                                  NO. 07-01-0154-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JUNE 11, 2002

                         ______________________________


                     MICHAEL ALONDUS BALQUE, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 183RD DISTRICT COURT OF HARRIS COUNTY;

                NO. 860013; HONORABLE JOAN HUFFMAN, JUDGE

                        _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Following his plea of not guilty, appellant Michael Alondus Balque was convicted

by a jury of aggravated kidnapping, enhanced, and punishment was assessed at 31 years

confinement and a $10,000 fine. Presenting six points of error, appellant contends (1) the

evidence was factually insufficient to support his conviction where the jury’s conclusion

was clearly wrong and blatantly contrary to the record evidence on the element of
“abduction” and restraint of the complainant by secreting or holding her in a place where

she was not likely to be found; (2) the trial court abused its discretion in denying his motion

and request for an evidentiary hearing with live witness testimony instead of a “paper

hearing by affidavit” regarding his motion for new trial raising grounds of ineffective

assistance of his trial counsel; (3) the trial court committed fundamental error during the

punishment phase by failing to charge the jury on the issue of whether the complainant

was voluntarily released alive and in a safe place; (4) the trial court erred in overruling his

objection to the prosecutor’s argument urging the jury to return a guilty verdict outside the

evidence based on the demands and expectations of the community; (5) the trial court

erred in overruling his motion for mistrial when the prosecutor argued in a manner contrary

to the law contained in the charge during the guilt/innocence phase; and (6) the trial court

erred in overruling his objection to the prosecutor’s argument during guilt/innocence urging

a conviction outside the record based on “[e]verything that happens these days with

domestic violence, that happens on the radio and the TV--.” Based upon the rationale

expressed herein, we reform and affirm in part, and reverse and remand in part.


       On July 6, 2000, complainant and her 12-year old son were living with appellant in

his apartment. After an argument, complainant and her son left to stay with a friend. On

July 9, 2000, just shortly before 9:00 a.m., complainant’s estranged husband, Robert

Garcia, gave complainant a ride to work at Sonic Drive-In. Garcia pulled into a parking slot

and as complainant exited the truck, appellant pulled into a nearby parking slot and asked



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to speak with her. After reassuring Garcia that she would be fine, he drove away.

According to complainant, appellant wanted her to go with him to gather her personal

belongings from his apartment. She agreed, and while at his apartment, telephoned the

assistant manager at Sonic to notify her she would be late for work.


      Complainant was scheduled to work until 4:00 p.m. When she failed to pick her son

up at the babysitter’s, complainant’s son called Sonic to find out why she had not done so.

He was told that complainant had not reported to work that day. Garcia assumed

complainant was gathering her things and moving out of appellant’s apartment, so he and

his son watched television until 10:00 p.m. Thereafter, Garcia became concerned and

decided to drive by appellant’s apartment. As he approached the apartment, he noticed

a light go on and off and knocked on the door and the back window several times. No one

answered, and after Garcia spoke with a neighbor, he called 911. When police officers

arrived, Garcia expressed his concern about complainant’s welfare. The officers knocked

loudly on the door and windows and also called out for approximately 30 minutes. After

obtaining a pass key from the apartment manager, one of the officers attempted to open

the door but discovered it was bolted from inside. Immediately after the officers used the

pass key appellant opened the door and claimed he had been asleep and had not heard

them knocking. According to testimony from one of the officers, complainant came to the

door with her face red, eyes swollen shut, and other physical trauma to her face that

looked like she had been beaten. In appellant’s presence, complainant told the officers



                                            3
she had been in an automobile accident. The officers separated complainant from

appellant and questioned them separately. At that time, complainant told one of the

officers that appellant had beaten and kicked her for a better part of the day.


      According to complainant’s testimony, after she went to appellant’s apartment they

argued about money. He was angry and demanded that she remove her clothes. When

she refused, he disrobed her and placed her in the bedroom. She testified that appellant

threatened to kill her and after beating and kicking her for many hours, he directed her to

take a bath. After freshening up, she dressed in a T-shirt and shorts and found appellant

crying and remorseful, but claimed appellant still blamed her for the beating. Complainant

decided to pacify appellant and try to leave the next morning. They laid on the bed and

watched television until the officers knocked on the door. After complainant revealed the

events that transpired that day, appellant was arrested.


       Complainant, Garcia, and their son drove to complainant’s friend’s home and an

ambulance was called to take complainant to the hospital for an examination. Tests

revealed she suffered from a slight concussion, swollen brain, bruises on both arms and

chest, and injuries to her face and eyes.


       By his first point of error, appellant asserts the evidence was factually insufficient

to support his conviction where the jury’s conclusion was clearly wrong and blatantly

contrary to the record evidence on the element of “abduction” and restraint of the



                                             4
complainant by secreting or holding her in a place where she was not likely to be found.

We agree. In conducting a factual sufficiency review, the Court of Criminal Appeals has

directed us to ask whether a neutral review of all the evidence, both for and against the

finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the fact finder’s determination, or the proof of guilt, although adequate if

taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11

(Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulation); see also King

v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000). Accordingly, we will reverse the fact

finder’s determination only if a manifest injustice has occurred. Johnson, 23 S.W.3d at 12.

In conducting this analysis, we may disagree with the jury’s determination, even if

probative evidence supports the verdict, but must avoid substituting our judgment for that

of the fact finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997). It is

the exclusive province of the fact finder to determine the credibility of the witnesses and

the weight to be given their testimony.       Johnson v. State, 571 S.W.2d 170, 173

(Tex.Cr.App. 1978); Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997,

pet. ref'd).




                                            5
       Appellant was indicted for aggravated kidnapping.1 Tex. Pen. Code Ann. § 20.04(a)

(Vernon Supp. 2002). A person commits such an offense if he intentionally or knowingly

abducts another person with the intent to inflict bodily injury. § 20.04(a)(4). Abduct means

to restrain a person with intent to prevent her liberation by: (A) secreting or holding that

person in a place where she is not likely to be found; or (B) using or threatening to use

deadly force. § 20.01(2). By its charge, the trial court asked the jury to find appellant guilty

of aggravated kidnapping if the evidence showed beyond a reasonable doubt that he:


       intentionally or knowingly abducted complainant, without her consent, with
       intent to prevent her liberation by secreting or holding [complainant] in a
       place where [complainant] was not likely to be found and with intent to inflict
       bodily injury . . . .


The charge also contained the lesser included offense of assault if the jury found that

appellant unlawfully, intentionally, knowingly, or recklessly caused bodily injury to

complainant by striking her with his hand or by kicking her with his feet. However, the

charge did not instruct the jury that the abduction element of aggravated kidnapping could


       1
           Ap pellant was originally indicted on J uly 10, 2 000 , as f ollows:

       [appellant] did then and there unlawfully intentionally and knowingly abduct [victim], hereafter styled the Complainant
       without his [sic] consent, with intent to prevent his [sic] liberation by USING AND TH REA TEN ING T O U SE D EAD LY
       F O R C E NAMELY, ASSAULT, ON THE CO MPLAIN A N T , an d w ith in ten t to IN F LIC T B O D IL Y IN J U R Y O N T H E
       C O M P LA IN A N T AN D O R T ER R O R IZ E T H E C O MP LA IN A N T .

       Later, on November 1, 2000, appellant was re-indicted as follows:

                     [appellant] did then an d th ere u nlaw fu lly, intentionally and kn owing ly abduc t [victim], h ereafter
                     styled the Complainant, without her c ons ent, with intent to prevent her liberation by secreting and
                     holding the Complainant in a place where the Complaint was not likely to be found and with intent
                     to inflict b odily injury on the C omp lainant.

       As dem ons trated by the s econ d ind ictm ent, appellant w as not charged with nor tried for aggravated kidnapping by use
       or threat of deadly forc e. Th us , a hypothetic ally correct ju ry ch arge as perm itted und er Malik was not authorized by the
       sec ond ind ictm ent. M alik v. State, 953 S.W .2d 2 34 (T ex.Cr.A pp. 1 997 ). Ac cord ingly, Malik does n ot apply.



                                                                         6
also be established by evidence showing restraint by using or threatening to use deadly

force. See Tex. Pen. Code Ann. § 20.01(2)(B).


       The evidence established that complainant had been living with appellant in his

apartment just a few days prior to July 9, 2000. Complainant’s belongings were still at

appellant’s apartment and she was in the process of making arrangements to move out.

Garcia testified that when he and his son did not hear from complainant all day, he decided

to go to appellant’s apartment


       because I couldn’t figure out anyplace else that she would be. So, we just
       figured that she had to pick stuff up from there anyway and maybe she was
       there picking her stuff up because she [sic] going to be moving it out.


Complainant testified that appellant’s caller identification indicated that a friend of hers had

telephoned appellant’s number late that afternoon probably because she had not picked

up her son. According to complainant, appellant did not allow her to answer the call. The

assistant manager from Sonic testified that appellant had called early on July 9, 2000, to

notify her she would be late because she was moving her things out of appellant’s

apartment. From the foregoing evidence, the jury could have believed that complainant

was restrained at appellant’s apartment, but that his apartment was not a place where the

complainant was not likely to be found. Schweinle v. State, 915 S.W.2d 17, 19-20

(Tex.Cr.App. 1996). We hold that the manner in which the jury was instructed on the

element of abduction is not supported by the evidence. Thus, the evidence is factually




                                               7
insufficient to support a conviction for aggravated kidnapping. Point of error one is

sustained.


       We must now determine whether the evidence is sufficient to support a conviction

for the lesser included offense of assault.        See Collier v. State, 999 S.W.2d 779, 782

(Tex.Cr.App. 1999) (holding that a court of appeals may reform a judgment of conviction

to reflect conviction of a lesser included offense only if (1) the court finds that the evidence

is insufficient to support conviction of the charged offense but sufficient to support

conviction of the lesser included offense, and (2) the jury was instructed on the lesser

included offense). A person commits assault if he intentionally, knowingly, or recklessly

causes bodily injury to another. Tex. Pen. Code Ann. § 22.01. Complainant testified that

appellant struck her with his fist, open hand, and also kicked her. Appellant testified and

admitted during direct and cross-examination that he was responsible for injuries to

complainant’s face. He testified that he pushed and slapped her several times out of

anger. Although he denied causing bruises to her arms and chest, and thought they were

caused by complainant wrestling with her son, it was the exclusive province of the jury to

determine the credibility of the witnesses and the weight to be given their testimony. We

conclude the evidence is sufficient to support a conviction for assault.


       By his second point of error, appellant contends the trial court abused its discretion

in denying his motion and request for an evidentiary hearing with live witness testimony

instead of a “paper hearing by affidavit” regarding his motion for new trial raising grounds


                                               8
of ineffective assistance of his trial counsel. We disagree. Rule 21.7 of the Texas Rules

of Appellate Procedure authorizes a trial court to receive evidence at a hearing on a

motion for new trial by affidavit or otherwise. Further, to warrant a hearing on a motion for

new trial, the supporting affidavit “must reflect that reasonable grounds exist for holding

that such relief could be granted.” Jordan v. State, 883 S.W.2d 664, 665 (Tex.Cr.App.

1994). Appellant’s sentence was imposed on February 15, 2001, and on February 20, he

filed a pro se motion for new trial unsupported by affidavit. Appointed counsel filed an

amended motion for new trial verified by appellant and notarized by counsel on March 26,

2001, outside the 30-day time limit in which to file an amended motion. See Tex. R. App.

P. 21.4(b). An affidavit sworn to before a movant’s attorney is insufficient to support a

motion for new trial. Garza v. State, 630 S.W.2d 272, 273-74 (Tex.Cr.App. 1981); Stubbs

v. State, 457 S.W.2d 563, 564 (Tex.Cr.App. 1970). Thus, not only was appellant’s

amended motion untimely, it was also unsupported by a properly sworn affidavit. We

conclude the trial court did not err in denying appellant’s motion and request for an

evidentiary hearing with live witness testimony. Point of error two is overruled.


       By his third point of error, appellant contends the trial court committed fundamental

error during the punishment phase by failing to charge the jury on the issue of whether the

complainant was voluntarily released alive and in a safe place. We disagree. Section

20.04(d) of the Penal Code entitles a defendant to a jury instruction in the punishment

charge on the defensive issue of release in a safe place. Tex. Pen. Code Ann. § 20.04

(Vernon Supp. 2002). However, since the Penal Code was amended, a defendant has

                                             9
been required to object to the absence of an instruction on the defensive issue or

otherwise bring the matter to the trial court’s attention to preserve the complaint for appeal.

Posey v. State, 966 S.W.2d 57, 63 (Tex.Cr.App. 1998); see also Act of May 24, 1995, 74th

Leg., ch. 318, § 4, Tex. Gen. Laws 2734, 2735-36. Prior to the amendment a trial court’s

failure to instruct the jury on the defensive issue was error even if the defendant did not

object to the absence of the instruction in the charge. Williams v. State, 851 S.W.2d 282,

284, 287 (Tex.Cr.App. 1993). The record reflects that during the punishment phase, the

trial court asked for any objections to the charge by either the State or defendant and both

parties answered in the negative. Thus, without determining whether the evidence raised

the issue of release in a safe place, we conclude that appellant did not preserve his

complaint for appellate review. Point of error three is overruled.


       By his fourth and sixth points, appellant asserts error by the trial court in overruling

his objections to improper argument by the prosecution for urging a conviction (4) outside

the evidence based on the demands and expectations of the community, and (6) outside

the record based on “[e]verything that happens these days with domestic violence, that

happens on the radio and the TV--.”       To be permissible, jury argument must fall within

one of the following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to opposing counsel's argument; or (4) plea for

law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Cr.App. 1997), cert. denied,

522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). Improper jury argument constitutes

reversible error only if, in light of the entire record, the argument is extreme or manifestly

                                              10
improper, violates a mandatory statute, or injects into the trial new facts which are harmful

to the accused. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Cr.App. 1996); Fant-Caughman

v. State, 61 S.W.3d 25, 28 (Tex.App–Amarillo 2001, pet. ref’d). During jury arguments,

prosecutors should refrain from making arguments based upon matters outside the record

or alluding to information not introduced into evidence. Borjan v. State, 787 S.W.2d 53,

57 (Tex.Cr.App. 1990).


         In Holberg v. State, 38 S.W.3d 137 (Tex.Cr.App. 2000), cert. denied, __U.S.__, 122

S.Ct. 394, 151 L.Ed.2d 298 (2001), the prosecutor asked the jury to be the “conscience of

the community and to crack down on crime,” and not to pick up a newspaper or turn on the

television or radio years later and regret they did not take action when they had the

chance. The Court found the argument to be a permissible plea for law enforcement. Id.

at 141. Rhetorical questions by the prosecution during closing argument such as, “How

many people are going to be kidnapped at knifepoint or beaten over the head with a tire

tool?” and “How may innocent victims have to be beaten, robbed, kidnapped and murdered

before we as a society get the message?” were found to be deductions from the evidence

and a proper plea for law enforcement. Cook v. State, 858 S.W.2d 467, 477 (Tex.Cr.App.

1993).


         Appellant complains about the prosecutor’s comments regarding violence and

everything that “happens on the radio and TV,” and his statement to the jury that if they

only found appellant guilty of assault to ask themselves what kind of message they were


                                             11
sending the public. In proper context and considering the entire record, we find the

prosecutor’s arguments were not extreme or manifestly improper, did not violate a

mandatory statute, or inject into the trial new facts harmful to appellant. We hold the

comments to be a proper plea for law enforcement. Points of error four and six are

overruled.


       By his fifth point, appellant contends the trial court erred in overruling his motion for

mistrial when the prosecution argued in a manner contrary to the law contained in the trial

court’s charge during the guilt/innocence phase. Appellant complains of the following

comments by the prosecution:


       Ladies and gentlemen, we’re not talking about we have to find the best
       hiding place in all of Harris County to be able to be found guilty of
       kidnapping. What we’re talking about is a place not likely to be found,
       discovered, rescued, a place where someone can’t easily walk on by and
       see what happened and be able to easily stop it. Sure, they found her,
       eventually. It took about 13 or 14 hours. But the law is saying, a house, a
       car –


Defense counsel objected that the prosecution was arguing law not in the charge and the

trial court sustained the objection and instructed the jury to disregard the statement. Our

sustention of appellant’s first point for factually insufficient evidence to support a conviction

for aggravated kidnapping pretermits consideration of appellant’s argument that the

prosecution’s comments called for a conviction contrary to the law contained in the court’s

charge.




                                               12
      Accordingly, the judgment for aggravated kidnapping is reformed to reflect

conviction for the lesser included offense of assault and as reformed, is affirmed; that

portion of the judgment assessing punishment for the aggravated kidnapping is reversed

and remanded to the trial court for a new punishment hearing.



                                        Don H. Reavis
                                          Justice


Do not publish.




                                          13
