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Young v. State

Court of Appeals of Texas, Seventh District, Amarillo

February 20, 2018


         On Appeal from the 320th District Court Potter County, Texas Trial Court No. 69, 707-D, Honorable Don R. Emerson, Presiding

          Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


          James T. Campbell, Justice.

         Appellant Terry Daniel Young appeals his conviction by jury of the felony offense of aggravated kidnapping[1] and the resulting sentence of forty years of imprisonment. His two appellate issues contend that evidence presented was insufficient to support his conviction and the court erred by denying his requested instruction. Disagreeing with both contentions, we will affirm.


         Police investigation began when the body of Lance Hooser, bearing tattoos identifying him with the Aryan Brotherhood, was found on a street in north central Amarillo. The autopsy showed one of his two gunshot wounds caused his death. His body also bore the effects of abrasions, lacerations and similar wounds on his head, around his neck and at other locations. Reinforced tape and plastic-covered metal wire were wrapped around his wrists and ankles.[2]

         Investigation of Hooser's death identified five suspects: appellant, Robert Melton, Jeffrey Noblett, Ricky Burns and Bobby Crawford. Investigators learned that Hooser had been staying at a local residence occupied by Robin Boyd. Boyd gave the officers suitcases and bags she said belonged to Hooser. In one bag, officers found a .40 caliber Smith & Wesson pistol. Another woman, Hooser's girlfriend, gave police recorded voice mail of messages from appellant. A recorded conversation between appellant and Noblett was obtained through a download from Noblett's cell phone. Five days after Hooser's death, officers arrested appellant outside his home in an SUV.

         Officer Michael Rolan interviewed each of the five suspects. Rolan learned Hooser stole from appellant a .40 caliber Smith & Wesson pistol and $500. Melton and Noblett worked for appellant in his contracting business and Crawford was appellant's friend. All were aware that appellant was looking to get his pistol back from Hooser. Also, several days before Hooser's death, Noblett had an encounter with him after Noblett loaned his pickup to Hooser but Hooser never returned it.

         On the day of Hooser's death, a female friend of Melton's, Anna Atkins, visited Boyd's residence. She found Hooser was at the house, sleeping, and learned that Boyd did not want him there. Atkins called Melton and Melton called appellant, telling appellant he knew where his stolen pistol could be found. Appellant picked up Melton. Burns was with Melton at the time, and went along also. Appellant told Rolan that on the way to Boyd's house, the men stopped at an AutoZone store and bought a roll of reinforced tape. While they were at the store, Burns mentioned he had a pistol with him.

         At his trial on the charge of aggravated kidnapping, the jury viewed Rolan's recorded interview of appellant. Appellant also testified at trial. He told of Hooser's theft of his money and his pistol. He particularly wanted the return of his pistol, which his wife had given him for his birthday. At Boyd's house, Crawford and Noblett arrived in their own car, joining appellant, Melton and Burns. Appellant testified the other men found Hooser and beat him. He denied participating in the beating but acknowledged he wrapped tape around Hooser's limbs. The tape did not hold Hooser, and appellant told Noblett to get "something stronger." Noblett returned with the wire, which the men then used to bind Hooser's ankles and wrists.

         Appellant testified Melton wanted to take Hooser away from the house and they loaded the tied-up Hooser into appellant's SUV.[3] Only Burns left with appellant. While appellant drove, Hooser and Burns again began to fight. Burns shot Hooser twice. Appellant drove a short distance, then stopped and left Hooser's body in the street.

         During cross-examination, appellant admitted he said in a voicemail to Hooser's girlfriend that if he found Hooser, "he's not going to be breathing anymore." He also acknowledged he told Noblett in a recorded telephone conversation that "If you find him, call me and I'll come help." He also told Noblett he would "put a bullet in [Hooser's] head." He further agreed with the prosecutor that he told Noblett he had guns and "it would be great if [Hooser] pulled a gun on [me]" because then it would be "legal" that appellant shot Hooser. Appellant admitted he knew Burns had a gun when they stopped to buy the tape. He also agreed he "knew going over there that y'all were going to tie [Hooser] up and carry him out of there."


         Sufficiency of the Evidence

         The court's charge instructed the jury on the requirements of party liability, and the application paragraph authorized the jury to find appellant guilty of the aggravated kidnapping based on his own conduct or as a party.[4]

         In his first issue, appellant challenges the sufficiency of the evidence to support his conviction. Appellant contends the evidence was insufficient because the "uncontroverted testimony established that the force used in removing the decedent from the property was within justifications prescribed by law between defense of persons, third persons, and defense of third person's property." And, he argues, the "force actually used in restraining and removing Hooser from the property was in fact only force, not deadly force."

         In the kidnapping statute, "'abduct' means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force." Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009) (citing Tex. Penal Code Ann. § 20.01(2)). "'Restrain' means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person." Noblett v. State, No. 07-14-00412-CR, 2015 Tex.App. LEXIS 10265 (Tex. App.-Amarillo Sept. 30, 2015) (mem. op., not designated for publication) (citing Tex. Penal Code Ann. § 20.01(1)). Restraint is "without consent" if "accomplished by force, intimidation, or deception." Id. (citing Tex. Penal Code Ann. § 20.01(1)(A).

         In reviewing the sufficiency of the evidence to support a conviction, an appellate court views the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found each essential element of the offense beyond a reasonable doubt. Jackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We make this determination by comparing the elements of the crime as defined by a hypothetically correct jury charge to the evidence produced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). We defer to the jury's determinations as to weight and credibility of the ...

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