### 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. 03-10-00872- CR

Johnn y Adam e, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 09- 1458 -K 277, H ONO RAB LE K EN ANDERSON, JUDGE P RESIDING

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

After a jury trial, appellant J ohnny Adame was convicted of ag g ravated kidnapping and evading arr est or detention with a vehicle, and the trial court, in separ ate judgme nts, sentenc ed him to confine ment of thirty -five and ninety -nine y ear s, respe ctively

. See Tex. Pen. Code Ann. §§ 20.04(a) (West 2011), 38.04 (West Supp. 2011). I n this appea l, Adame contends t h at the 1 evidenc e is insufficient to sustain his conviction for ag g ravated kidnapping

. Wit h reg ard to the evading -ar

rest-or -det enti on judgme nt of conviction, which included an enhanc ement for using the v eh icle as a deadly wea pon, Adame’ s court-a

ppointed counsel has filed a motion to withdraw pursuant to Anders v. Calif orn i a , 386 U.S. 738 (1967), concluding that appea l of that

The evading -ar

rest statute was amende d eff ective September 1, 2011, but the amendments 1 are not material to the issues in this case. T here fore , we c ite the cur rent statute f

or conve nience

.judgme nt is frivolous and without merit. We will g rant the motion to withdraw and aff irm the trial court’s judg ment.

BACK GR OUND

After robbing a bank in the summer of 2009, Adame led police on a high- speed car chase throug h Travis a

nd Wil liamson counties. When Adame wrec ked his vehicle in Williamson County , he forc ibly remove d his acc omplice, Yolanda Valenzuela, from the vehicle and drag g ed her up an embankment with what was later deter mined to be an air g un presse d ag ainst her head. More 2 than twenty peac e office rs had thei r wea pons draw n and aimed at Adame and Valenzuela. The situation ended when a police office r was able to shoot Adame without injuring Valenzuela. At the time, law enfor ceme nt officia ls did not know Valenzuela wa s Ad am e’s acc omplice in the bank robber y , but immediately afte r the stand-off ended, a visibly shaken Valenzuela told office rs, “I was in it for the robbe ry , but I wasn’t in it for this shit.”

Following a jury trial, Adame was convicted of ag g rava ted kidnapping of Valenzuela and evading arr est or detention with a vehicle. P u n i s h m en t for the latter char g e included an enhanc ement for use of a motor vehicle a s a dea dly wea pon. Adame now appea ls his convictions on both char g es.

DISCUSSIO N

This appea l involves two separ ate char g es broug h t p u r s u a n t to a s in g le in d ictment and tried in one criminal proce eding

. The criminal proce eding resulted in two judgme nts rende red under

Testimony at t rial i ndicates that an air g un is simil ar in action to a BB gun. I t is unclear 2 from the r ecor d whether

Valenzuela kne w it was not a “ rea l” gun.

2the same cause number—one based on the ag g ravated kidnapping char g e and the other based on the

evading -ar

rest-or -dete ntion char g e. Adame asser ts a single point of err or challeng ing the sufficie ncy of the evidenc e to support the judgme nt of conviction for ag g ravated kidnapping , claiming that the evidenc e is insufficient to establish that Ad am e’ s actions wer e without Valenzuela’ s consent and that Adame intended to use Valenzuela as a shield o r h o s t age . See Tex. Penal Code Ann. 3 §§ 20.01(1), (2) (def

initions of “re strain” and “abduc t”), 20.03 (kidnappin g ) , 2 0

. 0 4 ( a ) ( 2 ) ( a g g ravated kidnapping , human shield or hostag e) (We s t 2 0 1 1 ). Appellate counsel seeks to withdraw from repr esenta tion as to the judg ment of convic tion for eva ding a rre st or detention, conc luding that a n appea l of that judg ment is frivolous and without merit. We will consider these matter s in turn. Aggravated Kidnappi ng

When revie wing the sufficie ncy of the evidenc e to sustain a criminal conviction, we view the evidenc e in the light most favor able to the verdic t and deter mine whether any rational trier of fac t could have found the essential elements of the crime bey ond a re as o nable doubt. Jack son

v. Virginia , 443 U.S. 307, 3 19 (1979); Brooks v. State , 323 S.W .3d 893, 912 (Tex. Crim. App. 2010). Any incons i s t en ci es in the evidenc e should be resolved in favor of the verdic t. Moreno

v. State , 755 S.W .2d 866, 8 6 7 (Tex. Crim. App. 1988). The sufficie ncy of the evidenc e is deter mined from the cumulative eff ect of all the evidenc e; eac h fac t in isolation need not e stablish

Adame also challeng es the evidenc e conce rning whether he used or exhibi ted a deadly 3 wea pon during the commission of kidnapping , which is an independe nt basis for elevating ordinary kidnapping to ag g ravated kidnapping

. See Tex. Penal Code Ann. § 20.04(b) (West 2011). We need not consider this argument, howeve r, beca use the jury was not asked to consider the use of a deadly wea pon as a ba sis for convicting Adame of ag g ravated kidnapping

. 3the g uilt of the acc used. Alexande r v. State , 740 S.W .2d 749, 758 (Tex. Crim. App. 1987). The jury

is the exclusive judg e of the fa cts proved, the weig ht to be g iven the testimony , and the cre dibilit y of the witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Alva r a d o v. State , 9 1 2 S.W .2d 199, 207 (Tex. Crim. App. 1995), overruled on other grounds by W arner v. S t a t e , 245 S.W .3d 458, 463 (Tex. Crim. App. 2008). The jury is free to rejec t or ac cept a ny or all of the evidenc e prese nted by either party

. Saxton v. State , 804 S.W .2d 910, 914 (Tex. Crim. App. 1991). The jury maintains the power to draw rea sonable infere nces from basic fac ts to ultimate fac ts. W elch

v. State , 993 S.W .2d 690, 693 (Tex. A pp.—San Antonio 1999, no pet.). The revie wing court may impinge on the t rier of fac t’s discretion only to the ex tent nece s s ar y t o g uara ntee the fundame ntal protec tion of due proc ess of law

. Jack son v. Virginia , 443 U.S. at 319. To establish “a ggra v ated kidnapping ” as char g ed in the indictment, the jury was require d to f

ind that A dame intentionally or knowing ly abducte d Valenzuela with the intent to use her as a shield or a hostag e. See Tex. Pena l Code Ann. § 20.04(2). “‘Abduct’ means to restra in a 4 person with intent to preve nt his liberation by : . . . using or threa tening to use d ea d l y force.” Id. § 20.01(2)( B)

. “‘Restra in’ means to restric t a person’ s movements without consent, so as to interfe re substantially with the person’ s liberty , by moving the p er s o n fr o m one place to another or by confining the person. Restraint is ‘without consent’ if it is acc omplished by : (A) forc e, intimi dation, or dec eption . . . .” Id. (1)( A).

The indictment also char g ed Adame with abduction with the intent to fac ilitate the 4 commission o f a fe l o n y o r the flig ht afte r the attempt or commission of a felony

. See Tex. Penal Code Ann. § 20.04(3). Although the State mentions this g round in its appellate brief, this char g e was not submit ted to the jury

for their consideration. 4I n this case , a number of witnesses—including police office rs and a

by stander—te stified that Adame forc efully remove d Valenzuela from the vehicle as she resisted, put her in a “choke hold,” led her down the highw ay toward a populated shopping are a, and place d her body in a manner that acte d to shield his body from more than twenty police office rs pointing their

wea pons at Adame and Valenzuela. The witnesses testified that Valenzuela was visibly distressed

an d distraug ht both during and afte r the incident. Corporal Ger ald Wines of the Austin P o l i ce Depa rtment fu rt h er testified that immediately afte r Adame was shot, Valenzuela confe ssed to the robber y but sta ted that she “wa sn’t in it for this shit.” Some of these e vents wer e also c apture d on video, which the jur

y viewed. I n addition to t h e fore g oing, the jury hear d testimony from Valenzuela that she sug g ested to Adame that he take her as a hostag e, but she also testified that, befor e she offe red to be taken hostag e, Adame had (1) made sever al statements indicating to her that he wanted to die rathe r than g o to prison, (2) stated that he would kill her, (3) ref used to stop the vehicle when she asked him
to do so, and (4) pointed his g un at police office rs in what she believed to be provocative behavior

. Valenzuela testified that she did not want to die, she wa nted to see her children and g randc hildren ag ain, and she did not want Adame t o point his g un at the police of fice rs. She said that she a sked Adame to take her as a host ag e so they would not die i n a shoot -out with police. Valenzuela said she co n sented to her “display ” as a hostag e—g etting out of the car , walking down the road with Adame pointing the g un at her, and acting like an actua l hostag e or shield. But she also testified that she did not consent to being forc efully remove d from Adame’ s vehicle, being place d in a choke hold,

or being used as a shield. Her g oal, she testified, was to make it out alive, but she believed Adame

5would put her in the pathway of a bullet or would have shot her himself if he had a “re al” g un. The

jury also hear d Valenzuela testify that, afte r the incident, she confe ssed to the robber y and signe d a statement that Adame took her hostag e. She admitted that she did not tell police or prosec utors until about a we ek bef

ore tria l that it was her idea to be a hostag e. I t is the exclusive province of the jury to assess the cre dibilit y o f a wi t n es s and to

rec oncile inconsistencies in a wi t n es s ’s testimony

. See Tex. Code Crim. Proc. Ann. art. 38.04. Ba sed o n the evidenc e admitted at trial, the jury could rea sonably have disreg arde d Valenzuela’ s trial testimony reg arding her consent as not being cre dible, espec ially in light of her prior inconsist ent statements and the testimony of sever al ey e witnesses to her and Adame’ s action s and demea nor following the conclusion of the car chase

. Or the jury could have cre dited Valenzuela’ s testimony that, reg ardle ss of whe t h er s h e initially consente d to be Adame’ s hostag e, she did not consent to being used as a human shield. The jury could likewise have deter mined that Valenzuela’ s consent

was itsel f ac complished by forc e or intimi dation. Considering all the evidenc e in the light most favor able to the verdic t, a rational trier of fac t could have deter mined bey ond a rea sonable doubt that Adame abducte d Valenzuela with the intent to use her either as a shield or as a hostag e. We there fore overr

ule Adame ’s suffic iency -of- the-e vidence challeng e. Evading Ar rest or Detention

Adame’ s court-a

ppointed attorney has filed a motion to withdraw as counsel for the appea l of the evading -ar rest-or -dete ntion j u d g ment of conviction on the basis that the appea l is frivolous and without merit. The motion is supported b y a brief that meets the require ments of Anders v. Calif

ornia , 386 U.S. 738, 7 4 4 (1967), and prese nts a profe ssional evaluation of the
6rec ord demonstrating why there are no arguable g rounds to be advanc ed. See also Penson v. Ohio ,

488 U.S. 75 (1988); High v. State , 573 S.W .2d 807 (Tex. Crim. App.1978); Currie v. State , 516 S.W .2d 684 (Tex. Crim. App. 1974); Jack son v. State , 485 S.W .2d 553 (Tex. Crim. App.1972); Gainous v. State , 436 S.W .2d 137 (Tex. Crim. App.1969).

Adame rec eived a copy of counsel’s brief and was advised of his rig ht to examine the appellate rec ord and to file a pro se brief as to the evading -ar rest conviction. See Anders , 386 U.S. at 744. No pro se br ief or othe r written r esponse ha s been f iled. We have revie wed the rec ord, including appellate counsel’s brief , and find

no reve rs i b l e er ror as to Adame’ s evading -ar rest-or -dete ntion conviction. See Garner v. State , 300 S.W .3d 763, 766 (Tex. Crim. App. 2009); Bledsoe v. Stat e , 1 7 8 S.W .3d 824, 826–27 (Tex. Crim. App. 2005). We ag ree with counsel that the appea l is frivolous with reg ard to that judgme nt. Counsel’s motion to wit hdrawis theref ore g rante d.

CONCLUSION The judg ments of conviction ar e af firmed.

_________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: F ebrua

ry 29, 2012 Do Not Publish
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