NUMBER 13-16-00469-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERT GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Longoria and Hinojosa Memorandum Opinion by Justice Longoria
Appellant Robert Garcia was convicted of one count of continuous family violence,
one count of assault by choking, and two counts of aggravated kidnapping. See TEX.
PENAL CODE §§ 20.04, 22.01, 25.11 (West, Westlaw through 2017 1st C.S.). Garcia
argues on appeal that: (1) the trial court erred by allowing irrelevant testimony; (2) the
trial court erred by denying instructions on lesser-included offenses; and (3) his sentence
constituted a double-jeopardy violation. We affirm. I. BACKGROUND
Around 3:00 a.m. on July 10, 2015, Garcia drove to the apartment of his ex-
girlfriend, Dali Chapa. Garcia learned from Chapa’s roommate, Ashly Gutierrez, that
Chapa was in her room with several of her friends. According to Chapa, she had just
arrived home from a sports bar about thirty minutes prior to Garcia arriving; at that time,
she felt nauseated and began vomiting in her bathroom. Gutierrez testified that upon
seeing two men in her apartment and discovering that her bathroom was locked, Garcia
kicked down the door. Gutierrez testified that she heard slapping, yelling, and something
hitting the wall. Chapa testified that Garcia grabbed her by the hair and repeatedly
slapped her and screamed in her face. He then proclaimed, “we’re leaving,” to which
Chapa replied, “no, I’m not going to leave. I don’t want to leave.” Chapa claims that
Garcia forcefully escorted her out of the apartment by the back of her neck, and then, with
two hands on her hair, proceeded to pull her down six flights of stairs. One of Chapa’s
friends at the apartment attempted to intervene, but Garcia punched her. Chapa resisted
at the bottom of the stairs but Garcia kicked her repeatedly until she entered the backseat
of his Cadillac. Garcia engaged the vehicle’s child locks so that Chapa couldn’t leave.
There were two other passengers inside the vehicle. Chapa claims that Garcia hit her
inside the vehicle and then drove to a Red Roof Inn. The other two passengers left shortly
after arriving at the Red Roof Inn. Even though they did not check in, Garcia slapped
Chapa some more in the bathroom at the Red Roof Inn and then told her to get back to
the vehicle. Chapa tried to escape from the vehicle but was unable to do so. She testified
“[h]e tries to reach – like acts like he’s going to reach under the seat to grab something.
He’s like threatening that nobody will find me and like all different kind of stuff, just telling
me ugly stuff.” Chapa eventually fell asleep; Garcia parked the car at a Stripes gas station
2 and also feel asleep. When she awoke, Chapa felt disoriented and asked Garcia to take
her home, which he did. Chapa testified that she waited two days to seek medical
treatment because she was afraid.
After the July 10 incident, Chapa decided to move to a new apartment complex.
However, she maintained an open line of communication with Garcia. At 11:00 a.m. on
August 4, 2015, Chapa reached out to Garcia and asked him to drive her from the Holiday
Inn to her new apartment. When he arrived to pick her up, Chapa realized that Sara
Lopez was driving the car. Chapa and Garcia bickered about Lopez’s presence
throughout the drive to the new apartment. Garcia exited the vehicle to continue to
confront Chapa. Chapa exclaimed, “Fine. I’m done. . . . No more,” to which Garcia replied,
“No. . . . You’re not going to leave me.” He then pulled her hair until she complied and
re-entered the vehicle. Chapa sat in between a child seat and Garcia in the back of the
car. Garcia instructed Lopez to drive to a hotel because “I’m going to tie this b**** up.”
Garcia then punched Chapa with a closed fist, kneed her in the mouth, and began choking
Chapa as he exclaimed, “I don’t give a f***, b****. Die. Choke on it. Die.”
Once they arrived at a hotel, Garcia instructed Lopez to reserve a room. When
she explained that she didn’t have an ID, Garcia took Chapa’s ID from her purse and
gave it to Lopez. As Chapa and Garcia waited in the car while Lopez reserved a room,
Garcia quelled her screaming by covering her mouth and telling her to “Shut the f*** up.”
Lopez returned after a while and informed Garcia that a room would not be available until
3:00 p.m., at which point Garcia directed her to “drive around town until then.” Garcia
began rummaging through Chapa’s cell phone. As Lopez continued to drive, Chapa
noticed a police vehicle up ahead. She opened the car door, leaned out of the child car
seat, and attempted to wave at the police officer’s for assistance. Chapa claims that
3 Garcia reached towards her saying, “no, don’t do it.” She does not remember if he pushed
her, but Chapa fell out of the vehicle and landed on her head. She received emergency
treatment at the scene.
Garcia faced a four-count indictment in a jury trial that began on June 14, 2016.
Each count also included enhancement paragraphs alleging habitual felony offender
status. On June 16, the jury convicted Garcia of all four counts as alleged in the
indictment. The jury assessed punishment at thirty years for each count, to run
concurrently, in the Institutional Division of the Texas Department of Criminal justice. This
appeal ensued.
II. LOPEZ’S TESTIMONY
In his first issue, Garcia argues it was an error to admit Sara Lopez’s testimony.
The State responds by arguing that Garcia’s first point is multifarious; in the alternative,
the State contends there is no reversible error because Lopez’s testimony was relevant
and any potential error was harmless.
The State originally intended to call Lopez as a witness, but the trial court
appointed an attorney to advise her based on her apparent participation in some of the
criminal acts alleged against Garcia. Outside the presence of the jury, Lopez decided not
to testify and invoked her Fifth Amendment right against self-incrimination. However, the
trial court gave the State the option of calling Lopez to the stand anyway to exercise her
Fifth Amendment right in front of the jury. After she invoked her Fifth Amendment right,
the following exchange occurred:
State: I’m going to ask you one question not relevant to any of the incidences.
Defense: Judge, I’m going to object to relevance. He himself is saying it’s not relevant.
4 Court: Let me hear the question.
State: It goes to state of mind, Judge.
Court: All right. Go ahead. I need to hear the question first.
State: Are you scared of the defendant?
Defense: Judge, I’m going to object to relevance.
Court: Overruled.
State: You can answer.
Lopez: Yes.
A. Standard of Review and Applicable Law
A trial court’s ruling regarding the admissibility of evidence is reviewed for abuse
of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). As long as
the trial court’s decision was within the zone of reasonable disagreement and was correct
under any theory of law applicable to the case, it will be upheld. Winegarner v. State, 235
S.W.3d 787, 790 (Tex. Crim. App. 2007). The Rules of Evidence define relevant evidence
as any evidence that has a tendency to make a fact more or less probable than it would
be without the evidence and that fact is of consequence in determining the action. TEX.
R. EVID. 401. Upon finding a non-constitutional error, the reviewing court will reverse only
upon a finding that the error affected the accused’s substantial rights. Barshaw v. State,
342 S.W.3d 91, 94 (Tex. Crim. App. 2011). Substantial rights are not affected if, based
on the record as a whole, this Court has a fair assurance that the erroneous admission of
evidence had either no influence or only a slight influence on the jury. Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002). In making this assessment, this Court considers
everything in the record, the nature of the evidence supporting the verdict, the character
of the alleged error, and how it relates to other evidence in the record. Id. The presence
5 of overwhelming evidence supporting the conviction can be a factor in the evaluation of
harmless error. See id. at 356.
B. Discussion
It is true that we may disregard a multifarious point, but we also have the option to
review such multifarious issues if we are able to “able to determine, with reasonable
certainty, the alleged error about which the complaint is made.” Stults v. State, 23 S.W.3d
198, 205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). Thus, we will analyze whether
it was an error to admit Lopez’s testimony.
Garcia contends that the law has long prohibited allowing witnesses to exercise
their Fifth Amendment rights in front of the jury.1 See U.S. v. Ritz, 548 F.2d 510, 521 (5th
Cir. 1977); Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986). Additionally,
Garcia argues that Lopez’s testimony that she is afraid of him has no relevance to any of
the four indicted offenses, especially because she refused to be cross-examined about
her fear. The State argues that Lopez’s testimony about being afraid of Garcia was
relevant to her state of mind. However, state of mind testimony is a hearsay exception,
and Garcia did not raise any hearsay objections. See TEX. R. EVID. 803(3). The State
additionally argues that Lopez’s fear testimony is relevant “contextual evidence” regarding
a chain of questions Garcia’s counsel directed at Chapa. These questions, argues the
State, left the false impression that Lopez was just as guilty as Garcia and that she should
be charged alongside him. However, Lopez’s complacency in driving around is not a fact
of consequence in this case. See TEX. R. EVID. 401. Furthermore, we note that most of
the cases in which testimony concerning a witness being afraid of the defendant is found
1 Even though Garcia concedes that he did not object to Lopez’s testimony on Fifth Amendment
grounds before the trial court and thus failed to preserve error, Garcia argues that this is still relevant to the discussion of the harm caused by erroneously admitting her irrelevant testimony. As noted above, Garcia did raise a relevancy objection to the trial court. 6 to be relevant involve murder. See Garcia v. State, 246 S.W.3d 121, 132 (Tex. App.—
San Antonio 2007, pet. ref'd); Amunson v. State, 928 S.W.2d 601, 605 (Tex. App.—San
Antonio 1996, pet. ref'd); Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996) (en
banc). We conclude that the trial court abused its discretion in allowing Lopez’s
testimony. Cameron, 241 S.W.3d at 19.
However, even though it was an error to allow Lopez’s testimony, we conclude that
any such error was harmless upon considering everything in the record and how Lopez’s
testimony related to other evidence and the presence of other overwhelming evidence.
See Motilla, 78 S.W.3d at 356. There was overwhelming testimony from Chapa and
Gutierrez to support the convictions. Garcia does not deny the events themselves;
instead, as we discuss further below, his main argument is that he was entitled to an
instruction on lesser-included offenses. In addition, Lopez’s testimony was never
mentioned again during the trial and the State even minimized her testimony during the
closing argument: “She invoked her Fifth Amendment right not to incriminate herself.
And then she said she was scared of the defendant. And then invoked her right to remain
silent at that point on. So you didn’t hear much from her. That’s all you heard, really,
from Mrs. Lopez.” Even though the State referenced the only testimony that Lopez gave,
which is that she’s scared of Garcia, the State downplayed the importance of her remarks
and glossed over Lopez’s comments without pulling any further attention to them. In the
end, even if her testimony had been excluded, there was an overwhelming amount of
support for his conviction.2 Thus, even though it was an error to allow Lopez to testify,
any resulting error was harmless. See Cameron, 241 S.W.3d at 19.
2 We find the admission of Lopez’s testimony harmless, even considering any potential error of
allowing Lopez to exercise her Fifth Amendment rights in front of the jury. There was so much evidence to support Garcia’s conviction that we have a fair assurance that any error either had no effect or only a slight influence on the jury. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 7 III. LESSER-INCLUDED OFFENSES
In his second issue, Garcia argues that the trial court erred by denying his request
for jury instructions on the lesser-included offenses of unlawful restraint and kidnapping
for counts three and four.3
A trial court may instruct the jury on a lesser-included offense if (1) the offense in
question is a lesser-included offense under article 37.09 of the Texas Code of Criminal
Procedure and (2) there is some evidence that would permit a rational jury to find that the
defendant is not guilty of the greater offense but is guilty of the lesser-included offense.
Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). It is not enough that
the jury may disbelieve crucial evidence pertaining to the greater offense; there must be
some evidence directly germane to the lesser included offense for the fact finder to
consider before an instruction on a lesser included is warranted. Harner v. State, 997
S.W.2d 695, 702 (Tex. App.—Texarkana 1999, no pet.). Anything more than a scintilla
of evidence may be sufficient to entitle a defendant to a lesser charge. Hall v. State, 225
S.W.3d 524, 528 (Tex. Crim. App. 2007).
A person commits the offense of kidnapping if he intentionally or knowingly abducts
another person. TEX. PENAL CODE ANN. § 20.03(a) (West, Westlaw through 2017 1st
C.S.). A person commits the offense of aggravated kidnapping if he intentionally or
knowingly abducts another person with the intent to inflict bodily injury on him or terrorize
him. Id. § 20.04(a)(4), (5). Restrain means to restrict a person’s movements without
consent, so as to interfere substantially with the person’s liberty, by moving the person
3Chronology notwithstanding, count three from below was for aggravated kidnapping related to the August 4 incident and count four was for aggravated kidnapping related to the July 10 incident. 8 from one place to another or by confining the person. Id. § 20.01(1)(A) (West, Westlaw
through 2017 1st C.S.). Restraint is without consent if it is accomplished by force,
intimidation, or deception. Id. § 20.01(1)(A). 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. Id. § 20.01(2)(A). A person commits the offense of unlawful restraint if he
intentionally or knowingly restrains another person. Id. § 20.02(a) (West, Westlaw
through 2017 1st C.S.).
Garcia acknowledges that the evidence clearly supports a charge of assault and
unlawful restraint, and yet he claims that “there is simply no evidence of Garcia’s intent
to prevent Chapa’s liberation by secreting her or holding her in a place she won’t be
found.” Instead, Garcia argues that the evidence merely shows “an angry boyfriend or
ex-boyfriend who overreacted.” Thus, he argues the trial court should have instructed the
jury on the lesser-included offenses of assault and unlawful restraint. The State does not
dispute that unlawful restraint and kidnapping are lesser-included offenses of aggravated
kidnapping, but the State argues that there is no evidence that, if believed, would negate
the aggravating elements that raise the lower offenses to the greater offenses. See
Rousseau, 855 S.W.2d at 672. We agree with the State.
Concerning count four, Garcia argues there is no evidence to support aggravated
kidnapping because the record does not indicate that Garcia abducted Chapa with the
intent to inflict bodily injury or terrorize her. Additionally, Garcia argues the jury could
interpret the evidence as mere unlawful restraint as opposed to aggravated kidnapping
because Garcia drove Chapa back home when she requested. However, we find these
arguments meritless.
9 The uncontroverted evidence provides that on July 10, 2015, Garcia kicked in
Chapa’s bathroom door and repeatedly slapped her and screamed at her. When Chapa
protested to leaving, Garcia forcibly removed from the apartment, and then dragged her
by the hair down six flights of stairs. Garcia repeatedly kicked Chapa until she complied
and entered his vehicle. Before closing the door, Garcia engaged the child safety lock to
ensure Chapa could not escape. Chapa additionally testified that Garcia threatened her
by claiming that “nobody will find [her].” Thus, Garcia’s intent to secrete Chapa is
demonstrated by removing her from the apartment to his car, turning on the child lock,
and isolating her in a motel and his car. Garcia’s intent to secrete Chapa is further
evidenced by his decision to drive around the city until she fell asleep. See Fann v. State,
696 S.W.2d 575, 576 (Tex. Crim. App. 1985) (holding that victims in car driven in shifting
path through city streets sufficient evidence of keeping victims isolated from being found
or receiving assistance).
The record sufficiently demonstrated Garcia’s intent to inflict bodily injury by his
actual infliction of bodily injury while he isolated Chapa: (1) in her bathroom; (2) in the
car on the way to the motel; and (3) in the motel’s bathroom. Similarly, Garcia’s intent to
terrorize her is sufficiently demonstrated by his threat that nobody would find her. Thus,
nothing in the record negates the elements that raise unlawful restraint to kidnapping and
kidnapping even further to aggravated kidnapping. See Harner, 997 S.W.2d at 702.
Concerning the incident on August 4, Garcia concedes that the testimony and
injuries supporting count three are “more egregious” than count four, but nevertheless
argues again that the jury could interpret the evidence as Garcia only being guilty of
unlawful restraint or kidnapping as opposed to aggravated kidnapping. Garcia bases this
claim on the evidence challenging Chapa’s credibility, the evidence of reciprocal jealousy,
10 and the fact that Chapa was the one who initiated the contact with Garcia on August 4.
However, we once again disagree with Garcia.
The record sufficiently established Garcia’s intent to secrete Chapa by telling her
that he would tie her up alone in a hotel and when he covered her mouth to quell her
screams while telling her to “shut the f*** up.” In addition, Garcia instructed Lopez to drive
around town until a room at the hotel became available at 3:00 p.m. See Fann, 696
S.W.2d at 576; Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim. App. 1980) (holding
that driving victim around in car on city streets for an hour sufficient evidence of secreting
and holding victim in place not likely to be found); see also SanTellan v. State, 939 S.W.2d
155, 162 (Tex. Crim. App. 1997) (en banc) (“[I]f the actor intended at any time during the
restraint to secrete or hold the victim in a place where she would not likely be found, the
offense is complete.”).
The record also sufficiently established Garcia’s intention to inflict bodily harm on
Chapa and his intention to terrorize her. The uncontroverted evidence established that
Garcia exclaimed to Chapa, “You’re not going to leave me.” Garcia then pulled on
Chapa’s hair until she acquiesced and entered the vehicle. Chapa testified that he
commanded Lopez to drive to a hotel because “I’m going to tie this b**** up.” The
uncontroverted evidence further established that he punched her with a closed fist, kneed
her in the mouth, and choked her, saying, “I don’t give a f***, b****. Die. Choke on it.
Die.” Once again, Garcia’s intent to inflict bodily injury is demonstrated by his actual
infliction of bodily injury numerous times throughout this incident. And he clearly intended
to terrorize her by stating that he intended to tie her up in a hotel. Thus, there is no
evidence to negate the elements that raise unlawful restraint to the greater offense of
kidnapping; likewise, there is nothing to refute the theory that raises kidnapping to the
11 greater offense of aggravated kidnapping. See Harner, 997 S.W.2d at 702. We overrule
Garcia’s second issue.
IV. DOUBLE-JEOPARDY
In count one, Garcia was convicted of continuous violence against the family, with
multiple violations having allegedly occurred on July 10, 2015 and August 4, 2015. In
counts three and four, Garcia was convicted of aggravated kidnapping, having occurred
on the same dates, respectively. Thus, Garcia argues that his convictions violated
double-jeopardy because he was prosecuted twice for the same conduct: on both July
10, 2015 and August 4, 2015, a string of events led to being convicted under two different
penal sections.
Generally, a double-jeopardy claim must be raised in the trial court to preserve the
error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App.
2000). An exception to this general rule applies if (1) the undisputed facts show the
double-jeopardy violation is clearly apparent from the face of the record and (2) the
enforcement of the usual rules of procedural default serves no legitimate state purpose.
Id. 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 additional
evidence to support the claim. Ex parte Knipp, 236 S.W.3d 214, 216, n. 3 (Tex. Crim.
App. 2007).
The Double-Jeopardy Clause of the United States Constitution provides no person
shall be subjected to twice having life or limb in jeopardy for the same offense. U.S.
CONST., amend. V. Generally, this clause protects against (1) a second prosecution for
the same offense after acquittal, (2) a second prosecution for the same offense after
12 conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S.
161, 165 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006). “When
the same act or transaction violates two different penal statutes, the two offenses are the
same for double-jeopardy purposes if one of the offenses contains all the elements of the
other; they are not the same if each offense has a unique element.” Duvall v. State, 59
S.W.3d 773, 777 (Tex. App.—Austin 2001, pet. ref’d) (citing Blockburger v. U.S., 284 U.S.
299, 304 (1932)).
Garcia did not preserve his double-jeopardy issue to the trial court, meaning that
he can only prevail on this issue if a double-jeopardy error is apparent on the face of the
record. See Gonzalez, 8 S.W.3d at 643. However, aggravated kidnapping and
continuous family violence each have unique elements: aggravated kidnapping requires
the State to prove that Garcia abducted Chapa with the intent to inflict bodily injury or
terrorize her whereas continuous family violence requires the State to prove that Garcia
intentionally, knowingly, or recklessly caused bodily injury by kicking or hitting her. See
Duvall, 59 S.W.3d at 777; TEX. PENAL CODE § 20.04(a)(4), (5); cf. Stephenson v. State,
255 S.W.3d 652, 657 (Tex. App.—Forth Worth 2008, no pet.) (finding no double-jeopardy
violation when defendant was convicted of both aggravated kidnapping and aggravated
assault). Additionally, Garcia’s two counts of aggravated kidnapping each presented
alternative means to satisfy the aggravating element: either with his intent to inflict bodily
harm upon Chapa or with his intent to terrorize her. See TEX. PENAL CODE ANN.
§ 20.04(a)(4), (5); see also Benefield v. State, No. 02-14-00099-CR, 2015 WL 4606273,
at *2 (Tex. App.—Fort Worth July 30, 2015, pet. ref’d) (mem. op., not designated for
publication) (op. on reh’g) (holding double-jeopardy claim not clear on the face of the
13 record because the jury returned a general verdict and the jury charge allowed a guilty
verdict under an alternative and non-conflicting theory). Therefore, Garcia’s double-
jeopardy claim is not clear from the face of the record. We overrule Garcia’s third issue.
V. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 12th day of April, 2018.