Eldridge Lavon Shivers, Jr. v. State ( 2006 )

NO. 07-05-0380-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 14, 2006 ______________________________

ELDRIDGE LAVON SHIVERS, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 51,314-A; HONORABLE HAL MINER, JUDGE _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Eldridge Lavon Shivers, Jr., appeals his conviction for robbery and his punishment, enhanced by two prior felony convictions, of 80 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant contends that the trial court committed reversible error by not properly applying the law of parties to the facts of the case in the charge. We affirm.

Factual and Procedural Background

On July 1, 2005, the victim, Charles Daniel Cook, was approached by a man, subsequently identified as appellant. The victim alleged that appellant placed a sharp object in his back and demanded his money. While the victim was attempting to talk to appellant, another individual arrived at the side of the victim and placed a hard object against his back. This second individual advised the victim that he had a gun and demanded the victim's money. The victim gave the assailants $200. The victim went to his motel room and called 911. After describing the events to the police, the victim was called to another motel where he positively identified appellant, who had been detained by the police, as the man that had placed the sharp object in his back. The second individual was never identified.

Appellant was indicted for aggravated robbery, but was convicted of the lesser included offense of robbery. The trial court submitted the question of appellant's guilt both as the principal actor and as a party to the offense. Appellant contends that the court's charge does not properly apply the law of parties to the facts of the case.

Analysis

When an appellant objects to the court's charge, our first inquiry is whether there is any error in the charge as presented to the jury. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996).

In the charge submitted to the jury, the trial court defined robbery and its elements. There was no objection to the court's definition of the mens rea and the concept of criminal responsibility, pursuant to the Texas Penal Code. Tex. Pen. Code Ann. §§ 6.03, 7.01-.02 (Vernon 2005). As appellant was convicted of the lesser included offense of robbery, the application paragraph for robbery, both as primary actor and as party, are set forth as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 1^st day of July, 2005, in Potter County, Texas, the defendant, ELRIDGE LAVON SHIVERS, JR., did then and there, while in the course of committing theft of property, to-wit: good and lawful United States currency, with the intent to obtain or maintain control of said property, did intentionally or knowingly threaten or place Charles Cook in fear of imminent bodily injury or death; or

if you find from the evidence beyond a reasonable doubt, that on or about the 1^st day of July, 2005, in Potter County, Texas, an unknown person, did then and there, while in the course of committing theft of property, to-wit: good and lawful United States currency, and with intent to obtain or maintain control of said property, did intentionally or knowingly threaten or place Charles Cook in fear of imminent bodily injury or death and if you further believe from the evidence beyond a reasonable doubt that on said date in said County and State, the defendant, ELDRIDGE LAVON SHIVERS, JR., as a party as that term is hereinbefore defined, solicited, encouraged, directed, aided or attempted to aid the said unknown person in the foregoing action by threatening the said Charles Cook with bodily injury, you will find the said ELDRIDGE LAVON SHIVERS, JR. guilty of Robbery as charged in the indictment.

However, appellant did object to the application paragraph of the court's charge, as set out above. Appellant contends that this application paragraph is nothing more than an abstract recitation of the law and should have been tailored to the facts of the case. The appellant is, however, mistaken in his belief that the referenced charge has not been sufficiently tailored to the facts of the case.

In determining whether an application paragraph is specifically tailored to the facts of the case, the evidence must be reviewed to determine whether the charge applies the law to the facts raised by the evidence. See Williams v. State, 547 S.W.2d 18, 20 (Tex.Crim.App. 1977). In other words, does the charge inform the jury of what facts would constitute proof of the elements of the charged offense. See id.

The record reveals that the victim testified that appellant was the person who placed the sharp object into his side and demanded his money. However, during cross-examination, the victim admitted that the police incident report's description of the person who placed the sharp object into his side did not match appellant, and, in fact, was closer to the description of the unknown assailant.

The victim testified that the person who did not threaten him with the sharp object threatened him by claiming to have a gun. When this evidence is viewed as a part of the entire record, the following becomes clear: one actor physically threatened the victim with imminent bodily injury and demanded money and a second actor expressed a verbal threat and also demanded money. Therefore, the issue of the status of appellant, as the principal actor or as a party, was squarely before the jury.

Appellant claims that the specific threat, by which we assume he means the specific language used, should have been included in the application paragraph. However, appellant does not cite us any cases where this type of charge has been required or approved. In reviewing the law of charges and, specifically the requirement that the application paragraph fit the facts of the case, charges similar to the charge given in this case have been approved by the Texas Court of Criminal Appeals and Texas Courts of Appeals. See Davis v. State, 651 S.W.2d 787, 792 (Tex.Crim.App. 1983); Woods v. State, 749 S.W.2d 246, 247-48 (Tex.App.-Fort Worth 1988, no writ) (reversed for failure to give requested application paragraph containing general allegation of encouraging principal actor with intent to promote or assist the offense of aggravated robbery). Accordingly, we conclude that the charge presented to the jury properly applied the law to the evidence presented in the case and was, therefore, not error.

Conclusion

Having determined there was no error in the court's charge, the judgment of the trial court is affirmed.

Mackey K. Hancock

Justice

Do not publish.

ted kidnapping and recommended punishment at 30 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Immediately after dismissing the jury, the court sentenced appellant to 30 years and ordered appellant to pay court costs as well as the court appointed attorney fees incurred in his defense.

          Appellant now appeals the denial of the charge on the lesser included offense of unlawful restraint as well as the sufficiency of the court order for the reimbursement of the court appointed attorney fees. We reform the judgment and affirm as modified.Denial of Lesser Included Offense Within Charge

          When we review an allegation that the trial court erred in failing to give a requested lesser included offense charge, we must engage in a two part analysis. Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007). The first part of the analysis is a question of law where we compare the elements of the offense as alleged in the indictment with the elements of the potential lesser included offense. Id. The second step in the analysis requires that we review the evidence to ascertain if there is some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser included offense. Id. at 536 (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994)).

          Under the Texas Penal Code and as alleged by the State, the State was required to prove that, with the intent to inflict bodily harm or terrorize Tammy, appellant intentionally and knowingly restrained Tammy with the intent to prevent her liberation by secreting or holding her in a place where she was not likely to be found. See Tex. Penal Code Ann. §§ 20.01(2), 20.04(a)(4), (5) (Vernon Supp. 2008). Appellant contends that the State did not present more than a scintilla of evidence to show that appellant intended to secrete or hold Tammy in a place she was not likely to be found. Rather, appellant contends that the evidence demonstrated, with more than a scintilla of evidence, that appellant’s intent was to flee the scene of the assault at the convenience store. Therefore, appellant contends that, at most, appellant was guilty of the offense of unlawful restraint. See § 20.02.

          Under the first prong of the required analysis, the difference between unlawful restraint and aggravated kidnapping, as alleged, is the intent to prevent Tammy’s liberation by secreting or holding her in a place where she was not likely to be found. A person commits unlawful restraint “if he intentionally or knowingly restrains another.” See § 20.02. A person commits aggravated kidnapping if he intentionally or knowingly abducts another with the intent to commit bodily injury. See § 20.04(a)(4). “Abduct” is defined as restraining a person with intent to prevent her liberation by secreting or holding her in a place where she is not likely to be found. § 20.01(2). Therefore, we conclude that unlawful restraint is a lesser included offense of aggravated kidnapping. See Jenkins v. State, 248 S.W.3d 291, 298-99 (Tex.App.–Houston [1st Dist.] 2007, pet. ref’d).

          However, appellant has narrowed his complaint by contending that the evidence established that his intent was not to hold Tammy in a place where she is not likely to be found, but rather, that his intent was to flee from the convenience store to avoid capture for his assault on Tammy. In order for appellant to be entitled to a lesser included offense charge, there must be some evidence that would permit a rational jury to find that, if appellant is guilty, he is guilty only of unlawful restraint. Hall, 225 S.W.3d at 536. As presented by appellant, there must be some evidence that would negate the element raising the lesser included offense to the greater charged offense. Jenkins, 248 S.W.3d at 298. However, even if appellant is correct that some of the evidence demonstrated appellant’s intent to flee, this does not negate his intent to abduct. Even by appellant’s own argument that he sought to flee from the store to avoid capture, he was doing so by attempting to reach a location where he could not be found. However, in his attempt to avoid capture, all the evidence at trial showed that appellant forced Tammy to go with him. Therefore, by seeking a location where he could not be found and by forcing Tammy to go with him, he was taking Tammy to a location where it was likely that she would not be found. Therefore, we conclude that, even were we to believe appellant’s contention that appellant was intending to flee, there is no evidence that negates the element of abduction, which is the element raising the lesser included offense of unlawful restraint to the greater charged offense of aggravated kidnapping. Jenkins, 248 S.W.3d at 299. We overrule appellant’s first issue.

Determination of ability to pay court appointed fees

          Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2007). However, the record before us does not contain any such determination or finding by the trial court that appellant had any financial resources or was “able to pay” the appointed attorney fees.

          The record does reflect that appellant filed, preindictment, an affidavit of financial status showing that he was unemployed and supporting himself on governmental benefits and that the trial court appointed trial counsel to assist appellant during the trial for the offense. Appellant filed a pro se notice of appeal on October 3 and an affidavit of financial status on October 12. On October 17, 2007, District Judge Ed Self, the appointing authority for the district courts of Swisher County, appointed appellate counsel to assist appellant in the presentment of his appeal. Therefore, there is an absence of evidence to demonstrate that, at the conclusion of the trial, appellant was “able to pay” or had financial resources that would enable appellant to offset, in part or in whole, the costs of the legal services provided to him. Rather, the evidence demonstrates that, before trial and within two months of the conclusion of the trial, appellant was indigent and qualified for court appointed counsel. Furthermore, after the completion of the cause, on August 22, 2007, appellant was remanded to the Swisher County Sheriff’s Office to await the time until appellant could be transported to the Texas Department of Criminal Justice, Institutional Division, to serve his sentence and presumably had no sources of income. Without evidence to demonstrate appellant’s financial resources to offset the costs of the legal services, the trial court erred in ordering reimbursement of appointed attorney fees. See art. 26.05(g); Slaughter v. State, Nos. 2-04-050-CR, 2-04-051-CR, 2005 WL 183142, at *3-*5 (Tex.App.–Fort Worth Jan. 27, 2005, no pet.) (not designated for publication). Accordingly, we modify the judgment to delete the following paragraph:

Furthermore, the following special findings or orders apply:

Defendant is ordered to repay attorney fees in the amount of $2,850.00 to Swisher County, Texas.

  ConclusionHaving overruled appellant’s first issue but having sustained appellant’s second issue regarding repayment of appointed attorney fees, we modify the trial court’s judgment, as identified above, and affirm the judgment as modified.

                                                      Mackey K. Hancock
                                                                Justice

Publish.