                              Fourth Court of Appeals
                                     San Antonio, Texas
                                   DISSENTING OPINION
                                        No. 04-13-00789-CR

                                  John Christopher DOMINGUEZ,
                                              Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR3592
                              Honorable Sid L. Harle, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: March 25, 2015

           The Legislature saw fit to mitigate the punishment in aggravated kidnappings where the

defendant voluntarily releases his victim in a safe place. A victim is released when she realizes

that she is freed from captivity. In this case, both the victim’s testimony that the defendant was

“gone” and her actions in telephoning her sister to pick her up and then leaving the motel clearly

reflect her realization that she was freed from captivity. Because the majority completely ignores

the victim’s testimony and actions and instead erroneously views the evidence regarding “release”

solely from the defendant’s perspective, I respectfully dissent.
Dissenting Opinion                                                                     04-13-00789-CR


Evidence at Trial

        Dominguez and sixteen year-old D.P. met while chatting on Facebook in late 2012.

Facebook messages admitted into evidence showed that Dominguez told D.P. that he would take

her shopping and buy her a cell phone and clothes. D.P. told Dominguez that she would be his

“sugar baby.” On January 18, 2013, D.P. agreed to let Dominguez pick up her and a friend and

together they all went to the mall.

        D.P. testified that two days later she agreed to let Dominguez pick her and a friend up from

a post office near her friend’s house. Before he picked her up, D.P. messaged Dominguez and told

him, “Oh but one thing i needa say, i dont give head and i dont do anal[;] and I rarely kiss on the

mouth.” After some time passed, Dominguez drove the girls to a motel where he sexually assaulted

D.P. D.P. testified that after the assault, she joined her friend in the bathroom and locked the door.

She testified that Dominguez knocked on the bathroom door and told her that he was leaving. It

is undisputed that Dominguez then left the motel. D.P. testified that after Dominguez left, she fell

asleep in the bathroom for about 30 minutes. Once she awoke, D.P. exited the bathroom and began

making calls on the telephone located in the motel room. She was able to reach her sister, who

agreed to come pick up her and her friend. D.P. did not know where the motel was located, so her

sister instructed her to go outside and look for the nearest intersection. D.P. went to the motel’s

front office to ask for directions, but no one was there. D.P. returned to the motel room and told

her sister she was going to walk to a nearby restaurant. D.P. and her friend then walked to a Pizza

Hut and again called her sister from the restaurant’s telephone. Twenty minutes later, her sister

arrived at the Pizza Hut.

        Approximately five or six days later, Dominguez was questioned by the police. In the

interview, Dominguez stated that on the day in question, he had an appointment to “get” plasma;



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Dissenting Opinion                                                                      04-13-00789-CR


Dominguez indicated the process takes about two hours. He told the officer he could not take the

girls with him to the plasma center, so he told the girls to stay in the motel room unless they wanted

to wait in his car for two hours at the plasma center. He told the girls that he would bring back

some food, and he said he called the room twice to ask what they wanted to eat. Dominguez stated

that he was surprised when he returned to find the girls gone.

        The trial court denied Dominguez’s request to make a finding of voluntary safe release,

and instead assessed punishment within the first degree felony range, stating: “So I will refrain

from making the finding that [defense counsel] has asked. That is an appellate point.” Dominguez

does not challenge on appeal the kidnapping or sexual assault charge.

Burden of Proof and Applicable Law

        In reviewing the evidence presented at trial, I am mindful that Dominguez was required to

prove that he (1) voluntarily (2) released D.P. in a (3) safe place by a preponderance of the

evidence, which is a lesser burden of proof than the “beyond a reasonable doubt” criminal burden

of proof. See TEX. PENAL CODE ANN. § 20.04(d) (West 2011); Hacker v. State, 389 S.W.3d 860,

864-65 (Tex. Crim. App. 2013); Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998). To

satisfy this burden, the “greater weight of the credible evidence” must create a “reasonable belief”

that the defendant voluntarily released the victim in a safe place. See Scamardo v. State, 517

S.W.2d 293, 298 (Tex. Crim. App. 1974). In addressing sufficiency of the evidence to support an

adverse finding on an affirmative defense, the Court of Criminal Appeals has recently directed,

        [i]n a legal-sufficiency review of an affirmative defense, reviewing courts should
        first assay the record for a scintilla of evidence favorable to the factfinder’s finding
        and disregard all evidence to the contrary unless a reasonable factfinder could not.
        See Matlock v. State, 392 S.W.3d 662, 669-670 (Tex. Crim. App. 2013). The
        finding of the factfinder rejecting a defendant’s affirmative defense should be
        overturned for lack of legal sufficiency only if the appealing party establishes that
        the evidence conclusively proves his affirmative defense, and ‘no reasonable
        [factfinder] was free to think otherwise.’ Id. at 670.

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Dissenting Opinion                                                                                      04-13-00789-CR


         In a factual-sufficiency review of a finding rejecting an affirmative defense, and
         unlike in a legal-sufficiency review, courts examine the evidence in a neutral light.
         Id. at 671. A finding rejecting a defendant’s affirmative defense cannot be
         overruled unless, ‘after setting out the relevant evidence supporting the verdict, the
         court clearly states why the verdict is so much against the great weight of the
         evidence as to be manifestly unjust, conscience-shocking, or clearly biased.’ Id.

Butcher v. State, --- S.W.3d ---, No. PD-1662-13, 2015 WL 359087, at *5 (Tex. Crim. App. Jan.

28, 2015).

         To avail himself of the mitigating effect 1 of Section 20.04(d), Dominguez must have

proved by a preponderance of the evidence that he “performed ‘some overt and affirmative act’

which brought home to his victim that she had been ‘fully released from captivity.’” Harrell v.

State, 65 S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). “That release must

have occurred in a place and manner which realistically conveyed to [the victim] that she was then

freed from captivity and in circumstances and surroundings wherein aid was readily available.”

Id.; Woods v. State, 301 S.W.3d 327, 331 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

         The term “voluntarily” in Section 20.04(d) is narrowly interpreted as the absence of “rescue

by the police [or others] or escape by the [kidnap] victim.” Brown v. State, 98 S.W.3d 180, 188

(Tex. Crim. App. 2003). The Court of Criminal Appeals has defined “escape” to mean “to get

oneself free from confinement or control.” Russell v. State, 90 S.W.3d 865, 870 (Tex. App.—San

Antonio 2002, pet. ref’d) (quoting Estep v. State, 901 S.W.2d 491, 495 (Tex. Crim. App. 1995)).




1
  I am constrained by the Court of Criminal Appeals’ recent decision in Butcher v. State, - - - S.W.3d - - -, No. PD-
1662-13, 2015 WL 359087, at *5 (Tex. Crim. App. Jan. 28, 2015), to review the trial court’s rejection of Dominguez’s
request for a finding that he voluntarily released D.P. in a safe place as an affirmative defense, and not as a mitigation
issue. See id. at *7 (Meyers, J., dissenting, and noting that the majority incorrectly analyzes the section 22.04(d) issue
as an affirmative defense instead of a mitigation issue); see also TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(f)(4)
(West Supp. 2014) (mitigating evidence is evidence that might reduce the defendant’s “moral blameworthiness”);
compare Resendiz v. State, 112 S.W.3d 541, 550 (Tex. Crim. App. 2003) (a positive jury finding on a mitigation issue
has the potential to reduce a defendant’s sentence); with Gilbert v. State, PD-1645-08, 2010 WL 454966, at *6 (Tex.
Crim. App. Feb. 10, 2010) (not designated for publication) (Keller, P.J., concurring) (affirmative defense absolves
defendant of criminal liability for an offense).


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Dissenting Opinion                                                                               04-13-00789-CR


It is undisputed that Dominguez left the motel room voluntarily, 2 i.e., absent any “rescue by the

police [or others] or escape by the [kidnap] victim.” See Brown, 98 S.W.3d at 188. Under Brown,

the uncontested “voluntary” element necessarily disposes of any consideration of “escape.” The

majority must “agree that the record is devoid of any evidence indicating that Dominguez

involuntarily left(,)” i.e., there is no evidence supporting the trial court’s rejection of the

“voluntary” element of the affirmative defense.

Analysis - Was D.P. “Released”?

        The question then becomes, was there evidence of “release?” Did Dominguez perform an

“overt and affirmative act” which caused D.P. to realize that she was “fully released from

captivity?” Harrell, 65 S.W.3d at 772. D.P. testified that Dominguez told her, “That he’s going

to leave now, that he’s leaving us there.” She stated that he “knocked [on the bathroom door] and

says, ‘Hey, I’m leaving’ and takes off.” She then stated that she cried with her friend and then she

“fe[l]l asleep for like 30 minutes. And then I woke up and we went back out into the room where

the phone was. And [my friend] sat on the sofa near the bed and I sat on the bed and I started

calling everybody that I knew that could come pick us up.” Once D.P. reached her sister, her

sister—assuming that Dominguez was still in the motel room—told D.P. to “[j]ust listen to

whatever he says and just don’t give him any reason to hurt you.” D.P. told her, “Well, he’s already

gone.” Her sister then said, “Okay, well, run to the nearest intersecti[on]. . .” D.P. then left the

room and went to the motel’s front office to see if she could find the exact location of the motel,

but no one was there. She waited five minutes, and then went back to the motel room to tell her




2
  The Court of Criminal Appeals held that the term “voluntarily” was ambiguous as used in the language of the
aggravated-kidnapping statute because it was “susceptible to different meanings some of which would support a
holding that appellant’s release of the victim was voluntary and some of which would support a contrary decision.”
Butcher, 2015 WL 359087, at *2 (citing Brown, 98 S.W.3d at 183). Whether the appellant’s release was voluntary is
undisputed here.

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Dissenting Opinion                                                                               04-13-00789-CR


sister that she was just going to go to the nearest store. D.P. and her friend then “ran to Pizza Hut,”

where they again called her sister; her sister came to the Pizza Hut twenty minutes later and picked

them up.

        I believe the record lacks even a scintilla of evidence that Dominguez did not release D.P.

D.P. is told by Dominguez and later assures her sister that Dominguez has left her in the motel

room. The record is notably devoid of any evidence indicating that D.P. did not realize she was

“fully released from captivity” once Dominguez left the motel, or that D.P.’s liberty was

substantially interfered with by any threat or restraint. Although Dominguez told the police that

he told the girls he was coming back with food, D.P. never testified she heard him say he was

going to return or that she otherwise feared or expected his return at any time. Even assuming she

heard Dominguez say he would return, the possibility of his return posed no substantial

interference in her ability to leave the motel room. Noteworthy, the record is wanting of evidence

that could reasonably support a finding that she was afraid or felt it was unsafe to leave the motel

room, that she felt confined, or under the kidnapper’s control, or that her liberty was restrained in

any way. The majority’s reasoning must assume facts to support the rejection of a finding of

“release,” i.e., that D.P. knew Dominguez would eventually return, and that D.P. did not realize

that she was released from “captivity.” In fact, the State contends that Dominguez abandoned D.P.

in the motel room, which in my opinion essentially concedes that Dominguez not only released

her but relinquished any further course of action that involved D.P. 3

        The majority’s assumptions are not based on record evidence and, in fact, conflict with

D.P.’s actions following the defendant’s departure. D.P. testified she slept for thirty minutes

before exiting the bathroom. D.P. remained in the motel room while repeatedly using the readily-


3
 “Abandon” is defined as “[t]o relinquish or give up with intent of never again resuming one’s right or interest.”
BLACK’S LAW DICTIONARY 2 (5th ed. 1979).

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Dissenting Opinion                                                                                       04-13-00789-CR


available telephone to call for a ride and assured her sister that Dominguez was “gone.” She left

and later returned to the motel room before finally leaving for a nearby Pizza Hut. The record

contains no evidence indicating D.P. had any sense of a continuing restraint, an expectation of the

kidnapper’s return at any time, or a fear or threat of pursuit.

         The majority’s reliance on Ballard v. State, 161 S.W.3d 269 (Tex. App.—Texarkana 2005),

aff’d, 193 S.W.3d 916 (Tex. Crim. App. 2006), is misplaced. Ballard, unlike the present case,

involved (1) police intervention and rescue, and (2) kidnapping by gunpoint and “some continuing

control over the victim” precluding a finding of (i) voluntary (ii) release. Id. at 274-76. The

Ballard facts support a legal finding by the factfinder rejecting the affirmative defense. Although

the Court of Criminal Appeals found “such actions by the kidnapper” determinative, the majority

here focuses instead on the actions of D.P. (using the phone and leaving the motel room) as

“actions more consistent with escape rather than voluntary release” and refers without explanation

to “ample evidence” that Dominguez did not voluntarily release D.P. “considering the surrounding

circumstances.” 4 On review, this court should properly consider the undisputed voluntariness of

Dominguez’s conduct in telling D.P. he was leaving and then leaving the motel, the absence of

rescue, the victim’s acknowledgment that he was gone, and the lack of evidence of any continuing

threat or actual restraint of liberty, confinement or control over D.P. after Dominguez’s departure

that effectively prevented her from using the phone and leaving. Certainly, the record contains no

evidence of actual harm or risk of harm posed to D.P. based on her having been left in the motel

room or upon her leaving the motel.




4
  The majority also relies on Dominguez’s statement to police that he told the girls to either stay in the motel room or
wait in his car for two hours while he went to get plasma as evidence that he did not intend to release D.P.; the majority,
however takes Dominguez’s statement out of context. The statement Dominguez claimed to make to D.P. was not
made as a warning or a threat, but merely as an explanation to the police as to why he left the girls unattended in the
motel room.

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Dissenting Opinion                                                                     04-13-00789-CR


        Further, I disagree with the majority that testimonial evidence from Dominguez’s recorded

interview - that Dominguez told them “you have to stay here,” that “he would be back,” that he

intended to return and for the girls to remain in the motel room, precludes the requested affirmative

defense. A kidnapper’s intent or motives, without evidence of “some continuing power over the

victim during the time he left,” exerted through violence or threat of violence, is inapposite. See

Butcher, 2015 WL 359087, at *7 (Newell, J., concurring). “Section 20.04 does not require a

showing of the defendant’s motive in releasing the victim or that he take affirmative steps to undo

the consequences of his conduct.” Butcher, 2015 WL 359087, at *7 (Newell, J., concurring);

Brown, 98 S.W.3d at 188 (Meyers, J., concurring) (noting that voluntary release does not consider

the defendant’s subjective motives). Without more, there is less than a scintilla supporting the

rejection of the affirmative defense. The trial court’s rejection of the requested affirmative defense

should be overturned since, as explained herein, the evidence conclusively proves his affirmative

defense and no reasonable factfinder was free to think otherwise.

        Moreover, I believe the court’s rejection of the affirmative defense was so against the great

weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.

        The other authorities cited by the majority are likewise distinguishable. In Ex parte

Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005), the Court held there was no voluntary

release where the defendant left the victims, who had been tortured and sexually abused, in an

apartment behind locked burglar bars, forcing the victims to exit through a second-story window

and climb down a tree. Clearly, in that situation, the victims were not free to depart unhindered,

but were forced to escape under unsafe conditions. In Cooks v. State, 169 S.W.3d 288, 291-93

(Tex. App.—Texarkana 2005, pet. ref’d), the defendant escorted his kidnapping victim to the

hospital with a gun in his pocket and told her not to talk; it was not until hospital personnel



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Dissenting Opinion                                                                   04-13-00789-CR


intervened and separated the victim from the defendant that she felt released from captivity and

told them that he had kidnapped her and that she sustained her injuries by jumping out of the car

in an attempt to escape. Undoubtedly, such conduct by the defendant does not constitute an “overt

and affirmative act” which would signal to the victim that she was “fully released from captivity.”

See Harrell, 65 S.W.3d at 772. Finally, the majority cites Harrell, in which the court of appeals

held that the defendant was not entitled to a safe release finding where he left his victim, who had

been abducted at knifepoint, bound and gagged on the side of the road. Id. The court of appeals

went on to state that it need not decide whether the victim was actually “released” because the

record contained ample evidence that she was not left in a “safe place.” Id. at 772-73 (noting the

victim was left, in the early morning hours of a cold winter’s day, on the side of a sparsely

populated, dimly lit road, which had been the site of numerous crimes; also, a pack of wild dogs

roamed the area).

        Simply put, every opinion that has affirmed the rejection of a safe release finding on the

specific issue of “release” contains fact scenarios that are simply not on par with the “release”

evidence before us. See, e.g., Gaither v. State, No. 04-10-00548-CR, 2011 WL 3915820, at *5

(Tex. App.—San Antonio Sept. 7, 2011, no pet.) (mem. op.) (not designated for publication) (no

voluntary release even though defendant left the house where the victim was assaulted because the

victim had been strangled to the point of unconsciousness and was left in the company of a person

who was a party to her earlier beating); Girdy v. State, 175 S.W.3d 877, 880-81 (Tex. App.—

Amarillo 2005), aff’d, 213 S.W.3d 315 (Tex. Crim. App. 2006) (no voluntary release where

defendant did not stop vehicle carrying victim until directed to do so by police); Fowler v. State,

958 S.W.2d 853, 860 (Tex. App.—Waco 1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999)

(no release where police demanded that defendant surrender and release victim).



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Dissenting Opinion                                                                     04-13-00789-CR


        While Ballard and the other cases cited by the majority are inapplicable to the case before

us, I find Lavarry v. State, 936 S.W.2d 690, 696-99 (Tex. App.—Dallas 1996, pet. dism’d),

compelling for its discussion regarding “release.” In that case, the defendant held his ex-girlfriend

and her boss at gunpoint for almost four hours at the ex-girlfriend’s apartment. Id. at 693. The

defendant eventually left the boss at the apartment and took his ex-girlfriend with him. Id. Before

he left, the defendant told the boss not to call the police or he would kill the ex-girlfriend. Id. The

ex-girlfriend then drove the defendant to his best friend’s aunt’s house. Id. When they arrived,

the defendant again told the ex-girlfriend, “I told your friend not to call the police, but I know they

are already over there. But you haven’t heard the last of this. If the police are involved, I’ll be

back.” Id. He also took the gun that he had been pointing at her side and said, “Hum. Well, I

better take this with me because I’m going to need it.” Id. He then got out of the car and the ex-

girlfriend drove away. Id. She returned to her apartment and talked to the police, who had been

called by her boss. Id. at 693, 698-99.

        The Lavarry court held that even though the defendant threatened to kill or hurt his victims

if they called or talked to the police, they were nonetheless released in a safe place. See id. at 698-

99. Despite the defendant’s threats, the victim in fact called the police once the defendant left. Id.

Thus, the court explained that the threats to kill did not constitute a continuing restraint because

there was no “substantial interference” with the victims’ liberty by confinement, especially where

such threats had no effect on the victims’ liberty as demonstrated by the fact that the police were

immediately called. Id. at 698.

        Lavarry is instructive because it properly examines the actions of the victim following the

defendant’s departure to determine whether the victim realized he or she had been released from

captivity. The majority in the present case fails to conduct such an examination, and instead



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Dissenting Opinion                                                                   04-13-00789-CR


focuses improperly on Dominguez’s intent and motives, ill or otherwise. Again, even assuming

that D.P. feared Dominguez’s return, the threat of return did not constitute a continuing restraint

because there was no “substantial interference” with her liberty as demonstrated by the fact that

she could readily place several telephone calls, including to her sister, leave the room and later

return to the room. See id. Because the greater weight of the credible evidence creates a reasonable

belief that D.P. realized that she had been released from captivity, I am compelled to conclude that

Dominguez met his burden of proving that he voluntarily released D.P. in accordance with Section

20.04(d). See TEX. PENAL CODE ANN. § 20.04(d); Hacker, 389 S.W.3d at 865; Scamardo, 517

S.W.2d at 298.

        I would also conclude that Dominguez satisfied “the second prong” of Section 20.04(d)

because D.P. was released in a safe place. The Court of Criminal Appeals has recently held that

the term “safe place” is ambiguous and that the determination of whether a place is safe is fact-

specific and should be made on a case-by case basis.          Butcher, 2015 WL 359087, at *3.

Nonetheless, the Court agreed that the following “nonexclusive aids” may be taken into

consideration when making the “safe place” determination: (1) the remoteness of the location; (2)

the proximity of authorities or persons who could aid or assist; (3) the time of day; (4) climatic

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. Id.

at *5 (citing Williams v. State, 718 S.W.2d 772, 774 (Tex. App.—Corpus Christi 1986), aff’d in

part and rev’d in part on other grounds, 851 S.W.2d 282 (Tex. Crim. App. 1993)). The Court

cautioned that these factors must be considered under the totality of the circumstances of each

case. Butcher, 2015 WL 359087, at *5. For example, the Court noted that age may be a factor in

determining whether a place is safe. Id. at *5 & n.10 (affirming rejection of safe place finding



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Dissenting Opinion                                                                    04-13-00789-CR


where nine-year-old girl was kidnapped at knifepoint and later returned to her apartment complex

but her mother was not at home and she had no access to a phone or transportation). In addition,

“the victim’s feelings of safety may be a factor in determining the safety of a place, but in no case

[will] it convert[] an otherwise safe place (like a victim’s home or operable car) into an unsafe

place.” Storr v. State, 126 S.W.3d 647, 653 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)

(quoting Lavarry, 936 S.W.2d at 697).

        In applying the nonexclusive factors used to determine whether a location is safe for

purposes of a Section 20.04(d) analysis, I believe that the following facts indicate that Dominguez

released D.P. in a safe place:

    •   D.P., a sixteen year-old, was left in a motel room with her teenage friend.
    •   The motel was located in the City of San Antonio on a major thoroughfare in a commercial
        area; thus, the location was not remote.
    •   There was no evidence that the motel was located in an area known for criminal activity.
    •   The motel room contained an operable telephone which D.P. could have used to call 911,
        and which she did in fact use to place several calls and reach her sister, who later picked
        her up at a nearby Pizza Hut.
    •   At the time D.P. was released, it was approximately three o’clock in the afternoon; there
        was no indication that it was dark outside.
    •   The weather was temperate; D.P. was wearing shorts and a sweater.
    •   Although I am sensitive to the fact that D.P., a minor, was sexually assaulted, the record
        contains no evidence that she was otherwise threatened, injured, restrained, drugged, or
        unable to get to the telephone to call for assistance, as demonstrated by the fact that she
        made several calls from the telephone located in the motel room and then went to a nearby
        Pizza Hut to meet her sister.

        The facts before this court are readily distinguishable from those cases that have held that

the victim was not released in a safe place. See, e.g., Rodriguez-Flores v. State, 351 S.W.3d 612,

637 (Tex. App.—Austin 2011, pet. ref’d) (evidence sufficient to support jury’s rejection of safe

release finding where five-year-old boy was left alone in a dark stairwell of an unfamiliar

apartment complex on a cold February night); Woods v. State, 301 S.W.3d 327, 332 (Tex. App.—

Houston [14th Dist.] 2009, no pet.) (complainant not released in safe place when released at 4:00


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Dissenting Opinion                                                                      04-13-00789-CR


a.m. in a sparsely populated area that had been the site of criminal activity, with no other people

present); Harrell, 65 S.W.3d at 773 (complainant not released in safe place when the area was

sparsely populated, dimly lit, the home of a pack of wild dogs, and the site of numerous burglaries,

two sexual assaults, and two homicides and when the time of release was early morning in winter);

Rodriguez v. State, 766 S.W.2d 360, 361 (Tex. App.—Texarkana 1989, pet. ref’d) (complainant

who had been sexually assaulted was not released in a safe place when released during a winter

night on a rural dirt road a few minutes’ walk from a gas station when it was not clear she would

find aid in the vicinity). Here, in contrast, D.P. at sixteen was left unrestrained in a motel located

on a major city street. She was released in the afternoon, there was plenty of daylight, and the

weather was comfortable. Although D.P. was unfamiliar with the motel’s location, she was still

able to call for assistance from a readily available telephone and direct her sister to a meeting place.

See, e.g., State v. White, 492 S.E.2d 48, 53 (N.C. Ct. App. 1997) (holding kidnapping victim who

had been severely beaten and sexually assaulted was released in a safe place when taken to a motel

and given change to use a pay phone). D.P. walked with her friend to a nearby restaurant to wait

for her sister, who arrived within twenty minutes. The record contains no evidence of a dangerous

condition or known criminal activity in the area. I would therefore conclude that the greater weight

of the credible evidence creates a reasonable belief that the location in which Dominguez

voluntarily released D.P. was safe. See TEX. PENAL CODE ANN. § 20.04(d); see also Hacker, 389

S.W.3d at 865; Scamardo, 517 S.W.2d at 298.

        Based on the foregoing, I would conclude that the evidence is legally insufficient to support

the trial court’s rejection of Dominguez’s request for a safe release finding. No reasonable trier of

fact could have concluded that D.P. was restrained in her liberty by confinement, much less forced

to escape from the motel. See Matlock, 392 S.W.3d at 670. She knew her kidnapper had “gone,”



                                                 - 13 -
Dissenting Opinion                                                                     04-13-00789-CR


she was not held against her will, she felt free to leave, and she did in fact leave. I disagree that

the kidnapper’s intent to return equates to the scintilla of evidence required to affirm. D.P. was

also a sixteen year old released in a location that was safe and in which aid was readily available.

Thus, Dominguez conclusively proved that he voluntarily released D.P. in a safe place. Id. at 669-

70.

         In addition, the trial court’s rejection of Dominguez’s request for a safe release finding is

so “against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or

clearly biased.” Matlock, 392 S.W.3d at 671. While I am mindful against substituting my own

judgment for that of the factfinder, this record contains ample evidence supporting a reasonable

conclusion that there was a safe release. To conclude otherwise would be contrary to the legislative

intent of Section 20.04(d), which is to provide an incentive to kidnappers to safely release their

kidnap victims. See Brown, 98 S.W.3d at 187-88 (the plain language of Section 20.04(d) provides

an “incentive” to kidnappers to release their kidnap victims; legislative purpose of Section 20.04(d)

is to encourage kidnappers to release their kidnap victims). If Section 20.04(d) does not apply to

the facts before us, I can imagine very few scenarios in which it would apply. I believe the facts

before us warrant reversing the judgment of the trial court as to Count I and remanding the matter

to the trial court for a new punishment hearing as to Count I. See TEX. CODE CRIM. PROC. ANN.

art. 44.29(b) (West Supp. 2014). In all other respects, I would affirm the judgment of the trial

court.


                                                    Rebeca C. Martinez, Justice

PUBLISH




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