                                                                             ACCEPTED
                                                                         03-15-00144-CR
                                                                                 5556010
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                     6/5/2015 7:45:36 AM
                                                                       JEFFREY D. KYLE
                 No. 03-15-00144-CR (Count I)                                     CLERK


          IN THE COURT OF APPEALS FOR THE
      THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN
                                            FILED IN
                                                  3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                 Christopher Arthur Kurtz         6/5/2015 7:45:36 AM
                            Appellant               JEFFREY D. KYLE
                                                          Clerk
                                v.
                     The State of Texas
                             Appellee
On Appeal In Case Number CR2014-343, from the 207th, District Court
      of Comal County, the Hon. Jack Robison, Judge Presiding




             Brief on Appeal
                          Submitted by:

       John G. Jasuta                   David A. Schulman
       Attorney at Law             Attorney at Law
State Bar Card No. 10592300 State Bar Card No. 17833400
  lawyer1@johnjasuta.com    zdrdavida@davidschulman.com

             1801 East 51st Street, Suite 365-474
                    Austin, Texas 78723
                     Tel. 512-474-4747
                     Fax: 512-532-6282
            Attorneys for Christopher Arthur Kurtz
              Oral Argument Not Requested
                Identity of Parties and Counsel
      Pursuant to Rule 38.1(a), Rules of Appellate Procedure
(“Tex.R.App.Pro.”), the following is a complete list of the names and
addresses of all parties to the trial court’s final judgment and their counsel
in the trial court, as well as appellate counsel, so the members of the Court
may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of the case and so the
Clerk of the Court may properly notify the parties to the trial court’s final
judgment or their counsel, if any, of the judgment and all orders of the
Court of Appeals.

                                Appellant
                       Christopher Arthur Kurtz
                         TDCJ No. 01968855
           Trial Counsel                        Appellate Counsel
      Matt Stolhandske                           John G. Jasuta
        SBN 19278750                             SBN 10592300
    Venessa D. Rodriguez                       David A. Schulman
        SBN 24077794                             SBN 17833400
      1004 S. St. Mary’s                  1801 East 51st St, Ste 365-474
   San Antonio, Texas 78205                    Austin, Texas 78723

                            State of Texas
                          Jennifer Tharp
                      Criminal District Attorney
                     150 North Seguin, Suite 307
                     New Braunfels, Texas 78130
          Trial Counsel                          Joshua Presley
                                                 SBN 24088254
  Clayten H. ‘Clay’ Hearrell
       SBN 24059919
        Chari L. Kelly
       SBN 24057939
      Appellate Counsel

                                      i
                              Table of Contents


Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Issues Presented .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Point of Error Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

             The Evidence Is Insufficient
             To Prove Aggravated Kidnapping.

Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 15




                                             i
                        Index of Authorities

Texas Cases:
Grotti v. State, 273 S.W.3d 273 (Tex.Cr.App. 2008). . . . . . . 12

Kenny v. State, 292 S.W.3d 89
   (Tex. App. - Houston [14th] 2007). . . . . . . . . . . . . . . . . . 10

Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997). . . . . . . 12

Mayer v. State, 274 S.W.3d 898
   (Tex.App - Amarillo 2008) . . . . . . . . . . . . . . . . . . . . 11, 12

Prudholm v. State, 333 S.W.3d 590 (Tex.Cr.App. 2011). . . . . 7

Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App. 1977). . . . . . . 10

Sanders v. State, 119 S.W.3d 818 (Tex.Cr.App. 2003). . . . . 12

Steptoe v. State, 14-10-00131-CR
    (Tex.App - Houston [14th] January 6, 2011). . . . . . . . . . 11

Williams v. State, No. 13-06-00220-CR
    (Tex.App - Corpus Christi, July 5, 2007). . . . . . . . . . . . . 11

Texas Statutes / Codes:
     Penal Code

          Section 20.01(1).. . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

          Section 20.01(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          Section 20.02(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          Section 20.04(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


                                        ii
                    Statement of the Case

    The following is a brief general statement of the nature of the

cause or offense:

    Appellant was charged by indictment with the offense of
    aggravated kidnapping (Count I), a first degree felony, in
    Cause No. CR2014-343 in the 207th District Court of
    Comal County, Texas, and was convicted on that count.
    Punishment was enhanced by proof of two prior
    convictions. Appellant was sentenced to confinement for
    seventy (70) years. Notice of Appeal was timely given.

                      Issues Presented

    The following is the point upon this appeal is predicated:

    The Evidence Is Insufficient to Prove Aggravated
    Kidnapping




                                iii
                 No. 03-15-00144-CR (Count I)
          IN THE COURT OF APPEALS FOR THE
      THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN
                 Christopher Arthur Kurtz
                            Appellant
                                v.
                     The State of Texas
                             Appellee
On Appeal In Case Number CR2014-343, from the 207th, District Court
      of Comal County, the Hon. Jack Robison, Judge Presiding



                    Brief on Appeal

TO THE HONORABLE THIRD COURT OF APPEALS:

    COMES NOW, Christopher Arthur Kurtz, Appellant in the

above styled and numbered cause, by and through John G. Jasuta

and David A. Schulman, his undersigned attorneys of record, and

respectfully files this “Brief on Appeal” as to Count I of the

indictment, and would show the Court as follows:

                     Statement of Facts

    On October 1, 2013, Appellant picked up a friend, Alicia

Dawn Sanchez, to take her to her new job, which she was starting


                                1
that morning (RR Vol. 3, P. 73).     Appellant was observed by

Detective Bell of the New Braunfels Police Department, who was

looking for him to serve an active warrant (RR Vol. 3, P. 106).

Andrew Kempker, a New Braunfels Police Department Officer was

called by Detective Bell to effect an arrest (RR Vol. 3, P. 15).

Kempker followed Appellant, activated his emergency lights and

watched as Appellant initially slowed and then accelerated at a

high rate of speed (RR Vol. 3, PP. 16-17). Kempker followed him

onto IH 35, headed south (RR Vol. 3, P. 18). Other officers were

also involved in the pursuit (RR Vol. 3, P. 19).      The pursuit

involved two people on a motorcycle, a male driver and a female in

the rear (RR Vol. 3, P. 19). Kempker knew neither at the time (RR

Vol. 3, P. 19). He never lost sight of Appellant during the chase

(RR Vol. 3, P. 20). The pursuit was called off by the supervisor on

duty, Sergeant Cantu (RR Vol. 3, P. 21). Kempker stated that the

pursuit took place in Comal County (RR Vol. 3, P. 23).

    Appellant admitted that he knew Kempker was a police officer

but stated that he didn’t know for sure whether Kempker was

                                2
attempting to lawfully arrest or detain him that day (RR Vol. 4, P.

46).

       Chad Adams, a New Braunfels Police Department Officer

found the motorcycle when called by Schertz PD but he never saw

Appellant on it (RR Vol. 3, P. 45). He took custody of Appellant

and transported him to the Police Department for interview (RR

Vol. 3, P. 47).   Officer Michael Rapier of the Schertz Police

Department stated that he assisted in the search for Appellant and

was on perimeter duty. He saw Appellant and called for him to

come out of hiding and, when he didn’t surrender, he pulled him

out, handcuffed him and took him to waiting New Braunfels Police

officers (RR Vol. 3, P. 62). Later, he returned to area and found a

gun and keys on top of the gun (RR Vol. 3, P. 63), all in Comal

County (RR Vol. 3, P. 64).     Appellant admitted to having and

attempting to hide the gun but stated that it had been put into his

pocket by the passenger, Alicia Dawn Sanchez (RR Vol. 4, PP. 36,

39), who, by telling him she had a gun, and that he should avoid

the police, forced his actions (RR Vol. 4, PP. 17-18, 45).

                                 3
    Sanchez stated that she was staying with a friend and

Appellant lived across the street (RR Vol. 3, P. 72).      She was

homeless and had just gotten a new job (RR Vol. 3, P. 73). The

roommate’s car had no gas so Appellant took her to work (RR Vol.

3, PP. 73-74). While they were heading for her work, an officer

tried to pull them over (RR Vol. 3, P. 74). Sanchez stated that she

did not tell Appellant to run from the police (RR Vol. 3, P. 75). She

stated she asked him to pull over by a gas station but he took off,

instead (RR Vol. 3, PP. 75, 80-81), after saying, “Fuck it,” (RR Vol.

3, PP. 75-76), and announcing, “I am running.” She asked him to

stop and she asked to get off (RR Vol. 3, PP. 76-77). He didn’t stop

until after the pursuit ceased, and eventually let her off at the

Caterpillar dealer in Schertz (RR Vol. 3, P. 77). She expressed no

fear of Appellant but was scared of going to jail (RR Vol. 3, PP.

77-78, 103). She stated that she knew Appellant was not trying

“to keep me,” (RR Vol. 3, P. 82), that he was just running from the

police(RR Vol. 3, P. 83), and that he would let her off the

motorcycle (RR Vol. 3, P. 85).

                                 4
    Sergeant James Bell of the New Braunfels Police Department

testified that the manner and means of use of the motorcycle was

such that it was capable of causing death or serious bodily injury

(RR Vol. 3, P. 126). He stated that Appellant, by using it in such

a manner, made it impossible for Alicia Sanchez to get off of the

motorcycle (RR Vol. 3, P. 127).      There was no testimony that

Sanchez ever attempted to get off of the motorcycle. Bell stated

that Appellant transported Sanchez from one place to another (RR

Vol. 3, P. 127). Bell stated that he saw a police officer attempt to

stop Appellant and he saw Appellant flee from the officer (RR Vol.

3, P. 139). He believed Appellant knew the officer was an police

officer (RR Vol. 3, P. 139). Appellant admitted that he was driving

the motorcycle that day (RR Vol. 4, P. 63).




                                 5
                      Point of Error Restated

                 The Evidence Is Insufficient
                To Prove Aggravated Kidnapping

                          Relevant Facts

     Alicia Dawn Sanchez stated that she was staying with a friend

and that Appellant lived across the street (RR Vol. 3, P. 72). She

was homeless and had just gotten a new job (RR Vol. 3, P. 73).

Her roommate’s car had no gas so Appellant took her to work (RR

Vol. 3, PP. 73-74).

     While they were heading for her work, an officer tried to pull

them over (RR Vol. 3, P. 74). Sanchez stated that she pointed out

a gas station in which Appellant could pull over, but that he took

off instead, after saying, “Fuck it, I am running“ (RR Vol. 3, PP. 75-

76, 80-81). She said that she asked him to stop and she asked to

get off (RR Vol. 3, PP. 76-77), and he subsequently let her off at

the Caterpillar dealer in Schertz (RR Vol. 3, P. 77). Sanchez stated

that she knew Appellant was not trying “to keep me“ (RR Vol. 3, P.




                                  6
82), that he was just running from the police (RR Vol. 3, P. 83),

and that he had let her off the motorcycle (RR Vol. 3, P. 85).

                    Summary of the Argument

     The State’s evidence was insufficient to show aggravated

kidnapping, because there was no evidence of an abduction.

                      Argument & Authorities

     Sanchez was the named complainant in the aggravated

kidnapping case. Sanchez testified that she always knew she was

not being taken by Appellant in any way and would be released.

It is clear from her testimony that Appellant did not abduct

Sanchez.

     Appellant asserts that kidnapping requires an abductive event

and an intent to exploit that abduction.1 There was neither in the

instant case.



 1
    Aggravated kidnapping requires “abduction,” i.e., an “unlawful restraint” -- a
substantial interference with the person's liberty, by moving the person from one
place to another or by confining the person -- committed with the specific intent
to prevent the victim's liberation by secreting or holding him in a place where he
is not likely to be found or using or threatening to use deadly force. Prudholm
v. State, 333 S.W.3d 590, 599-600 (Tex.Cr.App. 2011).

                                        7
     The aggravated kidnapping statute under which Appellant

was convicted, Penal Code § 20.04(b) states:

           (b)   A person commits an offense if the person intentionally or
                 knowingly abducts another person and uses or exhibits a
                 deadly weapon during the commission of the offense.

Penal Code § 20.01(2) defines “abduct” as:

           (2)   “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.

Pursuant to Penal Code § 20.01(1), “restrain” also has a specific,

statutory, meaning:

     (1) “Restrain” 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. Restraint is
     “without consent” if it is accomplished by:

           (A)   force, intimidation, or deception

As set out in Penal Code § 20.02(a):

     A person commits an offense if he intentionally or knowingly restrains
     another person.

     While the Complainant testified that she did not tell Appellant

to run, and that she asked him to pull over but he intentionally

sped off, she also testified that he did stop and let her off after the


                                         8
pursuit had been called off. She stated she knew that she would

be able to get off eventually, that he would not keep her and that

she knew that he was just running from the police (RR Vol. 3, P.

83).

       It is obvious from the record that there was no use or

threatened use of deadly force directed toward Sanchez to compel

her obedience to a threat. At most, Appellant’s actions constituted

a placing of a once willing rider into a dangerous situation.

       The actions in this case are nothing more than that posed by

a passenger who asks to be let off at a specific spot only to be told

that she will be let out at a different spot for whatever reason, and

then is kept in the car traveling at a speed which makes it

dangerous to jump out, and then is let out at that different

location. There is no abductive event in that case and there is

none here.     Succinctly, in the case at bar, Appellant did not

“abduct” Sanchez, for several reasons, though he may well have

“restrained” her.




                                  9
    Sanchez did not testify that she feared Appellant but, only

testified that she feared arrest. In fact, she stated that she knew

she was not the object of his actions, but that he was, rather, only

running from the police (RR Vol. 3, P. 83). She knew throughout

that Appellant did not wish to prevent her liberation and that she

would be released. Sanchez’s testimony regarding Appellant’s

actions toward the Complainant, and Appellant’s testimony,

constitutes the only evidence as to his intent.

    Under Penal Code § 20.01(2)(B), “abduct,” as alleged in this

case, means to restrain a person with the intent to prevent

liberation by using or threatening deadly force. Under Penal Code

§ 20.01(1), “restrain” means to restrict a person’s movement

without consent so as to interfere substantially with his or her

liberty by moving him or her from one place to another. Threats

may be communicated by actions, words, or deeds, including acts

amounting to an offer to use future force. Rogers v. State, 550

S.W.2d 78, 81 (Tex.Cr.App. 1977); Kenny v. State, 292 S.W.3d

89, 98 (Tex. App. - Houston [14th] 2007).

                                10
    The greatest difference between unlawful restraint and aggravated
    kidnapping is whether the victim was “abducted”: restrained with the
    intent to prevent the victim’s liberation by secreting or holding her in a
    place not likely to be found, or using or threatening to use deadly force.

Williams v. State, No. 13-06-220-CR (Tex.App - Corpus Christi,

July 5, 2007)(not designated for publication).

    In this case there was no deadly force used toward the victim

in an effort to prevent her liberation nor was there any threat to

the victim to use deadly force should Sanchez seek liberation.

Sanchez made no attempt to leave Appellant’s company only to be

forcibly returned as the victim did in Steptoe v. State,

14-10-00131-CR (Tex.App - Houston [14th] January 6, 2011)(not

designated for publication). All the evidence in this case showed

was the reckless exposure of the victim to a substantial risk of

serious bodily injury. Appellant was, therefore, guilty of unlawful

restraint, at most.

    The instant case is similar to, but distinguishable from,

Mayer v. State, 274 S.W.3d 898 (Tex.App - Amarillo 2008), in

which the defendant argued that his intent was not to hold the

victim in a place where she is not likely to be found, but rather,

that his intent was to flee from the convenience store to avoid


                                       11
capture for his assault on the victim.                  The Court of Appeals

reasoned:
    this does not negate his intent to abduct. Even by appellant’s own argument
    that he sought to flee from the store to avoid capture, he was doing so by
    attempting to reach a location where he could not be found. However, in
    his attempt to avoid capture, all the evidence at trial showed that appellant
    forced Tammy to go with him. Therefore, by seeking a location where he
    could not be found and by forcing Tammy to go with him, he was taking
    Tammy to a location where it was likely that she would not be found.

Mayer, 274 S.W.3d at 901. In the case at bar there is no showing

that Appellant used any force to compel Sanchez to go with him,

and certainly no force directed at her. She never felt compelled in

any manner.

    The evidence is viewed in the light most favorable to the

verdict to determine whether any rational jury could have found

the essential elements of aggravated kidnapping beyond a

reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820

(Tex.Cr.App. 2003). Legal sufficiency is measured by the elements

of the offense as defined by a hypothetically-correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997); see also

Grotti v. State, 273 S.W.3d 273, 280 (Tex.Cr.App. 2008). From

this perspective it is plain that there was no evidence of abduction.

                                        12
    Not only did Sanchez not seek “liberation,” no one was

seeking to “liberate” her. There was no thought in anyone’s mind

that Sanchez was anything but a willing rider brought into the

situation only by Bell’s call for the arrest of Appellant while

Sanchez was on the back of Appellant’s motorcycle. There was no

intimation that Appellant gave Sanchez a ride to work that

morning so he could take her and hold her against her will, or that

he ever had the desire to do anything to or with her but deposit

her somewhere after he had completed his flight from the police.

    Under Penal Code § 20.04(b), and a hypothetically-correct

charge in this case, the jury was required to find, beyond a

reasonable doubt, that Appellant “intentionally or knowingly

abduct[ed] another person and use[d] or exhibit[ed] a deadly

weapon during the commission of the offense.”          There was

absolutely no evidence that Appellant abducted Sanchez, because

he did not use any force directed to Sanchez, or anyone else, in an

effort to prevent her liberation which was never sought, nor was

he ever shown to have intended to prevent Sanchez’s liberation.

                                13
                            Conclusion
     The evidence is insufficient to support the jury’s verdict as to
Count I of the indictment, alleging aggravated kidnapping.
Appellant is entitled to an acquittal as to that Count.

                               Prayer
     WHEREFORE, PREMISES CONSIDERED, Christopher Arthur
Kurtz, Appellant in the above styled and numbered cause
respectfully prays that this Honorable Court will review this brief,
and, upon submission of the case to the Court, will vacate the
Judgment of the court below as to the Aggravated Kidnapping and
will order an acquittal.
                      Respectfully Submitted:




____________________________________ ___________________________________
John G. Jasuta                      David A. Schulman
Attorney at Law                     Attorney at Law
State Bar Card No. 10592300         State Bar Card No. 17833400
lawyer1@johnjasuta.com              zdrdavida@davidschulman.com

               1801 East 51st Street, Suite 365-474
                      Austin, Texas 78723
                       Tel. 512-474-4747
                       Fax: 512-532-6282

              Attorneys for Benny Cavazos Valverde
                                  14
          Statement Regarding Oral Argument

                Oral Argument is Not Requested.

         Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 2,653 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

June 5, 2015, a true and correct copy of the above and foregoing

“Brief on Appeal” was transmitted via the eService function on the

State’s eFiling portal, to Joshua Presley (preslj@co.comal.tx.us),

counsel of record for the State of Texas.



                            ______________________________________
                            John G. Jasuta




                                15
