Affirmed and Memorandum Opinion filed February 12, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00046-CR
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JOSE GUTIERREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1078965
M E M O R A N D U M O P I N I O N
Appellant, Jose Gutierrez, appeals from his conviction for aggravated kidnapping. After being certified to be tried as an adult, appellant pleaded guilty to the charged offense. A jury then found him guilty (as instructed by the court), found the allegations in an enhancement paragraph to be true, and assessed punishment at life in prison. In a single issue, appellant contends that the trial court erred in refusing to submit a jury instruction on voluntary release in a safe place. We affirm.
Background
Kanokwan Keokhum testified that on December 28, 2005, she began walking from her automobile to her apartment when she saw appellant and another man (later identified as Johnny Rivera) approaching her from the side. Rivera had a knife in his hand; he pointed it at her stomach and demanded money. She gave her car keys to Rivera, then appellant asked Rivera for the keys. Rivera pushed Keokhum into the back seat of her car, while appellant got into the front seat and started the vehicle. They drove around for a time before stopping in a parking lot, where appellant took the knife from Rivera and got into the back seat, while Rivera got into the driver=s seat. Appellant pointed the knife at Keokhum, pushed her head down, and told her to remove her shirt. She did so, and he used the knife to cut open her brassiere. Both men then touched Keokhum=s breasts, causing her pain. She resisted and appellant slapped her ten to fifteen times. The men told Keokhum to remove her pants, and appellant then removed her underwear. Appellant slapped her several more times and began to kiss her. Appellant ordered Keokhum to put her finger in her vagina and told her to perform oral sex on him. When she pretended to not understand what he was saying, he slapped her again. Rivera then suggested stopping the vehicle, as he had apparently driven away from the parking lot after getting in the driver=s seat.
They stopped in a residential area that was unfamiliar to Keokhum, and appellant pulled her from the car. She was completely naked, it was dark, and it was a very cold day. While brandishing the knife, appellant ordered Keokhum to lay on the ground. She did so, and he proceeded to kick her approximately three times in the abdomen and once in the head. Keokhum then raised her leg in a defensive manner, causing appellant to lean backward. Keokhum figured this might be an opportunity to escape, so she ran, crying out for help. Appellant ran after her a short distance before returning to the vehicle. The two men then drove away. After running down the street for a time, Keokhum managed to find a lady in a car who helped her contact the police. Keokhum later positively identified appellant as one of her assailants.
Analysis
In his sole issue, appellant contends that the trial court erred in refusing to submit a jury instruction on voluntary release in a safe place. Under Penal Code section 20.04(d), a defendant accused of aggravated kidnapping may raise an issue in the punishment phase as to whether he voluntarily released the victim in a safe place. Tex. Penal Code Ann. ' 20.04(d) (Vernon 2003). If the defendant proves the issue by a preponderance of the evidence, the offense is classified as a second degree felony as opposed to a first degree felony. Id. ' 20.04(c), (d). The Court of Criminal Appeals has determined that a narrow rather than a broad definition of Avoluntarily@ applies to section 20.04(d), so that to be voluntary, the release must not have been occasioned by rescue by the police or others, or escape by the victim, among other things. Brown v. State, 98 S.W.3d 180, 183‑88 (Tex. Crim. App. 2003); see also LaHood v. State, 171 S.W.3d 613, 624-25 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).[1]
In order to raise the issue of voluntary release to a safe place, a defendant must offer evidence that he or she performed some overt and affirmative act that informs the victim that he or she has been fully released from captivity. Ballard v. State, 193 S.W.3d 916, 919 (Tex. Crim. App. 2006). In other words, the defendant must show that he or she actually released the victim. LaHood, 171 S.W.3d at 624-25.
Here, the only evidence regarding the moment when Keokhum left her captivity comes from Keokhum herself. As detailed above, she testified that after appellant pulled her out of the vehicle, forced her to the ground at knifepoint, and kicked her, she managed to gain her feet and run screaming from appellant. Keokhum further testified that appellant followed her for a time before returning to the vehicle and driving away. Nothing in Keokhum=s testimony suggests that appellant performed any overt and affirmative act informing her that she was fully released from captivity. To the contrary, the evidence demonstrates that Keokhum escaped. Appellant points to no other evidence as proof that he voluntarily released Keokhum. Accordingly, appellant failed to establish entitlement to a jury submission on voluntary release to a safe place. We overrule his sole issue.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed February 12, 2008.
Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] 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 or surrounding neighborhood; and (7) the victim=s familiarity with the location or surrounding neighborhood. LaHood, 171 S.W.3d at 624.