      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00195-CR



                                   Leonard Saldana, Appellant

                                                 v.

                                   The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
         NO. 99-5748, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



               A jury found appellant Leonard Saldana guilty of capital murder. See Tex. Penal Code

Ann. § 19.03(a)(2) (West 1994). Pursuant to the jury’s findings at the punishment phase of trial, the

district court assessed punishment at life imprisonment. See id. § 12.31(a); Tex. Code Crim. Proc.

Ann. art. 37.071, § 2 (West Supp. 2001). Appellant challenges his conviction by four points of error.

We will affirm the conviction.


                      FACTUAL AND PROCEDURAL BACKGROUND

               Appellant and the victim, Sylvia Hernandez, lived together in Austin until January

1998. They had one daughter. On January 12 Hernandez called police after she and appellant

argued. Hernandez reported to the responding officer that after she told appellant that she was

ending their relationship, he pointed a gun at her at said, “This isn’t over until one of us is dead.”

Hernandez obtained a protective order on January 14, which forbade appellant from going within two

hundred yards of Hernandez or any location where appellant knew her to be. She also moved with
her daughter into her parents’ home and continued living there until her death on April 4. On March

5 Austin police received a call from Hernandez complaining of a violation of the protective order.

The responding officer testified that Hernandez reported to him that appellant had “pulled alongside

her [car] and started yelling to her.” In the early morning of March 15, Hernandez “flagged down”

a police officer and reported that appellant had harassed her and tried to keep her from leaving a

party. She further reported that appellant had damaged her vehicle. Later on that same evening,

Hernandez reported to police that appellant had “tried to come in the back of her house from the back

window.” On March 28 Hernandez called the police to complain of a disturbance at her home. She

reported that appellant had come to her house, banged on the front door, and broken the windows

in her bedroom.

               At approximately 7:30 on the morning of April 4, appellant arrived at Hernandez’s

home in his truck and blocked Hernandez’s driveway. Hernandez was loading laundry into her car

when appellant arrived. According to Bernadette Rosales, Hernandez’s neighbor, appellant jumped

out of his truck, screamed at Hernandez, punched her in the face, grabbed her by her hair, pulled her

to his truck, and threw her inside. Although witnesses were unable to see what happened inside the

truck, they testified that Hernandez screamed for help and asked appellant to let her go. Danny

Rosales heard the disturbance and ran outside to help Hernandez. Rosales briefly struggled with

appellant in an attempt to divert attention away from Hernandez long enough for her to escape.

Bernadette Rosales testified that at one point during the struggle, appellant convinced Danny Rosales

to back away by displaying his knife and telling Rosales, “I will kill you, too.”




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                  Appellant stabbed Hernandez several times, then told her to get out of his truck.

Hernandez crawled out, and appellant drove away. Hernandez died minutes later.


                                              DISCUSSION

Sufficiency of the Evidence

                  By his first and second points of error, appellant argues that the evidence is legally and

factually insufficient to support his conviction for capital murder because “the State offered no, or

insufficient, evidence to prove that appellant either kidnapped or attempted to kidnap Sylvia

Hernandez.”

                  In his first point of error, appellant contends that no rational trier of fact could have

found that he murdered Hernandez in the course of a completed or attempted kidnapping. The

standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the

light most favorable to the jury’s verdict, any rational trier of fact could have found beyond a

reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990); Aiken v. State, 36

S.W.3d 131, 132 (Tex. App.—Austin 2000, no pet.). In our review of the legal sufficiency of the

evidence, we must consider all the evidence that the jury was permitted, properly or improperly, to

consider. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). Whether the evidence

meets the standard set out in Jackson is a question of law. Clewis v. State, 922 S.W.2d 126, 132

(Tex. Crim. App. 1996); Grant v. State, 989 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.]

1999, no pet.).




                                                      3
    A. Capital Murder

               A person commits the offense of capital murder if he intentionally or knowingly causes

an individual’s death in the course of committing or attempting to commit a kidnapping. Tex. Penal

Code Ann. §§ 19.02(b)(1), .03(a)(2) (West 1994). Because appellant did not contest that he

intentionally killed Hernandez, the State had the burden of proving only that he caused her death

during a completed or attempted kidnapping.


    B. Kidnapping

               A person commits the offense of kidnapping when he knowingly or intentionally

abducts another person. Id. § 20.03(a). To “abduct” means to restrain a person with intent to

prevent her liberation by either: (1) secreting or holding her in a place where she is not likely to be

found, or (2) using or threatening to use deadly force. Id. § 20.01(2) (West Supp. 2001). “Restrain”

means to restrict a person’s movements without consent, so as to interfere substantially with her

liberty, by moving her from one place to another or by confining her. Id. Restraint is “without

consent” if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A).

               The statute contains two components: a required criminal act and a required culpable

mental state. King v. State, 961 S.W.2d 691, 693-94 (Tex. App.—Austin 1998, pet. ref’d). The sole

act involved in a kidnapping is restraint. Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App.

1995). Texas courts have established that secreting and using or threatening to use deadly force are

part of the culpable mental state that must be shown to prove kidnapping. Brimage v. State, 918

S.W.2d 466, 475 (Tex. Crim. App. 1996); King, 961 S.W.2d at 693-94. In other words, a kidnapper

must intend to prevent his victim’s liberation by one of such acts.

                                                  4
               The State need not prove that the accused completed a kidnapping. Tex. Penal Code

Ann. § 19.03(a)(2). One can be guilty of capital murder if the State can show the murder occurred

during an attempt to kidnap the victim. Id. Criminal attempt requires both the commission of an act

that amounts to more than mere preparation and a specific intent to commit the offense. Id. § 15.01

(West 1994). Thus, to establish that appellant kidnapped or attempted to kidnap Hernandez, the

State had the burden of proving that (1) appellant restrained Hernandez or accomplished more than

mere preparation for restraint, (2) the restraint was without Hernandez’s consent, and (3) appellant

acted with the specific intent to prevent Hernandez’s liberation by either secreting or using or

threatening to use deadly force to restrain her.

               Appellant does not dispute that he restrained Hernandez without her consent.

Therefore, we focus only on the State’s third burden. The question before us is whether, viewing the

evidence in the light most favorable to the jury’s verdict, a rational trier of fact could have found

beyond a reasonable doubt that appellant acted with the specific intent to commit kidnapping.

               During a videotaped confession that was played to the jury, appellant recalled that as

soon as he arrived at Hernandez’s home on April 4, he and Hernandez began arguing. He stated, “I

just told her, I said, ‘You need to come with me. You need to come over to the house so I can calm

down,’ and she didn’t want to come with me, so I forced her into the truck.” Appellant further

related his telling Hernandez, “You are coming with me right now.” When Hernandez refused to

voluntarily get into appellant’s truck, he threw her in. Once Hernandez was inside his truck, appellant

stated, “I just got caught up in the moment. The knife just happened to be there.” Based on the

videotaped confession, the jury could infer that appellant intended to abduct Hernandez when he



                                                   5
forced her into his truck, and it was only when she physically resisted that he decided to stab her. See

Santellan v. State, 939 S.W.2d 155, 163-64 (Tex. Crim. App. 1997).

                Appellant argues that his actions leading to the murder of Hernandez amounted to

false imprisonment, not kidnapping or attempted kidnapping.1 We disagree. “A false imprisonment

becomes a kidnapping when an actor evidences a specific intent to prevent liberation by either

secretion or deadly force.” Brimage, 918 S.W.2d at 475. As previously discussed, the jury was

permitted to infer that appellant acted with a specific intent to prevent Hernandez’s liberation by the

use of deadly force.

                Appellant urges this Court to adopt Judge Miller’s concurring and dissenting opinion

in Brimage, which asserts that a finding of kidnapping or attempted kidnapping must be supported

by evidence of substantial movement. Id. at 484-92 (Miller, J., concurring and dissenting). Under

Judge Miller’s theory, kidnapping requires “some intentional confinement, restraint, or movement of

the victim that is . . . separate and distinguishable from the confinement, restraint, or movement

attendant to another offense.” Id. at 490. This Court has previously declined to follow such

interpretation. See, e.g., King, 961 S.W.2d at 693-94 (holding evidence was sufficient to support

conviction for kidnapping when actor physically picked up semi-conscious victim from doorway of

bar and carried her to alley); Warner v. State, 944 S.W.2d 812, 814-15 (Tex. App.—Austin 1997)

(holding evidence was sufficient to support conviction for kidnapping when actor grabbed victim,

threw her into wall, twisted her arm until it broke, sat on her, then attempted to tie her with lariat),




  1
    A person commits false imprisonment if he intentionally or knowingly restrains another person.
Tex. Penal Code Ann. § 20.02 (West 1994).

                                                   6
pet. dism’d, improvidently granted, 969 S.W.2d 1 (Tex. Crim. App. 1998); see also Price v. State,

35 S.W.3d 136, 139-41 (Tex. App.—Waco 2000, no pet.) (holding evidence was sufficient to

support conviction for kidnapping when actor shoved victim from one area of hotel room to another).

The intent to prevent liberation is part of the mens rea of kidnapping, not the actus reus. Cf. King,

961 S.W.2d at 694 (citing Mason, 905 S.W.2d at 575) (holding “secretion requirement of abduction”

is part of mens rea).

                Today we again follow Brimage’s majority and hold that the evidence is legally

sufficient to support appellant’s conviction. Viewing the evidence in the light most favorable to the

jury’s verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant acted

with the specific intent to prevent Hernandez’s liberation by the use of deadly force. We overrule

appellant’s first point of error.

                In his second point of error, appellant contends that the “jury’s failure to find appellant

did not kidnap, or attempt to kidnap, Sylvia Hernandez was against the great weight and

preponderance of the evidence.” When conducting a factual-sufficiency review, we do not view the

evidence in the light most favorable to the verdict. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim.

App. 2000). Instead, we consider all evidence in a neutral light. Id. However, we do not substitute

our judgment for that of the jury and will set aside a verdict only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7; Clewis, 922 S.W.2d

at 129; Shelton v. State, 41 S.W.3d 208, 211 (Tex. App.—Austin 2001, pet. filed). A court of

appeals should reverse on factual-insufficiency grounds only when the jury verdict is manifestly

unjust, shocks the conscience, or clearly demonstrates bias. Clewis, 922 S.W.2d at 135.



                                                    7
                Appellant argues that the evidence shows that he held the specific intent to commit

murder, not kidnapping. Specifically, appellant points to the testimony of Bernadette Rosales.

Rosales stated that when her husband, Danny, attempted to rescue Hernandez, appellant smiled and

said, “I will kill you, too.” We agree that appellant’s statement shows that he held a specific intent

to commit murder. However, we are unable to hold that appellant’s statement precludes a finding

of specific intent to kidnap. As soon as appellant arrived at Hernandez’s home on the morning of

April 4, he stated to her, “You need to come with me. You need to come over to the house so I can

calm down.” This statement alone lends adequate support to the jury’s finding that appellant held

the requisite intent to kidnap. We hold that, viewing all the evidence in a neutral light, the verdict is

not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See

id. at 129; Shelton, 41 S.W.3d at 211. We overrule appellant’s second point of error.


Admissibility of the Evidence

    A. Waiver of Miranda Rights

                In his third point of error, appellant contends that the “trial judge erred in admitting

[his] written statement and the videotaped oral statement because both statements occurred after [he]

refused to waive his Miranda rights.” See Miranda v. Arizona, 384 U.S. 436 (1966). Appellant

argues that his oral and written confessions were improperly admitted as evidence for two reasons.

First, he argues that he did not voluntarily waive his right to remain silent. Second, he argues that

he never possessed the requisite level of comprehension of his right to appointment of an attorney.




                                                   8
               When appellant was arrested, Officer Philip Linsalata read him his Miranda rights from

a standard blue card and asked him if he understood the rights. 2 Appellant responded affirmatively,

then stated that he “[had] nothing to say.” However, on the way to the police station, appellant asked

about the condition of Hernandez. Linsalata responded that he did not know, then asked appellant

what had happened. Appellant answered that he and Hernandez “had a domestic argument.”

Appellant went on to say that he had stabbed Hernandez, but he was not responsible because he was

intoxicated. When Linsalata questioned him further, appellant said, “I think I should keep quiet for

now.” Linsalata then ceased his questioning.

               Appellant was taken to the interview room of the Austin Police Department, where

he was interrogated by Detective Douglas Skolaut. Skolaut read appellant his Miranda rights for the

second time, and appellant indicated that he understood them. Later in the interview, appellant

inquired as to how he could obtain a lawyer. A portion of the transcript of the interview follows:


       [Saldana] A. If I wanted a lawyer, where would a lawyer come from?

       [Skolaut] Q. Well, you can call one if you wanted one.

                   A. I ain’t got no money for a damn lawyer. I mean I got a lawyer, but --
                      it’s too expensive.




  2
     “Miranda rights” derive from Miranda v. Arizona, 384 U.S. 436 (1966), and refer to warnings
that must be read to suspects in custody. Officers must warn the accused that (1) he has the right to
remain silent and not make any statement at all and that any statement he makes may be used against
him at his trial; (2) any statement he makes may be used as evidence against him in court; (3) he has
the right to have a lawyer present to advise him prior to and during questioning; (4) if he is unable
to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any
questioning; and (5) he has the right to terminate the interview at any time. Tex. Code Crim. Proc.
Ann. art. 38.22, § 2 (West 1979).

                                                  9
                   Q. Are you asking me for a lawyer?

                   A. No, I’m not asking you for a lawyer. I’m just asking.

                   Q. Okay.

                   A. I mean I’m going to cooperate.

                   Q. I just need to be real clear that you are not asking for a lawyer.
                      Okay. I mean it looks to me like you are trying to straighten this
                      thing out. Let’s get it straightened out and get on with it.

                   A. That’s no problem.

                   Q. But I want to make sure that you are not asking me for a lawyer.

                   A. No, I’m not asking for a lawyer.

                   Q. I have to be real clear on that.

                   A. No, I am not asking for a lawyer.


               Appellant’s first argument relies on Jacobs, which held that in order for a defendant

to waive a Miranda right, he must do so voluntarily, knowingly, and intelligently. Jacobs v. State,

787 S.W.2d 397, 401 (Tex. Crim. App. 1990). Appellant contends that the waiver of his right to

remain silent was not voluntary because he had twice expressed his desire to remain silent before

giving his confession. We disagree.

               If a suspect is in custody, “a failure to cut off questioning after the suspect invokes

his right to remain silent violates his rights and renders any subsequently obtained statements

inadmissible.” Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) (citing Michigan v.

Mosley, 423 U.S. 96 (1975)). However, we do not believe that appellant ever invoked his right to

remain silent. An interrogating officer is not required to cease questioning unless the suspect

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unambiguously invokes a right. Id.; Zervos v. State, 15 S.W.3d 146, 154 (Tex. App.—Texarkana

2000, pet. ref’d). Furthermore, police officers are not required to ask questions to clarify whether

a suspect wishes to invoke his right to remain silent. Dowthitt, 931 S.W.2d at 257. In Dowthitt, the

appellant argued that he had invoked his right to remain silent when he stated, “I can’t say more than

that. I need to rest.” The court of criminal appeals disagreed, stating that “appellant’s invocation of

his right to remain silent was ambiguous, and [the interrogating officer] did not violate appellant’s

rights by continuing the interrogation.” Id.

                After he initially told Linsalata that he had nothing to say, appellant waived his right

to remain silent by initiating a conversation with the officer. The only other statement from appellant

that could be interpreted as an indication of his intention to invoke his right to remain silent was when

he told Linsalata, “I think I should keep quiet for now.” Following this statement, Linsalata asked

no more questions.

                Appellant never indicated to Skolaut that he wished to invoke his right to remain

silent. After Skolaut read appellant his Miranda rights for the second time, appellant responded that

he understood all of the rights. Furthermore, after he had given his videotaped confession, appellant

signed a written confession that stated, “I fully understand each and all of the rights contained in the

[Miranda] warnings. I do hereby knowingly, intentionally and voluntarily, before and during the

making of this statement, waive my rights as explained above.” Therefore, Skolaut was permitted

to conduct the interrogation that led to appellant’s videotaped and written confessions. See id.

                Appellant’s second argument focuses on his asserted misunderstanding of his right to

appointment of counsel. Appellant contends that if Skolaut had made clear that he did not have to



                                                   11
pay for the services of an attorney, then appellant would have asked for one. Appellant maintains that

his confession would not have taken place because he could not be questioned any further until an

attorney was present. See Davis v. United States, 512 U.S. 452, 458 (1994); Miranda, 384 U.S. at

444. Appellant asserts that, despite the fact that he had twice stated that he understood his Miranda

rights, Skolaut should have taken more time to ensure that he understood his right to counsel. We

disagree. Where “a person’s invocation of his right to counsel is not clear and unambiguous, . . . the

interrogating officers are not required to automatically cease the interview, but may continue

questioning as long as the questions are specifically aimed at discovering whether the accused indeed

wants to consult with counsel or wishes to proceed with the interview without benefit of counsel.”

Etheridge v. State, 903 S.W.2d 1, 18 (Tex. Crim. App. 1994) (citing Robinson v. State, 851 S.W.2d

216, 223-24 (Tex. Crim. App. 1991)).

               The waiver of a Miranda right must be made knowingly and intelligently. Miranda,

384 U.S. at 421; Jacobs, 787 S.W.2d at 401. A suspect cannot waive a Miranda right unless he

holds the “requisite level of comprehension” concerning what the right includes. Jacobs, 787 S.W.2d

at 401. Here the record reflects that appellant understood his right to counsel well enough to waive

it. Skolaut fully complied with the procedures required by Miranda. See Tex. Code Crim. Proc.

Ann. art. 38.22, § 2 (West 1979). Before appellant confessed to the murder of Hernandez, he stated

that he understood his rights. Having expressed that he understood the warnings he had been given

and the record reflecting no evidence to the contrary, appellant was bound by his statements.

               We hold that appellant voluntarily, knowingly, and intelligently waived his Miranda

rights before he confessed to the murder of Hernandez and overrule appellant’s third point of error.



                                                 12
    B. Intoxication

                In his fourth point of error, appellant contends that his written and videotaped

confessions were improperly admitted as evidence because “both of the statements were involuntary

as a result of intoxication.” Appellant asks this Court to hold that the district court abused his

discretion by admitting appellant’s oral and written confessions because, prior to giving the

confessions, appellant had “ingested alcohol and controlled substances sufficient to render him

intoxicated.”

                “At a hearing on appellant’s motion to suppress evidence, the trial court is the sole

judge of the weight and credibility of the evidence.” Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim.

App. 2000). Our review is limited to determining whether the district court abused his discretion by

admitting appellant’s confessions. See id. Before we can determine that appellant’s confessions were

involuntary, we must find that, at the time the confessions were made, appellant was unable to make

an independent, informed choice of free will. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim.

App. 1996); Nichols v. State, 754 S.W.2d 185, 190 (Tex. Crim. App. 1988). Even if we assume that

appellant was intoxicated when he was arrested and interrogated, that fact alone is not sufficient to

render his confession involuntary. See Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994)

(op. on reh’g) (citing Nichols, 754 S.W.2d at 190). “The central question is the extent to which

appellant was deprived of his faculties due to the intoxication.” Nichols, 754 S.W.2d at 190.

                The record reflects that, at the time appellant confessed, he had not been deprived of

his faculties and was able to make an independent, informed choice of free will. See id. For example,

before he was brought to the police station, appellant was able to comprehend that intoxication serves



                                                 13
as a defense to criminal actions in some situations. Appellant told Linsalata, “I’m not in my right

mind. I take a lot of drugs and I had been drinking. Did you see beer in my truck? I am not

responsible for this.” He understood that it would benefit him to convince the arresting officers that

he was under the influence of alcohol and drugs when he stabbed Hernandez. Additionally, while he

was being questioned by Skolaut, appellant was coherent enough to make the decision that he did not

want to call his own attorney because it would be too expensive.

               Furthermore, neither of the police officers who tended to appellant during his arrest

and interrogation testified that they believed he was intoxicated. Linsalata stated that while he was

taking appellant to the police station, “[Appellant] did not appear to be intoxicated.” Skolaut, the

officer who administered the interrogation that led to appellant’s confession, testified that he “didn’t

notice anything that would really indicate to [him] that [appellant] was extremely, quote, high.”

Skolaut stated that appellant told him he had taken forty units of cocaine prior to the murder, but a

blood test revealed that appellant had ingested only .3 milligrams of cocaine. The evidence supports

the district court’s finding that appellant was not so intoxicated as to render his confession

involuntary. See Jones, 944 S.W.2d at 651; Garcia, 919 S.W.2d at 387; Jenkins v. State, 912

S.W.2d 793, 807 (Tex. Crim. App. 1993); Higgins v. State, 924 S.W.2d 739, 743-45 (Tex.

App.—Texarkana 1996, writ ref’d).

                We hold that the admission of appellant’s written and videotaped confessions was not

a clear abuse of discretion. We overrule appellant’s fourth point of error.




                                           CONCLUSION

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              Having overruled appellant’s four points of error, we affirm the district-court

judgment.




                                            __________________________________________

                                            Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: July 26, 2001

Publish




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