Court of Appeals of Texas, Sixth District, Texarkana
Submitted: January 17, 2018
Appeal from the 5th District Court Bowie County, Texas Trial
Court No. 14F0217-005
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice
Facts and Procedural Background
about December 19, 2009, Aaron Lucas abducted seven-year-old
Melinda from the playground next to an apartment
building in Texarkana where she was visiting relatives. Lucas
transported Melinda to a warehouse and sexually assaulted
her. Melinda testified that she was frightened, screaming,
and banging on the car windows and that she could not open or
unlock the car door. She also testified that Lucas threatened
to kill her and struck her at least twice on the lip. After
assaulting her, Lucas returned Melinda to the playground area
and released her near a gate to the apartment complex.
Melinda said she ran to the porch, where her brother found
her. She told her brother what happened, who then told their
mother, and her mother contacted police.
State charged Lucas with three offenses in two indictments.
All of the offenses charged arose from this same transaction.
In the indictment under which Lucas was convicted in this
case, the State charged Lucas with aggravated kidnapping. In
a second indictment, the State charged Lucas with one count
of aggravated sexual assault and one count of indecency with
a child. All three charges were tried together. At trial, the
trial court treated the indecency with a child charge as a
lesser-included offense. The jury rejected the
lesser-included offense and found Lucas guilty of aggravated
sexual assault of a child. The trial court then dismissed the
indecency count in response to the State's post-trial
motion. The jury also found Lucas guilty of aggravated
kidnapping as charged in the indictment in this case.
appealed his conviction for aggravated sexual assault of a
child in a companion case, our cause number 06-17-00095-CR.
In that opinion, we affirmed the conviction and sentence. In
the present case, Lucas appeals his conviction for aggravated
kidnapping. He raises two points of error in this
appeal. First, Lucas argues that the trial court erred in
failing to dismiss the State's indictment as a result of
the State's failure to comply with the terms of the
Interstate Agreement on Detainers Act (IADA). Second, he argues
that the jury should have found in his favor on his
affirmative defense that he released his victim in a safe
place. We find no reversible error and affirm the trial
court's judgment and sentence.
Lucas' companion case, Lucas argued that the trial court
erred in granting the State's request for a continuance
that resulted in his trial being held eight days after the
expiration of the 180-window contemplated by the IADA. We
addressed that question in our opinion in cause number
06-17-00095-CR, and concluded that the trial court's
decision to grant the continuance was neither clearly
erroneous nor an abuse of discretion. Lucas raises the same
issue in this case, and for the same reasons explained in our
opinion in cause number 06-17-00095-CR, we find that the
trial court's continuance was reasonable in this case.
Lucas' first point of error is overruled.
Reasonable Jury Could Reject Affirmative
next challenges the jury's rejection of his affirmative
defense. At the punishment phase of trial, a person who has
been convicted of aggravated kidnapping may assert that he
"voluntarily released the victim in a safe place."
Tex. Penal Code Ann. § 20.04(d). If the defendant proves
this affirmative defense by a preponderance of the evidence,
the offense is reduced from a first to a second degree
felony. Id.; see also Butcher v. State, 454
S.W.3d 13, 14 (Tex. Crim. App. 2015). Lucas argues that the
jury erred in rejecting his asserted affirmative defense
because he conclusively proved that he left Melinda at a safe
location. We disagree.
defendant bears the burden of proof when asserting an
affirmative defense. Wheat v. State, 165
S.W.3d 802, 807 n.6 (Tex. App.-Texarkana 2005, pet.
ref'd, untimely filed). Although the Court of Criminal
Appeals has eliminated factual sufficiency review of
convictions in criminal cases,  the failure of a jury to find an
affirmative defense is still reviewed for both legal and
factual sufficiency. Butcher, 454 S.W.3d at 20.
[w]hen an appellant asserts that there is no evidence to
support an adverse finding on which she had the burden of
proof, we construe the issue as an assertion that the
contrary was established as a matter of law. We first search
the record for evidence favorable to the finding,
disregarding all contrary evidence unless a reasonable
fact[-]finder could not. If we find no evidence