David Shane West v. State , 406 S.W.3d 748 ( 2013 )

Affirmed and Opinion filed July 2, 2013.
In the
Fourteenth Court of Appeals
NO. 14-12-00441-CR
DAVID SHANE WEST, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405TH District Court
Galveston County, Texas
Trial Court Cause No. 10CR2876
OPINION
Appellant David Shane West was convicted of aggravated kidnapping.
Appellant attacks his conviction and sentence in five issues on appeal, arguing: (1)
the evidence is legally insufficient to support his conviction; (2) the evidence is
factually insufficient to support his conviction; (3) the trial court erred by refusing
to instruct the jury on the defense of “safe place” release during appellant’s
punishment phase; (4) the trial court erred in permitting the interpreter to translate
for the complainant without first complying with article 38.30 of the Texas Code
of Criminal Procedure and rule 604 of the Texas Rules of Evidence, thus violating
appellant’s confrontation clause rights; and (5) the trial court erred in overruling
appellant’s hearsay and confrontation clause objections to the admission of a 911
recording. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with the felony offense of aggravated kidnapping
with intent to violate or sexually abuse the complainant K.R., alleged to have been
committed on or about September 18, 2010.
At trial, K.R. testified that on the night of September 17, 2010, she had gone
out to a night club in Galveston with her sister, her sister’s boyfriend, and a friend
of K.R. They left the club at 2:00 a.m. in K.R.’s vehicle,1 went to “buy food,” and
drove to K.R.’s sister’s friend’s apartment on 72nd Street. K.R. did not want to
stay at the apartment, but her sister refused to return K.R.’s keys to her, and so
K.R. left on foot, walking toward 61st Street. K.R. was barefoot because her shoes
were in her locked vehicle. K.R. walked to a gas station, where she used a pay
phone to call her boyfriend to pick her up. K.R.’s boyfriend did not answer. At
that point, an “old man in a truck” offered K.R. a ride and drove her to her house
on 45th Street. But the door was locked, K.R.’s sister had the keys, and no one
was home. K.R. left again on foot to try to obtain some change at a store down
45th Street in order to make another phone call, but the store was closed.
K.R. was set to “return home” when appellant showed up in his car and
asked her whether she was okay. According to K.R., she did not know appellant,
did not take any money from him, did not want to get into his car, and did not want
1
K.R.’s sister’s boyfriend drove the group from the club to K.R.’s sister’s friend’s
apartment.
2
to have sex with him. After K.R. told appellant that “everything was okay,”
appellant “hugged” or “grabbed” K.R., put her in his car, and started driving
toward 4th Street. Appellant drove down the Seawall, running several red lights.
Eventually, appellant stopped at a red light. At that time, K.R. opened the car door
and attempted to get out, but appellant “grabbed” her by her shorts. As a result,
K.R. fell, injuring her shoulder and foot. K.R. stood back up and ran to another
car, also waiting at the red light. K.R. asked the occupants of that other car “for
help,” but they did not help her. Appellant pursued K.R. on foot, grabbed her
again, and put her back in his car. K.R. did not want to get back in appellant’s car.
At this point, the driver inside the car that K.R. had run to called 9-1-1.
Appellant continued driving “to the beach,” and K.R. tried to shift the car’s gear
into park in an attempt to stop the car. Appellant “got mad and told [K.R.] not to
do that,” and continued driving “to the beach.” When they arrived at the beach,
appellant exited the car and opened K.R.’s car door. K.R. did not know exactly
where they were, but it was a “very dark” part of the beach. K.R. exited
appellant’s car. Appellant then ordered K.R. to remove her clothes. K.R. refused,
and appellant removed her clothes, including her panties. Appellant then told K.R.
to “lay on the ground”; appellant then lowered his pants, restrained K.R.’s wrists,
“started touching [her] and started having sex with [her],” and ultimately put his
penis in her vagina. K.R. was crying. Appellant did not wear a condom and did
not ejaculate inside K.R. According to K.R., appellant stopped because “[c]ars
were passing by.” Appellant stood, pulled up his pants, and ordered K.R. to get
dressed. After K.R. got up from the ground and redressed, appellant “grabbed
[her] by [her] hand,” took her toward the water, and threatened to drown her “so
[she] wouldn’t say anything.” Appellant let go of K.R. when “[a] car passed by.”
K.R. stayed by the water; appellant left and then returned, told K.R. that his car
3
was stuck, “grabbed” K.R.’s hand, put her in the car, and told her to step on the
accelerator while he pushed. According to K.R., she did not get back in
appellant’s car voluntarily. A white SUV passed by, and appellant asked the
occupants for help. K.R. exited the car and attempted to ask them for help, but she
did not know how to tell them “what was happening.” The occupants of the SUV
did not help K.R. but tried unsuccessfully to “get the car out.” Then the SUV
drove away, and K.R. returned to appellant’s car. Appellant continued trying to
free his car. Then appellant and K.R. saw a white light approaching—appellant
told K.R. that it was the police and admonished her not to say anything, except that
they were friends. When police arrived, K.R. exited appellant’s car and ran to the
police. As she ran to them, K.R. thought “[t]hat [she] was going to be okay.”
Officers Weems and Chambers of the Galveston Police Department were
just finishing up an unrelated patrol call in the Strand district when they heard the
radio dispatcher put out a “female-in-distress” call that came in from the Seawall.
The officers were the closest in proximity, so they responded to the call. While
checking the area on foot, the officers noticed brake lights in the distance on the
dark beach. They returned to their vehicle, drove closer, and observed a white
SUV leaving. They also saw another vehicle that was flashing its headlights so
they headed toward it. The officers stopped near a vehicle that was “[h]igh-
centered on the culvert,” and “[o]ut of the darkness came a female . . . screaming
and crying, running straight at” Weems. The female—K.R.—“latched” onto the
officers. K.R. was “so scared,” “terrified,” “obviously frantic,” and “distraught.”
K.R. told the officers, “thank you,” asked the officers for “help” and “ayuda,” and
stated, “Get me away from him.” Appellant approached Weems and was detained.
Despite the language barrier,2 K.R. was able to communicate to police that
2
K.R.’s primary language is Spanish, although she understands and speaks some English.
4
appellant had taken K.R. against her will, forced K.R. to go down to the beach, and
sexually assaulted her. Police located a pair of torn panties at the scene; K.R.
identified them as hers. A crime scene investigator identified K.R.’s thumbprint on
the gear shifter of appellant’s car. An EMS paramedic dispatched to the scene
treated K.R. for an abraded left ankle. K.R. reported to the paramedic that K.R.
was walking when she “got pulled into [appellant’s] car, taken out to the east end”
and was “forcibly attacked” and sexually assaulted.
A Sexual Assault Nurse Examiner (SANE) examined K.R. at the hospital.
The SANE noted various abrasions, including on K.R.’s left arm and left ankle.
K.R. reported to the SANE that appellant grabbed her, drove her to beach, grabbed
and pushed her, “abused” and “took advantage of” her by penetrating her vagina
with his penis. The SANE interpreted what K.R. described as a sexual assault. To
a “reasonable degree of scientific certainty,” forensic DNA evidence showed
appellant as the source of sperm from the vaginal swab taken from K.R. during the
SANE exam. K.R. also reported to the SANE consistent details about how
appellant tried to “take [her] to sea”; appellant ordered K.R. to help him free his
car after it got “stuck”; the occupants of another vehicle refused to help K.R. and
could not free appellant’s car; appellant told K.R. not to say anything when they
saw a police vehicle approaching; and K.R. exited appellant’s car and ran to the
police.
Police transported appellant to the station. After informing appellant of his
Miranda rights and obtaining appellant’s written waiver, Chambers interviewed
appellant. According to appellant’s videotaped statement, a girl who told him her
name was “Felicia” approached appellant and his friend “James” on the Seawall.
The girl—K.R.—asked appellant for money and initially declined appellant’s offer
of a ride. Appellant also claims K.R. made out with him on the Seawall and asked
5
him if he wanted to “f**k” her. K.R. ultimately accepted the ride, and appellant
drove them down the Seawall toward 4th Street. As they were driving, K.R.
claimed to need to “pee.” Appellant decided to take K.R. to some porta-toilets on
Stewart Beach. Along the way, K.R. started to “freak out” and grabbed the
steering wheel, so appellant became angry and screamed at her. Then K.R. jumped
out of the car. Appellant admitted grabbing K.R. but claimed he did so because
cars were coming. Appellant indicated that K.R. fell. Appellant asked the driver
of another vehicle if he would take K.R. home, but the car drove off. Appellant
could not answer why he drove to East Beach. Appellant and K.R. talked for a
while, then K.R. started to “freak out” again, so appellant let her drive and she
drove appellant’s car into the ditch. According to appellant, when they got to the
beach, K.R., not appellant, took K.R.’s clothes off. Appellant claimed that he did
not restrain K.R. They started having consensual sex, but then K.R. wanted to
stop, and appellant complied. K.R. willingly got back into appellant’s car. A truck
came by and offered to help them free appellant’s car. The truck passenger told
appellant that the police were out and asked whether they were looking for
appellant; appellant told them no. Appellant conceded K.R. may have been drunk
and he would apologize if he took advantage of her state. Appellant also said K.R.
was lying if she accused him of rape.
The jury convicted appellant of aggravated kidnapping with the intent to
commit sexual assault.
Appellant testified during his punishment phase. Appellant denied
assaulting a woman who testified during his punishment phase. Appellant denied
restraining and sexually assaulting K.R., essentially repeating the same story he
told police in his statement. Appellant further claimed for the first time that K.R.
jumped out and ran at the red light because she had taken $37 from him; appellant
6
grabbed her by the shoulders to “snatch” his money back. Appellant stated he did
not prevent K.R. from leaving and allowed her to drive his car after they had
consensual sex. Appellant claimed that K.R. proceeded to high-center his car on
the curb. Appellant stated that he did not hold back K.R. from speaking to the
occupants of the white SUV or police when they arrived, nor did he say anything
to threaten her. Appellant admitted he smoked weed and crack cocaine that night.
Appellant claimed that K.R. could have left at any time and police did not rescue
her that night.
Appellant requested a “safe place” release instruction to the punishment jury
charge, but the trial court denied his request. The jury sentenced appellant to 55
years’ confinement.
Appellant presents five issues on appeal. In his first two issues, appellant
argues that the evidence is legally and factually insufficient to support the jury’s
guilty verdict. Third, appellant contends that the trial court erred in denying his
“safe place” release instruction. Fourth, appellant argues that the trial court erred
by permitting the interpreter to translate K.R.’s testimony without first complying
on the record with the Code of Criminal Procedure and the Rules of Evidence,
which violated his confrontation rights. Finally, appellant argues that the trial
court erred by overruling his hearsay and confrontation clause objections and
admitting the 9-1-1 tape.
II. ANALYSIS
A. Legal sufficiency of the evidence
Appellant first argues the legal insufficiency of the evidence to support his
conviction for aggravated kidnapping—specifically, it would not be reasonable for
a rational jury to find that appellant abducted K.R. and that appellant intended to
7
commit sexual assault beyond a reasonable doubt.
1. Applicable law and standard of review
Appellant was charged with committing the felony offense of aggravated
kidnapping: that he, on or about September 18, 2010, with the intent to violate or
abuse K.R. sexually, intentionally or knowingly abducted K.R. by restricting her
movements without her consent, so as to interfere substantially with her liberty, by
confining her, with the intent to prevent her liberation, by secreting or holding her
in a place where she was not likely to be found. The guilt/innocence jury charge
tracked appellant’s indictment.
One way in which a person commits aggravated kidnapping is “if he
intentionally or knowingly abducts another person with the intent to . . . violate or
abuse him sexually.” TEX. PEN. CODE ANN. § 20.04(a)(4) (West 2011). For
purposes of chapter 20, the meaning of “abduct” includes “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). “Restraint” is the actus reus requirement
of “abduction,” while the specific intent to prevent liberation is the mens rea
requirement. Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). To
“restrain” means:
to restrict a person’s movements without consent, so as to interfere
substantially with the person’s liberty, . . . by confining the person.
Restraint is “without consent” if it is accomplished by: (A) force,
intimidation, or deception[.]
Id. § 20.01(1).
In evaluating the legal sufficiency of the evidence, we must view all of the
evidence in the light most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
8
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster, 275
S.W.3d at 517. This standard applies equally to circumstantial and direct evidence.
Laster, 275 S.W.3d at 517–18. Because the factfinder views the evidence first-
hand, the factfinder is in the best position to resolve conflicts in testimony, weigh
the evidence, and draw reasonable inferences from the evidence. See Jackson, 443
U.S. at 319; Laster, 275 S.W.3d at 517 (“[U]nlike the factfinder—who can observe
facial expressions and hear voice inflections first-hand—an appellate court is
limited to the cold record.”). We presume that the factfinder resolved any conflicts
in favor of the verdict and must defer to that resolution, as long as it is rational.
Jackson, 443 U.S. at 326. “After giving proper deference to the factfinder’s role,
we will uphold the verdict unless a rational factfinder must have had reasonable
doubt as to any essential element.” Laster, 275 S.W.3d at 517.
2. The evidence is legally sufficient to show that appellant
restrained K.R.
Appellant argues that K.R.’s account “leaves in serious doubt whether
restraint of any kind, let alone ‘force,’ was used.” Appellant asserts that K.R.’s
presence in his car was, at most, only a slight interference with her freedom and
was not without her consent because the State did not refute K.R.’s “crude
overture” to appellant at the Seawall; K.R. could not describe the degree of force
appellant used; K.R.’s request for help on the beach only concerned getting
appellant’s car unstuck; and K.R. did not flee after the strangers left, but instead
returned to appellant’s car. We conclude a rational jury reasonably could have
found that appellant substantially interfered with K.R.’s liberty without her consent
by confining her to meet the restraint element of abduction.
There is not one particular way to prove restraint:
[T]here is nothing in the Texas statute that even suggests that it is
9
necessary for the State to prove that a defendant moved his victim a
certain distance, or that he held him a specific length of time before he
can be found guilty of kidnapping. In fact, we have consistently held
that under the kidnapping statute, there is no specific time requirement
for determining whether a restraint has taken place.
Hines v. State, 75 S.W.3d 444, 447-48 (Tex. Crim. App. 2002) (footnote omitted).
Nor is there one particular way to prove confinement. See Holmes v. State, 873
S.W.2d 123, 126 (Tex. App.—Fort Worth 1994, no pet.) (explaining that
“[c]onfining is not defined in the Penal Code or by case law; thus, we use its
common meaning when reviewing the evidence,” which may include shutting up,
imprisoning, enclosing, detaining, relegating to certain limits, or trapping victim).
Further, although the legislature did not intend for every crime involving
interference with a victim’s liberty to qualify as a kidnapping, “it is up to the jury
to distinguish between those situations in which a substantial interference with the
victim’s liberty has taken place and those situations in which a slight interference
has taken place.” Hines, 75 S.W.3d at 448. We consider “all of the circumstances
surrounding the offense” to determine whether the State has proven restraint. Id.
Contrary to appellant’s contention, the State did introduce evidence to rebut
appellant’s version of events regarding appellant’s and K.R.’s interaction on the
Seawall prior to any “abduction.” After being asked whether she said anything to
appellant before he asked her if everything was okay, K.R. answered, “No. I don’t
remember saying anything.” According to K.R., the only thing she said to
appellant—after he asked her that question—was that she was okay. K.R. also
testified that she did not want to accept a ride from appellant or get into his car,
and that she did not want to have sex with him. Her testimony indicates that
appellant placed K.R. in his car and sped away. Once appellant stopped, K.R.
attempted to escape by jumping out and trying to alert another vehicle that she
needed “help,” but appellant continued to exercise his physical control over K.R.
10
by grabbing her and putting her back into his car. K.R. indicated that she did not
want to return to appellant’s car. K.R. again attempted to attempt escape by
grabbing the gear shifter of appellant’s car, but he stopped her and screamed at her.
Police identified K.R.’s thumbprint on the shifter. Appellant then drove K.R. to a
“very dark” and isolated area of the beach, where he ordered her to remove her
clothes and, when she refused, removed them for her. Appellant pinned K.R.
down by her wrists and penetrated her vagina with his penis. After this sexual act
stopped, appellant then grabbed K.R. by the hand and started taking her to the
water’s edge, threatening to kill her. After he let go, returned to his car, and high-
centered it, appellant again grabbed K.R.’s hand and put her back in his car,
ordering her to help him free the vehicle. K.R. again did not want to return to
appellant’s car. K.R. asked the occupants of the white SUV for “help.” After the
white SUV left, when they saw the police vehicle approaching, appellant ordered
K.R. to only say they were friends. When the police arrived, K.R. ran to them
screaming and crying, and thinking that she finally was “okay.”
Looking at all of this evidence in the light most favorable to the jury’s
verdict, we conclude a rational jury was free to find beyond a reasonable doubt that
appellant restricted K.R.’s movements, so as to substantially interfere with her
liberty, by confining her, and that this restraint was without K.R.’s consent because
appellant accomplished it using force and intimidation. See TEX. PENAL CODE
ANN. § 20.01(1). K.R. provided several, consistent details regarding the force used
by appellant, including his repeated grabbing of her by the hand and arm, his
pinning her down by her wrists during the sexual act on the beach, and his
“placing” and “seating” her in his car—to initially force her into his car, then to
force her back in after she attempted to escape, and finally to force her to help him
11
free the car.3 K.R.’s testimony thus was not uncertain about the essential facts of
the restraint.4 The evidence also shows K.R. suffered abrasions on her arm and
ankle due to appellant’s force.
Although K.R. stated that all she remembered “was crying and asking for
help” from the occupants of the white SUV, she further agreed that when she saw
the SUV approaching, she became “excited there was someone there to save
[her].” Also, K.R. testified that she did not know precisely how to communicate
“what was happening” to those she asked for help; several witnesses confirmed
that K.R. spoke “broken” English. While K.R. admitted that appellant did not
force her back into the driver’s seat after the white SUV left, at that point, K.R.
was again alone on a dark, deserted beach with appellant who, up until then, had
repeatedly forced her to perform actions against her will, had threatened to drown
her, and had thwarted her attempts to escape. See Rios v. State, 230 S.W.3d 252,
255 (Tex. App.—Waco 2007, pet. ref’d) (explaining that appellant’s actions in
threatening to kill victim and in thwarting her attempt to seek help “bound [her] to
follow his command”). And after K.R. returned to appellant’s car, he still was
exerting his control over her—commanding her not to say anything to police.
Thus, a rational factfinder reasonably could have inferred that appellant continued
his restraint of K.R. up until police arrived. See Hines, 75 S.W.3d at 448
(concluding that even where victim was in another room of bank, suspects
“continued to maintain physical control over [her]”); Rios, 230 S.W.3d at 255.
3
Appellant admitted grabbing K.R. by the shoulders after she jumped out of his car at the
stop light, and also getting angry and screaming at her after, according to appellant, K.R. grabbed
his steering wheel.
4
Thus, appellant’s reliance on Redwine v. State is misplaced because there “the witness
acknowledged in his own testimony that he had a greater-than-reasonable doubt as to the
essential facts.” See 305 S.W.3d 360, 367 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
12
3. The evidence is legally sufficient to show that appellant intended
to prevent K.R.’s liberation by secreting or holding her in a place
she was unlikely to be found.
Here, the indictment and jury charge limited the State’s theory on abduction
to “secreting or holding [K.R.] in a place where she was not likely to be found.”
Appellant argues that the State did not demonstrate “abduction” beyond a
reasonable doubt because appellant basically took K.R. “wherever she wanted to
go,” placed her in the driver’s seat, and went to a location where even at night they
encountered several passing vehicles. Appellant also argues K.R.’s behavior was
inconsistent with “abduction” because she accepted another ride earlier that night,
asked appellant for money to make a phone call, K.R.’s artificial nails were
unbroken, and K.R. could not describe or remember various details of her attack.
We conclude a rational jury reasonably could have found that appellant intended to
prevent K.R.’s liberation by secreting or holding her in a place she was unlikely to
be found.
As indicated above, secreting or holding another where she is unlikely to be
found is part of the mens rea requirement of the offense—not the actus reus.
Laster, 275 S.W.3d at 521; Kenny v. State, 292 S.W.3d 89, 95 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d) (citing Brimage v. State, 918 S.W.2d 466,
475–76 (Tex. Crim. App. 1994)). Thus, the State is not required to prove that the
defendant actually secreted or held another, but instead must prove that the
defendant restrained another with the specific intent to prevent liberation by
secreting or holding the person. Laster, 275 S.W.3d 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.” Id.; Kenny, 292 S.W.3d at 95. “Intent can be inferred
from an accused’s conduct, remarks, and the surrounding circumstances.” Kenny,
13
292 S.W.3d at 95. Intent to prevent liberation by secreting or holding can be
inferred when a victim is held in “an automobile being driven on city streets.” See,
e.g., Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim. App. 1980). “[T]hat the
abduction took place in public does not preclude a jury from concluding appellant
intended to secret[e] or hold the victim in place where she was not likely to be
found.” Megas v. State, 68 S.W.3d 234, 241 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d). Keeping a victim “isolated from anyone who might have been of
assistance meets the element of secreting or holding in a place where the victim is
not likely to be found.” Id. at 240 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref'd); see also Cortez v. State, 738 S.W.2d 372, 374 (Tex. App.—Corpus Christi
1987, no pet.) (“[T]hreats not to “say anything” were simply the manner in which
the appellant created an environment in which the complainant was not likely to be
“found”; she was effectively, if not physically, ‘isolated’ by force of threats from
anyone who could have been of assistance.”). And there is no requirement that the
defendant intend to secrete or hold the victim for any minimum length of time. See
Sanders, 605 S.W.2d at 614.
Therefore, we must determine whether the evidence is legally sufficient to
prove that appellant intended to take K.R. to a place she was unlikely to be found,
not that he actually accomplished his purpose. See King v. State, 961 S.W.2d 691,
694 (Tex. App.—Austin 1998, pet. ref’d). The evidence here supports that
conclusion. Appellant, a total stranger to K.R., physically grabbed and took her
from outside a store near the Seawall and began speeding down the street with her
in his car. When K.R. attempted to escape from appellant’s car and attempted to
alert another driver that she needed help, appellant forcibly returned K.R. to the car
and continued driving to the beach. Appellant screamed at K.R. when she
attempted to stop his car. They arrived at an area of the beach that was “very dark”
14
at close to 4:00 a.m. According to K.R., she did not know where she was and there
was no one else around. Appellant removed K.R.’s clothes against her will and
“abused” and “took advantage” of her. Afterward, appellant threatened to kill her
so she would not “say anything,” forced her to assist him with freeing his car, and
ordered her not to tell the police anything.
Only appellant insists that he took K.R. where she wanted to go; K.R.
testified she did not want to get in or return to appellant’s vehicle, twice tried to
escape, and twice attempted to get help. Indeed, appellant forced K.R. back into
his car at the red light. See Megas, 68 S.W.3d at 240 (concluding that appellant’s
forcing victim back into car during escape attempt supports intent). Only appellant
insists that he allowed K.R. to drive. K.R. testified that appellant placed her in the
driver seat and she only “drove” after appellant high-centered his car and forced
her into the car to provide him assistance. Only appellant insists that K.R. asked
him for money; K.R. specifically denied this at trial. Moreover, that the abduction
took place as appellant was driving down the Seawall and later at a public area of
the beach, and that cars happened to pass by, does not negate appellant’s intent to
take K.R. to a place she was not likely to be found. See id. at 241 (concluding
intent element met even where “incident took place on a well-traveled urban
highway”). K.R.’s testimony supports that appellant may not have expected
anyone to find them on the beach. Appellant appeared startled by the traffic; he
stopped the sexual act because “[c]ars were passing by” and he stopped leading
K.R. to the water’s edge because “[a] car passed by.” Nor does the fact that K.R.
voluntarily accepted another ride earlier that night negate appellant’s intent. See
id. (concluding intent element met despite victim’s initial, voluntary acceptance of
ride from appellant). Finally, notwithstanding any lack of specific details, K.R. did
not equivocate regarding essential facts and provided consistent statements to
15
police, the paramedic, and the SANE regarding where appellant took her and what
he did to her.
From all of this evidence, viewed in the light most favorable to the verdict,
we conclude that a rational jury reasonably could have inferred, beyond a
reasonable doubt, appellant’s intent to prevent K.R.’s liberation by secreting or
hiding her in a place she was unlikely to be found. See TEX. PENAL CODE ANN.
§ 20.01(2)(A); King, 961 S.W.2d at 694 (concluding that evidence was legally
sufficient to satisfy secreting or holding element of abduction in aggravated
kidnapping case where suspect took total stranger from “highly visible area to less
conspicuous alley” around 2:00 or 3:00 a.m., and attempted to forcibly kiss her).
4. The evidence is legally sufficient to show that appellant intended
to violate or sexually abuse K.R.
Appellant essentially argues that the evidence is legally insufficient to prove
appellant’s intent to sexually assault K.R. because from the evidence presented no
rational jury could have concluded that anything but consensual sex occurred. In
support, appellant again points to K.R.’s “crude overture” in asking appellant, “Do
you want to f**k me?” on the Seawall, and K.R.’s equivocal testimony regarding
her memory of the degree of force used by appellant, not remembering her shorts
coming off, and not “believing” that she had guided appellant’s penis into her
vagina or touched his penis. Appellant also notes the lack of forensic evidence of
K.R.’s “putting up a fight,” such as broken fingernails. We conclude that a rational
jury reasonably could have inferred, beyond a reasonable doubt, appellant’s intent
to violate or sexually abuse K.R.
In determining whether the State has proven aggravated kidnapping, the
inquiry is whether the evidence is sufficient to prove that appellant abducted K.R.
with the specific intent to commit the alleged aggravating element of violating or
16
sexually abusing her. See White v. State, 702 S.W.2d 293, 294 (Tex. App.—
Amarillo 1985, no pet.). Intent to sexually abuse a victim may be inferred from the
defendant’s acts and remarks, and from the surrounding circumstances. See id.
(concluding that evidence was sufficient for jury to find intent to commit sexual
abuse where appellant took complainant at gunpoint into room with only a
mattress, ordered her to remove her pants, responded to her assertion that she
would not permit him to rape her by asking her if she thought he was joking,
showed her bullets in gun, and pursued her when she ran from him). “Any
admissible evidence that reveals the intent to [violate or sexually abuse the victim]
will support the verdict.” Id. at 295. And “[t]he victim’s testimony that [s]he was
abused sexually is sufficient to show appellant’s intent.” Kemple v. State, 725
S.W.2d 483, 485 (Tex. App.—Corpus Christi 1987, no pet.); see Goudeau v. State,
788 S.W.2d 431, 435 (Tex. App.—Houston [1st Dist.] 1990, no pet.).
Again, appellant relies on K.R.’s alleged proposition of appellant on the
Seawall. However, K.R. specifically testified she did not say anything initially to
appellant and only responded that she was “okay” after appellant asked her. Thus,
appellant’s testimony does not stand uncontradicted or unrebutted. With regard to
the lack of specific details provided by K.R. about the sexual assault, the SANE
provided a possible explanation; in her opinion, the level of details provided would
depend on the sexual assault victim’s “coping skills and how well [she] deals with
the trauma.” The paramedic also indicated that gathering details from a victim
who has undergone something traumatic—such as a sexual assault or rape—can be
difficult, and in this case, the difficulty was increased due to K.R.’s language
barrier.
Further, throughout trial, appellant presented to the jury his defensive theory
that K.R. consented to the sexual intercourse and then only later “cried wolf”
17
because she was “caught in the act.” However, several State witnesses testified
about their observations of K.R.’s highly emotional, upset, and distraught state at
the scene. Moreover, Chambers assessed that, based on his observations of K.R.
when he and Weems arrived, “[s]he didn’t seem like she was caught doing
something she shouldn’t have been doing. That’s not it. She was terrified.”
Another police officer who responded to the 9-1-1 call testified that, based on his
observations of K.R., she was “exhibiting signs of being more of a traumatic event
than someone that’s been caught in the act.” While there is no requirement that a
victim’s testimony be corroborated by medical testimony or by other physical
evidence,5 the forensic evidence here is consistent with K.R.’s testimony that
appellant forcibly penetrated her vagina with his penis. That is, sperm matched to
appellant to a reasonable scientific certainty was located in K.R.’s vagina, and
during K.R.’s vaginal exam, the SANE noted redness that could have been caused
by trauma. With regard to the lack of forensic evidence of K.R.’s “putting up a
fight,” the SANE explained that, in her experience, some sexual assault victims do
not “put up a fight” and therefore present with “little injury.”
Reviewing all the evidence in the light most favorable to the verdict, a
rational jury reasonably could have inferred, beyond a reasonable doubt, that
appellant abducted K.R. with the intent to violate or sexually abuse K.R., thus
rejecting appellant’s defensive theory that the sexual act was consensual. See TEX.
PENAL CODE ANN. § 20.04(a)(4); see also Evans v. State, 202 S.W.3d 158, 165
n.27 (“[I]t is the jury, not the reviewing court, that chooses between alternate
reasonable inferences.”). Therefore, we overrule appellant’s legal insufficiency
issue.
5
See Goudeau, 788 S.W.2d at 435; Kemple, 725 S.W.2d at 485.
18
B. Factual insufficiency of the evidence
Appellant acknowledges that a majority of the judges of the Court of
Criminal Appeals have determined “the Jackson v. Virginia legal-sufficiency
standard is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense
that the State is required to prove beyond a reasonable doubt.” Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (Hervey, J., joined by
Keller, P.J., Keasler, and Cochran, J.J.); id. at 912–15 (Cochran, J., concurring,
joined by Womack, J.) (same conclusion as plurality). Appellant nevertheless
argues that the evidence is factually insufficient to support his conviction for
aggravated kidnapping.
We do not depart from the dictates of Brooks, and we thus overrule
appellant’s second issue.
C. Translation of K.R.’s testimony
In his fourth issue,6 appellant argues that the trial court erred by permitting
the interpreter to translate K.R.’s testimony without first complying on the record
with article 38.30 of the Texas Code of Criminal Procedure and Texas Rule of
Evidence 604,7 which violated appellant’s confrontation clause rights. We
conclude that no inadequacy in the interpretation violated appellant’s confrontation
clause rights or rendered his trial fundamentally unfair, and the trial court
committed no abuse of discretion.
The confrontation clauses of the Sixth Amendment and article I, section 10,
6
We address appellant’s fourth and fifth issues before his third issue because reversible
error would result in remand of the entire case instead of only remand for a new punishment trial.
7
TEX. R. EVID. 604 (“An interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirmation to make a true
translation.”).
19
of the Texas Constitution require providing an interpreter to an accused who does
not understand English. Baltierra v. State, 586 S.W.2d 553, 556–59 (Tex. Crim.
App. 1979) (“In the absence of the opportunity to be aware of the proceedings and
the testimony of the witnesses against her, appellant was denied the constitutional
right of confrontation . . . .”). Article 38.30 provides, in pertinent part:
When a motion for appointment of an interpreter is filed by any party
or on motion of the court, in any criminal proceeding, it is determined
that a person charged or a witness does not understand and speak the
English language, an interpreter must be sworn to interpret for the
person charged or the witness. Any person may be subpoenaed,
attached or recognized in any criminal action or proceeding, to appear
before the proper judge or court to act as interpreter therein, under the
same rules and penalties as are provided for witnesses.
TEX. CRIM. PROC. CODE ANN. art. 38.30(a) (West 2011). Article 38.30 applies not
only to defendants, but also to witnesses who do not understand and speak English.
Id. “[Article 38.30] protects the defendant’s right to confrontation under the state
and federal constitutions.” Montoya v. State, 811 S.W.2d 671, 673 (Tex. App.—
Corpus Christi 1991, no pet.). The Court of Criminal Appeals has held that a
defendant’s right to an interpreter must be implemented unless expressly waived if
the trial judge is aware that the defendant has difficulty understanding the English
language. Garcia v. State, 149 S.W.3d 135, 144–45 (Tex. Crim. App. 2004). Our
sister court likewise has concluded that the appointment of an interpreter for a
material witness is required by the confrontation clause and by article I, section 10,
and must be implemented unless expressly waived if the trial judge is aware that
the witness has difficulty understanding the English language. Miller v. State, 177
S.W.3d 1, 5–6 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
In Linton v. State, which involved article 38.31—the analogous statute
implementing the federal and state constitutional rights of confrontation in the
20
context of deaf defendants and witnesses—the Court of Criminal Appeals
considered the question of “how much discretion . . . the trial court ha[s] in
handling the issue of interpretive services.” 275 S.W.3d 493, 501–02 (Tex. Crim.
App. 2009). The Linton Court agreed with “the many courts addressing foreign
language and deaf interpretation, that decisions regarding interpretive services are
within the sound discretion of the trial court.” Id. at 503; see also id. at 500
(“[T]he trial judge—having the defendant [or witness] in his presence, observing
his level of comprehension, and asking him questions, has wide discretion in
determining the adequacy of interpretive services.”). Thus, we only may reverse a
trial court that has clearly abused its discretion. Id. at 503. “The ultimate question
is whether any inadequacy in the interpretation made the trial ‘fundamentally
unfair.’” Id. (quoting United States v. Huang, 960 F.2d 1128, 1136 (2d Cir.
1992)).
Here, the record indicates that the complaining witness K.R.’s primary
language is Spanish and that her command of English is limited. A Spanish-
speaking interpreter, expressly listed in the “appearances” section of the reporter’s
record, was sworn prior to K.R.’s testimony. The record also indicates that K.R.
“testified through the duly-sworn interpreter.” Although appellant attributes to the
interpreter one improper use of a preposition and K.R.’s inability to remember
specific details about the sexual assault, nothing indicates that these alleged
“inaccuracies” constituted anything but a direct translation of K.R.’s testimony.
There were no objections at trial to the quality of the interpretation. Nothing
would have alerted the trial judge to any inadequacy in the interpretation. The
examination and cross-examination went smoothly with limited requests for
repeating or clarifying a question or an answer. K.R. understands and speaks some
English but felt more comfortable with an interpreter. K.R. never indicated any
21
problem with the interpretation. The interpreter never alerted the judge that there
was any difficulty in interpretation. Not only does nothing in the record support
appellant’s position that the interpreter or her interpretation was inadequate, but
also appellant has failed to explain how any inadequacy prevented him from
confronting K.R. or ultimately led to a fundamentally unfair trial. See id. at 509;
Montoya, 811 S.W.2d at 673. Under these circumstances, we cannot say that the
interpretation was “constitutionally insufficient” or that the trial court abused its
discretion in providing the interpreter. See Linton, 275 S.W.3d at 502–03, 509.
D. Admission of the 9-1-1 call
In his fifth issue, appellant argues that the trial court erred in overruling his
hearsay and confrontation clause objections and admitting the 9-1-1 call. We
conclude that the State offered and the trial court admitted the 9-1-1 call for the
non-hearsay purpose of showing the basis for the response by police, which does
not implicate appellant’s confrontation clause rights and therefore was properly
admissible.
The Sixth Amendment protects an accused’s right to be confronted with the
witnesses against him in all criminal prosecutions. U.S. CONST. amend. VI. In
Crawford v. Washington, the Supreme Court held this to mean that the admission
at trial of a testimonial, out-of-court statement is barred by the confrontation
clause, unless the defendant has had a prior opportunity to examine the witness and
the witness is unavailable to testify. 541 U.S. 36, 68 (2004). Hearsay—an out-of-
court statement offered in evidence to prove the truth of the matter asserted—may
be admissible under the evidentiary rules. See TEX. R. EVID. 801(d). But hearsay
statements nevertheless must overcome the confrontation clause bar, which may be
implicated if the defendant is not afforded the opportunity to confront the out-of-
court declarant. Shuffield v. State, 189 S.W.3d 782, 790 (Tex. Crim. App. 2006).
22
However, statements that are properly offered and admitted not to prove the
truth of the matter, but rather for a non-hearsay purpose do not implicate
confrontation clause rights and are admissible under Crawford. See Del Carmen
Hernandez v. State, 273 S.W.3d 685, 688–89 (Tex. Crim. App. 2008) (concluding
such where co-defendant’s statement to police was offered and admitted as non-
hearsay to impeach co-defendant’s credibility). When a statement is “offered to
show the reason for the [police’s] actions,” and not for the truth of the matter
asserted, it is not hearsay. Kimball v. State, 24 S.W.3d 555, 564–65 (Tex. App.—
Waco 2000, no pet.) (concluding that officer’s testimony as to out-of-court
conversations between officer and police dispatcher regarding conversation
between unknown motorist and 9-1-1 operator regarding possible DWI was non-
hearsay and its admission did not violate confrontation clause).
As with most evidentiary rulings, we review a trial court’s determination
that a statement is admissible as non-hearsay only for an abuse of discretion. See
Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007); Shuffield, 189
S.W.3d at 793. Where the trial court’s decision falls within the bounds of
reasonable disagreement, we do not disturb its ruling. Shuffield, 189 S.W.3d at
793.
At trial, appellant objected to admission of the 9-1-1 call:
[Defense counsel]: Your Honor, the only objection I have to this is
that it’s hearsay. And I have no objection for it to be admitted for the
limited purpose of it being a statement not designed to establish a fact,
but it’s a statement of present circumstances. It’s hearsay in that the
caller is not here to cross-examine under the Sixth Amendment.
...
[Prosecutor]: Your Honor, as you know, an exception to the hearsay
rule is that we’re going to offer this not for the truth of the matter
asserted, but it goes to show that these officers such as Sergeant
23
Weems testified before us responded to an incident and it shows why
they responded in the manner in which they did and how they
proceeded from that point in time.
THE COURT: All right. Then State’s Exhibit 15 is admitted.
(State’s Exhibit No. 15 admitted)
THE COURT: And, ladies and gentlemen of the jury, I’ll just instruct
you that the contents of State’s 15 is not being admitted to prove the
truth of the matter, the statements in the tape.
Because appellant specifically objected to the 9-1-1 call as hearsay and on the basis
of “the caller is not here to cross-examine under the Sixth Amendment,” we
conclude that appellant sufficiently preserved error. See TEX R. APP. P.
33.1(a)(1)(A); Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005).8
However, the record indicates that appellant did not so object if the 9-1-1 call was
admitted as non-hearsay. The State explained that it was offering the 9-1-1 call
“not for the truth of the matter asserted”—the truth of what the 9-1-1 caller
stated—but instead to provide the basis for “why [police] responded in the manner
in which they did and how they proceeded from that point in time.” See Kimball,
24 S.W.3d at 564. Further, the trial court specifically instructed the jury that it was
not to consider the contents of the 9-1-1 call for “the truth of the matter,” and
appellant did not object to this limiting instruction.
Because the 9-1-1 call was properly offered and admitted, not to prove the
truth of the matter—that appellant committed aggravated kidnapping—but rather
for the non-hearsay purpose of explaining how and why police responded to the
Stewart Beach area, the statement was not hearsay, did not implicate appellant’s
8
On appeal, appellant contends that admitting the 9-1-1 call also violated the
confrontation clause found in article I, section 10, of the Texas Constitution. However, not only
did appellant not object in the trial court on this basis, but also because appellant “provides
argument and authority under only the United States Constitution, he has forfeited consideration
of th[is] point[] of error under the Texas Constitution.” See Shuffield, 189 S.W.3d at 788.
24
confrontation clause rights, and was admissible under Crawford. See Del Carmen
Hernandez, 273 S.W.3d at 689; see also Kimball, 24 S.W.3d at 564-65 (concluding
that trial court committed no hearsay and no confrontation clause violations).9
Under these circumstances, we cannot conclude that the trial court abused its
discretion, and we overrule appellant’s fifth issue.
E. Refusal to instruct jury on “safe place” punishment defense
Finally, in his third issue, appellant argues that the trial court erred by not
including a “safe place” release instruction in the punishment jury charge.
Appellant insists that he was entitled to the instruction because he gave K.R. his
car keys and let her drive, K.R. returned to appellant’s car after the white SUV left,
and appellant did not prevent K.R. from approaching the occupants of the white
SUV or the police. We conclude that the evidence failed to raise the defensive
issue of “safe place” release and, therefore, the trial court did not err in refusing
appellant’s requested instruction.
Aggravated kidnapping is a felony of the first degree unless a defendant
raises and proves the issue of whether he voluntarily released the victim in a safe
place by a preponderance of the evidence; if so, then aggravated kidnapping is a
second-degree felony. TEX. PENAL CODE ANN. § 20.04(c) & (d). In order to raise
9
We further note that appellant failed to object when three different officers testified
regarding what the police dispatcher relayed over the radio regarding the 9-1-1 call:
[Dispatch] mentioned that a woman was dragged off—an eyewitness saw a
female dragged off to a car, thrown in a car and left in an unknown direction.
[I]t was a female in distress call.
We got a call of a possible abduction. A witness saw a male subject grab a female
subject around Comfort Inn there at the Seawall, where Seawall and Broadway,
somewhere in that general area.
Nor was any limiting instruction requested or provided. “With this evidence coming in without
objection or limitation, it became part of the general evidence in the case, and the jury could
have used it for any purpose.” Klein v. State, 273 S.W.3d 297, 318 (Tex. Crim. App. 2008).
25
the issue of voluntary release to a safe place, a defendant must offer some evidence
that he actually released the victim. LaHood v. State, 171 S.W.3d 613, 624–25
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); see Ballard v. State, 161
S.W.3d 269, 273 (Tex. App.—Texarkana 2005) (“[T]he application of Section
20.04(d) should focus on whether the defendant performed an act of release . . . .”),
aff’d, 193 S.W.3d 916 (Tex. Crim. App. 2006); Harrell v. State, 65 S.W.3d 768,
772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (“Appellant, in order to
avail himself of the mitigating effect of section 20.04(d), must first have performed
‘some overt and affirmative act’ which brought home to his victim that she had
been ‘fully released from captivity.’”) (quoting in part Wiley v. State, 820 S.W.2d
401, 411 (Tex. App.—Beaumont 1991, no pet.)). In addition, to be voluntary, the
release must not have been occasioned by rescue or escape. LaHood, 171 S.W.3d
at 624 n.5 (citing Brown v. State, 98 S.W.3d 180, 183–88 (Tex. Crim. App. 2003)).
Factors relevant to determining whether the place of release can be considered safe
include: (1) the remoteness of the location; (2) the proximity of authorities or
persons who could assist the victim; (3) the time of day; (4) climatic conditions;
(5) the condition of the victim; (6) the character of the location; and (7) the
victim’s familiarity with the location. Id. (citing Nolan v. State, 102 S.W.3d 231,
238 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)).
A defendant is entitled to an instruction on every defensive issue raised by
the evidence, and we review the evidence in support of the defensive issue in the
light most favorable to the defense. See Kenny, 292 S.W.3d at 100. A defendant’s
testimony alone may be enough to raise a defensive issue requiring an instruction
in the jury charge. Id. But when the evidence fails to raise a defensive issue, the
trial court commits no error by refusing the requested instruction. Muniz v. State,
851 S.W.2d 238, 254 (Tex. Crim. App. 1993).
26
Evidence that appellant gave the keys to K.R. and permitted her to drive
does not demonstrate appellant ever actually released K.R. Appellant remained
either just outside or with K.R. in his car, and no release involving K.R.’s driving
the car was even possible after appellant’s car became high-centered on the curb.
While appellant testified that he did not physically prevent K.R. from approaching
either the occupants of the white SUV or the police, and did not threaten K.R.,
such inaction does not reveal that appellant “performed some overt and affirmative
act which brought home to [K.R.] that she had been fully released from captivity.”
See Harrell, 65 S.W.3d at 772 (internal quotation marks omitted). Moreover, the
fact that K.R. was still in appellant’s car, immediately went to police, and asked
them for “help” when they arrived does not support that any release was voluntary.
Such a release scenario is more consistent with a “rescue by the police.” See
Brown, 98 S.W.3d at 188. Finally, the evidence does not support that any release
occurred in a “safe place” because appellant and K.R. were on an isolated beach,
the white SUV already had driven away, it was close to 4:00 am, the area was dark
with almost no visibility, and K.R. was not familiar with the area. See Nolan, 102
S.W.3d at 238.
Reviewing the evidence in the light most favorable to appellant, we cannot
agree that he raised a defensive issue on “safe place” release and, therefore, the
trial court properly refused his requested instruction. See Muniz, 851 S.W.2d at
254–55; Kenny, 292 S.W.3d at 101–02. Thus, we overrule appellant’s third issue.
III. CONCLUSION
Accordingly, having concluded that legally sufficient evidence supports
appellant’s conviction for aggravated kidnapping; that no inadequacy in the
interpretation of K.R.’s testimony violated appellant’s confrontation rights or
rendered his trial fundamentally unfair, and the trial court did not abuse its
27
discretion in providing the interpreter; that the trial court did not abuse its
discretion in admitting the 9-1-1 call as non-hearsay, which does not implicate the
confrontation clause; and that the trial court did not err by refusing appellant’s
request for a “safe place” release instruction in the punishment jury charge, we
affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).
28