# Brief on Appeal No. 03-15-00144-CR (Count I) IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN



### Christopher Arthur Kurtz

Appellant v. 

### The State of Texas Appellee On Appeal In Case Number CR2014-343, from the 207th, District Court of Comal County, the Hon. Jack Robison, Judge Presiding

Submitted by: 

### John G. Jasuta Attorney at Law State Bar Card No. 10592300 lawyer1@johnjasuta.com 

### David A. Schulman Attorney at Law State Bar Card No. 17833400 zdrdavida@davidschulman.com 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Christopher Arthur Kurtz 

### Oral Argument Not Requested ACCEPTED 03-15-00144-CR 5556010 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/5/2015 7:45:36 AM JEFFREY D. KYLE

CLERK

### Identity of Parties and Counsel

Pur s uant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following is a complete list of the names and addresses of all parties to the trial court’s final judgment and their counsel in the trial court, as well as appellate c ounsel, so the members of the Court may at on c e determine whether they are disqualified to serve or should recuse themselves from participating in the decision o f the case and so the Clerk of the Court may p roperly notify the parties to the trial court’s final judgment or th e ir counsel, if any, of the judgment and all orders of the Court of Appeals. 

### Appellant

C hristopher Arthur Kurtz TDCJ No. 01968855 Trial Counsel M att Stolhandske SBN 19278750 Venessa D. Rodriguez SBN 24077794 1 004 S. St. Mary’s San Antonio, Texas 78205 Appellate Counsel John G. Jasuta SBN 10592300 David A. Schulman SBN 17833400 1801 East 51st St, Ste 365-474 Austin, Texas 78723 

### State of Texas Jennifer Tharp Criminal District Attorney 150 North Seguin, Suite 307 New Braunfels, Texas 78130 Trial Counsel Clayten H. ‘Clay’ Hearrell SBN 24059919 Chari L. Kelly SBN 24057939 Appellate Counsel Joshua Presley SBN 24088254

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### Table of Contents Identity of Parties and Counsel.
. . . . . . . . . . . . . . . . . . . . . . . i Index of Authorities.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Statement of the Case.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Issues Presented .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statement of Facts.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Point of Error Restated.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The Evidence Is Insufficient To Prove Aggravated Kidnapping
. Relevant Facts.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Summary of the Argument.
. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Argument & Authorities.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Conclusion.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Prayer.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Statement Regarding Oral Argument.
. . . . . . . . . . . . . . . . . . 15 Certificate of Compliance and Delivery.
. . . . . . . . . . . . . . . . . 15

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### I ndex of Authorities Texas Cases : Grotti v. State, 273 S.W.3d 273 (Tex.Cr.App. 2008).
. . . . . . 12 Kenny v. State, 292 S.W.3d 89 (Tex. App. - Houston [14th] 2007).
. . . . . . . . . . . . . . . . . 10 Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997).
. . . . . . 12 Mayer v. State, 274 S.W.3d 898 (Tex.App - Amarillo 2008) .
. . . . . . . . . . . . . . . . . . . 11, 12 Prudholm v. State, 333 S.W.3d 590 (Tex.Cr.App. 2011).
. . . . 7 Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App. 1977).
. . . . . . 10 Sanders v. State, 119 S.W.3d 818 (Tex.Cr.App. 2003).
. . . . 12 Steptoe v. State, 1 4-10-00131-CR (Tex.App - Houston [14th] January 6, 2011).
. . . . . . . . . 11 Williams v. State, No. 13-06-00220-CR (Tex.App - Corpus Christi, July 5, 2007).
. . . . . . . . . . . . 11 

### Texas Statutes / Codes : Penal Code Section 20.01(1).
. . . . . . . . . . . . . . . . . . . . . . . . . 8, 10 Section 20.01(2).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 20.02(a).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 20.04(b).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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### Statement of the Case

The following is a b rief general statement of the nature of the cause or offense: Appellant was charged by indictment with the o ffense of aggravated kidnapping (Count I), a first degree felony, in Cause No. CR2014-343 in the 2 07th District C o urt of Comal C o unty, Texas, and was convicted on that count. Punishm en t was enhanced by proof of two prior convictions. Appellant was sentenced to c onfinement for seventy (70) years. Notice of Appeal was timely given.



### Issues Presented The following is the point upon this appeal is predicated: The Evidence Is Insufficient to Prove Aggravated Kidnapping

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# Brief on Appeal No. 03-15-00144-CR (Count I) IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN



### Christopher Arthur Kurtz

Appellant v. 

### The State of Texas Appellee On Appeal In Case Number CR2014-343, from the 207th, District Court of Comal County, the Hon. Jack Robison, Judge Presiding

TO THE HONORABLE THIRD COURT OF APPEALS: COMES NOW, Christop h er Arthur Kurtz, Appellant in the above styled and numbered cause, by and through John G. Jasuta and David A
. Schulman, his u ndersigned attorneys of record, and respectfu l ly f

il es this “ Brief on Appeal” as to Count I of the indictment, and would show the Court as follows:



### S tatement of Facts On October 1, 2013, Ap p ellant picked up a friend, Alicia Dawn Sanchez, to t ake her to her new job, which she was starting
1that morning (RR Vol. 3, P. 73). Appellant was o bserved by Detective B el l o f the New Braunfels Police Department, who was looking for him t o serve an active warrant (RR Vol. 3, P. 106). Andrew Kempker, a New Braunfels Police Department Officer was call ed by D et ective Bell to effect an arrest (RR Vol. 3 , P. 15). Kempker followed Appellant , activated his emergency lights and watched as Appellant initially slowed and then accelerated at a high rate of s peed ( R R Vo l
. 3, PP. 16-17). Kempker f ollowed him onto IH 35, headed s outh ( RR Vo l
. 3, P. 18). Other officers were also involved in the pursuit (RR Vol. 3, P. 1 9 ). The pursuit involved two people on a motorcycle, a male d river and a female in the rear (RR Vol. 3, P. 19). Kempker knew neither at the time (RR Vol. 3, P
. 19). He never lost sight o f Ap p ellant during the chase (RR Vol. 3, P
. 20). The pursuit was called off by the supervisor on duty, Sergeant Cantu (RR Vol. 3, P
. 2 1). Kempker stated that the pursuit took place in Comal County (RR Vol. 3, P. 23). Appellant admitted that he knew Kempker was a p olice officer but stated that he didn’t know for su re whether Kempker was 2attempting to lawfully arrest or detain him that day (RR Vol. 4, P. 46). Chad Adams, a New B raunfels Police Department Officer found the motorcycle when called by Schertz P D but he never saw Appellant on it (RR Vol. 3, P. 4 5). He took custody of Appellan t and transported him t o the Police Department for interview (RR Vo l
. 3 , P. 47). Officer Michael Rapier of the Schertz Police Department stated that he assisted in the search for Appellant and
was on perimeter duty. He saw Appellan t an d called for him to
come out of hiding and, when he didn’t surrender, he pulled him out, handcuffed him and took him t o waiting New Braunfels Police officers (RR Vol. 3, P. 62). Later, he returned to area and found a gun and keys on top of the gu n ( R R Vol. 3 , P. 63), all in Comal County (RR Vol. 3 , P
. 64 ). Appellant admitted to having and attempting to hide the gun b ut stated that it had been put into his pocket by the passenger, Alicia Dawn Sanchez (RR Vol. 4, PP. 36, 39), who, by telling him she had a gun, and that he should avoid the police, forced his actions (RR Vol. 4, PP. 17-18, 45). 3Sanchez stated that she was s taying wi t h a friend and Appellant l ived across the street (RR Vol. 3, P
. 72). She was homeless and had just go tten a new job (RR Vol. 3, P. 73). The roommate’s car had no gas so Appellant took her to work (RR Vol. 3, P P
. 73 -7 4). While they were heading f or her work, an officer tried to pull them over (RR Vol. 3 , P. 74). Sanchez stated that she did not tell Appellant t o run from the police (RR Vol. 3 , P. 75). She stated she asked him to pull over by a gas station but he took off, instead (RR Vol. 3 , PP. 75, 80-81), after saying, “Fuck it,” (RR Vol. 3, PP. 75-76), and announcing, “ I am running.” She asked him to stop and she asked to get off (RR Vol. 3, PP. 76-77). He didn’t s top until after the pursuit ceased, and eventually let her off at the Caterpillar dealer in Schertz (RR Vol. 3, P. 77). She expressed no fear of Appellant but was scared of going to jail (RR Vol. 3, PP. 77-78, 103). S h e stated that she knew Appellant was not trying “to keep me,” (RR Vol. 3 , P. 82), that he was just running from the p o l i ce( RR Vol. 3, P. 8 3), and that he would let her off the motorcycle (RR Vol. 3, P. 85).
4Sergeant James Bell of the New Braunfels Police Department testified that the manner and means of use of the motorcycle was such that it was capable of causing death o r serious bodily injury (RR Vol. 3, P. 126). He stated that Appellant, by u sing it in such
a manner, made it impossible for Alicia Sanchez to get off of the motorcycle ( R R Vo l. 3, P. 127). There was no testimony that Sanchez ever at t em p t ed to get off of the motorcycle. Bell stated that Appellant transported Sanchez f rom one place to another (RR Vol. 3 , P. 127). Bell stated that he saw a police officer attempt to stop Appellant and he saw Appellant flee from the officer (RR Vol. 3, P. 139). He believed Appellant kn ew th e officer was an police officer (RR Vol. 3 , P. 139). Appellant admitted that he was driving the motorcycle that day (RR Vol. 4, P. 63).

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### Point of Error Restated The Evidence Is Insufficient To Prove Aggravated Kidnapping 

### Relevant Facts Alicia Dawn Sanchez stated that she was staying with a friend and that Appellant lived across the street (RR Vol. 3, P. 72). She
was homeless and had just gotten a new job (RR Vol. 3, P. 73). Her roommate’s car had no gas s o Appellant took her to work (RR Vol. 3, PP. 73-74). While they were heading for her work, an officer tried to pull them over (RR Vol. 3 , P
. 74). Sanchez stated that she pointed out
a gas s t ation in which Appellant could pull over, but that he took off instead, after saying, “Fuck it, I am running“ (RR Vol. 3, PP. 75- 76, 80-81). She said that she asked him to stop and she asked to get off (R R Vo l
. 3 , PP. 76-77), and he s ubsequently let her off at the Caterpillar dealer in Schertz (RR Vol. 3, P. 77). Sanchez stated that she knew Appellant was not trying “to keep me“ (RR Vol. 3, P.

682), that he was just running f rom th e p o l i ce ( RR Vol. 3, P. 83), and that he had let her off the motorcycle (RR Vol. 3, P. 85).



### Summary of the Argument The State’s evidence was insufficient to show aggravated kidnapping, because there was no evidence of an abduction.



### Argument & Authorities S anchez was the named complainant in the aggravated kidnapping case. Sanchez testified that she always knew she was not being taken by Appellant in any way and would be released. It is clear from her t estimony that Appellant di d not abduct Sanchez. Ap p e llan t as s e rt s th at kid nap p ing re q u ire s an ab du c tive eve nt and an intent to exploit that ab duction. 1 There was neither in the instant case.

1 Aggravated kidnapping requires “abduction,” i.e., an “unlawful restraint” -- a substantial interference with the person's liberty, by moving the p erson from one place to another or by c onfining the person -- committed with the specific intent to prevent the victim's liberation by secreting or holding him in a place where he is not likely to be found or using o r threatening t o u se deadly force. Prudholm v. State, 333 S.W.3d 590, 599-600 (Tex.Cr.App. 2011). 7The aggravated ki dnapping s tatute under which Appellant was convicted, Penal Code § 20.04(b) states:

(b) A perso n co mmits an offense if t he person intentio nallyo r knowing ly ab ducts another person and uses or exhibits a deadly weapon during the commission of the offense. Penal Code § 20.01(2) defines “abduct” as:

(2) “Abduct” means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a p lace where he is not likely to be found; or (B) using or threatening to use deadly force. Pursuant to Penal Code § 20.01(1), “ restrain” also has a specific, statutory, meaning: (1) “Restrain” means to restrict a person’s movements without consent, so as to interfere substantially with the person’s lib erty , by moving the person from one p lace to another or by c onfining t he person. Restraint is “without consent” if it is accomplished by: (A) force, intimidation, or deception As set out in Penal Code § 20.02(a): A person commits an o ffense if he intentionally or knowingly restrains another person. While the Complainant testified that s he d id not t ell Appellant to run, and that she asked him to pull over but he intentionally sped o ff, she also testified that he did stop and let her off after the
8pursuit had been called off. She stated she knew that she would be able to get off eventually, that he would not keep her and that she knew that he was just running fro m t h e police (RR Vol. 3, P. 83). It is obviou s f

rom t he record that there was no use or threatened use o f deadly force directed toward Sanchez to compel her obedience t o a threat. At most, Appellant’s actions c onstituted a placing of a once willing rider into a dangerous situation. The actions in this case are nothing more than that posed by
a passenger who asks to be let off at a specific s pot only t o be told that s he will b e let out at a different spot for whatever reason, and then is kep t i n the car traveling at a speed which makes it d an gero u s to jump out, and then is let out at that different location. There is no abductive event in that case and there is
none here. Succinctly, in the c ase at bar, Appellan t d i d not “abduct” Sanchez, for several reasons, though he may well have “restrained” her.

9Sanchez did not testify that she feared Appell an t b u t , only testified that she feared arrest. In f act, she s tated that she knew she was not the object of his actions, but that he was, rather, only running from the police (RR Vol. 3, P. 83). She knew throughout that Appellant did not wish t o prevent her liberation and that she would be released. Sanchez’s testimony regardin g Ap p ellant’s actions toward the Complainant, and Appellant’s t e stim o ny, constitutes the only evidence as to his intent. Under Penal Code § 20.01 ( 2 ) ( B), “ abduct,” as alleged in this case, means to restrain a person with the intent to preven t liberation by using or threatening deadly force. U nder Penal Code § 20.01(1), “restrain” means to restrict a person’s m ovement with ou t consent s o as to interfere substantially with his or her liberty by moving him o r h er from one place to another. Threats may be c o mmunicated by actions, words, o r deeds, including acts amounting to an offer to use future f o rce. Rogers v. State , 550 S.W.2d 7 8 , 81 (Tex.Cr.App. 1977); Kenny v. State, 292 S.W.3d 89, 98 (Tex. App. - Houston [14th] 2007).
1 0The greatest difference between unlawful re straint and aggravated

kidnapping is whether t

he victim was “abducted”: re strained with the intent to prevent t

he victim’s liberation by secreting or holding her in a place not likely to be found, or using or threatening to use deadly force
. Williams v. State, No. 13-06-220-CR (Tex.App - Corpus Christi, July 5, 2007)(not designated for publication). In this case there was no deadly force used t oward the victim in an effort to prevent h er l iberation nor was there any threat to the victim t o u se deadly f orce sh o u l d Sanchez seek liberation. Sanchez made no attempt to leave Appellant’s company only to be forcibly returned as the victim did in Steptoe v. State, 14-10-00131-CR (Tex.App - Houston [14th] January 6, 2011)(not designated for publication). All the evidence in this case showed
was the reckless exposure o f t h e victim to a substantial risk of serious bodily injury. Appellant was, therefore, guilty o f unlawful restraint, at most. The instant case is similar t o , b ut distinguishable from, Mayer v. State, 274 S.W.3d 898 (Tex.App

- Amarillo 2 008), in wh i ch t h e defendant argued that his intent was not to hold the victim in a place where sh e is not likely to b e found, but rather, that his intent was to flee from the convenience store t o avoid
1 1capture for h i s assault on the victim. The C o urt of Appeals reasoned: this does not negate his intent to abduct. Even by appellant’s own argument that he sought to flee f

rom the store to av o id c ap ture, he was doing so by attempting to reach a location where he could not be found. However, in his attempt to avoid capture, all the evidence at trial showed that a ppellant forced Tammy to go with him. Therefore, by seeking a location where he c ould not be found and by forcing Tammy to go with him, he was taking Tammy to a location where it was likely that she would not be found. Mayer , 274 S.W.3d at 901. In the case at bar there is no showing th at Appellant used any force to compel Sanchez to go with him, and certainly no force directed at her. She never felt compelled in any manner. The evidence is viewed in the li ght most favorable to the verdict t o determine whether any rational j u ry could have found the essential elements of aggravated kidnapping beyond a reasonable doubt. Sande rs v. S tate, 119 S.W.3d 818, 820 (Tex.Cr.App. 2003). Legal sufficiency is measured by the elements of the o ffense as d efined by a hyp o t h et ically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1 997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex.Cr.App. 2008). From this perspective it is plain that there was no evidence of abduction.
1 2N o t only did Sanchez not seek “ liberation,” no one was seeking to “ liberate” her. There was no thought in anyone’s mind that Sanchez was anything but a willing rider brought into the situation only by B ell’s call for the arrest o f Appellant while Sanchez was on the back of Appellant’s motorcycle. There was no intimation t h at Appellant gave Sanchez a ride to work that morning so he c ould take her and hold her against her will, or that he ever had the d esi re t o d o anything to or with her but deposit her somewhere after he had completed his flight from the police. Under Penal Code § 20.04(b), an d a hypothetically-correct charge in th is case, the jury was required to find, beyond a reasonable doubt, that Appellant “in tentionally or knowingly ab duct[ed] another person and use[d] or exhibit[ed] a deadly weapon during the commission of the o ffense.” There was absolutely no evidence that Appellant abducted Sanchez, because he did not use any force d irected t o Sanchez, or anyone else, in an effo rt to p revent her liberation which was never sought, nor was he ever shown to have intended to prevent Sanchez’s liberation.
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### Conclusion

The evidence is insufficient to support the jury’s verdict as to Count I of the indictment, alleging aggravated kidnapping. Appellant is entitled to an acquittal as to that Count. 

### Prayer W H E RE FO RE , PRE M I S E S C O N S I D E RE D , C h ri s to p h e r Arthu r Kurtz, Appellant in the above styled and numbered cause respectfully prays that this Honorable Court will review this brief, and, upon submission of the case to the Co u rt, will vacate the Judgment of the court below as to the Aggravated Kidnapping and will order an acquittal.

Respectfully Submitted:

____________________________________ ___________________________________ 

### John G. Jasuta Attorney at Law State Bar Card No. 10592300 lawyer1@johnjasuta.com 

### David A. Schulman Attorney at Law State Bar Card No. 17833400 zdrdavida@davidschulman.com 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Benny Cavazos Valverde

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### Statement Regarding Oral Argument Oral Argument is Not Requested. 

### Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfectTM X7 software, contains 2,653 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on June 5 , 2015, a true and correct copy of the above and foregoing “Brief on Appeal” was transmitted via the eService function on the State’s eFiling portal, to Joshua Presley (preslj@co.comal.tx.us), counsel of record for the State of Texas.

______________________________________ John G. Jasuta

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