ACCEPTED 03-15-00144-CR 5556010 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/5/2015 7:45:36 AM JEFFREY D. KYLE No. 03-15-00144-CR (Count I) CLERK
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS Christopher Arthur Kurtz 6/5/2015 7:45:36 AM Appellant JEFFREY D. KYLE Clerk v. The State of Texas Appellee On Appeal In Case Number CR2014-343, from the 207th, District Court of Comal County, the Hon. Jack Robison, Judge Presiding
Brief on Appeal Submitted by:
John G. Jasuta David A. Schulman Attorney at Law Attorney at Law State Bar Card No. 10592300 State Bar Card No. 17833400 lawyer1@johnjasuta.com zdrdavida@davidschulman.com
1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Christopher Arthur Kurtz Oral Argument Not Requested Identity of Parties and Counsel Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following is a complete list of the names and addresses of all parties to the trial court’s final judgment and their counsel in the trial court, as well as appellate counsel, so the members of the Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case and so the Clerk of the Court may properly notify the parties to the trial court’s final judgment or their counsel, if any, of the judgment and all orders of the Court of Appeals.
Appellant Christopher Arthur Kurtz TDCJ No. 01968855 Trial Counsel Appellate Counsel Matt Stolhandske John G. Jasuta SBN 19278750 SBN 10592300 Venessa D. Rodriguez David A. Schulman SBN 24077794 SBN 17833400 1004 S. St. Mary’s 1801 East 51st St, Ste 365-474 San Antonio, Texas 78205 Austin, Texas 78723
State of Texas Jennifer Tharp Criminal District Attorney 150 North Seguin, Suite 307 New Braunfels, Texas 78130 Trial Counsel Joshua Presley SBN 24088254 Clayten H. ‘Clay’ Hearrell SBN 24059919 Chari L. Kelly SBN 24057939 Appellate Counsel
i Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Issues Presented .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Point of Error Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Evidence Is Insufficient To Prove Aggravated Kidnapping.
Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . 15
Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 15
i Index of Authorities
Texas Cases: Grotti v. State, 273 S.W.3d 273 (Tex.Cr.App. 2008). . . . . . . 12
Kenny v. State, 292 S.W.3d 89 (Tex. App. - Houston [14th] 2007). . . . . . . . . . . . . . . . . . 10
Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997). . . . . . . 12
Mayer v. State, 274 S.W.3d 898 (Tex.App - Amarillo 2008) . . . . . . . . . . . . . . . . . . . . 11, 12
Prudholm v. State, 333 S.W.3d 590 (Tex.Cr.App. 2011). . . . . 7
Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App. 1977). . . . . . . 10
Sanders v. State, 119 S.W.3d 818 (Tex.Cr.App. 2003). . . . . 12
Steptoe v. State, 14-10-00131-CR (Tex.App - Houston [14th] January 6, 2011). . . . . . . . . . 11
Williams v. State, No. 13-06-00220-CR (Tex.App - Corpus Christi, July 5, 2007). . . . . . . . . . . . . 11
Texas Statutes / Codes: Penal Code
Section 20.01(1).. . . . . . . . . . . . . . . . . . . . . . . . . 8, 10
Section 20.01(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 20.02(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 20.04(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ii Statement of the Case
The following is a brief general statement of the nature of the
cause or offense:
Appellant was charged by indictment with the offense of aggravated kidnapping (Count I), a first degree felony, in Cause No. CR2014-343 in the 207th District Court of Comal County, Texas, and was convicted on that count. Punishment was enhanced by proof of two prior convictions. Appellant was sentenced to confinement for seventy (70) years. Notice of Appeal was timely given.
Issues Presented
The following is the point upon this appeal is predicated:
The Evidence Is Insufficient to Prove Aggravated Kidnapping
iii No. 03-15-00144-CR (Count I) IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN Christopher Arthur Kurtz Appellant v. The State of Texas Appellee On Appeal In Case Number CR2014-343, from the 207th, District Court of Comal County, the Hon. Jack Robison, Judge Presiding
Brief on Appeal
TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW, Christopher Arthur Kurtz, Appellant in the
above styled and numbered cause, by and through John G. Jasuta
and David A. Schulman, his undersigned attorneys of record, and
respectfully files this “Brief on Appeal” as to Count I of the
indictment, and would show the Court as follows:
Statement of Facts
On October 1, 2013, Appellant picked up a friend, Alicia
Dawn Sanchez, to take her to her new job, which she was starting
1 that morning (RR Vol. 3, P. 73). Appellant was observed by
Detective Bell of the New Braunfels Police Department, who was
looking for him to serve an active warrant (RR Vol. 3, P. 106).
Andrew Kempker, a New Braunfels Police Department Officer was
called by Detective Bell to effect an arrest (RR Vol. 3, P. 15).
Kempker followed Appellant, activated his emergency lights and
watched as Appellant initially slowed and then accelerated at a
high rate of speed (RR Vol. 3, PP. 16-17). Kempker followed him
onto IH 35, headed south (RR Vol. 3, P. 18). Other officers were
also involved in the pursuit (RR Vol. 3, P. 19). The pursuit
involved two people on a motorcycle, a male driver and a female in
the rear (RR Vol. 3, P. 19). Kempker knew neither at the time (RR
Vol. 3, P. 19). He never lost sight of Appellant during the chase
(RR Vol. 3, P. 20). The pursuit was called off by the supervisor on
duty, Sergeant Cantu (RR Vol. 3, P. 21). Kempker stated that the
pursuit took place in Comal County (RR Vol. 3, P. 23).
Appellant admitted that he knew Kempker was a police officer
but stated that he didn’t know for sure whether Kempker was
2 attempting to lawfully arrest or detain him that day (RR Vol. 4, P.
46).
Chad Adams, a New Braunfels Police Department Officer
found the motorcycle when called by Schertz PD but he never saw
Appellant on it (RR Vol. 3, P. 45). He took custody of Appellant
and transported him to the Police Department for interview (RR
Vol. 3, P. 47). Officer Michael Rapier of the Schertz Police
Department stated that he assisted in the search for Appellant and
was on perimeter duty. He saw Appellant and called for him to
come out of hiding and, when he didn’t surrender, he pulled him
out, handcuffed him and took him to waiting New Braunfels Police
officers (RR Vol. 3, P. 62). Later, he returned to area and found a
gun and keys on top of the gun (RR Vol. 3, P. 63), all in Comal
County (RR Vol. 3, P. 64). Appellant admitted to having and
attempting to hide the gun but stated that it had been put into his
pocket by the passenger, Alicia Dawn Sanchez (RR Vol. 4, PP. 36,
39), who, by telling him she had a gun, and that he should avoid
the police, forced his actions (RR Vol. 4, PP. 17-18, 45).
3 Sanchez stated that she was staying with a friend and
Appellant lived across the street (RR Vol. 3, P. 72). She was
homeless and had just gotten a new job (RR Vol. 3, P. 73). The
roommate’s car had no gas so Appellant took her to work (RR Vol.
3, PP. 73-74). While they were heading for her work, an officer
tried to pull them over (RR Vol. 3, P. 74). Sanchez stated that she
did not tell Appellant to run from the police (RR Vol. 3, P. 75). She
stated she asked him to pull over by a gas station but he took off,
instead (RR Vol. 3, PP. 75, 80-81), after saying, “Fuck it,” (RR Vol.
3, PP. 75-76), and announcing, “I am running.” She asked him to
stop and she asked to get off (RR Vol. 3, PP. 76-77). He didn’t stop
until after the pursuit ceased, and eventually let her off at the
Caterpillar dealer in Schertz (RR Vol. 3, P. 77). She expressed no
fear of Appellant but was scared of going to jail (RR Vol. 3, PP.
77-78, 103). She stated that she knew Appellant was not trying
“to keep me,” (RR Vol. 3, P. 82), that he was just running from the
police(RR Vol. 3, P. 83), and that he would let her off the
motorcycle (RR Vol. 3, P. 85).
4 Sergeant James Bell of the New Braunfels Police Department
testified that the manner and means of use of the motorcycle was
such that it was capable of causing death or serious bodily injury
(RR Vol. 3, P. 126). He stated that Appellant, by using it in such
a manner, made it impossible for Alicia Sanchez to get off of the
motorcycle (RR Vol. 3, P. 127). There was no testimony that
Sanchez ever attempted to get off of the motorcycle. Bell stated
that Appellant transported Sanchez from one place to another (RR
Vol. 3, P. 127). Bell stated that he saw a police officer attempt to
stop Appellant and he saw Appellant flee from the officer (RR Vol.
3, P. 139). He believed Appellant knew the officer was an police
officer (RR Vol. 3, P. 139). Appellant admitted that he was driving
the motorcycle that day (RR Vol. 4, P. 63).
5 Point of Error Restated
Relevant Facts
Alicia Dawn Sanchez stated that she was staying with a friend
and that Appellant lived across the street (RR Vol. 3, P. 72). She
was homeless and had just gotten a new job (RR Vol. 3, P. 73).
Her roommate’s car had no gas so Appellant took her to work (RR
Vol. 3, PP. 73-74).
While they were heading for her work, an officer tried to pull
them over (RR Vol. 3, P. 74). Sanchez stated that she pointed out
a gas station in which Appellant could pull over, but that he took
off instead, after saying, “Fuck it, I am running“ (RR Vol. 3, PP. 75-
76, 80-81). She said that she asked him to stop and she asked to
get off (RR Vol. 3, PP. 76-77), and he subsequently let her off at
the Caterpillar dealer in Schertz (RR Vol. 3, P. 77). Sanchez stated
that she knew Appellant was not trying “to keep me“ (RR Vol. 3, P.
6 82), that he was just running from the police (RR Vol. 3, P. 83),
and that he had let her off the motorcycle (RR Vol. 3, P. 85).
Summary of the Argument
The State’s evidence was insufficient to show aggravated
kidnapping, because there was no evidence of an abduction.
Argument & Authorities
Sanchez was the named complainant in the aggravated
kidnapping case. Sanchez testified that she always knew she was
not being taken by Appellant in any way and would be released.
It is clear from her testimony that Appellant did not abduct
Sanchez.
Appellant asserts that kidnapping requires an abductive event
and an intent to exploit that abduction.1 There was neither in the
instant case.
1 Aggravated kidnapping requires “abduction,” i.e., an “unlawful restraint” -- a substantial interference with the person's liberty, by moving the person from one place to another or by confining the person -- committed with the specific intent to prevent the victim's liberation by secreting or holding him in a place where he is not likely to be found or using or threatening to use deadly force. Prudholm v. State, 333 S.W.3d 590, 599-600 (Tex.Cr.App. 2011).
7 The aggravated kidnapping statute under which Appellant
was convicted, Penal Code § 20.04(b) states:
(b) A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.
Penal Code § 20.01(2) defines “abduct” as:
(2) “Abduct” means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found; or
(B) using or threatening to use deadly force.
Pursuant to Penal Code § 20.01(1), “restrain” also has a specific,
statutory, meaning:
(1) “Restrain” means to restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person. Restraint is “without consent” if it is accomplished by:
(A) force, intimidation, or deception
As set out in Penal Code § 20.02(a):
A person commits an offense if he intentionally or knowingly restrains another person.
While the Complainant testified that she did not tell Appellant
to run, and that she asked him to pull over but he intentionally
sped off, she also testified that he did stop and let her off after the
8 pursuit had been called off. She stated she knew that she would
be able to get off eventually, that he would not keep her and that
she knew that he was just running from the police (RR Vol. 3, P.
83).
It is obvious from the record that there was no use or
threatened use of deadly force directed toward Sanchez to compel
her obedience to a threat. At most, Appellant’s actions constituted
a placing of a once willing rider into a dangerous situation.
The actions in this case are nothing more than that posed by
a passenger who asks to be let off at a specific spot only to be told
that she will be let out at a different spot for whatever reason, and
then is kept in the car traveling at a speed which makes it
dangerous to jump out, and then is let out at that different
location. There is no abductive event in that case and there is
none here. Succinctly, in the case at bar, Appellant did not
“abduct” Sanchez, for several reasons, though he may well have
“restrained” her.
9 Sanchez did not testify that she feared Appellant but, only
testified that she feared arrest. In fact, she stated that she knew
she was not the object of his actions, but that he was, rather, only
running from the police (RR Vol. 3, P. 83). She knew throughout
that Appellant did not wish to prevent her liberation and that she
would be released. Sanchez’s testimony regarding Appellant’s
actions toward the Complainant, and Appellant’s testimony,
constitutes the only evidence as to his intent.
Under Penal Code § 20.01(2)(B), “abduct,” as alleged in this
case, means to restrain a person with the intent to prevent
liberation by using or threatening deadly force. Under Penal Code
§ 20.01(1), “restrain” means to restrict a person’s movement
without consent so as to interfere substantially with his or her
liberty by moving him or her from one place to another. Threats
may be communicated by actions, words, or deeds, including acts
amounting to an offer to use future force. Rogers v. State, 550
S.W.2d 78, 81 (Tex.Cr.App. 1977); Kenny v. State, 292 S.W.3d
89, 98 (Tex. App. - Houston [14th] 2007).
10 The greatest difference between unlawful restraint and aggravated kidnapping is whether the victim was “abducted”: restrained with the intent to prevent the victim’s liberation by secreting or holding her in a place not likely to be found, or using or threatening to use deadly force.
Williams v. State, No. 13-06-220-CR (Tex.App - Corpus Christi,
July 5, 2007)(not designated for publication).
In this case there was no deadly force used toward the victim
in an effort to prevent her liberation nor was there any threat to
the victim to use deadly force should Sanchez seek liberation.
Sanchez made no attempt to leave Appellant’s company only to be
forcibly returned as the victim did in Steptoe v. State,
14-10-00131-CR (Tex.App - Houston [14th] January 6, 2011)(not
designated for publication). All the evidence in this case showed
was the reckless exposure of the victim to a substantial risk of
serious bodily injury. Appellant was, therefore, guilty of unlawful
restraint, at most.
The instant case is similar to, but distinguishable from,
Mayer v. State, 274 S.W.3d 898 (Tex.App - Amarillo 2008), in
which the defendant argued that his intent was not to hold the
victim in a place where she is not likely to be found, but rather,
that his intent was to flee from the convenience store to avoid
11 capture for his assault on the victim. The Court of Appeals
reasoned: this does not negate his intent to abduct. Even by appellant’s own argument that he sought to flee from the store to avoid capture, he was doing so by attempting to reach a location where he could not be found. However, in his attempt to avoid capture, all the evidence at trial showed that appellant forced Tammy to go with him. Therefore, by seeking a location where he could not be found and by forcing Tammy to go with him, he was taking Tammy to a location where it was likely that she would not be found.
Mayer, 274 S.W.3d at 901. In the case at bar there is no showing
that Appellant used any force to compel Sanchez to go with him,
and certainly no force directed at her. She never felt compelled in
any manner.
The evidence is viewed in the light most favorable to the
verdict to determine whether any rational jury could have found
the essential elements of aggravated kidnapping beyond a
reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820
(Tex.Cr.App. 2003). Legal sufficiency is measured by the elements
of the offense as defined by a hypothetically-correct jury charge.
Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997); see also
Grotti v. State, 273 S.W.3d 273, 280 (Tex.Cr.App. 2008). From
this perspective it is plain that there was no evidence of abduction.
12 Not only did Sanchez not seek “liberation,” no one was
seeking to “liberate” her. There was no thought in anyone’s mind
that Sanchez was anything but a willing rider brought into the
situation only by Bell’s call for the arrest of Appellant while
Sanchez was on the back of Appellant’s motorcycle. There was no
intimation that Appellant gave Sanchez a ride to work that
morning so he could take her and hold her against her will, or that
he ever had the desire to do anything to or with her but deposit
her somewhere after he had completed his flight from the police.
Under Penal Code § 20.04(b), and a hypothetically-correct
charge in this case, the jury was required to find, beyond a
reasonable doubt, that Appellant “intentionally or knowingly
abduct[ed] another person and use[d] or exhibit[ed] a deadly
weapon during the commission of the offense.” There was
absolutely no evidence that Appellant abducted Sanchez, because
he did not use any force directed to Sanchez, or anyone else, in an
effort to prevent her liberation which was never sought, nor was
he ever shown to have intended to prevent Sanchez’s liberation.
13 Conclusion The evidence is insufficient to support the jury’s verdict as to Count I of the indictment, alleging aggravated kidnapping. Appellant is entitled to an acquittal as to that Count.
Prayer WHEREFORE, PREMISES CONSIDERED, Christopher Arthur Kurtz, Appellant in the above styled and numbered cause respectfully prays that this Honorable Court will review this brief, and, upon submission of the case to the Court, will vacate the Judgment of the court below as to the Aggravated Kidnapping and will order an acquittal. Respectfully Submitted:
____________________________________ ___________________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law State Bar Card No. 10592300 State Bar Card No. 17833400 lawyer1@johnjasuta.com zdrdavida@davidschulman.com
1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282
Attorneys for Benny Cavazos Valverde 14 Statement Regarding Oral Argument
Oral Argument is Not Requested.
Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 2,653 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
June 5, 2015, a true and correct copy of the above and foregoing
“Brief on Appeal” was transmitted via the eService function on the
State’s eFiling portal, to Joshua Presley (preslj@co.comal.tx.us),
counsel of record for the State of Texas.
______________________________________ John G. Jasuta