

Opinion filed April 26,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00106-CR
                                                    __________
 
                               CHRISTOPHER
GUFFEY, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 217th District Court
 
                                                          Angelina
County, Texas
 
                                                     Trial
Court Cause No. 29,053
 

 
                                            M E M O R A N
D U M   O P I N I O N
 
            The
jury convicted Christopher Guffey, appellant, of the offense of aggravated
kidnapping.  Appellant pleaded true to an enhancement allegation, and the trial
court assessed his punishment at confinement for life.  We affirm.  
Issues
            Appellant
presents six points of error on appeal.  In the first and third points,
appellant complains of the admission of evidence that he was a member of the
Aryan Brotherhood and the admission of hearsay.  In his second and fourth
points, appellant asserts that the trial court erroneously omitted his
requested instruction on duress from the jury charge and erroneously included
the law of parties in the application paragraph.  In his fifth and sixth
points, appellant challenges the legal and factual sufficiency of the evidence.

Sufficiency
of the Evidence
            Because
appellant’s fifth and sixth points of error challenge the sufficiency of the
evidence, we will address them first.  We review a challenge
to the sufficiency of the evidence, regardless of whether it is denominated as
a legal or a factual sufficiency challenge, under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979).  Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d
286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d).  Under the Jackson standard,
we examine all of the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and any reasonable inferences
from it, any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.  Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010).  The elements of the offense are to be defined by the
hypothetically correct jury charge for each particular case.  Adames v.
State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied,
80 U.S.L.W. 3462 (U.S. Mar. 19, 2012); Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997).  
            Appellant was charged with and convicted of the
offense of aggravated kidnapping under Tex.
Penal Code Ann. § 20.04 (West 2011) for intentionally or knowingly
abducting Julie Robinson, without her consent, with the intent to terrorize her
or inflict bodily injury on her.  As relevant to this case, “abduct” means to
restrain a person with the intent to prevent the person’s liberation by
secreting or holding the person in a place where she is not likely to be found. 
Id. § 20.01(2)(A).  “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).  The jury was charged accordingly and was authorized to convict
appellant as either a principal or a party to the offense. 
The record shows that appellant, at the behest of Stephen
Wallace,[1]
went to Jennifer Holliday’s house looking for Robinson on the night of June 22,
2009.  Holliday testified that, she heard a “huge bang,” which was the sound of
her door being kicked in completely.  Appellant and a man whom she did not know
(but heard others call him “Lucky”) were standing inside her house.  They were
hollering and demanding to know the whereabouts of Robinson, who had just ended
a romantic relationship with Wallace.  Appellant told Holliday and the others
at her residence to put their cell phones on the counter and not to move.  Appellant
also threatened to burn Holliday’s house down with her son in it if Holliday
called the police.  Appellant said he would not leave without Robinson.  Holliday
testified that appellant was on the phone “taking orders” from Wallace and that
she heard Wallace say: “Take them out.”  When Robinson arrived at the house,
appellant went outside and “put” Robinson into an older-style Crown Victoria.  The
other two adult occupants of Holliday’s house testified similarly to Holliday
and agreed that Robinson did not appear to be going with appellant voluntarily. 
After taking her son to her grandmother’s house, Holliday went to the sheriff’s
department and reported the incident. 
            Holliday’s aunt, Robin Franklin, gave Robinson
a ride to Holliday’s house that night.   Franklin testified that, just before
she met Robinson, Wallace called Franklin.  Franklin testified that Wallace was
looking for Robinson and stated, “I’ll be damned if that ho leaves me with a --
just a note.”  Franklin also testified that Wallace threatened to kill her when
she told Wallace to leave Robinson alone.  Robinson was crying and shaking when
she got into Franklin’s car.  Franklin proceeded to Holliday’s house but drove
past it because of the commotion there.  After they passed Holliday’s house,
appellant called Robinson.  Franklin could hear appellant screaming, “You
better get back up here to [Holliday’s] or somebody’s going to get hurt.”  Robinson
began screaming for Franklin to go back to Holliday’s house and saying,
“They’ll hurt her.”  Franklin turned around and went back.  When they pulled
into Holliday’s driveway, appellant ran up to the car, opened the door, and
yanked Robinson out of the car by her hair.  Appellant then twisted Franklin’s
arm, told her to let go of her keys and give him her cell phone, and said that
she could not leave.  Appellant then called Wallace and said, “We have her. . .
.  We’ll bring her to you.”  Appellant asked Wallace what to do about the rest
of them, and Wallace screamed, “Take the hos out.  Take them all out.” 
Appellant then told Franklin that he was going to burn the house down with
Holliday and her son in it.  About that time, “Lucky” ran outside and informed
appellant that he thought Holliday had called the police.  Appellant then got
out of Franklin’s car, grabbed Robinson, and threw her into the backseat of the
Crown Victoria.  Appellant, his cohorts, and Robinson left in the Crown
Victoria.  Franklin testified that appellant appeared to be under the influence
of methamphetamine or speed. 
Robinson testified that, on June 22, 2009, she attempted to
leave Wallace, with whom she had been in a romantic relationship.  She made
arrangements to go to Holliday’s house.  Robinson feared that Wallace would be
looking for her because he had been using lots of drugs and was not thinking
clearly.  While she was in the car with Franklin and also after she arrived at
Holliday’s house, Robinson talked to Wallace on the phone and tried to calm him
down, but she could hear Rachel Tutt (who was also in an intimate relationship
with Wallace) in the background provoking things.  Robinson testified that,
after Franklin passed Holliday’s house, Robinson screamed at Franklin to turn
around and take her back to Holliday’s house.  The scene at Holliday’s house
was chaotic.  Wallace and Tutt were screaming over the phone and instructing
appellant and “Lucky” to “take everybody out” and “burn the house down.”   Robinson
testified that, although she would have preferred to stay at Holliday’s house,
she got in the Crown Victoria and left with appellant because she wanted
Holliday and her son to be safe.
In the car were appellant, Robinson, Ashley McLemore,
Stephanie Powell, and a man whom Robinson did not know at the time but later
came to learn that he was Gary Allen a/k/a “Lucky.”  At some point after they
left Holliday’s house, appellant was talking on the phone, presumably with
Wallace.  Robinson heard appellant ask, “You want her in the trunk?”  They
pulled over, and appellant and McLemore got out of the car.  McLemore moved
some of the things that were in the trunk.  Appellant then stuck his head in
the car and told Robinson, “You got three seconds to get in the trunk or else
I’ll put you there.”  After appellant reached in to grab her, Robinson got out
of the backseat and got into the trunk.  Appellant closed the trunk, and they
left.  Robinson “was panicking.”  When the car stopped again, they were at a
Shell station. The trunk opened, and Wallace was standing there.  Wallace told
Robinson that she was not going to leave him like that, and then he shut the
trunk.  The trunk opened again, and Tutt said, “Bitch, you done f----d up.” 
The trunk closed again, and they left the Shell station and drove a short
distance before stopping again.  Wallace opened the trunk, pulled Robinson out
of the trunk, and threw her into the backseat of the small, red car that
Wallace was driving.  Wallace and Tutt yelled at Robinson, and Wallace hit
her.  The Crown Victoria followed the red car, and both cars eventually pulled
into a cemetery and stopped.  When they arrived at the cemetery, it was the
middle of the night.  Everyone got out of the cars except for Powell.  At the
cemetery, Wallace and Tutt beat Robinson to the point that Robinson lost
consciousness.  The beating was interrupted when somebody saw car lights coming
down the road.  They all left the cemetery.  Robinson, Tutt, Wallace, and
appellant left in the red car.  They drove around and eventually went to Tutt’s
parents’ house.  Although Robinson tried to calm Wallace, Wallace was still
acting irrationally and ultimately decided that Robinson had set him up and
that Tutt was going to have to kill Robinson.
Robinson tried to stay awake but could not; her head “hurt
bad.”  Later that morning, appellant woke Robinson up and told her that
somebody from the sheriff’s department was on the phone for her.  Appellant handed
the phone to Robinson.  Deputy Donna Clayton was calling to check on Robinson
based upon Holliday’s report indicating that Robinson was missing and was
probably in danger.  Deputy Clayton asked Robinson if she was okay and told
Robinson that she needed to see Robinson to make sure.  There were various
calls back and forth between Deputy Clayton and both Robinson and Wallace. During
one of the phone conversations between Robinson and Deputy Clayton, Robinson
was being asked “yes or no” questions and was able to inform Deputy Clayton
that she was hurt.  Wallace decided that they needed to get in the cars and
leave Tutt’s parents’ house, which they did.
Based upon Holliday’s report and Deputy Clayton’s phone
conversations, law enforcement officers were dispatched.  Detective Thomas
Matthews spotted the Crown Victoria, which was being followed by the red car.  The
cars were not headed toward the sheriff’s department when they were
intercepted; instead, they were traveling in the opposite direction. Appellant
was driving the Crown Victoria, and Robinson was in the backseat.  Detective
Matthews turned on his lights and siren and attempted to stop the Crown
Victoria, but appellant sped up.  After a five-mile pursuit, appellant stopped abruptly. 
All of the people in the Crown Victoria, except for Robinson, fled.  Robinson
stated that she had been kidnapped and asked to be taken into custody and put
into the police car where she could not be seen.  Shortly thereafter, the red
car was stopped nearby by another officer, and Wallace fled.  
When Deputy Clayton arrived at the scene, Robinson was
crying and terrified and showed visible signs of physical abuse.  Deputy
Clayton took pictures of Robinson’s injuries.  Both Robinson and Deputy Clayton
described the injuries at trial.  Robinson’s injuries included a broken tooth,
a missing tooth, a “busted” eardrum, and numerous bruises and abrasions from Robinson’s
head down to her legs.
Evidence was introduced showing that appellant, Wallace,
and “Lucky” were members of the Aryan Brotherhood (AB) and that Wallace had
rank over appellant within that organization.  Appellant was, therefore,
obligated to carry out Wallace’s orders without question as long as the orders
were “AB-sanctioned” orders.
Appellant urges that the evidence is insufficient to support
his conviction because he acted under duress, because Robinson went with him
voluntarily, and because appellant had no intent to inflict bodily injury on
Robinson.  Appellant cites Tex. Penal
Code Ann. § 8.05 (West 2011) in support of his duress argument.  Section
8.05(a) provides, “It is an affirmative defense to prosecution that the actor
engaged in the proscribed conduct because he was compelled to do so by threat
of imminent death or serious bodily injury to himself or another.”  Although
there was evidence that appellant would suffer consequences for disobeying
Wallace’s orders, there was no evidence in the record of a threat of imminent
death or serious bodily injury.  Furthermore, Section 8.05(d) provides that the
defense of duress is not available “if the actor intentionally, knowingly, or
recklessly placed himself in a situation in which it was probable that he would
be subjected to compulsion.”  With respect to appellant’s contention that
Robinson went with him voluntarily, we conclude that there is more than ample
evidence from which a rational jury could have determined that Robinson did not
voluntarily go with appellant and that Robinson was abducted.  Finally,
although the evidence does not show that appellant actually inflicted bodily
injury on Robinson, the jury could have found from the evidence presented that
appellant had the intent to inflict bodily injury or terrorize Robinson or that
appellant acted as a party to the offense.  We hold that any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt and that the evidence is sufficient to support appellant’s conviction. 
The fifth and sixth points of error are overruled.  
Jury Charge
Appellant
contends in his second point of error that the trial court erred in refusing to
give a jury instruction on the defense of duress.  It is well settled that a
defendant is entitled to an instruction on every defensive issue raised by the
evidence, regardless of whether that evidence is strong, feeble, unimpeached,
or contradicted.  Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App.
2007); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Sanders
v. State, 707 S.W.2d 78, 80 (Tex. Crim. App. 1986); Warren v. State,
565 S.W.2d 931 (Tex. Crim. App. 1978).  Duress, however, was not raised by the
evidence in this case.  There was no evidence that appellant was compelled to
act by any threat of imminent—meaning immediate—death or serious bodily
injury.  See Section 8.05(a); Ramirez v. State, 336 S.W.3d 846,
851–52 (Tex. App.—Amarillo 2011, pet. ref’d).  Furthermore, duress was not an
available defense under the circumstances of this case because appellant,
through his membership in the Aryan Brotherhood, “placed himself in a situation
in which it was probable that he would be subjected
to compulsion” and to receiving orders from Wallace.  See Section
8.05(d).  The trial court did not err in refusing to instruct the jury on the
affirmative defense of duress.  Appellant’s second point of error is
overruled.  
In
his fourth point of error, appellant contends that the trial court erred by
including the theory of parties in the application paragraph of the jury charge
because such language was not contained in the indictment.  An indictment need
not allege the theory of parties in order for the defendant to be convicted as
a party, and a trial court may charge the jury on the theory of parties even
though that theory was not included in the indictment.  Tex. Penal Code Ann. § 7.01(c) (West 2011); Adames,
353 S.W.3d at 861.  There was evidence that appellant acted in conjunction with
others in the commission of the offense and, thus, that appellant was a party
to the offense.  Because the parties charge was authorized by law and supported
by the evidence, the trial court did not err in charging the jury on the law of
parties and authorizing the jury to convict appellant as a party to this
offense.  Appellant’s fourth point of error is overruled.  
Evidentiary
Objections
            Appellant
urges in his first point of error that the trial court erred in admitting
testimony that appellant was a member of the Aryan Brotherhood.  The State
asserts that appellant failed to preserve this issue because he did not obtain
a running objection or object each time the Aryan Brotherhood was mentioned and
because defense counsel questioned witnesses regarding the Aryan Brotherhood.  We
disagree.  Appellant filed a motion in limine regarding his membership in the Aryan
Brotherhood, and the trial court granted appellant’s motion in limine prior to
trial but specifically stated that it was not ruling on the admissibility or
inadmissibility of such evidence.  During trial, the attorneys approached the
bench to discuss the issue outside the hearing of the jury.  Defense counsel
requested a ruling “on the admissibility” of evidence relating to the Aryan Brotherhood,
and the trial court announced its ruling at that time.  When an adverse ruling
regarding the admissibility of evidence is obtained at a hearing held outside
the presence of the jury, no further objections need be made in the presence of
the jury to preserve the issue for appellate review.  Tex. R. Evid. 103(a)(1); Geuder v. State, 115 S.W.3d
11, 13–15 (Tex. Crim. App. 2003).  Defense counsel’s questioning of witnesses
regarding the Aryan Brotherhood occurred after the trial court had ruled that
the evidence was admissible.  Appellant did not waive the issue.  
            With
respect to admissibility, appellant contended that evidence referencing the
Aryan Brotherhood was not relevant to this case and was unduly prejudicial.  Appellant
relies, in part, upon Dawson v. Delaware, 503 U.S. 159 (1992).  In Dawson,
the Supreme Court held that the admission of a stipulation during the
sentencing phase of trial violated the defendant’s constitutional right to
freedom of association where the narrow stipulation merely showed that the
defendant was a member of the Aryan Brotherhood, a prison gang, but failed to
show the relevance of such membership.  503 U.S. at 165–68.  The Court in Dawson
concluded, however, that the Constitution does not erect a per se barrier to
the admission of evidence at sentencing regarding gang membership.  Id.
at 165.  In the present case, appellant’s membership in the Aryan Brotherhood
was offered during the guilt/innocence phase of trial for the relevant purpose
of showing appellant’s motive for committing the crime.  Thus, Dawson is
distinguishable from the present case.  See, e.g., Mason v. State, 905
S.W.2d 570, 576–77 (Tex. Crim. App. 1995) (discussing Dawson and
upholding the admission of evidence of the defendant’s membership in the Aryan
Brotherhood at the punishment phase of trial because such evidence was shown to
be relevant).  
Appellant
also relies upon the Texas Rules of Evidence in support of his contentions.  See
Tex. R. Evid. 401, 403, 404.  The
Texas Court of Criminal Appeals rejected similar arguments in Vasquez v.
State, 67 S.W.3d 229, 239–40 (Tex. Crim. App. 2002), as did the court of
appeals in McCallum v. State, 311 S.W.3d 9, 14–16 (Tex. App.—San Antonio
 2010, no pet.).  In each of these cases, the court ruled that evidence of the
defendant’s gang membership was relevant to show motive and was not unfairly
prejudicial.  
In
Vasquez, the court upheld the admission of evidence that the defendant
was a member of the Mexican Mafia where such gang affiliation was relevant to
show a motive for the gang-related crime and, though prejudicial, was not
unfairly prejudicial.  67 S.W.3d at 239–40.  In that case, an accomplice
witness testified that the defendant was a member of the Mexican Mafia and that
the defendant told the accomplice that the victim had to be killed because she
failed to pay a tax on the sale of illegal drugs that was collected by the
Mexican Mafia.  Id. at 232.  
In
McCallum, the court upheld the admission of evidence that the defendant
was a member of the Aryan Brotherhood where the evidence indicated that the
defendant had attacked the victim because the victim “was ‘false-claiming’
regarding his prison involvement with other white supremacists.”  311 S.W.3d at
15.  The court also determined that, under Rule 403, the evidence was not
unfairly prejudicial as it was not introduced in an attempt to show that the
defendant was a bad person and that he acted in conformity with that character
simply because of his affiliation with the Aryan Brotherhood.  Id.  Unfair prejudice exists only when the evidence has an
undue tendency to suggest decision on an improper basis—commonly, though not
necessarily, an emotional one.  Vasquez, 67 S.W.3d at 240.  
Likewise,
we hold that appellant’s affiliation with the Aryan Brotherhood was relevant
and that the probative value of such evidence was not substantially outweighed
by the danger of unfair prejudice.  Appellant’s membership in the Aryan
Brotherhood and his obligation to follow Wallace’s orders because of their rank
within that organization were relevant to show appellant’s motive for the
crime.  The evidence showed that Wallace gave various orders to appellant
relating to this crime, including putting Robinson in the trunk.  Evidence of
appellant’s membership in the Aryan Brotherhood was offered to show appellant’s
motive, was not introduced to show character conformity, does not violate Rule
404, and was not unduly prejudicial.  Thus, the trial court did not abuse its
discretion in admitting evidence regarding appellant’s membership in the Aryan
Brotherhood.  Appellant’s first point of error is overruled.  
            In
his third point of error, appellant argues that the trial court erred when it
permitted Franklin to testify regarding Wallace’s out-of-court statements.  At
trial, appellant objected that the testimony constituted inadmissible hearsay. 
The State asserted that the statements made by Wallace were admissible under Tex. R. Evid. 801(e)(2)(E).  Rule
801(e)(2)(E) provides that a statement is not hearsay if the statement is
offered against a party and was made “by a co-conspirator of a party during the
course and in furtherance of the conspiracy.”  The statements about which
appellant complains were statements that Franklin heard Wallace say while Wallace
was looking for Robinson and while he was giving instructions to appellant regarding
what to do after locating Robinson. These statements were admissible under Rule
801(e)(2)(E).  Furthermore, Wallace’s statement that he would “be damned” if
Robinson left him with just a note was not offered to prove the truth of the
matter asserted.  Moreover, appellant did not object when Robinson or Holliday
testified regarding similar out-of-court statements made by Wallace.
            We
note that, on appeal, appellant also cites Crawford v. Washington, 541
U.S. 36 (2004), and argues that the admission of Wallace’s statements violated
appellant’s right to confront the witnesses against him because Wallace did not
testify at appellant’s trial.  Appellant did not preserve this contention for
review because he did not make any such objection at trial.  Tex. R. App. P. 33.1; Paredes v.
State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (hearsay objection does
not preserve Confrontation Clause issue).  Moreover, the statements were not testimonial
in nature and, therefore, did not violate the Confrontation Clause or the
mandate of Crawford.  Appellant’s third point of error is overruled.  
This
Court’s Ruling
            The
judgment of the trial court is affirmed.  
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
April 26, 2012
Do not publish. 
See Tex. R. App. P.
47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




[1]We
note that, in a separate trial, Wallace was also convicted of the aggravated
kidnapping of Robinson and also received a life sentence.  We have this same
day affirmed Wallace’s conviction.  See Wallace v. State, No.
11-10-00109-CR (Tex. App.—Eastland Apr. 26, 2012, n.p.h.) (mem. op., not
designated for publication). 


