       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00565-CR




                                       Antonio Rogers , Appellant

                                                     v.

                                     The State of Texas, Appellee


                FROM THE CRIMINAL DISTRICT COURT 3 OF TARRANT COUNTY
               NO. 0795630A, HONORABLE DONALD LEONARD, JUDGE PRESIDING



                A jury convicted appellant Antonio Rogers of burglary of a habitation with intent to commit

kidnapping and the district court assessed punishment at ten years in prison. See Tex. Pen. Code Ann. '

30.02 (a)(1) (West Supp. 2002). Appellant contends on appeal that the evidence is legally insufficient to

support his conviction.1 We conclude that the evidence is legally sufficient and we affirm the judgment of the

trial court.


                                     FACTUAL BACKGROUND

                In early 2001, the complainant, Candida Chavira, and her baby daughter lived with her

parents in an apartment complex in Euless. After living with Delphino Romero, the father of her daughter,


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           The indictment charged appellant with four counts of burglary of a habitation, setting out three
means by which he committed that offense, i.e., burglary with the intent to commit kidnapping, theft, and
assault of Mr. and Mrs. Chavira.
for approximately a year, Candida left with the baby and moved into her parents= home. Romero began

making threats against the Chavira family. In the early morning hours of February 1 2001, Romero,

together with appellant and three other individuals, drove to the Chaviras= apartment complex. One of the

individuals looked inside the Chaviras= window. The driver of the car, Crystal Davis, then knocked on the

Chaviras= door. As Mr. Chavira opened the door, Davis ran back to the car. Wearing bandannas over

their faces, appellant and two other male individuals beat Mr. Chavira on his face and chest, leaving him

with a broken nose and fractured rib, and knocked Mrs. Chavira unconscious. After entering the

apartment, Romero went to Candida Chavira=s bedroom where she was asleep with her daughter. He then

grabbed the baby in one hand and Candida in the other, rushing them out the door and into the waiting car.

                Davis dropped Romero, Candida, and the baby off at a nearby shopping center parking lot

where Romero had left his truck. Romero took Candida and the baby to Mexico and kept them there for

over three weeks. Through Romero=s father, Mr. Chavira arranged their release and picked them up at a

bus station in Monterrey, Mexico.


                                              DISCUSSION

                Appellant argues that Candida=s testimony Ais riddled with problems@ and consequently the

evidence is legally insufficient to establish his intent to commit an abduction. At trial, appellant sought to

show on cross-examination of the State=s witnesses that no kidnapping occurred and the complainant left

the apartment voluntarily with Romero and the others.




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                In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable

to the verdict. We determine whether any trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Conner v. State, 67

S.W.3d 192, 197 (Tex. Crim. App. 2001); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

1988). When conducting a sufficiency review, we consider all the evidence admitted, whether proper or

improper. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Chambers v. State, 805

S.W.2d 459, 460 (Tex. Crim. App. 1991). Every fact need not point directly and independently to the

defendant=s guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A conclusion of

guilt can rest on the combined and cumulative force of all incriminating circumstances. Id. On appeal, we

do not reevaluate the weight and credibility of the evidence; rather, we consider only whether the jury

reached a rational decision. Hines v. State, No. 1026-01, slip op. at 5, 2002 Tex. Crim. App. LEXIS

160, at *10-11 (Tex. Crim. App. May 22, 2002); Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim.

App. 1993).

                To prove appellant committed burglary with intent to commit kidnapping, the State must

show that, without the effective consent of the owner, appellant entered the habitation intending to kidnap.

See Tex. Pen. Code Ann. ' 30.02(a)(1). A person commits the offense of kidnapping when he knowingly

or intentionally abducts another person. Id. ' 20.03(a) (West 1994). To Aabduct@ means to restrain a

person with intent to prevent her liberation by either secreting or holding her in a place where she is not

likely to be found, or using or threatening to use deadly force. Id. ' 20.01(2) (West Supp. 2002).

ARestrain@ means to restrict a person=s movements without consent, so as to interfere substantially with the

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person=s liberty, by moving the person from one place to another or by confining the person. Id. '

20.01(1). Such restraint is Awithout consent@ if it is accomplished by force, intimidation, or deception. Id. '

20.01(1)(A). For a jury to find that a person=s liberty has been substantially interfered with, the State is not

required to prove that a defendant moved his victim a certain distance or that he held his victim a specific

length of time. See Hines, 2002 Tex. Crim. App. LEXIS 106, at *8.

                 Intent, as an essential element of this offense, must be proved by the State beyond a

reasonable doubt; it may not be left simply to speculation and surmise. However, the jury is exclusively

empowered to determine the issue of intent, which may be inferred from the defendant=s conduct and

words, and the surrounding circumstances. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).

                 At trial, Crystal Davis and Candida Chavira testified to appellant=s role in the events.

Pursuant to a plea bargain, 2 Davis testified to the manner in which Romero assembled the individuals who

participated in the events of February 1. Davis described how Romero solicited her to act as a lookout and

driver of the getaway car. She testified that on the day in question she met appellant at a gas station when

he arrived with Romero in Romero=s truck. At the gas station, Romero gave Davis five dollars for gas and,

along with her boyfriend and sister, she followed Romero to an abandoned parking lot. At the parking lot,

Romero, appellant, and two other males left Romero=s truck and got into Davis=s car. Davis stated that, in

appellant=s presence in her car, Romero described how the group would Akick in somebody=s door@ and

steal an Ozarka water bottle containing money. She observed her passengers, including appellant, prepare


        2
         Davis received deferred adjudication for the offense of burglary of a habitation with intent to
commit kidnapping.

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for the dynamic entry of the apartment by wrapping their hands in duct tape and wearing bandannas on their

faces. In response to Romero=s desire to hurry and get the encounter over with, appellant urged Romero

Ato make sure he knew what he was doing before he just ran in there.@

                 Davis told how the four men, including appellant, lined up along the wall to push in the

Chaviras= door when it opened. She testified that she knocked on the Chaviras= door so that the Chaviras

would not see Romero or the other males. She saw the assailants as they started to force their way into the

apartment, and then she ran back to the car to prepare for immediate departure.

                 Mr. Chavira testified that after he heard someone knocking and he opened his door, three

individuals forced their way into his residence, beat him with their fists and then turned on his wife, who they

beat unconscious. Candida Chavira testified that she awoke to noise and Acommotion@ in the living room.

As Romero rushed into the bedroom, he grabbed the baby and pulled her out of the apartment, advising her

AI told you not to fC with me.@ She testified that she was Ascared@ when Romero grabbed the baby and

when she saw her mother on the floor. One of the other males shoved her into the waiting car. She

identified appellant as one of the individuals in the car; she knew appellant because he was Romero=s close

friend. The complainant was wearing pajamas and she had no change of clothes, glasses, diapers or food

for her baby, or her inhaler for a medical condition.

                 Davis testified that she witnessed appellant and the other two males run back to the car

together.3 When Romero, appellant, and the other two males returned to the car, she heard appellant and


        3
         A neighbor testified that he called 911 when he saw three unidentified men run from the Chavira
apartment.

                                                        5
one of the males say they Afought@ Mr. Chavira. Davis described how, at Romero=s direction, she drove

away fast. She dropped off Romero, Candida, and the baby at his truck, and then dropped the others off

at various locations. She dropped appellant off last. Candida testified that she was subsequently held in

Mexico for three weeks against her will and that her father, with the assistance of the police and the FBI,

obtained her release.

                Viewed in the light favorable to the verdict, the evidence supports the jury=s conclusion that

appellant entered the habitation, without the effective consent of the owner, with the intent to abduct the

complainant. Although the evidence does not establish that appellant was aware of or participated in the full

extent of the scheme to transport the complainant and her baby to Mexico, the evidence establishes that the

assailants restrained Candida when they shoved her into the getaway car. See Santellan v. State, 939

S.W.2d 155, 163 (Tex. Crim. App. 1997) (holding that the act of loading victim in car and driving away

was sufficient to constitute Arestraint@ under kidnapping statute); see also Hines, 2002 Tex. Crim. App.

LEXIS 106, at *11-12. Moreover, the State need only prove that appellant had the requisite intent, not

that he accomplished the restraint. The evidence shows that appellant expressed his desire to participate in

the forcible entry of the Chaviras= apartment, and prepared for the entry of the apartment by protecting his

knuckles with duct tape and wearing a bandanna. He also expressed a desire to make sure the participants

knew what they were going to do, and he participated in the actual abduction. Reviewing all the evidence,

we hold that a rational juror could have found that appellant entered the habitation with the intent to commit

kidnapping.




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                                             CONCLUSION

                Appellant=s claim that the evidence is not legally sufficient is without merit. Appellant=s point

of error is overruled and the judgment is affirmed.




                                                   Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: June 6, 2002

Do Not Publish




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