             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. AP-76,834



                         STANLEY LAMAR GRIFFIN, Appellant

                                                 v.

                                   THE STATE OF TEXAS



            ON DIRECT APPEAL FROM CAUSE NO. 10-05176-CRF-361
                  IN THE 361ST JUDICIAL DISTRICT COURT
                             BRAZOS COUNTY


      JOHNSON , J., delivered the opinion of the Court in which KEASLER , HERVEY , ALCALÁ ,
RICHARDSON , and NEWELL, JJ., joined. YEARY , J., filed a dissenting opinion in which
K ELLER, P.J., and M EYERS, J., joined.

                                          OPINION

       In June 2012, a jury convicted appellant of the capital murder of Jennifer Hailey committed

on or about September 19, 2010. TEX . PENAL CODE § 19.03(a)(2). Based on the jury’s answers to

the special issues set forth in the Texas Code of Criminal Procedure article 37.071, sections 2(b) and
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2(e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g).1 Direct appeal to this Court

is automatic. Art. 37.071, § 2(h). After reviewing appellant’s points of error, we find that the record

does not support the offense of capital murder. Consequently, we reverse the trial court’s judgment

and sentence of death and remand this cause to the trial court for reformation of the judgment and

a new punishment hearing.

                                                      FACTS

       Appellant was charged with intentionally causing Jennifer Hailey’s death while he was in the

course of committing or attempting to commit the offense of kidnapping against Cameron Lockhart.

The trial record shows that appellant met Jennifer2 and her nine-year-old son, Cameron, when

Jennifer and appellant’s then-girlfriend, Andrea Copelyn, worked at the same medical clinic.

Jennifer and Cameron sometimes saw appellant at the clinic when he picked up Copelyn after work.

They would also see appellant when Copelyn’s daughter babysat Cameron in the home where

Copelyn, her three children, and appellant lived. Appellant and Copelyn had been living together,

but had separated. However, Copelyn and appellant continued to have a romantic relationship, and

appellant continued to interact with Copelyn’s co-workers at the clinic.

       For reasons that do not appear in the record, on September 19, 2010, around 10:00 p.m.,

appellant asked an acquaintance to drop him off near a unnamed friend’s apartment. Once at the

requested apartment complex, appellant went to the two-bedroom apartment where Jennifer and

Cameron lived. Appellant had never been to their apartment before. The record reflects that there

were pry marks and other signs of forced entry on the frame of the door into Jennifer’s apartment,


       1
           Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

       2
           To avoid confusion, we refer to Jennifer Hailey and other members of the Hailey family by their first names.
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but no one could say when the marks were made.

       Jennifer’s son, Cameron, was the only witness to the assault on Jennifer. He had gone to bed

at 9:00 p.m., but after sleeping for a couple of hours, got up to get a drink of water. As he walked

toward the kitchen, he saw appellant and Jennifer on the floor in the living room. Appellant was on

top of Jennifer, and it seemed to Cameron that appellant was hugging her. Jennifer was face down,

and her hand was moving a little bit. Cameron called out to her. Appellant appeared startled and

partially rose. Cameron asked, “Stanley, what are you doing?” Appellant replied that he was not

Stanley; rather, he was “Michael from Huntsville.” Cameron continued to address appellant as

Stanley. Appellant told Cameron to go back to bed, and Cameron did.

       Ten or fifteen minutes later, Cameron again left his bedroom. As he stood in the hallway,

he could see Jennifer lying face up on the floor of her bedroom. He knew from experience that

Jennifer fainted easily, but could not tell from that distance whether she had fainted or was hurt.

Cameron told appellant that he had to go to the bathroom, although that assertion was only a way

to get nearer to his mother. Although there was a bathroom across the hall from Cameron’s

bedroom, Cameron chose to use the bathroom in his mother’s room. He was thus able to get a closer

look at his mother, but he was still unable to ascertain whether she was hurt.

       As Cameron walked out of his mother’s room, appellant told Cameron that he wanted to

“chill” with him. Hoping that appellant would leave, Cameron told appellant that he was going back

to bed. Cameron walked toward his bedroom, but appellant grabbed him from behind, choked him,

and then repeatedly struck Cameron’s jaw, back, and neck with a garden trowel that appellant had

retrieved from the “washroom.” Cameron passed out in the hallway. When Cameron awoke, he was

lying on the living-room floor under a comforter that had been taken from his bed, and appellant was
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gone from the apartment. Jennifer was still lying on the floor of her bedroom. Cameron could not

awaken her and thought that she was dead. He called his grandmother, Nancy Hailey, around 5:00

a.m. and asked for help. Nancy then called 911 and her son, Jayson Hailey.

       Jayson reached Jennifer’s apartment shortly before emergency responders did. After much

pounding on the door by Jayson, Cameron opened it for him and told him what had happened.

Jayson went to Jennifer’s bedroom and picked her up, intending to take her to the hospital, but as

he carried her, he concluded that she needed immediate care. He put her down near the front door

and prepared to begin CPR. When he moved Jennifer’s bloodied hair away from her face, he saw

that her face was purple and swollen and that her tongue was blocking her airway. When the EMTs

arrived, they took over attending to Jennifer. They also saw a big gash on Cameron’s neck and

smaller gashes on the side of his face and therefore transported Cameron to the hospital. He had lost

a significant amount of blood, but he survived his injuries.

                             SUFFICIENCY OF THE EVIDENCE

       In his first point of error, appellant asserts that the evidence was legally insufficient to prove

that he intentionally murdered Jennifer in the course of kidnapping Cameron. Appellant concedes

that the evidence is legally sufficient to show that he intentionally murdered Jennifer, but he asserts

that the evidence did not prove capital murder because it did not show that appellant committed the

murder to facilitate a kidnapping: “Nothing suggests that appellant strangled Jennifer Hailey merely

to disable or harm her so that he could abduct Cameron Lockhart.” Appellant also concedes that the

evidence proved that he attacked Cameron in order to delay the discovery of Jennifer’s murder, but

he also asserts that the evidence demonstrated that Jennifer “had been murdered before appellant said

or did anything to Cameron Lockhart.”
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       When reviewing the sufficiency of the evidence, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Adames v. State, 353 S.W.3d 854, 860 (Tex.

Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard recognizes

the fact finder’s role as the sole judge of the weight and credibility of the evidence after drawing

reasonable inferences from it. Id. (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). This Court determines whether the necessary inferences made by the fact finder are

reasonable, based upon the cumulative force of all of the evidence. Id. (citing Hooper v. State, 214

S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).

       Texas Penal Code section 19.03(a)(2) provides that a person commits capital murder if the

person commits murder, as defined under section 19.02(b)(1) (intentionally or knowingly causing

the death of an individual), and the person intentionally commits the murder in the course of

committing or attempting to commit a specified offense, in this case, kidnapping. The parties agree

that, as used in Texas Penal Code section 19.03(a)(2), “in the course of committing” is defined as

conduct occurring during an attempt to commit, during the commission of, or in immediate flight

from, the forbidden behavior. See, e.g., Rivera v. State, 808 S.W.2d 80, 93 (Tex. Crim. App. 1991).

       Texas Penal Code section 20.03(a) provides that a person commits kidnapping if he

intentionally or knowingly abducts another person. “Abduct” means to restrain a person with intent

to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be

found; or (B) using or threatening to use deadly force. TEX . PENAL CODE § 20.01(2). “Restrain”

means to restrict a person’s movements without consent, so as to interfere substantially with his

liberty, by moving him from one place to another or by confining him. TEX . PENAL CODE §
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20.01(1). Restraint is without consent if it is accomplished by: (A) force, intimidation, or deception;

or (B) any means, including acquiescence of the victim, if he is a child less than fourteen years of

age and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in

the movement or confinement. Id.

        A kidnapping becomes a completed offense when (1) a restraint is accomplished, and (2)

there is evidence that the actor had the specific intent to prevent liberation by secretion or the use or

threatened use of deadly force. Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997)

(citing Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995)). The law imposes no minimal

requirement for restraint other than the interference with the person’s liberty be substantial. Earhart

v. State, 823 S.W.2d 607, 618 (Tex. Crim. App. 1991) (citing Rogers v. State, 687 S.W.2d 337, 342

(Tex. Crim. App. 1985)). Nothing in the kidnapping statute requires the state to prove that a

defendant moved a victim a certain distance or held him for a specific length of time. Reyes v. State,

84 S.W.3d 633, 636-37 (Tex. Crim. App. 2002) (citing Hines v. State, 75 S.W.3d 444, 447 (Tex.

Crim. App. 2002)). The statute does require, however, evidence of both restraint and intent to

prevent 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.

        The evidence is insufficient to show that appellant murdered Jennifer in the course of

kidnapping Cameron, but is sufficient to show a murder, followed by a number of other possible

offenses, including aggravated assault, injury to a child, or attempted murder. Appellant, while

choking Jennifer, told Cameron to go to his room, and Cameron complied. But Cameron was not

restrained under the language of the statute; he was free to move about the apartment, and he did so.

He returned to his bedroom, then left it again, told appellant that he needed to go to the bathroom,
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then went to the bathroom that was in his mother’s room rather than the one closest to his room. As

Cameron left his mother’s bedroom, he told appellant that he was going back to bed. Only at that

point did appellant grab Cameron and restrict his freedom of movement.

       More tellingly, it was only after the murder, with Jennifer dead on the floor of her bedroom,

that appellant restricted Cameron’s movements without consent and interfered substantially with his

freedom of movement. TEX . PENAL CODE § 20.01(1)(B)(i). Certainly, appellant used force in his

assault on Cameron, but the record does not show any specific intent to hide Cameron or to confine

him. Appellant’s intent at that time was not to kidnap Cameron, but rather to kill him with the

trowel and thereby remove him as a possible witness against appellant for the already completed

murder of Jennifer, and appellant’s use or threatened use of deadly force was for that purpose only.

See, e.g., Laster v. State, 275 S.W.3d 512, 524-25 (Tex. Crim. App. 2009) (a defendant’s intent may

be discerned from the surrounding circumstances). To equate the mere use of force with kidnapping

is to make every assault into kidnapping. See TEX . PENAL CODE § 20.01(2)(A), (B); see also

Brimage v. State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994) (to prove kidnapping, the State

must prove that a restraint was completed and that the actor evidenced an intent to prevent liberation

by either secretion or deadly force).

       Appellant argues that the evidence was insufficient to prove capital murder because it failed

to show that he committed the murder to facilitate the kidnapping. However, the plain language of

Section 19.03(a)(2) contains no general requirement that in order to constitute capital murder, the

murder must be committed to facilitate the underlying felony offense. We have previously rejected

arguments that the evidence must show that the murder was committed in furtherance of the

underlying felony. See, e.g., Dorough v. State, 639 S.W.2d 479, 480-81 (Tex. Crim. App. 1982)
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(evidence of capital murder was sufficient when defendant drove victims into the desert, raped

female victim, told victims to walk away, then murdered male victim); Moore v. State, 542 S.W.2d

664, 674-75 (Tex. Crim. App. 1976) ( the legislature did not intend for a defendant to escape capital-

murder charges when he kidnapped victim from scene of robbery and killed her to prevent her

testimony). In each of the above cases, the murder was committed during or after the commission

of the charged underlying felony. That is not the case here.

       Appellant correctly observes that a felony that is committed as an afterthought and unrelated

to the murder is not sufficient to prove capital murder under Section 19.03(a)(2). See, e.g., Herrin

v. State, 125 S.W.3d 436, 440-41 (Tex. Crim. App. 2002) (evidence of capital murder was

insufficient when there was no evidence that appellant intended to kidnap victim before or during

intentional murder). In this case, appellant assaulted Cameron only after Jennifer’s murder was

completed, seemingly to eliminate a witness to that murder. See id. There is nothing in the record

to indicate that appellant’s intent when he entered Jennifer’s apartment was to kidnap Cameron and

that, during that attempt, appellant murdered Jennifer. Instead, the record reveals that appellant

killed Jennifer before he became aware that Cameron was in the apartment and awake. After the

murder, appellant did not seek Cameron out and attempt to abduct him; rather, concerned for his

mother, Cameron went looking for her and found his mother and appellant in his mother’s bedroom.

Until appellant seized Cameron and assaulted him with the trowel, Cameron was no more restrained

than he was before appellant entered the apartment. We find that Cameron was assaulted but not

kidnapped. Because the murder was complete before the attack on Cameron, and because Cameron

was not restrained by appellant before appellant attacked Cameron with the trowel, the evidence does

not support a conviction for capital murder.
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        In Thornton v. State, 425 S.W.3d 289, 295-300 (Tex. Crim. App. 2014), we discussed the

development of our jurisprudence regarding the availability of a reformation of a judgment after a

finding of insufficient evidence. In Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App. 2013),

we pointed out that, when the evidence is legally insufficient only as to an aggravating element, it

is appropriate for an appellate court to strike the unproved aggravating element and reform the

judgment to reflect guilt of a lesser-included offense. And in Thornton, 425 S.W.3d at 300, we

explained that, when the lesser-included offense is one that the jury necessarily found and the

evidence is sufficient to support that lesser-included offense, the appellate court is required “to avoid

the ‘unjust’ result of an outright acquittal by reforming the judgment to reflect a conviction for the

lesser-included offense.” This case does not involve a lesser or greater culpable mental state, but

rather insufficient evidence to prove the alleged aggravating element that raised Jennifer’s murder

to capital-murder.

        In this case, the jury charge included an instruction regarding the lesser-included offense of

murder: whether appellant was guilty of intentionally causing Jennifer Hailey’s death. This lesser-

included-offense instruction did not include any reference to the aggravating element–causing a

death in the course of committing or attempting to commit the offense of kidnapping against

Cameron Lockhart.

        Appellant concedes that the evidence is legally sufficient to show that he intentionally

murdered Jennifer, and our review of the evidence confirms that the evidence was sufficient for a

rational jury to find that appellant intentionally caused the death of Jennifer Hailey by strangling her.

We conclude that the jury necessarily found that appellant committed the lesser-included offense of

murder and that the evidence is sufficient to support such a finding, thus reformation of the judgment
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is appropriate.

       We find that the evidence does not support a verdict of guilty as to capital murder and that,

based upon the judgment’s reformation to reflect a conviction for murder, punishment must be

reassessed. Accordingly we remand this case to the trial court for reformation of the judgment to

reflect a conviction for murder and for a new punishment trial. See Herrin, 125 S.W.3d at 443-44

(Tex. Crim. App. 2002). In these circumstances, we need not address the remainder of appellant’s

points of error, all of which assert error during the punishment proceedings and are rendered moot

by our reformation of the conviction and remand for a new punishment hearing.



Delivered: January 27, 2016
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