i          i      i                                                                 i     i      i




                                  MEMORANDUM OPINION

                                          No. 04-09-00576-CR

                                          Manuel RANGEL,
                                             Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                      From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-0985
                               Honorable Sid L. Harle, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: June 2, 2010

AFFIRMED IN PART; VACATED IN PART

           Manuel Rangel appeals his conviction on six counts of aggravated sexual assault and three

counts of aggravated kidnapping. In his sole issue, Rangel asserts his right to be free from double

jeopardy was violated when he was convicted of three counts of aggravated kidnapping arising out

of a single criminal transaction involving a single victim. The State concedes the indictment

erroneously alleged alternate aggravating factors as three separate counts of aggravated kidnapping.

We agree, and vacate the judgments on two of the aggravated kidnapping counts.
                                                                                       04-09-00576-CR



                           FACTUAL AND PROCEDURAL BACKGROUND

         The charges against Rangel arose out of an encounter with a woman at a party on the night

and early morning of November 9-10, 2007. Rangel and Valerie Fuentes met at a nightclub, and

later left the club together and went to an after-party at Rangel’s friends’s house. Rangel offered to

drive Fuentes home and they left at approximately 3:30 a.m. As Rangel was driving Fuentes home,

he turned into a wooded area, telling Fuentes he wanted to talk. When Fuentes stated she wanted

to go home, Rangel became violent, punching her and beating her with his belt. Rangel threatened

to kill Fuentes if she did not do what he wanted. Rangel then forced Fuentes to remove her clothes

and sexually assaulted her. When Fuentes tried to run away, Rangel caught her and placed his belt

around her neck like a leash before forcing her back into the car. Rangel drove to his apartment,

forcing Fuentes to perform oral sex on him as he drove; he again threatened to kill her if she stopped.

Once in his apartment, Rangel again sexually assaulted Fuentes; he then laid back and passed out.

Fuentes was able to put on her clothes and leave the apartment, running to a nearby Shell gas station

where she locked herself in the restroom. A customer called 911, and when police arrived Fuentes

directed them to the unlocked apartment where they found Rangel passed out naked on the bed.

Fuentes identified Rangel as her attacker.

       Rangel was indicted on six counts of aggravated sexual assault and three counts of

aggravated kidnapping arising out of the events on November 10, 2007. At trial, Rangel testified

that Fuentes was the sexual aggressor and they had rough consensual sex several times that night–

at the party, in the woods, and at his apartment. Rangel stated Fuentes became angry when she

realized he had a girlfriend. The jury convicted Rangel on all nine counts. The court assessed




                                                  -2-
                                                                                       04-09-00576-CR



punishment at twenty years’ imprisonment on each count, to be served concurrently. Nine separate

judgments were entered. Rangel timely appealed.

                                             ANALYSIS

       On appeal, Rangel only challenges his conviction on the three counts of aggravated

kidnapping. He contends that he has received multiple punishments for the same offense in violation

of the Double Jeopardy Clause contained in the state and federal constitutions. See U.S. CONST .

amends. V, XIV; TEX . CONST . art. I, § 14; Illinois v. Vitale, 447 U.S. 410, 415 (1980); Lopez v.

State, 108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003). A double jeopardy claim may be raised for

the first time on appeal if: (1) the undisputed facts show the double jeopardy violation is clearly

apparent on the face of the record; and (2) enforcement of the rules of procedural default would serve

no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). The State

concedes that those requirements are met in this case, and we agree.

       The two basic elements of aggravated kidnapping are (1) intentionally or knowingly

abducting another person, i.e., kidnapping, and (2) commission of an aggravating factor. Laster v.

State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). The elements of kidnapping are that the

defendant intentionally or knowingly restrained the victim with the intent to prevent liberation by

using or threatening to use deadly force. Padgett v. State, 683 S.W.2d 453, 456 (Tex. App.—San

Antonio 1983, no pet.). A kidnapping rises to the level of an aggravated offense when the abduction

is committed with either the specific intent to accomplish one of six purposes, or the use or

exhibition of a deadly weapon during the offense. TEX . PENAL CODE ANN . § 20.04(a), (b) (Vernon

2003); Laster, 275 S.W.3d at 521. The six specific purposes are: (1) to hold the victim for ransom

or reward; (2) to use the victim as a shield or hostage; (3) to facilitate the commission of a felony,


                                                 -3-
                                                                                        04-09-00576-CR



or flight after the attempt or commission of a felony; (4) to inflict bodily injury on the victim, or

violate or abuse the victim sexually; (5) to terrorize the victim or a third person; or (6) to interfere

with the performance of a governmental or political function. TEX . PENAL CODE ANN . § 20.04(a);

Padgett, 683 S.W.2d at 457 (aggravating circumstance under section 20.04(a) which raises level of

culpability from kidnapping to aggravated kidnapping is presence of one of six specific intents at the

time of abduction).

       Aggravated kidnapping is a result-oriented offense, with the ultimate issue being the

abduction of the victim, i.e., the result. Phillips v. State, 597 S.W.2d 929, 936 (Tex. Crim. App.

1980); Gonzales v. State, 270 S.W.3d 282, 288 (Tex. App.—Amarillo 2008, pet. ref’d). Therefore,

the “allowable unit of prosecution” for an aggravated kidnapping offense correlates to each victim

abducted; in other words, the State may prosecute a person for each victim kidnapped, not for the

number of aggravating factors that may be present. Gonzales, 270 S.W.3d at 288; Alvarez v. State,

No. 04-08-00537-CR, 2009 WL 2045204, at *2-3 (Tex. App.—San Antonio July 15, 2009, pet.

dismissed) (mem. op., not designated for publication) (adopting the reasoning in Gonzales). It is

well established that the State may plead alternate “manner and means” of committing a single

offense when the statute provides for different modes or means of committing the offense, and jury

unanimity is not required on any specific “manner and means.” Willis v. State, 34 Tex. Crim. 148,

29 S.W. 787, 788 (1895); Jefferson v. State, 189 S.W.3d 305, 312-13 (Tex. Crim. App. 2006). Thus,

when the State alleges one victim and seeks a single conviction for aggravated kidnapping, but

alleges several alternate aggravating factors in the indictment, the jury can consider all the

aggravating factors alleged and return a general verdict of guilty for the offense of aggravated

kidnapping. Gonzales, 270 S.W.3d at 288-89; see Franklin v. State, 606 S.W.2d 818, 821 (Tex.


                                                  -4-
                                                                                                     04-09-00576-CR



Crim. App. 1978); see also Dickson v. State, Nos. 02-08-00050-CR & 02-08-00051-CR, 2009 WL

976019, at *7 (Tex. App.—Fort Worth April 9, 2009, pet. ref’d) (not designated for publication).

         Here, all nine counts1 alleged in the indictment arose out of one continuous criminal episode

between Rangel and Fuentes on November 10, 2007. The face of the indictment clearly shows that

Counts VII, VIII, and IX2 allege a single offense of aggravated kidnapping committed against a

single victim on November 10, 2007, but with three alternate aggravating factors. Specifically, the

three counts allege Rangel intentionally and knowingly abducted Fuentes with the specific intent to

violate and abuse her sexually (Count VII), to inflict bodily injury on her (Count VIII), and to

terrorize her (Count IX). See TEX . PENAL CODE ANN . § 20.04(a)(4), (5). The three counts also

allege another alternate aggravating factor–that Rangel used or exhibited a deadly weapon during

commission of the offense. See id. § 20.04(b). As the State concedes, Rangel’s indictment

erroneously labeled the allegations of different aggravating factors, i.e., alternate manners and means

of committing a single aggravated kidnapping offense, as separate counts instead of separate

paragraphs of a single count. See Gonzales, 270 S.W.3d at 288 (indictment may contain as many

paragraphs as necessary to allege the various manner and means of committing one alleged offense);

Fowler v. State, 240 S.W.3d 277, 280 (Tex. App.—Austin, 2007, pet. ref’d) (generally, a “count”

charges the offense itself, and a “paragraph” is the part of a count that alleges the method of

committing the offense); Watkins v. State, 946 S.W.2d 594, 601 (Tex. App.—Fort Worth 1997, pet.

ref’d) (the substance of the allegation in indictment, rather than the label attached, determines


         1
         … The first six counts of the indictment form the basis for Rangel’s convictions for aggravated sexual assault
and are not challenged on appeal.

         2
          … The indictment mistakenly used the wrong Roman numeral for the ninth count, listing it as “Count VIX”
instead of Count IX. We will refer to the ninth count using its proper numbering as “Count IX.”

                                                          -5-
                                                                                      04-09-00576-CR



whether an allegation is a count or a paragraph). Given the error in the indictment, we must next

determine the appropriate remedy on appeal.

       As a result of the error in the indictment, instead of being convicted of and punished for a

single count of aggravated kidnapping, Rangel was convicted of three counts of aggravated

kidnapping and received three separate punishments of 20 years each, although the sentences run

concurrently. The parties agree that Rangel is entitled to relief and that the proper remedy for this

type of double jeopardy violation is to vacate the judgments on two of the aggravated kidnapping

“counts.” Recognizing that all three “counts” of aggravated kidnapping are equally serious first

degree felonies for which the same 20-year sentence was imposed, Rangel and the State agree that

the judgments on the last two counts, “Count VIII” and “Count IX,” should be vacated. See Bigon

v. State, 252 S.W.3d 360, 372-73 (Tex. Crim. App. 2008) (when defendant is subjected to multiple

punishments for the same conduct in violation of double jeopardy prohibition, the remedy is to

affirm the conviction for the most serious offense and vacate the other convictions). We agree that

vacating the judgments on Counts VIII and IX is the appropriate remedy.

       The parties disagree as to whether the judgment on the remaining count of aggravated

kidnapping should be reformed. Rangel requests that we permit the judgment on the remaining

aggravated kidnapping count to stand as it is, reflecting a general verdict of “guilty” on Count VII.

The State requests that we reform the judgment on Count VII to reflect the jury findings on the

alternative aggravating factors in rendering three verdicts of “guilty.” See Bigley v. State, 865

S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (stating that the appellate court has power to reform

incorrect judgments). Noting that the jury returned three separate verdicts finding Rangel “guilty”

of all the alternative means of committing aggravated kidnapping, the State suggests that we “reform


                                                 -6-
                                                                                       04-09-00576-CR



the judgment on the remaining sole count of aggravated kidnapping to reflect the jury’s unanimity

on the three alternate manners and means of committing the offense by subsuming the mislabeled

‘counts’ as ‘paragraphs’ under count VII.” In support of its request, the State relies solely on

Watkins v. State, 946 S.W.2d 594, 602 (Tex. App.—Fort Worth 1997, pet. ref’d). However, Watkins

does not support the State’s position. In Watkins, the appellant argued separate verdicts should have

been returned on each of four “counts” alleging aggravated sexual assault. Id. at 600. The court

determined that each purported “count” simply alleged a different method of committing the offense,

however, and thus the four “counts” were really four “paragraphs” of one count. Id. at 601. The

court noted that improperly labeling paragraphs as counts does not transform them into “counts.”

Id. (holding that the portions of indictment that allege alternate means of committing the same

offense remain “paragraphs” regardless of the terms used in preparing the indictment). Relying on

Aguirre v. State, in which the Court of Criminal Appeals held a general verdict is proper where

different ways of committing the same offense are alleged, the Watkins court reformed the trial

court’s judgment stating, “General Verdict of Guilty Counts One, Two, Three, Four” to instead

merely reflect a general verdict of “Guilty” of aggravated sexual assault. Id. at 601-02 (citing

Aguirre v. State, 732 S.W.2d 320, 326-27 (Tex. Crim. App. 1987)).

       In Rangel’s case, the jury returned three separate verdicts finding him guilty of three “counts”

of aggravated kidnapping, and three separate judgments reflecting a general verdict of “guilty” were

entered. As alleged in the indictment, and submitted in the jury charge, each of the three “counts”

contained two, alternative aggravating factors submitted in the disjunctive–use of a deadly weapon,

or possession of a particular specific intent. See TEX . PENAL CODE ANN . § 20.04(a), (b). Based on

the return of a general verdict, we are unable to determine which theory formed the basis of the jury’s


                                                  -7-
                                                                                       04-09-00576-CR



verdict; indeed, jury unanimity as to which particular aggravating factor existed was not required

under a general verdict. See Jefferson, 189 S.W.3d at 312-13; Aguirre, 732 S.W.2d at 326; see also

Gonzales, 270 S.W.3d at 288-89 (holding that where indictment alleged aggravated kidnapping of

one victim with four different aggravating factors, jury unanimity was not required as to the

aggravating factor and general verdict of guilty was appropriate). Therefore, it would not be

appropriate to reform the judgment on Count VII to reflect jury findings as to a particular

aggravating factor. The judgment on the remaining count of aggravated kidnapping, Count VII, is

correct in that it simply reflects a general verdict of guilty.

        Accordingly, based on the foregoing analysis, the trial court’s judgments on Counts VIII and

IX are vacated, and the judgments on Counts I through VII are affirmed.



                                                         Phylis J. Speedlin, Justice



DO NOT PUBLISH




                                                   -8-
