Zenas Montre Whitaker v. the State of Texas

NOS. 12-22-00146-CR
12-22-00147-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ZENAS MONTRE WHITAKER, § APPEAL FROM THE 273RD
APPELLANT
§ DISTRICT COURT
V.
§ SHELBY COUNTY, TEXAS
THE STATE OF TEXAS,
APPELLEE

MEMORANDUM OPINION

Zenas Montre Whitaker appeals his convictions for aggravated assault with a deadly
weapon and aggravated kidnapping. In two issues, Appellant challenges the sufficiency of the
evidence. We affirm.

BACKGROUND
Appellant was charged by indictment with aggravated assault with a deadly weapon
against a family member causing serious bodily injury,1 aggravated kidnapping,2 and aggravated
sexual assault. He pleaded “not guilty,” and the matter proceeded to a jury trial.
At trial, the evidence showed that Appellant and Donna3 met as teenagers and had a
dysfunctional relationship for several years. At the time of the offense, they had a two-year-old

1
A first-degree felony, punishable by imprisonment for a term of life, or not more than ninety-nine years or
less than five years, and a possible fine not to exceed $10,000.00. See TEX. PENAL CODE ANN. §§ 22.02(a), (b)(1)
(West Supp. 2022); 12.32 (West 2019).
2
A first-degree felony, punishable by imprisonment for a term of life, or not more than ninety-nine years or
less than five years, and a possible fine not to exceed $10,000.00. See id. §§ 20.04(b), (c) (West 2019); 12.32.
3
A pseudonym.
daughter, Maggie.4 About seven months before the offense date, Appellant and Donna entered
rehabilitation centers at CPS’s request. Donna successfully completed her rehabilitation in three
months, moved in with her sister, continued to comply with CPS requests, and remained clean
and sober. Appellant, however, failed to comply with further CPS requests and continued using
methamphetamine. Donna’s CPS caseworker told her to have no contact with Appellant.
Appellant and Donna related somewhat different stories about how the incident began,
but both agreed that Appellant entered Donna’s home, brutally beat her with a bat, took Donna’s
cell phone and Maggie, and left Donna at the house with the four small children she was
babysitting. Donna walked to a neighbor’s house and called 911 but lost consciousness shortly
after the police arrived. She spent four days in the hospital recovering from her injuries.
Ultimately, the jury found Appellant “guilty” of aggravated assault with a deadly weapon
against a family member causing serious bodily injury and aggravated kidnapping, and “not
guilty” of aggravated sexual assault. After hearing the punishment evidence, the jury assessed
Appellant’s punishment at imprisonment for sixty years and a $10,000.00 fine in the aggravated
assault case and imprisonment for forty-five years in the aggravated kidnapping case. This
appeal followed.

EVIDENTIARY SUFFICIENCY
In Appellant’s sole issue in the aggravated assault case, he argues that the evidence is
insufficient to prove Donna suffered serious bodily injury. In a single issue in the aggravated
kidnapping case, he argues the evidence is insufficient to prove 1) any of the aggravating factors
listed in Texas Penal Code Section 20.04(a) and 2) that he abducted Maggie.
Standard of Review and Applicable Law
The Jackson v. Virginia5 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2686-87; see also Escobedo v.

4
A pseudonym.
5
443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979).

2
State, 6 S.W.3d 1, 6 (Tex. App.—San Antonio 1999, pet. ref’d). The standard for reviewing a
legal sufficiency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; see also Johnson v. State, 871 S. W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is
examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to the jury’s
credibility and weight determinations, because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899; see Jackson,
443 U.S. at 319, 99 S. Ct. at 2789. A “court faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. A successful legal sufficiency challenge
will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31,
41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed 2d 642 (1982).
The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the state’s burden of proof or unnecessarily restrict
the state’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
Aggravated Assault
To prove Appellant guilty as charged in the aggravated assault indictment, the State was
required to prove that 1) he intentionally, knowingly, or recklessly caused serious bodily injury
to Donna by striking her with a baseball bat, 2) the bat was a deadly weapon, and 3) Appellant
and Donna are the parents of the same child. See TEX. PENAL CODE ANN. § 22.02(b)(1).
Appellant argues the evidence fails to show that Donna’s injuries rise to the level of serious
bodily injury. We disagree.
“Serious bodily injury” is bodily injury that “creates a substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or impairment of the function
of any bodily member or organ.” Id. § 1.07(a)(46) (West 2021). “[T]here are no wounds that
constitute ‘serious bodily injury’” per se. Jackson v. State, 399 S.W.3d 285, 292 (Tex. App.—

3
Waco 2013, no pet.) (quoting Hernandez v. State, 946 S.W.2d 108, 111 (Tex. App.—El Paso
1997, no pet.)). Instead, we must determine whether an injury constitutes serious bodily injury on
a case by case basis, evaluating each case on its own facts to determine whether the evidence is
sufficient to permit the finder of fact to conclude that the injury fell within the definition of
“serious bodily injury.” See Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987);
Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
We evaluate the degree of risk posed by an injury, or its disfiguring or impairing
qualities, based on the injury as inflicted rather than after the ameliorating effects of medical
treatment. Garcia v. State, 667 S.W.3d 756, 763 (Tex. Crim. App. 2023). The definition of
serious bodily injury refers to the injury caused by the offender and does not require
consideration of any medical treatment that may have lessened the impact of the injury. Id. Thus,
in determining whether an injury creates a substantial risk of death, we consider the disfiguring
and impairing quality of the injury as inflicted by the offender and not the amelioration or
exacerbation of the injury by the actions of others. Id.
Serious bodily injury may be established without a physician’s testimony when the injury
and its effects are obvious. Wade v. State, 663 S.W.3d 175, 185 (Tex. Crim. App. 2022). The
person who sustained the injury at issue is qualified to express an opinion about the injury’s
seriousness. See Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. [Panel Op.] 1979);
Jackson, 399 S.W.3d at 292. In determining whether bodily injury is serious, the jury may apply
its common sense, knowledge, and experience gained in the ordinary affairs of life as it draws
reasonable inferences from the evidence. Eustis, 191 S.W.3d at 884.
Although Appellant argues that his assault on Donna posed “no real substantial risk of
death,” an abundance of evidence in this case supports a finding that the assault posed a
substantial risk of death and therefore constituted serious bodily injury. Center Police
Department Detective Bobby Walker testified that about seventeen days before the offense,
Donna reported a terroristic threat event in which Appellant threatened to kill her. Based on her
report and text message evidence she provided, a justice of the peace issued a warrant for
Appellant’s arrest. In one message, Appellant said that he did not care about the death sentence.
In another, he stated, “You have till midnight. Otherwise, you’ll be missed.”
Donna confirmed in her testimony that in the weeks prior to the attack, Appellant
repeatedly threatened to kill her. She testified that on the day of the attack, Appellant called and

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told her that CPS was sending him for a drug test, he was allowed to see Maggie, and he was
coming to the house. Donna called her caseworker, who told her to call the police if Appellant
appeared at the house. Soon, Donna heard a noise outside and then heard the locked kitchen door
open. When she entered the kitchen, Appellant began hitting her with a bat, stating that “if he
couldn’t have [Donna], nobody would,” and “he [couldn’t] believe he hasn’t seen [her] last
breath already.” At some point, Appellant took Donna into the living room and continued beating
her with the bat and kicking her in the stomach with his steel-toed boots in front of the children.
Donna estimated that Appellant beat her for around forty-five minutes. After the first blow to her
head, she felt pain, shock, disorientation, and dizziness, and had trouble maintaining
consciousness. Donna believed that she was going to die.
Donna further testified that she has continuing pains that she did not have before the
attack. The sciatic nerve in her back is damaged and causes problems. Dr. Jeff McWilliams, who
treated Donna in the emergency room in Center, testified that blunt force trauma to the spine can
cause prolonged sciatic nerve issues. Donna said that she now needs glasses to see properly and
has migraines. According to McWilliams, blunt force trauma to the head can cause post-
concussive syndrome symptoms, which can include “pretty devastating headaches” for a
prolonged time. Donna testified that one of her teeth was broken in half during the attack,
exposing the nerve and causing pain in response to hot or cold temperatures. Additionally,
Donna said that her nasal septum was deviated, causing her difficulty in breathing. Her records
from Nacogdoches Medical Center, where she was transferred after receiving emergency
treatment, confirm that she had a “nasal fracture with deviated septum.”
Appellant testified that he used methamphetamine sometime before the attack but was not
high to his knowledge at the time of the offense. On the morning of the offense, he went to the
CPS office to ask whether any court order or open case prohibited him from seeing Maggie. He
then called and told Donna that he was coming to her house. According to Appellant, Donna let
him in the house, and they talked. When Donna saw a text message from another woman on his
phone, she started “going off” on Appellant, everything went haywire, and “the bat was picked
up.” Appellant kicked Donna and struck her many times before he left. After the attack, he was
sore from swinging the bat with such extraordinary force. Appellant was “worried” that Donna
might have died but did not call for help. Appellant admitted that he threatened Donna’s life on
multiple prior occasions but claimed he did not go to her house that day to kill her.

5
Center Police Department Officer Maegan Wright testified that when she arrived at the
scene, she saw a large amount of blood “just about on every surface in the living room following
from the kitchen to the living room.” Donna’s face was swollen. One eye was completely
swollen shut. She had bruises on her abdomen and legs and blood all over her shirt. Donna was
initially able to relay information but soon lost consciousness. At that point, Wright considered
Donna’s injuries life threatening. Later, at the hospital, Wright observed a puncture wound to
Donna’s temple “extremely close” to her eye. Wright opined that the injuries constituted serious
bodily injury.
Pictures and Officer Wright’s body cam video of Donna and the bloody scene were
admitted into evidence. On the video, about a minute after Wright begins questioning her, Donna
states that she thinks she is going to pass out. Midsentence, Donna lies back on the mattress on
which she is seated. Wright asks if Donna can sit upright and speak with her. She tries but fails.
Donna sobs, moans, breathes heavily, and appears desperate for the police to rescue Maggie.
Several minutes later, Donna is unresponsive. An emergency medical technician pleads with
Donna to stay with her and not “sleep.”
Dr. McWilliams testified that when Donna arrived at the emergency room, she was alert
but disoriented. He treated her for multiple lacerations and blunt force trauma to her face and
extremities. McWilliams said that Donna lost a tooth.6 He opined that significant force was
required to cause the bruise pattern of the striking instrument that appeared on Donna’s body.
McWilliams agreed that a baseball bat could cause death and Donna’s injuries constituted
serious bodily injury. He said that she was transferred to Nacogdoches Medical Center for
multiple reasons, including high blood sugar. Dr. McWilliams said that one possible reason for
high blood sugar is trauma. Donna’s medical records from Nacogdoches Medical Center indicate
that the next day, her blood sugar level was back to normal, there was no evidence of diabetes,
and the doctor there suspected her elevated blood sugar level and leukocytosis from the previous
day were caused by a stress reaction.
Sexual assault nurse examiner (SANE) Veronica Sjolander testified that when she
examined Donna approximately twenty-four hours after the assault, she had many injuries, a

6
Donna’s medical records from Nacogdoches Medical Center indicate that her right front tooth was
chipped.

6
headache, blurred vision, a broken upper front tooth, and a large amount of swelling. Donna’s
eyes were swollen shut to the point that Sjolander could not examine them.
Viewing all the evidence in the light most favorable to the jury’s verdict, we conclude
that the jury was rationally justified in finding, beyond a reasonable doubt, that absent timely
medical treatment, Donna’s injuries posed a substantial risk of death and therefore constituted
serious bodily injury. See TEX. PENAL CODE ANN. § 1.07(a)(46); Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; Garcia, 667 S.W.3d at 764 (evidence that victim’s gunshot wounds caused
significant bleeding and loss of consciousness, along with treating physician’s opinions that
gunshot wounds can cause death and victim’s injuries constituted serious bodily injury, was
sufficient basis for finding victim faced substantial risk of death absent timely medical
treatment); see also Brooks, 323 S.W.3d at 899. Accordingly, we overrule Appellant’s sole issue
in the aggravated assault case.
Aggravated Kidnapping
To prove Appellant guilty as charged in the aggravated kidnapping indictment, the State
was required to prove that he 1) intentionally or knowingly abducted Maggie and 2) used or
exhibited a deadly weapon, specifically a bat, during the commission of the offense. See TEX.
PENAL CODE ANN. § 20.04(b). Appellant first argues that to sustain an aggravated kidnapping
conviction, the state was required to prove the elements stated in subsection (b) of penal code
section 20.04 and one of the aggravating factors listed in subsection (a). We disagree.
Subsections (a) and (b) of the aggravated kidnapping statute read as follows:

(a) A person commits an offense if he intentionally or knowingly abducts another person with
the intent to:

(1) hold him for ransom or reward;

(2) use him as a shield or hostage;

(3) facilitate the commission of a felony or the flight after the attempt or commission of a
felony;

(4) inflict bodily injury on him or violate or abuse him sexually;

(5) terrorize him or a third person; or

(6) interfere with the performance of any governmental or political function.

(b) A person commits an offense if the person intentionally or knowingly abducts another
person and uses or exhibits a deadly weapon during the commission of the offense.

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Id. § 20.04(a), (b).
The plain language of the statute requires the state to prove the elements of subsection (a)
or (b), not both. See Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009) (“A
kidnapping is aggravated when a defendant intentionally or knowingly abducts another: (1) with
the specific intent to accomplish one of six purposes or (2) ‘uses or exhibits a deadly weapon
during the commission of the offense.’”). If the legislature intended a different result, it could
have used the conjunctive “and” to combine the requirements of subsection (a) with subsection
(b)’s “uses or exhibits a deadly weapon during the commission of the offense” requirement.
Accordingly, we overrule this part of Appellant’s sole issue in the aggravated kidnapping case.
Next, Appellant argues that the State failed to prove an “abduction” occurred in this case
because he neither 1) secreted or held Maggie in a place where she was not likely to be found nor
2) prevented her from leaving his presence by restraining or threatening her with force. We
disagree with Appellant that the State failed to prove he abducted Maggie.
“‘Abduct’ means to restrain a person with intent to prevent his liberation by 1) secreting
or holding him in a place where he is not likely to be found, or 2) using or threatening to use
deadly force.” TEX. PENAL CODE ANN. § 20.01(2) (West Supp. 2022).

“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. Restraint is “without consent” if it is accomplished by:

(A) force, intimidation, or deception; or

(B) any means, including acquiescence of the victim, if:

(i) the victim is a child who is less than 14 years of age or an incompetent person and the
parent, guardian, or person or institution acting in loco parentis has not acquiesced in the
movement or confinement; or

(ii) the victim is a child who is 14 years of age or older and younger than 17 years of age, the
victim is taken outside of the state and outside a 120-mile radius from the victim’s residence,
and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in
the movement.

Id. § 20.01(1) (West Supp. 2022). Secretion and the use of deadly force are part of the mens rea
of kidnapping, not the actus reus as Appellant’s argument presumes. Brimage v. State, 918
S.W.2d 466, 475 (Tex. Crim. App. 1994). “A kidnapping becomes a completed offense when a
restraint is accomplished, and there is evidence that the actor intended to prevent liberation and
that he intended to do so by either secretion of the use or threatened use of deadly force.” Mason

8
v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995). Therefore, the State had the burden to
prove that a restraint was completed and Appellant evidenced a specific intent to prevent
Maggie’s liberation by either secretion or deadly force. See id.
The evidence is sufficient to show that a restraint was completed and Appellant had a
specific intent to prevent Maggie’s liberation by secreting or holding her in a place where she
was not likely to be found. Appellant arrived at Donna’s house on the morning of the offense in
his mother’s car, brutally beat Donna with a baseball bat, bit Donna to extract Maggie from her
arms, and left in the car with Donna’s phone and Maggie. After Donna reported the incident to
the police, they issued an Amber Alert for Maggie. Based on the police’s knowledge of
Appellant, they were able to locate the car he was driving outside a camper trailer in
Nacogdoches County, but neither Appellant nor Maggie was present at the location. That
evening, the police spoke with Donna at the hospital seeking additional leads. Donna first
suggested Appellant’s mother, aunt, grandmother, and grandfather. In response to further
questioning, she stated that Appellant had several brothers, including one who lived in Alto, but
she did not know exactly where. The police found the house in Alto in the early hours of the next
morning. They first spoke with some of Appellant’s family members, who were initially
uncooperative but eventually told them that Appellant was in the house. The police initiated
contact with Appellant by loud hailer and he surrendered about two minutes later, at around 7:00
a.m. While SWAT personnel were clearing the residence for safety, the police took possession of
Maggie. We conclude this evidence is sufficient to show that Appellant restrained Maggie, a
child who was less than fourteen years of age, by moving her from one place to another without
Donna’s acquiescence, with intent to prevent her liberation by secreting or holding her in a place
where she was not likely to be found. See Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim.
App. 1980) (evidence of intent to secrete or hold sufficient when victim was held in “an
automobile being driven on city streets—where he was not found for approximately one hour.”).
Therefore, the evidence is sufficient to show that Appellant abducted Maggie. See TEX. PENAL
CODE ANN. § 20.01(1)(B)(i), (2)(A).
In arguing that the evidence fails to show he “abducted” Maggie, Appellant emphasizes
that no court order was in effect to prevent him from exercising lawful possession of her.
Essentially, he argues that the absence of such an order is an affirmative defense to aggravated
kidnapping. He cites no authority for this argument. See TEX. R. APP. P. 38.1(i) (requiring brief

9
to contain clear and concise argument with appropriate citations to authorities). The State
observes that while the kidnapping statute provides an affirmative defense under certain
circumstances when the actor was a relative intending to assume lawful control of the victim, the
aggravated kidnapping statute provides no such defense. Compare TEX. PENAL CODE ANN. §
20.03 (West 2019) with id. § 20.04. Consequently, the State argues, “even though [Appellant] is
[Maggie’s] father, he was not permitted to ‘assume lawful control’ of [Maggie] by wielding a
deadly weapon.” We agree. Appellant cannot claim the kidnapping statute’s lawful control
affirmative defense in his aggravated kidnapping case. See Rue v. State, 288 S.W.3d 107, 111
n.3 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“[Section 20.03’s] affirmative defense is
not permitted for aggravated kidnapping.”).
Viewing all the evidence in the light most favorable to the jury’s verdict, we conclude
that the jury was rationally justified in finding, beyond a reasonable doubt, that Appellant
committed aggravated kidnapping. See TEX. PENAL CODE ANN. § 22.02(b); Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 899. Accordingly, we overrule
Appellant’s sole issue in the aggravated kidnapping case.

DISPOSITION
Having overruled Appellant’s sole issue in each case, we affirm the trial court’s
judgment.

Opinion delivered June 30, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30, 2023

NO. 12-22-00146-CR

ZENAS MONTRE WHITAKER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 273rd District Court
of Shelby County, Texas (Tr.Ct.No. 2021-CR-21746)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and J., Neeley
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30, 2023

NO. 12-22-00147-CR

ZENAS MONTRE WHITAKER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 273rd District Court
of Shelby County, Texas (Tr.Ct.No. 2021-CR-21949)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and J., Neeley