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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS


RICHARD LANCE McLAREN,

                            Appellant,

v.

THE STATE OF TEXAS,

                            Appellee.

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No. 08-97-00651-CR

Appeal from the

394th District Court

of Brewster County, Texas

(TC# 3346)

O P I N I O N


	Richard Lance McLaren was indicted for engaging in organized criminal activity
by conspiring to commit the aggravated kidnaping of Joe and Margaret Ann Rowe.  The
State alleged that McLaren performed the overt act of abducting the Rowes in pursuance
of the conspiracy.  McLaren was convicted by a jury and sentenced by the trial court to
ninety-nine years' confinement.  On appeal, we held that there was no evidence that
McLaren performed the overt act of abducting the Rowes.  See McLaren v. State, 2
S.W.3d 595, 598-99 (Tex. App.--El Paso 1999), rev'd sub nom. Otto v. State, 95 S.W.3d
282 (Tex. Crim. App. 2003).  We therefore reversed the conviction and rendered a
judgment of acquittal.  Id. at 600.
	The Court of Criminal Appeals subsequently reversed our judgment, holding that
the State was not required to prove that McLaren abducted the Rowes.  See Otto v. State,
95 S.W.3d 282, 284-85 (Tex. Crim. App. 2003).  The court remanded the cause for us to
consider the remaining issues raised by McLaren in his appeal to this Court.  Id. at 285. 
Finding no reversible error regarding those issues, we affirm.
Factual Background
	McLaren is the "ambassador" of the "Republic of Texas," a militia-type
organization whose members believe that Texas is a sovereign nation that was never
legally annexed by the United States.  McLaren, 2 S.W.3d at 596 n.1.  There was
animosity between the Republic of Texas and the Rowes because the Rowes had reported
the group's activities to the county sheriff.  Id. at 596.  One of their reports to the sheriff
apparently resulted in the arrest of a member of the group.  Id.  Shortly after the arrest,
three Republic of Texas members forcibly entered the Rowes' house and held them
captive.  Id.  The kidnappers eventually relinquished control of the Rowes' house and left
the Rowes there.  It is undisputed that McLaren was not present at the Rowes' house
during the kidnaping.  Id. at 596-97.
Prosecutors' Argument
	McLaren contends that the trial court erred by allowing the prosecutors to argue
that the jury could consider the law of parties, because the law of parties was not included
in the jury charge.  See Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990) ("[I]t
is error for the State to present a statement of the law that is contrary to that presented in
the charge to the jury.").
	We believe the Court of Criminal Appeals' decision in this case requires us to
reject McLaren's contention.  The court held that McLaren's "involvement in the
planning, execution, and aftermath of the kidnaping was tantamount to encouraging,
directing, aiding, or attempting to aid in the offense, and therefore, it authorized a
conviction under the law of parties."  Otto, 95 S.W.3d at 285.  Because the Court of
Criminal Appeals thus held that the law of parties applies to this case, we cannot say that
it was improper for the prosecutors to refer to the law of parties in their closing
arguments.
Jury Charge
	McLaren asserts that the trial court erred by instructing the jury that certain facts
do not constitute a defense to organized criminal activity.
	Section 71.03 of the Texas Penal Code prohibits a defendant from asserting the
following facts as a defense:
	(1) one or more members of the combination are not criminally responsible
for the object offense;

	(2) one or more members of the combination have been acquitted, have not
been prosecuted or convicted, have been convicted of a different offense, or
are immune from prosecution;

	(3) a person has been charged with, acquitted, or convicted of any [of the
object] offense[s] . . . ; or

	(4) once the initial combination of three or more persons is formed there is a
change in the number or identity of persons in the combination as long as
two or more persons remain in the combination and are involved in a
continuing course of conduct constituting an offense under this chapter.

Tex. Pen. Code Ann. § 71.03 (Vernon 2003).  Attempting to track this statutory
language, the court instructed the jury:
		It is no defense to prosecution for the offense of Engaging in
Organized Criminal Activity that one or more members of a combination
are not criminally responsible for the offense as charged in a particular case;
that one or more members of a combination have been acquitted, have not
been prosecuted or convicted, have been convicted of a different offense, or
are immune from prosecution; or that there is a change in the number or
identity of persons to a combination, as long as the initial combination of
three or more persons is formed and two or more persons remain in a
combination and are involved in a continuing course of conduct constituting
the offense charged in the indictment.

	McLaren argues that it was improper to include this instruction in the jury charge
because there was no evidence regarding any of the defenses excluded by section 71.03. 
See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2003) (requiring court to give
jury a written charge "setting forth the law applicable to the case"); Tro v. State, 101 Tex.
Crim. 185, 188, 274 S.W. 634, 635 (1925) ("[A] charge should not be given which is
inapplicable to the evidence, or which presents a defense or an issue not made by the
evidence."); cf. Dowden v. State, 537 S.W.2d 5, 7 (Tex. Crim. App. 1976) (stating that it
is useless and confusing to include in the charge statutory provisions that cannot be relied
upon for a conviction).  But see Martinez v. State, 157 Tex. Crim. 603, 606, 252 S.W.2d
186, 187-88 (1952) (holding that it was permissible to include statutory elements that did
not apply to the case in the abstract portion of the charge).
	Assuming that the court erred by instructing the jury regarding the excluded
defenses, we must determine whether McLaren was harmed by the error.  Because
McLaren objected to the instruction, the question is whether he suffered "some harm." 
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  McLaren has the burden
to suggest how prejudice may have occurred.  Ovalle v. State, 13 S.W.3d 774, 787 & n.38
(Tex. Crim. App. 2000).
	McLaren argues that prejudice occurred because the instruction confused the jury. 
In particular, he complains of this language:  "It is no defense to prosecution for the
offense of Engaging in Organized Criminal Activity that one or more members of a
combination are not criminally responsible for the offense as charged in a particular
case."  McLaren asserts that this instruction allowed the jury to find him guilty even if it
believed he was not criminally responsible.  He argues that the jurors must have
considered this instruction important because they underlined the words "criminally
responsible for the offense."
	We must consider McLaren's argument in light of the entire jury charge, the
arguments of counsel, the state of the evidence, and any other relevant information
revealed by the record.  Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171.
	The complained-of instruction was included in the abstract portion of the charge. 
The application paragraphs of the charge accurately set forth the elements of the offense
and authorized a conviction only if the jury found those elements beyond a reasonable
doubt.  Thus, the application paragraphs authorized a conviction only if the jury found
McLaren to be criminally responsible.
	The prosecutors did not refer to the complained-of instruction during their closing
arguments.  And although defense counsel's closing argument focused on the issue of
criminal responsibility, the argument was based on an incorrect understanding of the law. 
Counsel argued that McLaren could not be held responsible for the kidnaping because he
did not personally perform the abduction.  Under the Court of Criminal Appeals'
decision, it is irrelevant whether McLaren personally performed the abduction.  See Otto,
95 S.W.3d at 284.
	Finally, the State presented overwhelming evidence that McLaren was involved in
the planning and execution of the Rowes' kidnaping and was therefore criminally
responsible for their abduction.  Before the kidnaping, McLaren circulated fliers
designating the Rowes' home as a "miliary target."  One of the kidnappers told a witness
that McLaren was involved in the kidnaping.  While they were held hostage, the Rowes
overheard one of the kidnappers talking via radio to McLaren.  They also heard McLaren
being interviewed on television regarding their kidnaping.  In the interviews, McLaren
discussed how the Rowes were being treated and described their physical condition.  He
also talked about "his boys" being at the Rowes' house and explained why the Rowes
were being held hostage.  While the Texas Rangers were negotiating the Rowes' release,
one of the Rangers heard McLaren's voice over a scanner.  He heard McLaren say "full
authority to shoot," "neutralize second miliary target," and "missile crew one, be
prepared."  As soon as the Rangers and the kidnappers made an agreement for the Rowes'
release, the Ranger monitoring the scanner heard McLaren say, "Base one, stand down[,]
we have a negotiated release."  After they released the Rowes, the kidnappers and
McLaren retreated to McLaren's house, which they referred to as their "embassy."  
Considering all this evidence, it is unlikely that the jury found McLaren guilty even
though it did not believe he was criminally responsible.
Sufficiency of Evidence at Punishment Phase
	McLaren argues that the trial court erred by not finding that the Rowes were
voluntarily released in a safe place.
	A person who engages in organized criminal activity by conspiring to commit an
offense is guilty of the same level of offense as the offense that he conspired to commit.
Tex. Pen. Code Ann. § 71.02(c) (Vernon 2003).  McLaren conspired to commit
aggravated kidnaping.  Aggravated kidnaping is generally a first-degree felony.  Id. §
20.04(c) (Vernon 2003).  However, at the punishment phase of a prosecution for
aggravated kidnaping, the defendant may raise the issue as to whether he "voluntarily
released the victim in a safe place."  Id. § 20.04(d).  If the defendant proves this issue by a
preponderance of the evidence, the offense is punishable as a second-degree felony.  Id. 
McLaren raised this issue during the punishment phase, but the court found that the
Rowes were not voluntarily released in a safe place.
	Because McLaren had the burden of proving by a preponderance of the evidence
that the Rowes were voluntarily released in a safe place, we must consider all the
evidence relevant to this issue to determine whether the trial court's failure to find in
McLaren's favor is so against the great weight and preponderance of the evidence as to be
manifestly unjust.  Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990); Harrell
v. State, 65 S.W.3d 768, 772 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd).
	To determine whether a kidnaping victim was released in a safe place, courts have
considered the following factors:  (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 victims; (6) the character of the location or surrounding
neighborhood; and (7) the victim's familiarity with the location or surrounding
neighborhood.  See, e.g., Lavarry v. State, 936 S.W.2d 690, 696 (Tex. App.--Dallas 1996,
pet. dism'd).  These factors are only aids to be used in deciding whether the court's
finding was manifestly unjust, after considering all the surrounding circumstances of the
case.  Harrell, 65 S.W.3d at 773.  The court may also consider the victims' subjective
feeling of safety, but these feelings should not be the overriding factor.  Lavarry, 936
S.W.2d at 697.
	The kidnappers abandoned the Rowe residence sometime near midnight.  They
went with McLaren and others to McLaren's house.  A stand-off between the Republic of
Texas and law enforcement authorities followed.  Since the Rowes were left in their own
home, they obviously were familiar with the area.  Law enforcement officials and an
ambulance were in close proximity and arrived at the residence within five minutes after
the kidnappers left.  Although Joe Rowe had been injured by the kidnappers, he was able
to walk out of the house.  The Rowes were taken to a hospital shortly after the kidnappers
left.  They did not return to their house until after the stand-off between the authorities
and the Republic of Texas had ended.
	When the kidnappers left the Rowe residence, the authorities were located south of
the residence.  There were no authorities north of the residence.  The kidnappers were at
large in the area, and the authorities did not know how many Republic of Texas members
were in the area.  A Texas Ranger testified that he wanted the Rowes to be taken away
from their house "as soon as possible . . . to get them out of harm's way."  He did not
believe the Rowes' house was safe because the Ranger had information that "someone"
might be watching the area.  The Rowes testified that they did not feel safe in their house
when the kidnappers left because they had overheard the kidnappers' conversations
indicating that another member of the Republic of Texas was near their house.
	Shortly after the kidnappers agreed to release the Rowes, a Texas Ranger heard a
radio communication in which McLaren said, "There will be an ambush.  Go to code
black and do not hesitate to unleash firepower."  Approximately one hour after the
kidnappers left the Rowe residence, the Ranger heard McLaren say, "Be prepared for an
assault at dawn."  When the Republic of Texas surrendered, explosive devices and
numerous rifles and semi-automatic guns, along with ammunition, were recovered at
McLaren's residence.  Two Texas Rangers testified that the Rowe residence did not come
under attack after the kidnappers left and that it was a safe place assuming no members of
the Republic of Texas were near the house.
	McLaren suggests that the trial court should have found that the Rowes were
released in a safe place because nothing dangerous did, in fact, occur at the Rowe
residence after the kidnappers left.  We conclude, however that this fact is not dispositive. 
Cf. Harrell, 65 S.W.3d at 773 (upholding jury finding that victim was not released in a
safe place, even though victim managed to free herself and run for assistance).  There was
ample evidence from which the trial court could have concluded that one or more
members of the Republic of Texas were staked out near the Rowe residence.  The court
also could have found that after the kidnaping, a volatile situation existed in the area,
particularly considering that the Republic of Texas was heavily armed.  Cf. Oestrick v.
State, 939 S.W.2d 232, 239 (Tex. App.--Austin 1997, pet. ref'd) (holding that victim was
not released in a safe place when she was left unarmed and alone in a truck with armed
defendant on one side and police on the other).

Conclusion
	For the reasons stated herein, the judgment of the trial court is affirmed.

						SUSAN LARSEN, Justice
April 10, 2003

Before Panel No. 4
Barajas, C.J., Larsen, and McClure, JJ.

(Publish)
