                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-08-00064-CR

STACEY KIRVEN,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee



                             From the 77th District Court
                              Limestone County, Texas
                               Trial Court No. 11381-A


                            MEMORANDUM OPINION


       A jury convicted Stacey Kirven of aggravated robbery and kidnapping. The trial

court sentenced Stacey to fifty years in prison for aggravated robbery and twenty years

in prison for kidnapping. Stacey’s appellate counsel filed an Anders brief presenting

three potential issues: (1) the legal and factual sufficiency of the evidence; (2) trial error;

and (3) jury charge error. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.

2d 493 (1967). Although informed of his right to do so, Stacey did not file a pro se brief.

We affirm.
                               STANDARD OF REVIEW

        In an Anders case, we must, “after a full examination of all the proceedings, []

decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S. Ct. at 1400;

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State,

996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25

S.W.3d 806 (Tex. App.—Waco 2000, pet. ref’d). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902, 100 L. Ed. 2d 440 (1988). Arguments are

frivolous when they “cannot conceivably persuade the court.” Id. at 426, 1901. An

appeal based on “arguable grounds” is not wholly frivolous. Stafford, 813 S.W.2d at 511.

                        LEGAL AND FACTUAL SUFFICIENCY

        The first potential issue raised by counsel addresses the legal and factual

sufficiency of the evidence.

                                  Aggravated Robbery

        The offense of aggravated robbery is committed where (1) a person; (2) in the

course of committing theft (3) with intent to obtain and maintain control of property (4)

intentionally, knowingly, or recklessly (5) causes bodily injury to another and (6) uses

or exhibits a deadly weapon. See TEX. PEN. CODE ANN. § 29.02(a)(1) (Vernon 2003); see

also TEX. PEN. CODE ANN. § 29.03(a)(1), (2) (Vernon 2003).




Kirven v. State                                                                      Page 2
Course of Committing Theft
Intent to Obtain and Maintain Control of Property

        Kevin Kirven, Stacey’s brother, testified that Stacey wanted to rob Thomas

Robinson. Stacey beat Robinson and took money from Robinson. Stacey split the

money with Kevin. The jury could reasonably conclude that Stacey acted while in the

course of committing a theft with intent to maintain or obtain control over Robinson’s

property. See TEX. PEN. CODE ANN. § 31.03(a) (Vernon Supp. 2008) (theft); see also TEX.

PEN. CODE ANN. § 29.01(1), (2) (Vernon 2003) (definition of “In the course of committing

theft”); White v. State, 671 S.W.2d 40, 42 (Tex. Crim. App. 1984) (explaining intent to

obtain or maintain control of property).

Bodily Injury

        Emergency physician Dr. Michael Spohn testified that Robinson suffered from

(1) nine broken ribs; (2) abrasions and lacerations to his head and body; (3)

pneumothorax, a “potentially life-threatening” condition where air is trapped in the

lungs as a result of lacerations to the lung pleura; (4) a dangerous blood pressure level;

and (5) blood in the urine. Robinson testified that the beating was very painful. He still

has trouble breathing and has a partially collapsed lung. The jury could reasonably

conclude that Robinson suffered bodily injury. See TEX. PEN. CODE ANN. § 1.07(a)(8)

(Vernon Supp. 2008) (defining “bodily injury”).

Deadly Weapon

         The indictment alleged that the deadly weapon was a fence post or walking

cane. Robinson and Kevin each testified that Stacey used both items to beat Robinson.



Kirven v. State                                                                     Page 3
Corporal William Rogers found a broken cane at the scene, but never located a fence

post. Spohn, Rogers, and Detective Richard Hundley each testified that a walking cane

or fence post could be a deadly weapon. The jury could reasonably conclude that the

cane and fence post were capable, in their manner of use, of causing death or serious

bodily injury. See TEX. PEN. CODE ANN. § 1.07 (17)(B) (Vernon Supp. 2008) (defining

“deadly weapon”); see also Tucker v. State, 274 S.W.3d 688, 691-92 (Tex. Crim. App. 2008);

Ashcraft v. State, No. 03-07-00237-CR, 2008 Tex. App. LEXIS 1338, at *8-9 (Tex. App.—

Austin Feb. 21, 2008, pet. ref’d) (not designated for publication).

                                          Kidnapping

        A person commits kidnapping if he intentionally or knowingly abducts another

person. TEX. PEN. CODE ANN. § 20.03(a) (Vernon Supp. 2008). “Abduct” means to

restrain a person with intent to prevent his liberation by secreting or holding him in a

place where he is not likely to be found; or using or threatening to use deadly force.1

TEX. PEN. CODE ANN. § 20.01(2)(A)-(B) (Vernon 2003). “Restrain” means to restrict a

person’s movements without consent, so as to interfere substantially with the person’s

liberty, by moving the person from one place to another or by confining the person.

TEX. PEN. CODE ANN. § 20.01(1).

        The record contains evidence that Robinson attempted to escape during the

beating, but Stacey caught him. Stacey and Kevin bound Robinson with rope, placed

him in his truck, and held him down. Stacey took possession of the truck. After the


1
        The indictment alleged aggravated kidnapping, but the jury found Stacey guilty of the lesser
included offense of kidnapping.



Kirven v. State                                                                              Page 4
truck stopped running, Stacey threw the bound and beaten Robinson in a drainage

ditch full of three to four feet of water. Although the ditch is near a highway, Rogers

described the area as “kind of barren” and “fairly desolate.” Although Robinson was

only taken a tenth of a mile from where the beating occurred, Hundley believed that

Stacey planned to either kill Robinson or at least place him in a location where he could

not be found.

        The jury could reasonably conclude that Stacey (1) forcibly restricted Robinson’s

liberty without his consent by beating him, binding him with rope, and confining him

to his truck; and (2) intended to prevent Robinson’s liberation by secreting him in a

place where he was not likely to be found. See TEX. PEN. CODE ANN. § 20.01(2)(A)-(B);

see also Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002); Megas v. State, 68

S.W.3d 234, 240-41 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Price v. State, 35

S.W.3d 136, 140-41 (Tex. App.—Waco 2000, pet. ref’d).

                                         Summary

        Viewing all the evidence in the light most favorable to the verdict, the jury could

reasonably conclude, beyond a reasonable doubt, that Stacey committed the offenses of

aggravated robbery and kidnapping. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979)). The proof of guilt is not so weak nor the conflicting evidence so strong

as to render the jury’s verdict clearly wrong or manifestly unjust. Watson v. State, 204

S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.

App. 2000).


Kirven v. State                                                                        Page 5
                                     TRIAL ERROR

        We first note that any errors committed during voir dire have not been

preserved.        The record does not establish that Stacey exercised his peremptory

challenges on any venire member whom the trial court failed to excuse for cause. See

Johnson v. State, 43 S.W.3d 1, 5-6 (Tex. Crim. App. 2001). Nor does the record contain

any other objections by the defense. See TEX. R. APP. P. 33.1.

        We next note that no appealable errors arise from trial on the merits. The State

agreed to withdraw two photographs to which the defense objected. The trial court

sustained several of the defense’s objections, but the defense requested no instruction to

disregard. See Wilson v. State, 179 S.W.3d 240, 256 (Tex. App.—Texarkana 2005, no pet.)

(citing Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985)).

        The trial court properly overruled Stacey’s objection to Hundley’s testimony that

he believed Robinson would be killed or at least taken to a place where he would not be

found. See TEX. R. EVID. 701; see also Cortez v. State, No. 02-05-00147-CR, 2006 Tex. App.

LEXIS 4998, at *24-27 (Tex. App.—Fort Worth June 8, 2006, pet. ref’d) (not designated

for publication). The trial court also properly overruled Stacey’s objection that Spohn’s

understanding of the legal definition of a deadly weapon called for a legal conclusion.

See Whittington v. State, 781 S.W.2d 338, 341 (Tex. App.—Houston [14th Dist.] 1989, pet.

ref’d); see also Berry v. State, No. 05-03-00441-CR, 2004 Tex. App. LEXIS 1174, at *9 (Tex.

App.—Dallas Feb. 6, 2004, no pet.) (not designated for publication).




Kirven v. State                                                                      Page 6
                                JURY CHARGE ERROR

        When reviewing a jury charge, we first examine the charge for error. See Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d

450, 453 (Tex. Crim. App. 2003)). If error occurred, we then decide whether the error

caused harm. See id. When, as here, an appellant fails to object to the charge at trial, he

must show egregious harm to prevail on appeal. See id. at 743-44; see also Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). “Errors that result in egregious harm

are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable

right,’ or ‘vitally affect a defensive theory.’” Ngo, 175 S.W.3d at 743 (quoting Hutch v.

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To determine whether “error was so

egregious that a defendant was denied a fair and impartial trial,” we examine: (1) the

entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any

other relevant information in the record.” Id. at 750 n.48; Almanza, 686 S.W.2d at 171.

        The trial court omitted an application paragraph on law of the parties after

including such law in the abstract portion of the jury charge. This constitutes error. See

Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995). However, because the

evidence supports Stacey’s conviction as the principal actor, he did not suffer egregious

harm from the trial court’s error. See Ladd v. State, 3 S.W.3d 547, 564-65 (Tex. Crim. App.

1999); see also Cadena v. State, No. 13-03-00485-CR, 2004 Tex. App. LEXIS 6842, at *5-6

(Tex. App.—Corpus Christi July 29, 2004, no pet.) (not designated for publication);

Davis v. State, No. 05-06-00527-CR, 2007 Tex. App. LEXIS 4577, at *6-7 (Tex. App.—

Dallas June 13, 2007, no pet.) (not designated for publication).


Kirven v. State                                                                       Page 7
                               INDEPENDENT REVIEW

        Having conducted an independent review of the record, we find this appeal to be

wholly frivolous. We affirm the judgment.

        Counsel’s request that he be allowed to withdraw from representation of Stacey

is granted. Counsel has already notified Stacey of his right to file a pro se petition for

discretionary review as part of his “educational burdens” he satisfied when filing his

Anders brief. The Court of Criminal Appeals has validated this method of notification

used by counsel. See In re Schulman, 252 S.W.3d 403, 412 n.34 (Tex. Crim. App. 2008); see

also Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App. 2006). Nevertheless,

pursuant to Rule of Appellate Procedure 48.4, counsel must: (1) send Stacey a copy of

our decision; (2) notify Stacey of his right to file a pro se petition for discretionary

review; and (3) provide “a letter [to this Court] certifying his compliance with this rule.”

See TEX. R. APP. P. 48.4; see also Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App.

2006); Schulman, 252 S.W.3d at 409 n.22.




                                                        FELIPE REYNA
                                                        Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring)
Affirmed
Opinion delivered and filed May 13, 2009
Do not publish
[CRPM]


Kirven v. State                                                                       Page 8
