Opinion issued July 28, 2015




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-13-00778-CR
                           ———————————
               DANIEL GONZALEZ RODRIGUEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 351st District Court
                           Harris County, Texas
                       Trial Court Case No. 1380317


                         MEMORANDUM OPINION

      Daniel Rodriguez appeals his conviction for kidnapping.1 In two issues, he

contends that (1) there is insufficient evidence of intent to abduct to support the

jury’s guilty verdict and (2) the trial court abused its discretion by denying his


1
      TEX. PENAL CODE ANN. § 20.03 (West 2011).
request for a jury instruction on the lesser-included offense of unlawful restraint.2

We affirm.

                                    Background

      Early one morning, seven-year-old Jane3 was playing on coin-operated

“horses” with a friend at the flea market where her mother was a vendor. Jane’s

mother testified that she was keeping an eye on the children but looked away “for

just a minute” while setting up her display. According to Jane, Rodriguez

approached the young girls and offered them quarters to activate the horses. He

then asked Jane if she wanted to go to his house. Jane declined both offers.

      Suddenly, Rodriguez grabbed Jane’s wrist. Jane testified that this “hurt” and

that she was unable to escape Rodriguez’s grasp. Rodriguez forced Jane toward an

out-of-sight exit.

      Jane’s mother looked back and did not see Jane. Jane’s friend said that she

had left with her father. Because Jane’s father was not at the flea market, Jane’s

mother became alarmed and contacted security.

      Security personnel found Rodriguez and Jane before they reached the exit.

According to Jane, Rodriguez claimed that she was his daughter. Another witness

testified that Rodriguez said that Jane’s mother gave him permission to take Jane.

These ruses did not work, and Jane was returned to her mother.

2
      TEX. PENAL CODE ANN. § 20.02 (West 2011).
3
      We refer to the complainant by this pseudonym to protect her identity.
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      Rodriguez was convicted of kidnapping. He timely appealed.

                            Sufficiency of the Evidence

      In his first issue, Rodriguez contends that the evidence is insufficient to

support the jury’s guilty verdict.

A.    Standard of review

      We review a challenge to the sufficiency of the evidence under the standard

announced in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89

(1979). See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010).

Under the Jackson standard, evidence is insufficient to support a conviction if,

considering all of the record evidence in the light most favorable to the verdict, no

rational factfinder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 317–19, 99 S.

Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).

We consider both direct and circumstantial evidence and all reasonable inferences

that may be drawn from the evidence in making our determination. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      The Jackson standard defers to the factfinder to resolve any conflicts in the

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

facts to ultimate facts.” Jackson, 443 U.S. at 318, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778. We presume that the factfinder resolved any conflicts in the


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evidence in favor of the verdict and defer to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      Evidence is insufficient when (1) the record contains no evidence, or merely

a “modicum” of evidence, probative of an element of the offense, (2) the evidence

conclusively establishes a reasonable doubt, or (3) the acts that the State alleges, if

true, do not constitute the charged crime. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007); see Jackson, 443 U.S. at 314–19, 99 S. Ct. at 2786–89. If

an appellate court finds the evidence to be insufficient under this standard, it must

reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S.

31, 41, 102 S. Ct. 2211, 2217 (1982).

B.    Definition of kidnapping

      “A person commits [kidnapping] if he intentionally or knowingly abducts

another person.” TEX. PENAL CODE ANN. § 20.03 (West 2011) (emphasis added).

“‘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.” TEX. PENAL CODE ANN. § 20.01(2)

(West 2011) (emphasis added). “‘Restrain’ means to restrict a person’s movements

without consent . . . .” TEX. PENAL CODE ANN. § 20.01(1). Thus, “[a] kidnapping

becomes a completed offense when a restraint is accomplished, and there is

evidence that the actor intended to prevent liberation and that he intended to do so


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by either secretion or the use or threatened use of deadly force.” Mason v. State,

905 S.W.2d 570, 575 (Tex. Crim. App. 1995).

C.    Evidence of intent to prevent liberation by secreting Jane

      Rodriguez concedes that the evidence is sufficient to conclude that he

restrained Jane, but he contends that the evidence is insufficient to conclude that he

intended to prevent her liberation and that he intended to do so by secretion or

deadly force. We disagree. Jane testified that Rodriguez asked her to go to his

house before grabbing her wrist and dragging her toward an exit. An eyewitness

saw Rodriguez “walking . . . with a purpose. . . . He was walking towards the exit

like he needed to go.” When confronted by security, Rodriguez lied that he was

Jane’s father. Rodriguez told Jane that she could watch television once she was in

his house. From this evidence, a reasonable jury could conclude that Rodriguez

intended to prevent Jane’s liberation and that he intended to do so by secreting her

away to a location where she was unlikely to be found. See Laster v. State, 275

S.W.3d 512, 522-23 (Tex. Crim. App. 2009) (evidence that defendant grabbed

child complainant and attempted to drag her into his car was sufficient to show

intent to secret away).

      Rodriguez argues that Jane’s testimony should be given no weight because

(1) he did not use exits closer to Jane’s location, (2) he chose an exit far away from

his truck, (3) Jane was unattended, (4) an eyewitness testified that Jane was calm


                                          5
when found and reluctant to leave Rodriguez, and (5) Jane reported no wrist pain

to her doctor several days later. How these factors impact the weight of Jane’s

testimony is for the jury to decide. Following Jackson, we presume that the jury

resolved the weight of evidence in favor of the verdict, and defer to that finding.

See Jackson, 443 U.S. at 326; 99 S. Ct. at 2793.

       Accordingly, we overrule Rodriguez’s first issue.

                             Lesser-Included Offense

       In his second issue, Rodriguez contends that the trial court erred by denying

his request for a jury instruction on the lesser-included offense of unlawful

restraint.

A.     Standard of review

       “In determining if the jury should be charged on a lesser offense, this Court

applies a two-step analysis.” Segundo v. State, 270 S.W.3d 79, 90 (Tex. Crim.

App. 2008). “First, we decide if the offense is a lesser-included offense of the

charged offense . . . .” Id. This “is a question of law,” and the standard of review is

de novo. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

       “The second prong of the test then requires an evaluation to determine

whether some evidence exists that would permit a jury to rationally find that, if the

defendant is guilty, he is guilty only of the lesser offense.” McKinney v. State, 207

S.W.3d 366, 370 (Tex. Crim. App. 2006). “We review the trial court’s decision


                                          6
regarding including a lesser-included offense in the jury charge for abuse of

discretion.” Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). “In making this determination, this Court should review all of the

evidence presented at trial.” Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

1994). “Anything more than a scintilla of evidence” that the defendant is guilty of

the lesser-included offense but not guilty of the charged offense “is sufficient to

entitle a defendant to a lesser charge.” Id.; see Segundo, 270 S.W.3d at 90–91.

B.    An ineffective getaway is not evidence of restraint without abduction

      Rodriguez argues that the jury should have been allowed the option of

convicting him of unlawful restraint. A person commits the offense of unlawful

restraint “if he intentionally or knowingly restrains another person.” TEX. PENAL

CODE ANN. § 20.02(a) (West 2011). Unlawful restraint is a lesser-included offense

of kidnapping. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).

      To be entitled to an instruction on a lesser-included offense, it is not enough

that the jury could have disbelieved some portion of the evidence; rather “there

must be some evidence directly germane to an unlawful restraint offense for such

an instruction to be warranted.” Anderson v. State, 125 S.W.3d 729, 731 (Tex.

App.—Texarkana 2003, no pet.). Thus, “[t]he next step of the analysis is to

determine whether there was evidence that if guilty, appellant was guilty only of

restraining the complainant, without intending to prevent her liberation


                                         7
by . . . secreting or holding her in a place where she was not likely to be

found . . . .” Schweinle, 915 S.W.2d at 19.

      Rodriguez argues that his decision to drag Jane toward a main exit, ignoring

other nearby exits that could have facilitated an easier escape, is some evidence

that he restrained her but did not intend to secret her away. But this is not evidence

of restraint without abduction. Although Rodriguez could have chosen a more

efficient getaway route, he was nevertheless heading toward an exit with Jane. This

exit was not visible from Jane’s original location. Rodriguez attempted to prevent

Jane’s escape by lying to security. There is no evidence that Rodriguez restrained

Jane without intending to prevent her liberation by removing her to a location

where she was unlikely to be found.

      We conclude that the trial court did not abuse its discretion by refusing

Rodriguez’s request for an unlawful-restraint instruction. Accordingly, we overrule

his second issue.

                                    Conclusion

      We affirm the judgment of the trial court.



                                               Harvey Brown
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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