Affirmed and Opinion filed January 9, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00200-CR
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RAUL HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 994,579
O P I N I O N
Appellant, Raul Hernandez, appeals from his conviction for aggravated kidnaping. After appellant pleaded guilty without an agreed recommendation as to sentencing, the trial court found him guilty and assessed punishment at fifty years in prison. In two issues, appellant contends that the evidence is legally and factually insufficient to support the trial court=s implied finding that he did not voluntarily release the complainant in a safe place. We affirm.
Background
During a pre-sentence investigation hearing, Seyyed Ali, the complainant, testified that on July 15, 2004, he was in his car at a restaurant when appellant and another man entered the car. Ali was pushed into the back seat, and appellant drove the car while the other man held a gun on Ali in the back seat. They drove to an ATM at a gas station. Appellant took Ali=s ATM card and attempted to use it, but Ali had accidentally given him the wrong APIN number.@ Appellant returned to the car, told Ali that he would give him one more chance, but threatened to kill Ali if given the wrong number again. They drove to a grocery store, and appellant took Ali=s ATM card inside while the other man stayed in the back of the car holding a gun behind Ali=s back. When appellant told the other man on a cellular telephone that he had withdrawn money, the man exited Ali=s car and entered the store, leaving Ali in the car without his keys or cell phone. Ali said that his Ainstincts just kicked in to just get out of the car and run to the [store].@ Once in the store, he told employees to call the police. While Ali was telling a security guard what had happened, appellant came back to get Ali=s car. The security guard confronted appellant; he showed her that he had a gun stuck in his pants and then ran away. No one else testified regarding the kidnapping.
Analysis
In two issues, appellant attacks the legal and factual sufficiency of the evidence to support the trial court=s allegedly implied finding that he did not voluntarily release the complainant in a safe place. Aggravated kidnapping is generally a first‑degree felony, however, A[a]t the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.@ Tex. Penal Code Ann. ' 20.04(c), (d) (Vernon 2003). A first‑degree felony is punishable by a term of imprisonment for 5‑99 years, or life; whereas, a second degree felony is punishable by a term of imprisonment for 2-20 years. Id. '' 12.32(a), 12.33(a). Because the trial court sentenced appellant to fifty years in prison (which was in the range for a first degree but not a second degree felony), appellant asserts that the trial court impliedly found that appellant did not voluntarily release Ali to a safe place.
In response, the State maintains that appellant may not bring this issue on appeal because he never raised it in the trial court. A defendant in an aggravated kidnapping case does indeed have the burden of raising and proving voluntary release in a safe place. See Tex. Penal Code Ann. ' 20.04 (d); Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998); Carreon v. State, 63 S.W.3d 37, 39 (Tex. App.CTexarkana 2001, pet. ref=d). Appellant does not point to any place in the record where he raised the voluntary release issue in the trial court, and our review has discovered none.[1] Accordingly, appellant has waived the issue. We overrule appellant=s two issues.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed January 9, 2007.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant=s main defensive strategy in the PSI hearing was to argue that although he particpated in the kidnapping, he was not as culpable as the other person involved.