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MEMORANDUM OPINION
No. 04-08-00537-CR
Joaquin ALVAREZ, Appellant
v.
STATE of Texas, Appellee
From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-1706 Honorable Mary Román, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: July 15, 2009
REFORMED, AFFIRMED AS REFORMED
Appellant Joaquin Alvarez was tried by a jury and convicted of aggravated kidnaping and
sexual assault. In one issue on appeal, Alvarez asserts the trial court erred in overruling his objection
to the jury charge because the charge permitted the jury to convict him with a less than unanimous 04-08-00537-CR
verdict on either of two separate charges of aggravated kidnaping.1 We reform the trial court’s
judgment, and affirm the judgment as reformed.2
DISCUSSION
A unanimous jury verdict is required in all criminal cases. Ngo v. State, 175 S.W.2d 738, 745
(Tex. Crim. App. 2005). The jury must agree that the defendant committed one specific crime.
Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). This does not mean, however, that
the jury must unanimously find that the defendant committed that crime in one specific way or even
with one specific act. Id.
Alvarez’s complaint in this appeal relates to his conviction for aggravated kidnaping.
Aggravated kidnaping is defined in section 20.04 of the Texas Penal Code:
(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
(1) hold him for ransom or reward;
(2) use him as a shield or hostage;
(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;
(4) inflict bodily injury on him or violate or abuse him sexually;
1 … The record contains two separate judgments, one pertaining to the aggravated kidnaping conviction (Count I) and another pertaining to the sexual assault conviction (Count II). Alvarez’s only complaint on appeal is as to the aggravated kidnaping conviction. He does not bring an issue relating to his conviction for sexual assault. Thus, this opinion pertains only to the judgment for aggravated kidnaping.
2 … Both Alvarez and the State agree that the trial court’s judgment for aggravated kidnaping contains a clerical error regarding Alvarez’s sentence. The judgment will, therefore, be reformed to reflect a life sentence for aggravated kidnaping (Count I) as pronounced in open court by the trial judge. See Banks v. State, 708 S.W .2d 460, 462 (Tex. Crim. App.1986) (stating judgment and sentence may be reformed on appeal when the appellate court has the necessary data and evidence before it); T EX . R. A PP . P. 43.2 (providing appellate courts may modify the trial court’s judgment and affirm it as modified).The sexual assault judgment remains unchanged.
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(5) terrorize him or a third person; or
(6) interfere with the performance of any governmental or political function.
TEXAS PENAL CODE ANN . § 20.04(a) (Vernon 2003) (emphasis added).
In this case, Alvarez was indicted, under Count I, in two paragraphs, for the offense of
aggravated kidnaping. Paragraph A charged Alvarez with kidnaping “with the intent to
FACILITATE THE COMMISSION OF A FELONY.” Paragraph B charged Alvarez with kidnaping
“with the intent to VIOLATE AND ABUSE SEXUALLY THE COMPLAINANT.” Thus, the
indictment charged Alvarez with aggravated kidnaping under sections 20.04(a)(3) and (4) of the
Texas Penal Code.
During the charge conference, Alvarez objected to the submission of the two paragraphs in
Count I in the disjunctive, asserting it would give the State two chances to convict Alvarez under that
count. The trial court overruled the objection and submitted the two paragraphs in the disjunctive.
The jury returned a verdict of guilty of aggravated kidnaping “as charged in the indictment.”
Alvarez’s specific complaint on appeal is that the court’s charge permitted the jury to convict him
of aggravated kidnaping even though some jurors may have believed he acted with intent to facilitate
the commission of a felony and others may have believed he acted with intent to abuse the
complainant sexually. Thus, according to Alvarez, he was denied the right to a unanimous jury
verdict.
The same argument Alvarez advances has been considered by two other Texas appellate
courts. In Gonzales v. State, the appellant was charged, in four paragraphs, under one count, with
aggravated kidnaping. 270 S.W.3d 282, 285 (Tex. App.—Amarillo 2008, pet. ref’d). Each paragraph
charging the appellant with aggravated kidnaping differed only in the aggravating factor. Id. As in
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the case before us, the appellant in Gonzales argued that “the [aggravated kidnaping] statute created
different types of aggravated kidnapping by separately listing the possible aggravating factors and,
as a result, that the State charged appellant with multiple violations of the aggravated kidnapping
statute.” Id. at 287-88. Thus, according to the appellant in Gonzales, the jury could find the appellant
guilty of aggravated kidnaping without having to agree on any one aggravating factor, thus violating
his right to a unanimous verdict. Id. at 288. As here, the State in Gonzales argued that the indictment
merely listed different “manner and means” in one count in which it charged appellant with
aggravated kidnaping. Id. at 287. Thus, according to the State, the disjunctive submission in the
charge did not violate the appellant’s right to a unanimous verdict on the aggravated kidnaping
charge.
The Amarillo court began its analysis by recognizing that “Texas courts have long held that
the State may plead alternate ‘manner and means’ of the commission of the same offense.” Id. at 288
(citing Willis v. State, 29 S.W. 787, 788 (1895)). An indictment may contain as many paragraphs as
are necessary to allege the various manner and means of committing one alleged offense. Id. (citing
Callins v. State, 780 S.W.2d 176, 182-83 (Tex. Crim. App. 1986)). And if the statute establishes
different manner and means by which the offense may be committed, unanimity is generally not
required on the alternate manner and means of the offense’s commission. Id. (citing Jefferson v.
State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)).
In determining whether the aggravated kidnaping statute’s aggravating factors provided
different manner and means by which the offense may be committed, the Amarillo court discussed
whether the offense is conduct-oriented or result-oriented. Id. The court concluded that kidnaping
and, by extension, aggravated kidnaping, are result-oriented offenses because the ultimate issue is
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the abduction of the victim, i.e., the result. Id. The next step in the analysis was to determine the
appropriate allowable unit of prosecution for aggravated kidnaping. Id. The court concluded that the
allowable unit of prosecution for the offense of aggravated kidnaping relates to the abduction of a
victim. Id.
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i i i i i i
MEMORANDUM OPINION
No. 04-08-00537-CR
Joaquin ALVAREZ, Appellant
v.
STATE of Texas, Appellee
From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-1706 Honorable Mary Román, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice
Delivered and Filed: July 15, 2009
REFORMED, AFFIRMED AS REFORMED
Appellant Joaquin Alvarez was tried by a jury and convicted of aggravated kidnaping and
sexual assault. In one issue on appeal, Alvarez asserts the trial court erred in overruling his objection
to the jury charge because the charge permitted the jury to convict him with a less than unanimous 04-08-00537-CR
verdict on either of two separate charges of aggravated kidnaping.1 We reform the trial court’s
judgment, and affirm the judgment as reformed.2
DISCUSSION
A unanimous jury verdict is required in all criminal cases. Ngo v. State, 175 S.W.2d 738, 745
(Tex. Crim. App. 2005). The jury must agree that the defendant committed one specific crime.
Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). This does not mean, however, that
the jury must unanimously find that the defendant committed that crime in one specific way or even
with one specific act. Id.
Alvarez’s complaint in this appeal relates to his conviction for aggravated kidnaping.
Aggravated kidnaping is defined in section 20.04 of the Texas Penal Code:
(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
(1) hold him for ransom or reward;
(2) use him as a shield or hostage;
(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;
(4) inflict bodily injury on him or violate or abuse him sexually;
1 … The record contains two separate judgments, one pertaining to the aggravated kidnaping conviction (Count I) and another pertaining to the sexual assault conviction (Count II). Alvarez’s only complaint on appeal is as to the aggravated kidnaping conviction. He does not bring an issue relating to his conviction for sexual assault. Thus, this opinion pertains only to the judgment for aggravated kidnaping.
2 … Both Alvarez and the State agree that the trial court’s judgment for aggravated kidnaping contains a clerical error regarding Alvarez’s sentence. The judgment will, therefore, be reformed to reflect a life sentence for aggravated kidnaping (Count I) as pronounced in open court by the trial judge. See Banks v. State, 708 S.W .2d 460, 462 (Tex. Crim. App.1986) (stating judgment and sentence may be reformed on appeal when the appellate court has the necessary data and evidence before it); T EX . R. A PP . P. 43.2 (providing appellate courts may modify the trial court’s judgment and affirm it as modified).The sexual assault judgment remains unchanged.
-2- 04-08-00537-CR
(5) terrorize him or a third person; or
(6) interfere with the performance of any governmental or political function.
TEXAS PENAL CODE ANN . § 20.04(a) (Vernon 2003) (emphasis added).
In this case, Alvarez was indicted, under Count I, in two paragraphs, for the offense of
aggravated kidnaping. Paragraph A charged Alvarez with kidnaping “with the intent to
FACILITATE THE COMMISSION OF A FELONY.” Paragraph B charged Alvarez with kidnaping
“with the intent to VIOLATE AND ABUSE SEXUALLY THE COMPLAINANT.” Thus, the
indictment charged Alvarez with aggravated kidnaping under sections 20.04(a)(3) and (4) of the
Texas Penal Code.
During the charge conference, Alvarez objected to the submission of the two paragraphs in
Count I in the disjunctive, asserting it would give the State two chances to convict Alvarez under that
count. The trial court overruled the objection and submitted the two paragraphs in the disjunctive.
The jury returned a verdict of guilty of aggravated kidnaping “as charged in the indictment.”
Alvarez’s specific complaint on appeal is that the court’s charge permitted the jury to convict him
of aggravated kidnaping even though some jurors may have believed he acted with intent to facilitate
the commission of a felony and others may have believed he acted with intent to abuse the
complainant sexually. Thus, according to Alvarez, he was denied the right to a unanimous jury
verdict.
The same argument Alvarez advances has been considered by two other Texas appellate
courts. In Gonzales v. State, the appellant was charged, in four paragraphs, under one count, with
aggravated kidnaping. 270 S.W.3d 282, 285 (Tex. App.—Amarillo 2008, pet. ref’d). Each paragraph
charging the appellant with aggravated kidnaping differed only in the aggravating factor. Id. As in
-3- 04-08-00537-CR
the case before us, the appellant in Gonzales argued that “the [aggravated kidnaping] statute created
different types of aggravated kidnapping by separately listing the possible aggravating factors and,
as a result, that the State charged appellant with multiple violations of the aggravated kidnapping
statute.” Id. at 287-88. Thus, according to the appellant in Gonzales, the jury could find the appellant
guilty of aggravated kidnaping without having to agree on any one aggravating factor, thus violating
his right to a unanimous verdict. Id. at 288. As here, the State in Gonzales argued that the indictment
merely listed different “manner and means” in one count in which it charged appellant with
aggravated kidnaping. Id. at 287. Thus, according to the State, the disjunctive submission in the
charge did not violate the appellant’s right to a unanimous verdict on the aggravated kidnaping
charge.
The Amarillo court began its analysis by recognizing that “Texas courts have long held that
the State may plead alternate ‘manner and means’ of the commission of the same offense.” Id. at 288
(citing Willis v. State, 29 S.W. 787, 788 (1895)). An indictment may contain as many paragraphs as
are necessary to allege the various manner and means of committing one alleged offense. Id. (citing
Callins v. State, 780 S.W.2d 176, 182-83 (Tex. Crim. App. 1986)). And if the statute establishes
different manner and means by which the offense may be committed, unanimity is generally not
required on the alternate manner and means of the offense’s commission. Id. (citing Jefferson v.
State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)).
In determining whether the aggravated kidnaping statute’s aggravating factors provided
different manner and means by which the offense may be committed, the Amarillo court discussed
whether the offense is conduct-oriented or result-oriented. Id. The court concluded that kidnaping
and, by extension, aggravated kidnaping, are result-oriented offenses because the ultimate issue is
-4- 04-08-00537-CR
the abduction of the victim, i.e., the result. Id. The next step in the analysis was to determine the
appropriate allowable unit of prosecution for aggravated kidnaping. Id. The court concluded that the
allowable unit of prosecution for the offense of aggravated kidnaping relates to the abduction of a
victim. Id.
In other words, the State is allowed to prosecute a person for each victim kidnapped, not for the number of aggravating factors that may be present. In this case, the State alleged one victim and has sought only a single conviction for the offense of aggravated kidnapping, regardless of the number of aggravating factors alleged in Count I.
Id. Thus, according to the Amarillo court, the jury was allowed to consider all of the aggravating
factors alleged by the State and return a general verdict of guilty for the offense of aggravated
kidnaping. Id. at 288-89.
Even more recently, the Fort Worth court considered the same issue in Dickson v. State, No.
02-08-00050-CR, 2009 WL 976019 (Tex. App.—Fort Worth April 9, 2009, pet. filed) (mem. op.)
(not designated for publication). The appellant in Dickson complained that he was denied a
unanimous verdict because the jury charge submitted multiple aggravated kidnaping factors to the
jury disjunctively. Id. at *8. The Fort Worth court adopted the Gonzales court’s analysis, stating:
The charge required juror unanimity on the gravamen of the offense, namely, that Appellant abducted [the complainant] with the intent to prevent his liberation; the disjunctive portions of the charge pertain only to the means and manner of committing the offense and the aggravating circumstances. The trial court did not err by submitting the alternative means and aggravating factors to the jury disjunctively, and such submission did not deprive Appellant of a unanimous verdict.
Id.
We agree with both the Amarillo and Fort Worth courts’ analyses and holdings. As Alvarez
was charged with aggravated kidnaping of only one victim, the State was allowed to prosecute
Alvarez for aggravated kidnaping based on the one victim, regardless of the number of aggravating
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factors alleged and submitted to the jury. Therefore, we hold in this case that Alvarez was not denied
a unanimous verdict for the offense of aggravated kidnaping. We affirm the trial court’s judgment.
Karen Angelini, Justice Do not publish
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