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Bertram v. State

Court of Appeals of Texas, First District

May 30, 2019


          On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1519159

          Panel consists of Justices Keyes, Higley, and Landau.



         Appellant, David Patrick Bertram, was found guilty by a jury of the offense of attempted aggravated kidnapping.[1] After finding an enhancement allegation- alleging that Appellant had been previously convicted of aggravated sexual assault of a child-to be true, the trial court sentenced Appellant to 50 years in prison.

         Appellant raises three issues on appeal. In his first issue, Appellant contends that the trial court erred when it denied his motion to quash the indictment. In his second and third issues he contends that the evidence was not sufficient to support the judgment of conviction.

         We affirm.


         Twenty-year-old Fatima lived in a Houston apartment complex and worked at a restaurant. She worked nearly every day with her shift starting at 1:00 p.m. She got to work by walking, using the sidewalk along Mesa Street.

         Mid-day on March 22, 2016, Fatima left her apartment and started her walk to work. She was talking on her cell phone as she walked. Fatima noticed a man, later identified as Appellant, standing at the bus stop. She passed him and continued to walk. Fatima glanced back and noticed that Appellant was walking about a car's length behind her. Her workplace is on the same side of the street as her apartment complex, so she normally did not cross the street. However, because she felt afraid, Fatima crossed to the other side of the street at an intersection.

         When she crossed the street, Appellant followed her. He was a little over an arm's length behind her. Fatima looked back and saw Appellant reaching out with his hand towards her. Fatima later testified at trial that she began "to run, walk quickly," and that Appellant was "walking fast" behind her.

         Fatima again crossed the street, but this time she crossed mid-block. Fatima ran across the street, but she tripped and fell as she reached the other side. Appellant followed Fatima across the street but was delayed by a passing car.

         When asked what happened after she fell, Fatima testified that she began to crawl and that Appellant "walk[ed] slowly to where [she] was." She said she thought that Appellant "was going to grab [her] cell phone," but he did not. Instead, Appellant grabbed Fatima's left arm with both his hands and squeezed. Fatima testified that Appellant "wasn't helping me, he was hurting my arm."

         During trial, the State offered photographs of points along Fatima's walking route on Mesa Street, including where Appellant grabbed Fatima. Fatima referenced the photographs as she testified.

         Fatima testified that, after he grabbed her, Appellant "wanted to . . . pull me towards a place." She said that he "pulled [her] backwards . . . towards over here." She said that, when he pulled her backwards, she scraped her knee. She stated that the scrape "hurt [her] really bad."

         Fatima saw that Appellant had a white handkerchief in his right hand. Appellant was moving the handkerchief toward her face. Fatima believed that Appellant was trying to put the handkerchief in her mouth. She testified that she started moving her head to prevent Appellant from putting the handkerchief in her mouth. When she moved her head, Appellant squeezed her arm harder.

         A passing motorist, M. Thomas, saw Appellant "trying to grab" Fatima. Thomas testified at trial that Fatima looked "scared" and appeared to be "trying to get away from [Appellant]." Thomas's girlfriend, R. Jones, was also in the car. She saw Fatima walking quickly away from Appellant. Jones said that she saw Appellant trying "to trip" Fatima. Jones testified that Fatima was "trying to move back" from Appellant but then Appellant grabbed Fatima's arm. Jones believed that Appellant was "trying to mess with" Fatima.

         Thomas and Jones decided to go back to help Fatima. As he turned his car around, Thomas saw Appellant grab the complainant by her shoulder and saw Fatima trip. Jones testified she saw Appellant "gripping" Fatima. She said that Appellant slipped, and Fatima "stumbled" with him. Jones saw Fatima pull away from Appellant and then Appellant reached out to grab Fatima again.

         By the time Thomas and Jones reached them, Appellant and Fatima were in the parking lot of a tire shop. Thomas drove his car in between Appellant and Fatima, and he got out of the vehicle. Thomas saw that Fatima was scared, shaking, and crying. Thomas could not speak with Fatima because she speaks only Spanish.

         Thomas said that Appellant then walked around the car "to get to [Fatima]." Thomas stopped Appellant and asked him what he was doing. Appellant told Thomas, "[M]ind your [own] business. You don't know what's going on." They asked Appellant how he knew Fatima, and he told them to mind their own business. Appellant said that he was just trying to ask Fatima the time. Jones testified that Appellant had a "crazy" and "scary" look on his face. Thomas described Appellant as being "semi-aggressive."

         With the help of a Spanish-speaking employee of the tire shop, Thomas learned that Fatima did not know Appellant. Thomas told Fatima to get in the car. Appellant approached Thomas's car, and Thomas told him to step away because his two young daughters were in the backseat. Thomas told Jones to drive away with Fatima. Jones took Fatima to the restaurant where she worked and then returned to the tire shop.

         Thomas asked the tire shop employees to call the police. Appellant then quickly walked away. Thomas and Jones flagged down a passing Houston Police Department patrol car driven by Officer M. Rocchi. They pointed down the street to Appellant. Officer Rocchi and his partner detained Appellant. Officer Rocchi testified that Appellant had "a very calm demeanor" and did not ask why he had been detained, which Officer Rocchi "found kind of odd."

         Officer Rocchi went to the restaurant where Fatima worked. He observed that Fatima was still shaking and crying. He saw that she had scratches, bruises, and redness on her shoulder, which he agreed was consistent with someone grabbing and pulling her arm. Later that day, the police photographed Fatima. The photos show red marks on Fatima's arm.

         Appellant was indicted for the offense of attempted aggravated kidnapping. Appellant filed a motion to quash the indictment, which was denied by the trial court.

         At trial, the State offered the testimony of the Officer Rocchi, Fatima, Thomas, and Jones. The State's exhibits include photographs of the route walked by Fatima along ...

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