                                                                         ACCEPTED
                                                                     03-15-00144-CR
                                                                             7731854
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                11/6/2015 6:15:01 PM
                                                                   JEFFREY D. KYLE
                                                                              CLERK
          CAUSE NO. 03-15-00144-CR (Count 1)

         IN THE COURT OF APPEALS FOR THE       FILED IN
                                        3rd COURT OF APPEALS
         THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
                 AT AUSTIN, TEXAS       11/6/2015 6:15:01 PM
                                               JEFFREY D. KYLE
                                                    Clerk

           CHRISTOPHER ARTHUR KURTZ
                    Appellant

                         VS.

                THE STATE OF TEXAS
                      Appellee


        FROM THE CAUSE NUMBER CR2014-343
     IN THE 207TH JUDICIAL DISTRICT COURT OF
              COMAL COUNTY, TEXAS
    HONORABLE JACK ROBISON, JUDGE PRESIDING


            APPELLEE’S (STATE’S) BRIEF


             ATTORNEY FOR THE STATE:

                 CLAYTEN HEARRELL
     ASSISTANT CRIMINAL DISTRICT ATTORNEY
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
          150 N. SEGUIN AVENUE, SUITE 307
           NEW BRAUNFELS, TEXAS 78130
                      (830) 221-1300
                   (830) 608-2008 FAX
                  hearrc@co.comal.tx.us
                     SBN: 24059919


          ORAL ARGUMENT IS REQUESTED
                      CAUSE NO. 03-15-00144-CR (Count 1)

                    IN THE COURT OF APPEALS FOR THE
                    THIRD JUDICIAL DISTRICT OF TEXAS
                            AT AUSTIN, TEXAS


                        CHRISTOPHER ARTHUR KURTZ
                                 Appellant

                                         VS.

                              THE STATE OF TEXAS
                                    Appellee


                 FROM THE CAUSE NUMBER CR2014-343
               IN THE 207TH JUDICIAL DISTRICT COURT OF
                        COMAL COUNTY, TEXAS
              HONORABLE JACK ROBISON, JUDGE PRESIDING


                        APPELLEE’S (STATE’S) BRIEF


To The Court of Appeals:

      Comes now The State of Texas, hereinafter referred to as the State, in

response to Appellant’s brief and requests this court to overrule Appellant’s points

of error and affirm the judgment of the trial court. In support thereof, the State

would show the Court the following:
                            TABLE OF CONTENTS

                                                                          Page

Table of Contents                                                         i-ii

Identity of Parties and Counsel                                           iii

Index of Authorities                                                      iv-vi

Statement of the Case                                                     1-3

Statement of Facts                                                        3-9

State’s Response to Appellant’s Point of Error                            9-33

      Summary of the Argument                                             9-10

      Legal Sufficiency Standard of Review                                10-13

      Evidence Relevant to Legal Sufficiency                              13-20

            State’s Exhibit 1 – In-Car Video of Officer Kempker           13-16

            The Testimony of Alicia Sanchez                               16-17

            State’s Exhibit 7 – Video Taped Statement of Alicia Sanchez   18-19

            State’s Exhibit 8 – Video Taped Statement of Appellant        19

            State’s Exhibits 9 and 10 – Recorded Jail Visits              19-20

            Testimony of Appellant                                        20

      Argument and Authority                                              21-33

            Elements of Aggravated Kidnapping                             21

            Intent to Commit Kidnapping                                   21-23

            Restraint                                                     23-28

            Abduction                                                     28-32

            Deadly Weapon and Other Elements                              32-33
                                         i
Conclusion                       33

Prayer                           33

Certificate of Service           34

Certificate of Compliance        35




                            ii
 IDENTITY OF PARTIES AND COUNSEL



      Appellant – Christopher Arthur Kurtz

         Appellee – The State of Texas

          Attorneys for the Appellant

    Matt Stolhandske and Venessa Rodriguez
               1004 S. St. Mary’s
            San Antonio, TX 78205
           For the Appellant at Trial

     John G. Jasuta and David A. Schulman
         1801 East 51st St., Ste 365-474
               Austin, TX 78723
          For the Appellant on Appeal

          Attorneys for the Appellee

       Clayten Hearrell and Chari Kelly
     Assistant Criminal District Attorneys
Comal County Criminal District Attorney’s Office
       150 N. Seguin Avenue, Suite 307
         New Braunfels, Texas 78130
        Attorneys for the State at Trial

                Clayten Hearrell
      Assistant Criminal District Attorney
Comal County Criminal District Attorney’s Office
       150 N. Seguin Avenue, Suite 307
         New Braunfels, Texas 78130
       Attorney for the State on Appeal




                       iii
                          INDEX OF AUTHORITIES

CASE                                                              PAGE

Brimage v. State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1996)   28

Brown v. State, 649 S.W.2d 160, 163
(Tex. App.—Austin 1983, no pet.)                                  13

Charles v. State. 05-10-01520-CR, 2012 WL 2335323
(Tex. App.—Dallas June 20, 2012, pet. ref’d)
(not designated for publication)                                  31-32

Cortez v. State, 08-02-00363-CR, 2004 WL 178587, at *3
(Tex. App.—El Paso Jan. 29, 2004, pet. ref’d)                     11

Ervin v. State, 331 S.W.3d 49, 54
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)                  10

Gaffney v. State. 937 S.W.2d 540, 542
(Tex.App.-Texarkana, 1996, no pet.)                               26

Gonzales v. State, 190 S.W.3d 125, 132
(Tex.App.-Houston [1st Dist.] 2005, pet. ref’d)                   22, 27

Goodman v. State, 66 S.W.3d 283, 286 (Tex. Crim. App. 2001)       11

Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002)         21-23

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)          11

Jackson v. Virginia, 443 U.S. 307, 319 (1979)                     11-12

Kiffe v. State, 361 S.W.3d 104, 107
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)                  10-12

Lane v. State, 174 S.W.3d 376, 386
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)                 11

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)            12
                                        iv
Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000)   12

Mayer v. State. 274 S.W.3d 898, 900
(Tex.App.-Amarillo 2008, pet. ref’d)                            22-23,29-30

Megas v. State, 68 S.W.3d 234, 240
(Tex.App.-Houston [1st District] 2002, pet. ref'’d)             28-29

Roberson v. State, 16 S.W.3d 156, 164
(Tex. App.—Austin 2000, pet. ref’d)                             12

Rockwell v. State, AP-76,737, 2013 WL 6529575, at *1
(Tex. Crim. App. Dec. 11, 2013)                                 11

Rodriguez v. State. 730 S.W.2d 75, 79
(Tex.App.-Corpus Christi, 1987, no pet.)                        24-25

Santellan v. State, 939 S.W.2d 155, 162 (Tex.Crim.App. 1997)    22




                                           v
STATUTE                               PAGE

Tex. Pen. Code Ann. §12.42(d)         1

Tex. Pen. Code. Ann. §20.01(1)        21, 23, 26

Tex. Pen. Code. Ann. §20.01(2)        21

Tex. Pen. Code Ann. §20.04(b)         21




                                 vi
                         STATEMENT OF THE CASE

      On July 2, 2014, in Cause Number CR2014-343 in the 207th Judicial District

Court of Comal County, Texas, the Grand Jury returned a four-count indictment

against Appellant, Christopher Arthur Kurtz, for the felony offenses of Aggravated

Kidnapping, Evading Arrest or Detention with a Vehicle, Tampering with Physical

Evidence, and Tampering with Physical Evidence (I C.R. at 5-7). The second

count of the indictment alleged that a deadly weapon was used during the course of

Evading Arrest or Detention with a Vehicle (id.).

      In addition to the four criminal counts, the indictment also contained two

enhancement paragraphs (id.).     The first enhancement paragraph alleged that

Appellant had been convicted in 1977 in the State of Michigan for the felony

offense of Possession of Phencyclidine (id.). The second enhancement paragraph

alleged that Appellant had been convicted in 1995 in the State of Michigan for the

felony offense of Carrying a Concealed Weapon (id.).           As set out in the

enhancement paragraphs, Appellant was a habitual felon subject to a range of

punishment from 25 years to 99 years or life in prison. Tex. Pen. Code §12.42(d).

      On October 29, 2014, the jury found Appellant guilty of the felony offenses

of Aggravated Kidnapping, Evading Arrest or Detention with a Vehicle, and

Tampering with Physical Evidence (I C.R. at 36-38). On that same day, the jury


                                         1
found Appellant not guilty of Tampering with Physical Evidence as alleged in

Count Four of the indictment (id. at 39).

        Prior to trial, Appellant had elected for the jury to assess his punishment in

the event he was convicted (id. at 21). On the morning of October 30, 2014, after

having been found guilty of Aggravated Kidnapping, Evading Arrest or Detention

with a Vehicle, and Tampering with Physical Evidence, Appellant failed to appear

for the punishment phase of the trial (V R.R. at 6). Appellant’s bond was forfeit, a

warrant was issued for Appellant’s arrest, and the proceedings on punishment

continued in his absence (id. at 6-8). After hearing evidence and arguments of

counsel on punishment, the jury found each enhancement paragraph to be true and

assessed Appellant's punishment as confinement in the Institutional Division of the

Texas Department of Criminal Justice for 70 years on Count One, 75years on

County Two, and 30 years on Count Three (I C.R. at 56-65). The jury also found

“True” as to the allegation that a deadly weapon had been used during the

commission of the offense of Evading Arrest or Detention with a Vehicle (id. at 66-

67). The court received the verdict and discharged the jury but did not impose

sentence until Appellant was returned to court on November 20, 2014 (VII R.R. at

1-9).

        On December 19, 2014 Appellant filed a Motion for New Trial and on

February 17, 2015 Appellant filed Notice of Appeal (I C.R. at 111-113 and 116).
                                            2
Appellant now asks the Court to vacate Appellant’s conviction for aggravated

kidnapping and order an acquittal for the offense of aggravated kidnapping

(Appellant’s Brief at 14).


                             STATEMENT OF FACTS

      On the morning of October 1, 2013, Sergeant James Bell of the New

Braunfels Police Department was conducting a surveillance operation in hopes of

locating Christopher Arthur Kurtz, Appellant, regarding an open arrest warrant (III

R.R. at 106). That same morning, Alicia Dawn Sanchez was to begin a new job at

Casa Garcia in New Braunfels, Texas (id. at 73). Shortly before Ms. Sanchez’s

10:00 am shift, Appellant picked her up at her residence on a motorcycle (id. at 73-

74). Sergeant Bell observed Appellant pull up to a residence near his location and

watched as a white female came out and got onto the back of the Appellant’s

motorcycle (id. at 107). Sergeant Bell followed Appellant out of the neighborhood

and onto Loop 46 but did not attempt to initiate a traffic stop because he was

travelling in an unmarked vehicle (id. at 107-108). While following Appellant’s

motorcycle, Sergeant Bell radioed for marked patrol units to assist in conducting

the traffic stop (id. at 108). Officer Kempker responded in a marked Chevy Tahoe

equipped with lights and siren (id. at 14). When Officer Kempker arrived, Sergeant




                                         3
Bell gave Officer Kempker the lead so that Officer Kempker could initiate the

traffic stop (id. at 108).

       As Officer Kempker approached, he activated his lights and pulled around

traffic to maneuver himself behind Appellant’s motorcycle (id.). Once behind

Appellant, Officer Kempker activated his siren (id. at 16-17). Ms. Sanchez told

Appellant that there was an officer behind them and asked Appellant to pull over at

an upcoming gas station (id. at 75). Appellant agreed to pull over and actually

began to pull over, however, as Appellant started to pull over, Ms. Sanchez heard

Appellant say “Fuck it. I’m running.” (id. at 75). Appellant then pulled back into

the main lane of traffic and accelerated at a high rate of speed (id. at 17).

       Officer Kempker followed Appellant, with lights and siren activated, as

Appellant drove around Loop 46 and through an intersection at North Walnut (id.

at 17-18). Appellant passed Casa Garcia, pulled back on to Loop 46, exited onto

Interstate 35, and continued at speeds reaching115 miles per hour (id. at 17-18, 21,

and 76). Ms. Sanchez asked Appellant to stop and asked Appellant to let her off

(id. at 76-77). Eventually, the pursuit was called off by the active duty supervisor

(id. at 21). Appellant never stopped for the police officers attempting to pull him

over (id. at 77). After law enforcement had called off their pursuit, Appellant

continued to the Caterpillar store in Schertz (id.) There he slowed down enough

that Ms. Sanchez was able to hop off of the back of the motorcycle (id.). Once she
                                           4
was off of the motorcycle, Ms. Sanchez ran and hid behind a piece of machinery

and then ran into the bathroom of the Caterpillar store where she was found by a

clerk (id. at 77 and 85-86).

      After the chase had been called off, the Schertz Police Department located

Appellant’s motorcycle and informed the New Braunfels Police Department (id. at

27). Officer Kempker verified that the motorcycle found by Schertz was the same

vehicle that Appellant was driving, and Officer Kempker joined other officers in

setting up a perimeter in Schertz (id.).     The San Antonio Police Department

dispatched a helicopter to assist in locating Appellant and both the New Braunfels

Police Department SWAT team and the United State’s Marshall’s task force arrived

to assist in the search for Appellant (id. at 27-28). One of the officers in that

perimeter was Officer Michael Rapier of the Schertz Police Department (id. at 61).

      While positioned at the southwest corner of Schertz Fire Station Number 2,

Officer Rapier observed movement in the brush line (id.). Officer Rapier radioed

for assistance and waited until Captain Mike Penshorn of the New Braunfels Police

Department arrived to assist (id. at 62). Officer Rapier then approached the site

where he had seen movement and observed Appellant crouching under a downed

tree (id.). Appellant failed to respond to commands from Officer Rapier to come

out, so Officer Rapier pulled Appellant out from the bushes by his feet and secured

Appellant in handcuffs (id.). At the site where Appellant had been extracted from
                                         5
the bushes, Officer Rapier discovered a pair of keys sitting directly on top of a

handgun, both hidden under the bush (id. at 63). Officer Rapier then released

custody of the Appellant to Officer Chad Adams of the New Braunfels Police

Department (id. at 64). Officer Rapier also released the keys and handgun to

Officer Adams (id.). Officer Adams transported the Appellant to New Braunfels

Police Department to be interviewed and submitted the keys and handgun into

evidence (id. at 47-48).    Back at the New Braunfels Police Department, Ms.

Sanchez was interviewed by Detective Jace Hobbs and Appellant was interviewed

by Sergeant Bell (id. at 97, 112).

      Throughout her interview with Detective Hobbs, Ms. Sanchez was

trembling, shaking, and crying (VIII R.R. State’s Ex. 7). During that interview, she

told Detective Hobbs:

       that Appellant was giving her a ride to work (8:30),
       that she had told Appellant there was a policeman behind them (9:18),
       that Appellant agreed to pull over at the upcoming gas station (9:18),
       that Appellant began to slow down and pull over (9:50),
       that Appellant said “Fuck it. I’m running” (9:50),
       that she told Appellant she was scared (10:24),
       that she told Appellant to stop (10:24),
       that she told Appellant she wanted off of the motorcycle (10:24),
       that Appellant drove into oncoming traffic and passed vehicles on the
        shoulder (11:38),
       that she thought they were going to have an accident and that they would
        have died in an accident (28:45),
       that she pleaded with Appellant to let her off of the motorcycle (11:38),
        and
                                         6
       that when Appellant slowed down in front of the Caterpillar store, she
        jumped off and ran inside because she was scared and just wanted to go
        home (12:42).

(VIII R.R. State’s Ex. 7). During Appellant’s interview with Detective Bell,

Appellant stated:

       that he had picked the girl up to give her a ride to work (1:38),
       that as he was driving, he looked behind him and saw an SUV with its
        lights on (1:50),
       that he just took off because he was going to jail anyway (3:02),
       that he knew the police were looking for him (6:30),
       that he wasn’t going to jail nice and calm and he intended to make them
        work for their money (7:12), and
       that the girl wanted to risk her own life (7:44).

(VIII R.R. State’s Ex. 8). Because Appellant had an active Family Violence

Protective Order in place forbidding him from possessing a firearm, he was

charged with the misdemeanor offense of Violation of a Protective Order (VIII

R.R. State’s Ex. 11 and VIII R.R. State’s Ex. 12). Prior to trial, Appellant pled “No

Contest” and was convicted of Violation of a Protective Order for possessing a

firearm in violation of a Family Violence Protective Order on October 1, 2013

(VIII R.R. State’s Ex. 11). Appellant was also charged with, pled no contest to, and

was convicted of the offense Unlawful Carrying of a Weapon for this same

criminal episode (VIII R.R. State’s Ex. 12).

      While Appellant was incarcerated and awaiting trial, friends visited him in

the Comal County Jail on November 5, 2013 and November 26, 2013 (VIII R.R.

                                         7
State’s Ex. 9 and VIII R.R. State’s Ex. 10). During his conversation with the

visitors on November 5, 2013, Appellant stated:

      I got away. (0:23),
      I was doing a hundred. (0:25),
      I was going a hundred and twenty on that fucker. (0:38),
      It wasn’t locked (the motorcycle). I couldn’t lock it. I had to get out of
       there real quick. I parked it and took off running. (1:02),
      I fuckin dived over the fence and I was in the creek. (1:28),
      It took them an hour and an hour and forty five minutes to get me out of the
       woods. (1:34),
      They had a helicopter with a heat seeker. That’s the only way they found
       me. (1:38),
      Fuckin Dawn got a way. (2:05),
      The running was a felony. (2:15), and
      That’s a misdemeanor, an unlicensed gun, that’s a misdemeanor, that’s all.
       (2:25)

(VIII R.R. State’s Ex. 9, File One). Later, during that same jail visit, Appellant also

stated:

    Didn’t Dawn tell you what happened? (:02), and
    She (Dawn) was scared man. She was beating me in the ribs, wanting off.
     She was screaming. Stop. Help. I said I ain’t stopping till I lose these
     motherfuckers. (0:07)

(VIII R.R. State’s Ex. 9, File Two). During the jail visit on November 26, 2013,

Appellant stated:

    No that’s the just a misdemeanor (unlawful carrying). (0:06), and
    I shoved it (handgun) under a bush. It took them two hours to find me. I
     was in the woods man. I was walking in the creek (0:12)
                                           8
(VIII R.R. State’s Ex. 10). Later in that same conversation, the visitor says “They

said when they picked you up you had a gun” (id. at 0:32). Appellant replies to

this statement, saying “Ya, I did, but you know, they had me surrounded, and I had

one (a gun) and I fuckin shoved it way up under the bush, but they found it

anyway.” (id. at 0:34).




  STATE’S RESPONSE TO APPELLANT’S POINT OF ERROR

                            Summary of the Argument

      In his only point of error, Appellant argues that the evidence produced at

trial was insufficient to prove the offense of aggravated kidnapping (Appellant’s

Brief at 7). Appellant further asserts that there was no evidence produced at trial to

establish that an abduction occurred and argues that the trial testimony of Alicia

Dawn Sanchez, the individual abducted, clearly establishes that Ms. Sanchez was

not abducted by Appellant (id.). In advancing this argument, Appellant fails to

account for or even mention the great weight of evidence produced at trial contrary

to Appellant’s position, which serves to establish that an abduction occurred.

Those pieces of evidence admitted at trial contrary to Appellant’s position on

appeal included 1) the in-car video of Officer Kempker entered into evidence as

State’s Exhibit 1, 2) portions of Ms. Sanchez’s testimony that contradict the

                                          9
Appellant’s position, 3) the videotaped statement of Ms. Sanchez from the offense

date that was entered into evidence as State’s Exhibit 7, 4) the videotaped

statement of Appellant from the offense date that was entered into evidence as

State’s Exhibit 8, 5) the recorded jail visits entered into evidence as State’s

Exhibits 9 and 10, and 6) the trial testimony of Appellant. Appellant’s argument

fails, because when all of the evidence is viewed in the light most favorable to the

verdict, the evidence clearly indicates that a rational jury could have found the

essential elements of aggravated kidnapping beyond a reasonable doubt



                      Legal Sufficiency Standard of Review

      After the decision of the Court of Criminal Appeals in Brooks v. State, Texas

appellate courts review legal and factual sufficiency challenges in criminal cases

using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,

107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331

S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only

insufficient if, when considering all the evidence in the light most favorable to the

verdict, “no rational factfinder could have found each essential element of the




                                         10
charged offense beyond a reasonable doubt.” Id.1 (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

       Courts will treat direct and circumstantial evidence equally. Kiffe, 361

S.W.3d at 108. “[D]irect evidence of a fact, standing alone and if believed by the

jury, is always… sufficient to prove that fact.” Cortez v. State, 08-02-00363-CR,

2004 WL 178587, at *3 (Tex. App.—El Paso Jan. 29, 2004, pet. ref’d) (citing

Goodman v. State, 66 S.W.3d 283, 286 (Tex. Crim. App. 2001)); see also Lane v.

State, 174 S.W.3d 376, 386 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)

(testimony of a child victim, standing alone, is sufficient to support aggravated

sexual assault conviction). Furthermore, “[c]ircumstantial evidence is as probative

as direct evidence in establishing the guilt of an actor, and circumstantial evidence

alone can be sufficient to establish guilt.”Rockwell v. State, AP-76,737, 2013 WL

6529575, at *1 (Tex. Crim. App. Dec. 11, 2013) (not designated for publication)

(citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)), cert. denied,

134 S. Ct. 2724 (2014).

       Legal sufficiency review “gives full play to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

1
  When viewing the evidence in the light most favorable to the verdict, evidence can be
insufficient in two circumstances: when the record contains “no evidence, or merely a
‘modicum’ of evidence, probative of an element of the offense” or when “the evidence
conclusively establishes a reasonable doubt.” Id. The evidence may also be insufficient when the
acts alleged do not constitute the offense charged. Id. at 108.
                                                 11
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

Each fact in isolation need not establish the guilt of the accused. Roberson v. State,

16 S.W.3d 156, 164 (Tex. App.—Austin 2000, pet. ref’d). Reviewing courts will

determine whether the necessary inferences are reasonable based on the “combined

and cumulative force of the evidence when viewed in the light most favorable to

the verdict.” Kiffe, 361 S.W.3d at 108. Appellate courts will presume that the

factfinder “resolved any conflicting inferences in favor of the verdict” and defer to

that resolution. Id. The reviewing courts will also defer to “the factfinder’s

evaluation of the credibility and the weight of the evidence.” Id. The factfinder is

entitled to accept some testimony and reject other testimony, in whole or in part.

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), abrogated on

other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009); see also

Roberson, 16 S.W.3d at 164 (factfinder may accept or reject any or all evidence

presented by either party).

      Ultimately, the reviewing court is not to determine “whether it believes that

the evidence at the trial established guilt beyond a reasonable doubt,” but whether

“after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original).

Accordingly, “the verdict will be sustained if there is any evidence which, if
                                         12
believed, shows the guilt of the accused.” Brown v. State, 649 S.W.2d 160, 163

(Tex. App.—Austin 1983, no pet.).



                     Evidence Relevant to Legal Sufficiency

      Legal sufficiency claims survive or fail based on the evidence presented at

trial. The evidence presented at trial relevant to supporting the jury’s verdict and

establishing legal sufficiency includes 1) the in-car video of Officer Kempker

entered into evidence as State’s Exhibit 1, 2) portions of Ms. Sanchez’s testimony

that contradict Appellant’s position, 3) the videotaped statement of Ms. Sanchez

from the offense date that was entered into evidence as State’s Exhibit 7, 4) the

videotaped statement of Appellant from the offense date that was entered into

evidence as State’s Exhibit 8, 5) the recorded jail visits entered into evidence as

State’s Exhibits 9 and 10, and 6) the trial testimony of Appellant.



State’s Exhibit 1 – In-Car Video of Officer Kempker

      Officer Kempker’s in-car video was introduced into evidence as State’s

Exhibit 1 (VIII R.R. State’s Ex. 1).       On October 1, 2013, Officer Kempker

responded in a marked Chevy Tahoe equipped with lights and siren initiate a traffic

stop on Appellant (III R.R. at 14-17). In this video, Appellant and Ms. Sanchez are

both clearly visible (VIII R.R. State’s Ex. 1). The video also shows the motorcycle
                                          13
slowing and pulling onto the shoulder before pulling back into the main lane of

traffic and accelerating (id. at 2:04-2:09).

      Officer Kempker followed Appellant, with lights and siren activated, as

Appellant drove around Loop 46 and through an intersection at North Walnut (III

R.R. at 17-18). As Appellant reaches the Walnut intersection, the video introduced

as State’s Exhibit 1 shows heavy traffic on Loop 46 with cars pulled off on both

sides of the road, depicts Appellant driving down the center of the road using the

center turn lane to pass other vehicles, and records Appellant’s speed as exceeding

95 miles per hour when he passes in front of New Braunfels High School (VIII

R.R. State’s Ex. 1 at 2:09-3:35). Once Appellant exits at Walnut, State’s Exhibit 1

shows him passing vehicle parked at the red light by driving onto the grassy

median at a high rate of speed (Id. at 3:35-3:51).

      Thereafter, Appellant passes Casa Garcia, where he had agreed to take Ms.

Sanchez, pulls back on to Loop 46, and continues around Loop 46 until he reached

Interstate 35 (III RR. at 17-18, 21, and 76). State’s Exhibit 1 clearly shows

Appellant pulling back onto Loop 46, accelerating to speeds in excess of 106 miles

per hour, passing vehicles using both the center turn lane and the right shoulder,

and speeding through a red light at an extremely crowded intersection, all before

reaching the on ramp to Interstate 35 (VIII RR. States Ex. 1 at 3:51 – 5:56).

Throughout the chase, Ms. Sanchez is seen clinging tightly to Appellant (id.). As
                                           14
Appellant approaches another busy intersection on Loop 46, Ms. Sanchez drops a

box of tampons out of her purse (id. at 4:47).

      State’s Exhibit 1 also shows Appellant reach Interstate 35 and turn off onto

the frontage road alongside Interstate 35, at which point Appellant nearly loses

control of the motorcycle while traveling at a high rate of speed with Ms. Sanchez

on the back (id. at 5:56-6:06). As State’s Exhibit 1 continues, Appellant races

down the Interstate 35 frontage road travelling over 92 miles per hour, passes the

first on ramp to Interstate 35, runs a red light at an intersection on the Interstate 35

frontage road by passing between two vehicles stopped at the light, and then cuts

off a cement truck at the second on ramp to Interstate 35 in a clear effort to lose

Officer Kempker (id. at 6:06-7:06). Appellant is then recorded continuing down

Interstate 35, weaving in and out of traffic, at speeds exceeding 116 miles per hour

until the chase is called off (id. at 7:06-9:52).

      The video entered into evidence as State’s Exhibit 1 includes the entirety of

the high speed chase between law enforcement and Appellant on October 1, 2013.

A review of State’s Exhibit 1 reveals that Appellant operated a motorcycle with

Alicia Sanchez riding as a back seat passenger. Throughout the chase depicted in

State’s Exhibit 1, Appellant is recorded operating that motorcycle in a manner

clearly capable of causing death or serious bodily injury to his passenger, other

motorist, the officers engaged in pursuit, and even himself. At no point during the
                                            15
entirety of the chase does Appellant slow down to a speed that would allow Ms.

Sanchez to safely depart from the motorcycle. By Appellant’s actions recorded and

admitted on State’s Exhibit 1, he forces Ms. Sanchez to choose between either

holding on and accompanying Appellant as he evades officers or release her grasp

and fall to certain injury or death.



The Testimony of Alicia Sanchez

      Ms. Alicia Dawn Sanchez was called to testify during the State’s case in

chief (III R.R. at 70). On direct examination, Ms. Sanchez testified that she was

supposed to start a new job at Casa Garcia on the morning of October 1, 2013 (id.

at 73). She further testified that Appellant had agreed to take her to work that

morning and that he picked her up to go to Casa Garcia on a motorcycle (id. at 73-

74). When the police officer attempted to pull them over, Ms. Sanchez she told

Appellant an officer was pulling them over and Appellant agreed to pull over at an

upcoming gas station (id. at 74-75). However before reaching the gas station, Ms.

Sanchez heard Appellant say “Fuck it” and “I’m running” (id. at 75-76).

Thereafter, Ms. Sanchez stated that Appellant “took off” around the loop, past Casa

Garcia, and onto I-35 (id. at 76). Appellant never pulled over for the police and

only stopped once he reached the Caterpillar store in Schertz (id. at 77). Once he

pulled over at the Caterpillar store, Ms. Sanchez hopped off of the motorcycle, ran
                                        16
behind a piece of machinery, and then ran into the bathroom of the store (id.).

During the course of direct examination, Ms. Sanchez testified that during the

motorcycle ride, she did not want to be on the highway going 100 miles per hour,

she did not want to be involved in a police chase, she asked Appellant to stop, she

asked Appellant to let her off of the motorcycle, Appellant did not stop until after

the police chase had ended, and she was not free to leave until after the police

chase ended (id. at 76-78).

      On cross examination by defense council, Ms. Sanchez stated that she did

not feel like she was forced to be on the motorcycle and that she knew Appellant

would let her go eventually (id. at 82-83). In that same accord, she testified that

she considered Appellant to be family, that Appellant was the only one in the world

who was there for her and her family, and that she did not want to see anything bad

happen to Appellant (id. at 91-92). During redirect, she ultimately admitted that

she told Appellant “Stop. Stop. Let me off.” and “Let me off. I’m scarred.” (id. at

90-91). However, Appellant did not stop when she wanted him to and she was

very scared by the way he was driving. (id.).




                                         17
State’s Exhibit 7 – Video Taped Statement of Alicia Sanchez

      The videotaped statement given by Alicia Sanchez to Detective Jace Hobbs

on October 1, 2013, shortly after she was found at the Caterpillar store was

admitted into evidence as State’s Exhibit 7 (id. at 99). During the course of her

interview, Detective Hobbs observed Ms. Sanchez to be very distraught, scared,

amped up, and crying (id. at 97). As soon as Ms. Sanchez appears on State’s

Exhibit 7, she is seen shaking, sniffling, distraught, and crying (VIII R.R. State’s

Ex. 7). In that interview, Ms Sanchez stated:

       that Appellant was giving her a ride to work (8:30),
       that she had told Appellant there was a police behind them (9:18),
       that Appellant agreed to pull over at the upcoming gas station (9:18),
       that Appellant began to slow down and pull over (9:50),
       that Appellant said “Fuck it. I’m running” (9:50),
       that she told Appellant she was scarred (10:24),
       that she told Appellant to stop (10:24),
       that she told Appellant she wanted off of the motorcycle (10:24),
       that Appellant drove into oncoming traffic and passed vehicles on the
        shoulder (11:38),
       that she thought they were going to have an accident and that they would
        have died in an accident (28:45),
       that she pleaded with Appellant to let her off of the motorcycle (11:38),
        and
       that when Appellant slowed down in front of the Caterpillar store, she
        jumped off and ran inside because she was scared and just wanted to go
        home (12:42).

(VIII R.R. State’s Ex. 7).Ms. Sanchez shakes, cries, and wipes tears from her eyes

throughout her entire interview with Detective Hobbs (VIII R.R. State’s Ex. 7).

                                        18
State’s Exhibit 8 –Videotaped Statement of Appellant

      State’s Exhibit 8, as admitted at trial, was redacted to contain four clips from

the videotaped statement given by Appellant to Detective Bell (III R.R. at 113-

115). During the course of that interview, Appellant confirmed that he was the

driver of the motorcycle, that he had seen the officers behind him that morning,

that he had a passenger on the back of the motorcycle, and that he ran because he

knew that he was going to jail any way and he intended to make the police officers

earn their money rather than surrender peacefully (VIII R.R. State’s Ex. 8). Also

during the course of this statement, Appellant seemed to concede that there was a

substantial risk not only to his life but also to the life of his passenger (id.).

However, Appellant claimed that Ms. Sanchez had told him to run from the police

and in doing so, she chose to risk his life and her own life (id.).




State’s Exhibits 9 and 10 – Recorded Jail Visits

      Contained on State’s Exhibit 9 were two clips from a recording of a jail visit

that Appellant had with friends on November 5, 2013 (VIII R.R. State’s Ex. 9).

Contained on State’s Exhibit 10 was a single clip from a recording of a jail visit

that Appellant had with friends on November 26, 2013 (VIII R.R. State’s Ex. 10).

On the first clip contained on State’s Exhibit 9, Appellant can be heard telling his

                                           19
friends that he had gotten away from the police by going 120 miles per hour on his

motorcycle and that Dawn had managed to get away from the police (VIII R.R.

State’s Ex. 9). On the second clip contained on State’s Exhibit 9, Appellant tells

his friends that:

       “She (Dawn) was scared man. She was beating me in the ribs,
       wanting off. She was screaming. Stop. Help. I said I ain’t stopping
       till I loose these motherfuckers.”

(VIII R.R. State’s Ex. 9, file two, 0:07) (emphasis added). It should be noted that

Ms. Sanchez’s full name was Alicia Dawn Sanchez and that Appellant referred to

her as “Dawn” in his testimony at trial (IV R.R. at 16). On State’s Exhibit 10,

Appellant is recorded telling his friends that he had a gun on him whenever these

events occurred and that he tried to hide it in the bushes, but the officers were able

to find it (VIII RR. States Ex. 10).




Testimony of Appellant

       During cross, Appellant admitted that at some point Ms. Sanchez had told

him to stop (id. at 28). Appellant also admitted that he was convicted for the

offenses of violation of a protective order and unlawful carrying of a handgun by a

licensed holder for the carrying handgun that was found in his possession of the

offense date (id. at 45 and 68).

                                         20
                            Argument and Authority

Elements of Aggravated Kidnapping

      The elements of aggravated kidnapping as charged in this case are that the

defendant intentionally or knowingly abducts another person and uses or exhibits a

deadly weapon during the commission of the offense. Tex. Pen. Code Ann.

§20.04(b) (West, Westlaw through 2013 Sess.). Under the Penal Code, “Abduct”

means to restrain a person with intent to prevent his 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. Tex. Pen. Code. Ann. §20.01(2) (West, Westlaw through 2013

Sess.) (emphasis added). Under the Penal Code, “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. Tex. Pen. Code. Ann. §20.01(1) (West, Westlaw through 2013 Sess.).

Appellant does not seem to challenge that a deadly weapon was used in the

commission of the offense

Intent to Commit Kidnapping

      There is no bar to prosecution that occurs if the kidnapping is part and parcel

of another offense, and conduct that occurs during the commission of another

offense can be prosecuted as a kidnapping. Hines v. State, 75 S.W.3d 444, 447

(Tex. Crim. App. 2002). Whether a defendant intends to commit kidnapping or
                                         21
another offense is irrelevant. Gonzales v. State, 190 S.W.3d 125, 132 (Tex.App.-

Houston [1st Dist.] 2005, pet. ref’d). The relevant issue is a defendant’s intent to

commit the elements of a crime, not the defendant’s intent to commit a particular

named offense. Id. As applied to kidnapping, whether a Defendant moved his

victim with the intent to commit some other offense is irrelevant where the

byproduct of the main goal resulted in the meeting of the elements of the crime of

kidnapping. Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997).

      As applied in the case at bar, it is irrelevant whether Appellant intended to

commit the offense of evading arrest with a motor vehicle or the offense of

kidnapping. The only relevant issue is whether Appellant’s conduct resulted in

meeting of all of the elements of aggravated kidnapping. The Hines case

established this particular concept of kidnapping law by determining that, while

engaged in the act of robbery, the defendant had also committed the offense of

aggravated kidnapping when he substantially interfered with the victim’s liberty.

Hines, 75 S.W.3d at 445-448. This same principle of kidnapping law has been

applied in cases where the defendant manifests an intent not to kidnap, but to flee

apprehension or discovery by law enforcement. Mayer v. State. 274 S.W.3d 898,

900 (Tex.App.-Amarillo 2008, pet. ref’d)(Holding that by taking a passenger with

him in an effort to avoid capture for assault the defendant had committed the

offense of kidnapping). The court determined that even if such was Appellant’s
                                        22
intent, fleeing with such an intent would negate the element of abduction

established by the evidence for the charge of aggravated kidnapping. Id. at 901. In

the instant case, even if Appellant’s intent was simply to evade arrest, he can still

be held responsible for aggravated kidnapping where his conduct meets the

relevant elements of the offense.

Restraint

      Restraint requires a restriction of a person’s movements without their

consent, which interferes substantially with the person’s liberty, by moving the

person from one place to another or by confining the person. Tex. Pen. Code. Ann.

§20.01(1) (West, Westlaw through 2013 Sess.). Under Texas law, there is no

requirement that a defendant moved his victim a certain distance or held his victim

any specific length of time. Hines, 75 S.W.3d at 447. The jury is called upon to

make the factual determination of whether the restriction of the person’s

movements constitutes a substantial or a slight interference. Id. at 448. In the case

at bar, Appellant is clearly seen in State’s Exhibit 1 moving Ms. Sanchez from one

place to another (VIII R.R. State’s Ex. 1). Appellant does so by accelerating the

motorcycle that she is riding on to an extremely high speed while weaving in and

out of traffic, running multiple red lights, and evading arrest or detention by law

enforcement (id.). As Appellant engaged in that manner of operation of the

motorcycle, Ms. Sanchez held tight to his waist (id.). At no point during the pursuit
                                         23
did Appellant slow enough to allow his passenger an opportunity to safely

disembark the vehicle (id.). Based on that depiction in State’s Exhibit 1, a rational

jury could certainly determine that Ms. Sanchez’s movements were restricted in

that the only safe course of movement was to hold tightly to Appellant and remain

on the motorcycle. Likewise, that same jury could certainly determine that the

interference with Ms. Sanchez’s liberty was substantial. The only matter left for

consideration on the issue of restraint is whether such restraint was accomplished

without Ms. Sanchez’s consent.

      Since absence of consent is an element, whether or not Appellant restrained

Ms. Sanchez without her consent is a factual question for the jury to determine. As

a preliminary consideration, the fact that a victim initially accompanies a

Defendant voluntarily does not preclude the possibility of a kidnapping occurring

at some subsequent point. Rodriguez v. State. 730 S.W.2d 75, 79 (Tex.App.-Corpus

Christi, 1987, no pet.). A good illustration of this principle is seen in the Rodriguez

case. In Rodriguez, the defendant and his brother offered to give the victim and

several of her family and friends a ride home from a night club. Id. at 78. The

victim rode up front between the defendant and his brother while the victim’s

family and friends sat in the bed of the truck. Id. During the trip home, the victim

gave the defendant turn-by-turn directions. Id. At some point the victim told

defendant to turn on a particular street. Id. The defendant refused. Id. The victim
                                          24
then directed the defendant to turn on the next street. Id. The defendant refused and

sped up. Id. Thereafter, a fight ensued between the defendant and his brother and

the victim’s family and friends. Id. Ultimately the victim’s family and friends were

thrown from the bed of the truck and the defendant continued driving off with the

victim. Id. Both defendant and the defendant’s brother assaulted the victim and

both told her that they were going to kill her with a gun that was under the seat. Id.

The court in Rodriguez determined that the fact that the victim was initially a

willing passenger did not preclude the occurrence of a subsequent kidnapping. Id.

at 79. What is really interesting about the Rodriguez opinion is the point at which

the court determined that a kidnapping occurred. Id. The court held in Rodriguez

that:

        The kidnapping began when the victim demanded to be taken to her
        home and appellant refused. Her presence, positioned between the
        two abductors, in the cab of the fast-moving truck then became
        confinement, and a substantial interference with her liberty.

Id. at 79. Although the Defendant in Rodriguez assaulted the victim and threatened

to kill the victim with a handgun that he claimed was in the vehicle, the court

found that the kidnapping happing began prior to either the assault or the

threatened deadly force. Id. The court held that the kidnapping actually began at

the point where the victim asked to be taken home, the defendant refused, and the

defendant sped up. Id. The case at bar is similar. The record is replete with

                                         25
evidence that Ms. Sanchez told Appellant to stop, to pull over, and to let her off.

When Ms. Sanchez asked Appellant to do so, Appellant refused and accelerated.

Ms. Sanchez’s vulnerable position on the back of Appellant’s motorcycle became

confinement and a substantial interference with Ms. Sanchez’s liberty.

      Furthermore, the definition of restraint set out in the statute explicitly states

that restraint is without effective consent if it is accomplished by force,

intimidation, or deception. Tex. Pen. Code. Ann. §20.01(1) (West, Westlaw through

2013 Sess.). There is no need that the force be directed at the victim as Appellant

asserts in his brief. A threat may be communicated by acts, words, or deeds.

Gaffney v. State. 937 S.W.2d 540, 542 (Tex.App.-Texarkana, 1996, no pet.). In the

instant case, Appellant’s actions threatened Ms. Sanchez life and safety.          By

refusing to stop as requested, accelerating the motorcycle, and driving in the

reckless manner that he did, Appellant forced Ms. Sanchez to hold tightly to him

and accompany him as he sought to evade capture. His actions forced her to

choose between going with Appellant or dying in an effort to secure liberation.

Furthermore, Appellant’s actions were inherently intimidating. Detective Hobbs

testified about Ms. Sanchez’s distraught mental state and State’s Exhibit 7 clearly

depicts a terrified victim. The fear brought to bear on Ms. Sanchez by Appellant’s

actions could easily and rationally be construed to have intimidated her into

acquiescence rather than attempting to jump off the speeding vehicle.
                                          26
      Finally, restraint should be considered without consent when Appellant

exceeds the scope of defined consent or whenever the victim actually revokes her

consent. In Gonzales v. State, the victim explicitly asked her kidnapper multiple

times to let her go. 190 S.W.3d 125, 133 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d). Not surprisingly, the court in Gonzales found that where the victim

repeatedly asked to be let go, the restraint was without consent. Id. First, Ms.

Sanchez voluntarily rode with Appellant for the express purpose of being

transported to her place of employment at Casa Garcia. Whenever Appellant

accelerated past Casa Garcia, he exceeded the limitations of Ms. Sanchez’s

consent. Second, regardless of their prior arrangements, the record contains ample

evidence that Ms. Sanchez told Appellant to stop and let her off the motorcycle.

Ms. Sanchez testified to the jury that she told Appellant to stop and let her off,

State’s Exhibit 7 contained a recording of Ms. Sanchez stating multiple times that

she told Appellant to stop and let her off, file two of State’s Exhibit 9 contains a

recording of Appellant telling people that Ms. Sanchez was hitting him in the ribs

and crying out ‘stop, let me off,’ and finally Appellant in his testimony admitted

that at least at some point he heard Ms. Sanchez ask him to stop and let her off.

      The evidence, when viewed in the light most favorable to the jury’s verdict,

clearly demonstrates that a rational jury could have found that Appellant restrained

Ms. Sanchez. Evidence exists in the record from which a rational jury could
                                         27
determine that Appellant restricted Ms. Sanchez’s movements, that said restriction

was without Ms. Sanchez’s consent, that said restriction was a substantial

interference with Ms. Sanchez’s liberty, and Appellant restricted her movements by

either moving her from place to place or confined her.

Abduction

      The offense of kidnapping is complete whenever restraint has been

established and there is evidence of the actor’s specific intent to prevent liberation.

Brimage v. State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994), on reh’g (Jan.

10, 1996). The element of abduction that requires an intent to prevent liberation is

part of the mens rea of kidnapping, not the actus reus. Id. As such, it does not

matter whether Appellant actually succeeded in preventing liberation by secreting

the victim in a place where she was not likely to be found or by the use or

threatened use of deadly force. The key is whether Appellant intended to prevent

the victim’s liberation by secreting her in a place where she was not likely to be

found or by the use or threatened us of deadly force.

      When evaluating whether Appellant intended to prevent the liberation of this

victim by secreting her in a place where she was not likely to be found, our case

law has consistently held that the fact that a defendant is operating a motor vehicle

in a public place does not negate the intent to secrete or keep the victim from being

found. Megas v. State, 68 S.W.3d 234, 240 (Tex.App.-Houston [1st Dist.] 2002,
                                          28
pet. ref'’d). An excellent example of this concept is seen in the Mayer case. 274

S.W.3d 898. In the Mayer case, the defendant confronted his victim in the parking

lot of a convenience store, assaulted her, and forced her to leave with him in her

vehicle. Id. at 900-901. At trial, the defendant admitted to his conduct but claimed

his intention was to flee the scene of the assault, not to kidnap his victim. Id. at

900. In analyzing this claim, the court held that:

      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.

Id. at 901. Obviously, the facts of Mayer have a significant parallel to the facts in

the case at bar regarding Appellant’s intent to prevent the liberation of his victim

by secreting her away. It is clear from the record that Appellant intended to reach a

place where he could not be found so as to evade capture. In doing so, he took a

terrified Ms. Sanchez along for the ride. Although our law requires a specific

intent to prevent Ms. Sanchez’s liberation, Mayer tells us that that specific intent is

shown when Appellant, seeking a place where law enforcement will not find him,

takes his victim with him in that search for a place to evade capture.



                                          29
      Appellant attempts to distinguish Mayer from the case at bar by arguing that

Mayer is inapplicable because the defendant in Mayer used force directed at his

victim. This argument confuses the distinction between actus reus of kidnapping

and the mens rea of kidnapping. The holding in Mayer is that the specific intent to

secret is satisfied if the defendant takes his victim with him in seeking a place to

hide from law enforcement. In that scenario the discussion of whether force was

directed towards the victim would factor into the consent analysis of restriction and

be part of the actus rea. As such, the fact that Mayer used force against his victim

to restrict her movements has no bearing on whether his actions indicated the

specific intent to secret his victim. The same applies in our case. Even if Appellant

was correct in arguing that no force was directed at Ms. Sanchez, that would not

negate the Appellant’s mens rea in taking Ms. Sanchez along in his effort to reach a

place where the police could not find him.

      Specific intent to prevent liberation can also be established by the use or

threatened use of deadly force against a victim. The fact that Appellant utilized his

motorcycle in a manner that was capable of causing death or serious bodily injury

is essentially undisputed. Not only did Detective Bell indicate that the motorcycle

was used in a manner capable of causing death or serious bodily injury to

Appellant, his passenger, and the multitude of other drivers on the road, both Ms.

Sanchez and Appellant made similar statements in State’s Exhibit 7 and State’s
                                         30
Exhibit 8 (VIII R.R. State’s Ex. 7 and VIII R.R. State’s Ex. 8). Beyond that, any

juror could appreciate the danger of Appellant’s actions simply from watching

State’s Exhibit 1. By using the motorcycle in that way, Appellant used deadly

force or threatened deadly force in an attempt to prevent his capture and the

liberation of Ms. Sanchez.

      Appellant argues that the trial testimony of Ms. Sanchez is sufficient in and

of itself to negate abduction because she stated that she knew Appellant did not

intend to prevent her liberation (Appellant’s Brief at 10). This argument is ill

conceived because it ignores both the interview admitted as State’s Exhibit 7 and

the portions of Ms. Sanchez’s trial testimony that contradict the Appellant’s

position. The record demonstrates contrary evidence from many different sources,

including the rest of Ms. Sanchez’s testimony and her recorded statement.

Furthermore, this argument ignores the proper standard of review and seeks to

completely obliterate the jury’s role as the sole judge of the credibility of the

witnesses. A somewhat similar situation was seen in Charles v. State. 05-10-

01520-CR, 2012 WL 2335323, at *1 (Tex. App.—Dallas June 20, 2012, pet. ref'd)

(not designated for publication).

      In Charles, evidence presented from multiple eyewitnesses established that

the defendant drove to his ex-girlfriend’s house, shot up and kicked in the back

door, punched the victim, dragged the victim, and forced both the victim and her
                                        31
young daughter in his car. Id. However, when officers finally located the victim,

she told the officers that it was a crime of passion and nothing important. Id.

Whenever the case came to trial, the victim testified she and the defendant were in

a dating relationship, she seeing her ex-boyfriend, she never heard any gunshots,

and that she never saw a gun. Id. The victim did concede that the defendant had

punched her and might have pulled her hair, but stated that she and her daughter

both went with the defendant voluntarily and could have left at any time. Id.

Although the Defense argued that, based on the victims testimony, there was no

credible evidence that a kidnapping occurred, the jury disagreed and convicted the

defendant of aggravated kidnapping. Id. The court in Charles reiterated that the

jury is the sole judge of credibility and that the jury was free to disbelieve the

victim’s testimony. Id. The same principal certainly applies here. The jury was

free to discredit those portions of Ms. Sanchez’s testimony that were favorable to

Appellant. The jury may even have been inclined to do so because both Ms.

Sanchez and Appellant testified that they saw one another as family.


Deadly Weapon and Other Elements

      Appellant does not seem to contest any of the other elements of aggravated

kidnapping. Officer Kempker, Detective Bell, and Officer Rapier all testified that

these events occurred within Comal County on October 1, 2013. Detective Bell,

                                        32
Ms. Sanchez, Officer Rapier, Officer Adams, and Appellant himself confirmed his

identity as the same individual driving the motorcycle and transporting Ms.

Sanchez. Detective Bell testified that the manner and means in which Appellant

operated the motorcycle was capable of causing death or serious bodily injury, and

the video introduced as State’s Exhibit 1 certainly demonstrates that Appellant used

the motorcycle as a deadly weapon (III R.R. at 126-127).


                                   Conclusion

      The evidence within the record addresses every element of aggravated

kidnapping. The courts must defer to the jury’s determination of facts where there

was evidence on which a rational jury could have based their decision. Evidence

was submitted as to each and every essential element of the offense of aggravated

kidnapping. The jury acted the sole judge of credibility and weighed the evidence

in determining that Appellant was guilty of the offense of aggravated kidnapping.

The evidence was legally sufficient to support Appellant’s conviction for

aggravated kidnapping.

                            PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, the State respectfully requests

this Court to deny Appellant’s single point of error and affirm Appellant’s

conviction for the offense of aggravated kidnapping as alleged in the indictment.

                                        33
                                              Respectfully Submitted,


                                              /s/ Clayten Hearrell
                                               Clayten Hearrell
                                               Assistant Criminal District Attorney
                                               SBN: 24059919
                                               150 N. Seguin Ave., Suite 307
                                               New Braunfels, Texas 78130
                                               Phone: (830) 221-1300
                                               Fax: (830) 608-2008
                                               hearrc@co.comal.tx.us

                                              ATTORNEY FOR THE STATE




                          CERTIFICATE OF SERVICE

      I, Clayten Hearrell, attorney for the State of Texas, Appellee, hereby certify

that a true and correct copy of this brief has been delivered to the attorney of

record for the opposing party:

      Mr. John G. Jasuta
      lawyer1@johnjasuta.com
      1801 East 51st Street
      Austin, TX 78723

By electronically sending it to the above-listed email address through

efile.txcourts.gov e-filing, this 6th day of November, 2015.

                                              /s/ Clayten Hearrell
                                              Clayten Hearrell


                                         34
                      CERTIFICATE OF COMPLIANCE

      I, Clayten Hearrell, hereby certify that this document was prepared in MS

Word and it does not exceed the allowable length for an appellate brief, pursuant to

Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012, by Order of

the Texas Court of Criminal Appeals. The approximate total of words in this

document, as calculated by the word processing software, is 8,132 words.



                                              /s/ Clayten Hearrell
                                              Clayten Hearrell




                                         35
