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.
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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 
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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 
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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).