Lead Opinion
OPINION
Opinion by:
Appellant John Christopher Dominguez appeals his convictions for aggravated kidnapping and sexual assault of a child. Because we conclude that the trial court properly admitted the extraneous offense testimony and Dominguez failed to prove, by a preponderance of the evidence, that he voluntarily released his kidnapping victim in a safe place, we affirm the trial court’s judgment.
Background
Dominguez was indicted for eighteen counts of criminal conduct including aggravated kidnapping with intent to commit sexual assault, sexual assault, and sexual assault of a child, committed on nine different dates against two different complainants. The State waived three counts prior to trial. The trial court granted Dominguez’s motion for severance, and the State elected to proceed on Counts I (aggravated kidnapping) and III (sexual assault of a child) of the indictment naming D.P. as the complainant. The case proceeded to trial on September 10, 2013.
At trial, the following evidence was presented. Dominguez and sixteen-year-old D.P. began corresponding through Face-book in late 2012. On January 18, 2013, D.P. agreed to let Dominguez pick up her and a friend, and together they all went to the mall. Two days later, Dominguez again picked up D.P. and the same friend from the post office near the friend’s home on the south side of San Antonio.
Prior to Dominguez’s arrival, D.P. sent Dominguez a message via Facebook saying, “I didn’t dress up today, I’m just wearing my shorts and a sweater.” After making at least one stop along the way, the three eventually ended up at the Sahara Motel. The girls went into the motel
D.P. testified that her friend started to panic and that D.P. told her to go into the bathroom and lock the door behind her. Shortly thereafter, Dominguez sexually assaulted D.P. After the assault, D.P. went into the bathroom with her friend. Dominguez knocked on the door and told the girls that he was leaving and that he would return in a couple of hours. After Dominguez left, the girls remained in the bathroom during which time they “cried and fell asleep.”
After approximately thirty minutes, the two girls emerged from the bathroom and used the telephone located in the motel room to call for a ride. D.P. eventually reached her sister. However, because D.P. was not sure where they were, her sister told her to look for the nearest intersection. Unable to find anyone in the motel offices, D.P. and her friend ran to a nearby Pizza Hut where they again called D!P.’s sister who picked them up there twenty minutes later.
D.P. did not tell her sister about the assault. However, three to four days later, D.P.’s friend’s mother confronted D.P. about what happened at the motel. D.P. confessed that she had been sexually assaulted.
The jury found Dominguez guilty of both counts as charged in the indictment. Dominguez elected to be punished by the trial court and a punishment hearing was held at a later date. The trial court sentenced Dominguez to sixty-years’ confinement for the aggravated kidnapping and twenty-years’ confinement for the sexual assault of a child, both sentences to run concurrently. Additionally, the trial court also revoked Dominguez’s probation on a previous criminal matter.
On appeal, Dominguez complains that the trial court erred by admitting testimony regarding alleged extraneous offenses and by sentencing him to a term of sixty years’ confinement for the aggravated kidnapping as a first-degree felony.
We first address the State’s extraneous offense evidence.
Extraneous Offense Evidence
The evidence in question was the testimony from another witness claiming Dominguez engaged in sexual contact with her when she was underage. B.F. testified that she and Dominguez had many sexual encounters when she was fifteen and sixteen years old. Some of these encounters were captured on cell phone video. B.F. acknowledged viewing several of these videos prior to her testimony.
The defense objected to B.F.’s testimony based on Texas Rules of Evidence 403 and 404. See Tex. R. Evid. 403, 404. The State did not respond directly to the objections, but instead asserted the testimony was proffered pursuant to article 38.37, section 2 as character conformity and propensity evidence. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b) (West Supp. 2014). The State did not respond directly to the defense objections.
A. Standard of Review
“A trial court’s ruling on the admissibility’of extraneous offenses is reviewed under an abuse of discretion standard.” Williams v. State,
The State contends the proffered testimony is admissible pursuant to article 38.37, section 2, as character conformity and propensity evidence. See Tex. Code CRiM. Proc. Ann. art. 38.37, § 2(b).
Dominguez counters that he was indicted before article 38.37 became effective and that the criminal “proceeding” in the instant case commenced with the return of the grand jury indictment on April 22, 2013, and thus article 38.37, Section 2(b) did not apply to any part of his prosecution, even though his trial began after September 1, 2013. Act of May 17, 2013, 83d Leg., R.S., ch. 387, § 3, 2013 Tex. Gen. Laws 1167, 1168 (“The Act takes-effect September 1, 2013.”).
C. Texas Code of Criminal Procedure article 38.37
Texas Code of Criminal Procedure article 38.37, section 2(b) provides that, notwithstanding Rules 404 and 405, “evidence that the defendant has committed a separate offense [i.e., sexual assault of a child] may be admitted in the trial ... for any bearing [it] has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b). This particular section of article 38.37 became effective on September 1, 2013. The enactment paragraph pertaining to section 2 of article 38.37 provides:
The change in law made by this Act applies to the admissibility of evidence in a criminal proceeding that commences on or after the effective date of this Act. The admissibility of evidence in a criminal proceeding that commences before the effective date of this Act is covered by the law in effect when the proceeding commenced, and the former law is continued in effect for that purpose.
Act of May 17, 2013, 83d Leg., R.S., ch. 387, § 2, 2013 Tex. Gen. Laws 1167, 1168 (emphasis added).
D.Analysis
1. Effective Date
In Howland v. State,
2. Ex Post Facto Laws
a. Arguments of the Parties
Dominguez next argues that the admission of B.F.’s testimony violated his constitutional right to be free from ex post facto laws under the Texas and United States Constitutions. See U.S. Const., art. I, § 10 cl. 1 (prohibiting passage of ex post facto law); Tex. Const, art. I, § 16 (same). The State contends that the retroactive application of article 38.37, § 2(b) merely changed the way in which evidence may be placed before the jury and how that evidence is used.
An ex post facto law is any law that
(1) punishes as a crime' any act that was innocent when performed;
(2) inflicts greater punishment than the law attached to a criminal offense when committed;
(3) deprives the accused of any defense available at the' time the act was committed; or
(4) alters the legal rules of evidence and requires less or different testimony than the law required at the time of the commission of the offense to convict the accused.
See Carmell v. Texas,
In order to determine whether the testimony constituted an ex post facto application of amended article 38.37, we compare the statute with its predecessor, including any annotations, and decide whether the amended statute permits conviction under less or different evidence from that required under the previous statute. See Lindsey v. State,
c. Application of Texas Code of Criminal Procedure Article 38.37
In McCulloch v. State,
The Beaumont Court of Appeals held that there was no ex post facto violation because the change in the evidentiary rule did not “lower the quantum of evidence necessary to support a conviction for aggravated sexual assault,” and did not eliminate an element of the offense to be proved. Id. at 683-84. We agree with this reasoning.
Article 38.37, section 2(b) allows testimony regarding other extraneous offenses to show character conformity. See Tex. Code CRiM. Proc. Ann. art. 38.37, § 2(b). The statute neither changes the State’s burden of proof to support a conviction for sexual assault of child nor lessens the amount of evidence required to sustain a conviction. McCulloch,
Accordingly, we cannot conclude that an ex post facto violation occurred, and we overrule Dominguez’s second issue.
We next turn to Dominguez’s assertion the trial court erred in sentencing him under the first degree felony punishment guidelines.
Safe Release
In his last issue on appeal, Dominguez contends that because he voluntarily released D.P. in a safe place, the trial court erred by sentencing him to a term of sixty-years’ confinement, in accordance with a first-degree felony, when the maximum term of punishment should have been that of a second-degree felony, which carries a maximum confinement of twenty years. See Tex. Penal Code Ann. § 12.33(a) (West 2011).
The trial court denied Dominguez’s request to make the finding of voluntary safe
A. Voluntary Release Under Texas Penal Code Section 20.04(c)
Aggravated kidnapping is a first-degree felony punishable by a term of imprisonment between five years to life. Id. § 20.04(c), 12.32(a). Section 20.04(d) provides: “At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.” Id. § 20.04(d); accord Posey v. State,
1. Defendant’s Burden of Proof
The statute requires the defendant to prove voluntary release in a safe place by a preponderance of the evidence, a lesser standard of proof than is required during the guilt-innocence phase of a criminal trial. See Hacker v. State,
2. Standard of Review
Dominguez’s sufficiency claim is evaluated for both legal and factual sufficiency. See Butcher v. State,
“In a factual-sufficiency review of a finding rejecting an affirmative defense, and unlike in a legal-sufficiency review, courts examine the evidence in a neutral light.” Id. (citing Matlock,
3.Evidence Required by Defendant
Section 20.04 requires proof the accused “performed ‘some overt and affirmative act’ which brought home to his victim that she had been ‘fully released from captivity.’ ” Harrell v. State,
Factors to consider in determining whether the defendant released the victim in a safe place include the following:
(1) the remoteness of the location;
(2) the proximity of authorities or persons who could aid or assist;
(3) the time of day;
(4) climatic conditions;
(5) the condition of the victim;
(6) the character of the location or surrounding neighborhood; and
(7) the victim’s familiarity with the location or surrounding neighborhood.
Woods,
B.Arguments of the Parties
Dominguez argues that the trial court should have made the safe release finding because the evidence shows that (1) the location where the complainant was released was not remote; (2) there was a telephone in the motel room and a pizza place nearby; (3) it was not a dangerous hour; (4) it was a warm January afternoon; (5) the complainant was uninjured; (6) the motel was located in a “well built up neighborhood” near a children’s shelter, a shopping center, and a pizza place; (7) and the complainant knew that she was at a motel in San Antonio, and was able to direct her sister to come get her.
The State counters that Dominguez did not release D.P., but rather abandoned her in the motel room. The State does not contend that Dominguez acted involuntarily, and we agree that the record is devoid of any evidence indicating that Dominguez involuntarily left the motel at the urging of police or any other individual. See Brown,
Although Dominguez argues that the girls voluntarily accompanied him to the motel, Dominguez does not appeal the sufficiency of his kidnapping conviction. Our analysis, therefore, is limited to whether the trial court erred in (1) failing to find Dominguez voluntarily released D.P, in a safe place and (2) subjecting Dominguez to the first-degree penalty range of punishment.
C. Evidence Adduced at Trial
D.P. testified that she accepted Dominguez’s request to meet her and a friend at the post office near her friend’s house. After leaving the post office with Dominguez, the three visited
D.P.’s friend’s boyfriend’s house, and Dominguez drove the girls to a motel where he sexually assaulted D.P. After the assault, D.P. joined her friend in the bathroom and locked the door.
Both parties agree that Dominguez knocked on the bathroom door and told D.P. that he was leaving, and it is undisputed that Dominguez left the motel. After falling asleep in the bathroom for approximately thirty minutes, D.P. exited the bathroom and began making calls on the telephone located in the motel room. Her sister agreed to come pick up the girls, but neither D.P. nor her friend knew where the motel was located. The girls ultimately ended up running to a Pizza Hut where
Approximately five days after the alleged assault, police questioned Dominguez. Dominguez’s own testimony refutes his contention that he released D.P. Specifically, a videorecorded interview of Dominguez was played for the jury wherein Dominguez, in his omi words, contradicts the elements required to prove the affirmative defense of voluntary release.
After being Mirandized, Dominguez explained to the officer that he picked up D.P. and her friend because “they needed rides.” At their request, Dominguez claims he took the girls to the friend’s boyfriend’s house. But when the boyfriend did not want the girls at his house, and Dominguez was late for an appointment to get plasma, he had no option but to take the girls to the Sahara Motel.
Dominguez testified that he instructed the girls to stay in the room. “I told them you have to stay here unless y’all want to wait [at the plasma center] in the car for two hours. So they said OK.” After approximately twenty minutes, and after he sexually assaulted D.P., Dominguez left for his appointment. Dominguez further explained that he told the girls that he would be back and “left them cigarettes and a lighter.” Dominguez claimed to be surprised when he returned to the motel and the girls were gone and told the officer that he “didn’t know what happened.” Dominguez was adamant that, before he left, he told the girls that he would bring back food.
As further evidence of Dominguez’s intent that D.P. was to remain in the motel room, Dominguez told the officer that he called the room twice to see what the girls wanted to eat, but they did not answer. Dominguez was resolute that “they were happy. I was going to come back with food.”
C. Analysis
To satisfy the voluntary release provision, Dominguez was required to bring forward some evidence that he voluntarily released D.P. in a safe place. See West,
“[I]n order to avail himself of the mitigating effect of § 20.04(b), [Dominguez] must have performed some overt and affirmative act that [brought] home to [D.P.] that [she had] been fully released from captivity.” Wiley v. State,
This case turns on whether Dominguez committed an “overt and affirmative act” which brought home to D.P. that she was “fully released from captivity.” See Harrell,
In Ballard v. State (Ballard I),
The Ballard I court noted that even though the victim could have safely driven away, the evidence indicated that the defendant intended to return to the car 'momentarily, that he knew how to find the victim later had she driven off, and that the defendant had some continuing power over the victim during the time he left to run his errands. Id. at 276. Further, the kidnapping did not cease until the police intervened, meaning that the defendant did not commit an overt and affirmative act to release the victim. Id. at 275; see also Brown,
The Court of Criminal Appeals rationale in Ballard II is instructive. Ballard v. State (Ballard II),
The record simply does not contain any evidence that D.P.’s freedom was the result of any overt or affirmative act by Dominguez, or even that Dominguez intended to release D.P. The record contains more than a scintilla of evidence that Dominguez did not voluntarily release D.P. Butcher,
We also conclude, considering all of the surrounding circumstances, there is ample evidence that the trial court could have reasonably concluded Dominguez did not voluntarily release D.P. Id. We cannot say the trial court’s rejection of Dominguez’s affirmative defense is “ ‘against the great weight, of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.’ ” Id. (quoting Matlock,
Accordingly, we overrule Dominguez’s last issue on appeal.
Conclusion
Having overruled all of Dominguez’s issues on appeal, we affirm the trial court’s judgment.
Dissenting Opinion
Dissenting.
The Legislature saw fit to mitigate the punishment in aggravated kidnappings where the defendant voluntarily releases his victim in a safe place. A victim is released when she realizes that she is freed from captivity. In this case, both the victim’s testimony that the defendant was “gone” and her actions in telephoning her sister to pick her up and then leaving the motel clearly reflect her realization that she was freed from captivity. Because the majority completely ignores the victim’s testimony and actions and instead erroneously views the evidence regarding “release” solely from the defendant’s perspective, I respectfully dissent.
Evidence at Trial
Dominguez and sixteen year-old D.P. met while chatting on Facebook in late 2012. Facebook messages admitted into evidence showed that Dominguez told D.P. that he would take her shopping and buy her a cell phone and clothes. D.P. told Dominguez that she would be his “sugar baby.” On January 18, 2013, D.P. agreed to let Dominguez pick up her and a friend and together they all went to the mall.
D.P. testified that two days later she agreed to let Dominguez pick her and a friend up from a post office near her friend’s house. Before he picked her up, D.P. messaged Dominguez and told him, “Oh but one thing i need a say, i dont give head and i dont do anal[;] and I rarely kiss on the mouth.” After some time passed, Dominguez drove the girls to a motel where he sexually assaulted D.P. D.P. testified that after the assault, she joined her friend in the bathroom and locked the door. She testified that Dominguez knocked on the bathroom door and told her that he was leaving. It is undisputed that Dominguez then left the motel. D.P. testified that after Dominguez left, she fell asleep in the bathroom for about 30 minutes. Once she awoke, D.P. exited the bathroom and began making calls on the telephone located in the motel room. She was able to reach her sister, who agreed to come pick up her and her friend. D.P. did not know where the motel was located, so her sister instructed her to go outside and look for the nearest intersection. D.P. went to the motel’s front office to ask for directions, but no one was there. D.P. returned to the motel room and told her sister she was going to walk to a nearby
Approximately five or six days later, Dominguez was questioned by the police. In the interview, Dominguez stated that on the day in question, he had an appointment to “get” plasma; Dominguez indicated the process takes about two hours. He told the officer he could not take the girls with him to the plasma center, so he told the girls to stay in the motel room unless they wanted to wait in his car for two hours at the plasma center. He told the girls that he would bring back some food, and he said he called the room twice to ask what they wanted to eat. Dominguez stated that he was surprised when he returned to find the girls gone.
The trial court denied Dominguez’s request to make a finding of voluntary safe release, and instead assessed punishment within the first degree felony range, stating: “So I will refrain from making the finding that [defense counsel] has asked. That is an appellate point.” Dominguez does not challenge on appeal the kidnapping or sexual assault charge.
Burden of Proof and Applicable Law
In reviewing the evidence presented at trial, I am mindful that Dominguez was required to prove that he (1) voluntarily (2) released D.P. in a(3) safe place by a preponderance of the evidence, which is a lesser burden of proof than the “beyond a reasonable doubt” criminal burden of proof. See Tex. Penal Code Ann. § 20.04(d) (West 2011); Hacker v. State,
[i]n a legal-sufficiency review of an affirmative defense, reviewing courts should first assay the record for a scintilla of evidence favorable to the factfinder’s finding and disregard all evidence to the contrary unless a reasonable factfinder could not. See Matlock v. State,392 S.W.3d 662 , 669-670 (Tex.Crim.App.2013). The finding of the factfinder rejecting a defendant’s affirmative defense should be overturned for lack of legal sufficiency only if the appealing party establishes that the evidence conclusively proves his affirmative defense, and ‘no reasonable [factfinder] was free to think otherwise.’ Id. at 670.
In a factual-sufficiency review of a finding rejecting an affirmative defense, and unlike in a legal-sufficiency review, courts examine the evidence in a neutral light. Id. at 671. A finding rejecting a defendant’s affirmative defense cannot be overruled unless, ‘after setting out the relevant evidence supporting the verdict, the court clearly states why the verdict is so much against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.’ Id.
Butcher v. State,
To avail himself of the mitigating effect
The term “voluntarily” in Section 20.04(d) is narrowly interpreted as the absence of “rescue by the police [or others] or escape by the [kidnap] victim.” Brown v. State,
Analysis — Was D.P. “Released”?
The question then becomes, was there evidence of “release?” Did Dominguez perform an “overt and affirmative act” which caused D.P. to realize that she was “fully released from captivity?” Harrell,
I believe the record lacks even a scintilla of evidence that Dominguez did not release D.P. D.P. is told by Dominguez and later assures her sister that Dominguez has left her in the motel room. The record is notably devoid of any evidence indicating that D.P: did not realize she was “fully released from captivity” once Dominguez left the motel, or that D.P.’s liberty was substantially interfered with by any threat or restraint. Although Dominguez told the police that he told the girls he was coming back with food, D.P. never testified she heard him say he was going to return or that she otherwise feared or expected his return at any time. Even assuming she heard Dominguez say he would return, the possibility of his return posed no substantial interference in her ability to leave the motel room. Noteworthy, the record is wanting of evidence that could reasonably support a finding that she was afraid or felt it was unsafe to leave the motel room, that she felt confined, or under the kidnapper’s control, or that her liberty was restrained in any way. The majority’s reasoning must assume facts to support the rejection of a finding of “release,” i.e., that D.P. knew Dominguez would eventually return, and that D.P. did not realize that she was released from “captivity.” In fact, the State contends that Dominguez abandoned D.P. in the motel room, which in my opinion essentially concedes that Dominguez not only released her but relinquished any further course of action that involved D.P.
The majority’s assumptions are not based on record evidence and, in fact, conflict with D.P.’s actions following the defendant’s departure. D.P. testified she slept for thirty minutes before exiting the bathroom. D.P. remained in the motel room while repeatedly using the readily-available telephone to call for a ride and assured her sister that Dominguez was “gone.” She left and later returned to the motel room before finally leaving for a nearby Pizza Hut. The record contains no evidence indicating D.P. had any sense of a continuing restraint, an expectation of the kidnapper’s return at any time, or a fear or threat of pursuit.
The majority’s reliance on Ballard v. State,
Further, I disagree with the majority that testimonial evidence from Dominguez’s recorded interview — that Dominguez told them “you have to stay here,” that “he would be back,” that he intended to return and for the girls to remain in the motel room, precludes the requested affirmative defense. A kidnapper’s intent or motives, without evidence of “some continuing power over the victim during the time he left,” exerted through violence or threat of violence, is inapposite. See Butcher,
Moreover, I believe the court’s rejection of the affirmative defense was so against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.
The other authorities cited by the majority are likewise distinguishable; In Ex parte Chandler,
Simply put, every opinion that has affirmed the rejection of a safe release finding on the specific issue of “release” contains fact scenarios that are simply not on par with the “release” evidence before us. See, e.g., Gaither v. State, No. 04-10-00548-CR,
While Ballard and the other cases cited by the majority are inapplicable to the case before us, I find Lavarry v. State,
The Lavarry court held that even though the defendant threatened to kill or hurt his victims if they called or talked to the police, they were nonetheless released in a safe place. See id. at 698-99. Despite the defendant’s threats, the victim in fact called the police once the defendant left. Id. Thus, the court explained that the threats to kill did not constitute a continuing restraint because there was no “substantial interference” with the victims’ liberty by confinement, especially where such threats had no effect on the victims’ liberty as demonstrated by the fact that the police were immediately called. Id. at 698.
Lava'rry is instructive because it properly examines the actions of the victim following the defendant’s .departure to determine whether the victim realized he or she had been released from captivity. The majority in the present case fails to conduct such an examination, and instead fo
I would also conclude that Dominguez satisfied “the second prong” of Section 20.04(d) because D.P. was released in a safe place. The Court of Criminal Appeals has recently held that the term “safe place” is ambiguous and that the determination of whether a place is safe is factspe-cific and should be made on a ease-by case basis. Butcher,
In applying the nonexclusive factors used to determine whether a location is safe for purposes of a Section 20.04(d) analysis, I believe that the following facts indicate that Dominguez released D.P. in a safe place:
• D.P., a sixteen year-old, was left in a motel- room with her teenage friend.
• The motel was located in the City of San Antonio on a major thoroughfare in a commercial area; thus, the location was not remote.
• There was no evidence that the motel was located in an area known for criminal activity.
• The motel room contained an operable telephone which D.P. could have used to call 911, and which she did in fact use to place several calls and reach her sister, who later picked her up at a nearby Pizza Hut.
• At the time D.P. was released, it was approximately three o’clock in the afternoon; there was no indication that it was dark outside.
• The weather was temperate; D.P. was wearing shorts and a sweater.
• Although I am sensitive to the fact that D.P., a minor, was sexually assaulted, the record contains no evidence that she was otherwise threatened, injured, restrained, drugged, or unable to get to the telephone to call for assistance, as demonstrated by the fact that she made several calls from the telephone located in the motel room and then went to a nearby Pizza Hut to meet her sister.
The facts before this court are readily distinguishable from those cases that have held that the victim was not released in a safe place. See, e.g., Rodriguez-Flores v. State,
Based on the foregoing, I would conclude that the evidence is legally insufficient to support the trial court’s rejection of Dominguez’s request for a safe release finding. No reasonable trier of fact could have concluded that D.P. was restrained in her liberty by confinement, much less forced to escape from the motel. See Matlock,
In addition, the trial court’s rejection of Dominguez’s request for a safe release
Notes
. I am constrained by the Court of Criminal Appeals’ recent decision in Butcher v. State,
. The Court of Criminal Appeals held that the term "voluntarily" was ambiguous as used in the language of the aggravated-kidnapping statute because it was "susceptible to different meanings some of which would support a holding that appellant's release of the victim was voluntary and some of which would support a contrary decision.” Butcher,
. "Abandon” is defined as "[t]o relinquish or give up with intent of never again resuming one’s right or interest.” Black’s Law Dictionary 2 (5th ed. 1979).
. The majority also relies on Dominguez's statement to police that he told the girls to either stay in the motel room or wait in his car for two hours while he went to get plasma as evidence that he did not intend to release D.P.; the majority, however takes Dominguez's statement out of context. The statement Dominguez claimed to make to D.P. was not made as a warning or a threat, but merely as an explanation to the police as to why he left the girls unattended in the motel room.