 AFFIRM; Opinion Filed iaiiaiarv 2. 2013.




                                                In 1iie
                                      nurt uf Appia1
                          .Fift1! 1itrirt        tif   ixa at t1a1Ia
                                        No. 05-1 1-01330-CR


                           DARiUS DESH AD LOCKHART, Appellant

                                                  V.

                                THE STATE OF TEXAS, Appellec


                        On Appeal from the 204
                                            th
                                                Judicial District Court
                                     Dallas County, Texas
                             Trial Court Cause No. Fl0-52 177 Q


                               MEMORANDUM OPINION
                            Before Justices Moseley, Francis, and Lang
                                     Opinion By Justice Lang

        I)arius Deshad Lockhart appeals his conviction cor aggravated kidnapping. In two issues
                                                                                                on
appeal, Lockhart argues (1) that the evidence was insufticient to prove the aggravating
                                                                                        element of

aggravated kidnapping and (2) that the trial court erred by including a definition of reasonable
                                                                                                   doubt
in the jury charge. We decide against Lockhart on both issues and affirm the trial court’s
                                                                                           judgment.

Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.
                                                                                             See
TEx. R. App. P. 4T4.

                    1. FACTUAL AND PROCEDURAL BACKGROUND

       Lockhart was charged in two separate indictments with the first degree felony offense
                                                                                             of
kidnapping and the first degree felony offense of aggravated robbery. He pleaded not guilty
                                                                                            in each
  ca’e. The jury Ibund Lockhart not guilty of aggravated robbery. hut guilty
                                                                             of aggravated kidnappine.
  The jury assessed punishment at 25 ears in the Institutional Division
                                                                        of the Texas Department of
  Criini nal Justice.

                               II. SUFFICIENCY OF THE EVH)ENCE

          In his first issue, Lockhart argues there was “insufficient proof of the aggrav
                                                                                          ating element”
 of his conviction for aggravating kidnapping. Lockhart refirs to the indictm
                                                                              ent, which stated in part

 that Lockhart “did intentionally and knowingly abduct the complainant with
                                                                            the intent to facilitate
 the delendant’s flight after the attempt and commission otthe felony
                                                                      of robbery.” Lockhart argues
 his acquittal of aggravated robbery operates as an acquittal for the lesser includ
                                                                                    ed offense of robbery.
 Therefore. Lockhart contends no rational jury could have found he kidnap
                                                                          ped the complainant with
 the intent to facilitate the felony of robbery.

                                        A. Standard of Review

         “Pursuant to the court of criminal appeals’s decision in Brooks v. State,
                                                                                   we must apply the
.Iackson v. Virginia standard in determining whether the evidence is
                                                                     sufficient to support each
element of a criminal offense that the State is required to prove beyond
                                                                         a reasonable doubt.”
Ilaiwood v. State, 344 S.W.3d 454, 458 (Tex. App.—Dallas 2011. pet. ref
                                                                        d) (citing Brooks r. State,
323 S.W.3d 893, 894—95 (Tex. Crim. App. 2010) (plurality op.); Jac’kson
                                                                        v. Virginia, 443 U.S. 307,
319 (1979)). Under that standard “[t]o determine whether evidence
                                                                  is sufficient to support a
conviction, a reviewing court views all the evidence in the light most
                                                                       favorable to the verdict to
decide whether any rational trier of fact could have found the essential
                                                                         elements of the offense
beyond a reasonable doubt.” Garcia v. State, 367 S.W.3d 683, 686 (Tex.
                                                                       Crim. App. 2012) (citing
Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895. “This requires
                                                                    the reviewing court to defer
to the jury’s credibility and weight determinations because the jury is the
                                                                            ‘sole judge’ of witnesses’
 credibility and the weight to be given testimony.”Jd. at 687 (citing Jackson. 443 U.S. at
                                                                                              319: Brooks,
 323 S.W.3d at 899). “A reviewing court detennines whether the necessary inferences
                                                                                          are reasonable
 based upon the combined and cumulative force of all the evidence when viewed in
                                                                                 the light most
 favorable to the verdict.” id. (citing Clayton v. State, 235 S.W.3d 772,778 (Tex. Crim.
                                                                                         App. 2007;
 Hooper v. State, 214 S.W.3d 9, 16-17 (Ta. Crim. App. 2007)). “When the
                                                                        record supports
 conflicting inferences, a reviewing court must presume that the fact finder resolve
                                                                                       d the conflicts in
 favor ofthe prosecution and defer to that determination.” Id. (citing Jackson, 442
                                                                                    U.S. at 326).”The
 reviewing court must give deference to ‘the responsibility of the trier of fact
                                                                                 to fairly resolve
 conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from
                                                                                          basic facts to
 ultimate facts.” Flooper, 214 S.W.3d at 13 (quotingJaclcson, 443 U.S. at 318-19)).

           “Evidence is insufficient to uphold a conviction when the record contains no eviden
                                                                                               ce, or
merely a ‘modicum’ ofeviden.ce, probative ofan element ofthe offense.” Garcia. 367 S.W.3
                                                                                                 d at 687
(citing Jackson. 443 U.S. at 320 (“[A] ‘modicum’ of evidence [cannot] by itselfra
                                                                                  tionally support
a conviction beyond a reasonable doubt”); Laster v. State, 275 S.W.3d 512, 518
                                                                               (Tex. Crim. App.
2009) (“After giving proper deference to the factflnder’s role, we will uphold the
                                                                                       verdict unless a
rational factflnder must have had reasonable doubt as to any essential element”)).
                                                                                       “If a reviewing
court finds the evidence insufficient under this standard, it must reverse the judgm
                                                                                      ent and enter an
order ofacquittal.” Id. (citing Tibbs v. Florida,457 U.S. 31(1982)). “‘[S]ufficienc
                                                                                      yofthe evidence
should be measured by the elements of the offense as defined by the hypothetically
                                                                                   correct jury
charge for the case.” Id. (quoting Malik v. State, 953 S.W.3d 234,240 (rex. Crim.
                                                                                  App. 1997) (en
bane)).

                                          B. Applicable Law

          “The elements required to be established by the evidence in order to sustain this
                                                                                              conviction



                                                  -3-
  for aggravated kidnapping are: (I) a person (2) intentionally or knowi
                                                                         ngly (3) abducts (4) another
  person with intent to facilitate the commission of the felony or the
                                                                       flight after the attempt or
  commission ofa felony.” Bowers r. State. 570 S.W.2d 929. 932 (Tex. Crim.
                                                                           App. 1978) (citing TEN.
  PENAl. CODE ANN.      20.04fo)(3) (West 2011 )).

                                    ( Application of Law to Facts

         Lockhart contends the verdict of not guilty on the aggravated robbery charge
                                                                                      rendered the
 evidence insufficient to uphold his conviction for aggravated kidnapping.
                                                                           He argues “[am acquittal
 of a greater offense operates as an acquittal for all lesser included offenses”
                                                                                 and cites Stevens v. State
 as his only authority. In Stevens. the Court of Criminal Appeals held “when
                                                                             a defendant has obtain     ed
 a reversal of a conviction for a greater offense solely on the ground that
                                                                            there was insufficient
 evidence to prove the aggravating element of that offense, the Dotible Jeopar
                                                                               dy Clause bars a
 subsequent prosecution for a lesser included offense.” Stephens v. State, 806
                                                                               S.W.2d $ 12. 819 (Tex.
 Crim, App. 1990) (en hanc).The Court of Criminal Appeals held that
                                                                    when a defendant was
 subjected to only one trial, his right under the double jeopardy clause be
                                                                        to  free from multiple trials
for the same offense is not implicated. See Lx parte Herron, 790 S.W.2d
                                                                        623. 624(Tex. Crim, App.
 1990) (en banc). However, Lockhart does not argue that his conviction violate
                                                                               s the Doubl    e Jeopardy
Clause. The Stevens case is inapposite.

        The record shows Daniel Felder testified Lockhart forced him to hand
                                                                             over the keys to
Daniel’s father’s truck by pointing a gun at his chest. Daniel stated that
                                                                           as Lockhart entered the truck
and sped off Daniel screamed at him that Daniel’s two-year-old brothe
                                                                      r Mark Felder was in the
truck. The record reflects Lockhart did not attempt to stop and leave Mark
                                                                           in a safe   place, but instead
stopped to sell the truck’s rims. The officer who arrested Lockhart testifie
                                                                             d that when Lockhart saw
the officer approach, he immediately got back in the truck and fled with
                                                                         Mark still in the backseat.




                                                  -4-
  By fiiiding Lockhart guilty of aggravating kidnapping, the fury, as the trier of tact, resolve
                                                                                                 d conflicts

  in testimony. veihed the evidence, and drew reasonable interences           to   find sutticient evidence to

 support the conviction ot aggravated kidnapping .5cc iloojn r. 2 14 SW 3d at 13:           ccc   also Bowers.

 570 S.W.2d at 032 (citing PFNr\t         20.04(a)( )). Viewing the evidence in the light most favorable

 to the verdict, we conclude a rational trier of fact could have tound the essenti
                                                                                   al elements of

 aggravated kidnapping beyond a reasonable doubt. See Garcia, 367 S.W.3d at 686.
                                                                                 Lockhart’s first
 issue is decided against him.

              Ill. DEflNI11ON OF ‘REASONABLE DOUBT” IN JURY CHARGE

         In his second issue, Lockhart argues the trial court erred by giving a definition of reason
                                                                                                     able
 doubt in the jury charge. Lockhart specifically objects to the following langua
                                                                                 ge in the charge: “[lit

 is not required that the prosecution prove guilt beyond all possible doubt; it is require
                                                                                           d that the
 prosecution’s proof excludes all reasonable doubt concerning the detendant’s
                                                                              guilt.”

                              A. Standard of Review & Applicable Law

        “In   reviewing   charge   error, we   must first determine whether error exists.” Diuerv v. State.

225 S.W.3d 491, 504 (Tex. Crirn. App. 2007) (citing Hutch v. State, 922 S.W.2
                                                                              d 166, 171 (Tex.

Crim. App. 1996); Alnianza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).
                                                                                  “If we find

error, we must then determine whether the error caused sufficient harm to require
                                                                                  reversal.” Id.
(citing Hutch, 922 S.W.2d at 1 71-2).

        The Court of Criminal Appeals has held it is the better practice not to define
                                                                                       the term
“reasonable doubt” in the jury charge. Mavs v. State, 318 S.W.3d 368, 389 (Tex. Crim.
                                                                                      App. 2010);
PauLcon v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In 0 ‘Canas v. State,
                                                                                   this court stated
“[w]hat constitutes proof ‘beyond a reasonable doubt’ is not subject to definition
                                                                                   by the trial court
because it is up to the jurors to determine whether their doubts, if any, about the defend
                                                                                           ant’s guilt



                                                      -   5—
 are reasonable.” O’( aiias v. Stale. 140 S.W.3d 695, 702 (Te App—Dallas 20031
                                                                               (pet. ref’d). This
 court concluded the same wording Lockhart objects to did not define reasonable
                                                                                doubt, but “simply
 state[dj the legally correct proposition that the prosecutions burden is to establi
                                                                                     sh proof beyond a
 reasonable doubt and not all possible doubt.” C) ‘Canas, 140 S.W.3d at 702; accord
                                                                                    Bates v. State,
 164 S.W.3d 92, 931 (Tex. App.—DaIlas 2005, no pet.); Borens v. Stale, No, 05-07-
                                                                                  01 516-CR, 2009
 WL 998678, at *5 (Tex. App.—Dallas Apr. 1 5, 2009. no pet.) (mem.
                                                                   op., not designated for
 publication).

                                   B. Application of Law to Facts

        The instruction about which Lockhart complains does not define reasonable
                                                                                  doubt. including
it in the jury charge is not error. See 0 ‘Canas. 140 S.W.3d at 702; Bate.v 164
                                                                           ,    S.W.3d at 93 1; Borens.
2009 WL 998678. at *5, Lockhart’s second issue is resolved agains
                                                                  t him.

                                        IV. CONCLUSION

        The evidence is legally sufficient to support Lockhart’s conviction. Also, the
                                                                                       trial court did
not err when it included the instruction in its jury charge. The trial court’s judgm
                                                                                     ent is affirmed.

                                                                              /

                                                                             d4
                                                                       DOUGLAS. LANG
                                                                       jusiic




Do Not Publish
TEx. R. App. P.47
11 l330F.U05




                                                —6—
                             (!_.i.ntrt tif pprtt
                       ifI! Dtstrttt nf Lrxa tt JaI1ni
                                      JUDGMENT
DARIUS DESHAD LOCKHART,                            Appeal from the 204
                                                                   th
                                                                         Judicial District Court
\ppel Ia nt                                        of Dallas County, Texas. (Tr.Ct.No. F 10—
                                                   52177 Q).
No. 05-1 1-01330-CR                                Opinion delivered by Justice Lang, Justices
                                                   Moseley and Bridges participating.
THE STATE OF TEXAS, AppeHee

       Based on the Court’s opinion of this date, the udgment of the trial court is AFFIRi1ED.



Judgment entered January 2. 2013.




                                                  DOUGLAS/S. LANG
                                                  J U STiC/
