Opinion filed March 5, 2010




                                           In The


   Eleventh Court of Appeals
                                         __________

                                     No. 11-08-00150-CR
                                         __________

                         TRACY LYNN WILSON, Appellant
                                     V.
                           STATE OF TEXAS, Appellee


                          On Appeal from the 118th District Court
                                 Howard County, Texas
                               Trial Court Cause No. 12130


                              MEMORANDUM OPINION

       Tracy Lynn Wilson appeals from a guilty verdict of kidnapping in which the trial court
assessed his punishment at ten years confinement in the Texas Department of Criminal Justice,
Institutional Division. We affirm.
                                       Background Facts
       At the time of this offense, appellant was living in a motor home owned by Jim Jason Coker.
The motor home was located in a shed on the side of Coker’s shop, and an auger truck was parked
behind the motor home. Appellant looked after Coker’s shop, and he also did some work for Coker
on the side.
          On October 14, 2007, Coker had dropped appellant off at his house to mow his lawn. Z.S.,
who was eight at the time; R.B., who was ten at the time; and several other children were playing in
the neighborhood. After all the other children had gone home, appellant grabbed R.B. by the arm
and dragged her away from Coker’s house. Z.S. followed them. Joshua Beck was leaving his house
and was getting into his car when appellant and the children came upon him. Appellant told Beck
that he was the children’s uncle, and he asked Beck for directions. Beck offered them a ride, and
appellant pushed the children into the backseat of Beck’s car. Beck drove appellant and the two
children to the motor home about four or five blocks away. Appellant forced the children inside.
Later, appellant allowed Z.S. to leave. Z.S. walked to a nearby 7-Eleven and called 911. The police
took Z.S. home. Z.S. then led the police to appellant and R.B. Appellant was arrested and indicted
for the kidnapping of Z.S.1
                                                      Issues on Appeal
          Appellant raises four issues on appeal. In his first two issues, he asserts that the evidence was
legally and factually insufficient to sustain a conviction for kidnapping. Next, appellant asserts that
the trial court erred in failing to find that the evidence only supported the lesser included offense of
unlawful restraint or false imprisonment as a matter of law. Finally, appellant asserts that he
received ineffective assistance of counsel because his counsel failed to request an instructed verdict
of acquittal and failed to request an instruction on any lesser included offenses supported by the
facts.
                                                    Sufficiency of the Evidence
          In order to determine if the evidence is legally sufficient, we review all of the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The factfinder is the sole
judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State,
828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may choose to believe or disbelieve all


          1
           Appellant was also indicted for the aggravated kidnapping of R.B. The two cases were tried together. However, due to the
differences in the appeals, we have written two separate opinions. See Wilson v. State, No. 11-08-00149-CR (Tex. App.—Eastland
March 5, 2010, no pet. h.) (mem. op., not designated for publication).



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or any part of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
In order to determine if the evidence is factually sufficient, we review all of the evidence in a neutral
light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v.
State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim.
App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922
S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we determine whether the evidence supporting the
verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is
against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-
15; Johnson, 23 S.W.3d at 10-11.
        A person commits kidnapping when he intentionally or knowingly abducts another person.
TEX. PENAL CODE ANN. ' 20.03(a) (Vernon 2003). To abduct means to restrain a person with the
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. TEX. PENAL CODE ANN. ' 20.01(2) (Vernon Supp.
2009). To 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. Section 20.01(1). Restraint is without consent if the victim is a child who is
less than fourteen years of age and the parent or guardian has not acquiesced in the movement or
confinement. Section 20.01(1)(B)(i).
        Z.S. testified that, while he and R.B. were playing in Coker’s yard, appellant grabbed R.B. by
the wrist and dragged her away from their neighborhood and that he followed. Z.S. testified that
appellant made them get into a white car and told the driver of the vehicle that he was the children’s
uncle. Z.S. stated that the driver took them to appellant’s motor home and that appellant pushed
them inside. Z.S. testified that appellant offered them beer and cigarettes. Z.S. stated that he and
R.B. made a plan that he would leave and go to the 7-Eleven and call the police. Z.S. testified that
he asked to leave and that appellant told him to go.
        R.B. testified that appellant grabbed her by the wrist and dragged her away from the
neighborhood. Appellant told her that, if she did not go with him, he would hurt Z.S. and that, if
Z.S. did not go with him, he would hurt R.B. R.B. testified that they came up to a man’s vehicle and
that appellant asked for a ride. She stated appellant told the man that he was their uncle and then


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gave her a look that she took to mean that, if she contradicted him, he would hurt them. They drove
to Coker’s motor home where appellant was living. R.B. stated that appellant threatened to hurt Z.S.
if she did not go into the motor home with him. R.B. testified that appellant offered them beer,
cigarettes, and marihuana.
       Z.S.’s guardian testified. She testified that several children were playing outside and that Z.S.
and her other children would check in every once in a while. Z.S. knew that he had to be inside by
dark. Z.S.’s guardian testified that, when it got dark, all of her other children were inside except for
Z.S. When she asked about Z.S., her other children told her that he had gone off with somebody.
Z.S.’s guardian testified that she went to look for Z.S. but that she was not able to find him. Z.S.’s
guardian stated that she never gave anyone permission to take Z.S. from her house nor did she give
Z.S. permission to leave with anyone.
       The evidence is legally and factually sufficient to support the jury’s guilty verdict for
kidnapping. The evidence shows that appellant took Z.S. to a place where he would not likely be
found. The motor home where appellant took Z.S. and R.B. was in a shed, and an auger truck was
parked behind it. The entire neighborhood was looking for both Z.S. and R.B., and they were unable
to find the children. Z.S.’s guardian’s testimony shows that appellant did not have her consent to
take Z.S. anywhere. Further, R.B.’s and Z.S.’s testimony shows that they did not go willingly with
appellant. Appellant dragged and pushed them into the vehicle and the motor home. We overrule
appellant’s first and second issues.
                                 Charge on Lesser Included Offense
       Appellant argues that the trial court erred in failing to find that the evidence only supported
the lesser included offense of unlawful restraint or false imprisonment. While appellant’s stated
issue is unclear, his arguments and supporting case law indicate that he is arguing that the trial court
erred when it failed to include an instruction on the lesser included offense of unlawful restraint.
       To determine if an instruction on a lesser included offense is warranted, we ask: (1) is the
lesser included offense included within the proof necessary to establish the offense charged and (2) is
there some evidence in the record that would permit a rational jury to find that, if the defendant is
guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim.




                                                   4
App. 1993). We must review all the evidence presented at trial in making this determination.
Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).
        Unlawful restraint is a lesser included offense of kidnapping. See TEX. PENAL CODE ANN.
' 20.02 (Vernon 2003); Ex parte Gutierrez, 600 S.W.2d 933, 935 (Tex. Crim. App. 1980). A
person commits the offense of unlawful restraint when he intentionally or knowingly restrains
another person. Section 20.02(a). As stated above, a person commits kidnapping when he
intentionally or knowingly abducts another person. Section 20.03(a). To abduct a person means to
restrain him with the intent to prevent his liberation. Section 20.01(2). Therefore, unlawful restraint
is included within the proof necessary to establish kidnapping.
        Since the first prong of the Rousseau test is met, the issue is whether any evidence exists in
the record that would permit a rational jury to find that appellant is guilty of only unlawful restraint.
Bignall, 887 S.W.2d at 23. The fact that the State, in the course of proving the offense charged, may
also have proved a lesser offense does not entitle appellant to a charge on the lesser included offense.
Gibbs v. State, 819 S.W.2d 821, 832 (Tex. Crim. App. 1991). Evidence from some source must
affirmatively raise the issue of the lesser offense. Bignall, 887 S.W.2d at 24.
        After reviewing the entire record in this case, we conclude there was no evidence
affirmatively raising the lesser included offense of unlawful restraint. There was no evidence
presented that showed appellant merely restricted Z.S.’s movements. The evidence showed that
appellant took Z.S. to a place he was not likely to be found. Z.S.’s guardian and neighbors searched
for him and were unable to find him. The evidence did not raise the possibility that appellant, if
guilty at all, was guilty only of unlawful restraint. We, therefore, conclude that appellant was not
entitled to a lesser included offense charge on unlawful restraint. We overrule appellant’s third issue
on appeal.
                                  Ineffective Assistance of Counsel
        Appellant argues that his counsel was ineffective because counsel failed to request a directed
verdict and failed to request an instruction on any lesser included offenses. In order to determine
whether appellant’s trial counsel rendered ineffective assistance at trial, we must first determine
whether appellant has shown that counsel’s representation fell below an objective standard of
reasonableness and, if so, then determine whether there is a reasonable probability that the result


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would have been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668 (1984);
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).
       Because the evidence was legally and factually sufficient and because appellant was not
entitled to a lesser included offense instruction, no possible harm can be shown. We overrule
appellant’s fourth issue on appeal.
                                           Conclusion
       We affirm the judgment of the trial court.




                                                            RICK STRANGE
                                                            JUSTICE


March 5, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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