      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00373-CR




                                Bartolo Dominguez, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 08-339-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                             MEMORANDUM                   OPINION


               A jury found appellant Bartolo Dominguez, Jr., guilty of aggravated kidnapping and

theft from a person. The jury assessed punishment, enhanced by a previous felony conviction, at

forty-seven years in prison for the aggravated kidnapping and at twenty years in prison for the theft.

In a single point of error, appellant contends that the trial court’s charge incorrectly instructed the

jury regarding the range of punishment for the theft and, as a consequence, the punishment assessed

for that offense exceeds that which is statutorily authorized. We overrule this contention and affirm

the judgments of conviction.

               On the morning of February 26, 2008, Paul Roland, who was seventy-three years old,

was approached by a man and a woman in the parking lot of his apartment building in Williamson

County. At gunpoint, these assailants forced Roland into his own truck, took his keys, watch, and

wallet, and then bound his hands and placed a bandana over his eyes. During this episode, the man
struck Roland on the forehead with the pistol. With Roland bound in the back seat, the two

assailants drove from the apartment complex in Roland’s truck, stopping a few blocks away beside

another vehicle. The two persons who seized Roland got out of the truck, and their place was taken

by three or four other individuals (Roland was unsure of the number). These kidnappers drove to

Buda, where Roland was taken from his truck and placed in a van, and then drove to a motel in

San Antonio. Appellant’s fingerprints were later found in Roland’s truck, and it is undisputed that

he was one of the kidnappers.

               The following morning, Roland’s brother received a telephone call demanding

$500,000 ransom for his safe return. Over the next thirty-six hours, the kidnappers made several

additional calls to arrange for the payment of the ransom. Using the signals from the cell phones

used to make these calls, police traced the kidnappers to the San Antonio motel. On the night of

February 28, police officers stopped the kidnappers’ van as they attempted to move Roland from the

motel to another location. Appellant was driving the van. Roland was found in the back seat with

a bandanna over his face.

               Count one of the indictment alleged in four paragraphs that appellant abducted

Roland (1) with intent to hold him for ransom, (2) with intent to facilitate the commission of theft

of more than $200,000, (3) with intent to inflict bodily injury on Roland, and (4) with intent to

terrorize Roland or his brother. See Tex. Penal Code Ann. § 20.04(a)(1), (3), (4), (5) (West 2003)

(aggravated kidnapping).1 The trial court’s charge authorized the jury to convict appellant for


   1
     As returned by the grand jury, the indictment contained three counts. The original count one,
alleging organized criminal activity, was abandoned by the State, and the remaining counts were
renumbered accordingly.

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aggravated kidnapping or for the lesser included offenses of kidnapping and unlawful restraint. The

jury returned a verdict convicting appellant of aggravated kidnapping. Appellant does not bring

forward a point of error complaining of this conviction or the punishment assessed.

               Count two of the indictment alleged in two paragraphs that appellant, in the course

of committing theft, (1) caused bodily injury to Roland by grabbing or pushing him into one or more

vehicles, striking him with a hand, fist, firearm, or unknown object, or by any combination of these

acts, and (2) threatened or placed Roland in fear of imminent bodily injury or death. See

id. § 29.02(a)(1), (2) (robbery). In both paragraphs, the robbery was aggravated by the allegation that

Roland was sixty-five years of age or older. See id. § 29.03(a)(3)(A) (aggravated robbery). The trial

court’s charge authorized the jury to convict appellant for aggravated robbery or for the lesser

included offense of theft from a person. See id. § 31.03(a), (e)(4)(B) (West Supp. 2009). The jury

returned a verdict convicting appellant of the lesser offense.

               The indictment also contained a “deadly weapon notice” alleging that appellant used

or exhibited a deadly weapon, “namely, a hand, fist, firearm or an unknown object,” during the

commission of or during immediate flight from a felony offense, or was a party to the offense and

knew that a deadly weapon would be used or exhibited. See id. § 12.35(c)(1) (West Supp. 2009)

(providing that state jail felony shall be punished as third degree felony if deadly weapon was used

or exhibited during offense); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp.

2009). This deadly weapon issue was separately submitted to the jury at the guilt stage. The jury

answered the issue affirmatively.




                                                  3
               Finally, the indictment contained a “penalty paragraph” alleging that appellant had

been previously convicted of a felony. Appellant pleaded true to this allegation. Over appellant’s

objection, the trial court’s punishment charge instructed the jury that the punishment range for the

theft-from-a-person offense was two to twenty years. See Tex. Penal Code Ann. § 12.42(a)(3) (West

Supp. 2009) (enhancing punishment for state jail felony punishable under section 12.35(c)).

Appellant urged below, as he now urges on appeal, that the jury’s deadly weapon finding did not

apply to the theft offense. Thus, according to appellant, the theft from a person for which he was

convicted was an ordinary state jail felony, was not punishable under section 12.35(c), and was not

subject to further enhancement pursuant to section 12.42(a)(3). Appellant contends that the proper

range of punishment for this offense was confinement in a state jail for no more than two years or

less than 180 days. See id. § 12.35(a).

               Appellant argues that by acquitting him of aggravated robbery, the jury necessarily

concluded that he did not use a deadly weapon during the commission of the offense alleged in count

two. As appellant expresses it in his brief, “If the jury believed that Appellant used or exhibited a

deadly weapon as part of the offense in Count II, it would have had to convict him of the charged

offense.” Appellant continues, “It is clear . . . when considering Count II, and not being free to

ignore the fact that [Roland] was 74 years old, the jury necessarily believed that a deadly weapon was

not involved. Since the jury reached its decision in this fashion, the deadly weapon finding clearly

does not, and cannot, apply to Count II. Theft from a person plus a deadly weapon, after all, would

be aggravated robbery, the very offense of which the jury determined, by it’s conviction of the lesser

included offense, Appellant was not guilty.”



                                                  4
               Appellant’s argument notwithstanding, there is no necessary inconsistency between

the decision to acquit appellant of aggravated robbery and a finding that a deadly weapon was used

during the lesser included theft. Use of a deadly weapon was not the aggravating element of the

robbery alleged in count two, and the court’s charge did not make appellant’s conviction for

aggravated robbery contingent on a finding that a deadly weapon was used during the offense.

Moreover, the court’s charge authorized appellant’s conviction for aggravated robbery only as the

primary actor, but it authorized appellant’s conviction for the lesser included theft both as the

primary actor and as a party.2 Thus, the jury’s decision to convict appellant for the lesser included

theft offense does not necessarily mean that the jury found that no deadly weapon was used during

the commission of the offenses alleged or included in count two. Consistent with the evidence and

the charge, the jury could have concluded that the State failed to prove that appellant personally

robbed Roland, but that the State did prove that he was a party to a theft from Roland during which

a deadly weapon was used or exhibited.

               The evidence supports the conclusion that a deadly weapon was used or exhibited

during both the aggravated kidnapping and the theft. The evidence also supports the conclusion that

appellant was criminally responsible for this use whether it was his own conduct or the conduct of

another. There is nothing in the record to support appellant’s assertion that the jury’s deadly weapon

finding applied only to the aggravated kidnapping offense. The trial court’s punishment charge




   2
       Aggravated robbery was the only offense submitted to the jury for which the court did not
authorize appellant’s conviction both as the primary actor and as a party. We find no explanation
for this in the record.

                                                  5
incorporated the proper range of punishment for the theft-from-a-person offense, and the punishment

assessed was statutorily authorized.

               The point of error is overruled, and the judgment of conviction is affirmed.




                                             __________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: May 25, 2010

Do Not Publish




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