                             NUMBER 13-16-00469-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ROBERT GARCIA,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas.


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Longoria and Hinojosa
               Memorandum Opinion by Justice Longoria

      Appellant Robert Garcia was convicted of one count of continuous family violence,

one count of assault by choking, and two counts of aggravated kidnapping. See TEX.

PENAL CODE §§ 20.04, 22.01, 25.11 (West, Westlaw through 2017 1st C.S.). Garcia

argues on appeal that: (1) the trial court erred by allowing irrelevant testimony; (2) the

trial court erred by denying instructions on lesser-included offenses; and (3) his sentence

constituted a double-jeopardy violation. We affirm.
                                       I. BACKGROUND

       Around 3:00 a.m. on July 10, 2015, Garcia drove to the apartment of his ex-

girlfriend, Dali Chapa. Garcia learned from Chapa’s roommate, Ashly Gutierrez, that

Chapa was in her room with several of her friends. According to Chapa, she had just

arrived home from a sports bar about thirty minutes prior to Garcia arriving; at that time,

she felt nauseated and began vomiting in her bathroom. Gutierrez testified that upon

seeing two men in her apartment and discovering that her bathroom was locked, Garcia

kicked down the door. Gutierrez testified that she heard slapping, yelling, and something

hitting the wall. Chapa testified that Garcia grabbed her by the hair and repeatedly

slapped her and screamed in her face. He then proclaimed, “we’re leaving,” to which

Chapa replied, “no, I’m not going to leave. I don’t want to leave.” Chapa claims that

Garcia forcefully escorted her out of the apartment by the back of her neck, and then, with

two hands on her hair, proceeded to pull her down six flights of stairs. One of Chapa’s

friends at the apartment attempted to intervene, but Garcia punched her. Chapa resisted

at the bottom of the stairs but Garcia kicked her repeatedly until she entered the backseat

of his Cadillac. Garcia engaged the vehicle’s child locks so that Chapa couldn’t leave.

There were two other passengers inside the vehicle. Chapa claims that Garcia hit her

inside the vehicle and then drove to a Red Roof Inn. The other two passengers left shortly

after arriving at the Red Roof Inn. Even though they did not check in, Garcia slapped

Chapa some more in the bathroom at the Red Roof Inn and then told her to get back to

the vehicle. Chapa tried to escape from the vehicle but was unable to do so. She testified

“[h]e tries to reach – like acts like he’s going to reach under the seat to grab something.

He’s like threatening that nobody will find me and like all different kind of stuff, just telling

me ugly stuff.” Chapa eventually fell asleep; Garcia parked the car at a Stripes gas station


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and also feel asleep. When she awoke, Chapa felt disoriented and asked Garcia to take

her home, which he did. Chapa testified that she waited two days to seek medical

treatment because she was afraid.

      After the July 10 incident, Chapa decided to move to a new apartment complex.

However, she maintained an open line of communication with Garcia. At 11:00 a.m. on

August 4, 2015, Chapa reached out to Garcia and asked him to drive her from the Holiday

Inn to her new apartment. When he arrived to pick her up, Chapa realized that Sara

Lopez was driving the car.      Chapa and Garcia bickered about Lopez’s presence

throughout the drive to the new apartment. Garcia exited the vehicle to continue to

confront Chapa. Chapa exclaimed, “Fine. I’m done. . . . No more,” to which Garcia replied,

“No. . . . You’re not going to leave me.” He then pulled her hair until she complied and

re-entered the vehicle. Chapa sat in between a child seat and Garcia in the back of the

car. Garcia instructed Lopez to drive to a hotel because “I’m going to tie this b**** up.”

Garcia then punched Chapa with a closed fist, kneed her in the mouth, and began choking

Chapa as he exclaimed, “I don’t give a f***, b****. Die. Choke on it. Die.”

      Once they arrived at a hotel, Garcia instructed Lopez to reserve a room. When

she explained that she didn’t have an ID, Garcia took Chapa’s ID from her purse and

gave it to Lopez. As Chapa and Garcia waited in the car while Lopez reserved a room,

Garcia quelled her screaming by covering her mouth and telling her to “Shut the f*** up.”

Lopez returned after a while and informed Garcia that a room would not be available until

3:00 p.m., at which point Garcia directed her to “drive around town until then.” Garcia

began rummaging through Chapa’s cell phone. As Lopez continued to drive, Chapa

noticed a police vehicle up ahead. She opened the car door, leaned out of the child car

seat, and attempted to wave at the police officer’s for assistance. Chapa claims that


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Garcia reached towards her saying, “no, don’t do it.” She does not remember if he pushed

her, but Chapa fell out of the vehicle and landed on her head. She received emergency

treatment at the scene.

          Garcia faced a four-count indictment in a jury trial that began on June 14, 2016.

Each count also included enhancement paragraphs alleging habitual felony offender

status.     On June 16, the jury convicted Garcia of all four counts as alleged in the

indictment.        The jury assessed punishment at thirty years for each count, to run

concurrently, in the Institutional Division of the Texas Department of Criminal justice. This

appeal ensued.

                                     II. LOPEZ’S TESTIMONY

          In his first issue, Garcia argues it was an error to admit Sara Lopez’s testimony.

The State responds by arguing that Garcia’s first point is multifarious; in the alternative,

the State contends there is no reversible error because Lopez’s testimony was relevant

and any potential error was harmless.

          The State originally intended to call Lopez as a witness, but the trial court

appointed an attorney to advise her based on her apparent participation in some of the

criminal acts alleged against Garcia. Outside the presence of the jury, Lopez decided not

to testify and invoked her Fifth Amendment right against self-incrimination. However, the

trial court gave the State the option of calling Lopez to the stand anyway to exercise her

Fifth Amendment right in front of the jury. After she invoked her Fifth Amendment right,

the following exchange occurred:

          State:         I’m going to ask you one question not relevant to any of the
                         incidences.

          Defense:       Judge, I’m going to object to relevance. He himself is saying
                         it’s not relevant.


                                                4
       Court:        Let me hear the question.

       State:        It goes to state of mind, Judge.

       Court:        All right. Go ahead. I need to hear the question first.

       State:        Are you scared of the defendant?

       Defense:      Judge, I’m going to object to relevance.

       Court:        Overruled.

       State:        You can answer.

       Lopez:        Yes.

A. Standard of Review and Applicable Law

       A trial court’s ruling regarding the admissibility of evidence is reviewed for abuse

of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). As long as

the trial court’s decision was within the zone of reasonable disagreement and was correct

under any theory of law applicable to the case, it will be upheld. Winegarner v. State, 235

S.W.3d 787, 790 (Tex. Crim. App. 2007). The Rules of Evidence define relevant evidence

as any evidence that has a tendency to make a fact more or less probable than it would

be without the evidence and that fact is of consequence in determining the action. TEX.

R. EVID. 401. Upon finding a non-constitutional error, the reviewing court will reverse only

upon a finding that the error affected the accused’s substantial rights. Barshaw v. State,

342 S.W.3d 91, 94 (Tex. Crim. App. 2011). Substantial rights are not affected if, based

on the record as a whole, this Court has a fair assurance that the erroneous admission of

evidence had either no influence or only a slight influence on the jury. Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002). In making this assessment, this Court considers

everything in the record, the nature of the evidence supporting the verdict, the character

of the alleged error, and how it relates to other evidence in the record. Id. The presence


                                             5
of overwhelming evidence supporting the conviction can be a factor in the evaluation of

harmless error. See id. at 356.

B. Discussion

        It is true that we may disregard a multifarious point, but we also have the option to

review such multifarious issues if we are able to “able to determine, with reasonable

certainty, the alleged error about which the complaint is made.” Stults v. State, 23 S.W.3d

198, 205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). Thus, we will analyze whether

it was an error to admit Lopez’s testimony.

        Garcia contends that the law has long prohibited allowing witnesses to exercise

their Fifth Amendment rights in front of the jury.1 See U.S. v. Ritz, 548 F.2d 510, 521 (5th

Cir. 1977); Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986). Additionally,

Garcia argues that Lopez’s testimony that she is afraid of him has no relevance to any of

the four indicted offenses, especially because she refused to be cross-examined about

her fear. The State argues that Lopez’s testimony about being afraid of Garcia was

relevant to her state of mind. However, state of mind testimony is a hearsay exception,

and Garcia did not raise any hearsay objections. See TEX. R. EVID. 803(3). The State

additionally argues that Lopez’s fear testimony is relevant “contextual evidence” regarding

a chain of questions Garcia’s counsel directed at Chapa. These questions, argues the

State, left the false impression that Lopez was just as guilty as Garcia and that she should

be charged alongside him. However, Lopez’s complacency in driving around is not a fact

of consequence in this case. See TEX. R. EVID. 401. Furthermore, we note that most of

the cases in which testimony concerning a witness being afraid of the defendant is found


         1 Even though Garcia concedes that he did not object to Lopez’s testimony on Fifth Amendment

grounds before the trial court and thus failed to preserve error, Garcia argues that this is still relevant to the
discussion of the harm caused by erroneously admitting her irrelevant testimony. As noted above, Garcia
did raise a relevancy objection to the trial court.
                                                        6
to be relevant involve murder. See Garcia v. State, 246 S.W.3d 121, 132 (Tex. App.—

San Antonio 2007, pet. ref'd); Amunson v. State, 928 S.W.2d 601, 605 (Tex. App.—San

Antonio 1996, pet. ref'd); Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996) (en

banc).     We conclude that the trial court abused its discretion in allowing Lopez’s

testimony. Cameron, 241 S.W.3d at 19.

         However, even though it was an error to allow Lopez’s testimony, we conclude that

any such error was harmless upon considering everything in the record and how Lopez’s

testimony related to other evidence and the presence of other overwhelming evidence.

See Motilla, 78 S.W.3d at 356. There was overwhelming testimony from Chapa and

Gutierrez to support the convictions. Garcia does not deny the events themselves;

instead, as we discuss further below, his main argument is that he was entitled to an

instruction on lesser-included offenses.              In addition, Lopez’s testimony was never

mentioned again during the trial and the State even minimized her testimony during the

closing argument: “She invoked her Fifth Amendment right not to incriminate herself.

And then she said she was scared of the defendant. And then invoked her right to remain

silent at that point on. So you didn’t hear much from her. That’s all you heard, really,

from Mrs. Lopez.” Even though the State referenced the only testimony that Lopez gave,

which is that she’s scared of Garcia, the State downplayed the importance of her remarks

and glossed over Lopez’s comments without pulling any further attention to them. In the

end, even if her testimony had been excluded, there was an overwhelming amount of

support for his conviction.2 Thus, even though it was an error to allow Lopez to testify,

any resulting error was harmless. See Cameron, 241 S.W.3d at 19.


        2 We find the admission of Lopez’s testimony harmless, even considering any potential error of

allowing Lopez to exercise her Fifth Amendment rights in front of the jury. There was so much evidence to
support Garcia’s conviction that we have a fair assurance that any error either had no effect or only a slight
influence on the jury. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
                                                      7
                                 III. LESSER-INCLUDED OFFENSES

        In his second issue, Garcia argues that the trial court erred by denying his request

for jury instructions on the lesser-included offenses of unlawful restraint and kidnapping

for counts three and four.3

A. Standard of Review and Applicable Law

        A trial court may instruct the jury on a lesser-included offense if (1) the offense in

question is a lesser-included offense under article 37.09 of the Texas Code of Criminal

Procedure and (2) there is some evidence that would permit a rational jury to find that the

defendant is not guilty of the greater offense but is guilty of the lesser-included offense.

Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). It is not enough that

the jury may disbelieve crucial evidence pertaining to the greater offense; there must be

some evidence directly germane to the lesser included offense for the fact finder to

consider before an instruction on a lesser included is warranted. Harner v. State, 997

S.W.2d 695, 702 (Tex. App.—Texarkana 1999, no pet.). Anything more than a scintilla

of evidence may be sufficient to entitle a defendant to a lesser charge. Hall v. State, 225

S.W.3d 524, 528 (Tex. Crim. App. 2007).

        A person commits the offense of kidnapping if he intentionally or knowingly abducts

another person. TEX. PENAL CODE ANN. § 20.03(a) (West, Westlaw through 2017 1st

C.S.). A person commits the offense of aggravated kidnapping if he intentionally or

knowingly abducts another person with the intent to inflict bodily injury on him or terrorize

him. Id. § 20.04(a)(4), (5). Restrain means to restrict a person’s movements without

consent, so as to interfere substantially with the person’s liberty, by moving the person




        3Chronology notwithstanding, count three from below was for aggravated kidnapping related to the
August 4 incident and count four was for aggravated kidnapping related to the July 10 incident.
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from one place to another or by confining the person. Id. § 20.01(1)(A) (West, Westlaw

through 2017 1st C.S.). Restraint is without consent if it is accomplished by force,

intimidation, or deception. Id. § 20.01(1)(A). 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. Id. § 20.01(2)(A). A person commits the offense of unlawful restraint if he

intentionally or knowingly restrains another person.        Id. § 20.02(a) (West, Westlaw

through 2017 1st C.S.).

B. Discussion

       Garcia acknowledges that the evidence clearly supports a charge of assault and

unlawful restraint, and yet he claims that “there is simply no evidence of Garcia’s intent

to prevent Chapa’s liberation by secreting her or holding her in a place she won’t be

found.” Instead, Garcia argues that the evidence merely shows “an angry boyfriend or

ex-boyfriend who overreacted.” Thus, he argues the trial court should have instructed the

jury on the lesser-included offenses of assault and unlawful restraint. The State does not

dispute that unlawful restraint and kidnapping are lesser-included offenses of aggravated

kidnapping, but the State argues that there is no evidence that, if believed, would negate

the aggravating elements that raise the lower offenses to the greater offenses. See

Rousseau, 855 S.W.2d at 672. We agree with the State.

       Concerning count four, Garcia argues there is no evidence to support aggravated

kidnapping because the record does not indicate that Garcia abducted Chapa with the

intent to inflict bodily injury or terrorize her. Additionally, Garcia argues the jury could

interpret the evidence as mere unlawful restraint as opposed to aggravated kidnapping

because Garcia drove Chapa back home when she requested. However, we find these

arguments meritless.


                                              9
       The uncontroverted evidence provides that on July 10, 2015, Garcia kicked in

Chapa’s bathroom door and repeatedly slapped her and screamed at her. When Chapa

protested to leaving, Garcia forcibly removed from the apartment, and then dragged her

by the hair down six flights of stairs. Garcia repeatedly kicked Chapa until she complied

and entered his vehicle. Before closing the door, Garcia engaged the child safety lock to

ensure Chapa could not escape. Chapa additionally testified that Garcia threatened her

by claiming that “nobody will find [her].” Thus, Garcia’s intent to secrete Chapa is

demonstrated by removing her from the apartment to his car, turning on the child lock,

and isolating her in a motel and his car. Garcia’s intent to secrete Chapa is further

evidenced by his decision to drive around the city until she fell asleep. See Fann v. State,

696 S.W.2d 575, 576 (Tex. Crim. App. 1985) (holding that victims in car driven in shifting

path through city streets sufficient evidence of keeping victims isolated from being found

or receiving assistance).

       The record sufficiently demonstrated Garcia’s intent to inflict bodily injury by his

actual infliction of bodily injury while he isolated Chapa: (1) in her bathroom; (2) in the

car on the way to the motel; and (3) in the motel’s bathroom. Similarly, Garcia’s intent to

terrorize her is sufficiently demonstrated by his threat that nobody would find her. Thus,

nothing in the record negates the elements that raise unlawful restraint to kidnapping and

kidnapping even further to aggravated kidnapping. See Harner, 997 S.W.2d at 702.

       Concerning the incident on August 4, Garcia concedes that the testimony and

injuries supporting count three are “more egregious” than count four, but nevertheless

argues again that the jury could interpret the evidence as Garcia only being guilty of

unlawful restraint or kidnapping as opposed to aggravated kidnapping. Garcia bases this

claim on the evidence challenging Chapa’s credibility, the evidence of reciprocal jealousy,


                                            10
and the fact that Chapa was the one who initiated the contact with Garcia on August 4.

However, we once again disagree with Garcia.

       The record sufficiently established Garcia’s intent to secrete Chapa by telling her

that he would tie her up alone in a hotel and when he covered her mouth to quell her

screams while telling her to “shut the f*** up.” In addition, Garcia instructed Lopez to drive

around town until a room at the hotel became available at 3:00 p.m. See Fann, 696

S.W.2d at 576; Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim. App. 1980) (holding

that driving victim around in car on city streets for an hour sufficient evidence of secreting

and holding victim in place not likely to be found); see also SanTellan v. State, 939 S.W.2d

155, 162 (Tex. Crim. App. 1997) (en banc) (“[I]f the actor intended at any time during the

restraint to secrete or hold the victim in a place where she would not likely be found, the

offense is complete.”).

       The record also sufficiently established Garcia’s intention to inflict bodily harm on

Chapa and his intention to terrorize her. The uncontroverted evidence established that

Garcia exclaimed to Chapa, “You’re not going to leave me.” Garcia then pulled on

Chapa’s hair until she acquiesced and entered the vehicle. Chapa testified that he

commanded Lopez to drive to a hotel because “I’m going to tie this b**** up.” The

uncontroverted evidence further established that he punched her with a closed fist, kneed

her in the mouth, and choked her, saying, “I don’t give a f***, b****. Die. Choke on it.

Die.” Once again, Garcia’s intent to inflict bodily injury is demonstrated by his actual

infliction of bodily injury numerous times throughout this incident. And he clearly intended

to terrorize her by stating that he intended to tie her up in a hotel. Thus, there is no

evidence to negate the elements that raise unlawful restraint to the greater offense of

kidnapping; likewise, there is nothing to refute the theory that raises kidnapping to the


                                             11
greater offense of aggravated kidnapping. See Harner, 997 S.W.2d at 702. We overrule

Garcia’s second issue.

                                  IV. DOUBLE-JEOPARDY

       In count one, Garcia was convicted of continuous violence against the family, with

multiple violations having allegedly occurred on July 10, 2015 and August 4, 2015. In

counts three and four, Garcia was convicted of aggravated kidnapping, having occurred

on the same dates, respectively. Thus, Garcia argues that his convictions violated

double-jeopardy because he was prosecuted twice for the same conduct: on both July

10, 2015 and August 4, 2015, a string of events led to being convicted under two different

penal sections.

A. Standard of Review and Applicable Law

       Generally, a double-jeopardy claim must be raised in the trial court to preserve the

error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App.

2000). An exception to this general rule applies if (1) the undisputed facts show the

double-jeopardy violation is clearly apparent from the face of the record and (2) the

enforcement of the usual rules of procedural default serves no legitimate state purpose.

Id. A double-jeopardy claim is apparent on the face of the trial record if resolution of the

claim does not require further proceedings for the purpose of introducing additional

evidence to support the claim. Ex parte Knipp, 236 S.W.3d 214, 216, n. 3 (Tex. Crim.

App. 2007).

       The Double-Jeopardy Clause of the United States Constitution provides no person

shall be subjected to twice having life or limb in jeopardy for the same offense. U.S.

CONST., amend. V. Generally, this clause protects against (1) a second prosecution for

the same offense after acquittal, (2) a second prosecution for the same offense after


                                            12
conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S.

161, 165 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006). “When

the same act or transaction violates two different penal statutes, the two offenses are the

same for double-jeopardy purposes if one of the offenses contains all the elements of the

other; they are not the same if each offense has a unique element.” Duvall v. State, 59

S.W.3d 773, 777 (Tex. App.—Austin 2001, pet. ref’d) (citing Blockburger v. U.S., 284 U.S.

299, 304 (1932)).

B. Discussion

       Garcia did not preserve his double-jeopardy issue to the trial court, meaning that

he can only prevail on this issue if a double-jeopardy error is apparent on the face of the

record.   See Gonzalez, 8 S.W.3d at 643.           However, aggravated kidnapping and

continuous family violence each have unique elements: aggravated kidnapping requires

the State to prove that Garcia abducted Chapa with the intent to inflict bodily injury or

terrorize her whereas continuous family violence requires the State to prove that Garcia

intentionally, knowingly, or recklessly caused bodily injury by kicking or hitting her. See

Duvall, 59 S.W.3d at 777; TEX. PENAL CODE § 20.04(a)(4), (5); cf. Stephenson v. State,

255 S.W.3d 652, 657 (Tex. App.—Forth Worth 2008, no pet.) (finding no double-jeopardy

violation when defendant was convicted of both aggravated kidnapping and aggravated

assault). Additionally, Garcia’s two counts of aggravated kidnapping each presented

alternative means to satisfy the aggravating element: either with his intent to inflict bodily

harm upon Chapa or with his intent to terrorize her.           See TEX. PENAL CODE ANN.

§ 20.04(a)(4), (5); see also Benefield v. State, No. 02-14-00099-CR, 2015 WL 4606273,

at *2 (Tex. App.—Fort Worth July 30, 2015, pet. ref’d) (mem. op., not designated for

publication) (op. on reh’g) (holding double-jeopardy claim not clear on the face of the


                                             13
record because the jury returned a general verdict and the jury charge allowed a guilty

verdict under an alternative and non-conflicting theory). Therefore, Garcia’s double-

jeopardy claim is not clear from the face of the record. We overrule Garcia’s third issue.

                                         V. CONCLUSION

       We affirm the trial court’s judgment.


                                                                   NORA L. LONGORIA
                                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of April, 2018.




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