Saldana v. State (59 S.W.3d 703, 2001)

YEAKEL, Justice.

A jury found appellant Leonard Saldana guilty of capital murder. See Tex. Penal Code Ann. § 19.03(a)(2) (West 1994). Pursuant to the jury’s findings at the punishment phase of trial, the district court assessed punishment at life imprisonment. See id. § 12.31(a); Tex.Code Crim. Proc. Ann. art. 37.071, § 2 (West Supp.2001). Appellant challenges his conviction by four points of error. We will affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and the victim, Sylvia Hernandez, lived together in Austin until January 1998. They had one daughter. On January 12 Hernandez called police after she and appellant argued. Hernandez reported to the responding officer that after she told appellant that she was ending their relationship, he pointed a gun at her at said, “This isn’t over until one of us is dead.” Hernandez obtained a protective order on January 14, which forbade appellant from going within two hundred yards of Hernandez or any location where appellant knew her to be. She also moved with her daughter into her parents’ home and continued living there until her death on April 4. On March 5 Austin police received a call from Hernandez complaining of a violation of the protective order. The responding officer testified that Hernandez reported to him that appellant had “pulled alongside her [car] and started yelling to her.” In the early morning of March 15, Hernandez “flagged down” a police officer and reported that appellant had harassed her and tried to keep her from leaving a party. She further reported that appellant had damaged her vehicle. Later on that same evening, Hernandez reported to police that appellant had “tried to come in the back of her house from the back window.” On March 28 Hernandez called the police to complain of a disturbance at her home. She reported that appellant had come to her house, banged on the front door, and broken the windows in her bedroom.

At approximately 7:30 on the morning of April 4, appellant arrived at Hernandez’s home in his truck and blocked Hernandez’s driveway. Hernandez was loading laundry into her ear when appellant arrived. According to Bernadette Rosales, Hernandez’s neighbor, appellant jumped out of his truck, screamed at Hernandez, punched her in the face, grabbed her by her hair, pulled her to his truck, and threw her inside. Although witnesses were unable to see what happened inside the truck, they testified that Hernandez screamed for help and asked appellant to let her go. Danny Rosales heard the disturbance and ran outside to help Hernandez. Rosales briefly struggled with appellant in an attempt to divert attention away from Hernandez long enough for her to escape. Bernadette Rosales testified that at one point during the struggle, appellant convinced Danny Rosales to back away by displaying his knife and telling Rosales, “I will kill you, too.”

Appellant stabbed Hernandez several times, then told her to get out of his truck. Hernandez crawled out, and appellant drove away. Hernandez died minutes later.

DISCUSSION

Sufficiency of the Evidence

By his first and second points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction for capital murder because “the State offered no, or insufficient, evidence to prove that appellant either kidnapped or attempted to kidnap Sylvia Hernandez.”

In his first point of error, appellant contends that no rational trier of fact could have found that he murdered Hernandez in the course of a completed or attempted kidnapping. The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex.Crim.App.1990); Aiken v. State, 36 S.W.3d 131, 132 (Tex.App.—Austin 2000, no pet.). In our review of the legal sufficiency of the evidence, we must consider all the evidence that the jury was permitted, properly or improperly, to consider. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). Whether the evidence meets the standard set out in Jackson is a question of law. Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App.1996); Grant v. State, 989 S.W.2d 428, 432 (Tex.App.—Houston [14th Dist.] 1999, no pet.).

A. Capital Murder

A person commits the offense of capital murder if he intentionally or knowingly causes an individual’s death in the course of committing or attempting to commit a kidnapping. Tex. Penal Code Ann. §§ 19.02(b)(1), .03(a)(2) (West 1994). Because appellant did not contest that he intentionally killed Hernandez, the State had the burden of proving only that he caused her death during a completed or attempted kidnapping.

B. Kidnapping

A person commits the offense of kidnapping when he knowingly or intentionally abducts another person. Id. § 20.03(a). To “abduct” means to restrain a person with intent to prevent her liberation by either: (1) secreting or holding her in a place where she is not likely to be found, or (2) using or threatening to use deadly force. Id. § 20.01(2) (West Supp.2001). “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. Restraint is “without consent” if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A).

The statute contains two components: a required criminal act and a required culpable mental state. King v. State, 961 S.W.2d 691, 693-94 (Tex.App.— Austin 1998, pet. ref'd). The sole act involved in a kidnapping is restraint. Mason v. State, 905 S.W.2d 570, 575 (Tex.Crim.App.1995). Texas courts have established that secreting and using or threatening to use deadly force are part of the culpable mental state that must be shown to prove kidnapping. Brimage v. State, 918 S.W.2d 466, 475 (Tex.Crim.App.1994); King, 961 S.W.2d at 693-94. In other words, a kidnapper must intend to prevent his victim’s liberation by one of such acts.

The State need not prove that the accused completed a kidnapping. Tex. Penal Code Ann. § 19.03(a)(2). One can be guilty of capital murder if the State can show the murder occurred during an attempt to kidnap the victim. Id. Criminal attempt requires both the commission of an act that amounts to more than mere preparation and a specific intent to commit the offense. Id. § 15.01 (West 1994). Thus, to establish that appellant kidnapped or attempted to kidnap Hernandez, the State had the burden of proving that (1) appellant restrained Hernandez or accomplished more than mere preparation for restraint, (2) the restraint was without Hernandez’s consent, and (3) appellant acted with the specific intent to prevent Hernandez’s liberation by either secreting or using or threatening to use deadly force to restrain her.

Appellant does not dispute that he restrained Hernandez without her consent. Therefore, we focus only on the State’s third burden. The question before us is whether, viewing the evidence in the light most favorable to the jury’s verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant acted with the specific intent to commit kidnapping.

During a videotaped confession that was played to the jury, appellant recalled that as soon as he arrived at Hernandez’s home on April 4, he and Hernandez began arguing. He stated, “I just told her, I said, You need to come with me. You need to come over to the house so I can calm down,’ and she didn’t want to come with me, so I forced her into the truck.” Appellant further related his telling Hernandez, “You are coming with me right now.” When Hernandez refused to voluntarily get into appellant’s truck, he threw her in. Once Hernandez was inside his truck, appellant stated, “I just got caught up in the moment. The knife just happened to be there.” Based on the videotaped confession, the jury could infer that appellant intended to abduct Hernandez when he forced her into his truck, and it was only when she physically resisted that he decided to stab her. See Santellan v. State, 939 S.W.2d 155, 163-64 (Tex.Crim.App.1997).

Appellant argues that his actions leading to the murder of Hernandez amounted to false imprisonment, not kidnapping or attempted kidnapping. We disagree. “A false imprisonment becomes a kidnapping when an actor evidences a specific intent to prevent liberation by either secretion or deadly force.” Brimage, 918 S.W.2d at 475. As previously discussed, the jury was permitted to infer that appellant acted with a specific intent to prevent Hernandez’s liberation by the use of deadly force.

Appellant urges this Court to adopt Judge Miller’s concurring and dissenting opinion in Brimage, which asserts that a finding of kidnapping or attempted kidnapping must be supported by evidence of substantial movement. Id. at 484-92 (Miller, J., concurring and dissenting). Under Judge Miller’s theory, kidnapping requires “some intentional confinement, restraint, or movement of the victim that is ... separate and distinguishable from the confinement, restraint, or movement attendant to another offense.” Id. at 490. This Court has previously declined to follow such interpretation. See, e.g., King, 961 S.W.2d at 693-94 (holding evidence was sufficient to support conviction for kidnapping when actor physically picked up semiconscious victim from doorway of bar and carried her to alley); Warner v. State, 944 S.W.2d 812, 814-15 (Tex.App.—Austin 1997) (holding evidence was sufficient to support conviction for kidnapping when actor grabbed victim, threw her into wall, twisted her arm until it broke, sat on her, then attempted to tie her with lariat), pet. dism’d, improvidently granted, 969 S.W.2d 1 (Tex.Crim.App.1998); see also Price v. State, 35 S.W.3d 136, 139-41 (Tex.App.—Waco 2000, no pet.) (holding evidence was sufficient to support conviction for kidnapping when actor shoved victim from one area of hotel room to another). The intent to prevent liberation is part of the mens rea of kidnapping, not the actus reus. Cf. King, 961 S.W.2d at 694 (citing Mason, 905 S.W.2d at 575) (holding “secretion requirement of abduction” is part of mens rea).

Today we again follow Brimage ’s majority and hold that the evidence is legally sufficient to support appellant’s conviction. Viewing the evidence in the light most favorable to the jury’s verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant acted with the specific intent to prevent Hernandez’s liberation by the use of deadly force. We overrule appellant’s first point of error.

In his second point of error, appellant contends that the “jury’s failure to find appellant did not kidnap, or attempt to kidnap, Sylvia Hernandez was against the great weight and preponderance of the evidence.” When conducting a factual-sufficiency review, we do not view the evidence in the light most favorable to the verdict. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App.2000). Instead, we consider all evidence in a neutral light. Id. However, we do not substitute our judgment for that of the jury and will set aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7; Clewis, 922 S.W.2d at 129; Shelton v. State, 41 S.W.3d 208, 211 (Tex.App.—Austin 2001, pet. filed). A court of appeals should reverse on factual-insufficiency grounds only when the jury verdict is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Clewis, 922 S.W.2d at 135.

Appellant argues that the evidence shows that he held the specific intent to commit murder, not kidnapping. Specifically, appellant points to the testimony of Bernadette Rosales. Rosales stated that when her husband, Danny, attempted to rescue Hernandez, appellant smiled and said, “I will kill you, too.” We agree that appellant’s statement shows that he held a specific intent to commit murder. However, we are unable to hold that appellant’s statement precludes a finding of specific intent to kidnap. As soon as appellant arrived at Hernandez’s home on the morning of April 4, he stated to her, “You need to come with me. You need to come over to the house so I can calm down.” This statement alone lends adequate support to the jury’s finding that appellant held the requisite intent to kidnap. We hold that, viewing all the evidence in a neutral light, the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 129; Shelton, 41 S.W.3d at 211. We overrule appellant’s second point of error.

Admissibility of the Evidence

A. Waiver of Miranda Rights

In his third point of error, appellant contends that the “trial judge erred in admitting [his] written statement and the videotaped oral statement because both statements occurred after [he] refused to waive his Miranda rights.” See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant argues that his oral and written confessions were improperly admitted as evidence for two reasons. First, he argues that he did not voluntarily waive his right to remain silent. Second, he argues that he never possessed the requisite level of comprehension of his right to appointment of an attorney. When appellant was arrested, Officer Philip Linsalata read him his Miranda rights from a standard blue card and asked him if he understood the rights. Appellant responded affirmatively, then stated that he “[had] nothing to say.” However, on the way to the police station, appellant asked about the condition of Hernandez. Linsalata responded that he did not know, then asked appellant what had happened. Appellant answered that he and Hernandez “had a domestic argument.” Appellant went on to say that he had stabbed Hernandez, but he was not responsible because he was intoxicated. When Linsalata questioned him further, appellant said, “I think I should keep quiet for now.” Linsalata then ceased his questioning.

Appellant was taken to the interview room of the Austin Police Department, where he was interrogated by Detective Douglas Skolaut. Skolaut read appellant his Miranda rights for the second time, and appellant indicated that he understood them. Later in the interview, appellant inquired as to how he could obtain a lawyer. A portion of the transcript of the interview follows:

[Saldana] A. If I wanted a lawyer, where would a lawyer come from?

[Skolaut] Q. Well, you can call one if you wanted one.

I am t got no money for a damn lawyer. I mean I got a lawyer, but — it’s too expensive.

Are you asking me for a lawyer?