TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00544-CR
Jesse Amador Maldonado, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2017-765, THE HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Jesse Amador Maldonado challenges his conviction for aggravated
kidnapping. Tex. Penal Code § 20.04. The jury found him guilty, he pleaded true to the
enhancement paragraph, and the jury assessed punishment at thirty years’ imprisonment. See id.
§ 12.42(c)(1). Maldonado contends in two issues that the trial court erred when it excluded
testimony as to the victim’s reputation for truthfulness and when the trial court denied
Maldonado’s requested mistake of fact instruction. We will affirm the trial court’s judgment
of conviction.
BACKGROUND
Amanda Lester testified that she and her boyfriend Kevin Kelly were arguing the
morning of July 30, 2017. Kelly was driving Lester from his parents’ house in San Antonio to
her home near Austin. The couple’s fight continued until Kelly pulled the car over while still in
San Antonio and removed Lester’s belongings from the car. After Lester exited the vehicle,
Kelly drove away. Lester was not familiar with the area and could not reach Kelly on the phone.
A driver stopped his car and asked Lester if she wanted a ride. Lester accepted
and got in the car. Maldonado’s identity as the driver that picked up Lester that day was later
determined by detectives and then corroborated by Lester through a photo lineup. Lester
testified that soon after Maldonado began driving towards Lester’s home, Lester became “really
scared,” “had a really bad feeling,” and “could just tell there was something really wrong.”
Lester asked Maldonado to stop the car and let her out but he would not. After Lester asked
“[a]bout twenty times” to be let out of the car, Maldonado pulled over into a neighborhood drive.
However, when he realized it was a gated community, he turned around and pulled back onto the
road towards Lester’s home without stopping the car.
Maldonado kept telling Lester he would stop at a gas station, but Lester did not
believe him because they “passed so many gas stations.” Lester threatened to hit Maldonado if
he did not let her out of the car. Maldonado replied, “What, no BJ?” Lester testified that she
understood “BJ” to mean oral sex. Maldonado then grabbed Lester’s ponytail and “shook [her]
head in his lap.” When Lester pushed herself out of his lap, Maldonado punched her in the face
and Lester testified that it hurt and “felt like [her] jaw was broken.”
Lester attempted to unlock the doors but Maldonado kept locking them. When
Lester was able to open the car door, she held it open with her foot. Maldonado grabbed her by
her arm to keep her in the car. Lester was wearing her purse on her shoulder and when the strap
broke from Maldonado grasping it tightly, he threw it out the open car door.
Lester testified that she then called 911 on her cell phone, holding the phone away
from Maldonado. When she saw that the call had connected, she began to scream for help.
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Maldonado pulled Lester closer to him by her arm, grabbed her phone, and threw it out the open
door. The sheriff’s department dispatch supervisor testified that the 911 recording of the call
included sounds of a woman in distress, background noise like the caller was in a vehicle, and
sounds of “scuffling or shuffling” and then the call disconnected. Lester testified that after
Maldonado threw her phone out of the car, she grabbed his phone and threw it out of the car so
that “they could find him” and “identify who he was.”
Lester testified that Maldonado turned right onto a long road with nothing on it.
She was terrified because she “felt like either he was going to kill [her], or [she] was going to die
jumping out of his car.” Lester fought with Maldonado to get control of the car. She tried to put
it in park but her attempts failed and she could not find an emergency brake.
Lester was able to get out of Maldonado’s grip when her bra strap broke. Lester
testified that she thought that if she did not jump out of the moving vehicle she would be raped
and murdered. So Lester got as low to the ground as she could and rolled out of the moving car.
She testified that she blacked out for a little bit and then ran down the street trying to get help
although she was barely able to run. Lester testified that she had a lot of injuries including a
fractured spine, road rash over every bony part of her body, and a softball-sized lump on the
back of her head. She also had a busted lip, including a cut and bruising, which was caused by
Maldonado punching her.
Thomas Loftis testified that he was driving the car that was behind Maldonado’s
car when Lester jumped out. Maldonado’s car was moving fast, veered off the road, and
fishtailed wildly. Loftis saw the car’s door open and “a body come flying out of it.” Maldonado
did not stop the car but, rather, drove away. Loftis stopped his car and got out. He saw Lester
trying to run towards him but she fell back down. He testified that he believed she was either
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frightened or in shock. Lester was bleeding through her clothing and was crying. Loftis stayed
with her until police and EMS arrived. Loftis was familiar with the area of road where Lester
jumped out of the car. He testified that it was rural and pretty empty and he agreed with the
State that Lester had jumped out “quite a ways down” the road.
Detective Eric Guerrettaz, the responding officer on the scene, testified that he
learned from Lester that both her and Maldonado’s phones had been thrown out of the vehicle.
Lester was taken to the hospital by EMS. Detective Guerrettaz organized a search for the
cellphones with other officers and was able to locate both cellphones. Detective Haynes testified
that he identified Maldonado as a suspect based on information he extracted from Maldonado’s
phone. Lester testified that sometime after she was released from the hospital, she went to the
sheriff’s office and identified Maldonado in a photo lineup as the person who took her.
Kelly, Lester’s ex-boyfriend, was called as a defense witness. Kelly testified on
voir dire that he and Lester started dating for about two years before the offense, and that he had
met her a couple years prior to them dating. He testified that they dated for some time after the
incident but were not in a relationship at the time of trial. In his testimony in front of the jury, he
testified regarding his perspective of the events the day of Lester’s abduction prior to when
Lester got out of Kelly’s vehicle. Defense counsel asked Kelly his opinion as to Lester’s
character for truthfulness or untruthfulness, but the trial court sustained the State’s objection to
this question based on an improper predicate.
Maldonado testified at trial in his own defense. He testified that when Lester first
got in his car, he noticed a cut on her chin, and she told him that her boyfriend had just beat her
up. Maldonado testified that after he asked her what had happened with her boyfriend, Lester
accused him of working with her boyfriend and told him she wanted to get out of the car.
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Maldonado testified that he stopped at a subdivision to let Lester out of the car but that she did
not get out and instead told him to drive away because her boyfriend was behind them.
Maldonado explained that when he pushed her head down, he was trying to get her to put her
head down because he thought her boyfriend was following them. He testified that when he
pulled back onto the highway after stopping in the subdivision, Lester began hitting him and
telling him to stop the car and that she wanted to be dropped off “right there.” He explained that
he pulled Lester back into the car after she opened the door and began yelling for help because
he was going 60 or 70 miles per hour and he thought she was going to jump out of the car. He
explained that he threw her phone out of the car because she was hitting him with it. He testified
that she took his phone, opened the car door, threw his phone out, and then hit him with a
multitool that was on the bottom of his phone. He testified that they fought for control of the
steering wheel. Maldonado testified that he hit her to regain control of the car. He testified that
Lester jumped into the backseat and then jumped out of the car. He explained that he took off
because he thought her boyfriend was behind them. Maldonado testified that he went home and
threw away Lester’s remaining belongings that were in his possession because he had them for a
couple days, had planned to call the police but did not, and did not know what else to do with
her belongings.
On cross, Maldonado testified that he did not know at the time that Lester had
tried to call 911. The State asked if he had later told his brother that “when I went back on the
highway, that’s when she was, like, going all crazy and shit and whatever. And then she called
the cops or whatever . . . and that’s when I took the phone . . . and threw it.” Maldonado agreed
that he said that but explained that he already had the incident report at that point. Maldonado
explained that he had planned to stop at a gas station but that a median was in the way so he
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turned onto the rural road instead and that he could not turn around because he was fighting for
control of the steering wheel. He agreed that they were two miles down the rural road before
Lester jumped out. Maldonado admitted that he was familiar with the area and knew that there
was nothing on the rural road he turned onto.
After hearing all the evidence, the jury found Maldonado guilty of aggravated
kidnapping and assessed punishment at thirty years’ imprisonment. This appeal followed.
DISCUSSION
In two issues on appeal, Maldonado contends that the trial court erred in two
regards: when it excluded the testimony of Lester’s ex-boyfriend concerning his opinion of her
bad character for truthfulness and when it denied Maldonado’s request for a jury instruction on
the mistake of fact defense.
Witness testimony on truthfulness
At trial, defense counsel asked Kelly, the victim’s ex-boyfriend, for his opinion of
whether Lester was a truthful or an untruthful person. The State objected to the testimony based
on an “improper predicate.” The trial court sustained the objection, and defense counsel
continued questioning Kelly without making any argument in support of the admissibility of the
anticipated testimony.
To preserve error for appellate review, a party must present a timely complaint to
the trial court stating the specific grounds for the desired ruling if they are not apparent from the
context of the complaint. See Tex. R. App. P. 33.1(a)(1)(A). Further, the objection made at trial
must comport with the issue raised on appeal to be preserved for review. Sorto v. State,
173 S.W.3d 469, 476 (Tex. Crim. App. 2005).
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On appeal, Maldonado contends that the trial court erred when it excluded the
opinion testimony because it was admissible as testimony regarding a witness’s reputation for
truthfulness. See Tex. R. Evid. 608 (“A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character.”). However, trial counsel did not
make any argument regarding Rule 608 in response to the State’s objection or the trial court’s
ruling. Maldonado has not preserved his Rule 608 issue for review. See Sorto, 173 S.W.3d at 476.
Maldonado further contends that the trial court erred because the proper predicate
was established during voir dire questioning of Kelly outside the presence of the jury when he
testified that he had been dating Lester for about two years prior to the offense, had met her two
years prior to starting a dating relationship, and dated her for some time after the offense.
However, trial counsel did not make any argument that a proper predicate had been established,
nor did he attempt to establish a predicate after the objection. Maldonado has not preserved his
challenge to the trial court’s ruling. See Tex. R. App. P. 33.1
Thus, we do not address the merits of Maldonado’s first issue. See Ford v. State,
305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (“If an issue has not been preserved for appeal,
neither the court of appeals nor this Court should address the merits of that issue.”).
Mistake of fact defense
Maldonado contends that the trial court erred when it denied his requested jury
instruction on the defense of mistake of fact. Specifically, Maldonado’s defense theory at trial
was that he did not intend to abduct Lester but, rather, was under the mistaken belief that her
boyfriend was behind them. The State contends that the trial court properly denied the requested
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instruction because it was an improper comment on the evidence and Maldonado was not entitled
to such instruction.
Jury charge error claims are reviewed under a two-pronged test in which the
appellate court must determine: (1) whether the charge was erroneous, and (2) if there was an
error, whether the error was harmful to the defendant. Olivas v. State, 202 S.W.3d 137, 143–44
(Tex. Crim. App. 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g). “A defendant is entitled to an instruction on any defensive issue raised by the evidence,
whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how
the trial court views the credibility of the defense.” Celis v. State, 416 S.W.3d 419, 430 (Tex.
Crim. App. 2013). “In deciding whether a defensive theory is raised, the evidence is viewed in
the light most favorable to the defense.” VanBrackle v. State, 179 S.W.3d 708, 713 (Tex.
App.—Austin 2005, no pet.).
The mistake of fact defense is a statutory defense to prosecution when “the actor
through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated
the kind of culpability required for commission of the offense.” Tex. Penal Code § 8.02(a). As
relevant here, a person commits the offense of aggravated kidnapping “if he intentionally or
knowingly abducts another person with the intent to:” “inflict bodily injury on him or violate or
abuse him sexually;” or “terrorize him or a third person.” Id. § 20.04(a). “‘Abduct’ means to
restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place
where he is not likely to be found; or (B) using or threatening to use deadly force.” Id.
§ 20.01(2). “‘Restrain’ means to restrict a person’s movements without consent.” Id. § 20.01(1).
Thus, the aggravated kidnapping statute includes two relevant mental states in addition to
intentionally or knowingly abducting a person. Id. §§ 20.01, 20.04. As applicable here, the first
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is to intend to prevent the person’s liberation by secreting or holding her in a place where she is
not likely to be found. Id. § 20.01(2). The second is to have the intent to inflict bodily injury, to
violate or abuse sexually, or terrorize her. Id. § 20.04(a).
At trial, Maldonado requested a mistake of fact defense instruction and argued, as
relevant here, that his mistaken belief that Lester’s boyfriend was following them negated the
requisite mental state. Specifically, he argued that when he pushed her head into his lap, he did
it because he thought the boyfriend was behind them and not because he was trying to secrete her
away or sexually abuse her. The trial court determined that a mistake of fact defense instruction
was not proper, and it was not included in the charge.
On appeal, Maldonado contends that he should have been given a mistake of fact
instruction because his testimony established that he did not intend to abduct Lester with either
the intent to secrete her away or with the intent to inflict bodily injury or terrorize her but, rather,
he intended to evade her boyfriend who he mistakenly thought was behind them. Maldonado
relies on Miller v. State, 815 S.W.2d 582 (Tex. Crim. App. 1991), to support his contention that
he was entitled to the mistake of fact defense instruction. In Miller, the Court of Criminal
Appeals held that the defendant charged with kidnapping a child was entitled to an instruction on
mistake of fact because the defendant had testified that she believed that the baby’s mother was
offering the child for an informal adoption and so the defendant took custody of the child with
what she believed was the mother’s consent. Id. at 585. Thus, the defendant’s “mistaken belief
would negate a conscious objective or desire to abduct the child by restraining the child without
parental consent.” Id.
However, here Maldonado’s mistaken belief that he was evading Lester’s
boyfriend does not negate the mental states relevant to whether he abducted Lester with the
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intents to either: (1) secrete her away, or (2) harm or terrorize her. First, Maldonado’s mistaken
belief that the boyfriend was following does not negate his intent to secrete her away without her
consent. Specifically, Maldonado admitted during his testimony at trial that Lester asked
multiple times to be let out of the vehicle and that he did not stop the car and let her out. His
mistaken belief that he was evading the boyfriend can be consistent with the intent to secret her
away and thus is a disagreement regarding the evidence but does not negate the requisite intent.
As to the intent to harm or terrorize, Maldonado’s testimony that he did not stop
because he thought the boyfriend was behind them is an explanation for his behavior but does
not negate the intent. If the jury believed he did not intend to harm or terrorize Lester, but
instead only intended to evade her boyfriend, then the element of intent would not have been
proven. However, his mistaken belief that the boyfriend was pursuing, does not negate his intent
to also harm or terrorize Lester, because believing that he intended to evade the boyfriend would
not require the jury to find him not guilty. He could hold both intents.
Comparing Maldonado’s contentions to the facts present in Miller, is illustrative.
Miller testified that she believed she had permission of the mother, which directly negated the
intent to abduct the child without the mother’s consent, as a person would not intentionally take
custody of a child both with and without consent. See Miller, 815 S.W.2d at 585. Thus, Miller’s
mistaken belief that she had consent to take custody of the child negated the requisite mental
state for the kidnapping offense. Here, Maldonado could have both intended to evade the
boyfriend and intended to harm or terrorize Lester. Maldonado’s description of events provides
a different story and explanation for his behavior but does not negate the “the kind of culpability
required for commission of the offense.” See Tex. Penal Code § 8.02(a).
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We conclude that the trial court did not err in denying the requested instruction
regarding the mistake of fact defense. Because we have concluded there is no trial court error,
we do not address the harm analysis in this case. See Tex. R. App. P. 47.1 (“The court of appeals
must hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”). We overrule Maldonado’s
second issue.
CONCLUSION
Because we cannot reach Maldonado’s first issue and overruled his second issue,
we affirm the trial court’s judgment of conviction.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed
Filed: October 19, 2023
Do Not Publish
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