
NO. 07-04-0230-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 8, 2005
______________________________

ROSE YOUNG, 

								Appellant

v.

THE STATE OF TEXAS, 

								Appellee
_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-404,531; HON. JIM BOB DARNELL, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
	Rose Young appeals her convictions for manufacturing and possessing with intent
to deliver a controlled substance.  Through her sole issue, she contends that the trial court
erred in refusing to grant her motion for new trial based on newly available evidence.  We
affirm the judgment of the trial court.
	Whether the trial court erred in refusing to grant a new trial based upon the
existence of new evidence depends upon whether it abused its discretion.  Keeter v. State,
74 S.W.3d 31, 37 (Tex. Crim. App. 2002).  Additionally, to secure a new trial on the
grounds here involved, the movant must establish that the evidence was 1) previously
unknown or unavailable, 2) unknown or unavailable for reasons other than the lack of due
diligence on the part of the movant, 3) admissible and not merely cumulative, corroborative,
collateral or impeaching, and 4) probably true and probably would result in a different
outcome.  Id. at 36-37; Drew v. State, 743 S.W.2d 207, 226 (Tex. Crim. App. 1987). 
Finally, it must be remembered that courts should proceed cautiously in granting new trials
on the basis that new evidence has been obtained since motions of that ilk are not favored. 
Drew v. State, 743 S.W.2d at 225-26.  With that said, we turn to the dispute before us.
	The purportedly new or previously unavailable evidence consists of testimony that 
appellant knew nothing of the controlled substance being made in or present at her abode. 
Furthermore, this testimony was to come from her husband, who had been tried and
convicted for the activity resulting in appellant's conviction.  After being convicted, he
became willing to exculpate his wife by attesting that he allowed a friend to manufacture
the substance at appellant's residence without appellant's knowledge.  Yet, appearing of
record is a presentence investigation report.  In it, appellant admitted to knowing that her
husband allowed a friend to visit their abode and that the friend wanted to make a "'batch,"
though appellant "did not realize" that items were in the house with which the controlled
substance could be made.  We note the patent inconsistency between appellant's
statement that she knew her husband had a friend over to make a "'batch'" and her
husband's statement that she knew nothing of the cook.  
	Moreover, the admission by appellant that she knew of her husband's conduct tends
to negate the argument that the evidence he deigned to reveal after his conviction was
either unknown by or unavailable to appellant.  Indeed, knowing of the circumstances, she
could have disclosed them at trial by testifying herself.  Moreover, had she so testified, then
the comments of her husband could be likened to mere corroboration of her statements. 
Thus, the trial court had ample basis upon which to conclude that appellant failed to satisfy
either the first or third elements of Keeter and Drew, as stated above.  See Drew v. State,
supra (rejecting the contention that the statements of a third party were newly available or
discovered because though the declarant may not previously have been available, his
statements that Drew was uninvolved were "certainly known to the appellant at the time of
trial").  
	In short, we 1) conclude that the trial court did not abuse its discretion in overruling
the motion for new trial, 2) overrule the issue, and 3) affirm the judgment.      

								Brian Quinn
							          Chief Justice           
 
Do not publish.
 

 prove that Beck was voluntarily released in a safe place, appellant contends that
he only had to show that Beck was released "in a place and manner which realistically
conveys to the victim that he/she is now freed from captivity and is now in circumstances
and surroundings wherein aid is readily available."  See Wiley v. State, 820 S.W.2d 401,
411 (Tex.App.-Beaumont 1991, no writ).   Appellant further contends that there is no
evidence to support the jury's rejection of his affirmative defense and that he has proven
his position as a matter of law. (1) 
	In an aggravated kidnapping case, it is an affirmative defense on punishment that
the kidnapper voluntarily released a victim in a safe place.  Brown v. State, 98 S.W.3d 180,
186 (Tex.Crim.App. 2003).  If the defendant proves that he voluntarily released the victim
in a safe place by a preponderance of the evidence, the offense is reduced to a second
degree felony.  See Tex. Pen. Code Ann. § 20.04(d) (Vernon 2003).  To determine if the
evidence is legally sufficient to support the jury's rejection of appellant's affirmative
defense, we first examine the record for evidence which supports the jury's rejection while
ignoring evidence to the contrary.   If there is no evidence to support the jury's rejection,
we then examine whether the contrary is established as a matter of law.  Nolan v. State,
102 S.W.3d 231, 238 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). 
	For factual sufficiency review, the burden of proof at trial dictates the standard of
appellate review.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).  When the
defendant has asserted an affirmative defense or has the burden of proof on an issue, a
reviewing court considers all the evidence and determines whether the judgment is so
against the great weight and preponderance of the evidence as to be manifestly unjust. 
Id. at 482.  In a review of the evidence for factual sufficiency,  we review the evidence in
a neutral light. See id. at 481.
	To determine whether the evidence is legally sufficient to support the jury's rejection
of appellant's affirmative defense, we look to the evidence supporting the jury's rejection
and ignore all evidence to the contrary.  Nolan, 102 S.W.3d at 238.  In assessing whether
appellant released his victim in a safe place, we review the surrounding circumstances of
the release, and will consider factors such as: (1) the remoteness of the location; (2) the
proximity of authorities or persons who could aid or assist; (3) the time of day; (4) climatic
conditions; (5) the condition of the victim; (6) the character of the location or surrounding
neighborhood; and (7) the victim's familiarity with the location or surrounding neighborhood. 
Id.   The evidence before the jury reflects that Beck was threatened, beaten, burned, and
unable to walk or stand. The jury was also informed that Beck's injuries consisted of burns
to his arm, multiple fractures to his leg, and broken bones in both hands.  The testimony
does not show that anyone else was present at appellant's business except Beck,
appellant, and appellant's accomplices; hence, there was no evidence of anyone being
outside the building, in the parking lot, or nearby to aid or assist Beck.   Therefore, we
conclude that the evidence was legally sufficient to support the jury's rejection of appellant's
affirmative defense. (2) 
	We next review the evidence for factual sufficiency to decide whether the jury's
rejection of appellant's affirmative defense was so against the great weight and
preponderance of the evidence as to be manifestly unjust.  See Zuniga, 144 S.W.3d at 482. 
In our factual sufficiency review, we review all of the evidence neutrally but do not intrude
on the factfinder's role as sole judge of the weight and credibility to be given to the
evidence.  Cleveland v. State, No. 01-03-01040-CR, 2005 WL 826943, at *13,
(Tex.App.-Houston [1st Dist.], April 7, 2005, pet. ref'd).  Recalling the Nolan factors, we
note that the record is silent on the remoteness of the location, climatic conditions, or the
character of the location or surrounding neighborhood.  The time of Beck's release was
during daytime hours.  Beck had worked for appellant for approximately eight months and
was familiar with the location and surrounding neighborhood.  In addition, appellant
threatened Beck and his family, but there is no evidence that anyone followed Beck as he
left the premises.  These facts would presumably factor against the jury's rejection. In
contrast, we consider the severity of Beck's physical injuries and his inability to walk, thus,
necessitating him crawling to his car.  We also note that the dog and other accomplice that
had attacked Beck were unaccounted for and could have continued to pose a threat to
Beck's safety.  Finally, we consider that no immediate aid was available and Beck had to
drive himself to his home to seek medical attention from his wife.  Since the factfinder is in
the best position to evaluate the weight and credibility of the testimony, we will defer to the
jury's rejection of appellant's affirmative defense since the evidence we have reviewed
does not indicate that the jury's rejection is so against the great weight and preponderance
of the evidence as to be manifestly unjust.
	Viewing only the evidence supporting the jury's rejection, we conclude the evidence
is legally sufficient to support the jury's rejection of appellant's affirmative defense.  As for
factual sufficiency, the jury had evidence supporting and opposing the jury's rejection of
appellant's affirmative defense.  We cannot conclude that the jury's rejection of appellant's
affirmative defense was so against the great weight and preponderance of the evidence
as to be manifestly unjust, or that the evidence would require this court to intrude upon the
jury's role as sole judge of the weight and credibility given to the witnesses's testimony. 
Thus, we conclude that the evidence is legally and factually sufficient to support the jury's
rejection of appellant's affirmative defense.  We overrule appellant's first issue.
Issue two:   Inclusion of definitions within a court's charge
 Appellant contends that the trial court has a duty to prepare a written charge setting
forth the applicable law.  While acknowledging that neither "voluntarily" or "safe place" are
statutorily defined, appellant contends that the trial court was required to include definitions
for "voluntarily" and "safe place" in the court's charge because "safe place" has acquired 
a technical legal meaning and because "voluntarily" is ambiguous. 
	An appellate court must first determine whether error exists in the jury charge. 
Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996).  If the error in the charge was
the subject of a timely objection, then reversal is required if the error was calculated to
injure the rights of defendant which means no more than there must be some harm to the
accused from the error.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). 
	Since neither "voluntarily" nor "safe place" are statutorily defined, the court is under
no duty to define the terms for the jury unless (1) the terms have acquired a technical legal
meaning and (2) there is a risk that the jury would arbitrarily apply their own personal
definitions or that the definitions are necessary for a fair understanding of the evidence. 
See Middleton v. State, 125 S.W.3d 450, 454 (Tex.Crim.App. 2003).  A term will be defined
and given a technical legal meaning when it is shown that the term (1) has different
meanings in different contexts, and (2) as used in the case, does not have a meaning
consistent with the common and ordinary meaning that we can presume jurors to know and
apply.  Middleton, 125 S.W.3d at 459-60 (Price, J., dissenting).  Without being specially
defined, "voluntarily" and "safe place" are to be taken and understood in their usual
acceptation in common language.  See Tex. Code Crim. Proc. Ann. art. 3.01 (Vernon
2005). 
	Although appellant has cited several cases for the contention that "safe place" has
acquired a technical legal meaning by being judicially defined, (3) those cases do not support
appellant's contention.  Appellant's cited cases discuss evidentiary sufficiency or
appellant's entitlement to an instruction on the affirmative defense of voluntary release in
a safe place, but do not address whether a definition for "safe place" must be included in
the court's charge.  Appellant has not demonstrated that "safe place" may be defined
differently in different contexts or how the proposed definition differs from the common
usage.  Thus, we conclude that appellant has not shown that "safe place" requires a
definition as a term with a technical legal meaning.
	In addition, appellant's argument that "voluntarily" is ambiguous is insufficient to
support his request for its definition in the court's charge.  Appellant has failed to
demonstrate that the jurors were unable to deliberate without a definition.  A jury that
creates its own definition doesn't necessarily do so arbitrarily; by considering the
instructions in the court's charge and the word in context, it is possible for a jury to arrive
at a proper meaning or definition.  See Andrews v. State, 652 S.W.2d 370, 376-77
(Tex.Crim.App. 1983).  Appellant has not directed us to any evidence to show that the jury
arbitrarily applied their own personal definition to "voluntarily" or that the definition was
necessary for a fair understanding of the evidence.   Therefore, we conclude that appellant
has failed to show that the trial court erred by declining to include either requested definition
in the court's charge.
	Appellant has failed to demonstrate that "safe place" has acquired a technical legal
meaning, or that the jury was unable to arrive at the common definition and usage of the
word "voluntarily" without a definition included in the court's charge.  We overrule
appellant's second issue.
Issue three: Improper jury argument

 Appellant contends that the State's closing argument was improper because the
State's argument of "safe place" was contrary to law.  Appellant claims that the closing
argument did not fall within a permissible area of jury argument and that he was harmed
because the jury did not deliberate on his case with the correct and applicable law.
 Proper jury argument may include (1) a summation of the evidence presented at
trial; (2) reasonable deductions drawn from evidence presented at trial; (3) a response to
opposing counsel's argument; or (4) a plea for law enforcement.  See Lagrone v. State, 942
S.W.2d 602, 619 (Tex.Crim.App. 1997).  To constitute reversible error, the argument must
be violative of a statute, inject new facts harmful to the accused into the trial proceedings,
or be manifestly improper, harmful and prejudicial to the rights of the accused.  Wilson v.
State, 938 S.W.2d 57, 59 (Tex.Crim.App. 1996).  In reviewing challenges to jury argument,
the court is to consider the remarks within the context in which they appear.  Gaddis v.
State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).
	Appellant's third issue is based upon his belief that "safe place" is defined as "a
release occurring in a place and manner realistically conveying to the victim that he is freed
from captivity and is in circumstances and surroundings wherein aid is readily available." 
He claims that the State's argument was improper because it focused on the fact that Beck
had been tortured, there was no help at the site, the site was not a hospital, and there was
no doctor present to assist or aid Beck.  Appellant further claims that the State erroneously
led the jury to consider Beck's injuries, the fact that he had to crawl to his car and drive
himself away, and that help was not readily available as additional factors relevant to the
jury's determination of "safe place."   
	However, as previously noted, there is no statutory definition for "safe place," and
the jury is allowed to assess the evidence necessary to develop a definition of "safe place"
as that term is commonly used.  Many factors can be considered in assessing whether
appellant released his victim in a safe place including the condition of the victim, the
proximity of authorities or persons who could aid or assist, and the remoteness of the
location.  Nolan, 102 S.W.3d at 238.  The State's strategy of directing the jury to consider
these factors was a permissible use of closing argument because it summarized the
evidence as well as provided a reasonable inference in which to deliberate on the
affirmative defense raised by appellant.
	We conclude that the State's argument of "safe place" constituted a summation of
evidence presented at trial and reasonable deductions to be drawn from evidence
presented at trial.  We overrule appellant's third issue.
Conclusion

	For the foregoing reasons, we affirm.  	

					Mackey K. Hancock
Justice




Publish.  

 




1. Although appellant includes "voluntarily" in his sufficiency argument, the State does
not contest that appellant voluntarily released Beck.  Therefore, we will limit our review of
the jury's rejection of appellant's affirmative defense to whether the release was made in
a "safe place."  See Tex. R. App. P. 47.1.
2. Although appellant contends that he has proven the affirmative defense as a matter
of law, that is only a consideration when there is no evidence to support the jury's rejection. 
Nolan, 102 S.W.3d at 238.  Since we have determined that evidence existed to support the
jury's rejection, we need not address whether appellant proved his affirmative defense as
a matter of law.  See Tex. R. App. P. 47.1.
3. See Harrell v. State, 65 S.W.3d 768, 772 -773 (Tex.App.-Houston [14th Dist.] 2001
pet. ref'd); Flowers v. State, 959 S.W.2d 644, 646 (Tex.App.-Houston [1st Dist.] 1996, writ
ref'd); Wiley v. State, 820 S.W.2d at 411; Carreon v. State, 63 S.W.3d 37, 39-40
(Tex.App.-Texarkana 2001, pet. ref'd).
