Alberto Verastegui v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00401-CR
Alberto VERASTEGUI,
Appellant
v.
The STATE of Texas,
Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 14,031CR
Honorable Robert Cadena, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Rebeca C. Martinez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: July 24, 2019
AFFIRMED
A jury convicted appellant Alberto Verastegui of aggravated kidnapping, aggravated
assault by threat, and aggravated assault. On appeal, Verastegui contends: (1) the evidence is
legally insufficient to support his conviction for aggravated kidnapping; (2) his punishment for
aggravated assault by threat is barred by double jeopardy; and (3) the trial court erred in refusing
his request for a jury instruction on defense of a third party. We affirm the trial court’s judgment.
04-18-00401-CR
BACKGROUND
At trial, motel manager David Longo testified he approached Veronica Enriquez and
Verastegui, who were staying at the motel, after an employee complained about Verastegui. Longo
testified that when he confronted the couple, he believed they were under the influence of
narcotics, and called police. When police arrived, Enriquez refused to grant them access to the
room. Longo then asked the couple to leave the property, and they left in a truck. Longo stated
he did not see them again until later that afternoon when an employee brought Enriquez to his
office.
Longo testified that when he saw Enriquez in his office, she made a comment about his
ten-year-old son. She then asked Longo to follow her outside his office so they could talk. They
sat in a truck outside one of the motel rooms. Longo stated he sat on the passenger’s side, and
Enriquez sat in the middle of the bench seat. Almost immediately, Verastegui came out of one of
the motel rooms and got in the truck. Enriquez then closed the passenger door. Longo testified
that as Verastegui drove away from the motel, Enriquez restricted his movements, attempting to
keep him in the truck. Longo said he felt threatened and tried to get out of the truck several times,
but when he unlocked the door, Enriquez pushed the lock down. Longo testified he never wanted
to leave the motel with Verastegui and Enriquez — people he did not know. When asked whether
he willingly left with the couple because he was engaged in drug activity, Longo said no.
Longo stated that as they drove, he saw a gun in Enriquez’s lap. He testified he reached
for the gun, but Verastegui tried to grab his hand. Longo explained he threw the gun out the
window, adding that during the struggle, the truck veered off the road, stopping near a fence line.
Longo said he opened the door and fell out of the truck. Enriquez then grabbed him and held him
down. Verastegui retrieved a beer bottle from the back of the truck, hit him on the side of the head
with it, and choked him while Enriquez held him down. Longo testified he got free and ran to the
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road for help, but no one stopped. He said Verastegui and Enriquez drove away, but when they
noticed no one stopping to help him, they turned around and told him to get in the truck. He
testified he refused until Enriquez said they would take his son. He stated that when they returned
to the motel, Verastegui held a pocket knife and told him not to do anything. Longo said he ran
into one of the motel rooms for help. As he did, he heard someone say, “Let’s go to the lobby and
get your son.” However, when they saw a motel guest, they left.
The jury also heard testimony from motel employees and residents as well as police
officers, who confirmed portions of Longo’s testimony. Specifically, Detective Julian Ramos
testified the scene on the highway indicated a vehicle had veered off the roadway and then veered
back onto the roadway and across it. Detective Ramos also testified a gun found near the motel
showed marks suggesting it had been thrown from a vehicle. The detective described the round in
the chamber as live ammunition capable of being fired.
The jury found Verastegui guilty on all counts. The trial court sentenced him to forty-five
years’ confinement on each count. Verastegui appealed.
ANALYSIS
Legal Sufficiency
Verastegui first contends the evidence is legally insufficient to show he secreted or held
Longo in a place where he was not likely to be found. Verastegui contends that because he and
Enriquez (1) returned Longo to the motel, (2) did not leave him in a field, lock him in a trunk, or
move him from place to place, and (3) were at all times on a public highway, they never held
Longo in a place he was unlikely to be found. We disagree.
Standard of Review
In conducting a legal sufficiency review, we examine all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found all the
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essential elements of the offense beyond a reasonable doubt. Cary v. State, 507 S.W.3d 761, 766
(Tex. Crim. App. 2016). Under this standard, we defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be
given their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume
the jury resolved any apparent inconsistencies in testimony in order to render its verdict, and we
defer to its resolution. Cary, 507 S.W.3d at 757. The jury can choose to believe some, all, or none
of the testimony provided by any witness, and give different weight to different testimony if it so
chooses. Baez v. State, 486 S.W.3d 592, 594 (Tex. App.—San Antonio 2016, pet. ref’d).
Applicable Law
Here, Verastegui was charged las a primary actor and as a party to the offense. “Whether
a person is charged as a primary actor or as a party to the offense, the underlying offense of
aggravated kidnapping remains the same.” Hinojosa v. State, 433 S.W.3d 742,752 (Tex. App.—
San Antonio 2014, pet ref’d).
A person commits the offense of kidnapping if he intentionally or knowingly abducts
another person. TEX. PENAL CODE ANN. § 20.03(a). “Abduct” means to restrain a person with the
intent to prevent his liberation by, among other things, secreting or holding him in a place where
he is not likely to be found. Id. § 20.01(2)(A). Secreting or holding another where he is unlikely
to be found is part of the mens rea requirement of kidnapping, not the actus reus. Laster v. State,
275 S.W.3d 512, 521 (Tex. Crim. App. 2009). The State is not required to prove a defendant
actually secreted or held the victim, only that the defendant restrained the victim with the intent to
prevent liberation. Id. The offense is legally completed when the defendant, at any time during
the restraint, forms the intent to prevent liberation by holding or secreting the victim in a place
where he is unlikely to be found. Id. The defendant’s intent can be inferred from his conduct,
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remarks, and surrounding circumstances. West v. State, 406 S.W.3d 748, 759 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d).
To convict Verastegui under the law of parties, the jury had to determine that Verastegui
was criminally responsible for the acts of another. TEX. PENAL CODE ANN. § 7.01(a). A person is
criminally responsible for an offense committed by another if “acting with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense. Id. at § 7.02(a)(2).
Application
Here, the evidence supports the jury’s conclusion that Verastegui intended to take Longo
to a place he was unlikely to be found. The evidence shows Enriquez and Verastegui, total
strangers to Longo, drove Longo away from the motel. Longo testified he did not want to leave
the motel with Verastegui and Enriquez. He stated he attempted to escape, but as Verastegui drove,
Enriquez prevented him from exiting the vehicle, pushing down the door locks and displaying a
gun. See Laster, 275 S.W.3d at 521.
The evidence also shows that as Verastegui drove away from the motel, Longo attempted
to wrestle a gun away from Enriquez, and Verastegui tried to prevent it. When the truck veered
off the roadway and Longo tried to get away, Verastegui helped Enriquez restrain Longo by
striking Longo in the head with a beer bottle and choking him. And although Verastegui and
Enriquez fled when Longo broke away from them, they returned, forcing Longo back into the truck
by threatening to take his son. See id.
It is irrelevant that Longo initially voluntarily joined Enriquez in the truck, see Megas v.
State, 68 S.W.3d 234, 241 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding victim
voluntarily joining defendant does not preclude conviction of kidnapping), and that he agreed to
get back into the truck. See Clark v. State, 24 S.W.3d 473, 476 (Tex. App.—Texarkana 2000, no
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pet.) (holding cooperation by kidnapping victim does not defeat finding that victim was
kidnapped). Additionally, the decision to return Longo to the motel does not absolve Verastegui
of the kidnapping charge. Rather, releasing the victim in a safe place — if proved by the defendant
by a preponderance of the evidence — merely reduces the kidnapping offense from a first to a
second degree felony. See TEX. PENAL CODE ANN. § 20.04(d).
Viewing the evidence in the light most favorable to the jury’s verdict, the jury could have
reasonably inferred, beyond a reasonable doubt, Verastegui intended to prevent Longo’s liberation
— as the actor or as a party — by secreting or holding him in a place he was unlikely to be found
or assisting or otherwise aiding Enriquez in doing so. See id. § 20.01(2)(A); West, 406 S.W.3d at
759–60 (holding fact that abduction took place as appellant was driving down roadway and public
beach with cars passing by did not negate appellant’s intent to take victim to place she was not
likely to be found).
Double Jeopardy
Verastegui also contends his double jeopardy rights were violated because the judgment
imposed multiple punishments upon him for the same offense — aggravated kidnapping and
aggravated assault by threat. The State argues Verastegui failed to raise this complaint in the trial
court, or alternatively, that his convictions of aggravated kidnapping and aggravated assault by
threat did not violate double jeopardy.
Applicable Law
As a general rule, a party must preserve a complaint for appellate review by making a
timely and specific objection, motion, or request in the trial court. TEX. R. APP. P. 33.1. A
defendant may raise a double jeopardy claim for the first time on appeal when: “(1) the undisputed
facts show the double-jeopardy violation is clearly apparent from the face of the record, and (2)
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enforcement of the usual rules of procedural default serves no legitimate state interest.” Garfias
v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).
A multiple punishments double jeopardy violation occurs when the same conduct is
punished under a greater and a lesser-included offense or under two distinct statutes when the
Legislature intended the conduct to be punished only once. Id. When, as here, the offenses in
question are in different statutory sections, we determine legislative intent by analyzing the
elements of the offenses in question. Id.
The starting point of an “elements” analysis is the Blockburger test, which asks whether
each of the offenses requires proof of an element that the other does not. Id.; see Blockburger v.
United States, 284 U.S. 299, 304 (1932). In making this determination, we focus on the elements
alleged in the charging instrument, not on the statutory definitions of the offenses. Garfias, 424
S.W.3d at 58–59.
A double jeopardy violation also occurs where two punishments are imposed for a single
course of conduct if the Legislature intended to authorize only one. Id. To facilitate this analysis,
we use the non-exclusive Ervin factors:
• Are the offenses in the same statutory section?
• Are the offenses phrased in the alternative?
• Are the offenses similarly named?
• Do the offenses have common punishment ranges?
• Do the offenses have a common focus?
• Does the common focus, if any, tend to indicate a single instance of conduct?
• Can the elements that differ between the two offenses be considered the same
under an imputed theory of liability that would result in the offenses being
considered the same under Blockburger?
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• Is there legislative history containing an articulation of an intent to treat the
offenses as the same or different for double jeopardy purposes.
Id. at 59, 61 (citing Ex parte Ervin, 991 S.W.3d 804, 814 (Tex. Crim. App. 1999)). Another factor
often considered is the allowable unit of prosecution for the offenses in question. Id. at 59. The
“focus” or “gravamen” of a penal provision should be regarded as the best indicator of legislative
intent when determining whether a multiple-punishments violation has occurred. Id.
Application
1. Blockburger Analysis
Beginning with the Blockburger test, the indictment charged Verastegui with aggravated
kidnapping as follows:
On or about the 22nd day of JULY 2016 and before the presentment of this
indictment, in said county and state, ALBERTO VERASTEGUI, defendant did
then and there intentionally and knowingly abduct another person, to wit David
Longo by restricting the movements of David Longo without his consent so as to
interfere substantially with his liberty, by moving him from one place to another,
with the intent to prevent his liberation, by secreting or holding him in a place where
he was not likely to be found, and the defendant did then and there use or exhibit a
deadly weapon, to wit a handgun, during the commission of the offense.
See TEX. PENAL CODE § 20.04(b). The indictment for aggravated assault by threat alleged:
On or about the 22nd day of JULY 2016 and before the presentment of this
indictment, in said county and state, ALBERTO VERASTEGUI, defendant did
then and there intentionally and knowingly threaten David Longo with imminent
bodily injury by holding a gun and the defendant did then and there use or exhibit
a deadly weapon, to wit a gun, during the commission of said assault[.]
See id. §§ 22.01(a)(2), 22.02(a)(2).
The aggravated kidnapping charge as set out in the indictment required the State to prove
Verastegui abducted Longo by restricting his movements, moving him from one place to another,
and by secreting or holding him. To prove aggravated assault by threat, however, the State had to
prove Verastegui threatened the victim with imminent bodily injury. A comparison of the offenses
charged in the indictment establishes the same facts are not required to prove both offenses; each
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contains an element the other does not. See Garfias, 424 S.W.3d at 58–59. Accordingly, we hold
there is no double jeopardy violation apparent on the face of the record pursuant to the Blockburger
test.
Relying on Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006), Verastegui contends
aggravated assault by threat is a lesser-included offense of aggravated kidnapping because the
same facts were required to establish both offenses. Girdy, however, is distinguishable because of
how the State charged the offenses. In Girdy, the indictment alleged the defendant committed
aggravated kidnapping when he abducted the victim “by using and threatening to use deadly force
on the said [victim], and with intent to inflict bodily injury on her[.]” Id. at 316. The indictment
further alleged the defendant committed aggravated assault by “threaten[ing] [the victim] with
imminent bodily injury and did then and there use a deadly weapon . . . .” Id. The court held
aggravated assault was a lesser-included offense of aggravated kidnapping because as charged,
aggravated assault was “established by proof of the same or less than all the facts required to
establish the commission of” aggravated kidnapping. Id. at 319 (emphasis added). Here, however,
aggravated kidnapping was based on the allegation that Verastegui abducted Longo by restricting
his movements, moving him from one place to another, and by secreting or holding him—not by
threat of imminent bodily injury, conduct required to prove aggravated assault by threat.
Accordingly, Girdy does not compel us to find a double jeopardy violation under Blockburger in
this case.
2. Legislative Intent
Turning to the Ervin factors, we must also determine whether the offenses at issue share a
common focus or gravamen. See Garfias, 424 S.W.3d at 59. The gravamen of kidnapping is the
act of abduction. Schweinle v. State, 915 S.W.2d 17, 19 n.2 (Tex. Crim. App. 1996). Kidnapping
is a result-oriented offense because the ultimate focus is the abduction of the victim, not how the
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defendant restrains or interferes with the victim’s liberty. 1 Gonzales, 270 S.W.3d at 288. The
offense is legally completed when at any time during the restraint, the defendant forms the intent
to prevent the victim’s liberation by secreting or holding the victim in a place he is unlikely to be
found. Laster, 275 S.W.3d at 521. On the other hand, the gravamen of aggravated assault by
threat is the conduct itself, not the result, and therefore it is a nature-of-conduct crime as opposed
to a result-oriented crime. Garfias, 424 S.W.3d at 60. There is an obvious distinction between the
gravamen of each offense — the aggravated kidnapping charge and conviction focused on the
abduction, i.e., the actual harm inflicted, while the aggravated assault by threat charge and
conviction focused on Verastegui’s threatening conduct. Cf. Garfias, 424 S.W.3d at 60.
Accordingly, the gravamina of the two offenses indicates the Legislature intended to allow
separate punishments for aggravated kidnapping and aggravated assault by threat. See id.
The other Ervin factors also support this conclusion. First, aggravated kidnapping and
aggravated assault by threat are not contained in the same statutory section. Compare TEX. PENAL
CODE § 20.04(b) (Chapter 20, Penal Code, Kidnapping, Unlawful Restraint, and Smuggling of
Persons), with id. §§ 22.01(a)(2), 22.02(a)(2) (Chapter 22, Penal Code, Assaultive Offenses).
Second, the offenses are neither phrased in the alternative nor similarly named. Compare TEX.
PENAL CODE § 20.04(b), with id. §§ 22.01(a)(2), 22.02(a)(2). And third, although the trial court
sentenced Verastegui to forty-five years’ confinement for each offense, the offenses do not have
identical punishment ranges — aggravated kidnapping in this case is a first degree felony, which
carries a punishment range of confinement “for life or for any term of not more than 99 years or
less than five years” and a fine not to exceed $10,000.00, but aggravated assault by threat is a
1
By extension, aggravated kidnapping is also a result-oriented offense. Gonzales v. State, 270 S.W.2d 282, 288 (Tex.
App.—Amarillo 2008, pet. ref’d). Kidnapping, as applicable here, became an aggravated offense by use or exhibition
of a deadly weapon during the commission of the offense. See TEX. PENAL CODE ANN. § 22.04(b).
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second degree felony, which carries a punishment range of confinement “for any term of not more
than 20 years or less than 2 years” and a fine not to exceed $10,000.00. Compare TEX. PENAL
CODE ANN. § 12.32, with id. § 12.33. Finally, when as here, the Legislature has not provided an
express statement defining the allowable unit of prosecution, the gravamen of the offense best
describes the allowable unit of prosecution. See Garfias, 424 S.W.3d at 61. As discussed above,
the gravamina of Verastegui’s convictions for aggravated kidnapping and aggravated assault
differ. Therefore, the allowable units of prosecution are not the same. See id.
Conclusion
Having reviewed the Blockburger test and the Ervin factors, we hold the undisputed facts
do not show the double jeopardy violation is clearly apparent on the face of the record.
Accordingly, Verastegui’s double jeopardy complaint is overruled.
Instruction on Defense of a Third Person
Finally, Verastegui argues the trial court erred by denying his request for a jury instruction
on defense of a third person. Verastegui contends there was evidence to show he reasonably
believed striking Longo with a beer bottle was immediately necessary to protect Enriquez.
Standard of Review
In reviewing claims of charge error, we first ask whether there was error in the charge.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). The decision to exclude a defensive
issue from the charge is reviewed for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103,
122 (Tex. Crim. App. 2000). When reviewing a trial court’s decision to refuse a requested
defensive instruction, we view the evidence in the light most favorable to the defendant’s requested
submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
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Applicable Law
Generally, a trial court must instruct the jury, when properly requested, on statutory
defenses, affirmative defenses, and justifications raised by the evidence. Walters v. State, 247
S.W.3d 204, 208–09 (Tex. Crim. App. 2007). However, even if the evidence viewed in the proper
light raises a “prima-facie defense, no error is shown in the denial of a defensive instruction if the
evidence establishes as a matter of law that the defendant is not entitled to rely on this defense.”
Davis v. State, 276 S.W.3d 491, 499 (Tex. App.—Waco 2008, pet. ref’d ) (quoting Johnson v.
State, 157 S.W.3d 48, 50 (Tex. App.—Waco 2004, no pet.)); see Dyson v. State, 672 S.W.2d 460,
463 (Tex. Crim. App. 1984).
Section 9.33 of the Texas Penal Code provides that a person is justified in using force
against another to protect a third person if he would be be justified under Section 9.31 and he
reasonably believes his intervention is immediately necessary to protect the third person. TEX.
PENAL CODE ANN. § 9.33. Under Section 9.31, a person is justified in using force against another
when and to the degree he reasonably believes the force is immediately necessary to protect
himself. Id. § 9.31(a). However, the use of force against another is not justified if a person
provokes the other’s use of force unless the person abandons the encounter and the other person
continues to use force. Id. § 9.31(b)(4).
Application
Contrary to Verastegui’s argument, the evidence shows Verastegui assisted rather than
protected Enriquez when he struck Longo on the head with a beer bottle. Longo testified that
during the struggle, he tried to resist the force Enriquez was exerting and escape. He further
testified that during this struggle, Verastegui held him down and helped Enriquez by striking him
on the head with a beer bottle. To the extent Verastegui argues his use of force was justified
because he abandoned his encounter with Longo, the evidence shows Longo did not continue to
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use force against Enriquez or Verastegui when he tried to escape. See TEX. PENAL CODE
§ 9.31(b)(4); Davis, 276 S.W.3d at 499. Despite that fact, Verastegui continued. Accordingly,
Verastegui was not entitled to rely on defense of a third person as a matter of law. See Davis, 276
S.W.3d at 499. The trial court did not err in denying his request for the instruction. See id.
CONCLUSION
We hold: (1) the evidence is sufficient to support Verastegui’s conviction for aggravated
kidnapping; (2) no double jeopardy violation is clearly apparent from the face of the record; and
(3) Verastegui was not entitled to rely upon defense of a third person. We therefore overrule his
issues and affirm the trial court’s judgment.
Beth Watkins, Justice
Do Not Publish
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