### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00144- CR

Christopher Art hur Kurtz , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2014 -34 3, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found Christopher Arthur Kurtz g uilty of aggr avate d kidnapping , evading

arr est with a vehicle, and tampering with phy sical evidenc e. The jury assessed pri s o n t er ms of 70 y ear s for ag g rava ted kidnapping , 75 y ear s for evading arr est with a vehicle, and 3 0 y ea rs for tampering with evidenc e, and the trial court order ed all the sentenc es to run concur rently

. By his sole issue on appea l, Kurtz challeng es the sufficie ncy of the evidenc e to s u pport the ag g rava ted kidnapping offe nse. His attorney filed an Anders brief asser ting that the appea l was frivolous with respe ct to the eva ding a

nd tampering offe nses. We will affirm the judg ment.

BACK GR OUND Kurtz picked up a friend, April Sanchez, on his motorcy cle to take her to her new job. New Br aunfe ls Police Serg eant J ames Be ll, who intended to serve an arr est war rant on Kurtz, beg an following them and ac tivated his emer g ency lights. Offic er Andrew Kempker testified that Kurtzinitially slowed, then acc eler ated at a high rate of speed. Kurtz testified that he knew he was being

pursued by police officer s, but wa s u n s ure whether they had the rig ht to detain him

. They passed Sanchez’s workplac e during the chase

. Severa l office rs joined the pursuit. Video from a police car showed Kurtz trave ling at more than 100 miles per hour, running a red light by passin g b et wee n stopped car s, p as s i n g a car by driving on g rass, and wea ving in and out of traff ic at a high speed. NB PD’s Be ll tes t i fi ed t h at Kurtz used the motorcy cle in a way that could have cause d death

or serious bodily injury to Sanchez and o t h er s. An NB PD supervisor discontinued the chase

. Sometime afte r the chase stopped, Kurtz le t Sanchez off the motorcy cle in Schertz, a near by town. L ater that day , Kurtz was captur ed. Offic ers found a g un and key s on top of the g un

near wher e he w as found. Kurtz admitted to having a nd attempting to hide the g un but stated that Sanchez had put it in h i s p o ck et during the ride and advised him to avoid the police. Kurtz told police during an intervi ew t h at S an chez wanted to risk her life in his esca pe. I n rec ording s of a jailhouse visit with friends, Kurtz said that Sanchez was scar ed, beating him in the ribs, and wanting to stop. He said he told her he wa s not stopping until he lost the police. Sanchez testified that she did not tell Kurtz to run from the police, but asked him to let her off near a g as station. She said he ag ree d and slowed to let her off, but then sped awa y . She testified that she continued t o ask him to stop, but he did not let her off until the chase ended. During her police interview, Sanchez told police that Kurtz drove into oncoming traff ic and that she thought they wer e g oing to wre ck and die. She testified that she did not want to trave l at 100 miles

an hour on the highw ay and was not fre e to g o. She testified that she knew Kurtz was running from the police, not try

ing to k ee p her. She also testified that Kurtz was a friend to whom she did not want any thing ba d to happen. 2DISCUSSIO N Kurtz contends that insufficient evidenc e supports th e jury ’s verdic t that he committed ag g rava ted kidnapping

. The State was require d to show that he i n t enti onally or knowing ly abducted S anchez and used or exhibi ted a deadly wea pon during the commission of the offe nse. See Tex. Penal Code § 20.04(b). Abduction as char g ed in this case require s proof that Kurtz restra ined Sanch ez wi t h intent to preve nt her liberation by using or threa tening to use deadly forc e. Id. § 20.01(2)( B)

. A person restra ins another when he restric ts her movements without
consent so as to interfe re substantially with her liberty b y m o v i n g h er from one place to another ; restra int is without consent if it is acc omplished by forc e, intimi dation, or dece ption. Id. § 20.01(1).

W e assess the sufficie ncy of the evidenc e to support a conviction by viewi n g the evidenc e in the light most favor able to the verdic t and deciding whether any ra t i o n al trier of fac t could have found eac h essential element of the o ff en s e b ey ond a rea sonable doubt. Jack son

v. Virginia , 443 U.S. 307, 320 (1979); Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010). The jury is the sole judge of the witnesses’ credibilit y and the weig ht to be g iven their testimony

. Brooks , 323 S.W .3d at 899. The fac t finder can believe all, some, or none of the testimony prese nted. Chambers v. State , 805 S.W .2d 459, 461 (Tex. Crim. App. 1991). Circumstantial evidenc e alone can be suff icient to establish g uilt. Hooper v . State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). When the rec ord evidenc e contains conflicting infere nces, the appellate
court must presume that the jury resolved any confl i ct s i n fa vor of its verdic t. W hatley v. State , 445 S.W .3d 159, 166 (Tex. Crim. App. 2014).

Kurtz focuse s on elements that rela te to his mindset. He contends that there was no evidenc e that he used or threa tened deadly forc e to compel Sanchez’s obedienc e to a threa t, noting 3that specific intent distinguishes ki dnapping from restraint. See Maye r v. S t a t e , 2 7 4 S.W .3d 898,

899-900 (Tex. App.—Amar illo 2008, pet. ref ’d). I n that case , a hu s b an d who assaulted his wife, then forc ed her to drive him awa y from the scene of the assault, arg ued that he restra ined her but did not kidnap her be cause he mer ely wanted to e scape and did not intend to preve nt her liberation by holding her in a place wher e she would not be found. Id. The court held that, by forc ing her to drive him to a place wher e he would not be found, he nece ssarily intended to take her to a place wher e she woul d not be found. Id. at 901. Kurtz arg ues that, at most, he place d a once- willing ri d er i n t o a dang erous situation. Unlike the abducte d wife in Maye r , Sanchez testified that she did not fea r Kurtz beca use she knew that he did not intend to preve nt her liberation and t h at s h e would be rele ased when he esca

ped the police. Kurtz also asser ts that Sanchez did not attempt to le ave his company . We conclude , howeve r, t hat t he record contains evidenc e from which a rea sonable jury could have found the elements of the o ff en s e b ey o nd a rea sonable doubt. The trial court instructed the jury that it could convict Kurtz for attempting to hold her in a place wher e she would not be found as in Maye r , see id. , or by preve nting her liberation by use of deadly forc e. Compare Tex. Penal Code § 20.01(2)( A) (holding in a secr et place ) with id. § 20.01(2)( B) (using deadly forc e). Sanchez g ot on the motorcy cle willingly to g et to work at a restaur ant in New Br aunfe ls, but Kurtz took her to a differ ent tow n . S h e t es t i fi ed that she did not want to trave l at high speeds on the fre ewa y running from poli ce. Sanchez s aid t hat s he was scar ed and direc ted Kurtz to stop, but he did not. Early on, he slowed to let her off, but sped up befor e she could do so. She testified that they

wer e traveling too fast for her to safe ly jump off the motorcy cle. The jury saw video of t he chase furthe r s u p p l emented by NB PD Serg eant Be ll’s testimony that Kurtz used the motorcy cle in

a way that could have cause d death or serious bodily i n j u ry t o S an chez and others. Although 4Sanchez testified that she knew Kurtz would rele ase her, the evidenc e also showed that despite her

repe ated and acknow ledg ed pleas for him to stop and let her off, Kurtz drove his mo t o rc y cle so fast that she could not g et off and took her to a ne arby town instead of he r workplac e. These fac ts

rese mble the fac ts of Maye r in which the court found that May er, by intentionally taking his wife on his esca pe, had the requisite intent to take her to a place wher e she would not be found. See Maye r , 274 S.W .3d at 901. Fur

ther, we cannot say that no rea sonabl e jury could find that the evidenc e proved bey ond a rea sonable doubt that Kurtz restra ined her with the intent to preve nt her liberation by use of deadly forc e of speed on the motorcy cle and dang erous maneuve rs while driving

. See id

. § 20.01(2)( B)

. L ikewise, the rec ord supports the jury ’s decision that K u r tz in te n ti o n a ll y o r knowing ly abducte d her while using the motorcy cl e as a deadly wea pon. See id. § 20.04(b). We overr ule Kurtz’s sole issue on appea l.

Wit h respe ct t o the rema ining counts of his conviction, Kurtz’s court-a ppointed appellate attorney has filed a motion to withdraw supported by a brief concluding that this appea l is frivolous and without merit. The brief meets the require ments of Anders v. Calif ornia by prese nting

a profe s s i o n al evalua tion of the rec ord demonstrating why there are no arg uable g rounds to be adva n ce d

. S

ee 3 8 6 U.S. 738, 744 (1967); see also Penson v. Ohio , 488 U.S. 75, 80 (1988); High

v. State , 573 S.W .2d 807, 811-13 (Tex. Crim. App. 1978). Kurtz’s counsel stated that he sent a copy of the brief to Kurtz and advised him of his rig ht to examine the appellate rec ord and to file a pro se brief. See A nders , 386 U.S. at 744. More than thirty day s have passed since the notice was sent to Kurtz and we have not rec eived a pro se brief or a motion for extension of time to file a brief.

5CONCLUSION We have revie wed the rec ord and find no reve rsible err or. See Garner v. State , 300 S.W .3d 763, 766 (Tex. Crim. App. 2009). We conclude tha t sufficie nt evidenc e supports the ag g rava ted-kidnapping conviction, ag ree with counsel that the rema inder of this appea l is frivolous, aff irm the judg ment of convic tion, and g rant c ounsel’s motion to withdraw.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Affir med Filed: June 30, 2016 Do Not Publish

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