                                                                          ACCEPTED
                                                                      03-15-00125-CR
                                                                            11112493
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                 6/13/2016 2:09:33 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
      NOS. 03-15-00125-CR; 03-15-00126-CR

             COURT OF APPEALS              FILED IN
                                    3rd COURT OF APPEALS
                                        AUSTIN, TEXAS
                FOR THE             6/13/2016 2:09:33 PM
                                      JEFFREY D. KYLE
     THIRD SUPREME JUDICIAL DISTRICT        Clerk




              JAMES MONTOYA,
                   Appellant
                     VS.

            THE STATE OF TEXAS,
                   Appellee


               APPEAL FROM


     THE 207TH JUDICIAL DISTRICT COURT

            HAYS COUNTY, TEXAS

TRIAL COURT CAUSE NOS. CR-12-0635; CR-12-0637


               STATE'S BRIEF




                    Brian Erskine
                    Assistant Criminal District Attorney
                    712 South Stagecoach Trail, Suite 2057
                    San Marcos, Texas 78666
                    State Bar No. 24074182
                    Attorney for the State of Texas
                    brian.erskine@co.hays.tx.us
                            NAMES OF PARTIES

Appellee:                  State of Texas


Attorneys for the State:   WesleyH. Mau, Criminal DistrictAttorney
      At trial:            BrianErskine, Assistant Criminal District Attorney
                           Laura Garcia, Assistant Criminal District Attorney
      On appeal:           Brian Erskine, Assistant Criminal District Attorney
                           712 South Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666
                           State Bar No. 24074182
                           Attorneys for the State of Texas

Appellant:                 James Montoya

Attorney:
      At trial:            Ariel Payan
                           1012 Rio Grande
                           Austin, Texas 78701

      On appeal:           Ariel Payan
                           1012 Rio Grande
                           Austin, Texas 78701




                                                                                 n
                           TABLE OF CONTENTS

NAMES OF PARTIES
TABLE OF CONTENTS                                                             iu
INDEX OF AUTHORITIES                                                          iv
STATEMENT OF THE CASE                                                         2
A Hays County Grand Jury indicted James Montoya ("Montoya") on August 1, 2012
for one count of Aggravated Kidnapping in cause number CR-12-0635 and two
counts of Aggravated Sexual Assault in CR-12-0637. These cases were joined.
Appellant pled not guilty. A jury trial commenced on February 9, 2015. Appellant
was convicted in said cause and was sentenced to Life in Prison on each charge 2
STATEMENT REGARDING ORAL ARGUMENT                                             2
STATEMENT OF FACTS                                                            2
SUMMARY OF THE ARGUMENT                                                       3
ARGUMENT                                                                      3
   TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING PROPER
   QUESTION TOVENIREPANEL. ERROR, IFANY, IS HARMLESS
   Evidence is sufficient for a rational trier of fact to have found
   VICTIM WAS RELEASED IN AN UNSAFE PLACE.

CONCLUSION                                                                   14
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P., RULE 9.4                     16
CERTIFICATE OF SERVICE                                                       17




                                                                             ni
                           INDEX OF AUTHORITIES

CASES


Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988)            3,4

Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002)                 5

Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)               10

Butcher v. State, 454 S.W.3d 13 (Tex. Crim. App. 2015)            12,13

Davis V. State, 313 S.W.3d 317 (Tex. Crim. App. 2010)                 4

Faulder v. State, 745 S.W.2d 327 (Tex. Crim. App. 1987)               3

Fuller V. State, 829 S.W.2d 191 (Tex. Crim. App. 1992)               4

Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999)              8

Halprin v. State, 170 S.W.3d 111 (Tex. Crim. App. 2005)              5

Harris v. State, 882 S.W.2d 61 (Tex. App.—^Houston [14th Dist.^

   1994, pet. refd)                                                 13

Jackson V. Virginia, 443 U.S. 307 (1979)                            10

Johnson v. State, 982 S.W.2d 403 (Tex. Crim. App. 1998)              4

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)              11

Lopez V. State, 2013 WL 4487555 (Tex. App.—^Austin Aug. 15,

   2013, no. pet. h.)                                               11

Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000)            11


                                                                     iv
Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006)                      4

Mathis V. State, 576 S.W.2d 835 (Tex. Crim. App. 1979)                      4

Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999)                       5

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)                     12

Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995)                       5

Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005)                  8, 9

Smith V. State, 703 S.W.2d 641 (Tex. Crim. App. 1985)                       4

Standeferv. State, 59 S.W.3d 111 (Tex. Crim. App. 2001)       3,4, 5, 6, 8, 15

Watson V. State, 204 S.W.3d 404 (Tex. Crim. App. 2006)                     11

Williams v. State, 718 S.W.2d 772 (Tex. App.—Corpus Christi

   1986)                                                                   12

Woods V. State, 152 S.W .3d 105, 109-110 (Tex. Crim. App.

   2004)                                                                    8


RULES


Tex. R. App. P. 38.2                                                        1

Tex. R. App. P. 39.7                                                        2

Tex. R. App. P. 44.2(b)                                                     8
                    NOS. 03-15-00125-CR; 03-15-00126-CR

                             COURT OF APPEALS

                                   FOR THE


                   THIRD SUPREME JUDICIAL DISTRICT



                              JAMES MONTOYA,
                                   Appellant
                                      VS.

                           THE STATE OF TEXAS,
                                  Appellee


                                APPEAL FROM


                  THE 207TH JUDICLVL DISTRICT COURT


                           HAYS COUNTY, TEXAS

             TRIAL COURT CAUSE NOS. CR-12-0635; CR-12-0637


                               STATE'S BRIEF



TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:

      COMES NOW the State of Texas, by and through her Assistant District

Attorney, Brian Erskine, and files this Brief in Opposition to Appellant's Brief

pursuant to Texas Rules of Appellate Procedure Rule 38.2 and would show the Court

the following:


                                                                          Page 1
                             STATEMENT OF THE CASE

A Hays County Grand Jury indicted James Montoya ("Montoya") on August 1,

2012, for one count of Aggravated Kidnapping in cause number CR-12-0635^ and

two counts ofAggravated Sexual Assault in CR-12-0637.^ These cases were joined?
Appellant pled not guilty. A jury trial commenced on February 9, 2015.'^ Appellant

was convicted in said cause and was sentenced to Life inPrison on each charge.^

                 STATEMENT REGARDING ORAL ARGUMENT

       The State requests oral argument to aid the Court in the decisional process

related to Montoya's assertions.


                               STATEMENT OF FACTS

       The State does not object to Montoya's statement of facts, however, pertinent

facts have been supplemented to resolve the issues presented by Montoya and to

clarify interpretations of Montoya's actions.




'CR-12-0635 CR5.
^CR-12-0637CR6.
^CR-12-0635 CR8; CR-12-0637 CR9.
 CR-12-0635 CR 33; CR-12-0637 CR 56.
^CR-12-0635 CR 93; CR-12-0637 CR 116,118.
                                    , 118.


                                                                             Page 2
                               SUMMARY OF THE ARGUMENT

        The State's hypothetical jury question falls far short of attempting to commit a

veniremember to consider the minimum sentence based on specific evidentiary facts.

Therefore, the trial court did not abuse its discretion.^ If this Court finds an abuse of

discretion, error, if any, is harmless. Additionally, it is clearfi*om the evidence at trial

that Montoya did not leave M.A. in a safe place. The jury could have relied on

M.A.'s testimony to ascertain whether Montoya left her in a safe place. Therefore,

the evidence is legallysufficient to support the jury's verdict.


                                           ARGUMENT

        STATE'S RESPONSE TO POINT OF ERROR ONE


        TRIAL       COURT        DID      NOT      ABUSE        ITS     DISCRETION           IN
        ALLOWING PROPER QUESTION TO VENIREPANEL. ERROR, IF
        ANY, IS HARMLESS

        Standard ofReview

        The trial court has broad discretion over the jury selection process.^ The

propriety of a particular question is within the trial court's discretion and will not be

disturbed absent an abuse of discretion.^ A trial court's discretion is abused only
when a proper question about a proper area of inquiry is prohibited.^ A question is


^SeeStandeferv. State, 59 S.W.3d 177,181 (Tex. Crim. App. 2001).
^Allridge v. State, 762 S.W.2d 146,167 (Tex. Crim. App. 1988).
®AUridge, 762 S.W.2d at 163; Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987).
^AUridge, 762 S.W.2d at 163.

                                                                                              Page 3
proper if it seeks to discover a juror's views on an issue applicable to the case.^^ An

otherwise proper question is impermissible, however, if it attempts to commit the

juror to a particular verdict based on particular facts/* Both the State and defense are

entitled to jurors who can consider the entire punishment range for the particular

statutory offense—i.e., from the maximum to the minimum and all points in
             12
between.          Jurors must be able to consider both "a situation in which the minimum

penaltywould be appropriate and ... a situation in which the maximum penalty would
                      I o

be appropriate." Therefore, both sides may question the panel on the punishment

range*"* and may commit jurors to consider the entire punishment range for the
statutory offense.'^ A question committing a juror to consider the minimum
punishment is both proper and permissible.'^ However, counsel veers into




  Smith V. State, 703 S.W.2d 641, 643 CTex. Crim. App. 1985).
" Standefer, 59 S.W.3d at 181.
  Johnson v. State, 982 S.W.2d 403,405-06 (Tex. Crim. App. 1998).
  Fuller V. State, 829 S.W.2d 191,200 (Tex. Crim. App. 1992).
   See Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006) (both the defense and the State are
permitted to voir dire potential jurors concerning the range of punishment for felony and misdemeanor
driving-while-intoxicated charges); Mathis v. State, 576 S.W.2d 835,839 (Tex. Crim. App. 1979).
  Davis V. State, 313 S.W.3d 317, 346 (Tex. Crim. App. 2010) ( "When the law requires a certain type of
commitment from jurors, such as considering the full range of punishment, an attomey may ask prospective
jurors to commit to following the law in that regard.").
  See Standefer, 59 S.W.3d at 181 ("[Q]uestions concerning a juror's ability to consider the full range of
punishment for a particular offense meet ... the defmition of commitment questions but are nevertheless
proper.").

                                                                                                 Page 4
impermissible commitment questions when he attempts to commit a veniremember

to consider theminimum sentence based on specific evidentiary facts.

        Analysis

        The State may provide examples to illustrate various scenarios in which a

defendant would be guilty of an offense without asking a commitment question.

Even if those examples are given in the context of a discussion on the juror's

minimum punishment consideration, unless the question attempts to bind thejuror, it

is not a commitment question.*^ The prosecution's question did not attempt to bind
the veniremember to resolve or refi*ain fi-om resolving an issue on the basis of one or

more facts contained inthe question.*^

During its voir dire, the state asked the following question of the venire:

        Okay. So is there a hypothetical set of facts where you can consider
        probation for aggravated kidnapping and aggravated sexual assault? For
        instance, a young married couple going through a tumultuous
        relationship. They are separated. There's allegations of infidelity
        between both of them, on either side, but they are thinking about
        working it out. He calls her up and says, Hey, I want to take you out on
        a date. Let's go get a dinner and a movie. Right. She says reluctantly,
        Okay. He goes and picks her up and he drives, but he doesn't go near a
17
  See, e.g., Barajas v. State, 93 S.W.3d 36, 38, 40 (Tex. Crim. App. 2002) (improper to ask whether jurors
could be unpartial in a case involving a victim who was eight to ten years old); Moore v. State, 999 S.W.2d
385, 406-07 (Tex. Crim. App. 1999) (improper to ask juror, who stated that she could consideryouth as a
mitigating factor, whether she would consider a nineteen-or twenty-year-old a "youth" for purposes of
unposing thedeath penalty); Penry v. State, 903 S.W.2d 715, 740 (Tex. Crim. App. 1995) (improper to ask
whether victim-impact evidence would prevent a juror from assessing a lifesentence).
  Halprin v. State, 170S.W.3d 111, 123 (Tex. Crim. App. 2005) reh'gdenied.
   See Standefer , 59 S.W.3d at 180; Question is a commitment question "if one or more of the possible
answers is that the prospective juror wouldresolve or refrain from resolving an issuein the case on the basis
of one or more facts containedin the question."

                                                                                                   Page 5
       restaurant or a theater, but instead he goes to a remote park and he
       parks the vehicle. Right. Here you have deception, secreting to a place
       not likely to be found. Okay. She's worried. He's becoming agitated that
       she's not giving in to his advances in the car. He starts kissing on her
       neckand she'spushing away, and he slaps her, and she ispushing away
       and he punches her. All right. Maybe he pulls her pants down and he
       touches her. Okay. And she pushes away, she opens the door and she
       runs, and she calls the cops. So you have contact, right, with her sexual
       organ. You have aggravated sexual assault You have aggravated
       kidnapping. Let's assume for the moment that those set of facts meet the
       elements of that crime. Now, that man has never before ever committed
       any crime. He's young. He has a job. He's remorseful. Probation is ten
       years, fines, classes, course work, intensive supervision. He's a
       candidate. A good one. And it is available to him. Is there anybody here
       under those hypothetical facts that would not consider probation?^^


This question was not improper.^' The voir dire record's totality reflects that the
prosecution explained that the veniremember should have an open mind and consider

all of the evidence.


       Appellant asserts the question allowed by the trial judge was a commitment

question, which propounded facts that were unnecessary to a proper question as to

the juror's ability to consider the full punishment range in a case. Appellant further

objects to the italicized facts in the State's hypothetical as unnecessary to reach the

stated question. The facts in this cause are drastically different than those espoused

in the State's hypothetical.



 2 RR 120-122. Emphasis as reflectedin Appellant's brief,pg. 8.
 See Standefer, 59 S.W.3d at 180-82.
 Appellant's brief, pg. 8.

                                                                               Page 6
        Prior to the assault,                   and Montoya were unknown to each other.^'*

Montoya picked M.A. up from the side of the interstate and offered to help her

retrieve gas for her vehicle.^^ Instead oftaking M.A. to agas station, Montoya pulled
over near a secluded underpass in a construction yard and M.A. attempted to run

away. M.A. was assaulted, dragged back into the vehicle and forced to perform oral

sex on Montoya.^^ Montoya then penetrated M.A.'s sexual organ with his penis.^^
M.A. reached for a beer bottle in the truck and struck Montoya over the head.^^ Both

M.A. and Montoya exited the vehicle and Montoya threw M.A.'s stuff, including her

cell phone, on the ground at her feet and left.^'^ M.A. then called the police.^'
        The State's hypothetical jury question falls far short of attempting to commit a

veniremember to consider the minimum sentence based on specific evidentiary facts.

Therefore, thetrial court didnot abuse its discretion as this question      was     not an

improper commitment question.^^




  M.A. is a pseudonym used for the victim in this cause.

^^3RR181.
^^3RR181.
" 3 RR 184-191.
  3 RR191-193.
  3 RR195-196.
  3 RR 196-202.
^'3RR203.
  See Standefer, 59 S.W.3d at 180-82.

                                                                                    Page 7
         Even if the trial court abused its discretion by allowing the State's improper

commitment question, the error is subject to a harmless error analysis.^^ The standard

of harm set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure is the

proper test to determine whether a defendant has been harmed by an improper

commitment question.^'^ In determining harm, appellate courts "assess the potential
harm of the State's improper commitment questioning by focusing on whether a

biased juror—one who had explicitly or implicitly promised to prejudge some aspect

of the case because of the State's improper questioning—actually sat on the jury."^^

The reviewing court must ultimately determine whether the jury as a whole, or any

specific juror, was "poisoned" by the State's improper commitment questions on a

legal or fact issue important to theverdict.^^

         In determining whether the State's improper commitment questions to the

venire panel were harmfiil, appellate courts might consider the following factors;

        1) whether the questions were unambiguously improper and attempted
        to commitone or more venire members to a specific verdict or course of
        action;
        2) how many, if any, venire members agreed to commit themselves to a
        specific verdict or course of action if the State produced certain
        evidence;


  Gonzalesv. State, 994 S.W.2d 170,171 (Tex. Crim. App. 1999).
  Sanchez v. State, 165 S.W.3d 707, 713 (Tex. Crim. App. 2005); see TEX. R. APP. P. 44.2(b) (inquiiy is
whether defendant's substantial rights were affected by error); see also Woods v. State, 152 S.W .3d 105,
109-110 (Tex. Crim. App. 2004) ("A substantial ri^t is affected when the error has a substantial and
injurious effect or influence in determining thejury's verdict.").
   Sanchez, 165 S,W.3d at 713.
''Id.

                                                                                                Page 8
       3) whether the venire members who agreed to commit themselves
       actually served on the jury;
       4) whether the defendant used peremptory challenges to eliminate any
       or all of those venire members who had committed themselves;
       5) whether the defendant exhausted all of her peremptory challenges
       upon those venire members and requested additional peremptory
       challenges to compensate for their use on improperly committed venire
       members;
       6) whether the defendant timely asserted that a named objectionable
       venire member actually served on the jury because she had to waste
       strikes on the improperly committed jurors; and
       7) whether there is a reasonable likelihood that the jury's verdict or
       course of action in reaching a verdict was substantially affected by the
       State's improper commitment questioning during voir dire?^

Here, there is nothing in the record to indicate whether any identifiable venire

members explicitly or implicitly agreed to commit themselves to a specific verdict or

course of action as a result of the purported improper commitment question. Thus,

there is no way to know whether that venire member was struck for cause or

peremptorily, or whether he or she was chosen to sit on the jury. Therefore, the

record does not show that an objectionable venire member actually served on the

jury. In addition, the record is silent as to whether Montoya exhausted all of his

peremptory challenges. It does not show that Montoya requested more peremptory

challenges. Accordingly, based on the record, error, if any, did not affect Montoya's

substantial rights. Error, if any, is harmless. Montoya's issue one claim is meritless.




                                                                                  Page 9
                  STATE'S RESPONSE TO POINT OF ERROR TWO


        EVIDENCE IS SUFFICIENT FOR A RATIONAL TRIER OF FACT
        TO HAVE FOUND VICTIM WAS RELEASED IN AN UNSAFE
        PLACE.

        Sufficiency ofEvidence Standard ofReview

        Due process requires the State to prove beyond a reasonable doubt every

element of the crime charged.^^ In Texas, the Jackson standard is the only standard
apphed when courts are reviewing sufficiency of evidence claims.^^ Under the

Jackson standard appellate courts:

        (1) view all the evidence in the light most favorable to the verdict to
            determine whether any rational trier of fact could have found the
            essential elements of the crime beyond a reasonable doubt, and
        (2) assume that thejury resolved conflicts in the testimony, to weigh the
             evidence, and to draw reasonable inferences from basic facts to
             ultimate facts,'*"

        The appellate court's "role on appeal is restricted to guarding against the rare

occurrence when a factfmder does not act rationally[;]... [it] will uphold the verdict

unless a rational factfinder must have had reasonable doubt as to any essential

element."^* There must be an objective basis in the record in order to say that the



  Jackson v. Virginia, 443 U.S. 307 (1979).
  See Brooksv. State, 323 S.W.3d 893,912 (Tex. Crim. App. 2010).
  Lopez V. State, 03-11-00086-CR, 2013 WL4487555 (Tex. App.—^Austin Aug. 15, 2013, no.pet. h.) (citing
Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009) (stating that under the Jackson standard, "it is
thejury's duty 'to resolve conflicts in the testimony, to weighthe evidence, and to drawreasonable inferences
from basic facts to ultimate facts").
  Laster, 275 S.W.3d at 522.


                                                                                                  Page 10
great weight and preponderance of the evidence contradicts the jury's verdict.'^^

Because the jury is the sole judge of a witness's credibility, and the weight to be

given the testimony, it may choose to believe some testimony and disbelieve other

testimony.'^^ Where testimony at trial definitively favors or contradicts the jury's
verdict, the jury's credibility determination is paramount.'^'^ Therefore, a decision is

not manifestly unjust solely because a court of appeals would have resolved the

conflicting evidence in a different way."^^

       The jury alone decides whether to believe testimony and how to resolve any

conflicts or inconsistencies in the evidence."^^ Several factors might be considered in
determining whether the place in question was safe:

(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 thelocation or surrounding neighborhood."^^


 Watson V. Stale, 204 S.W.3d404,417 (Tex. Crim. App. 2006).
 Margraves v. State, 34 S.W.Sd 912, 919 (Tex. Crim. App. 2000).
 Watson, 204 S.W.Sd at 417.
 Id.
 Mosley v. State, 983 S.W.2d 249,254 (Tex. Crim. App. 1998).

                                                                                Page 11
Factors other than the seven listed may also be considered, as this list includes merely

nonexclusive aids that may be considered to guide determination under the totality of

the circumstances of each case whether the place at which the complainant was

released was "safe.""^^ For example, the age ofthe complainant may be significant, or
other factors such as the competency of the complainant or whether the complainant

has a physical disability may be significant."^^

Analysis: Evidence sufficient to supportjury's unsafe placefinding

          Sufficient evidence was presented such that a rational trier of fact could have

found victim was left in an unsafe place.

The time of day: M.A. left work in Buda, Texas around 1:15am, travelling towards

her home in New Braunfels, Texas. The Courts have found that this time of day is not

safe.^^

Climatic conditions: It was a cold February evening and M.A. was wearing her work

polo and ajacket.^' Further, M.A. had her clothes torn during the violent assault.^^
The remoteness of the location: M.A. ran out of gas but was able to pull her car to

the roadway shoulder somewhere on the interstate north of San Marcos, Texas.^^

  Williams v. State, 718 S.W.2d 772, 774 (Tex. App.—Corpus Christi 1986), rev'd on other grounds, 851
S.W.2d 282 (Tex. Crim. App. 1993).
  Butchery. State, 454 S.W.Sd13 (Tex. Crim. App. 2015).
  Id.
  3 RR 172-173. Harris v. State, 882 S.W.2d 61, 65 (Tex. App.—^Houston [14th Dist.] 1994, pet. refd)
(2:30am is not a safe time of day).
^'3RR174.
" 3 RR 187-188.

                                                                                           Page 12
M.A. attempted calling friends and family for help to no avail.^"^ M.A. had no choice

but to leave her car and attempt to walk down the interstate to find a gas station in the

middle ofthe night.^^ "[M.A.] knew there wasn't one close by, probably for another
two exits or so."^^ "[Montoya] offered a ride to a gas station, because there wasn't a
gas station around, and it was cold out."^^

The character of the location or surrounding neighborhood: M.A. affirmed that

there were no spotlights or streetlights in the area where Montoya picked her up.^^
Montoya then drove M.A. to an underpass below the interstate and parked in "a

space onthe underpass, where they have, like, the highway bricks."^^

Theproximity of authorities or persons who could aid or assist: After the assault,

M.A. was left at this interstate underpass, out of other motorists' view.^^ M.A. was

not able to get her phone working immediately because it was placed in airplane

mode by someone other than herself^*

The victim's condition: M.A.'s clothes were ripped.^^ She was injured, scared, and
her belongings were scattered on the pavement.^^


^^3RR177.
  3 RR 179-180.
  3 RR 179-180.
^^3RR180.
"3RR181.
^^3RR181.
  3 RR 183; State's Exhibits 2-16.
^''3RR182; State's Exhibit 1.
  3 RR 202-203.
  3 RR 187-188.


                                                                                Page 13
The victim'sfamiliarity with the location or surrounding neighborhood: Appellant

asserts M.A. was "very familiar" with the area because M.A. stated '\o]n my way to

school on the weekends, I would pick up my friend, Mindy, that lives in a mobile

home down the street from there.^"^ At best, M.A. knew of the exit and that a

neighborhood may be nearby. There is no evidence in the record to support M.A.

knew the neighborhood was directly north of her location or a less than one mile

distance approximation as asserted byAppellant.^^

        It is clear from the evidence at trial that Montoya did not leave M.A. in a safe

place. Thejury could have relied on M.A.'s testimony to ascertain whether Montoya

left her in a safe place. Therefore, the evidence is legally sufficient to support the

jury's verdict. Montoya's issue two claim is meritless.


                                         CONCLUSION

       The State's hypothetical jury question falls far short of attempting to commit a

veniremember to consider the minimum sentence based on specific evidentiary facts.

Therefore, the trial court did not abuse its discretion as this was not an improper

commitment question.^^ If this Court finds an abuse of discretion, error, if any, is
harmless. It is clear from the evidence at trial that Montoya did not leave M.A. in a


  3 RR 187-188; 197-201; State's Exhibits 17-34,43A-F, 44,45.
"3RR182.
  Appellant's Brief, pg. 16.
  See Standefer, 59 S.W.3d at 180-82.

                                                                               Page 14
safe place.   The jury could have relied on M.A.'s testimony to ascertain whether

Montoya left her in a safe place. Therefore, the evidence is legally sufficient to

support the jury's verdict,

                                      Respectflillvg^mitted,



                                        iaR^rsKine
                                      Assistant Criminal District Attorney
                                      712 South Stagecoach Trail, Suite 2057
                                      San Marcos, Texas 78666
                                      State Bar No. 24074182
                                     Attorney for the State of Texas
                                      brian.erskine@co.hays.tx.us




                                                                          Page 15
                        CERTIFICATE OF COMPLIANCE
                         WITH TEX. R, APR P., RULE 9.4

       I certify that this brief contains 2,350 words, exclusive of the caption, identity

of parties and counsel, statement regarding oral argument, table of contents, index of

authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service, certification,

certificate of compliance, and appendix.




                                        ^-^mn^rskin^
                                         Asst. Criminal District Attorney




                                                                                 Page 16
                          CERTIFICATE OF SERVICE

      I certifythat a true copy of the foregoing brief has been email-delivered to:

Ariel Payan via email:    arielpayan@hotmail.com

on this the 13th day of June, 2016.




                                          fan Erksine
                                       Asst. Criminal District Attorney




                                                                              Page 17
