COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————
No. 08-25-00029-CR ————————————
Ololade Shoetan, Appellant
v.
The State of Texas, Appellee
On Appeal from the 331st District Court Travis County, Texas Trial Court No. D-1-DC-21-500171
M E MO RA N D UM O PI NI O N 1
A jury convicted Appellant Ololade Shoetan of one count of aggravated kidnapping and
one count of attempt to commit sexual assault. On appeal, Shoetan brings a variety of issues: he
1 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code § 73.001. We follow the precedent of the Third Court of Appeals to the extent it might conflict with our own. See Tex. R. App. P. 41.3. claims the evidence is not legally sufficient to support his convictions; he contends the offenses
charged against him violated constitutional protections against double jeopardy; he argues the trial
court erred in denying a finding that would have reduced a punishment range from first to second
degree; and last, he maintains the trial court erred in admitting evidence of a pretrial identification
based on an overly suggestive photo array. We affirm the judgment of conviction as to attempt to
commit sexual assault; we affirm in part the judgment of conviction as to aggravated kidnapping,
and reverse and remand as to punishment only.
I. BACKGROUND
A grand jury indicted Shoetan on one count of sexual assault and one count of aggravated
kidnapping. Shoetan pleaded not guilty and the case proceeded to a jury trial. The complaining
witness, R.R., 2 testified that on June 11, 2021, she was scheduled to work a 5:00 p.m. shift at a
Sonic restaurant. She did not have a car or a ride to work so she ordered a ride from Lyft. She
placed the order at about 4:30 p.m. through the app on her phone. Once the Lyft ride arrived at her
apartment, she soon received a notification. The screen displayed the name “Shoetan” for the
driver, and a license plate number. She saw a white minivan with a license plate matching the
notification on her phone. After R.R. confirmed the vehicle as her Lyft ride, she got into the vehicle
and sat in the back seat behind the front passenger seat.
During the short ride, R.R. and Shoetan exchanged conversation. Shoetan then told R.R.
that they should go on dates when she was off on Sunday. R.R. testified that she declined and
started to feel uncomfortable. When they stopped at a stop light, R.R. told Shoetan that she could
get out and walk from there. She explained that she was about a 10-minute walk from her work.
In response, Shoetan told her: “No. Why would you want to walk from here? It’s just right down
2 We will refer to the complaining witness by her initials only to protect her privacy.
2 the street.” He also told her to take off her facemask, which she wore as a safety precaution in
accordance with Lyft recommendations. 3 R.R. tried to exit the vehicle by pulling on the van door,
but it was locked. Shoetan continued to tell R.R. to take off her facemask because they were friends
now. She testified that she took it off because, at that point, she knew she was not getting out of
his vehicle. Shoetan sternly said to her: “The only way you can get out is if you get in the front
seat. So[,] get in the front seat.” Feeling scared, R.R. climbed into the front seat. She continued to
try and open the door by pushing buttons and pulling the handle.
R.R. expected to be dropped off soon after the traffic light turned green. But Shoetan drove
past her destination. Once he drove past Sonic, she asked him where he was going. He let her know
he knew where he was and that he was familiar with the area. He added that he did not live too far
from their location. He then made a right-hand turn into the Milan apartment complex. R.R. asked
him what he was doing and ordered him to take her to work. He responded, “No, no, no. Let’s get
to know each other a little more.” He parked in a shaded area toward the back of the apartment
complex. Shoetan then “ended” the ride on the Lyft app.
As Shoetan faced R.R., he told her to relax. He said they were going to get to know each
other. R.R. repeated that she wanted to go to work. Shoetan extended his arm around her shoulder
and pulled her close to him. To redirect his attention, R.R. asked about the fragrance he wore. She
tried again to open the door and leave but she could not. She considered whether she could find
something to break the window so she could exit the car. At this point, she texted Gladys Cancela,
her friend and supervisor, for help. As Shoetan noticed, he took her phone from her and placed it
under his left leg.
3 The incident took place during the COVID-19 pandemic.
3 R.R. testified that Shoetan next moved his arm from around her shoulder, placed it inside
her shirt, and groped her right breast. She grabbed his arm and asked him to take her to work.
Although she resisted, Shoetan moved his arm from her breast to the inside of her leggings. She
testified he had his hand on her vagina and put his finger or fingers inside her vagina. She told him
“no,” and repeated her request to take her to work. He removed his hand from her leggings and
loosened his pants. He grabbed her arm and forced her to touch his penis. She tried to pull away,
but he pulled her down by grabbing the back of her neck in an attempt to have her perform fellatio.
When she resisted, he reacted angrily. He said: “You’re going to make me wait ‘till Sunday?” R.R.
told him she never said she was going anywhere with him and again asked him to take her to work.
He responded, “how cruel,” complaining that she was “leaving [him] like this.” He then buckled
his pants angrily and started the car.
Shoetan then drove the two-to-three-minute drive to Sonic. On arrival, Shoetan pulled in
and parked at the corner of the Sonic entrance. He unlocked the door but as he did he told R.R. to
give him her number. At this point, Shoetan still had possession of R.R.’s phone. She believed it
remained under his left leg. He tossed her phone onto the seat and told her to give him her number.
She said her number was in the Lyft app already, but he insisted that she give it to him directly. He
commented that “people give phony numbers on Lyft.” As she gave him her number, he called her
phone to confirm it. Shoetan then told her: “You can leave now.”
As R.R. entered the Sonic, she met with Cancela, who she had tried to text. They both
walked outside. Cancela testified that she asked R.R. what was wrong. Canela described that R.R.
was shaking and revealed to her that her Lyft driver had touched her. Cancela found Shoetan’s
information from the Lyft app and called him. She told Shoetan that he should be ashamed of
himself and said, “you touched her.” She said Shoetan denied touching her and said he was in
4 downtown Austin. Cancela accused him of lying considering that he had just left the scene. Cancela
then called 911. Law enforcement officers arrived and spoke with R.R. An officer testified that
R.R. appeared visibly upset. R.R. told the responding detective that she was concerned about her
safety because Shoetan knew where she lived and she thought the keys to her apartment were still
in his car. Collecting evidence, the officers took pictures of R.R.’s wrists, the back of her neck, and
the Lyft information displayed in the Lyft app of her phone. They also took the shirt and leggings
she had been wearing at the time of the incident. Officers provided R.R. with information about
undergoing a sexual assault forensic examination. R.R. felt scared and didn’t want to be touched.
Days later, R.R. changed her mind. The State also introduced evidence of R.R.’s Sexual
Assault Forensic Examination (SAFE) where she told the nurse her neck was sore and that she felt
pain in her vagina. R.R. told the nurse that Shoetan digitally penetrated her vagina, touched her
right breast, and forced her to touch his penis. R.R. described how she felt scared about being
touched. She had showered, brushed her teeth, and changed her clothes multiple times before the
SAFE exam was performed. No DNA evidence was recovered from the exam.
The State additionally introduced into evidence the photo array conducted in this case. The
officer who administered the array testified that R.R. visibly reacted when she saw Shoetan’s
photo. He explained she turned her head away from the screen and confirmed that he was the man
who kidnapped and assaulted her. Finally, the State introduced evidence of records obtained from
Lyft identifying Shoetan as the driver that picked up R.R. The records showed the ride started at
R.R.’s apartment, followed the route to Sonic, and then went to the Milan apartment complex
where the ride was terminated.
Completing three verdict forms, the jury found Shoetan guilty of aggravated kidnapping,
not guilty of sexual assault, and guilty of the lesser-included offense of attempted sexual assault.
5 After a punishment hearing, the trial court sentenced Shoetan to 20 years’ imprisonment for the
aggravated kidnapping conviction and 10 years’ imprisonment for the attempted sexual assault,
with the sentences running concurrently. This appeal followed.
II. ISSUES ON APPEAL
Shoetan asserts four issues on appeal. First, he contends that the evidence is legally
insufficient to sustain his conviction for the aggravated kidnapping charge because “there is no
evidence that R.R. was secreted by” Shoetan. Second, he argues his two convictions violate double
jeopardy protections because attempted sexual assault is a lesser-included offense “subsumed by
the greater offense of aggravated kidnapping.” Third, he maintains that the trial court erred when
it denied his request for a finding that he dropped R.R. off at a safe place, and the finding would
have lowered the aggravated kidnapping conviction from a first-degree felony to a second-degree
felony. And finally, he argues that the trial court “committed harmful error by admitting an unduly
suggestive photo array” over his objection.
III. LEGAL SUFFICIENCY
In his first issue, Shoetan asserts that the evidence was legally insufficient for the jury to
convict him of aggravated kidnapping. Specifically, he argues there was no proof he intentionally
or knowingly abducted R.R. with the intent to violate or abuse her sexually.
A. Standard of review
When performing a legal sufficiency review, we examine the evidence in the light most
favorable to the verdict and determine if any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44 (Tex. Crim. App. 2019). Circumstantial
evidence is as probative of direct evidence in establishing the guilt of the defendant and
6 circumstantial evidence, by itself, may be enough to establish guilt. Carrizales v. State, 414 S.W.3d
737, 742 (Tex. Crim. App. 2013). We measure the sufficiency of the evidence against the
“hypothetically-correct jury charge, defined by the statutory elements as modified by the charging
instrument.” Edwards v. State, 666 S.W.3d 571, 574–75 (Tex. Crim. App. 2023) (citing Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
Our analysis considers all the evidence included in the appellate record. Stahmann v. State,
602 S.W.3d 573, 577 (Tex. Crim. App. 2020). The factfinder is the sole judge of “the credibility
and weight to be attached to the testimony of witnesses.” Dunham v. State, 666 S.W.3d 477, 482
(Tex. Crim. App. 2023); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). If the record
supports conflicting inferences, we presume the jury resolved the conflict in favor of the verdict,
and we defer to that determination. Dunham, 666 S.W.3d at 482. “Each fact need not point directly
and independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Dobbs, 434 S.W.3d at 170
(citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
B. Applicable law
As relevant here, a person commits the offense of aggravated kidnapping if he intentionally
or knowingly abducts another person with the intent to violate or abuse her sexually. Tex. Pen.
Code. § 20.04(a)(4). A defendant acts intentionally “when it is his conscious objective or desire to
engage in the conduct or cause the result.” Id. § 6.03(a). A defendant acts knowingly “when he is
aware of the nature of his conduct or that the circumstances exist” and “with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to cause the result.” Id.
§ 6.03(b). Abduct means “to restrain a person with the intent to prevent [her] liberation by: (A)
secreting or holding [her] in a place where [she] is not likely to be found; or (B) using or threatening
7 to use deadly force.” Id. § 20.01(2). Restrain means “to restrict a person’s movements without
consent, so as to interfere substantially with [her] liberty, by moving [her] from one place to
another or by confining [her.]” Id. § 20.01(1). Restraint is “without consent” if it is accompanied
by force, intimidation, or deception. Id. § 20.01(1)(A).
C. Analysis
Focusing narrowly on the abduction element of the aggravated kidnapping charge, Shoetan
argues there was no evidence that he formulated any intent to secrete or hold R.R. in a location
that she was unlikely to be found. He maintains R.R.’s testimony failed to show he conveyed any
intent that she be hidden or not found. He points out that he parked at an apartment complex which
was not an isolated area, they both had cell phones on them, and the Lyft app actively tracked his
location. Even assuming the jury believed R.R.’s testimony that he made unwanted sexual
advances towards her, Shoetan asserts that contrary to establishing his intent to secrete or hold her
in a place she was unlikely to be found, the evidence in fact established he drove her to her
workplace, as she requested.
To prove the element of abduction, the State must show that the defendant restrained
another (actus reas) and had the specific intent to prevent liberation (mens rea). Laster v. State, 275
S.W.3d 512, 521 (Tex. Crim. App. 2009). “The offense of kidnapping is legally completed when
the defendant, at any time during the restraint, forms the intent to prevent liberation by secreting
or holding another in a place unlikely to be found.” Laster, 275 S.W.3d at 521. The factfinder can
infer intent from the defendant’s conduct, remarks, and the circumstances. See Turner v. State, 600
S.W.2d 927, 929 (Tex. Crim. App. [Panel Op.] 1980). The intent to prevent liberation by secreting
or holding “can be inferred when a victim is held in an automobile being driven on city streets.”
Templeton v. State, No. 08-16-00018-CR, 2019 WL 1785476, at *7 (Tex. App.—El Paso Apr. 24,
8 2019, no pet.) (not designated for publication) (quoting West v. State, 406 S.W.3d 748, 759
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Additionally, “restraining the complainant
inside a vehicle and driving on public roads is not necessarily incompatible with an intent to
prevent liberation by secreting or holding her in a place where she is not likely to be found.”
Romero v. State, No. 05-23-00689-CR, 2025 WL 992710, at *5 (Tex. App.—Dallas April 2, 2025,
pet. ref’d) (mem. op. not designated for publication) (citing Fann v. State, 696 S.W.2d 575, 576
(Tex. Crim. App. 1985). The fact that an abduction took place in public does not prevent a jury
from concluding that the defendant intended to secrete or hold the complaining witness in a place
where she was not likely to be found. See Falcon v. State, No. 13-19-00264-CR, 2021 WL
1567751, at *4 (Tex. App.—Corpus Christi Apr. 22, 2021, no pet.) (mem. op., not designated for
publication) (citing Laster, 275 S.W.3d at 523). The secreting element can also be proven by
showing the defendant isolated the complainant from anyone who might be able to assist. Megas
v. State, 68 S.W.3d 234, 240 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Here, there was evidence that R.R. was locked inside of Shoetan’s vehicle for the duration
of the ride, he refused to unlock the door, and he refused to take her to work against her instructions.
Shoetan told R.R. that the only way for her to get out was to get into the front seat. She testified
that Shoetan drove her past the Sonic and into the Milan apartment complex, which was unfamiliar
to her. R.R. testified that when they arrived at that location, she did not see any other people around
and he parked in a shaded area towards the back. Shoetan grabbed R.R.’s phone and kept it from
her during the ride and only returned it later, after they arrived at Sonic. Once he parked the vehicle
at the apartment complex, Shoetan forcibly touched and violated R.R.’s body against her consent.
Also, against her will, he grabbed her hand and made her touch his sexual organ.
9 On these facts, a reasonable jury could have found the element of abduction was proven
beyond a reasonable doubt. See Megas, 68 S.W.3d at 240 (holding evidence that defendant forced
complainant into the car after a witness attempted to render aid supported a finding that defendant
intended to secrete or hold the complainant in a place where she was not likely to be found because
defendant isolated the complainant from contacting anyone who might have been of assistance);
Templeton, 2019 WL 1785476, at *7 (finding sufficient evidence when defendant drove past
location complaining witness gave him and he drove in a way that prevented her from getting out
of the vehicle).
We overrule Shoetan’s first issue.
IV. DOUBLE JEOPARDY
In his second issue, Shoetan contends his conviction and sentence for both attempted sexual
assault and aggravated kidnapping violated principles of double jeopardy. As charged in the
indictment, he maintains the attempted sexual assault charge is a lesser-included offense of the
aggravated kidnapping charge and thus it is subsumed by the greater offense.
A. Applicable law
Shoetan did not raise a double jeopardy complaint before the trial court. See Tex. R. App.
P. 33.1(a). Nevertheless, a double jeopardy claim that is apparent on the face of the record may be
raised for the first time on appeal when enforcement of usual rules of procedural default serves no
legitimate state interest. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (discussing
fundamental nature of double-jeopardy violations (quoting Gonzalez v. State, 8 S.W.3d 640, 643
(Tex. Crim. App. 2000))). “A double-jeopardy claim is apparent on the face of the trial record if
resolution of the claim does not require further proceedings for the purpose of introducing
10 additional evidence in support of the double-jeopardy claim.” Ex parte Denton, 399 S.W.3d 540,
544 (Tex. Crim. App. 2013).
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution,
made applicable to the states through the Fourteenth Amendment, protects an accused against a
second prosecution for the same offense for which he has previously been acquitted or convicted,
and also protects him from being punished more than once for the same offense. Brown v. Ohio,
432 U.S. 161, 165 (1977); Littrell v. State, 271 S.W.3d 273, 275 (Tex. Crim. App. 2008). The
safeguards of double jeopardy protect against three distinct scenarios: (1) prosecution for a second
time after the same offense after an acquittal; (2) prosecution for a second time for the same offense
after a conviction; and (3) multiple punishments for the same offense. Nawaz v. State, 663 S.W.3d
739, 743 (Tex. Crim. App. 2022). Shoetan maintains the third scenario is relevant here.
To determine whether multiple punishments violate the Double Jeopardy Clause, we look
only “to the pleadings and the relevant statutory provisions[,]” not “the evidence presented at trial.”
Ex parte Benson, 459 S.W.3d 67, 73 (Tex. Crim. App. 2015). To determine whether jeopardy
attaches, we apply the “same-elements” test and determine whether each offense contains an
element not contained in the other. See Blockburger v. United States, 284 U.S. 299, 304 (1932);
Watson v. State, 900 S.W.2d 60, 61–62 (Tex. Crim. App. 1995) (en banc). If the second offense
contains an element not found in the first offense, then double jeopardy protections are not
violated. Watson, 900 S.W.2d at 61.
The Blockburger same-element test “asks ‘whether each [offense] requires proof of a fact
which the other does not.’” Benson, 459 S.W.3d at 72 (citing Blockburger, 284 U.S. at 304). When
applying Blockburger, we deploy the cognate-pleadings approach, which requires that we compare
the elements of the greater offense as pleaded to the statutory elements of the lesser offense. Id.
11 “If the two offenses, so compared, have the same elements, then ‘a judicial presumption arises that
the offenses are the same for purposes of double jeopardy’ and that the defendant may not be
punished for both, but that presumption can be rebutted by a clearly expressed legislative intent to
impose multiple punishments.” Id. If the two offenses display different elements under
Blockburger, there is a judicial presumption that the offenses are different for double jeopardy
purposes permitting punishment for both. Id. That presumption can be refuted by a showing,
through various factors, that the legislature “‘clearly intended only one’ punishment.” Id. (quoting
Price v. State, 434 S.W.3d 601, 609–10 (Tex. Crim. App. 2014)).
The Court of Criminal Appeals has established a list of non-exclusive factors that courts
must consider to determine if the legislature intended only one punishment for offenses that contain
different elements under Blockburger: (1) whether the offenses are in the same statutory section;
(2) whether the offenses are phrased in the alternative; (3) whether the offenses are named
similarly; (4) whether the offenses have common punishment ranges; (5) whether the offenses
have a common focus or gravamen; (6) whether the common focus tends to indicate a single
instance of conduct; (7) whether the elements that differ between the two offenses can be
considered the same under an imputed theory of liability that would render them the same under
Blockburger; and (8) whether there is legislative history that contains an articulation of an intent
to treat the offenses as the same or different for double jeopardy purposes. Id. at 72–73 (citing Ex
parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)). Moreover, the high court has noted
that it “has given more weight to the fifth and sixth factors, which, in combination, require that we
examine the focus or gravamen of each offense and compare the resulting allowable unit of
prosecution.” Id. at 73; see Garfias, 424 S.W.3d at 59 (“We have indicated that the ‘focus’ or
‘gravamen’ of a penal provision should be regarded as the best indicator of legislative intent when
12 determining whether a multiple-punishments violation has occurred.”). Even though the allowable
unit of prosecution determination is usually part of a separate “units” analysis, we are permitted to
consider the unit of prosecution even as part of the “elements” analysis, which aids us in
ascertaining legislative intent. Benson, 459 S.W.3d at 73.
B. Analysis
Here, the charge of aggravated kidnapping involved both an intent to violate or sexually
abuse the victim and an intent to abduct. Conversely, the charge of attempted sexual assault
required proof that Shoetan performed “an act that amounted to more than mere preparation that
tended but failed to effect the commission of Sexual Assault” and that Shoetan “had the specific
intent to commit the offense of Sexual Assault.” Therefore, proving aggravated kidnapping
required proof of an element, abduction, that attempted sexual assault did not require, and proving
attempted sexual assault required proof of an element, an act amounting to more than mere
preparation, that aggravated kidnapping did not require. This satisfies the Blockburger test and we
continue to the Ervin factors. Philmon v. State, 609 S.W.3d 532, 536 (Tex. Crim. App. 2020)
(“Once a presumption is raised that count one and count two are different offenses under the
Blockburger ‘same-elements’ test, we consider a non-exclusive set of factors we listed in Ex parte
Ervin.”).
Aggravated kidnapping and attempted sexual assault are in different statutory chapters and
sections of the penal code. See Tex. Pen. Code §§ 20.04, 22.011, 15.01. The two offenses are
neither phrased in the alternative nor similarly named. Id. §§ 20.04, 22.11. They also have differing
punishment ranges. An aggravated kidnapping is classified as a first-degree felony and an
attempted sexual assault is a third-degree felony. See id. § 20.04(c) (providing the offense is a
13 felony of the first degree); 22.011(f) (providing the offense is a felony of the second degree);
15.01(d) (providing an offense under this section is one category lower than the offense attempted).
Additionally, the two offenses have different gravamina. For aggravated kidnapping, the
gravamen of the offense is abduction. Schweinle v. State, 915 S.W.2d 17, 19 n.2 (Tex. Crim. App.
1996) (en banc)) (per curiam). Conversely, the gravamen of the offense of attempted sexual assault
is penetration or contact with an orifice or sexual organ. Jourdan v. State, 428 S.W.3d 86, 96
(Tex. Crim. App. 2014) (analyzing analogous provisions of aggravated-sexual-assault statute); see
also Ex parte Milner, 394 S.W.3d 502, 508–09 (Tex. Crim. App. 2013) (finding that criminal-
attempt offenses acquire their allowable unit of prosecution from the offense attempted). The two
statutes address different instances of conduct, abduction versus contact with a sexual organ, and
cannot be considered the same under an imputed-elements Blockburger standard because they “are
not at all related.” See Philmon, 609 S.W.3d at 540; Aguilar-Estrada v. State, No. 03-19-00064-
CR, 2021 WL 4954346, at *4 (Tex. App.—Austin Oct. 26, 2021, no pet.) (mem. op., not designated
for publication) (finding convictions for both aggravated kidnapping and sexual assault did not
violate double-jeopardy). Finally, Shoetan does not provide, and we have not discovered in our
independent review, any legislative history containing an articulation of an intent to treat the
offenses as the same or as different for double jeopardy purposes. Aguilar-Estrada, 2021 WL
4954346, at *4 (providing no legislative history explicitly suggested that aggravated kidnapping
and sexual assault should or should not be considered the same offense); cf. Llorens v. State, 520
S.W.3d 129, 140 (Tex. App.—Austin 2017, pet. ref’d) (concluding that legislative history weighed
in favor of a determination that the legislature intended for the offenses of kidnapping and
interference with child custody to be treated as the same for double-jeopardy purposes because
both bill analyses used the term “kidnapping” in reviewing the offenses).
14 Shoetan argues that the sexual assault offense was “subsumed” by the aggravated
kidnapping charge. He asserts that the two offenses merged because his “course of conduct was
one continuous act with a single impulse.” See Aekins v. State, 447 S.W.3d 270, 280 (Tex. Crim.
App. 2014) (“Where two crimes are such that the one cannot be committed without necessarily
committing the other, then they stand in the relationship of greater and lesser offenses, and the
defendant cannot be convicted or punished for both.”). We reject Shoetan’s complaints for two
reasons. First, courts have rejected a double jeopardy challenge when sexual assault serves as the
aggravating element of the kidnapping charge. See Gonzales v. State, 270 S.W.3d 282, 285
(Tex. App.—Amarillo 2008, pet. ref’d) (concluding that convictions for both aggravated sexual
assault and aggravated kidnapping was not a violation of double jeopardy even if one count of the
indictment referred to sexual assault as an aggravating factor of aggravated kidnapping). Second,
the merger doctrine is inapplicable here because “[t]he offense of kidnapping is legally completed
when the defendant, at any time during the restraint, forms the intent to prevent liberation by
secreting or holding another in a place unlikely to be found.” Laster, 275 S.W.3d at 521. Shoetan
could have completed the aggravated kidnapping prior to performing the attempted sexual assault.
Id. It does not follow that the aggravated kidnapping could not have been completed without also
committing a sexual assault.
In total, the weight of all the factors favors a determination that a multiple-punishments
violation did not occur.
We overrule Shoetan’s second issue.
V. VOLUNTARY RELEASE IN A SAFE PLACE
In his third issue, Shoetan complains that, based on the legal and factual sufficiency of the
evidence, the trial court erred by denying his request for a finding that he voluntarily released R.R.
15 in a safe place, which would have reduced the punishment range from first to second degree
punishment.
At the conclusion of the punishment hearing, the trial court held that “based on the totality
of factors, [] there are three factors that give me a reason to find against the safe release argument.”
The factors listed included: (1) that Shoetan knew where R.R. lived given he acted as her rideshare
driver, (2) she left her keys behind in his vehicle, and (3) he indicated he had plans on returning as
he talked about her making him wait until Sunday.
A. Applicable law and standard of review
Aggravated kidnapping is a first-degree felony punishable by a term of imprisonment for
five to 99 years or life. Tex. Penal Code § 20.04(c), 12.32(a). “At the punishment stage of a trial,
the defendant may raise the issue as to whether he voluntarily released the victim in a safe place.
If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense
is a felony of the second degree.” Id. § 20.04(d). A second-degree felony is punishable by a term
of imprisonment between two and 20 years. Id. § 12.33(a).
A defendant is required to prove voluntary release in a safe place by a preponderance of
the evidence, a lesser standard of proof than is required during the guilt-innocence phase of a
criminal trial. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). The defendant
must create, by the greater weight of the credible evidence, a reasonable belief that the defendant
voluntarily released the victim in a safe place. See Scamardo v. State, 517 S.W.2d 293, 298
(Tex. Crim. App. 1974).
“Affirmative defenses may be evaluated for legal and factual sufficiency[.]” See Butcher
v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). “In a legal-sufficiency review of an affirmative
defense, reviewing courts should first assay the record for a scintilla of evidence favorable to the
16 factfinder’s finding and disregard all evidence to the contrary unless a reasonable factfinder could
not. Id. (citing Matlock v. State, 392 S.W.3d 662, 669–70 (Tex. Crim. App. 2013)). The finding of
the factfinder rejecting a defendant’s affirmative defense should be overturned for lack of legal
sufficiency only if the appealing party establishes that the evidence conclusively proves his
affirmative defense, and “no reasonable [factfinder] was free to think otherwise.” Id. (citing
Matlock, 392 S.W.3d at 670). “In a factual-sufficiency review of a finding rejecting an affirmative
defense, and unlike in a legal-sufficiency review, courts examine the evidence in a neutral light.”
Id. (citing Matlock, 392 S.W.3d at 671). “A finding rejecting a defendant's affirmative defense
cannot be overruled unless, ‘after setting out the relevant evidence supporting the verdict, the court
clearly states why the verdict is so much against the great weight of the evidence as to be manifestly
unjust, conscience-shocking, or clearly biased.’” Id. (quoting Matlock, 392 S.W.3d at 671).
Section 20.04 requires proof of the accused “perform[ing] ‘some overt and affirmative act’
which brought home to his victim that she had been ‘fully released from captivity.’” Dominguez v.
State, 467 S.W.3d 521, 527 (Tex. App.—San Antonio 2015, pet. ref’d) (quoting Harrel v. State, 65
S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)). The release “must have
occurred in a place and manner which realistically conveyed to the [complaining witness] that she
was then freed from captivity and in circumstances and surroundings wherein aid was readily
available.” Id. at 527–28. The term “voluntarily,” which appears in § 20.04(d), is interpreted
narrowly to mean the absence of “‘rescue by the police [or others] or escape by the [kidnap]
victim.’” Brown v. State, 98 S.W.3d 180, 188 (Tex. Crim. App. 2003). Factors to consider in
determining whether the defendant released the victim in a safe place include: (1) the remoteness
of the location; (2) the proximity of authorities or persons who could aid or assist; (3) the time of
day; (4) climatic conditions; (5) the condition of the victim; (6) the character of the location or
17 surrounding neighborhood; and (7) the victim’s familiarity with the location or surrounding
neighborhood. Woods, 301 S.W.3d at 331–32.
B. Analysis
We begin with an examination of whether the evidence established Shoetan voluntarily
released R.R. She testified he eventually drove her to Sonic, her intended destination. Once there,
he unlocked the doors, gave her back her phone, and told her “you can leave now” after demanding
and confirming her phone number. The State argues that Shoetan failed to create a reasonable
belief that he voluntarily released R.R. because there was no “overt and affirmative act” of him
informing her that she was fully released from captivity. Although the State acknowledges that
R.R. testified that Shoetan told her “you can leave now” once she gave him her phone number, it
argues the evidence was, at most, ambiguous.
The Court of Criminal Appeals has concluded that a narrow interpretation of the term
“voluntarily” is likely to effectuate and serve the legislative purpose of § 20.04(d), i.e., to
encourage those who kidnap to release their victims. Brown, 98 S.W.3d at 188. Under this narrow
interpretation, a kidnap victim is deemed to have been “voluntarily” released in “the absence ‘of
rescue by the police [or others] or escape by the [kidnap] victim.’” Id. Neither of these
circumstances are shown by the record before us. We conclude there was sufficient evidence of
record to establish that Shoetan voluntarily released R.R.
As for whether the evidence established that Shoetan released R.R. to a safe place, the
Court of Criminal Appeals has held that there is no one definition for this term. Using the non-
exhaustive list of factors, the evidence established that Shoetan drove R.R. to Sonic, her regular
workplace, and she was familiar with the area. It was still daylight when he dropped her off and it
was not in a remote location. After R.R. exited the vehicle, she immediately went to speak with
18 her friend. Although she was distraught and shaken, R.R. was not prevented from seeking aid and
assistance. Her friend comforted R.R. and called law enforcement.
The State argues that sufficient evidence supported the trial court’s rejection of Shoetan’s
safe-place defense. It points out that the record established that Shoetan knew where R.R. lived,
her keys were likely left in his van, and that he told her he would see her on Sunday. The State
argues this evidence sufficiently refutes his claim that he released R.R. in a “safe place.” We have
found no authority holding that a threat of future harm at one location could otherwise render a
different drop-off location unsafe. We decline to interpret “safe place” in such a manner and
conclude the trial court’s cited factors did not make R.R.’s workplace an unsafe place. See Lavarry
v. State, 936 S.W.2d 690, 696 (Tex. App.—Dallas 1996, pet. dism’d) (holding State’s argument
that defendant threatened to hurt victim if she called the police was an argument that focused on
the “dangerousness of the defendant and the victim’s feelings of safety, or lack thereof, instead of
the safety of the place of release”).
We conclude the evidence is insufficient to support the trial court’s finding that Shoetan
did not voluntarily release R.R. to a safe place. We sustain Shoetan’s third issue.
VI. THE PHOTO ARRAY
In his final issue, Shoetan contends the trial court violated his due process rights by
admitting an “unduly suggestive” photo array. Specifically, he argues the array subjects were
dissimilar in appearance from him and some men looked younger than others. He argues the array
itself was suggestive and gave rise to a likelihood of misidentification.
A. Applicable law
“[A] pre-trial identification procedure may be so suggestive and conductive to mistaken
identification that subsequent use of that identification at trial would deny the accused due process
19 of law.” Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995) (en banc). A photo array
may be impermissibly suggestive in the way in which it is presented to the witness or due to the
content of the array itself. Id. at 33. As to content, an array “may be impermissibly suggestive if
the suspect is the only individual in the array who closely resembles the pre-procedure
description.” Balderas, 517 S.W.3d at 794. When a defendant argues the content of the array itself
was impermissibly suggestive on its face and his challenge does not turn on witness credibility, we
review the issue of suggestiveness de novo. Colgin v. State, 132 S.W.3d 526, 531–32 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d); see also Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim.
App. 2009) (reviewing de novo ruling on how suggestiveness of photo array may have influenced
in-court identification).
In doing so, we engage in a two-step process. First, we determine whether the pretrial
identification procedure was impermissibly suggestive. If we conclude that it was, we then
determine whether the impermissibly suggestive nature of the pretrial identification gave rise to a
“very substantial likelihood of irreparable misidentification.” Delk v. State, 855 S.W.2d 700, 706
(Tex. Crim. App. 1993) (en banc); Nunez-Marquez, 501 S.W.3d at 235; Burkett v. State, 127 S.W.3d
83, 86 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “It is the appellant’s burden to prove the in-
court identification is unreliable by proving both of these elements by clear and convincing
evidence.” Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d).
A. Analysis
Assuming without deciding that the trial court erred in admitting the lineup, any error was
harmless. See Tex. R. App. P. 44.2(a) (explaining that for constitutional error, the court must
reverse a judgment of conviction or punishment unless it determines beyond a reasonable doubt
20 that the error did not contribute to the conviction or punishment); Martinez v. State, 689 S.W.3d
30, 46–47 (Tex. App.—Fort Worth 2024, pet. ref’d) (holding that overwhelming evidence
connecting defendant to the offense made any error in admitting a photo lineup harmless); Tillman
v. State, 376 S.W.3d 188, 202 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (explaining that
the constitutional-harm analysis should focus not on the propriety of the trial’s outcome but rather
on the probable impact on the jury in light of the existence of other evidence, with the record
viewed in a neutral, impartial, and even-handed manner).
There was overwhelming evidence tying Shoetan to the offense. The State admitted photos
from R.R.’s Lyft app showing Shoetan as her driver and matching the photo provided by Lyft.
Additionally, the Lyft records confirmed that Shoetan drove a white Toyota Sienna van that
matched the description of the vehicle that R.R. gave and which matched the one captured by Sonic
surveillance footage prior to R.R.’s drop off at the Sonic. In addition, the Lyft geolocation data
aligns with the progression of events from when the ride began at R.R.’s apartment and which
ended at the Milan apartment complex.
We conclude that any error in admitting the photo lineup in this case was harmless. See
Martinez v. State, 689 S.W.3d 30, 47 (Tex. App.—Fort Worth 2024, pet. ref’d) (holding admission
of photo lineup was harmless in light of independently secured evidence of defendant’s identity);
Tillman, 376 S.W.3d at 202 (“The presence of overwhelming evidence supporting the finding in
question can be a factor in the evaluation of harmless error under Rule 44.2(a).”). We overrule
Shoetan’s fourth issue.
21 VII. CONCLUSION
We affirm the judgment of conviction for attempt to commit sexual assault. We affirm in
part the judgment of conviction for aggravated kidnapping, and reverse and remand for a new
punishment hearing.
GINA M. PALAFOX, Justice
July 20, 2026
Before Salas Mendoza, C.J., Palafox and Soto, JJ.
(Do Not Publish)