Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/6/2015 6:15:01 PM JEFFREY D. KYLE Clerk CAUSE NO. 03-15-00144-CR (Count 1) THIRD COURT OF APPEALS 11/6/2015 6:15:01 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00144-CR *1 ACCEPTED [7731854] CLERK IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS
CHRISTOPHER ARTHUR KURTZ Appellant
VS.
THE STATE OF TEXAS
Appellee FROM THE CAUSE NUMBER CR2014-343 IN THE 207 TH JUDICIAL DISTRICT COURT OF COMAL COUNTY, TEXAS HONORABLE JACK ROBISON, JUDGE PRESIDING APPELLEE’S (STATE’S) BRIEF ATTORNEY FOR THE STATE: CLAYTEN HEARRELL
ASSISTANT CRIMINAL DISTRICT ATTORNEY COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 150 N. SEGUIN AVENUE, SUITE 307 NEW BRAUNFELS, TEXAS 78130 (830) 221-1300
(830) 608-2008 FAX
hearrc@co.comal.tx.us
SBN: 24059919 ORAL ARGUMENT IS REQUESTED *2 CAUSE NO. 03-15-00144-CR (Count 1) IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS
CHRISTOPHER ARTHUR KURTZ Appellant
VS.
THE STATE OF TEXAS
Appellee FROM THE CAUSE NUMBER CR2014-343 IN THE 207 TH JUDICIAL DISTRICT COURT OF COMAL COUNTY, TEXAS HONORABLE JACK ROBISON, JUDGE PRESIDING APPELLEE’S (STATE’S) BRIEF
To The Court of Appeals:
Comes now The State of Texas, hereinafter referred to as the State, in response to Appellant’s brief and requests this court to overrule Appellant’s points
of error and affirm the judgment of the trial court. In support thereof, the State
would show the Court the following:
TABLE OF CONTENTS
Page Table of Contents i-ii
Identity of Parties and Counsel iii
Index of Authorities iv-vi
Statement of the Case 1-3
Statement of Facts 3-9
State’s Response to Appellant’s Point of Error 9-33
Summary of the Argument 9-10 Legal Sufficiency Standard of Review 10-13 Evidence Relevant to Legal Sufficiency 13-20 State’s Exhibit 1 – In-Car Video of Officer Kempker 13-16 The Testimony of Alicia Sanchez 16-17 State’s Exhibit 7 – Video Taped Statement of Alicia Sanchez 18-19 State’s Exhibit 8 – Video Taped Statement of Appellant 19 State’s Exhibits 9 and 10 – Recorded Jail Visits 19-20 Testimony of Appellant 20 Argument and Authority 21-33 Elements of Aggravated Kidnapping
Intent to Commit Kidnapping 21-23 Restraint 23-28 Abduction 28-32 Deadly Weapon and Other Elements 32-33 i
Conclusion 33
Prayer 33
Certificate of Service 34
Certificate of Compliance
ii *5 IDENTITY OF PARTIES AND COUNSEL Appellant – Christopher Arthur Kurtz Appellee – The State of Texas Attorneys for the Appellant Matt Stolhandske and Venessa Rodriguez 1004 S. St. Mary’s
San Antonio, TX 78205
For the Appellant at Trial John G. Jasuta and David A. Schulman 1801 East 51 st St., Ste 365-474 Austin, TX 78723
For the Appellant on Appeal Attorneys for the Appellee Clayten Hearrell and Chari Kelly Assistant Criminal District Attorneys Comal County Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Attorneys for the State at Trial Clayten Hearrell
Assistant Criminal District Attorney Comal County Criminal District Attorney’s Office 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Attorney for the State on Appeal iii
INDEX OF AUTHORITIES CASE PAGE
Brimage v. State , 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1996) 28
Brown v. State , 649 S.W.2d 160, 163
(Tex. App.—Austin 1983, no pet.) 13
Charles v. State . 05-10-01520-CR, 2012 WL 2335323
(Tex. App.—Dallas June 20, 2012, pet. ref’d)
(not designated for publication) 31-32
Cortez v. State , 08-02-00363-CR, 2004 WL 178587, at *3
(Tex. App.—El Paso Jan. 29, 2004, pet. ref’d) 11
Ervin v. State, 331 S.W.3d 49, 54
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) 10
Gaffney v. State. 937 S.W.2d 540, 542
(Tex.App.-Texarkana, 1996, no pet.) 26
Gonzales v. State , 190 S.W.3d 125, 132
(Tex.App.-Houston [1st Dist.] 2005, pet. ref’d) 22, 27
Goodman v. State , 66 S.W.3d 283, 286 (Tex. Crim. App. 2001) 11
Hines v. State , 75 S.W.3d 444, 447 (Tex. Crim. App. 2002) 21-23
Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) 11
Jackson v. Virginia , 443 U.S. 307, 319 (1979) 11-12
Kiffe v. State , 361 S.W.3d 104, 107
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) 10-12
Lane v. State , 174 S.W.3d 376, 386
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)
Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009) 12
iv
Margraves v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) 12
Mayer v. State. 274 S.W.3d 898, 900
(Tex.App.-Amarillo 2008, pet. ref’d) 22-23,29-30
Megas v. State, 68 S.W.3d 234, 240
(Tex.App.-Houston [1st District] 2002, pet. ref'’d) 28-29
Roberson v. State , 16 S.W.3d 156, 164
(Tex. App.—Austin 2000, pet. ref’d) 12
Rockwell v. State , AP-76,737, 2013 WL 6529575, at *1
(Tex. Crim. App. Dec. 11, 2013) 11
Rodriguez v. State . 730 S.W.2d 75, 79
(Tex.App.-Corpus Christi, 1987, no pet.) 24-25
Santellan v. State , 939 S.W.2d 155, 162 (Tex.Crim.App. 1997)
v
STATUTE PAGE
Tex. Pen. Code Ann. §12.42(d) 1
Tex. Pen. Code. Ann. §20.01(1) 21, 23, 26
Tex. Pen. Code. Ann. §20.01(2) 21
Tex. Pen. Code Ann. §20.04(b)
vi *9 STATEMENT OF THE CASE On July 2, 2014, in Cause Number CR2014-343 in the 207 th Judicial District Court of Comal County, Texas, the Grand Jury returned a four-count indictment
against Appellant, Christopher Arthur Kurtz, for the felony offenses of Aggravated
Kidnapping, Evading Arrest or Detention with a Vehicle, Tampering with Physical
Evidence, and Tampering with Physical Evidence (I C.R. at 5-7). The second
count of the indictment alleged that a deadly weapon was used during the course of
Evading Arrest or Detention with a Vehicle ( id. ).
In addition to the four criminal counts, the indictment also contained two enhancement paragraphs ( id. ). The first enhancement paragraph alleged that
Appellant had been convicted in 1977 in the State of Michigan for the felony
offense of Possession of Phencyclidine ( id. ). The second enhancement paragraph
alleged that Appellant had been convicted in 1995 in the State of Michigan for the
felony offense of Carrying a Concealed Weapon ( id. ). As set out in the
enhancement paragraphs, Appellant was a habitual felon subject to a range of
punishment from 25 years to 99 years or life in prison. Tex. Pen. Code §12.42(d).
On October 29, 2014, the jury found Appellant guilty of the felony offenses of Aggravated Kidnapping, Evading Arrest or Detention with a Vehicle, and
Tampering with Physical Evidence (I C.R. at 36-38). On that same day, the jury
found Appellant not guilty of Tampering with Physical Evidence as alleged in
Count Four of the indictment ( id. at 39).
Prior to trial, Appellant had elected for the jury to assess his punishment in the event he was convicted ( id. at 21). On the morning of October 30, 2014, after
having been found guilty of Aggravated Kidnapping, Evading Arrest or Detention
with a Vehicle, and Tampering with Physical Evidence, Appellant failed to appear
for the punishment phase of the trial (V R.R. at 6). Appellant’s bond was forfeit, a
warrant was issued for Appellant’s arrest, and the proceedings on punishment
continued in his absence ( id. at 6-8). After hearing evidence and arguments of
counsel on punishment, the jury found each enhancement paragraph to be true and
assessed Appellant's punishment as confinement in the Institutional Division of the
Texas Department of Criminal Justice for 70 years on Count One, 75years on
County Two, and 30 years on Count Three (I C.R. at 56-65). The jury also found
“True” as to the allegation that a deadly weapon had been used during the
commission of the offense of Evading Arrest or Detention with a Vehicle ( id. at 66-
67). The court received the verdict and discharged the jury but did not impose
sentence until Appellant was returned to court on November 20, 2014 (VII R.R. at
1-9).
On December 19, 2014 Appellant filed a Motion for New Trial and on February 17, 2015 Appellant filed Notice of Appeal (I C.R. at 111-113 and 116).
Appellant now asks the Court to vacate Appellant’s conviction for aggravated
kidnapping and order an acquittal for the offense of aggravated kidnapping
(Appellant’s Brief at 14).
STATEMENT OF FACTS
On the morning of October 1, 2013, Sergeant James Bell of the New Braunfels Police Department was conducting a surveillance operation in hopes of
locating Christopher Arthur Kurtz, Appellant, regarding an open arrest warrant (III
R.R. at 106). That same morning, Alicia Dawn Sanchez was to begin a new job at
Casa Garcia in New Braunfels, Texas ( id. at 73). Shortly before Ms. Sanchez’s
10:00 am shift, Appellant picked her up at her residence on a motorcycle ( id. at 73-
74). Sergeant Bell observed Appellant pull up to a residence near his location and
watched as a white female came out and got onto the back of the Appellant’s
motorcycle ( id. at 107). Sergeant Bell followed Appellant out of the neighborhood
and onto Loop 46 but did not attempt to initiate a traffic stop because he was
travelling in an unmarked vehicle ( id. at 107-108). While following Appellant’s
motorcycle, Sergeant Bell radioed for marked patrol units to assist in conducting
the traffic stop ( id. at 108). Officer Kempker responded in a marked Chevy Tahoe
equipped with lights and siren ( id. at 14). When Officer Kempker arrived, Sergeant
Bell gave Officer Kempker the lead so that Officer Kempker could initiate the
traffic stop ( id. at 108).
As Officer Kempker approached, he activated his lights and pulled around traffic to maneuver himself behind Appellant’s motorcycle ( id. ). Once behind
Appellant, Officer Kempker activated his siren ( id. at 16-17). Ms. Sanchez told
Appellant that there was an officer behind them and asked Appellant to pull over at
an upcoming gas station ( id. at 75). Appellant agreed to pull over and actually
began to pull over, however, as Appellant started to pull over, Ms. Sanchez heard
Appellant say “Fuck it. I’m running.” ( id. at 75). Appellant then pulled back into
the main lane of traffic and accelerated at a high rate of speed ( id. at 17).
Officer Kempker followed Appellant, with lights and siren activated, as Appellant drove around Loop 46 and through an intersection at North Walnut ( id.
at 17-18). Appellant passed Casa Garcia, pulled back on to Loop 46, exited onto
Interstate 35, and continued at speeds reaching115 miles per hour ( id. at 17-18, 21,
and 76). Ms. Sanchez asked Appellant to stop and asked Appellant to let her off
( id. at 76-77). Eventually, the pursuit was called off by the active duty supervisor
( id. at 21). Appellant never stopped for the police officers attempting to pull him
over ( id. at 77). After law enforcement had called off their pursuit, Appellant
continued to the Caterpillar store in Schertz ( id. ) There he slowed down enough
that Ms. Sanchez was able to hop off of the back of the motorcycle ( id. ). Once she
was off of the motorcycle, Ms. Sanchez ran and hid behind a piece of machinery
and then ran into the bathroom of the Caterpillar store where she was found by a
clerk ( id. at 77 and 85-86).
After the chase had been called off, the Schertz Police Department located Appellant’s motorcycle and informed the New Braunfels Police Department ( id. at
27). Officer Kempker verified that the motorcycle found by Schertz was the same
vehicle that Appellant was driving, and Officer Kempker joined other officers in
setting up a perimeter in Schertz ( id. ). The San Antonio Police Department
dispatched a helicopter to assist in locating Appellant and both the New Braunfels
Police Department SWAT team and the United State’s Marshall’s task force arrived
to assist in the search for Appellant ( id. at 27-28). One of the officers in that
perimeter was Officer Michael Rapier of the Schertz Police Department ( id. at 61).
While positioned at the southwest corner of Schertz Fire Station Number 2, Officer Rapier observed movement in the brush line ( id. ). Officer Rapier radioed
for assistance and waited until Captain Mike Penshorn of the New Braunfels Police
Department arrived to assist ( id. at 62). Officer Rapier then approached the site
where he had seen movement and observed Appellant crouching under a downed
tree ( id. ). Appellant failed to respond to commands from Officer Rapier to come
out, so Officer Rapier pulled Appellant out from the bushes by his feet and secured
Appellant in handcuffs ( id. ). At the site where Appellant had been extracted from
the bushes, Officer Rapier discovered a pair of keys sitting directly on top of a
handgun, both hidden under the bush ( id. at 63). Officer Rapier then released
custody of the Appellant to Officer Chad Adams of the New Braunfels Police
Department ( id. at 64). Officer Rapier also released the keys and handgun to
Officer Adams ( id. ). Officer Adams transported the Appellant to New Braunfels
Police Department to be interviewed and submitted the keys and handgun into
evidence ( id. at 47-48). Back at the New Braunfels Police Department, Ms.
Sanchez was interviewed by Detective Jace Hobbs and Appellant was interviewed
by Sergeant Bell ( id. at 97, 112).
Throughout her interview with Detective Hobbs, Ms. Sanchez was trembling, shaking, and crying (VIII R.R. State’s Ex. 7). During that interview, she
told Detective Hobbs:
that Appellant was giving her a ride to work (8:30), that she had told Appellant there was a policeman behind them (9:18), that Appellant agreed to pull over at the upcoming gas station (9:18), that Appellant began to slow down and pull over (9:50), that Appellant said “Fuck it. I’m running” (9:50), that she told Appellant she was scared (10:24), that she told Appellant to stop (10:24),
that she told Appellant she wanted off of the motorcycle (10:24), that Appellant drove into oncoming traffic and passed vehicles on the shoulder (11:38),
that she thought they were going to have an accident and that they would have died in an accident (28:45),
that she pleaded with Appellant to let her off of the motorcycle (11:38), and
that when Appellant slowed down in front of the Caterpillar store, she jumped off and ran inside because she was scared and just wanted to go home (12:42).
(VIII R.R. State’s Ex. 7). During Appellant’s interview with Detective Bell,
Appellant stated:
that he had picked the girl up to give her a ride to work (1:38), that as he was driving, he looked behind him and saw an SUV with its lights on (1:50),
that he just took off because he was going to jail anyway (3:02), that he knew the police were looking for him (6:30), that he wasn’t going to jail nice and calm and he intended to make them work for their money (7:12), and
that the girl wanted to risk her own life (7:44).
(VIII R.R. State’s Ex. 8). Because Appellant had an active Family Violence
Protective Order in place forbidding him from possessing a firearm, he was
charged with the misdemeanor offense of Violation of a Protective Order (VIII
R.R. State’s Ex. 11 and VIII R.R. State’s Ex. 12). Prior to trial, Appellant pled “No
Contest” and was convicted of Violation of a Protective Order for possessing a
firearm in violation of a Family Violence Protective Order on October 1, 2013
(VIII R.R. State’s Ex. 11). Appellant was also charged with, pled no contest to, and
was convicted of the offense Unlawful Carrying of a Weapon for this same
criminal episode (VIII R.R. State’s Ex. 12).
While Appellant was incarcerated and awaiting trial, friends visited him in the Comal County Jail on November 5, 2013 and November 26, 2013 (VIII R.R.
State’s Ex. 9 and VIII R.R. State’s Ex. 10). During his conversation with the
visitors on November 5, 2013, Appellant stated:
I got away. (0:23),
I was doing a hundred. (0:25),
I was going a hundred and twenty on that fucker. (0:38), It wasn’t locked (the motorcycle). I couldn’t lock it. I had to get out of there real quick. I parked it and took off running. (1:02), I fuckin dived over the fence and I was in the creek. (1:28), It took them an hour and an hour and forty five minutes to get me out of the woods. (1:34),
They had a helicopter with a heat seeker. That’s the only way they found me. (1:38),
Fuckin Dawn got a way. (2:05),
The running was a felony. (2:15), and
That’s a misdemeanor, an unlicensed gun, that’s a misdemeanor, that’s all. (2:25)
(VIII R.R. State’s Ex. 9, File One). Later, during that same jail visit, Appellant also
stated:
Didn’t Dawn tell you what happened? (:02), and
She (Dawn) was scared man. She was beating me in the ribs, wanting off. She was screaming. Stop. Help. I said I ain’t stopping till I lose these motherfuckers. (0:07)
(VIII R.R. State’s Ex. 9, File Two). During the jail visit on November 26, 2013,
Appellant stated:
No that’s the just a misdemeanor (unlawful carrying). (0:06), and I shoved it (handgun) under a bush. It took them two hours to find me. I was in the woods man. I was walking in the creek (0:12) *17 (VIII R.R. State’s Ex. 10). Later in that same conversation, the visitor says “They
said when they picked you up you had a gun” ( id . at 0:32). Appellant replies to
this statement, saying “Ya, I did, but you know, they had me surrounded, and I had
one (a gun) and I fuckin shoved it way up under the bush, but they found it
anyway.” ( id . at 0:34).
STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR Summary of the Argument In his only point of error, Appellant argues that the evidence produced at trial was insufficient to prove the offense of aggravated kidnapping (Appellant’s
Brief at 7). Appellant further asserts that there was no evidence produced at trial to
establish that an abduction occurred and argues that the trial testimony of Alicia
Dawn Sanchez, the individual abducted, clearly establishes that Ms. Sanchez was
not abducted by Appellant ( id. ). In advancing this argument, Appellant fails to
account for or even mention the great weight of evidence produced at trial contrary
to Appellant’s position, which serves to establish that an abduction occurred.
Those pieces of evidence admitted at trial contrary to Appellant’s position on
appeal included 1) the in-car video of Officer Kempker entered into evidence as
State’s Exhibit 1, 2) portions of Ms. Sanchez’s testimony that contradict the
Appellant’s position, 3) the videotaped statement of Ms. Sanchez from the offense
date that was entered into evidence as State’s Exhibit 7, 4) the videotaped
statement of Appellant from the offense date that was entered into evidence as
State’s Exhibit 8, 5) the recorded jail visits entered into evidence as State’s
Exhibits 9 and 10, and 6) the trial testimony of Appellant. Appellant’s argument
fails, because when all of the evidence is viewed in the light most favorable to the
verdict, the evidence clearly indicates that a rational jury could have found the
essential elements of aggravated kidnapping beyond a reasonable doubt
Legal Sufficiency Standard of Review After the decision of the Court of Criminal Appeals in Brooks v. State , Texas appellate courts review legal and factual sufficiency challenges in criminal cases
using the same legal sufficiency standard of review. Kiffe v. State , 361 S.W.3d 104,
107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331
S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only
insufficient if, when considering all the evidence in the light most favorable to the
verdict, “no rational factfinder could have found each essential element of the
charged offense beyond a reasonable doubt.” Id . [1] (citing Jackson v. Virginia , 443
U.S. 307, 319 (1979)).
Courts will treat direct and circumstantial evidence equally. Kiffe , 361
S.W.3d at 108. “[D]irect evidence of a fact, standing alone and if believed by the
jury, is always… sufficient to prove that fact.” Cortez v. State , 08-02-00363-CR,
2004 WL 178587, at *3 (Tex. App.—El Paso Jan. 29, 2004, pet. ref’d) (citing
Goodman v. State , 66 S.W.3d 283, 286 (Tex. Crim. App. 2001)); see also Lane v.
State , 174 S.W.3d 376, 386 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)
(testimony of a child victim, standing alone, is sufficient to support aggravated
sexual assault conviction). Furthermore, “[c]ircumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt.” Rockwell v. State , AP-76,737, 2013 WL
6529575, at *1 (Tex. Crim. App. Dec. 11, 2013) (not designated for publication)
(citing Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)), cert. denied,
134 S. Ct. 2724 (2014).
Legal sufficiency review “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
*20 reasonable inferences from basic facts to ultimate facts.” Jackson , 443 U.S. at 319.
Each fact in isolation need not establish the guilt of the accused. Roberson v. State ,
16 S.W.3d 156, 164 (Tex. App.—Austin 2000, pet. ref’d). Reviewing courts will
determine whether the necessary inferences are reasonable based on the “combined
and cumulative force of the evidence when viewed in the light most favorable to
the verdict.” Kiffe , 361 S.W.3d at 108. Appellate courts will presume that the
factfinder “resolved any conflicting inferences in favor of the verdict” and defer to
that resolution. Id . The reviewing courts will also defer to “the factfinder’s
evaluation of the credibility and the weight of the evidence.” Id . The factfinder is
entitled to accept some testimony and reject other testimony, in whole or in part.
Margraves v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), abrogated on
other grounds by Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009); see also
Roberson , 16 S.W.3d at 164 (factfinder may accept or reject any or all evidence
presented by either party).
Ultimately, the reviewing court is not to determine “whether it believes that the evidence at the trial established guilt beyond a reasonable doubt,” but whether
“after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson , 443 U.S. at 318-19 (emphasis in original).
Accordingly, “the verdict will be sustained if there is any evidence which, if
believed, shows the guilt of the accused.” Brown v. State , 649 S.W.2d 160, 163
(Tex. App.—Austin 1983, no pet.).
Evidence Relevant to Legal Sufficiency Legal sufficiency claims survive or fail based on the evidence presented at trial. The evidence presented at trial relevant to supporting the jury’s verdict and
establishing legal sufficiency includes 1) the in-car video of Officer Kempker
entered into evidence as State’s Exhibit 1, 2) portions of Ms. Sanchez’s testimony
that contradict Appellant’s position, 3) the videotaped statement of Ms. Sanchez
from the offense date that was entered into evidence as State’s Exhibit 7, 4) the
videotaped statement of Appellant from the offense date that was entered into
evidence as State’s Exhibit 8, 5) the recorded jail visits entered into evidence as
State’s Exhibits 9 and 10, and 6) the trial testimony of Appellant.
State’s Exhibit 1 – In-Car Video of Officer Kempker
Officer Kempker’s in-car video was introduced into evidence as State’s Exhibit 1 (VIII R.R. State’s Ex. 1). On October 1, 2013, Officer Kempker
responded in a marked Chevy Tahoe equipped with lights and siren initiate a traffic
stop on Appellant (III R.R. at 14-17). In this video, Appellant and Ms. Sanchez are
both clearly visible (VIII R.R. State’s Ex. 1). The video also shows the motorcycle
slowing and pulling onto the shoulder before pulling back into the main lane of
traffic and accelerating ( id. at 2:04-2:09).
Officer Kempker followed Appellant, with lights and siren activated, as Appellant drove around Loop 46 and through an intersection at North Walnut (III
R.R. at 17-18). As Appellant reaches the Walnut intersection, the video introduced
as State’s Exhibit 1 shows heavy traffic on Loop 46 with cars pulled off on both
sides of the road, depicts Appellant driving down the center of the road using the
center turn lane to pass other vehicles, and records Appellant’s speed as exceeding
95 miles per hour when he passes in front of New Braunfels High School (VIII
R.R. State’s Ex. 1 at 2:09-3:35). Once Appellant exits at Walnut, State’s Exhibit 1
shows him passing vehicle parked at the red light by driving onto the grassy
median at a high rate of speed ( Id. at 3:35-3:51).
Thereafter, Appellant passes Casa Garcia, where he had agreed to take Ms.
Sanchez, pulls back on to Loop 46, and continues around Loop 46 until he reached
Interstate 35 (III RR. at 17-18, 21, and 76). State’s Exhibit 1 clearly shows
Appellant pulling back onto Loop 46, accelerating to speeds in excess of 106 miles
per hour, passing vehicles using both the center turn lane and the right shoulder,
and speeding through a red light at an extremely crowded intersection, all before
reaching the on ramp to Interstate 35 (VIII RR. States Ex. 1 at 3:51 – 5:56).
Throughout the chase, Ms. Sanchez is seen clinging tightly to Appellant ( id. ). As
Appellant approaches another busy intersection on Loop 46, Ms. Sanchez drops a
box of tampons out of her purse ( id. at 4:47).
State’s Exhibit 1 also shows Appellant reach Interstate 35 and turn off onto the frontage road alongside Interstate 35, at which point Appellant nearly loses
control of the motorcycle while traveling at a high rate of speed with Ms. Sanchez
on the back ( id . at 5:56-6:06). As State’s Exhibit 1 continues, Appellant races
down the Interstate 35 frontage road travelling over 92 miles per hour, passes the
first on ramp to Interstate 35, runs a red light at an intersection on the Interstate 35
frontage road by passing between two vehicles stopped at the light, and then cuts
off a cement truck at the second on ramp to Interstate 35 in a clear effort to lose
Officer Kempker ( id. at 6:06-7:06). Appellant is then recorded continuing down
Interstate 35, weaving in and out of traffic, at speeds exceeding 116 miles per hour
until the chase is called off ( id. at 7:06-9:52).
The video entered into evidence as State’s Exhibit 1 includes the entirety of the high speed chase between law enforcement and Appellant on October 1, 2013.
A review of State’s Exhibit 1 reveals that Appellant operated a motorcycle with
Alicia Sanchez riding as a back seat passenger. Throughout the chase depicted in
State’s Exhibit 1, Appellant is recorded operating that motorcycle in a manner
clearly capable of causing death or serious bodily injury to his passenger, other
motorist, the officers engaged in pursuit, and even himself. At no point during the
entirety of the chase does Appellant slow down to a speed that would allow Ms.
Sanchez to safely depart from the motorcycle. By Appellant’s actions recorded and
admitted on State’s Exhibit 1, he forces Ms. Sanchez to choose between either
holding on and accompanying Appellant as he evades officers or release her grasp
and fall to certain injury or death.
The Testimony of Alicia Sanchez
Ms. Alicia Dawn Sanchez was called to testify during the State’s case in chief (III R.R. at 70). On direct examination, Ms. Sanchez testified that she was
supposed to start a new job at Casa Garcia on the morning of October 1, 2013 ( id.
at 73). She further testified that Appellant had agreed to take her to work that
morning and that he picked her up to go to Casa Garcia on a motorcycle ( id. at 73-
74). When the police officer attempted to pull them over, Ms. Sanchez she told
Appellant an officer was pulling them over and Appellant agreed to pull over at an
upcoming gas station ( id. at 74-75). However before reaching the gas station, Ms.
Sanchez heard Appellant say “Fuck it” and “I’m running” ( id. at 75-76).
Thereafter, Ms. Sanchez stated that Appellant “took off” around the loop, past Casa
Garcia, and onto I-35 ( id. at 76). Appellant never pulled over for the police and
only stopped once he reached the Caterpillar store in Schertz ( id. at 77). Once he
pulled over at the Caterpillar store, Ms. Sanchez hopped off of the motorcycle, ran
behind a piece of machinery, and then ran into the bathroom of the store ( id. ).
During the course of direct examination, Ms. Sanchez testified that during the
motorcycle ride, she did not want to be on the highway going 100 miles per hour,
she did not want to be involved in a police chase, she asked Appellant to stop, she
asked Appellant to let her off of the motorcycle, Appellant did not stop until after
the police chase had ended, and she was not free to leave until after the police
chase ended ( id. at 76-78).
On cross examination by defense council, Ms. Sanchez stated that she did not feel like she was forced to be on the motorcycle and that she knew Appellant
would let her go eventually ( id. at 82-83). In that same accord, she testified that
she considered Appellant to be family, that Appellant was the only one in the world
who was there for her and her family, and that she did not want to see anything bad
happen to Appellant ( id. at 91-92). During redirect, she ultimately admitted that
she told Appellant “Stop. Stop. Let me off.” and “Let me off. I’m scarred.” ( id. at
90-91). However, Appellant did not stop when she wanted him to and she was
very scared by the way he was driving. ( id. ).
State’s Exhibit 7 – Video Taped Statement of Alicia Sanchez
The videotaped statement given by Alicia Sanchez to Detective Jace Hobbs on October 1, 2013, shortly after she was found at the Caterpillar store was
admitted into evidence as State’s Exhibit 7 ( id. at 99). During the course of her
interview, Detective Hobbs observed Ms. Sanchez to be very distraught, scared,
amped up, and crying ( id. at 97). As soon as Ms. Sanchez appears on State’s
Exhibit 7, she is seen shaking, sniffling, distraught, and crying (VIII R.R. State’s
Ex. 7). In that interview, Ms Sanchez stated:
that Appellant was giving her a ride to work (8:30), that she had told Appellant there was a police behind them (9:18), that Appellant agreed to pull over at the upcoming gas station (9:18), that Appellant began to slow down and pull over (9:50), that Appellant said “Fuck it. I’m running” (9:50), that she told Appellant she was scarred (10:24), that she told Appellant to stop (10:24),
that she told Appellant she wanted off of the motorcycle (10:24), that Appellant drove into oncoming traffic and passed vehicles on the shoulder (11:38),
that she thought they were going to have an accident and that they would have died in an accident (28:45),
that she pleaded with Appellant to let her off of the motorcycle (11:38), and
that when Appellant slowed down in front of the Caterpillar store, she jumped off and ran inside because she was scared and just wanted to go home (12:42).
(VIII R.R. State’s Ex. 7).Ms. Sanchez shakes, cries, and wipes tears from her eyes
throughout her entire interview with Detective Hobbs (VIII R.R. State’s Ex. 7).
State’s Exhibit 8 –Videotaped Statement of Appellant
State’s Exhibit 8, as admitted at trial, was redacted to contain four clips from the videotaped statement given by Appellant to Detective Bell (III R.R. at 113-
115). During the course of that interview, Appellant confirmed that he was the
driver of the motorcycle, that he had seen the officers behind him that morning,
that he had a passenger on the back of the motorcycle, and that he ran because he
knew that he was going to jail any way and he intended to make the police officers
earn their money rather than surrender peacefully (VIII R.R. State’s Ex. 8). Also
during the course of this statement, Appellant seemed to concede that there was a
substantial risk not only to his life but also to the life of his passenger ( id. ).
However, Appellant claimed that Ms. Sanchez had told him to run from the police
and in doing so, she chose to risk his life and her own life ( id. ).
State’s Exhibits 9 and 10 – Recorded Jail Visits
Contained on State’s Exhibit 9 were two clips from a recording of a jail visit that Appellant had with friends on November 5, 2013 (VIII R.R. State’s Ex. 9).
Contained on State’s Exhibit 10 was a single clip from a recording of a jail visit
that Appellant had with friends on November 26, 2013 (VIII R.R. State’s Ex. 10).
On the first clip contained on State’s Exhibit 9, Appellant can be heard telling his
friends that he had gotten away from the police by going 120 miles per hour on his
motorcycle and that Dawn had managed to get away from the police (VIII R.R.
State’s Ex. 9). On the second clip contained on State’s Exhibit 9, Appellant tells
his friends that:
“ She (Dawn) was scared man. She was beating me in the ribs, wanting off. She was screaming. Stop. Help. I said I ain’t stopping till I loose these motherfuckers. ”
(VIII R.R. State’s Ex. 9, file two, 0:07) (emphasis added). It should be noted that
Ms. Sanchez’s full name was Alicia Dawn Sanchez and that Appellant referred to
her as “Dawn” in his testimony at trial (IV R.R. at 16). On State’s Exhibit 10,
Appellant is recorded telling his friends that he had a gun on him whenever these
events occurred and that he tried to hide it in the bushes, but the officers were able
to find it (VIII RR. States Ex. 10).
Testimony of Appellant
During cross, Appellant admitted that at some point Ms. Sanchez had told him to stop ( id. at 28). Appellant also admitted that he was convicted for the
offenses of violation of a protective order and unlawful carrying of a handgun by a
licensed holder for the carrying handgun that was found in his possession of the
offense date ( id. at 45 and 68).
Argument and Authority
Elements of Aggravated Kidnapping
The elements of aggravated kidnapping as charged in this case are that the defendant intentionally or knowingly abducts another person and uses or exhibits a
deadly weapon during the commission of the offense. Tex. Pen. Code Ann.
§20.04(b) (West, Westlaw through 2013 Sess.). Under the Penal Code, “Abduct”
means to restrain a person with intent to prevent his liberation by: secreting or
holding him in a place where he is not likely to be found; or using or threatening to
use deadly force. Tex. Pen. Code. Ann. §20.01(2) (West, Westlaw through 2013
Sess.) (emphasis added). Under the Penal Code, “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. Tex. Pen. Code. Ann. §20.01(1) (West, Westlaw through 2013 Sess.).
Appellant does not seem to challenge that a deadly weapon was used in the
commission of the offense
Intent to Commit Kidnapping
There is no bar to prosecution that occurs if the kidnapping is part and parcel of another offense, and conduct that occurs during the commission of another
offense can be prosecuted as a kidnapping. Hines v. State , 75 S.W.3d 444, 447
(Tex. Crim. App. 2002) . Whether a defendant intends to commit kidnapping or
another offense is irrelevant. Gonzales v. State , 190 S.W.3d 125, 132 (Tex.App.-
Houston [1st Dist.] 2005, pet. ref’d). The relevant issue is a defendant’s intent to
commit the elements of a crime, not the defendant’s intent to commit a particular
named offense. Id. As applied to kidnapping, whether a Defendant moved his
victim with the intent to commit some other offense is irrelevant where the
byproduct of the main goal resulted in the meeting of the elements of the crime of
kidnapping. Santellan v. State , 939 S.W.2d 155, 162 (Tex. Crim. App. 1997).
As applied in the case at bar, it is irrelevant whether Appellant intended to commit the offense of evading arrest with a motor vehicle or the offense of
kidnapping. The only relevant issue is whether Appellant’s conduct resulted in
meeting of all of the elements of aggravated kidnapping. The Hines case
established this particular concept of kidnapping law by determining that, while
engaged in the act of robbery, the defendant had also committed the offense of
aggravated kidnapping when he substantially interfered with the victim’s liberty.
Hines, 75 S.W.3d at 445-448. This same principle of kidnapping law has been
applied in cases where the defendant manifests an intent not to kidnap, but to flee
apprehension or discovery by law enforcement. Mayer v. State. 274 S.W.3d 898,
900 (Tex.App.-Amarillo 2008, pet. ref’d)(Holding that by taking a passenger with
him in an effort to avoid capture for assault the defendant had committed the
offense of kidnapping). The court determined that even if such was Appellant’s
intent, fleeing with such an intent would negate the element of abduction
established by the evidence for the charge of aggravated kidnapping. Id. at 901. In
the instant case, even if Appellant’s intent was simply to evade arrest, he can still
be held responsible for aggravated kidnapping where his conduct meets the
relevant elements of the offense.
Restraint
Restraint requires a restriction of a person’s movements without their consent, which interferes substantially with the person’s liberty, by moving the
person from one place to another or by confining the person. Tex. Pen. Code. Ann.
§20.01(1) (West, Westlaw through 2013 Sess.). Under Texas law, there is no
requirement that a defendant moved his victim a certain distance or held his victim
any specific length of time. Hines, 75 S.W.3d at 447. The jury is called upon to
make the factual determination of whether the restriction of the person’s
movements constitutes a substantial or a slight interference. Id. at 448. In the case
at bar, Appellant is clearly seen in State’s Exhibit 1 moving Ms. Sanchez from one
place to another (VIII R.R. State’s Ex. 1). Appellant does so by accelerating the
motorcycle that she is riding on to an extremely high speed while weaving in and
out of traffic, running multiple red lights, and evading arrest or detention by law
enforcement ( id.). As Appellant engaged in that manner of operation of the
motorcycle, Ms. Sanchez held tight to his waist ( id. ). At no point during the pursuit
did Appellant slow enough to allow his passenger an opportunity to safely
disembark the vehicle ( id. ). Based on that depiction in State’s Exhibit 1, a rational
jury could certainly determine that Ms. Sanchez’s movements were restricted in
that the only safe course of movement was to hold tightly to Appellant and remain
on the motorcycle. Likewise, that same jury could certainly determine that the
interference with Ms. Sanchez’s liberty was substantial. The only matter left for
consideration on the issue of restraint is whether such restraint was accomplished
without Ms. Sanchez’s consent.
Since absence of consent is an element, whether or not Appellant restrained Ms. Sanchez without her consent is a factual question for the jury to determine. As
a preliminary consideration, the fact that a victim initially accompanies a
Defendant voluntarily does not preclude the possibility of a kidnapping occurring
at some subsequent point. Rodriguez v. State . 730 S.W.2d 75, 79 (Tex.App.-Corpus
Christi, 1987, no pet.). A good illustration of this principle is seen in the Rodriguez
case. In Rodriguez , the defendant and his brother offered to give the victim and
several of her family and friends a ride home from a night club. Id. at 78. The
victim rode up front between the defendant and his brother while the victim’s
family and friends sat in the bed of the truck. Id. During the trip home, the victim
gave the defendant turn-by-turn directions. Id. At some point the victim told
defendant to turn on a particular street. Id. The defendant refused. Id. The victim
then directed the defendant to turn on the next street. Id. The defendant refused and
sped up. Id. Thereafter, a fight ensued between the defendant and his brother and
the victim’s family and friends. Id. Ultimately the victim’s family and friends were
thrown from the bed of the truck and the defendant continued driving off with the
victim. Id. Both defendant and the defendant’s brother assaulted the victim and
both told her that they were going to kill her with a gun that was under the seat. Id.
The court in Rodriguez determined that the fact that the victim was initially a
willing passenger did not preclude the occurrence of a subsequent kidnapping. Id.
at 79. What is really interesting about the Rodriguez opinion is the point at which
the court determined that a kidnapping occurred. Id. The court held in Rodriguez
that:
The kidnapping began when the victim demanded to be taken to her home and appellant refused. Her presence, positioned between the two abductors, in the cab of the fast-moving truck then became confinement, and a substantial interference with her liberty.
Id. at 79. Although the Defendant in Rodriguez assaulted the victim and threatened
to kill the victim with a handgun that he claimed was in the vehicle, the court
found that the kidnapping happing began prior to either the assault or the
threatened deadly force. Id. The court held that the kidnapping actually began at
the point where the victim asked to be taken home, the defendant refused, and the
defendant sped up. Id. The case at bar is similar. The record is replete with
evidence that Ms. Sanchez told Appellant to stop, to pull over, and to let her off.
When Ms. Sanchez asked Appellant to do so, Appellant refused and accelerated.
Ms. Sanchez’s vulnerable position on the back of Appellant’s motorcycle became
confinement and a substantial interference with Ms. Sanchez’s liberty.
Furthermore, the definition of restraint set out in the statute explicitly states that restraint is without effective consent if it is accomplished by force,
intimidation, or deception. Tex. Pen. Code. Ann. §20.01(1) (West, Westlaw through
2013 Sess.). There is no need that the force be directed at the victim as Appellant
asserts in his brief. A threat may be communicated by acts, words, or deeds.
Gaffney v. State. 937 S.W.2d 540, 542 (Tex.App.-Texarkana, 1996, no pet.). In the
instant case, Appellant’s actions threatened Ms. Sanchez life and safety. By
refusing to stop as requested, accelerating the motorcycle, and driving in the
reckless manner that he did, Appellant forced Ms. Sanchez to hold tightly to him
and accompany him as he sought to evade capture. His actions forced her to
choose between going with Appellant or dying in an effort to secure liberation.
Furthermore, Appellant’s actions were inherently intimidating. Detective Hobbs
testified about Ms. Sanchez’s distraught mental state and State’s Exhibit 7 clearly
depicts a terrified victim. The fear brought to bear on Ms. Sanchez by Appellant’s
actions could easily and rationally be construed to have intimidated her into
acquiescence rather than attempting to jump off the speeding vehicle.
Finally, restraint should be considered without consent when Appellant exceeds the scope of defined consent or whenever the victim actually revokes her
consent. In Gonzales v. State , the victim explicitly asked her kidnapper multiple
times to let her go. 190 S.W.3d 125, 133 (Tex. App.—Houston [1 st Dist.] 2005, pet.
ref’d). Not surprisingly, the court in Gonzales found that where the victim
repeatedly asked to be let go, the restraint was without consent. Id. First, Ms.
Sanchez voluntarily rode with Appellant for the express purpose of being
transported to her place of employment at Casa Garcia. Whenever Appellant
accelerated past Casa Garcia, he exceeded the limitations of Ms. Sanchez’s
consent. Second, regardless of their prior arrangements, the record contains ample
evidence that Ms. Sanchez told Appellant to stop and let her off the motorcycle.
Ms. Sanchez testified to the jury that she told Appellant to stop and let her off,
State’s Exhibit 7 contained a recording of Ms. Sanchez stating multiple times that
she told Appellant to stop and let her off, file two of State’s Exhibit 9 contains a
recording of Appellant telling people that Ms. Sanchez was hitting him in the ribs
and crying out ‘stop, let me off,’ and finally Appellant in his testimony admitted
that at least at some point he heard Ms. Sanchez ask him to stop and let her off.
The evidence, when viewed in the light most favorable to the jury’s verdict, clearly demonstrates that a rational jury could have found that Appellant restrained
Ms. Sanchez. Evidence exists in the record from which a rational jury could
determine that Appellant restricted Ms. Sanchez’s movements, that said restriction
was without Ms. Sanchez’s consent, that said restriction was a substantial
interference with Ms. Sanchez’s liberty, and Appellant restricted her movements by
either moving her from place to place or confined her.
Abduction
The offense of kidnapping is complete whenever restraint has been established and there is evidence of the actor’s specific intent to prevent liberation.
Brimage v. State , 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994), on reh’g (Jan.
10, 1996). The element of abduction that requires an intent to prevent liberation is
part of the mens rea of kidnapping, not the actus reus. Id. As such, it does not
matter whether Appellant actually succeeded in preventing liberation by secreting
the victim in a place where she was not likely to be found or by the use or
threatened use of deadly force. The key is whether Appellant intended to prevent
the victim’s liberation by secreting her in a place where she was not likely to be
found or by the use or threatened us of deadly force.
When evaluating whether Appellant intended to prevent the liberation of this
victim by secreting her in a place where she was not likely to be found, our case
law has consistently held that the fact that a defendant is operating a motor vehicle
in a public place does not negate the intent to secrete or keep the victim from being
found. Megas v. State, 68 S.W.3d 234, 240 (Tex.App.-Houston [1st Dist.] 2002,
pet. ref'’d). An excellent example of this concept is seen in the Mayer case. 274
S.W.3d 898. In the Mayer case, the defendant confronted his victim in the parking
lot of a convenience store, assaulted her, and forced her to leave with him in her
vehicle. Id. at 900-901. At trial, the defendant admitted to his conduct but claimed
his intention was to flee the scene of the assault, not to kidnap his victim. Id. at
900. In analyzing this claim, the court held that:
Even by appellant’s own argument that he sought to flee from the store to avoid capture, he was doing so by attempting to reach a location where he could not be found. However, in his attempt to avoid capture, all the evidence at trial showed that appellant forced Tammy to go with him. Therefore by seeking a location where he could not be found and by forcing Tammy to go with him, he was taking Tammy to a location where it was likely that she would not be found.
Id . at 901. Obviously, the facts of Mayer have a significant parallel to the facts in
the case at bar regarding Appellant’s intent to prevent the liberation of his victim
by secreting her away. It is clear from the record that Appellant intended to reach a
place where he could not be found so as to evade capture. In doing so, he took a
terrified Ms. Sanchez along for the ride. Although our law requires a specific
intent to prevent Ms. Sanchez’s liberation, Mayer tells us that that specific intent is
shown when Appellant, seeking a place where law enforcement will not find him,
takes his victim with him in that search for a place to evade capture.
Appellant attempts to distinguish Mayer from the case at bar by arguing that Mayer is inapplicable because the defendant in Mayer used force directed at his
victim. This argument confuses the distinction between actus reus of kidnapping
and the mens rea of kidnapping. The holding in Mayer is that the specific intent to
secret is satisfied if the defendant takes his victim with him in seeking a place to
hide from law enforcement. In that scenario the discussion of whether force was
directed towards the victim would factor into the consent analysis of restriction and
be part of the actus rea. As such, the fact that Mayer used force against his victim
to restrict her movements has no bearing on whether his actions indicated the
specific intent to secret his victim. The same applies in our case. Even if Appellant
was correct in arguing that no force was directed at Ms. Sanchez, that would not
negate the Appellant’s mens rea in taking Ms. Sanchez along in his effort to reach a
place where the police could not find him.
Specific intent to prevent liberation can also be established by the use or threatened use of deadly force against a victim. The fact that Appellant utilized his
motorcycle in a manner that was capable of causing death or serious bodily injury
is essentially undisputed. Not only did Detective Bell indicate that the motorcycle
was used in a manner capable of causing death or serious bodily injury to
Appellant, his passenger, and the multitude of other drivers on the road, both Ms.
Sanchez and Appellant made similar statements in State’s Exhibit 7 and State’s
Exhibit 8 (VIII R.R. State’s Ex. 7 and VIII R.R. State’s Ex. 8). Beyond that, any
juror could appreciate the danger of Appellant’s actions simply from watching
State’s Exhibit 1. By using the motorcycle in that way, Appellant used deadly
force or threatened deadly force in an attempt to prevent his capture and the
liberation of Ms. Sanchez.
Appellant argues that the trial testimony of Ms. Sanchez is sufficient in and of itself to negate abduction because she stated that she knew Appellant did not
intend to prevent her liberation (Appellant’s Brief at 10). This argument is ill
conceived because it ignores both the interview admitted as State’s Exhibit 7 and
the portions of Ms. Sanchez’s trial testimony that contradict the Appellant’s
position. The record demonstrates contrary evidence from many different sources,
including the rest of Ms. Sanchez’s testimony and her recorded statement.
Furthermore, this argument ignores the proper standard of review and seeks to
completely obliterate the jury’s role as the sole judge of the credibility of the
witnesses. A somewhat similar situation was seen in Charles v. State . 05-10-
01520-CR, 2012 WL 2335323, at *1 (Tex. App.—Dallas June 20, 2012, pet. ref'd)
(not designated for publication).
In Charles , evidence presented from multiple eyewitnesses established that the defendant drove to his ex-girlfriend’s house, shot up and kicked in the back
door, punched the victim, dragged the victim, and forced both the victim and her
young daughter in his car. Id. However, when officers finally located the victim,
she told the officers that it was a crime of passion and nothing important. Id.
Whenever the case came to trial, the victim testified she and the defendant were in
a dating relationship, she seeing her ex-boyfriend, she never heard any gunshots,
and that she never saw a gun. Id. The victim did concede that the defendant had
punched her and might have pulled her hair, but stated that she and her daughter
both went with the defendant voluntarily and could have left at any time. Id.
Although the Defense argued that, based on the victims testimony, there was no
credible evidence that a kidnapping occurred, the jury disagreed and convicted the
defendant of aggravated kidnapping. Id. The court in Charles reiterated that the
jury is the sole judge of credibility and that the jury was free to disbelieve the
victim’s testimony. Id. The same principal certainly applies here. The jury was
free to discredit those portions of Ms. Sanchez’s testimony that were favorable to
Appellant. The jury may even have been inclined to do so because both Ms.
Sanchez and Appellant testified that they saw one another as family.
Deadly Weapon and Other Elements
Appellant does not seem to contest any of the other elements of aggravated kidnapping. Officer Kempker, Detective Bell, and Officer Rapier all testified that
these events occurred within Comal County on October 1, 2013. Detective Bell,
Ms. Sanchez, Officer Rapier, Officer Adams, and Appellant himself confirmed his
identity as the same individual driving the motorcycle and transporting Ms.
Sanchez. Detective Bell testified that the manner and means in which Appellant
operated the motorcycle was capable of causing death or serious bodily injury, and
the video introduced as State’s Exhibit 1 certainly demonstrates that Appellant used
the motorcycle as a deadly weapon (III R.R. at 126-127).
Conclusion The evidence within the record addresses every element of aggravated kidnapping. The courts must defer to the jury’s determination of facts where there
was evidence on which a rational jury could have based their decision. Evidence
was submitted as to each and every essential element of the offense of aggravated
kidnapping. The jury acted the sole judge of credibility and weighed the evidence
in determining that Appellant was guilty of the offense of aggravated kidnapping.
The evidence was legally sufficient to support Appellant’s conviction for
aggravated kidnapping.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the State respectfully requests
this Court to deny Appellant’s single point of error and affirm Appellant’s
conviction for the offense of aggravated kidnapping as alleged in the indictment.
Respectfully Submitted, /s/ Clayten Hearrell Clayten Hearrell Assistant Criminal District Attorney SBN: 24059919 150 N. Seguin Ave., Suite 307 New Braunfels, Texas 78130 Phone: (830) 221-1300 Fax: (830) 608-2008 hearrc@co.comal.tx.us ATTORNEY FOR THE STATE CERTIFICATE OF SERVICE I, Clayten Hearrell, attorney for the State of Texas, Appellee, hereby certify that a true and correct copy of this brief has been delivered to the attorney of
record for the opposing party:
Mr. John G. Jasuta
lawyer1@johnjasuta.com
1801 East 51 st Street
Austin, TX 78723
By electronically sending it to the above-listed email address through
efile.txcourts.gov e-filing, this 6 th day of November, 2015.
/s/ Clayten Hearrell Clayten Hearrell *43 CERTIFICATE OF COMPLIANCE I, Clayten Hearrell, hereby certify that this document was prepared in MS Word and it does not exceed the allowable length for an appellate brief, pursuant to
Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012, by Order of
the Texas Court of Criminal Appeals. The approximate total of words in this
document, as calculated by the word processing software, is 8,132 words.
/s/ Clayten Hearrell Clayten Hearrell
[1] When viewing the evidence in the light most favorable to the verdict, evidence can be insufficient in two circumstances: when the record contains “no evidence, or merely a ‘modicum’ of evidence, probative of an element of the offense” or when “the evidence conclusively establishes a reasonable doubt.” Id . The evidence may also be insufficient when the acts alleged do not constitute the offense charged. Id . at 108.