                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                '
 ROBERTO VALDEZ,                                               No. 08-10-00331-CR
                                                '
                         Appellant,                                Appeal from
                                                '
 v.                                                             171st District Court
                                                '
 THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                '
                         Appellee.             '               (TC # 20080D04281)




                                          OPINION


       Roberto Valdez appeals his convictions of capital murder (Count I) and aggravated

assault (Count II). A jury found Appellant guilty of both offenses and further found that he used

or exhibited a deadly weapon during the commission of the aggravated assault offense. The trial

court assessed Appellant’s punishment at life imprisonment on Count I and imprisonment for

fifteen years on Count II. The trial court included an affirmative deadly weapon finding in the

judgment related to Count II. For the reasons that follow, we affirm.

                                       FACTUAL SUMMARY

       In June of 2008, twenty-year-old Ana Sarahi Hernandez (“Sarahi”) was dating Jorge

Cardenas. On Saturday, June 14, Sarahi attended a family get-together at his house. Sometime

during the evening, Sarahi became jealous and got into an argument with Jorge because he had

received a text message from a female friend inviting him to go somewhere with her. Sarahi got

into her vehicle and left the party.
         Sarahi’s fourteen-year-old sister, Crystal Nesbitt, was waiting for Sarahi to return home

from the party so that they could watch a movie together. At approximately midnight, Crystal

saw the headlights of Sarahi’s car outside, but Sarahi just left her car at the house and never

came inside. She also heard a second vehicle which she recognized as Appellant’s car. She was

familiar with the sound of his car because Appellant had been to the house before to visit Sarahi.

Sometime thereafter, Crystal fell asleep.

         Sarahi telephoned Jorge several times between 2 and 3 a.m. and they continued to argue.

In the final call which ended around 3 a.m., he convinced her to return to his parent’s house

because the party had not ended. He understood from their final conversation that Appellant was

going to bring Sarahi back to the party but she never returned. Jorge knew that Sarahi and

Appellant were friends. Jorge called Sarahi’s home at around 4 a.m., but no one answered the

phone.

         The following morning, at approximately 6 a.m., Crystal and Sarahi’s mother, Maria

Nesbitt, woke up Crystal because Sarahi had not come home. Crystal and Maria called Sarahi’s

friends, including Jorge, to find out if anyone knew where she was, but no one had seen her.

Around 9 a.m., Crystal, Maria, and Sarahi’s friend, Brenda, went to find Appellant’s house and

look for Sarahi there. Crystal and Maria did not know where Appellant lived but Brenda

remembered the street he lived on because she and Sarahi had driven by the house once while on

the way to the store. Once they were on the street, Maria, Crystal, and Brenda found the house

because they recognized Appellant’s car in the driveway. They rang the doorbell and knocked

on Appellant’s door and windows, but no one answered. They continued knocking and ringing

the doorbell for about thirty minutes before they gave up and left. Crystal and Maria returned

home to wait for Sarahi. When Sarahi hadn’t arrived home by 12 p.m., Crystal and her mother



                                               -2-
returned to Appellant’s house. Once again, they rang the doorbell and knocked on the windows.

Crystal became increasingly worried that her sister was in the house so she hopped a fence into

the back yard and started looking in the windows. Crystal saw Appellant and Sarahi sitting on

the floor outside of the bathroom. Crystal testified that her sister was moving her arms up and

down and it looked like she and Appellant were arguing. She could not hear the conversation,

but Sarahi appeared to be scared and was screaming at Appellant. Appellant was saying “No”

and getting in Sarahi’s face. Crystal knocked on the window to let them know she was there.

When Sarahi looked up and saw Crystal, she appeared to be surprised and Crystal saw fear in her

sister’s eyes. At that point, Crystal ran back to her mother and told her to call the police. From

the front door, Crystal could hear her sister screaming and crying from inside the home. It

sounded as though Sarahi was running through the house and Crystal could hear Sarahi

screaming, “No, Roberto, no.” Crystal began trying to break into the house and she discovered a

front window which was partially open. She removed the screen and ran into the house.

       Once inside, Crystal grabbed a beer bottle off the coffee table and she could hear Sarahi

screaming her name from upstairs. With the beer bottle in hand, Crystal ran upstairs toward the

sound of Sarahi’s voice. She noticed one room with the door shut, so she opened it and went

inside. Crystal saw her sister sitting on a bed, covered in blood and Appellant was standing

beside her. Appellant was holding Sarahi by the hair with his left hand and he had a knife in his

right hand. Crystal saw cuts on Sarahi’s chest so she tried to move closer to help her. As Crystal

approached, Appellant swung the knife at Crystal and cut her. Sarahi tried to stop Appellant by

pulling on the back of his shirt and saying, “No Roberto, not to my sister.” Crystal asked

Appellant why he had done that to Sarahi, and he responded by saying that he was going to let

her go but he got scared when they showed up at the house.



                                              -3-
       The police arrived at the house and were met by Maria, who they described as frantic,

hysterical, and screaming. They heard someone screaming inside of the house so they entered

and ran upstairs. They saw a young woman covered in blood on a bed and a second female also

on the bed. Appellant was standing near them with a knife clenched in his hand. They identified

themselves as police officers and ordered Appellant to drop the knife. Appellant dropped the

knife but resisted the officers’ efforts to handcuff him. After they handcuffed him and removed

him from the room, Office Ricardo Huante observed that Sarahi was bleeding profusely from

stab wounds to her chest and umbilical area. Huante attempted to aid Sarahi until EMS arrived

by putting pressure on her wounds. She told him several times that she was dying. In an effort

to keep her conscious, Huante asked Sarahi what had happened. Sarahi told him that she had

gone voluntarily with Appellant but when she wanted to leave, he refused to let her go. When

her mother arrived, Appellant refused to let Sarahi leave and he became angry and began to stab

her. Huante maintained pressure on the wounds until EMS arrived. EMS transported Sarahi to

the hospital where she underwent immediate surgery to insert chest tubes and to treat the stab

wounds to her neck, abdomen, chest, back, right shoulder, right arm, and hand. After the surgery

was completed, there continued to be active bleeding in the left chest cavity and Sarahi suffered

cardiac arrest. She was resuscitated and returned to surgery where it was determined that the left

lung and the posterior chest wall stab wound were bleeding. The surgeon sutured the lung and

stab wound and added two more chest tubes to the left side of Sarahi’s chest. The following day,

Sarahi went into a coma as the result of hypovolemic shock. She was declared dead the

following day.

       The medical examiner’s office performed the autopsy. Dr. Juan Contin did not perform

the autopsy, but he reviewed the medical records and autopsy report and offered his expert



                                              -4-
medical opinion that the victim bled to death as a result of multiple stab wounds. Dr. Contin also

reviewed a peer review report which evaluated the medical treatment of Sarahi Hernandez. The

peer review determined that the hospital could have prevented the death of the victim by

appreciating the significance of the blood loss through the chest tube.

       Jessica Gausin and her boyfriend, Luis Martinez, testified for the defense. On June 14,

2008, Gausin and Martinez went to Appellant’s house. Gausin recalled that they went to his

house at approximately 11:30 p.m. but Martinez testified that it was 9 p.m. Appellant left the

house after receiving a phone call and he returned with Sarahi who was crying. Martinez

testified that Sarahi was dating Appellant. Gausin and Martinez left at around 3 a.m. and Sarahi

remained at the house. Neither of them saw Sarahi being held against her will.

       Dr. Leann Grossberg, an expert in forensic pathology, reviewed the autopsy report, the

police reports, and the medical records. The record of admission showed decreased breath

sounds on her right side, insertion of a right-chest tube, and normal breath sounds on her left

side. Dr. Grossman did not find any evidence of a pneumothorax in the left chest cavity. In her

expert opinion, she did not see any clinical indication to put a chest tube in the left chest cavity.

Sarahi had nine stab wounds but six of them were into tissue and did not cut any major blood

vessels. The stab wound to the abdomen was potentially fatal but Sarahi had received prompt

medical attention and the bleeding from that wound had been stopped. If the bleeding from that

wound had not been stopped, it would have been fatal. Dr. Grossberg questioned whether the

bleeding in the left chest cavity had been caused by the stab wound to the left side of Sarahi’s

back or by the placement of the left chest tube. Based on her review of the post-operative chest

x-ray, Dr. Grossberg could not rule out the stab wound to the back as the cause of the bleeding

but she felt that it was unlikely. She admitted that death from improper placement of a chest



                                                -5-
tube is rare. Dr. Grossberg also testified that Sarahi would have died as the result of bleeding

from the stab wounds if she had not gotten medical treatment.

       The jury rejected Appellant’s defense and found him guilty of causing the death of Sarahi

Hernandez by stabbing her with a knife while in the course of committing or attempting to

commit the offense of kidnapping. The jury also found him guilty of aggravated assault by

causing bodily injury to Crystal Nesbitt by cutting her with a knife.

                          ADMISSION OF DYING DECLARATION

       In Issue One, Appellant argues that the trial court erred in admitting Officer Huante’s

testimony regarding statements Sarahi made to him because it violated his right to confrontation

guaranteed by the Sixth Amendment. The State makes several arguments in response including

that Appellant waived his right to confrontation by wrongdoing, Sarahi’s statements were non-

testimonial, and the statements were admissible as a dying declaration. It is unnecessary to

address the State’s assertions that Sarahi’s statements are non-testimonial or that the forfeiture by

wrongdoing exception applies in this case because we conclude that the trial court properly

admitted the statements as a dying declaration which is an exception to the right of confrontation.

       Generally, a trial court’s decision to admit evidence is reviewed for an abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App. 2005). Whether an out-of-

court statement is admissible as an exception to the hearsay rule is a matter within the trial

court’s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The trial court

abuses its discretion if the decision lies outside of the zone of reasonable disagreement. Id. An

appellate court engages in a de novo review when determining whether the admission of a

declarant’s out-of-court statements violate the Confrontation Clause. Lilly v. Virginia, 527 U.S.

116, 136-37, 119 S.Ct. 1887, 1900, 144 L.Ed.2d 117 (1999); Langham v. State, 305 S.W.3d 568,



                                                -6-
576 (Tex.Crim.App. 2010)(stating that whether a particular out-of-court statement is testimonial

or not is a question of law which must be reviewed de novo).

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. Amend. VI;

Giles v. California, 554 U.S. 353, 357-58, 128 S.Ct. 2678, 2682, 171 L.Ed.2d 488 (2008). The

central purpose of the Confrontation Clause is to ensure the reliability of the evidence against an

accused by subjecting it to rigorous testing in an adversary proceeding before the trier of fact.

Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). The

Confrontation Clause contemplates that a witness who makes testimonial statements admitted

against a defendant will ordinarily be present at trial for cross-examination. Giles, 554 U.S. at

358, 128 S.Ct. at 2682. If the witness is unavailable, his prior testimony will be introduced only

if the defendant had a prior opportunity to cross-examine him. Giles, 554 U.S. at 358, 128 S.Ct.

at 2682.    The United States Supreme Court held in Crawford v. Washington that the

Confrontation Clause is most naturally read as a reference to the right of confrontation at

common law, admitting only those exceptions established at the time of the Founding. Crawford

v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 1365-66, 158 L.Ed.2d 177 (2004). There are

two common-law exceptions to the right of confrontation. Giles, 554 U.S. at 358, 128 S.Ct. at

2682-83. The first is a dying declaration, where the declarant makes a statement while on the

verge of death. Id., 554 U.S. at 358, 128 S.Ct. at 2683. The second is forfeiture by wrongdoing,

which allows the admission of statements of a witness who was detained or kept away by the

means or procurement of the defendant. Id., 554 U.S. at 358-59, 128 S.Ct. at 2683. The United

States Supreme Court held in Giles that the forfeiture by wrongdoing exception applies only if

the defendant engaged in the wrongdoing with the intent to prevent the witness from testifying.



                                               -7-
See id., 554 U.S. at 361-62, 128 S.Ct. at 2684.

          Sarahi’s statements made to Officer Huante were admitted as a dying declaration. A

dying declaration is a “statement made by a declarant while believing that the declarant’s death

was imminent, concerning the cause or circumstances of what the declarant believed to be

impending death.” TEX.R.EVID. 804(b)(2). This hearsay exception has been accepted under

common-law tradition since before the drafting of the American Constitution. Gardner v. State,

306 S.W.3d 274, 290 (Tex.Crim.App. 2010). To satisfy the dying declaration exception, the

victim’s sense of impending death may be established in a number of ways, including her

express words, her conduct, the severity of her wounds, the opinions of others stated to her, or

any other relevant circumstances. Gardner, 306 S.W.3d at 292. Sarahi was bleeding profusely

from the stab wounds and she told Officer Huante several times that she was dying. Huante

believed, based on Sarahi’s condition, that she was going into shock and her death was imminent

if she did not receive medical care. The record supports the trial court’s conclusion that Sarahi

believed her death was imminent at the time she made the statements. See Gardner, 306 S.W.3d

at 292.

          Sarahi told Huante that she had gone voluntarily with Appellant but when she wanted to

leave he refused to let her go. She also said that when her mother arrived and wanted her to

leave, Appellant refused to let her leave the residence and he became angry and began to stab

her. The trial court did not abuse its discretion by concluding that Sarahi’s statements concerned

not only the cause but also the circumstances of what she believed to be impending death.

Assuming for the sake of argument that Sarahi’s statements were testimonial, we conclude that

the admission of this dying declaration did not violate Appellant’s right to confrontation under

the Sixth Amendment. See Giles, 554 U.S. at 358-59, 128 S.Ct. at 2682-83; Crawford v.



                                                  -8-
Washington, 541 U.S 36, 56 n.6, 124 S.Ct. 1354, 1367 n.6, 158 L.Ed.2d 177 (2004); Gardner,

306 S.W.3d at 288-89. Issue One is overruled.

                                   JURY CHARGE ERROR

       In Issue Two, Appellant complains that the trial court erred by failing to apply the law of

concurrent causation to the facts of the case. Appellant introduced evidence at trial that the

medical treatment provided to the victim may have contributed to her death and he argues on

appeal that she died as the result of medical malpractice. The State responds that Appellant was

not entitled to an instruction on concurrent causation because the evidence does not raise an issue

that a concurrent cause was clearly sufficient to have caused the victim’s death.

                                       Standard of Review

       In reviewing charge error, we must first determine whether error exists. Druery v. State,

225 S.W.3d 491, 504 (Tex.Crim.App. 2007). If we find error, we must then determine whether

the error caused sufficient harm to require reversal.       Id.   The standard of review differs

depending on whether the defendant made a timely objection at trial. See Bluitt v. State, 137

S.W.3d 51, 53 (Tex.Crim.App. 2004). If the error was the subject of a timely objection, reversal

is required if there is some harm to the defendant as a result of the error. See TEX.CODE

CRIM.PROC.ANN. art. 36.19 (West 2006); Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.

2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op. on reh’g). If no proper

objection was made at trial, reversal is required only if the error is so egregious that the

defendant was denied a fair and impartial trial. See Ovalle, 13 S.W.3d at 786; Almanza, 686

S.W.2d at 171. Errors that result in egregious harm are those that affect the very basis of the

case, deprive the defendant of a valuable right, or vitally affect a defensive theory. See Almanza,

686 S.W.2d at 172. The degree of harm is determined in light of the entire jury charge, the state



                                               -9-
of the evidence, including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a whole. See

Almanza, 686 S.W.2d at 171.

                                                     Analysis

        The jury charge included the following abstract instruction on causation:

        A person is criminally responsible if the result would not have occurred but for
        his conduct, operating either alone or concurrently with another cause, unless the
        concurrent cause was clearly sufficient to produce the result and the conduct of
        the actor clearly insufficient.

This paragraph tracks the language in Section 6.04(a) of the Penal Code. TEX.PENAL CODE

ANN. § 6.04(a)(West 2011).1 Section 6.04(a) requires the State to establish a “but for” causal

connection between the defendant’s conduct and the resulting harm. Robbins v. State, 717

S.W.2d 348, 351 (Tex.Crim.App. 1986).

        The charge included only a general application paragraph for the offense of capital

murder, stating:

        Now, if you find from the evidence beyond a reasonable doubt that on or about
        the 15th day of June, 2008, in El Paso County, Texas, the defendant, ROBERTO
        VALDEZ, did then and there intentionally cause the death of an individual,
        namely ANA SARAHI HERNANDEZ by stabbing ANA SARAHI
        HERNANDEZ about the body with a knife, and the defendant, ROBERTO
        VALDEZ, was then and there in the course of committing and attempting to
        commit the offense of Kidnapping of ANA SARAHI HERNANDEZ, then you
        will find the defendant, ROBERTO VALDEZ, GUILTY OF CAPITAL
        MURDER, as alleged in Count I of the indictment. (Verdict Form ‘A’).

        Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt
        thereof, you will acquit the defendant, ROBERTO VALDEZ, of CAPITAL
        MURDER and next consider if the defendant is GUILTY of MURDER.


1
  Section 6.04(a) of the Texas Penal Codes states: “[a] person is criminally responsible if the result would not have
occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause
was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” TEX.PENAL CODE
ANN. 6.04(a).


                                                       - 10 -
Appellant did not object to the trial court’s failure to address concurrent causation in the

application paragraph.

       An accused is entitled to a charge on every defensive issue raised by the evidence,

regardless of whether it is strong, feeble, unimpeached, or contradicted. Muniz v. State, 851

S.W.2d 238, 254 (Tex.Crim.App. 1993).           Conversely, the defendant is not entitled to an

instruction that is not raised by the evidence.       Remsburg v. State, 219 S.W.3d 541, 545

(Tex.App.--Texarkana 2007, pet. ref’d). To raise an issue of concurrent causation under Section

6.04(a), there must be evidence that: (1) the defendant’s actions were clearly insufficient to

produce the result; and (2) a concurrent cause was clearly sufficient to produce the result.

TEX.PENAL CODE ANN. § 6.04(a); Remsburg, 219 S.W.3d at 545; Hutcheson v. State, 899

S.W.2d 39, 42 (Tex.App.--Amarillo 1995, pet. ref’d).

       There is no evidence that Appellant’s actions were clearly insufficient to cause the

victim’s death. To the contrary, both Dr. Contin and Appellant’s expert, Dr. Grossberg, testified

that Sarahi bled to death as the result of multiple stab wounds. While Dr. Grossberg questioned

whether placement of the left chest tube might have caused an injury to the left lung and

resultant bleeding, she did not testify that the stab wounds were clearly insufficient to cause

Sarahi’s death. In the absence of such evidence, Appellant was not entitled to any instruction on

concurrent causation. Issue Two is overruled.




                                             - 11 -
                                        LEGAL SUFFICIENCY

        In his third issue, Appellant argues that the evidence was legally insufficient to prove that

he intentionally or knowingly kidnapped, or attempted to kidnap Sarahi Hernandez.2

                                            Standard of Review

        The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining

whether the evidence is sufficient to support a conviction. Brooks v. State, 323 S.W.3d 893, 894-

95 (Tex.Crim.App. 2010). Under the Jackson standard, a reviewing court must consider all

evidence in the light most favorable to the verdict and in doing so determine whether a rational

justification exists for the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d

at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of fact, the jury is the

sole judge as to the weight and credibility of witness testimony, and therefore, on appeal we must

give deference to the jury’s determinations. Brooks, 323 S.W.3d at 894-95. If the record

contains conflicting inferences, we must presume the jury resolved such facts in favor of the

verdict and defer to that resolution. Id. On appeal, we serve only to ensure the jury reached a

rational verdict. We may not reevaluate the weight and credibility of the evidence produced at

trial and in so doing substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d

556, 562 (Tex.Crim.App. 2000). In our review, we consider both direct and circumstantial

evidence and all reasonable inferences that may be drawn from the evidence. Hooper v. State,

214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The standard of review as to the sufficiency of the

evidence is the same for both direct and circumstantial evidence cases. Id.; Arzaga v. State, 86

S.W.3d 767, 777 (Tex.App.--El Paso 2002, no pet.). Each fact need not point directly and

2
  Appellant challenges only the legal sufficiency of the evidence to prove kidnapping; he does not challenge the
sufficiency of the evidence to prove he murdered Sarahi by stabbing her with a knife.


                                                    - 12 -
independently to the guilt of the accused, so long as the cumulative force of all the evidence,

when coupled with reasonable inferences to be drawn from that evidence, is sufficient to support

the conviction. Id.

                                         Applicable Law

       Count I of the indictment charged Appellant with capital murder. It alleged that he

intentionally caused the death of Sarahi Hernandez by stabbing her with a knife while “in the

course of committing and attempting to commit the offense of kidnapping.” A person commits

capital murder if he intentionally or knowingly causes the death of an individual while in the

course of committing or attempting to commit kidnapping. TEX.PENAL CODE ANN. §§

19.02(b)(1), 19.03(a)(2)(West 2011).      The State is not required to prove that Appellant

completed a kidnapping because a person can be guilty of capital murder if the State can show

the murder occurred during an attempt to commit kidnapping. TEX.PENAL CODE ANN. §

19.03(a)(2). Criminal attempt requires both the commission of an act that amounts to more than

mere preparation and a specific intent to commit the offense. TEX.PENAL CODE ANN. §

15.01 (West 2011).

       A person commits the offense of kidnapping when he “intentionally or knowingly

abducts another person.”     TEX.PENAL CODE ANN. § 20.03(a).              “Abduct” is defined as

restraining “a person with intent to prevent his liberation by: (A) secreting or holding him in a

place where he is not likely to be found; or (B) using or threatening to use deadly force.” Id. at §

20.01(2). “Restrain” is defined as restricting “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.” Id. at § 20.01(1). Restraint is without consent if it is accomplished

by force, intimidation, or deception. Id. at § 20.01(1)(A). There is no specific time requirement



                                               - 13 -
for determining whether a person has been restrained. Hines v. State, 75 S.W.3d 444, 447-48

(Tex.Crim.App. 2002). It is up to the jury to distinguish between those situations in which a

substantial interference with the victim’s liberty has taken place and those situations in which a

slight interference has taken place. Id. at 448. The offense of kidnapping is legally completed

when the defendant, at any time during the restraint, forms the intent to prevent liberation by

secreting or holding another in a place unlikely to be found or by using or threatening to use

force. Laster v. State, 275 S.W.3d 512, 521 (Tex.Crim.App. 2009); Clark v. State, 24 S.W.3d

473, 476 (Tex.App.--Texarkana 2000, no pet.).

       To show that Appellant kidnapped or attempted to kidnap Sarahi Hernandez, the State

had the burden of proving that: (1) Appellant restrained Sarahi or accomplished more than mere

preparation for restraint; (2) the restraint was without Sarahi’s consent; and (3) Appellant acted

with the specific intent to prevent Sarahi’s liberation by either secreting her in a place where she

was unlikely to be found or by using or threatening to use deadly force to restrain her. See

TEX.PENAL CODE ANN. §§ 20.01(1), (2), 20.03(a); Saldana v. State, 59 S.W.3d 703, 708

(Tex.App.--Austin 2001, pet. ref’d).

                                       Evidence of Restraint

       Appellant first argues that there is no evidence of restraint other than Sarahi’s dying

declaration which he refers to as inadmissible. Even if we had sustained Appellant’s challenge

to the admissibility of this evidence in Issue One, we are required to consider all of the evidence,

including inadmissible evidence, in our sufficiency review. See Russeau v. State, 171 S.W.3d

871, 879 n.2 (Tex.Crim.App. 2005). Appellant also focuses on the evidence that Sarahi was

voluntarily at his house and no one saw her being restrained. The fact that Sarahi initially

accompanied Appellant voluntarily to his house does not preclude the possibility that kidnapping



                                               - 14 -
subsequently occurred. See Rodriguez v. State, 730 S.W.2d 75, 79 (Tex.App.--Corpus Christi

1987, no pet.). Likewise, Appellant’s friends did not observe Sarahi being held against her will

at 3 a.m. when they left Appellant’s house, but that does not foreclose the possibility that the

restraint on her liberty occurred after Gausin and Martinez left. In fact, Jorge Cardenas spoke

with Sarahi at around 3 a.m. and he understood that Appellant was going to drive Sarahi back to

Jorge’s house and drop her off, but she never arrived. Sarahi told Office Huante that she wanted

to leave but Appellant would not let her go. Similarly, Appellant told Crystal that he was going

to let Sarahi leave until she and her mother arrived at the house. This supports two inferences.

First, Appellant’s statement that he was going to let Sarahi leave indicates that it was his decision

whether and when she could leave. Second, the jury could have found that Appellant refused to

let Sarahi leave after her mother and sister arrived at his house. We conclude that a rational trier

of fact could find beyond a reasonable doubt Appellant restricted Sarahi’s movements and

substantially interfered with her liberty by confining her to his home.

                                          Lack of Consent

       There is also legally sufficient evidence that the restraint was without Sarahi’s consent.

Sarahi told Officer Huante that she wanted to leave but Appellant would not let her go. When

Crystal looked through the window and saw Appellant telling Sarahi “no” while “getting in her

face,” she knocked on the window to let them know she was there. At that moment, she saw fear

in Sarahi’s eyes. Crystal ran to tell her mother to call the police and she heard Sarahi running

through the house and screaming, “No, Roberto, no.” Sarahi had stab wounds to the left side of

her back and the back of one of her legs. One inference from this evidence is that Appellant

stabbed Sarahi while she was fleeing from him and trying to leave the house with her family.

Further, when Crystal went into the bedroom upstairs, she saw Appellant holding Sarahi by the



                                               - 15 -
hair with one hand and the knife in the other hand. The jury could have reasonably concluded

beyond a reasonable doubt that Appellant restrained Sarahi without her consent through force

and intimidation. See Megas v. State, 68 S.W.3d 234, 239 (Tex.App.--Houston [1st Dist.] 2002,

pet. ref’d)(holding evidence legally sufficient to prove victim was restrained against her will

where the defendant assaulted the victim to prevent her from leaving his car).

                               Specific Intent to Prevent Liberation

       Finally, we consider whether Appellant acted with the specific intent to prevent Sarahi’s

liberation by either secreting her in a place where she was unlikely to be found or by using or

threatening to use deadly force to restrain her. There is evidence that neither Maria nor Crystal

knew where Appellant lived. Fortunately, Jorge knew that Sarahi had been with Appellant when

he last spoke with her, and Sarahi’s friend, Brenda, knew the street where Appellant lived. They

were able to find his house only because they recognized his car parked in the driveway. When

they went to the door and knocked repeatedly at 9 a.m. and noon, Appellant did not answer the

door. This is some evidence that Appellant intended to restrain Sarahi by secreting her in a place

where she was unlikely to be found. See Laster, 275 S.W.3d at 522.

       Additionally, there is evidence that Appellant intended to prevent Sarahi’s liberation by

using or threatening to use deadly force to restrain her. Immediately after Crystal knocked on

the window and told her mother to call the police, Sarahi began running through the house while

screaming “No, Roberto, no.” Appellant stabbed Sarahi nine times before Crystal could enter

the house. When Crystal entered the bedroom, she saw that Appellant was holding Sarahi by the

hair with one hand while holding a knife in the other hand. Crystal tried to go to her sister’s aid,

but Appellant slashed the knife at Crystal and cut her. Appellant dropped the knife only when

police officers entered the room and commanded him to do so. From this evidence, the jury



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could have rationally concluded beyond a reasonable doubt that Appellant acted with the specific

intent to prevent Sarahi’s liberation by using and threatening to use deadly force to restrain her.

Issue Three is overruled. Having overruled all three issues presented on appeal, we affirm the

judgments of conviction related to Counts I and II.


October 17, 2012                      _______________________________________________
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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