                             Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                         No. 04-18-00401-CR

                                     Alberto VERASTEGUI,
                                            Appellant

                                                 v.

                                         The STATE of Texas,
                                               Appellee

                   From the 83rd Judicial District Court, Val Verde County, Texas
                                     Trial Court No. 14,031CR
                            Honorable Robert Cadena, Judge Presiding

Opinion by:      Beth Watkins, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Irene Rios, Justice
                 Beth Watkins, Justice

Delivered and Filed: July 24, 2019

AFFIRMED

           A jury convicted appellant Alberto Verastegui of aggravated kidnapping, aggravated

assault by threat, and aggravated assault. On appeal, Verastegui contends: (1) the evidence is

legally insufficient to support his conviction for aggravated kidnapping; (2) his punishment for

aggravated assault by threat is barred by double jeopardy; and (3) the trial court erred in refusing

his request for a jury instruction on defense of a third party. We affirm the trial court’s judgment.
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                                           BACKGROUND

          At trial, motel manager David Longo testified he approached Veronica Enriquez and

Verastegui, who were staying at the motel, after an employee complained about Verastegui. Longo

testified that when he confronted the couple, he believed they were under the influence of

narcotics, and called police. When police arrived, Enriquez refused to grant them access to the

room. Longo then asked the couple to leave the property, and they left in a truck. Longo stated

he did not see them again until later that afternoon when an employee brought Enriquez to his

office.

          Longo testified that when he saw Enriquez in his office, she made a comment about his

ten-year-old son. She then asked Longo to follow her outside his office so they could talk. They

sat in a truck outside one of the motel rooms. Longo stated he sat on the passenger’s side, and

Enriquez sat in the middle of the bench seat. Almost immediately, Verastegui came out of one of

the motel rooms and got in the truck. Enriquez then closed the passenger door. Longo testified

that as Verastegui drove away from the motel, Enriquez restricted his movements, attempting to

keep him in the truck. Longo said he felt threatened and tried to get out of the truck several times,

but when he unlocked the door, Enriquez pushed the lock down. Longo testified he never wanted

to leave the motel with Verastegui and Enriquez — people he did not know. When asked whether

he willingly left with the couple because he was engaged in drug activity, Longo said no.

          Longo stated that as they drove, he saw a gun in Enriquez’s lap. He testified he reached

for the gun, but Verastegui tried to grab his hand. Longo explained he threw the gun out the

window, adding that during the struggle, the truck veered off the road, stopping near a fence line.

Longo said he opened the door and fell out of the truck. Enriquez then grabbed him and held him

down. Verastegui retrieved a beer bottle from the back of the truck, hit him on the side of the head

with it, and choked him while Enriquez held him down. Longo testified he got free and ran to the


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road for help, but no one stopped. He said Verastegui and Enriquez drove away, but when they

noticed no one stopping to help him, they turned around and told him to get in the truck. He

testified he refused until Enriquez said they would take his son. He stated that when they returned

to the motel, Verastegui held a pocket knife and told him not to do anything. Longo said he ran

into one of the motel rooms for help. As he did, he heard someone say, “Let’s go to the lobby and

get your son.” However, when they saw a motel guest, they left.

       The jury also heard testimony from motel employees and residents as well as police

officers, who confirmed portions of Longo’s testimony. Specifically, Detective Julian Ramos

testified the scene on the highway indicated a vehicle had veered off the roadway and then veered

back onto the roadway and across it. Detective Ramos also testified a gun found near the motel

showed marks suggesting it had been thrown from a vehicle. The detective described the round in

the chamber as live ammunition capable of being fired.

       The jury found Verastegui guilty on all counts. The trial court sentenced him to forty-five

years’ confinement on each count. Verastegui appealed.

                                            ANALYSIS

                                        Legal Sufficiency

       Verastegui first contends the evidence is legally insufficient to show he secreted or held

Longo in a place where he was not likely to be found. Verastegui contends that because he and

Enriquez (1) returned Longo to the motel, (2) did not leave him in a field, lock him in a trunk, or

move him from place to place, and (3) were at all times on a public highway, they never held

Longo in a place he was unlikely to be found. We disagree.

                                       Standard of Review

       In conducting a legal sufficiency review, we examine all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found all the


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essential elements of the offense beyond a reasonable doubt. Cary v. State, 507 S.W.3d 761, 766

(Tex. Crim. App. 2016). Under this standard, we defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be

given their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume

the jury resolved any apparent inconsistencies in testimony in order to render its verdict, and we

defer to its resolution. Cary, 507 S.W.3d at 757. The jury can choose to believe some, all, or none

of the testimony provided by any witness, and give different weight to different testimony if it so

chooses. Baez v. State, 486 S.W.3d 592, 594 (Tex. App.—San Antonio 2016, pet. ref’d).

                                          Applicable Law

       Here, Verastegui was charged las a primary actor and as a party to the offense. “Whether

a person is charged as a primary actor or as a party to the offense, the underlying offense of

aggravated kidnapping remains the same.” Hinojosa v. State, 433 S.W.3d 742,752 (Tex. App.—

San Antonio 2014, pet ref’d).

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

another person. TEX. PENAL CODE ANN. § 20.03(a). “Abduct” means to restrain a person with the

intent to prevent his liberation by, among other things, secreting or holding him in a place where

he is not likely to be found. Id. § 20.01(2)(A). Secreting or holding another where he is unlikely

to be found is part of the mens rea requirement of kidnapping, not the actus reus. Laster v. State,

275 S.W.3d 512, 521 (Tex. Crim. App. 2009). The State is not required to prove a defendant

actually secreted or held the victim, only that the defendant restrained the victim with the intent to

prevent liberation. Id. The offense is legally completed when the defendant, at any time during

the restraint, forms the intent to prevent liberation by holding or secreting the victim in a place

where he is unlikely to be found. Id. The defendant’s intent can be inferred from his conduct,




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remarks, and surrounding circumstances. West v. State, 406 S.W.3d 748, 759 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d).

       To convict Verastegui under the law of parties, the jury had to determine that Verastegui

was criminally responsible for the acts of another. TEX. PENAL CODE ANN. § 7.01(a). A person is

criminally responsible for an offense committed by another if “acting with intent to promote or

assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense. Id. at § 7.02(a)(2).

                                           Application

       Here, the evidence supports the jury’s conclusion that Verastegui intended to take Longo

to a place he was unlikely to be found. The evidence shows Enriquez and Verastegui, total

strangers to Longo, drove Longo away from the motel. Longo testified he did not want to leave

the motel with Verastegui and Enriquez. He stated he attempted to escape, but as Verastegui drove,

Enriquez prevented him from exiting the vehicle, pushing down the door locks and displaying a

gun. See Laster, 275 S.W.3d at 521.

       The evidence also shows that as Verastegui drove away from the motel, Longo attempted

to wrestle a gun away from Enriquez, and Verastegui tried to prevent it. When the truck veered

off the roadway and Longo tried to get away, Verastegui helped Enriquez restrain Longo by

striking Longo in the head with a beer bottle and choking him. And although Verastegui and

Enriquez fled when Longo broke away from them, they returned, forcing Longo back into the truck

by threatening to take his son. See id.

       It is irrelevant that Longo initially voluntarily joined Enriquez in the truck, see Megas v.

State, 68 S.W.3d 234, 241 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding victim

voluntarily joining defendant does not preclude conviction of kidnapping), and that he agreed to

get back into the truck. See Clark v. State, 24 S.W.3d 473, 476 (Tex. App.—Texarkana 2000, no


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pet.) (holding cooperation by kidnapping victim does not defeat finding that victim was

kidnapped). Additionally, the decision to return Longo to the motel does not absolve Verastegui

of the kidnapping charge. Rather, releasing the victim in a safe place — if proved by the defendant

by a preponderance of the evidence — merely reduces the kidnapping offense from a first to a

second degree felony. See TEX. PENAL CODE ANN. § 20.04(d).

       Viewing the evidence in the light most favorable to the jury’s verdict, the jury could have

reasonably inferred, beyond a reasonable doubt, Verastegui intended to prevent Longo’s liberation

— as the actor or as a party — by secreting or holding him in a place he was unlikely to be found

or assisting or otherwise aiding Enriquez in doing so. See id. § 20.01(2)(A); West, 406 S.W.3d at

759–60 (holding fact that abduction took place as appellant was driving down roadway and public

beach with cars passing by did not negate appellant’s intent to take victim to place she was not

likely to be found).

                                          Double Jeopardy

       Verastegui also contends his double jeopardy rights were violated because the judgment

imposed multiple punishments upon him for the same offense — aggravated kidnapping and

aggravated assault by threat. The State argues Verastegui failed to raise this complaint in the trial

court, or alternatively, that his convictions of aggravated kidnapping and aggravated assault by

threat did not violate double jeopardy.

                                          Applicable Law

       As a general rule, a party must preserve a complaint for appellate review by making a

timely and specific objection, motion, or request in the trial court. TEX. R. APP. P. 33.1. A

defendant may raise a double jeopardy claim for the first time on appeal when: “(1) the undisputed

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




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enforcement of the usual rules of procedural default serves no legitimate state interest.” Garfias

v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).

       A multiple punishments double jeopardy violation occurs when the same conduct is

punished under a greater and a lesser-included offense or under two distinct statutes when the

Legislature intended the conduct to be punished only once. Id. When, as here, the offenses in

question are in different statutory sections, we determine legislative intent by analyzing the

elements of the offenses in question. Id.

       The starting point of an “elements” analysis is the Blockburger test, which asks whether

each of the offenses requires proof of an element that the other does not. Id.; see Blockburger v.

United States, 284 U.S. 299, 304 (1932). In making this determination, we focus on the elements

alleged in the charging instrument, not on the statutory definitions of the offenses. Garfias, 424

S.W.3d at 58–59.

       A double jeopardy violation also occurs where two punishments are imposed for a single

course of conduct if the Legislature intended to authorize only one. Id. To facilitate this analysis,

we use the non-exclusive Ervin factors:

       •   Are the offenses in the same statutory section?

       •   Are the offenses phrased in the alternative?

       •   Are the offenses similarly named?

       •   Do the offenses have common punishment ranges?

       •   Do the offenses have a common focus?

       •   Does the common focus, if any, tend to indicate a single instance of conduct?

       •   Can the elements that differ between the two offenses be considered the same
           under an imputed theory of liability that would result in the offenses being
           considered the same under Blockburger?



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       •   Is there legislative history containing an articulation of an intent to treat the
           offenses as the same or different for double jeopardy purposes.

Id. at 59, 61 (citing Ex parte Ervin, 991 S.W.3d 804, 814 (Tex. Crim. App. 1999)). Another factor

often considered is the allowable unit of prosecution for the offenses in question. Id. at 59. The

“focus” or “gravamen” of a penal provision should be regarded as the best indicator of legislative

intent when determining whether a multiple-punishments violation has occurred. Id.

                                            Application

   1. Blockburger Analysis

       Beginning with the Blockburger test, the indictment charged Verastegui with aggravated

kidnapping as follows:

           On or about the 22nd day of JULY 2016 and before the presentment of this
       indictment, in said county and state, ALBERTO VERASTEGUI, defendant did
       then and there intentionally and knowingly abduct another person, to wit David
       Longo by restricting the movements of David Longo without his consent so as to
       interfere substantially with his liberty, by moving him from one place to another,
       with the intent to prevent his liberation, by secreting or holding him in a place where
       he was not likely to be found, and the defendant did then and there use or exhibit a
       deadly weapon, to wit a handgun, during the commission of the offense.

See TEX. PENAL CODE § 20.04(b). The indictment for aggravated assault by threat alleged:

           On or about the 22nd day of JULY 2016 and before the presentment of this
       indictment, in said county and state, ALBERTO VERASTEGUI, defendant did
       then and there intentionally and knowingly threaten David Longo with imminent
       bodily injury by holding a gun and the defendant did then and there use or exhibit
       a deadly weapon, to wit a gun, during the commission of said assault[.]

See id. §§ 22.01(a)(2), 22.02(a)(2).

       The aggravated kidnapping charge as set out in the indictment required the State to prove

Verastegui abducted Longo by restricting his movements, moving him from one place to another,

and by secreting or holding him. To prove aggravated assault by threat, however, the State had to

prove Verastegui threatened the victim with imminent bodily injury. A comparison of the offenses

charged in the indictment establishes the same facts are not required to prove both offenses; each


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contains an element the other does not. See Garfias, 424 S.W.3d at 58–59. Accordingly, we hold

there is no double jeopardy violation apparent on the face of the record pursuant to the Blockburger

test.

        Relying on Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006), Verastegui contends

aggravated assault by threat is a lesser-included offense of aggravated kidnapping because the

same facts were required to establish both offenses. Girdy, however, is distinguishable because of

how the State charged the offenses. In Girdy, the indictment alleged the defendant committed

aggravated kidnapping when he abducted the victim “by using and threatening to use deadly force

on the said [victim], and with intent to inflict bodily injury on her[.]” Id. at 316. The indictment

further alleged the defendant committed aggravated assault by “threaten[ing] [the victim] with

imminent bodily injury and did then and there use a deadly weapon . . . .” Id. The court held

aggravated assault was a lesser-included offense of aggravated kidnapping because as charged,

aggravated assault was “established by proof of the same or less than all the facts required to

establish the commission of” aggravated kidnapping. Id. at 319 (emphasis added). Here, however,

aggravated kidnapping was based on the allegation that Verastegui abducted Longo by restricting

his movements, moving him from one place to another, and by secreting or holding him—not by

threat of imminent bodily injury, conduct required to prove aggravated assault by threat.

Accordingly, Girdy does not compel us to find a double jeopardy violation under Blockburger in

this case.

    2. Legislative Intent

        Turning to the Ervin factors, we must also determine whether the offenses at issue share a

common focus or gravamen. See Garfias, 424 S.W.3d at 59. The gravamen of kidnapping is the

act of abduction. Schweinle v. State, 915 S.W.2d 17, 19 n.2 (Tex. Crim. App. 1996). Kidnapping

is a result-oriented offense because the ultimate focus is the abduction of the victim, not how the


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defendant restrains or interferes with the victim’s liberty. 1 Gonzales, 270 S.W.3d at 288. The

offense is legally completed when at any time during the restraint, the defendant forms the intent

to prevent the victim’s liberation by secreting or holding the victim in a place he is unlikely to be

found. Laster, 275 S.W.3d at 521. On the other hand, the gravamen of aggravated assault by

threat is the conduct itself, not the result, and therefore it is a nature-of-conduct crime as opposed

to a result-oriented crime. Garfias, 424 S.W.3d at 60. There is an obvious distinction between the

gravamen of each offense — the aggravated kidnapping charge and conviction focused on the

abduction, i.e., the actual harm inflicted, while the aggravated assault by threat charge and

conviction focused on Verastegui’s threatening conduct.                   Cf. Garfias, 424 S.W.3d at 60.

Accordingly, the gravamina of the two offenses indicates the Legislature intended to allow

separate punishments for aggravated kidnapping and aggravated assault by threat. See id.

        The other Ervin factors also support this conclusion. First, aggravated kidnapping and

aggravated assault by threat are not contained in the same statutory section. Compare TEX. PENAL

CODE § 20.04(b) (Chapter 20, Penal Code, Kidnapping, Unlawful Restraint, and Smuggling of

Persons), with id. §§ 22.01(a)(2), 22.02(a)(2) (Chapter 22, Penal Code, Assaultive Offenses).

Second, the offenses are neither phrased in the alternative nor similarly named. Compare TEX.

PENAL CODE § 20.04(b), with id. §§ 22.01(a)(2), 22.02(a)(2). And third, although the trial court

sentenced Verastegui to forty-five years’ confinement for each offense, the offenses do not have

identical punishment ranges — aggravated kidnapping in this case is a first degree felony, which

carries a punishment range of confinement “for life or for any term of not more than 99 years or

less than five years” and a fine not to exceed $10,000.00, but aggravated assault by threat is a



1
 By extension, aggravated kidnapping is also a result-oriented offense. Gonzales v. State, 270 S.W.2d 282, 288 (Tex.
App.—Amarillo 2008, pet. ref’d). Kidnapping, as applicable here, became an aggravated offense by use or exhibition
of a deadly weapon during the commission of the offense. See TEX. PENAL CODE ANN. § 22.04(b).


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second degree felony, which carries a punishment range of confinement “for any term of not more

than 20 years or less than 2 years” and a fine not to exceed $10,000.00. Compare TEX. PENAL

CODE ANN. § 12.32, with id. § 12.33. Finally, when as here, the Legislature has not provided an

express statement defining the allowable unit of prosecution, the gravamen of the offense best

describes the allowable unit of prosecution. See Garfias, 424 S.W.3d at 61. As discussed above,

the gravamina of Verastegui’s convictions for aggravated kidnapping and aggravated assault

differ. Therefore, the allowable units of prosecution are not the same. See id.

                                           Conclusion

       Having reviewed the Blockburger test and the Ervin factors, we hold the undisputed facts

do not show the double jeopardy violation is clearly apparent on the face of the record.

Accordingly, Verastegui’s double jeopardy complaint is overruled.

                               Instruction on Defense of a Third Person

       Finally, Verastegui argues the trial court erred by denying his request for a jury instruction

on defense of a third person. Verastegui contends there was evidence to show he reasonably

believed striking Longo with a beer bottle was immediately necessary to protect Enriquez.

                                       Standard of Review

       In reviewing claims of charge error, we first ask whether there was error in the charge.

Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). The decision to exclude a defensive

issue from the charge is reviewed for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103,

122 (Tex. Crim. App. 2000). When reviewing a trial court’s decision to refuse a requested

defensive instruction, we view the evidence in the light most favorable to the defendant’s requested

submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).




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                                            Applicable Law

       Generally, a trial court must instruct the jury, when properly requested, on statutory

defenses, affirmative defenses, and justifications raised by the evidence. Walters v. State, 247

S.W.3d 204, 208–09 (Tex. Crim. App. 2007). However, even if the evidence viewed in the proper

light raises a “prima-facie defense, no error is shown in the denial of a defensive instruction if the

evidence establishes as a matter of law that the defendant is not entitled to rely on this defense.”

Davis v. State, 276 S.W.3d 491, 499 (Tex. App.—Waco 2008, pet. ref’d ) (quoting Johnson v.

State, 157 S.W.3d 48, 50 (Tex. App.—Waco 2004, no pet.)); see Dyson v. State, 672 S.W.2d 460,

463 (Tex. Crim. App. 1984).

       Section 9.33 of the Texas Penal Code provides that a person is justified in using force

against another to protect a third person if he would be be justified under Section 9.31 and he

reasonably believes his intervention is immediately necessary to protect the third person. TEX.

PENAL CODE ANN. § 9.33. Under Section 9.31, a person is justified in using force against another

when and to the degree he reasonably believes the force is immediately necessary to protect

himself. Id. § 9.31(a). However, the use of force against another is not justified if a person

provokes the other’s use of force unless the person abandons the encounter and the other person

continues to use force. Id. § 9.31(b)(4).

                                             Application

       Contrary to Verastegui’s argument, the evidence shows Verastegui assisted rather than

protected Enriquez when he struck Longo on the head with a beer bottle. Longo testified that

during the struggle, he tried to resist the force Enriquez was exerting and escape. He further

testified that during this struggle, Verastegui held him down and helped Enriquez by striking him

on the head with a beer bottle. To the extent Verastegui argues his use of force was justified

because he abandoned his encounter with Longo, the evidence shows Longo did not continue to


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use force against Enriquez or Verastegui when he tried to escape. See TEX. PENAL CODE

§ 9.31(b)(4); Davis, 276 S.W.3d at 499. Despite that fact, Verastegui continued. Accordingly,

Verastegui was not entitled to rely on defense of a third person as a matter of law. See Davis, 276

S.W.3d at 499. The trial court did not err in denying his request for the instruction. See id.

                                           CONCLUSION

       We hold: (1) the evidence is sufficient to support Verastegui’s conviction for aggravated

kidnapping; (2) no double jeopardy violation is clearly apparent from the face of the record; and

(3) Verastegui was not entitled to rely upon defense of a third person. We therefore overrule his

issues and affirm the trial court’s judgment.

                                                   Beth Watkins, Justice

Do Not Publish




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