Rodriguez, Daniel Gonzalez ( 2015 )

NO. PO-loll- 1$
ORIGINAL IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
XOURT OF Cru?.'.?-'/:! Af.T m,q
DANIEL GONZALES RODRIGUES
OCT 29 2015
Petitioner
n ,,-
V.
THE STATE OF TEXAS
Petition in Cause No. 1380317/ from the
351st District Court of Harris County, Texas
and the Court of Appeals for the First
District of Texas, Case No. O1-13-G>0778-CR.
FILED IN
€URT OF CRIMINAL APPEALS
PETITION FOR DISCRETIONARY REVIEW OCT 29 2315
Abel Acosta, Clerk
Daniel Gonzalez Rodriguez #1869538
C.T. Terrell Unit
1300 FM 655
Rosharon, TX 77583
Petitioner Pro Se
TABLE OF CONTENTS
Page
Index of Authorities III
Statement Reqardinq Oral Arqument 1
Statement of the Case 1-2
Statement of Procedural History 2
Grounds For Review 2
NO. 1 - WHETHER THE COURT OF APPEALS ERRED IN HOLDING
THAT THE EVIDENCE WAS SUFFICIENT TO SUSTAIN
i
PETITIONER'S CONVICTION FOR KIDNAPPING WHEN
IT DEFERED TO THE TRIAL COURT'S RESOLUTION
THAT THE FACTFINDER RESOLVED ANY CONFLICTS
IN EVIDENCE IN FAVOR OF THE VERDICT BECAUSE
THE RESOLUTION WAS NOT RATIONAL UNDER JACKSON
V. VIRGINIA, 443 U.S. AT 326, 99 S.CT. AT 2793.
NO. 2 - WHETHER THE COURT OF APPEALS ERRED WHEN IT
CONCLUDED THAT THE TRIAL COURT DID NOT ABUSE jx:
ITS DISCRETION BY REFUSING PETITIONER'S REOUEST
FOR AN UNLAWFULL RESTRAINT INSTRUCTION.
Arqument
No. 1 - Suoportinq Authorities
3
Arqument
4-6
No. 2 - Supportinq Authorities j
Arqument 7
Prayer For Relief 8
Appendix
II.
INDEX OF AUTHORITIES
Page
Caselaw
Alamanza v. State- 586 S.W.2d 157 (Tex.Crim.App.1985) 7
Clark v. Proeunier, 755 F.2d 394 (5th Cir.1985) 4
Cordova v. State, 698 S.W.2d 107 (Tex.Crira.App.1985) 6
Hooper v. State, 215 S.W.3d 9 (Tex.Crim.App.2007) 3,6
In re Winship, 397 U.S. 358 (1970) 4,6
Jackson v. Virginia; 443 U.S. 307 (1979) 2,3,4
Williams v. State, 235 S.W.3d 742 (Tex.Crim.App.2007) . 4
Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App. 1983) 4
Wooten v. State, 400 S.W.3d 601 (Tex.Crim.App.2013) 7
Constitutions and Statutes
14th Amendment U.S. Constitution 3
Texas Penal Code, §§ 20.01 & 20.02 5
Texas Penal Code, §20.03 1,5
III.
NO. PD-1071-15
'IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
DANIEL GONZALEZ RODx^IGUEZ
Peti tioner
V.
THE STATE OF TEXAS
Petition in Cause No. 1380317 From the
351st District Court of Harris County, Texas
and the Court of Appeals for the First
District of Texas, Case No. 01-13-00778.
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE
COURT OF CRIMINAL APPEALS:
Daniel G. Rodriguez, petitions che Court to review tfte judge
ment affirming his conviction for kidnapping. (Tex. Pen. Code
§20.03, West 2011).
STATEMENT REGARDING ORAL ARGUMENT
Present circumstances considered, oral argument is waived.
STATEMENT OF THE CASE
petitioner was indicted for kidnapping. The indictment con
tained two prior felony convictions for drivinq for intoxicated
for purpose of the enhancement of the punishment, (i CR 21). After
a finding of indigency, the triai courc appointed counsel.
After trial by jury. Petitioner was found guilty as charqed
1.
on July 10, 2013. (1 CR 21). The jury sentenced Petitioner to 30-
years confinement in the Texas Department of Criminal Justice -
Institutional Division. (1 CR 51).
After Petitioner filed a timely notice of appeal, (1 CR 55),
the trial certified Petitioner's right of appeal on July 10, 2013,
(I CR 58). On Aug. 19, 2013, the trial court found Petitioner re
mained indiqent and appointed counsel to represent him on direct
appeal. (1 CR 61).
STATEMENT OF PROCEDURAL HISTORY
On July 18, 2015, the Court of Appeals for the First judi
cial District of Texas, affirmed the iudqeraent of the trial court
in Case No. 01-I3-00778^CR.
Petitioner filed a timely motion for extension of time to
file Petition for Discretionary Review, and a motion to suspend
rule 9.3(b) of the Texas Rules of Appellate Procedure. The Court
qranted both motion on 08^-19-2015, in Case No. PD-1071-15. Peti
tion for review is now due on Oct. 26* 2015.
GROUNDS FOR REVIEW
NO. 1 - THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVID
ENCE WAS SUFFICIENT TO SUSTAIN PETITIONER'S CONVICTION
FOR KIDNAPPING WHEN IT DEFERED TO THE TRIAL COURT'S
RESOLUTION THAT THE FACTFINDER RESOLVED ANY CONFLICT'S
IN EVIDENCE IN FAVOR OF THE VERDICT, BECAUSE THE RE
SOLUTION WAS NOT RATIONAL UNDER JACKSON V. VIRGINIA,
443 U.S. AT 326. 99 S.CT. AT 2793.
NO. 2 - THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING
PETITIONER'S REOUEST FOR AN.UNLAWFULL RESTRAINT JURY
INSTRUCTION.
2.
ARGUMENT
•;-N0. 1-WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT
THE EVIDENCE WAS SUFFICIENT TO SUSTAIN PETITIONER'S
CONVICTION FOR KIDNAPPING, WHEN IT DEFERED TO THE
TRIAL COURT'S RESOLUTION THAT THE FACTFINDER RESOLVED
ANY CONFLICTS IN EVIDENCE IN FAVOR OF THE VERDICT
BECAUSE THE RESOLUTION WAS NOT RATIONAL ..UNDER JACKSON
V. VIRGINIA, 443 U.S. AT 326, 99 S.CT. AT 2793.
Supporting Authorities
The Due Process Clause of the 14th Amendment requires that
every State criminal conviction be supported by evidence that a
rational trier of fact could accept as sufficient to prove all of
the elements of the charged offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 316 (1979). The Due Process
quarantee is safeguarded when an appellate court reviews the legal
sufficiency of the evidence.
For the purpose of a Jackson v. Virqinia analysis, jurors
are permitted to draw inferences from the evidence as long as
those inferences are reasonable and supported by the evidence.
Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.Crim.App.2007). Legal
sufficiency analysis does not permit verdicts based on "mere specu
lation or factually unsupported inferences or presumptions." Id at
16-17. For this purpose, an inference is "a conclusion reached by
considering other facts and deducting a logical consequence from
them." Id at 16. Speculation is "mere theorizing or guessing about
the possible meaning of facts and evidence presented." A conclu
sion based on speculation may appear reasonable; however, it will
not support a finding of guilt under Jackson v. Virginia, if it
is not sufficiently supported by record facts, or evidence beyond
3.
a reasonable doubt. Id.
If there is an inference tha appellant is not guilty, a find
ing of guilt is not a rational finding. Wilson v. State, 654 S.W.2d
465 (Tex.Crim.App.1983). If the evidence equally supports both
theories of a case, the evidence is insufficient, and the review
ing court must entertain a reasonable doubt. Clark v. Procunier,
755 F.2d 394, 396 (5th Cri.1985). It is the appellate court's
duty to ensure that the evidence presented actually supports the
conclusion that the defendant committed the charged offense. Wil
liams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).
In Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983), the
court acknowledged that although Jackson v. Virginia, 443 U.S. 307,
set the standard for review of State convictions by federal courts,
the Due Process requirements that it announced were based express
ly on the 14th Amendm^rt..They are binding on the States and con
stitute a minimum'standard for sustaining a conviction. "Under
In re Winship, 397 U.S. 358, 90 S. Ct. 1088 (1970), which esta
blished proof beyond reasonable doubt as an essential of the 14th
Amendment Due Process, it follows that when such a conviction
[that was obtained even when no rational trier of fact could have
found guilt beyond a reasonable doubt]., occurs in state court, it
cannot constitutionally stand. Jackson v. Virginia, 443 U.S. 317-318.
Argument Supported By Record Facts
Petitioner asks whether the Court of Appeals has decided an
important question of State or Federal law in a way that conflicts
with the applicable decisions of the Court of Criminal Appeals or
the Supreme Court of the United States.
Petitioner would argue that the Court of Appeals failed in
its duty to ensure that the evidence presented actually supports
a conclusion that the defendant committed the crime that was
charged. Here, there i® legally insufficient evidence that Peti
tioner intentionally and knowlingly abducted (kidnapped) another
person. Texas Penal Code §20.03. Abduct means to restrain a•person
with intent to prevent his liberation by: (A) secreting of holding
him in a place where he is not likely to be found; or (B) using or
threatening to use deadly"force. Texas Penal Code §20.01(2). Re
strain means to restrict a person's movements without consent....
Texas Penal Code §20.01(1)'.
In this instance, the Court of Appeals improperly found evi
dence of intent to prevent liberation by secreting Jane by Con
cluding that Petitioner: "intended to do so by either secretion
or the use or threatended use of deadly force". The statute re
quires an intent to prevent liberation - not an intent to secrete
or an intent to use or threatening to use deadly force. Petitioner
contends the Court's Opinion is based on speculation and not the
record facts. Here, the record facts support insufficient evidence
to support a charge under Penal Code §20.03:
1. The alleged abduction occurred inside a flea market in the
morning of May 07, 2011. (4 RR 11);
.-2. There were few customers at the market because of the early
morning hour. (5 RR 25, 34, 64, 68);
3. Petitioner had been helping his friend (Jesus Gonzalez) un
load wares at the market since Sept. 2010 (over -years). (5 RR 109);
4. After unloading wares, Petitioner would remain at market and
shop. Petitioner would allways park his pick-up in same place.
(5 RR 112);
5.
5. Testimony of victim reflected that Petitioner made no effort
to hide his identity from her when they met earlier that morning
at the Market's sign in booth. (5 RR 77-78);
6. Petitioner never left the interior grounds of flea market,
signed in at flea market, and did not take child to his vehicle
or utilize exits. (5 RR 17);
7. There is no evidence in the trial record that reflects Peti
tioner was using his truck in the commission of this offense or
that he was attempting a getaway. ( CR & RR).
In reviewing the sufficiency of the evidence, the reviewing
court should look at "events occuring before, during and after the
commission of the offense and may rely on action of the defendant
which show an understanding and common design to do the prohibit
ed act. Hooper v. State, 9, 15-16 (Tex.Crim.App.2007)-(citing
Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985).
The statute under which Petitioner was convicted required the
State to prove that Petitioner restrained a person with intent to
prevent his liberation by secretion or threat of deadly force.
Here, the reviewing court merely required the State to show that
Petitioner "intended" to secrete or use deadly force." ( see
Opinion,at page 5).
Aside from the evidence showing Petitioner was holding the
child's hand and walking around inside the flea market with the
child, without the child's mother's permission. The child was in
an open publid space ^nd unharmed during the period of time she
was missing. The thesis of the Court of Appeals releived the State
of its burden of proving beyond a reasonable doubt of every fact
necessary to sonstitute the crime with which Petitioner was
charged. see In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1073..
6.
NO. 2- WHETHER THE COURT OF APPEALS ERRED WHEN IT CON^ , ; , . J
CLUDED THAT THE TRIAL COURT DID NOT ABUSE ITS J> . '.
DISCRETION BY REFUSING PETITIONER'S REQUEST FOR
AN UNLAWFULL RESTRAINT INSTRUCTION.
Petitioner incorporates the argument and authorities from
Ground No. 1, into the Ground.
Supporting Authorities
In Alraanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985),
the court determined, when trial counsel timely requests a charqe
on a lesser-included offense and the trial court fails to give the
requested charqe, reversal is required if the error results in
some harm to the accused.
A harm analysis requires the appellate court to consider (1)
the jury charge as a whole, (2) the argument of counsel, (3) the
entirety of the evidence, and (4) such other relevant factors as
may be present in the record. Wooten v. State, 400 S.W.3d 601, 606
(Tex.Crim.App.2013).
Argument Supported By Record Facts
In this instance, the Court of Appeals failed to consider the
entirety of the evidence and other relevant factors present in the
record as previously asserted in point of error number #1.
[Petitioner respectfully incorporates those same record
facts as presented in Ground #1, in support of Ground #2].
Here, the reviewing courts evaluation of the record appears
to have misconstrued and misapplied the standard for factual suf
ficiency of the evidende review, while overlooking some the the
evidence and some of the harm. In sum, the reviewing court applied
a harsher standard of review than precedent required.-
7.
Prayer
Petitioner prays the court holds that the State did not prove
that Petitioner "secreted or used deadly force," and cannot, on
the record, be infered; and that the Court of Appeals did commit
error when it failed to find that the trial court abused its dis
cretion by refusing Petitioner's request for an unlawfull restraint
jury instruction.
Respectfully submitted,
Daniel G. Rodriguez #1869583
CT. Terrell Unit
1300 FM 655
Rosharon, TX 77583
Certificate of Service
This is to certify that a copy of the above-entitled and
numbered petition for review has been served on State's Prosecu
ting Attorney, P. 0. Box 13046, Capitol Station, Texas 78711,
via first-class U.S. Mail, on this the &lst day of Oct., 2015.
QcJ&rLd?/ [K&Jjiu<
%*£-
8.
Opinion issued July 28, 2015
In The
Court of Appeal*
For The
jftrsit 2Bt*trtct of Cexa*
NO. 01-13-00778-CR
DANIEL GONZALEZ RODRIGUEZ, Appellant
V. , .
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1380317
MEMORANDUM OPINION
Daniel Rodriguez appeals his conviction for kidnapping.1 In two issues, he
contends that (1) there is insufficient evidence of intent to abduct to support the
jury's guilty verdict and (2) the trial court; abused its discretion by denying his
Tex. Penal Code Ann. § 20.03 (West 2011).
request for a jury instruction on the lesser-included offense of unlawful restraint.'
We affirm.
Background
Early one morning, seven-year-old JaneJ was playing on coin-operated
"horses" with a friend at the flea market where her mother was a vendor. Jane's
mother testified that she was keeping an eye on the children but looked away "for
just a minute" while setting up her display. According to Jane, Rodriguez
approached the young girls and offered them quarters to activate the horses. He
then asked Jane if she wanted to go to his house. Jane declined both offers.
Suddenly. Rodriguez grabbed Jane's wrist. Jane testified that this "hurt" and
that she was unable to escape Rodriguez's grasp. Rodriguez forced Jane toward an
out-of-sight exit.
Jane's mother looked back and did not see Jane. Jane's friend said that she
had left with her father. Because Jane's father was not at the flea market, Jane's
mother became alarmed and contacted security.
Security personnel found Rodriguez and Jane before they reached the exit.
According to Jane, Rodriguez claimed that she was his daughter. Another witness
testified that Rodriguez said that Jane's mother gave him permission to take Jane.
These ruses did not work, and Jane was returned to her mother.
Tex. Penal Code Am. § 20.02 (West 2011).
We refer to the complainant by this pseudonym to protect her identity.
Rodriguez was convicted of kidnapping. He timely appealed.
Sufficiency of the Evidence
In his first issue, Rodriguez contends that the evidence is insufficient to
support the jury's guilty verdict.
A. Standard of review
We review a challenge to the sufficiency of the evidence under the standard
announced in Jackson v. Virginia, 443 U.S. 307, 318-20, 99 S. Ct. 2781, 2788-89
(1979). See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).
Under the Jackson standard, evidence is insufficient to support a conviction if,
considering all of the record evidence in the light most favorable to the verdict, no
rational factfinder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 317-19, 99 S.
Ct. at 2788-89; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
We consider both direct and circumstantial evidence and all reasonable inferences
that may be drawn from the evidence in making our determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The Jackson standard defers to the factfinder to resolve any conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from "basic
facts to ultimate facts." Jackson, AA3 U.S. at 318, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778. We presume that the factfinder resolved any conflicts in the
evidence in favor of the verdict and defer to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
Evidence is insufficient when (1) the record contains no evidence, or merely
a "modicum" of evidence, probative of an element of the offense, (2) the evidence
conclusively establishes a reasonable doubt, or (3) the acts that the State alleges, if
true, do not constitute the charged crime. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007); see Jackson, 443 U.S. at 314-19, 99 S. Ct. at 2786-89. If
an appellate court finds the evidence to be insufficient under this standard, it must
reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S.
3.1,41, 102 S.Ct. 2211,2217 (1982).
i
B. Definition of kidnapping
"A person commits [kidnapping] if he intentionally or knowingly abducts
another person." Tex. Penal Code Ann. § 20.03 (West 2011) (emphasis added).
"'Abduct" means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found; or
(B) using or threatening to use deadly force." Tex. Penal Code Ann. § 20.01(2)
(West 2011) (emphasis added). "'Restrain' means to restrict a person's movements
without consent. . .." Tex. Penal Code Ann. § 20.01(1). Thus, "[a] kidnapping
becomes a completed offense when a restraint is accomplished, and there is
evidence that the actor intended to prevent liberation and that he intended to do so
by either secretion or the use or threatened use of deadly force." Mason v. State,
905 S.W.2d 570, 575 (Tex. Crim. App. 1995).
C. Evidence of intent to prevent liberation by secreting Jane
Rodriguez concedes that the evidence is sufficient to conclude that he
restrained Jane, but he contends that the evidence is insufficient to conclude that he
intended to prevent her liberation and that he intended to do so by secretion or
deadly force. We disagree. Jane testified that Rodriguez asked her to go to his
house before grabbing her wrist and dragging her toward an exit. An eyewitness
saw Rodriguez "walking . . . with a purpose. ... He was walking towards the exit
like he needed to go." When confronted by security, Rodriguez lied that he was
Jane's father. Rodriguez told Jane that she could watch television once she was in
his house. From this evidence, a reasonable jury could conclude that Rodriguez
intended to prevent Jane's liberation and that he intended to do so by secreting her
away to a location where she was unlikely to be found. See Laster v. State, 275
S.W.3d 512, 522-23 (Tex. Crim. App. 2009) (evidence that defendant grabbed
child complainant and attempted to drag her into his car was sufficient to show
intent to secret away).
Rodriguez argues that Jane's testimony should be given no weight because
(1) he did not use exits closer to Jane's location, (2) he chose an exit far away from
his truck, (3) Jane was unattended, (4) an eyewitness testified that Jane was calm
when found and reluctant to leave Rodriguez, and (5) Jane reported no wrist pain
to her doctor several days later. How these factors impact the weight of Jane's
testimony is for the jury to decide. Following Jackson, we presume that the jury
resolved the weight of evidence in favor of the verdict, and defer to that finding.
See Jackson, 443 U.S. at 326; 99 S. Ct. at 2793.
Accordingly, we overrule Rodriguez's first issue.
Lesser-Included Offense
In his second issue, Rodriguez contends that the trial court erred by denying
his request for a jury instruction on the lesser-included offense of unlawful
restraint.
A. Standard of review
"In determining if the jury should be charged on a lesser offense, this Court
applies a two-step analysis." Segundo v. State, 270 S.W.3d 79, 90 (Tex. Crim.
App. 2008). "First, we decide if the offense is a lesser-included offense of the
charged offense . . . ." Id. This "is a question of law," and the standard of review is
de novo. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).
"The second prong of the test then requires an evaluation to determine
whether some evidence exists that would permit a jury to rationally find that, if the
defendant is guilty, he is guilty only of the lesser offense." McKinney v. State, 207
S.W.3d 366, 370 (Tex. Crim. App. 2006). "We review the trial court's decision
regarding including a lesser-included offense in the jury charge for abuse of
discretion." Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.]
2009, pet. ref d). "In making this determination, this Court should review all of the
evidence presented at trial." Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.
1994). "Anything more than a scintilla of evidence" that the defendant is guilty of
the lesser-included offense but not guilty of the charged offense "is sufficient to
entitle a defendant to a lesser charge." Id; see Segundo, 270 S.W.3d at 90-91.
B. An ineffective getaway is not evidence of restraint without abduction
Rodriguez argues that the jury should have been allowed the option of
convicting him of unlawful restraint. A person commits the offense of unlawful
restraint "if he intentionally or knowingly restrains another person." Tex. Penal
Code Ann. § 20.02(a) (West 2011). Unlawful restraint is a lesser-included offense
of kidnapping. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).
To be entitled to an instruction on a lesser-included offense, it is not enough
that the jury could have disbelieved some portion of the evidence; rather "there
must be some evidence directly germane to an unlawful restraint offense for such
an instruction to be warranted." Anderson v. State, 125 S.W.3d 729, 731 (Tex.
App.—Texarkana 2003, no pet.). Thus, "[t]he next step of the analysis is to
determine whether there was evidence that if guilty, appellant was guilty only of
restraining the complainant, without intending to prevent her liberation
by . . . secreting or holding her in a place where she was not likely to be
found . . . ." Schweinle, 915 S.W.2d at 19.
Rodriguez argues that his decision to drag Jane toward a main exit, ignoring
other nearby exits that could have facilitated an easier escape, is some evidence
that he restrained her but did not intend to secret her away. But this is not evidence
of restraint without abduction. Although Rodriguez could have chosen a more
efficient getaway route, he was nevertheless heading toward an exit with Jane. This
exit was not visible from Jane's original location. Rodriguez attempted to prevent
Jane's escape by lying to security. There is no evidence that Rodriguez restrained
Jane without intending to prevent her liberation by removing her to a location
where she was unlikely to be found.
We conclude that the trial court did not abuse its discretion by refusing
Rodriguez's request for an unlawful-restraint instruction. Accordingly, we overrule
his second issue.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Justices Jennings, Bland, and Brown.
Do not publish. Tex. R. App. P. 47.2(b).