                            NUMBER 13-09-00287-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ALEXANDER GONZALES,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 329th District Court
                        of Wharton County, Texas.


                        MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Vela
                 Memorandum Opinion by Justice Garza
      A jury convicted appellant, Alexander Gonzales, of aggravated kidnapping. See

TEX. PENAL CODE ANN. § 20.04 (Vernon 2003). The trial court sentenced Gonzales to

eighteen years= imprisonment in the Institutional Division of the Texas Department of

Criminal Justice. See id. § 12.32 (Vernon Supp. 2010). By three issues, which we

reorganize as two, Gonzales contends that: (1) the evidence was insufficient to find him
guilty of aggravated kidnapping; and (2) the trial court erred in finding that Gonzales did

not voluntarily release his victim in a safe place. We affirm.

                                     I. BACKGROUND
        On February 17, 2008, Emma Medina walked from her home to the L-Stop

convenience store in El Campo, Texas, as she did nearly every evening.                After

purchasing some snacks and beer, Medina took a short-cut through a grass trail to

return home when suddenly she felt two arms go around her neck. Medina testified that

she did not hear any footsteps approaching her before this happened, so she assumed

that her assailant, later identified as Gonzales, was hiding in a field waiting for her to

exit the store. She repeatedly asked Gonzales to identify himself, to no avail. She

continued: AWhat do you want? Who are you? . . . Whatever you want, just take my

purse and my bag. Let me go,@ but Gonzales remained silent and Aforcefully tighten[ed]

his arms harder on [her] neck.@ Medina testified that Gonzales pushed her forward from

the grassy short-cut to the back of a nearby storage business near a dumpster.

According to Medina, when they stopped moving she asked again, AWhat do you want

with me?,@ to which Gonzales answered, AI=m going to rape you, and I=m going to kill

you.@

        Medina testified that she placed her bags and purse down. The area was poorly

lit—the only street light was on a distant street corner—and was not visible from the

street. She stated that she then told Gonzales, AWell, let me . . . take my shoes off to

take my clothes off . . . [s]o you can do what you want to do with me . . . .@ When

Medina glanced at Gonzales he said nothing, so she proceeded to remove her shoe.

        Medina testified that she began running as soon as she removed one shoe. She


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ran into a barbed wire fence which tore her clothes and scratched her arms and legs as

she tried to climb it. She stated that she was screaming for help and, when she looked

back, Gonzales was running after her. She testified that, as she continued to scream

louder, Gonzales eventually turned around, picked up Medina=s purse and grocery bag,

and left the area. Medina eventually climbed over the fence, ran to her house, and told

her husband to call the police.

       Corporal Chris Hadash of the El Campo Police Department responded to the call.

Corporal Hadash testified that he spoke with Medina at her home. After learning that

Medina had been grabbed while walking home and was forced behind the storage

buildings and dumpster, he obtained a description of Gonzales and coordinated with

other officers to look for him. He admitted that his initial report listed the event as a

Arobbery@ only, and not a kidnapping. He also admitted that Medina did not initially

mention that Gonzales threatened to rape or kill her. However, he testified that victims

sometimes forget details while they are still under the stress of the situation, and that

A[i]t=s quite common for people to remember extra details later on after they=ve had a

chance to calm down and think about it.@ Corporal Hadash stated that investigators

found Medina=s shoe in an area Ablocked completely from view from the street of

Calhoun and Wharton Street because of [a building] and that dumpster.@                He also

testified that, Aat the time [the area] was dark at night, but there are security lights by the

road and on buildings@ and that the only way he located her shoe was by using a

flashlight.

       Investigator Russell Urban testified that, after the incident, Medina positively

identified Gonzales in a photographic line-up. Based on this identification and after

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taking her statement, Investigator Urban obtained an arrest warrant for Gonzales. He

interviewed Gonzales after arresting him and reading him his Miranda rights.            See

Miranda v. Arizona, 384 U.S. 436, 498 (1966). Investigator Urban stated that, although

Gonzales initially denied any involvement in this attack, he eventually admitted that he

was the person who attacked Medina. Gonzales ultimately signed a written confession

which, in relevant part, stated the following:

       On Sunday, February 17, 2008, I had been drinking all day and I was
       drunk. I was at an L-Stop convenience store. I left the store at the same
       time that a lady was leaving. I saw that she had some beer in a plastic
       bag. I was out of money, and I wanted some more beer. I decided to
       follow the lady so I could take her beer and her purse. I followed her down
       East Calhoun Street. When we were near the storage buildings I ran up
       behind her and grabbed her from behind. I wrapped my arm around her
       and covered her mouth with my hand. I told her I was going to take her
       behind the storage buildings. I walked behind her pushing her forward.
       When we got to the back of the storage buildings she got loose from me.
       She dropped her bags and purse and started running. I picked her purse
       and bags up and ran. . . . I never told her that I was going to rape her. I
       never told her that I would kill her. The only thing I wanted was her money
       and the beer.

       Investigator Urban testified that, although the initial patrol report only mentioned

a robbery, his investigation led him to believe that an aggravated kidnapping also

occurred. When cross-examined about an error in the report which stated that Medina

was returning home from an H.E.B. grocery store and not the L-Stop convenience store,

Investigator Urban explained, AWhen a patrol officer takes reports on the scene right

after an incident=s occurred, a lot of times the victim is upset or scared or, you know, just

leaves out facts or says stuff that=s not accurate and times that the patrol officer also

misunderstands stuff or writes stuff that=s wrong.@ Investigator Urban went on to explain

that the discrepancies are corrected with further investigation and reports.



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       Gonzales testified in his defense. He reiterated the facts set forth in his written

confession, stating that he was drunk and Ajust wanted to steal the beer.@ He testified

that he did not intend to harm Medina. Gonzales stated that he grabbed Medina and

that it only took him about forty seconds to push her behind the storage buildings. He

explained that the reason he pushed Medina to the storage area was because A[he]

didn=t want [any]body to see what [he] was going to do, [which was] steal[ ] the beer.@

When Gonzales and Medina reached the area, he stated that he released his arm from

her neck. He then stated that, Aas soon as she put her purse down and bag down, I

grabbed the beer. . . [and] grabbed the purse. That=s when she ran towards the picket

fence.@ Gonzales claimed that he did not chase Medina; instead, he ran in the opposite

direction.

       The jury convicted Gonzales of aggravated kidnapping. The court sentenced

Gonzales to eighteen years= imprisonment after finding that Gonzales did not release

Medina in a safe place. This appeal followed.

                             II. SUFFICIENCY OF THE EVIDENCE

A.     Standard of Review and Applicable Law

       Gonzales challenged both the legal and factual sufficiency of the evidence used

to convict him of aggravated kidnapping.         However, in light of the Texas Court of

Criminal Appeals=s recent Brooks v. State opinion, we construe factual sufficiency

challenges as challenges to the legal sufficiency of the evidence. Brooks v. State, No.

PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240, at *57 (Tex. Crim. App. Oct. 6, 2010)

(plurality op). Brooks held that there is Ano meaningful distinction between the Jackson

v. Virginia legal sufficiency standard and the . . . factual-sufficiency standard, and these

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two standards have become indistinguishable.@         Id. at *26.   A Jackson sufficiency

standard is Athe only standard that a reviewing court should apply in determining

whether the evidence is sufficient to support each element in a criminal offense that the

State is required to prove beyond a reasonable doubt. All other cases to the contrary

. . . are overruled.@ Id. at *57. Accordingly, we apply solely the Jackson standard to

evaluate arguments pertaining to the sufficiency of the evidence.

         When conducting a sufficiency review, a court must ask whether Aany rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt”—not whether Ait believes that the evidence at the trial established guilt beyond a

reasonable doubt.@     Jackson, 443 U.S. at 318-19 (emphasis in original).         We are

required to view all of the evidence in Aa light most favorable to the verdict and to

determine whether a rational trier of fact could have found all of the essential elements

of the crime beyond a reasonable doubt.@ Id.; see Laster v. State, 275 S.W.3d 512, 517

(Tex. Crim. App. 2009). The trier of fact is the sole judge of the facts, the credibility of

the witnesses, and the weight given to testimony. TEX. CODE CRIM. PROC. ANN. art.

38.04 (Vernon 1979); Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref=d). AAppellate courts are ill-equipped to weigh the evidence;

unlike the fact-finder—who can observe facial expressions and hear voice inflections

first-hand—an appellate court is limited to the cold record.@ Laster, 275 S.W.3d at 517

(citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). We resolve any

inconsistencies in the evidence in favor of the final judgment and consider whether the

jury reached a rational decision. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

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       Evidentiary sufficiency is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v.

State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref=d). ASuch a charge

is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s

theories of liability, and adequately describes the particular offense for which the

defendant was tried.@ Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.

       A person commits aggravated kidnapping if he intentionally or knowingly abducts

another person with intent to: (1) hold the person for ransom or reward; (2) use the

person as a shield or hostage; (3) facilitate the commission of a felony or the flight after

the attempt or commission of a felony; (4) inflict bodily injury on the person or violate or

abuse that person sexually; (5) terrorize the person or a third person; or (6) interfere

with the performance of any governmental or political function.     TEX. PENAL CODE ANN.

§ 20.04(a). AAbduct@ means to restrain a person with intent to prevent their liberation by

either secreting or holding that person in a place where they are not likely to be found or

by using or threatening to use deadly force. Id. § 20.01(2). ARestrain@ means to restrict

a person=s movements without consent, so as to interfere substantially with the person=s

liberty, by moving the person from one place to another or by confining the person. Id.

§ 20.01(1). Restraint is Awithout consent@ if it is accomplished by force, intimidation, or

deception. Id. § 20.01(1)(A).

       Aggravated kidnapping is normally a first-degree felony.            Id. § 20.04(c).

However, at the punishment stage of the trial, if the defendant proves that he voluntarily

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released the victim in a safe place by a preponderance of the evidence, the aggravated

kidnapping offense is reduced to a second-degree felony. Id. § 20.04(d).

B.    Analysis

      Gonzales complains that the evidence is insufficient to find him guilty of

aggravated kidnapping. Gonzales contends that, although the evidence may support a

finding of robbery, it does not support an aggravated kidnapping finding. We disagree

with Gonzales and hold that the evidence supports the jury=s finding that Gonzales

Aabducted@ Medina. We note the following:

      A>Abduct= means to restrain a person with intent to prevent his liberation
      by: (A) secreting or holding him in a place where he is not likely to be
      found; or (B) using or threatening to use deadly force.@ First, the
      defendant must have restrained another, which is the actus reus
      requirement. Second, the defendant must have had the specific intent to
      prevent liberation, which is the mens rea requirement. Secreting or
      holding another where he or she is unlikely to be found is part of the mens
      rea requirement of the offense—not the actus reus. This is an important
      distinction because the State is not required to prove that the defendant
      actually secreted or held another. Instead the State must prove that the
      defendant restrained another with the specific intent to prevent liberation
      by secreting or holding the person. The offense of kidnapping is legally
      completed when the defendant, at any time during the restraint, forms the
      intent to prevent liberation by secreting or holding another in a place
      unlikely to be found.

Laster, 275 S.W.3d at 521 (internal citations omitted).

      Gonzales acknowledges that he Arestrained@ Medina; his confession revealed

that A[he] wrapped [his] arm around her and covered her mouth with [his] hand.@

Medina did not consent to the restraint and Gonzales substantially interfered with her

liberty as he forcefully moved her from the grassy short-cut to the area behind the

storage building. See TEX. PENAL CODE ANN. § 20.01(1), (1)(A). This act establishes the

actus reus component of abduction. Laster, 275 S.W.3d at 521. Gonzales then admits


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that he pushed Medina to the storage area because he Adidn=t want [any]body to see

what [he] was going to do. . . .@ Investigator Urban testified that the location where

Gonzales took Medina was dark and completely blocked from public view because of

storage buildings and the dumpster. This evidence proves that Gonzales Asecreted or

held@ Medina in a location where she would be unlikely to be found, which establishes

the mens rea component of the crime. See TEX. PENAL CODE ANN. § 20.01(2). The

Texas Court of Criminal Appeals has held that Aa kidnapping becomes a completed

offense when (1) a restraint is accomplished, and (2) there is evidence that the actor

had the specific intent to prevent liberation by secretion or the use or threatened use of

deadly force.@ Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997) (citing

Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995)).            Accordingly, the

evidence was sufficient to prove that Gonzales kidnapped Medina.

       The evidence also supports that the kidnapping was aggravated, based on

Medina=s testimony that Gonzales told her that he planned to rape and kill her. This

testimony established that the abduction would Afacilitate the commission of a felony@ or

that Gonzales intended to Ainflict bodily injury or violate or abuse [Medina] sexually.@

TEX. PENAL CODE ANN. § 20.04(a)(3), (4). Although Gonzales adamantly denied saying

this, it was within the province of the jury to settle this conflicting evidence. See TEX.

CODE CRIM. PROC. ANN. art. 38.04; Beckham, 29 S.W.3d at 151; Laster, 175 S.W.3d at

522. The jurors believed Medina=s version of the facts over Gonzales=s, and we will not

disturb this finding.

       Gonzales also argues that he only had his arm around Medina=s neck for about

forty seconds, which could not constitute a kidnapping. However, time is irrelevant as

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the definition of abduction Adoes not require that the victim be held for any certain length

of time.@ Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim. App. 1980). Gonzales

further asserts that he could not have kidnapped Medina because he only moved her

about forty to fifty yards from the grassy short-cut to the dumpster. However, distance

is also irrelevant because kidnapping is established when the prosecution shows the

defendant=s Aspecific intent to prevent liberation by secreting or holding the person.@

Laster, 275 S.W.3d at 521-22 (finding that a defendant “kidnapped” a child when he

grabbed the child=s arm but let go of it seconds later when an eyewitness driver honked

at him).

       Viewing all of the evidence in a light most favorable to the verdict, we determine

that a rational trier of fact could have found all of the essential elements of aggravated

kidnapping beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Therefore,

the evidence is sufficient to support Gonzales’s conviction. Jackson, 443 U.S. at 318-

19; see Brooks, 2010 Tex. Crim. App. 1240, at *57. We overrule this issue.

                              III. RELEASE IN A SAFE PLACE

A.     Applicable Law

       By his next issue, Gonzales also contends that he proved by a preponderance of

the evidence that he released Medina in a safe place and therefore should be entitled to

a lower punishment range. As noted earlier, A[a]t the punishment stage of trial, the

defendant may raise the issue as to whether he voluntarily released the victim in a safe

place. If the defendant proves the issue in the affirmative by a preponderance of the

evidence, the offense is a felony of the second degree.@ TEX. PENAL CODE § 20.04(d).

The punishment range for a first-degree felony is five to ninety-nine years in prison,

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while the range for a second-degree felony is only two to twenty years. Id. §§ 12.32(a),

12.33(a).

       To constitute a voluntary release, Athe release must have occurred in a place and

manner which realistically conveyed [to the complainant] that she was then freed from

captivity and in circumstances and surroundings wherein aid was readily available.@

Harrell v. State, 65 S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref=d);

see Wiley v. State, 820 S.W.2d 401, 411 (Tex. App.—Beaumont 1991, no writ) (A[A]n

accused, in order to avail himself of the mitigating effect of § 20.04(b), must have

performed some overt and affirmative act that brings home to the victim that he/she has

been fully released . . . .@). To constitute a safe place, courts consider the following

factors: (1) the remoteness of the location; (2) the proximity of authorities or persons

who could aid or assist; (3) the time of day; (4) climactic conditions; (5) the condition of

the victim; (6) the character of the location or surrounding neighborhood; and (7) the

victim=s familiarity with the location or surrounding neighborhood. Woods v. State, 301

S.W.3d 327, 331-32 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Lavarry v. State,

936 S.W.2d 690, 696 (Tex. App.—Dallas 1996, pet. dism=d).

B.     Analysis

       Gonzales asserts that he released Medina near the dumpster and did not chase

her when she ran. Instead, he Asimply took the beer and ran in the opposite direction.@

He further contends Medina was not injured when she ran away, that the area from

where she ran was not remote, and that she was familiar with the location and the

neighborhood because she lived nearby.

       Gonzales had the burden of proof to show that he voluntarily released Medina,

                                            11
and the trial court as the factfinder determined that he did not meet this burden. Woods,

301 S.W.3d at 331 (citing Nolan v. State, 102 S.W.3d 231, 236-37 (Tex. App.—Houston

[14th Dist.] 2003, pet. ref=d). In support of this finding, we note that: (1) Gonzales forced

Medina to a remote location behind a storage building, which was dark and completely

obscured from traffic; (2) there were no persons in the area who could aid or assist

Medina, as Medina testified that she screamed several times for help and no one came

to her aid; (3) the abduction occurred at night; and (4) Medina tore her clothes and

scratched her arms and legs on a barbed-wire fence while fleeing. Woods, 301 S.W.3d

327, 331-32; Lavarry, 936 S.W.2d at 696. Importantly, we also note that Gonzales’s

written confession reveals that Medina “got loose from [Gonzales],” not that he

intentionally released her.

       We defer to the fact-finder as the sole judge of the facts, the credibility of the

witnesses, and the weight given to testimony. See TEX. CODE CRIM. PROC. ANN. art.

38.04; Beckham, 29 S.W.3d at 151. AIt is up to the factfinder to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.@ Laster, 175 S.W.3d at 522. In this case, the judge believed Medina=s

version of the facts over Gonzales=s, and we will not disturb this finding. See Brown v.

State, 98 S.W.3d 180, 188 (Tex. Crim. App. 2003).

       Viewing all of the evidence in a light most favorable to the verdict, we determine

that a rational trier of fact could have found that Gonzales did not release Medina in a

safe place. Laster, 275 S.W.3d at 517; see Jackson, 443 U.S. at 318-19. Therefore,

the evidence is sufficient. Jackson, 443 U.S. at 318-19; see Brooks, 2010 Tex. Crim.

App. 1240 at *57. We overrule this issue.


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                                     IV. CONCLUSION

         Having overruled all of Gonzales=s issues, we affirm the judgment of the trial

court.




                                                ________________________
                                                DORI CONTRERAS GARZA
                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
16th day of December, 2010.




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