Paul Garcia Falcon v. State

NUMBER 13-19-00264-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PAUL GARCIA FALCON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Tijerina
A jury convicted appellant Paul Garcia Falcon of aggravated kidnapping, a first-
degree felony, sexual assault of a child, a second-degree felony, and indecency with a
child by contact, a second-degree felony. See TEX. PENAL CODE ANN. §§ 20.04, 21.11,
22.011. The trial court assessed punishment at forty years’ imprisonment for the
aggravated kidnapping charge and twenty years for each of the remaining charges, with
all sentences to run concurrently. By one issue, Falcon argues that the evidence was
insufficient to support the aggravated kidnapping conviction. We affirm.
I. BACKGROUND
At trial, V.R.1 testified that on August 7, 2016, when she was fourteen years old,
she walked down the street to take her aunt some leftover dinner. On her way back home,
she felt someone, later identified as Falcon, grab her. She “froze” and “went limp.” Next,
she testified:
I am getting pulled into the backyard of this abandoned house. No one lives
there. And I get pulled back there, and he starts to—he pulls his pants
down . . . he forces me to put my mouth on his penis . . . . He’s pushing me
down, and he forces me down on my knees and forces my mouth on his
penis, and he’s moving my head back and forth [and] I am trying to push
him away. I’m trying to, like, just push him, and he tells me to stop and keeps
on forcing me . . . After that, he pulls me back up and starts to undo my
pants. And he starts kissing me on my body and he—he picks up my shirt
and my bra, and he starts kissing on my breasts. And then he pulls my
shorts down—undoes my shorts and pulls them down and sticks his penis
in my vagina.
V.R. stated she was in shock, paralyzed, and her body was clenched up. Falcon
performed oral sex on her. V.R. testified that she tried to scream, but only air came out of
her mouth. V.R. explained that because her home was within sight, her goal was to fight
Falcon to get home. V.R. testified that she pushed him, he fell back, she broke away from
him, and she ran home. According to V.R., she immediately ran to the restroom, grabbed
toothpaste, and began cleaning her mouth while she was crying. She told her parents
what happened, and they called police.
1 To protect the identity of children, we refer to them by aliases. See TEX. R. APP. P. 9.8(b) cmt.
(“This rule does not limit an appellate court’s authority to disguise parties’ identities in appropriate
circumstances in other cases.”).
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City of Gonzalez Police Officer Gabriel Trevino testified that he and Sergeant
Dewey Sumner were dispatched to V.R.’s home regarding a possible sexual assault. Both
officers stated that when they arrived, V.R. was crying hysterically, shaking, could not
speak, and seemed traumatized. According to the officers, she was able to mutter
something about what took place behind a red and white house and gave a general
direction of the location. V.R. described her assailant to the officers as a male subject, no
shirt, red shorts, a little chubby with the word “Falcon” tattooed across his stomach.
Sergeant Dewey testified that the officers approached the red and white house,
which was catty-corner to V.R.’s residence and made contact with Falcon who was in his
garage playing video games with his two children. He was wearing red basketball shorts,
was not wearing a shirt, and had the word “Falcon” tattooed across his stomach. Both
officers stated that Falcon began sweating profusely and was covered in perspiration,
which stood out to them. After questioning Falcon, the officers arrested him.
Sergeant Sumner stated that at the jail, he noticed that Falcon had fresh scratches
to his lower back. Sergeant Sumner testified that he returned to the crime scene and
noticed a “very dark concealed-type area,” behind the red and white house. Sergeant
Sumner observed a two-foot-long drag mark consistent with V.R.’s statement that she
was dragged into the area and assaulted.
City of Gonzalez Investigator Jason Montoya testified that on August 10, 2016, he
took daytime photos of the crime scene, which appeared to be a secluded and isolated
field behind the red and white abandoned home. Investigator Montoya said the field was
“quite a distance from the street.” Investigator Montoya observed fresh drag marks, and
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photos of the marks were admitted in evidence. When Investigator Montoya later
interviewed Falcon, Falcon denied interacting with V.R. and denied that he saw V.R.
walking down the street. Falcon provided a buccal swab for DNA analysis. It was
compared to a sample of DNA taken from V.R.’s left breast, and forensic testing revealed
a match.
Gretchen Simmons, a sexual assault nurse examiner, performed a sexual assault
examination on V.R. When Simmons examined V.R.’s sexual organ, she observed that
V.R. had an acute abrasion and a small linear tear to her posterior fourchette. Simmons
explained this was a common area for an injury to occur during a sexual assault. Simmons
also observed “red inflamed tissue at the top of the labia minora on the right side, and
[an] abrasion with a small tissue separation.” According to Simmons, the injuries she
observed were consistent with someone “cl[e]nching while someone was trying to force
their penis into that area.”
Falcon testified that he was outside bathing the dog when he noticed V.R. walk by
on three separate occasions. He stated that V.R. was trying to get his attention, and as
she walked by him, “she had given [him] the nod.” Falcon claims they introduced
themselves to each other and decided to meet up behind the red and white house “to get
to know each other a little better.” According to Falcon, V.R. was sitting on the back porch
of the red and white house, waiting for him, and she approached him with a kiss on the
lips. Falcon claimed that he told V.R. that if she wanted “to conversate,” she needed to
wait because he needed to cook dinner for his girlfriend and children. Falcon stated that
after he finished cooking and serving his family members, he returned to V.R., and they
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started kissing. Falcon denied holding V.R. against her will, denied sexually assaulting
her, and denied doing anything to V.R. against her will.
The jury convicted him on all three charges, and he was sentenced to forty years’
imprisonment for the aggravated kidnapping and twenty years’ imprisonment for each of
the remaining charges with the sentences to run concurrently. Falcon now appeals.
II. LEGAL SUFFICIENCY
Falcon asserts the evidence was legally insufficient to support a conviction for
aggravated kidnapping because the State failed to prove beyond a reasonable doubt that
V.R. was abducted. Specifically, Falcon argues the evidence was insufficient to show that
(1) Falcon restricted the movements of V.R. without her consent and (2) the location of
the alleged sexual acts was a place where V.R. was not likely to be found.
A. Standard of Review
When reviewing claims of legal insufficiency, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whatley v. State, 445 S.W.3d 159, 166
(Tex. Crim. App. 2014). The fact finder is the exclusive judge of the facts, the credibility
of the witnesses, and the weight to be given to the testimony and is presumed to have
resolved any conflicts in the evidence in favor of the verdict. See Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008); see also TEX. CODE CRIM. PROC. ANN. art. 36.13
(explaining that “the jury is the exclusive judge of the facts”); Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007) (giving deference to the fact finder “to fairly resolve conflicts
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in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts”). We assume that the trier of fact resolved conflicts in the testimony,
weighed the evidence, and drew reasonable inferences in a manner that supports the
verdict. Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009).
“Circumstantial evidence is as probative as direct evidence in establishing guilt,
and circumstantial evidence alone can be sufficient to establish guilt.” Winfrey v. State,
393 S.W.3d 763, 771 (Tex. Crim App. 2013) (citing Hooper, 214 S.W.3d at 13). Juries are
permitted “to draw reasonable inferences as long as each inference is supported by the
evidence presented at trial.” Hooper, 214 S.W.3d at 15. “However, juries are not permitted
to come to conclusions based on mere speculation or factually unsupported inferences
or presumptions.” Id. at 15–16. We may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the fact finder, and we consider only
whether the fact finder reached a rational decision. Arroyo v. State, 559 S.W.3d 484, 487
(Tex. Crim. App. 2018). We must “determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.” Murray v. State, 457 S.W.3d 446, 448
(Tex. Crim. App. 2015) (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007)).
Sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608 (Tex.
Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
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“Such a charge would be one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Malik, 953 S.W.2d at 240. In this case, a hypothetically
correct charge consistent with the indictment would instruct the jury to find Falcon guilty
if on or about August 7, 2010, with the intent to violate or abuse V.R., sexually,
intentionally or knowingly abducted V.R. by restricting her movements without her
consent, so as to interfere substantially with her liberty, by moving her from one place to
another, with intent to prevent her liberation, by secreting or holding her in a place where
she was not likely to be found. See TEX. PENAL CODE ANN. §§ 20.01, 20.04.
B. Applicable Law
A person commits the offense of aggravated kidnapping “if he intentionally or
knowingly abducts another person with intent to . . . violate or abuse that person sexually.”
Id. § 20.04. For the purposes of kidnapping, “abduct” means “to restrain a person with
intent to prevent [her] liberation by . . . secreting or holding [her] in a place where [she] is
not likely to be found.” Id. § 20.01(2)(A). Consequently, “abduct” includes two elements:
(1) the restraint of another, which is the actus reus of kidnapping, and (2) the specific
intent to prevent liberation, which is the mens rea requirement. Laster, 275 S.W.3d at 521
(citing Brimage v. State, 918 S.W.2d 466, 475–76 (Tex. Crim. App. 1994)). Under the
Texas Penal Code, “restrain” means “to restrict a person’s movements without consent,
so as to interfere substantially with the person’s liberty, by moving the person from one
place to another or by confining the person.” TEX. PENAL CODE ANN. § 20.01(1). “Restraint
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is ‘without consent’ if it is accomplished by . . . force, intimidation, or deception.” Id.
§ 20.01(1)(A).
C. Discussion
1. Restraint
First, Falcon argues that because there was “zero physical evidence that
corroborates that any force was actually used against V.R.,” it was “irrational for the jury
below to find beyond a reasonable doubt that force was used as required under the
statute.” See id. However, “a conviction may be based on the testimony of a single
eyewitness.” Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005,
no pet.); Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). Here, V.R. testified
that Falcon grabbed her and “pulled her into the backyard” of the red and white house
where he proceeded to sexually assault her. She stated, “I kept saying stop,” and he
would say “No. Be quiet.” V.R. stated she kept trying to push him off, “and he tells me to
stop and keeps on forcing me.” V.R.’s testimony that force was actually used against her
did not need to be corroborated by physical evidence. See Aguilar, 468 S.W.2d at 77.
Nonetheless, Sergeant Dewey and Officer Montoya testified that they noticed drag marks
at the scene consistent with V.R.’s testimony that she was dragged against her will, and
photos of these marks were admitted into evidence. Sergeant Dewey also testified that
he noticed fresh scratch marks to Falcon’s lower back, which corroborates V.R.’s
testimony that she fought Falcon to escape his use of force against her.
We presume that the jury weighed the evidence and resolved any inconsistencies
in favor of the verdict. See Merritt, 368 S.W.3d at 525–26; Santellan v. State, 939 S.W.2d
8
155, 162 (Tex. Crim. App. 1997) (“[A] kidnapping becomes a completed offense when (1)
a restraint is accomplished, and (2) there is evidence that the actor had the specific intent
to prevent liberation by secretion or the use or threatened use of deadly force.”).
Therefore, the evidence is sufficient to establish beyond a reasonable doubt that Falcon
restrained V.R. with intent to prevent her liberation by forcefully dragging her behind the
red and white house against her will. See TEX. PENAL CODE ANN. § 20.01(1)(A).
2. Intent to Prevent Liberation
Next, Falcon asserts that the State failed to prove beyond a reasonable doubt that
the location of the alleged act was a place where V.R. was not likely to be found because
it was visible from a public street, and she was seconds away from her home. However,
the Texas Court of Criminal Appeals has rejected this argument. The State is not required
to prove that Falcon actually secreted or held V.R. “in a place where [s]he is not likely to
be found.” See id. § 20.01(2)(A); Laster, 275 S.W.3d at 521. In other words, the State
must prove that the defendant restrained another with the specific intent to prevent
liberation by secreting or holding the person in such a place. Id. at 522 (rejecting the
defendant’s argument that he grabbed the victim in front of possible eyewitnesses
therefore he did not intend to take her because the “State did not have to prove that he
actually accomplished his purpose or even that he could have accomplished his purpose
. . . only that he had such a purpose.”). “[I]f the actor intended at any time during the
restraint to secret or hold the victim in a place where [s]he is not likely to be found, the
offense is complete.” Price v. State, 35 S.W.3d 136, 140 (Tex. App.—Waco 2000, pet.
ref’d) (rejecting the defendant’s argument that the evidence must show that the motel
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room where the victim was held was objectively a place where she was unlikely to be
found); see also Santellan, 939 S.W.2d at 162.
V.R. stated that Falcon grabbed her and moved her from the public sidewalk to an
area behind an abandoned home. Falcon testified that he and V.R. “agreed to meet”
behind the red and white house because he was wary that his girlfriend would see them.
Viewed in the light most favorable to the verdict, this testimony supported an inference
that Falcon intended to secrete V.R. in a place where she was unlikely to be found. See
TEX. PENAL CODE ANN. § 20.01; Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App.
2014).The officers also testified that this area was “quite a distance from the street” and
appeared isolated and secluded. Sergeant Dewey further stated he was unable to see
within the area without his flashlight. The jury could reasonably infer from the testimony
that Falcon intended to isolate her from the public street behind the red and white house
to sexually assault her. See Megas v. State, 68 S.W.3d 234, 241 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d); Price, 35 S.W.3d at 140. Moreover, “that the abduction took
place in public does not preclude a jury from concluding [Falcon] intended to secrete or
hold [V.R.] in [a] place where she was not likely to be found.” See Laster, 275 S.W.3d at
523. Similarly, the fact that V.R. was seconds away from her home or that the location
may have been visible from a public street, as Falcon suggests, has no bearing on
Falcon’s intent. See id. at 521 (“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.”).
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3. Summary
The evidence that Falcon grabbed V.R. and pulled her to an isolated area by force
supports the jury’s verdict that Falcon restrained V.R. and intended to hold or secrete
V.R. in a place where she was unlikely to be found. See id. at 523 (“As long as the verdict
is supported by a reasonable inference, it is within the province of the factfinder to choose
which inference is most reasonable.”). Thus, after viewing the evidence in the light most
favorable to the verdict, we conclude that a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at
319; Whatley, 445 S.W.3d at 166; see also TEX. PENAL CODE ANN. § 20.04. Affording
appropriate deference to the jury’s verdict, we therefore hold that the evidence supporting
Falcon’s conviction is legally sufficient. See Laster, 275 S.W.3d at 524. We overrule his
sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of April, 2021.
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