Dominguez, John Christoper, PD-0522-15

Background

Dominguez was convicted of aggravated kidnapping and sexual assault of a 16-year-old, D.P., with counts tried separately and severed from other counts; the kidnapping occurred at Sahara Motel in San Antonio after he abducted D.P. and a friend from a post office and mall visits; evidence included Dominguez leaving the motel after the assault, with the victim calling her sister and eventually leaving the motel for a nearby Pizza Hut; the trial court sentenced Dominguez to 60 years for kidnapping and 20 years for sexual assault, to be served concurrently; the Court of Appeals affirmed, holding the safe-release defense had not been proven by a preponderance of the evidence; the dissenter argued the safe-release defense should have mitigated punishment and remanded for a new punishment hearing; this petition for discretionary review challenges whether the victim was released in a safe place and whether the safe-release provision should reduce the kidnapping sentence.
The factual history focused on whether Dominguez voluntarily released D.P. in a safe place and whether the evidence supported the trial court’s rejection of the safe-release defense.
The majority of the Fourth Court of Appeals affirmed the conviction and punishment, upholding admission of extraneous-offense testimony and rejecting the safe-release finding; a dissent criticized the majority for misapplying the safe-release standard and urged remand for resentencing under §20.04(d).
The opinion discusses the post-2013 amendment to Article 38.37 and its retroactivity, concluding no ex post facto violation occurred and upholding the extraneous-offense evidence as admissible for propensity/conformity under Article 38.37, §2(b).
Key legal issue centers on whether Dominguez proved voluntary release in a safe place by a preponderance of the evidence, under Tex. Penal Code §20.04(d), to reduce a first-degree felony to a second-degree felony.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
whether the safe-release defense was proven	Dominguez (the defendant) presented evidence of voluntary release in a safe place.	Dominguez contends he performed an overt act showing release and the victim realized she was freed.	No, the evidence did not establish voluntary safe-release by a preponderance; conviction and first-degree punishment affirmed.
whether extraneous-offense evidence was properly admitted under Article 38.37	State argues 38.37(2) allows character conformity evidence from prior offenses.	Dominguez argues the statute became effective after indictment; thus argument about retroactivity applies.	Examination upheld; Article 38.37, §2(b) admissible and not a violation of ex post facto.
whether ex post facto concerns apply to the 38.37 amendment	Retroactive application changes the evidence rules in a way that could violate ex post facto.	Retroactivity only affects admissibility, not the burden of proof for conviction.	No ex post facto violation; amended rule does not lower the quantum of evidence to convict.
whether the trial court erred in not finding safe-release and applying first-degree felony punishment	Dominguez argues release in a safe place should mitigate punishment.	State contends evidence fails the “overt and affirmative act” and “safe place” criteria.	Trial court properly rejected safe-release finding; upholding first-degree punishment.

Key Cases Cited

Brown v. State, 98 S.W.3d 180 (Tex. Crim. App. 2003) (narrowly defines voluntariness as absence of rescue/escape)
Harrell v. State, 65 S.W.3d 768 (Tex. App.—Houston [14th Dist.] 2001) ( Overturns safe-release when no overt act conveying full release)
Woods v. State, 301 S.W.3d 327 (Tex. App.—Houston [14th Dist.] 2009) ( factors for safe release evaluation; not applicable if conditions differ)
Ballard v. State, 193 S.W.3d 916 (Tex. Crim. App. 2006) (discusses whether actions suggesting release constitute safe release)
Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005) (no safe release where victim remained under coercive circumstances)
Cooks v. State, 169 S.W.3d 288 (Tex. App.—Texarkana 2005) (no safe release where release was tainted by coercion or continued restraint)
Lavarry v. State, 936 S.W.2d 690 (Tex. App.—Dallas 1996) ( discusses safe-release analysis with threat considerations)
Butcher v. State, --- S.W.3d --- (Tex. Crim. App. 2015) (analysis of safe-release under §20.04(d) and post-2013 amendments)