OPINION Appellant, Quendell Maurice Taylor, pleaded not guilty to the charge of aggravated kidnapping. TEX. PENAL CODE ANN. § 20.04 (West 2019). The jury found Appellant guilty of the lesser included offense of kidnapping. After Appellant pleaded “true” to the enhancement allegation, the jury assessed punishment at confinement for twenty years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. Id. § 20.03. The trial court sentenced Appellant accordingly. In a single issue, Appellant asserts that the trial court erred in denying Appellant’s motion for instructed verdict because the State failed to prove the aggravating element of the charged offense. We affirm the trial court’s judgment. Background Facts A grand jury indicted Appellant for aggravated kidnapping with intent to interfere with a governmental function. PENAL § 22.04(a)(6). Specifically, the indictment read in relevant part: [Appellant] . . . did then and there, with the intent to interfere with the performance of a governmental function, to-wit: to prevent Child Protective Services from executing a writ of attachment for [N.T.]. At trial, Appellant’s counsel moved for an instructed verdict at the close of the State’s case, on the basis that the State had failed to prove intent to interfere with a governmental function as alleged in the indictment. Counsel argued that the language in the indictment alleged intent to interfere with a nonexistent governmental function, that is, that CPS is not authorized to execute writs of attachment and therefore the State had failed to prove the essential elements of aggravated kidnapping. The trial court denied the motion. At the close of trial, the jury acquitted Appellant of the charged offense but convicted him of the lesser included offense of kidnapping. This appeal followed. Analysis Any error in failing to grant a directed verdict on a particular offense is harmless beyond a reasonable doubt when the jury did not find the defendant guilty of that offense. Jones v. State, 850 S.W.2d 236, 239 (Tex. App.—Fort Worth 1993, no pet.); see also Calvin v. State, No. 03-09-00629-CR, 2011 WL 1562138, at *7 (Tex. App.—Austin April 21, 2011, no pet.) (mem. op., not designated for publication) (“Appellant correctly notes that the error, if any, in denying the motion and submitting the aggravated [offense] question to the jury was rendered moot with regard to the [aggravated offense] charge itself when the jury acquitted him on that count.”); Sutton v. State, 35 S.W.3d 737, 739–40 (Tex. App.—Houston [1st Dist.] 2000, pet. dism’d). Appellant asserts that he was entitled to an instructed verdict because the State failed to adduce evidence of his intent to interfere with the execution of the writ of attachment by CPS because CPS does not have the authority to execute such writs. Appellant asserts that this constitutes a material variance between the indictment and the evidence at trial that is fatal to the charged offense. However, the jury acquitted Appellant of the charged offense of aggravated kidnapping and convicted him of the lesser offense of kidnapping. Even if the trial court erred in denying Appellant’s motion for instructed verdict, any error in failing to grant an instructed verdict on a particular offense is harmless beyond a reasonable doubt when the jury did not find the defendant guilty of that offense. Jones, 850 S.W.2d at 239; see also Sutton, 35 S.W.3d at 739–40. The jury apparently agreed with Appellant that the State failed to prove beyond a reasonable doubt that he had the requisite intent to commit aggravated kidnapping by interfering with a governmental function and, instead, found him guilty of the lesser included offense of kidnapping. Accordingly, we hold that the trial court’s denial of Appellant’s motion for instructed verdict on the charge of aggravated kidnapping did not contribute to Appellant’s conviction and is harmless beyond a reasonable doubt. For this reason, we overrule Appellant’s sole issue. This Court’s Ruling We affirm the judgment of the trial court. KEITH STRETCHER JUSTICE November 5, 2020 Publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.[1] Willson, J., not participating.
