Opinion issued March 21, 2013




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-08-00137-CR
                           ———————————
                        JAMES WALLACE, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 13
                           Harris County, Texas
                       Trial Court Case No. 1458312



                         MEMORANDUM OPINION

      Following a jury trial, appellant James Wallace was convicted of unlawful

restraint. He was sentenced to one years’ confinement, probated for two years.
      Appellant appeals here challenging the sufficiency of the evidence to

support his conviction. We affirm.

                                 BACKGROUND

      This case arises out of an incident between appellant and the complainant,

Sonja Ervin. Ervin and appellant lived together for ten years and are the parents of

a young daughter. The couple stopped living together around May 2007. They

still owned a restaurant together called Too Too’s Southern Cooking.

      On the morning of June 3, 2007, appellant arrived at the restaurant about

7:00 a.m. Ervin testified that the restaurant’s back door was open and appellant

was in the kitchen when Ervin arrived later with their daughter. Ervin first got her

daughter settled into a side room in the restaurant, and then she went into the

bathroom to put on her makeup. Appellant followed her to the bathroom and asked

her to reconcile. Ervin testified that, at some point, appellant “kind of got forceful

and aggressive” asking her to have sex, and he pulled on her and tried to unbutton

her slacks. To avoid appellant, Ervin insisted that she had to check on their

daughter. Appellant let Ervin leave the bathroom and go to her daughter’s room.

In her daughter’s room, Ervin called her sister Alexia to help her get out of the

restaurant and the situation with appellant. At trial, appellant disputed this version

of events, testifying instead that he confronted Ervin about her having an affair




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with someone else and that he was at the restaurant to break up with her and tell

her she could keep the restaurant.

      Alexia arrived shortly after Ervin called her. Appellant went out the back

door to meet her when Alexia pulled up. Alexia and appellant immediately got

into a verbal altercation near the back door. During this, Ervin was going in and

out of the back door, first trying to calm them both down and then trying to get her

daughter from inside so that she could leave with her sister. Both Ervin and Alexia

testified that after Ervin handed her sister her purse, appellant yanked on Ervin and

pulled her inside the restaurant.

      The restaurant has only two operable doors to the outside, and both doors

have deadbolt locks requiring a key to lock or unlock them from either side. Ervin

testified that when appellant pulled her into the restaurant through the back door,

the front door was already locked. Appellant then locked the back door from the

inside with his key. He testified that he locked the door because Alexia was trying

to hit him with a stick. Appellant called 911 from inside the restaurant in hopes

that would make Alexia leave.

      While waiting for the police to arrive, appellant went in and out of the front

door of the restaurant. According to Ervin, each time he stepped outside the

restaurant, he locked the front door. Ervin testified that she asked appellant to let

her out of the building, but that he ignored her and refused. She had no way out

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because there were burglar bars on the windows, both the doors were locked, and

she did not have her keys. Officer C. Huff arrived, and appellant stepped out

through the front door to talk to him.         While appellant was outside, Ervin

eventually called 911 and told the dispatcher that she was locked inside the

building and that appellant was outside. She then began screaming out through

one of the windows to appellant and another officer on the scene, Officer S. Sauls,

requesting that someone come let her out of the building. Officer Sauls testified

that he asked appellant why Ervin was yelling, and appellant responded that “she

claims that she doesn’t have a key to get out of the place.” When Officer Sauls

asked appellant why he would lock Ervin in the restaurant when he knew she did

not have a key to get out, “he didn’t actually have an answer to that.”

      By this time, a police dispatcher had also called Officer Sauls to let him

know that Ervin had called 911 about being locked in the building. Officer Sauls

then sent appellant to go unlock the back door and let Ervin and their daughter out

of the building.

      Appellant was charged with misdemeanor offense of unlawful restraint. A

jury found appellant guilty, and the court sentenced him to one year in the Harris

County Jail probated for two years of community supervision with ten days in the

Harris County Jail as a condition of the community supervision.           Appellant

appealed.

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                      SUFFICIENCY OF THE EVIDENCE

      Appellant challenges the sufficiency of the evidence to support his

conviction. Specifically, in his first point of error, he challenges the sufficiency of

the evidence that he used force to restrain Ervin. In his second point of error, he

challenges the sufficiency of the evidence that any such restraint was done

intentionally or knowingly.

      A. Standard of Review

      We review a challenge to the legal sufficiency of the evidence under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781,

2788–89 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.

Crim. App. 2010)). Under the Jackson standard, evidence is insufficient to support

a conviction if, considering all the record evidence in the light most favorable to

the verdict, no rational factfinder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S.

at 317–19, 99 S. Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009). Evidence is insufficient under this standard in four circumstances: (1)

the record contains no evidence probative of an element of the offense; (2) the

record contains a mere “modicum” of evidence probative of an element of the

offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the

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acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S.

at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11; Laster, 275 S.W.3d at 518;

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007); see also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008)

(stating jury is sole judge of credibility of witnesses and weight to give their

testimony). An appellate court presumes that the factfinder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see also

Clayton, 235 S.W.3d at 778 (reviewing court must “presume that the factfinder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination”).

      In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. In determining the sufficiency of the evidence, a

reviewing court examines “whether the necessary inferences are reasonable based

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upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9,

16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt, even if every fact does not “point directly and

independently to the guilt of the accused.” See Powell v. State, 194 S.W.3d 503,

507 (Tex. Crim. App. 2006).

      B. Applicable Law

      A person commits unlawful restraint if that person “intentionally or

knowingly restrains another person.” TEX. PENAL CODE ANN. § 20.02(a) (Vernon

2011). In this context, “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.” Id. § 20.01(1).

Restraint is without consent if it is accomplished by “force, intimidation, or

deception.” Id. § 20.01(1)(A).

      C. Analysis

      In appellant’s first point of error, he contends there is insufficient evidence

of “force” to demonstrate that any restraint was without consent. He acknowledges

that lack of consent can be proven with evidence of “force, intimidation, or

deception,” but argues that our analysis must be restricted to whether there was

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evidence of “force” because the application section of the jury’s charge limited the

jury’s consideration to force. It provided:

       Therefore, if you believe from the evidence beyond a reasonable
       doubt that on or about June 3, 2007, in Harris County, Texas, the
       defendant, JAMES WALLACE, did intentionally or knowingly
       restrain SONJA ERVIN, hereinafter called the Complainant, without
       the Complainant’s consent, namely, by force, said restraint being by
       restricting the movement of the Complainant so as to interfere
       substantially with the Complainant’s liberty by confining the
       Complainant, you will find the defendant guilty.

He then contends that there “is no evidence that appellant used force against the

complainant or threatened to use force against the complainant.” According to

appellant, there is evidence—at most—that Ervin feared that appellant “might” use

force, which is insufficient to show force was used.

      The State responds that the evidence that appellant forcibly pulled Ervin into

the restaurant, locked her inside, and ignored her repeated requests to be set free is

sufficient to demonstrate the requisite force. We agree. See Barnes v. State, No.

05-00-01047-CR, 2001 WL 493440, at *1 (Tex. App.—Dallas May 10, 2001, pet.

ref’d) (mem. op., not designated for publication) (evidence that defendant locked

complainant in building and refused to unlock door or allow complainant to leave

while defendant attempted to persuade complainant to sign document was

sufficient to support unlawful restraint conviction); cf. Glenn v. State, No. 05-99-

00723-CR, 2000 WL 226365, at *4 (Tex. App.—Dallas 2000, Feb. 29, 2000, no

pet.) (not designated for publication) (holding trial court’s failure to charge jury on
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lesser-included-offense of unlawful restraint in kidnapping trial was reversible

error because defendant’s version of events, i.e., that he locked van doors and

would not let wife out of van despite knowing she desired to leave could support

jury finding that he was guilty of only unlawful restraint and not kidnapping).

      Appellant cites Cook v State, Nos. 03-08-00718-CR & 03-08-00719-CR,

2009 WL 3230790 (Tex. App.—Austin Oct. 9, 2009, pet. ref’d) (mem. op., not

designated for publication) in support of his argument that “any fear that appellant

might do something violent because he had used force against [Ervin] in the past

does not constitute evidence that appellant used force to restrain” her in this

incident. Cook, however, addressed a different issue, and is not on point here.

      In Cook, while the defendant was on the run from police, he broke into the

complainant’s apartment. 2009 WL 3230790, at *1. He did not threaten the

complainant while he hid out there waiting for his girlfriend to pick him up, but he

refused to let her leave, instead insisting that she “sit down and be quiet.” Id. at *2.

At one point, the defendant displayed a knife for “ten or fifteen seconds before

placing it in his pocket,” which scared the complainant. Id. Among other things,

defendant was convicted of unlawful restraint, and the trial court made a finding

that while complainant was restrained, defendant recklessly exposed her to a

“substantial risk of serious bodily injury.” Id. at *8. That finding elevated the




                                           9
unlawful restraint conviction from a misdemeanor to a third degree felony under

section 20.02(c)(2)(A) of the Texas Penal Code. Id.

       The Austin Court of Appeals held that there was legally insufficient

evidence to support the trial court’s enhancement finding. Id. (“We decline to hold

that the exhibition of a knife, even by a seemingly unstable individual, is sufficient

by itself to recklessly expose a victim to a substantial risk of serious bodily

injury.”).   The court thus reformed the judgment to reflect a misdemeanor

conviction for unlawful restraint without the enhancement. Id. at *9.

       Although appellant in this case cites Cook’s analysis, appellant did not

receive an enhancement, so the analysis is simply inapposite.             The reformed

judgment in Cook resulted in a conviction for unlawful restraint on similar facts to

those presented here; namely, a defendant confining a complainant to the inside of

a building and denying requests to be set free.           Nothing in Cook supports

appellant’s position that such facts cannot support a finding of force.

       Here, the evidence that appellant physically pulled Ervin into the restaurant,

locked the only exits, and repeatedly ignored her requests that he unlock the doors

and allow her to leave is sufficient evidence that he restrained her, i.e., “restrict[ed]

[her] movements without consent, so as to interfere substantially with [her] liberty,

. . . by confining [her].” TEX. PENAL CODE § 20.01(1). While appellant asserts that

there was only evidence of Ervin’s “fear that appellant ‘might’ use force, we

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conclude that the evidence that appellant physically pulled her into the restaurant

and then confined her there by employing locks making it impossible for her to

escape is not evidence of fear that force might be used, but instead is evidence that

force was used.

      We overrule appellant’s first point of error.

      In his second point of error, appellant challenges the sufficiency of the

evidence that he “intentionally or knowingly” restrained Ervin.         Specifically,

appellant asserts that he was not aware that Ervin did not have her keys to let

herself out of the restaurant until he and Officer Sauls heard her yelling that she

was locked inside the restaurant. According to appellant, because “there is no

evidence in the record to support a finding beyond a reasonable doubt that

appellant knew that [Ervin] did not have a key to the restaurant, . . . there is no

proof that appellant intentionally and knowingly restrained” her. We disagree.

      The jury is the exclusive judge of the facts, the credibility of witnesses, and

the weight given the witnesses’ testimony. Van Dalen v. State, 789 S.W.2d 334,

335 (Tex. App.—Houston [14th Dist.] 1990, no pet.). The jury can choose to

believe or not believe a witness or any portion of his or her testimony. Id. (citing

Penagraph v. State, 623 S.W.2d 341 (Tex. Crim. App. 1981)).

      Here, while appellant argues that he thought Ervin could let herself out of

the building, there is ample evidence from which the jury could instead infer that

                                         11
appellant intended to confine Ervin to the building. Ervin testified that appellant

locked her inside and repeatedly ignored her requests to be let out from which the

jury could infer appellant’s awareness that she did not have a key to let herself out.

Officer Sauls testified that appellant told him that Ervin “claim[ed] that she didn’t

have a key to get out,” which directly contradicts appellant’s claim that there is no

evidence that he was aware that Ervin did not have a key. Because there is some

evidence of appellant’s intent to confine Ervin within the building, we will not

disturb the jury’s resolution of any conflicting evidence about appellant’s intent.

      We overrule appellant’s second point of error.

                                  CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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