### IN THE TENTH COURT OF APPEALS No. 10 - 08 - 00064 - CR STACEY KIRVEN , Appellant v. THE STATE OF TEXAS , Appellee

From the 77th District Court Limestone County, Texas Trial Court No. 11381 - A MEMORANDUM OPINION A jury convicted Stacey Kirven of aggravated robbery and kidnapping
. The trial court sentenced Stacey t o fifty years in prison for aggravated robbery and twenty years in prison for kidnapping. Stacey ’s appellate counsel filed an Anders brief presenting three potential issues : (1) the leg al and factual sufficiency of the evidence; (2) trial error; and (3) jury charge error
. See Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) . Although informed of his right to do so, Stacey did not file a pro se brief. We affirm
.Kirven v. State Page 2 STANDARD OF REVIEW In an Anders case, we must, “after a full e xamination of all the proceedings, [] decide whether the case is wholly frivolous.” Anders , 386 U.S. at 744, 87 S. Ct. at 1400 ; accord Stafford v. State , 813 S.W.2d 503, 509

- 11 (Tex. Crim. App. 1991) ; C oronado v. State , 996 S.W.2d 283, 285 (Tex. App.

— Waco 1999, order) (per curiam), disp. on merits , 25 S.W.3d 806 (Tex. App.

— Waco 2000, pet. ref ’ d)
. An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals , 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902, 100 L. Ed. 2d 440 (1988)
. Arg uments are frivolous when they “ cannot conceivably persua de the court.” Id . at 426, 1901
. An appeal based on “ arguable grounds ” is not wholly frivolous. Stafford, 813 S.W.2d at 511
. LEGAL AND FACTUAL SU FFICIENCY The first potential issue raised by counsel addresses the legal and factual sufficiency of the evidence. Aggravated Robbery The offense of aggravated robbery is comm itted where (1) a person; (2) in the
course of committing theft (3) with intent to obtain a nd maintain control of property (4) intentionally, knowingly, or recklessly (5) causes bodily injury to another and (6) uses or exhibits a deadly weapon
. See T EX . P EN . C ODE A NN . § 29.02 (a)(1) (Vernon 2003 ); see also T EX . P EN . C ODE A NN . § 29.03(a)(1), (2) (Vernon 2003 ).Kirven v. State Page 3

Course of Committing Theft Intent to Obtain and Maintain Control of Property Kevin Kirven, Stacey’s brother, testified that Stacey wanted to r ob Thomas Robinson. Stacey beat Robinson and took money from Robinson. Stacey split the money with Kevin. The jury could reasonably conclude that Stacey acted while in the course of committing a theft with intent to maintain or obtain control over Robin son’s property. See T EX . P EN . C ODE A NN . § 31.03(a) (Vernon Supp. 2008) (theft) ; see also T EX . P EN . C ODE A NN . § 29.01(1) , (2) (Vernon 2003) (definition of “In the course of committing theft” ); White v. State , 671 S.W.2d 40, 42 (Tex. Crim. App. 1984) ( expla ining i ntent to obtain or maintain control of property)
. Bodily Injury E mergency physician Dr. Michael Spohn testified that Robinson suffered from (1) nine broken ribs; (2) abrasions and lacerations to his head and body; (3) pneumothorax, a “potentially li fe

- threatening” condition where air is trapped in the lungs as a result of lacerations to the lung pleura; (4) a dangerous blood pressure level; and (5) blood in the urine. Robinson testified that the beating was very painful. He still has trouble breath ing and has a partially collapsed lung. The jury could reasonably conclude that Robinson suffered bodily injury. See T EX . P EN . C ODE A NN . § 1.07(a)(8) (Vernon Supp. 2008) (defining “ b odily injury” )
. Deadly Weapon The indictment alleged that the dead ly weapon was a fence post or walking
cane. Robinson and Kevin each testified that Stacey used both items to beat Robinson
.Kirven v. State Page 4

Corporal William Rogers found a broken cane at the scene, but never located a fence post. Spohn , Rogers, and Detective Richard Hu ndley each testified that a walking cane or fence post could be a deadly weapon. T he jury could reasonably conclude that the cane and fence post were capable , in their manner of use, of causing death or serious bodily injury. See T EX . P EN . C ODE A NN . § 1. 07 (17)(B) (Vernon Supp. 2008) (defining “deadly weapon”); see also Tucker v. State , 274 S.W.3d 688, 691
- 92 ( Tex. Crim. App. 2008); Ashcraft v. State , No. 03
- 07
- 00237
- CR, 2008 Tex. App. LEXIS 1338, at *8
- 9 (Tex. App.

— Austin Feb. 21, 2008, pet. ref’d) (not designated for publication). Kidnapping A person commits kidnapping if he intentionally or knowingly abducts another person. T EX . P EN . C ODE A NN . § 20.03(a) (Vernon Supp. 2008 ). “Abduct” means to restrain a person with inte nt 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. 1 T EX . P EN . C ODE A NN . § 20.01(2)(A)

- (B) (Vernon 2003 ). “Restrain” means to restrict a person’s movements without consent, so as to interfe re substantially with the person’s liberty, by moving the person from one place to another or by confining the person. T EX . P EN . C ODE A N N . § 20.01(1)
. The record contains evidence that Robinson attempted to escape during the beating, but Stacey caught him
. Stacey and Kevin bound Robinson with rope, placed him in his truck, and held him down. Stacey took possession of the truck. After the

1 The indictment alleged aggravated kidnapping, but the jury found Stacey guilty of the lesser i ncluded offense of kidnapping.Kirven v. State Page 5

truck stop ped running, Stacey threw the bound and beaten Robinson in a drainage ditch full of three to four feet of water. Although t he ditch is near a highway , Rogers described the area as “kind of barren” and “fairly desolate.” Although Robinson wa s only taken a tenth of a mile from where the beating occurred, Hundley believed that Stacey planned to either kill Robinson or at least place him in a locatio n where he could not be found. The jury could reasonably conclude that Stacey (1) forcibly restr i cted Robinson’s liberty without his consent by beatin g him, binding him with rope, and confining him to his truck; and (2) intended to prevent Robinson’s liberation by secreting him in a place where he was not likely to be found
. See T EX . P EN . C ODE A NN . § 20.01(2)(A)

- (B) ; see also Hines v. State , 75 S.W.3d 444, 447 (Tex. Crim. App. 2002) ; Megas v. State , 68 S.W.3d 234, 240

- 41 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref’d); Price v. State , 35 S.W.3d 136, 140

- 41 (Tex. App.

— Waco 2000, pet. ref’d)
. Summary V iewing all the evidence in the light most favorable to the verdict, the jury could reasonably conclude, beyond a reasonable doubt, tha t Stacey committed the offenses of aggravated robbery and kidnapping. See Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson v. Virginia , 443 U.S. 307, 318

- 19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979))
. The proof of guilt is not so weak nor the conflicting evidence so strong as to render the jury’s verdict clearly wrong or manifestly unjust. Watson v. State , 204 S.W.3d 404, 414

- 15 (Tex. Crim. App. 2006) ; Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)
.Kirven v. State Page 6 TRIAL ERROR We first note that any errors committed during voir dire have not been preserved. The record does not establish th at Stacey exercised his peremptory challenges on any venire member whom the trial court failed to excuse for cause
. See Johnson v. State , 43 S.W.3d 1, 5

- 6 (Tex. Crim. App. 2001) . Nor does the record contain any other objections by the defense. S ee T EX . R. A PP . P. 33.1
. We next note that no appealable errors arise from trial on the merits. The State agreed to withdraw two photographs to which the defense objected. The trial court sustained several of the defense’s objections , but the defense request ed n o instruction to disregard
. See Wilson v. State , 179 S.W.3d 240, 256 (Tex. App.

— Texarkana 2005, no pet.) (citing Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985) ). The trial court properly overruled Stacey’s objection to Hundley’s testimony that he believed Robinson would be killed or at least taken to a place where he wou ld not be found
. See T EX . R. E VID . 701; see also Cortez v. State , No. 02
- 05
- 00147
- CR, 2006 Tex. App. LEXIS 4998, at *24
- 27 (Tex. App.

— Fort Worth June 8, 2006, pet. ref’d) (not designated for publication)
. T he trial court also properly overruled Stacey’s objection that Spohn ’s understanding of the legal definition of a deadly weapon called for a legal conclusion
. See Whittington v. State , 781 S.W.2d 338, 341 (Tex. App.

— Houston [14th Dist.] 1989, pet. ref’ d) ; see also Berry v. State , No. 05
- 03
- 00441
- CR, 2004 Tex. App. LEXIS 1174, at *9 (Tex. App.

— Dallas Feb. 6, 2004, no pet.) (not designated for publication)
.Kirven v. State Page 7 JURY CHARGE ERROR When reviewing a jury charge, we first examine the charge for error. See Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) ). If error occurred, we then decide whether the error caused harm. See id
. When, as here, an appellant fails to object to the charge at trial, he must show egregious harm to prevail on appeal. See id. at 743
- 44 ; see also Almanz a v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) . “Errors that result in egregious harm are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Ngo , 175 S.W.3d at 743 (quoting Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996))
. To determine whether “ error was s o egregious that a defendant was denied a fair and impartial trial, ” we examine: ( 1) the entire jury charge; ( 2) the state of the evidence; ( 3) the arguments of counsel; and ( 4) any other relevant information in the record.” Id
. at 750 n.48 ; Almanza , 686 S.W.2d at 171
. The trial court omitted an application paragraph on law of the parties after including su ch law in the abstract portion of the jury charge
. This constitutes error. See Campbell v. State , 910 S.W.2d 475, 477 (Tex. Crim. App. 1995)
. However, because t he evidence supports Stacey ’s conviction as the principal actor , he did not suffer egregious harm from the trial court’s error
. See Ladd v. State , 3 S.W.3d 547, 564
- 65 (Tex. Crim. App. 1999) ; see also Cadena v. State , No. 13
- 03
- 00485
- CR, 2004 Tex. App. LEXIS 6842, at *5

- 6 (Tex. App.

— Corpus Christi July 29, 2004, no pet.) (not designated for publi cation) ; Davis v. State , No. 05
- 06
- 00527
- CR, 2007 Tex. App. LEXIS 4577 , at *6
- 7 (Tex. App.

— Dallas June 13, 2007, no pet.) (not designated for publication)
.Kirven v. State Page 8 INDEPENDENT REVIEW Having conducted an independent review of the record, we find this appeal to be

w holly frivolous. We affirm the judgment. Counsel’ s request that he be allowed to withdraw from representation of Stacey is granted. Counsel has already notified Stacey of his right to file a pro se petition for discretionary review as part of his “educat ional burdens” he satisfied when filing his Anders brief. The Court of Criminal Appeals has validated this method of notification used by counsel. See In re Schulman , 252 S.W. 3d 403, 412 n.34 (Tex. Crim. App. 2008); see also Meza v. State , 206 S.W.3d 684 , 689 n.23 (Tex. Crim. App. 2006). Nevertheless, p ursuant to Rule of Appella te Procedure 48.4, counsel must: (1) send Stacey a copy of our decision ; (2) notify Stacey of his right to file a pro se petition for discretionary review ; and (3) provide “a lett er [to this Court] certifying his compliance with this rule.” See T EX . R
. A PP . P
. 48.4; see also Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App. 2006) ; Schulman , 252 S.W. 3d at 409 n.22
.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna , and Justice Davis (Chief Justice Gray concurring ) Affirmed O pinion delivered and filed May 13 , 2009 Do not publish [CRPM]