                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 2-08-159-CR

JESSE MARIANO VASQUEZ                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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                                  Introduction

      Appellant Jesse Mariano Vasquez appeals his conviction for kidnapping.

In two points, he asserts that the trial court erred when it denied his requested

jury charge on the lesser-included offense of unlawful restraint and that the

evidence is factually insufficient to support his conviction. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                                 Background Facts

       In 2004, Leandra Castillo and Vasquez began a relationship. They had a

son in 2006.      Castillo considered Vasquez as her common-law husband.

They lived together in Castillo’s parents’ house until August 2007, when

Vasquez moved out.

       On the night of September 22, 2007, Vasquez and Castillo had plans to

go out together. Vasquez never picked up Castillo, and when he could not be

reached, Castillo went out with her friends instead. Vasquez and Castillo finally

talked on the phone at two o’clock in the morning. Vasquez said he had gotten

a flat tire.

       Castillo then went to her cousin’s (Belinda Fernandez’s) house;

Fernandez, her husband, and a number of the husband’s friends were in the

house.     Vasquez and Castillo talked on the phone again, and Castillo told

Vasquez where she was. Vasquez arrived at Fernandez’s house about twenty

minutes later.   Driving a blue Durango, Vasquez parked in the street, and

Castillo walked up to the car.

       Vasquez was angry and asked Castillo what she was doing with all the

men. Castillo replied that she did not know who the men were. Vasquez then

accused her of “ho’ing around” and “fucking around with all these guys” and

demanded Castillo to “get in the fucking car.” When Castillo responded that

                                        2
Fernandez would take her home instead, Vasquez grabbed a gun from the

console of his car and held it to Castillo’s hip.    Castillo got in the car as

Fernandez tried to talk to Vasquez and get the gun away from him.

Castillo then got out of the car, but Vasquez pointed the gun at her, so she got

back in, and they drove away.2

      Vasquez drove west on Interstate Highway 820 and told Castillo he was

going to take her where “nobody could find” her. Fernandez called Castillo’s

father, Victor, and told him what had happened. Victor went to look for his

daughter as he began calling Vasquez and Castillo, although it is unclear which

cell phone he called. Victor could hear both Castillo crying and Vasquez saying

not to say anything about where they were.3       Vasquez told Victor that he

would drop Castillo off at a nearby Whataburger, but when Victor got there,

Vasquez and Castillo were not there. Victor called again, and Vasquez said he

would take Castillo home.     Vasquez then drove back towards Fernandez’s

house.




      2
       … Castillo testified that she felt like she had no choice but to get in
Vasquez’s vehicle. She stated, “I was just trying to listen. I didn’t want to --
I was scared. I was thinking about jumping out, but we were on the freeway
and I didn’t.”
      3
     … Castillo explained, “[Vasquez] said not to tell [Castillo’s father] where
we were at.”

                                       3
      Before they arrived, Vasquez pulled over and stuck the gun in his mouth.

Castillo took it out and set it on the floor by her feet. When they stopped at

Fernandez’s house, Castillo ran inside, and Vasquez drove away.

      Different witnesses estimated the time Vasquez and Castillo had been in

the car as between forty-five minutes and an hour and forty-five minutes.

Castillo asked Fernandez to call the police.    Fort Worth Police Department

Officer Christian Dominguez responded to the call.        Victor arrived shortly

thereafter.

      The grand jury indicted Vasquez with aggravated kidnapping. 4 At trial,

Vasquez requested the inclusion of a charge on the lesser-included offense of

unlawful restraint; the trial court denied this request. The jury found Vasquez

guilty of the lesser-included offense of kidnapping.    They found the repeat

offender paragraph true and recommended that Vasquez be sentenced to

twenty years’ confinement. The trial court sentenced Vasquez according to the

jury’s recommendation. This appeal followed.




      4
        … The indictment alleged that Vasquez committed the offense by
intentionally or knowingly abducting Castillo through restraining her without her
consent and moving her from one place to another with the intent to prevent
her liberation by secreting her or threatening to use deadly force with a deadly
weapon.       See Tex. Penal Code Ann. § 20.04(b) (Vernon 2003).
The indictment contained a repeat offender notice related to Vasquez’s January
2006 conviction for aggravated assault.

                                       4
      The Exclusion of a Lesser-included Offense from the Jury Charge

      In his first point, Vasquez contends that the trial court erred by refusing

to include his requested jury instruction regarding the lesser-included offense

of unlawful restraint.    We use a two-step analysis to determine whether

Vasquez was entitled to a lesser-included offense instruction. Hall v. State,

225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d

666, 672–73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the

lesser offense must come within article 37.09 of the code of criminal

procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v.

State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).             “An offense is a lesser

included offense if . . . it is established by proof of the same or less than all the

facts required to establish the commission of the offense charged.” Tex. Code

Crim. Proc. Ann. art. 37.09(1); see Hall, 225 S.W.3d at 536. This inquiry is

a question of law.     Hall, 225 S.W.3d at 535.        It does not depend on the

evidence to be produced at trial but is performed by comparing the elements of

the offense as they are alleged in the indictment or information with the

elements of the potential lesser-included offense. Id. at 525, 535–36.

      Second, some evidence must exist in the record that would permit a jury

to rationally find that if Vasquez is guilty, he is guilty only of the lesser offense.

Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim.

                                          5
App. 2005).    The evidence must be evaluated in the context of the entire

record. Moore, 969 S.W.2d at 8. There must be some evidence from which

a rational jury could acquit Vasquez of the greater offense (aggravated

kidnapping) while convicting him of the lesser included offense (unlawful

restraint). Id. The court may not consider whether the evidence is credible,

controverted, or in conflict with other evidence. Id. Anything more than a

scintilla of evidence may be sufficient to entitle Vasquez to a lesser charge.

Hall, 225 S.W.3d at 536.

      The second prong acknowledges that there are factual circumstances in

which an offense is indeed a lesser-included offense under the first prong, but

a jury charge instruction will not be required because the condition—that there

is at least some evidence that the defendant is not guilty of the greater offense

but is guilty only of the lesser—is not met. See Flores v. State, 245 S.W.3d

432, 441 (Tex. Crim. App. 2008); Pickens v. State, 165 S.W.3d 675, 679

(Tex. Crim. App. 2005). In such a case, the offense remains a lesser-included

offense, but the trial court is not required to instruct the jury on it. See Flores,

245 S.W.3d at 441; Pickens, 165 S.W.3d at 679.

      That is what happened in this case.          Under Vasquez’s indictment,

aggravated kidnapping occurs when a person “intentionally or knowingly




                                         6
abducts 5 another person and uses or exhibits a deadly weapon during the

commission of the offense.”     Tex. Penal Code Ann. § 20.04(b).       Unlawful

restraint occurs when a person “intentionally or knowingly restrains 6 another

person.” Id. § 20.02(a) (Vernon 2003). Under article 37.09, unlawful restraint

is a lesser-included offense of aggravated kidnapping. Schweinle v. State, 915

S.W.2d 17, 19 (Tex. Crim. App. 1996);7 see Mayer v. State, 274 S.W.3d 898,

900 (Tex. App.—Amarillo 2008, pet. filed); Jenkins v. State, 248 S.W.3d 291,

298 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Thus, Vasquez satisfies

the first prong of the test.

      However, Vasquez cannot satisfy the second prong. Vasquez contends

that a jury could find that he restrained Castillo (by restricting her movements)




      5
      … “Abduct” means to restrain a person with intent to prevent the
person’s liberation by secreting or holding the person in a place where the
person is not likely to be found or by using or threatening to use deadly force.
Tex. Penal Code Ann. § 20.01(2) (Vernon Supp. 2008).
      6
       … “Restrain” means restricting “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.” Tex. Penal Code Ann.
§ 20.01(1). Restraint is without consent if it is accomplished by force,
intimidation, or deception. Id. § 20.01(1)(A).
      7
       … At the time the Texas Court of Criminal Appeals decided the
Schweinle case, the offense now known as unlawful restraint was called “false
imprisonment.” See Schweinle, 915 S.W.2d at 19.

                                       7
but that he did not abduct her (by preventing her liberation) and that the jury

could therefore convict him of unlawful restraint but not aggravated kidnapping.

      Witnesses testified that Vasquez forced Castillo into the car against her

will at gunpoint, did not take her home, and, most importantly, told her not to

tell others where they were. A moving car has been held to be a place where

a person is not likely to be found. See Sanders v. State, 605 S.W.2d 612, 614

(Tex. Crim. App. [Panel Op.] 1980); Francis v. State, No. 02-05-00046-CR,

2006 WL 2034280, at *4 (Tex. App.—Fort Worth July 20, 2006, pet. ref’d)

(mem. op., not designated for publication). Vasquez argues that he intended

to take Castillo home and thus did not intend to prevent her liberation.

      However, even if Vasquez originally intended to take Castillo home, his

subsequent actions substantiate his prevention of her liberation from his car.

By keeping Castillo in the car for as long as an hour and forty-five minutes,

driving her around, telling her that he was taking her to a place that “nobody

could find” her, and preventing Victor from finding her at the Whataburger,

Vasquez precluded Castillo’s liberation; he did more than merely restrict her

movements.

      Thus, based upon the undisputed evidence presented by the State, no

rational jury could find Vasquez innocent of aggravated kidnapping but guilty




                                       8
of unlawful restraint. See Hall, 225 S.W .3d at 536. We overrule Vasquez’s

first point.

                      Factual Sufficiency of the Evidence

      In his second point, Vasquez contends that the evidence is factually

insufficient to support his kidnapping conviction. When reviewing the factual

sufficiency of the evidence to support a conviction, we view all the evidence

in a neutral light, favoring neither party. Neal v. State, 256 S.W.3d 264, 275

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App.

2008); Watson, 204 S.W.3d at 414–15, 417. To reverse under the second

ground, we must determine, with some objective basis in the record, that the

great weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

                                        9
enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.     Id.   We may not simply substitute our judgment for the

factfinder’s.   Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000);

Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

      Unless the record clearly reveals that a different result is appropriate, we

must defer to the jury’s determination of the weight to be given contradictory

testimonial evidence because resolution of the conflict “often turns on an

evaluation of credibility and demeanor, and those jurors were in attendance

when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Thus, unless

we conclude that it is necessary to correct manifest injustice, we must give due

deference to the factfinder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” Id. at 9. Our deference

in this regard safeguards the defendant’s right to a trial by jury. Lancon, 253

S.W.3d at 704.

      The jury convicted Vasquez of kidnapping, which occurs when a person

“intentionally or knowingly abducts another person.” Tex. Penal Code Ann.

§ 20.03(a) (Vernon 2003). Vasquez challenges the evidence supporting the

                                       10
jury’s finding that he intended to prevent Castillo’s liberation by secreting her

in a place she was not likely to be found; he does not challenge that he

restrained Castillo.

      Specifically, Vasquez contends that he intended to take Castillo home and

thus lacked any intent to prevent her liberation. He argues that because her

home is not a place she is not likely to be found, he did not satisfy the secreting

requirement. See Schweinle, 915 S.W.2d at 19. He acted intentionally by

preventing liberation through secreting Castillo in a place she was not likely to

be found if it was his conscious objective or desire to do so; he acted

knowingly if he was aware that the prevention of her liberation would occur.

See Tex. Penal Code Ann. § 6.03(a), (b) (Vernon 2003).

      The intentional or knowing state of mind of a defendant may be proved

without direct evidence; such a state of mind may be “inferred from

circumstantial evidence such as [the defendant’s] acts, words, [or] conduct.”

Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see Mashburn

v. State, 272 S.W.3d 1, 14 (Tex. App.—Fort Worth 2008, pet. struck); Krause

v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d) (explaining that “[p]roof of a culpable mental state almost invariably

depends upon circumstantial evidence”). When reviewing the jury’s decision

that Vasquez intentionally or knowingly prevented Castillo’s liberation by

                                        11
secreting her in a place she was not likely to be found, it is “not necessary that

[we] find to [our] own satisfaction that such was [his] intent. It is enough for

us to find that ‘any’ rational jury could have so found beyond a reasonable

doubt.” Brimage v. State, 918 S.W.2d 466, 476 (Tex. Crim. App. 1994).

       The evidence in the record is factually sufficient to support Vasquez’s

conviction. Because Vasquez did not present any evidence to contradict the

opinions and observations of the witnesses, the jury’s implicit determination

about Vasquez’s state of mind could only be reversed for factual insufficiency

if the evidence was so weak that the determination was clearly wrong and

manifestly unjust. See Lancon, 253 S.W.3d at 705. We cannot conclude that

standard has been satisfied.

       Vasquez’s assertion that he intended to take Castillo home does not make

sense because there is nothing in the record indicating why he did not simply

do that.8 Instead, he forced Castillo into the car and drove her around for a

long period of time during which she was not found. And even if there was

more evidence in the record that supported Vasquez’s asserted intentions, the

jury   was   free   to   either believe   or disbelieve   his   conflicting   theory.

See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001) (stating



       8
      … Fernandez’s house was only about ten miles from Castillo’s parents’
house, where she was staying.

                                          12
that it “is a jury, not a reviewing court, that accepts or rejects reasonably equal

competing theories”); Gregory v. State, 159 S.W.3d 254, 261 (Tex.

App.—Beaumont 2005, pet. ref’d).

      Affording the jury’s decision appropriate deference under the authority

cited above, we conclude that the evidence in the record and recited above is

factually sufficient to show that Vasquez intentionally or knowingly prevented

Castillo’s liberation by secreting her to a place she was not likely to be found.

We therefore overrule Vasquez’s second point.

                                   Conclusion

      Having overruled both of Vasquez’s points, we affirm the trial court’s

judgment.




                                             TERRIE LIVINGSTON
                                             JUSTICE

PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 4, 2009




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