact-specific one.
Id.We conclude appellant was not egregiously harmed. At trial, the focus was
on whether what happened after appellant entered Misti’s home without consent was
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a kidnapping. During closing arguments, the State did not argue that appellant
committed something short of a completed kidnapping. It did not argue appellant
attempted to kidnap LP, which was a theory authorized by the indictment. Its theory
was that appellant completed the offense of kidnapping. Defense counsel argued
that for various reasons a kidnapping had not occurred, all of which acknowledged
that appellant removed LP from his mother’s home: appellant took LP to protect
him; appellant did not commit kidnapping because he did not take LP somewhere
he could not be found; a father could not kidnap his own child; and the amount of
time appellant had LP was not long enough to constitute kidnapping.
Further, the evidence overwhelmingly showed that appellant completed the
offense of kidnapping. Appellant broke into his ex-wife’s home to grab LP and take
off with him in his vehicle, evading detection for 16 hours. There was nothing in
the evidence to show that appellant broke into Misti’s house without her consent
with an intent to commit a kidnapping that was not actually carried out. In addition,
the verdict form did not include the intent to commit kidnapping theory. It stated,
“We, the Jury, find the defendant GUILTY of the offense of Burglary of a Habitation
attempting to commit or having committed Kidnapping as charged in the
indictment.” The erroneous charge did not affect the very basis of the case, deprive
appellant of a valuable right, or vitally affect a defensive theory. We overrule
appellant’s second issue.
Clerical Errors in the Judgment
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Although not raised by either party, the trial court’s judgment contains several
clerical errors. First, the judgment does not accurately reflect that the trial court
assessed punishment in this case. The record shows that appellant elected for the
trial judge to assess his punishment, and the judge did so. Next, the judgment
incorrectly states that the degree of the offense was a second-degree felony.
Burglary of a habitation while committing or attempting to commit kidnapping is a
first-degree felony. TEX. PENAL CODE ANN. § 30.02(d). Similarly, the judgment
reflects the wrong statute for the offense. It lists § 30.02(c)(2), which is second-
degree burglary of a habitation, instead of § 30.02(d), the first-degree felony
provision at issue here. In addition, the judgment states “APPEAL WAIVED, NO
PERMISSION TO APPEAL GRANTED.” The trial court’s certification of
appellant’s right of appeal certified that this was not a plea-bargain case and
appellant had the right of appeal.
This Court has the power to modify a judgment to make the record speak the
truth when we have the necessary information before us to do so and may do so on
its own motion. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 28
(Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—
Dallas 1991, pet. ref’d). Accordingly, we modify the trial court’s judgment in the
following ways: to reflect that the trial court, not the jury, assessed punishment; to
reflect that the degree of the offense was a first-degree felony; to reflect that the
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statute for the offense was penal code § 30.02(d); and to delete the language stating
that appellant waived his appeal and was not given permission to appeal.
As modified, we affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish.
TEX. R. APP. P. 47.2(b).
220414F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ISAAC PUGH, Appellant On Appeal from the 219th Judicial
District Court, Collin County, Texas
No. 05-22-00414-CR V. Trial Court Cause No. 219-81674-
2021.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Reichek. Justices Nowell and Garcia
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
On the first page of the judgment:
The section titled “Statute for Offense:” is modified to state
“30.02(d) Penal Code.”
The section titled “Degree of Offense:” is modified to state “1ST
DEGREE FELONY.”
The section titled “Punishment Assessed by:” is modified to state
“Court.”
On the second page of the judgment:
The section titled “Punishment Assessed by Jury/Court/No
election (select one)” is modified to uncheck the box next to “Jury” and
to check the box next to “Court.”
On the third page of the judgment:
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The following language is deleted: “APPEAL WAIVED. NO
PERMISSION TO APPEAL GRANTED.”
As modified, the judgment is AFFIRMED.
Judgment entered this 28th day of February, 2023.
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