NOS. 03-15-00125-CR; 03-15-00126-CR

COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT

JAMES MONTOYA,

Appellant

VS.

THE STATE OF TEXAS,

Appellee

APPEAL FROM

THE 207TH JUDICIAL DISTRICT COURT

HAYS COUNTY, TEXAS

TRIAL COURT CAUSE NOS. CR-12-0635; CR-12-0637

STATE'S BRIEF

Brian Erskine

Assistant Criminal District Attorney

712 South Stagecoach Trail, Suite 2057

San Marcos, Texas 78666

State Bar No. 24074182

Attorney for the State ofTexas

brian.erskine@co.hays.tx.us

ACCEPTED

03-15-00125-CR

11112493

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/13/2016 2:09:33 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/13/2016 2:09:33 PM JEFFREY D. KYLE Clerk
Appellee:

Attorneys for the State:

At trial:

On appeal:

Appellant:

Attorney:

At trial:

On appeal:

NAMES OF PARTIES

State ofTexas

WesleyH. Mau, Criminal DistrictAttorney

BrianErskine, Assistant Criminal District Attorney

Laura Garcia, Assistant Criminal District Attorney

BrianErskine, Assistant Criminal District Attorney

712 South Stagecoach Trail, Suite 2057

San Marcos, Texas 78666

State Bar No. 24074182

Attorneys for the State ofTexas

James Montoya

Ariel Payan

1012 Rio Grande

Austin, Texas 78701

Ariel Payan

1012 Rio Grande

Austin, Texas 78701

n
TABLE OF CONTENTS

NAMES OF PARTIES

TABLE OF CONTENTS iu

INDEX OF AUTHORITIES iv

STATEMENT OF THE CASE 2

A Hays County Grand Jury indicted James Montoya ("Montoya") onAugust 1, 2012

for one count of Aggravated Kidnapping in cause number CR-12-0635 and two

counts of Aggravated Sexual Assault in CR-12-0637. These cases were joined.

Appellant pled not guilty. A jury trial commenced on February 9, 2015. Appellant

was convicted in said cause and was sentenced toLife in Prison oneach charge 2

STATEMENT REGARDING ORAL ARGUMENT 2

STATEMENT OF FACTS 2

SUMMARY OF THE ARGUMENT 3

ARGUMENT 3

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING PROPER

QUESTION TOVENIREPANEL. ERROR, IFANY, IS HARMLESS

Evidence is sufficient for a rational trier of fact to have found

VICTIM WAS RELEASED IN AN UNSAFE PLACE.

CONCLUSION 14

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P., RULE 9.4 16

CERTIFICATE OF SERVICE 17

ni
INDEX OFAUTHORITIES

CASES

Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988) 3,4

Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) 5

Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 10

Butcher v. State, 454S.W.3d 13 (Tex. Crim. App. 2015) 12,13

Davis V. State, 313 S.W.3d 317 (Tex. Crim. App. 2010) 4

Faulder v. State, 745 S.W.2d 327 (Tex. Crim. App. 1987) 3

Fuller V. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) 4

Gonzales v. State, 994 S.W.2d 170(Tex. Crim. App. 1999) 8

Halprin v. State, 170 S.W.3d 111 (Tex. Crim. App. 2005) 5

Harris v. State, 882 S.W.2d 61 (Tex. App.—^Houston [14thDist.^

1994, pet. refd) 13

Jackson V. Virginia, 443 U.S. 307 (1979) 10

Johnson v. State, 982S.W.2d 403 (Tex. Crim. App. 1998) 4

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) 11

Lopez V. State, 2013 WL 4487555 (Tex. App.—^Austin Aug. 15,

2013, no. pet. h.) 11

Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000) 11

iv
Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006) 4

Mathis V. State, 576 S.W.2d 835 (Tex. Crim. App. 1979) 4

Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999) 5

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) 12

Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) 5

Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005) 8, 9

Smith V. State, 703 S.W.2d 641 (Tex. Crim. App. 1985) 4

Standeferv. State, 59 S.W.3d 111 (Tex. Crim. App. 2001) 3,4, 5, 6, 8, 15

Watson V. State, 204 S.W.3d404 (Tex. Crim. App. 2006) 11

Williams v. State, 718 S.W.2d 772 (Tex. App.—Corpus Christi

1986) 12

Woods V. State, 152 S.W .3d 105, 109-110 (Tex. Crim. App.

2004) 8

RULES

Tex. R. App. P. 38.2 1

Tex. R. App. P. 39.7 2

Tex. R. App. P. 44.2(b) 8
NOS. 03-15-00125-CR; 03-15-00126-CR

COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT

JAMES MONTOYA,

Appellant

VS.

THE STATE OF TEXAS,

Appellee

APPEAL FROM

THE 207TH JUDICLVL DISTRICT COURT

HAYS COUNTY, TEXAS

TRIAL COURT CAUSE NOS. CR-12-0635; CR-12-0637

STATE'S BRIEF

TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:

COMES NOW the State of Texas, by and through her Assistant District

Attorney, Brian Erskine, and files this Brief in Opposition to Appellant's Brief

pursuant to Texas Rules ofAppellate Procedure Rule 38.2 and would show the Court

the following:

Page 1
STATEMENT OF THE CASE

A Hays County Grand Jury indicted James Montoya ("Montoya") on August 1,

2012, for one count of Aggravated Kidnapping in cause number CR-12-0635^ and

two counts ofAggravated Sexual Assault inCR-12-0637.^ These cases were joined?

Appellant pled not guilty. A jury trial commenced on February 9, 2015.'^ Appellant

was convicted insaid cause and was sentenced to Life inPrison on each charge.^

STATEMENT REGARDING ORALARGUMENT

The State requests oral argument to aid the Court in the decisional process

related to Montoya's assertions.

STATEMENT OF FACTS

The State does not object to Montoya's statement of facts, however, pertinent

facts have been supplemented to resolve the issues presented by Montoya and to

clarify interpretations ofMontoya's actions.

'CR-12-0635 CR5.

^CR-12-0637CR6.

^CR-12-0635 CR8; CR-12-0637 CR9.

^CR-12-0635 CR 93; CR-12-0637 CR 116,118.

CR-12-0635 CR 33; CR-12-0637 CR 56.

, 118.

Page 2
SUMMARY OF THE ARGUMENT

The State's hypothetical juryquestion falls far short of attempting to commit a

veniremember to consider the minimum sentence based on specific evidentiary facts.

Therefore, the trial court did not abuse its discretion.^ Ifthis Court finds an abuse of

discretion, error, if any, is harmless. Additionally, it is clearfi*om the evidence at trial

that Montoya did not leave M.A. in a safe place. The jury could have relied on

M.A.'s testimony to ascertain whether Montoya left her in a safe place. Therefore,

the evidence is legallysufficient to support the jury's verdict.

ARGUMENT

STATE'S RESPONSE TO POINT OF ERROR ONE

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN

ALLOWING PROPER QUESTION TO VENIREPANEL. ERROR, IF

ANY, IS HARMLESS

Standard ofReview

The trial court has broad discretion over the jury selection process.^ The

propriety of a particular question is within the trial court's discretion and will not be

disturbed absent an abuse of discretion.^ A trial court's discretion is abused only

when a proper question about a proper area of inquiry is prohibited.^ A question is

^SeeStandeferv. State, 59 S.W.3d 177,181 (Tex. Crim. App. 2001).

^Allridge v. State, 762 S.W.2d 146,167 (Tex. Crim. App. 1988).

®AUridge, 762 S.W.2d at 163; Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987).

^AUridge, 762 S.W.2d at 163.

Page 3
proper if it seeks to discover a juror's views on an issue applicable to the case.^^ An

otherwise proper question is impermissible, however, if it attempts to commit the

juror to a particular verdict based onparticular facts/* Both theState and defense are

entitled to jurors who can consider the entire punishment range for the particular

statutory offense—i.e., from the maximum to the minimum and all points in

12 between. Jurors must be able to consider both "a situation in which the minimum

penaltywould be appropriate and ... a situation in which the maximum penaltywould

I o

be appropriate." Therefore, both sides may question the panel on the punishment

range*"* and may commit jurors to consider the entire punishment range for the

statutory offense.'^ A question committing a juror to consider the minimum

punishment is both proper and permissible.'^ However, counsel veers into

Smith V. State, 703 S.W.2d641, 643 CTex. Crim.App. 1985).

" Standefer, 59S.W.3d at 181.

Johnsonv. State, 982 S.W.2d 403,405-06 (Tex. Crim. App. 1998).

Fuller V. State, 829 S.W.2d 191,200 (Tex.Crim.App. 1992).

See Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006) (both the defense and the State are

permitted to voir dire potential jurors concerning the range of punishment for felony and misdemeanor

driving-while-intoxicated charges); Mathisv. State, 576S.W.2d 835,839 (Tex. Crim. App. 1979).

Davis V. State, 313 S.W.3d 317, 346 (Tex. Crim. App. 2010) ( "When the law requires a certaintype of

commitment from jurors, such as considering the full range of punishment, an attomey may ask prospective

jurors to commit to following the law in that regard.").

See Standefer, 59 S.W.3d at 181 ("[Q]uestions concerning a juror's ability to consider the full range of

punishment for a particular offense meet ... the defmition of commitment questions but are nevertheless

proper.").

Page 4
impermissible commitment questions when he attempts to commit a veniremember

to consider theminimum sentence based on specific evidentiary facts.

Analysis

The State may provide examples to illustrate various scenarios in which a

defendant would be guilty of an offense without asking a commitment question.

Even if those examples are given in the context of a discussion on the juror's

minimum punishment consideration, unless the question attempts to bind thejuror, it

is not a commitment question.*^ The prosecution's question did not attempt to bind

the venirememberto resolve or refi*ain fi-om resolving an issue on the basis of one or

more facts contained inthe question.*^

During its voir dire, the state asked the following question ofthe venire:

Okay. So is there a hypothetical set of facts where you can consider

probation for aggravated kidnapping and aggravated sexual assault? For

instance, a young married couple going through a tumultuous

relationship. They are separated. There's allegations of infidelity

between both of them, on either side, but they are thinking about

working it out. He calls her up and says, Hey, I want to take you out on

a date. Let's go get a dinner and a movie. Right. She says reluctantly,

Okay. He goes and picks her up and he drives, but he doesn't go near a

17 See, e.g., Barajas v. State, 93 S.W.3d 36, 38, 40 (Tex. Crim. App. 2002) (improper to askwhether jurors

couldbe unpartial in a case involving a victimwho was eightto ten years old); Moore v. State, 999 S.W.2d

385, 406-07 (Tex. Crim. App. 1999) (improper to askjuror, who stated that she could consideryouth as a

mitigating factor, whether she would consider a nineteen-or twenty-year-old a "youth" for purposes of

unposing thedeath penalty); Penry v. State, 903 S.W.2d 715, 740 (Tex. Crim. App. 1995) (improper to ask

whether victim-impact evidence would prevent ajurorfrom assessing a lifesentence).

Halprin v. State, 170S.W.3d 111, 123 (Tex. Crim. App. 2005) reh'gdenied.

SeeStandefer , 59 S.W.3d at 180; Question is a commitment question "if one or more of the possible

answers is that the prospective juror wouldresolve or refrain fromresolving an issuein the case on the basis

of one or more facts containedin the question."

Page 5
restaurant or a theater, but instead he goes to a remote park and he

parks the vehicle. Right. Here you have deception, secreting to a place

not likelyto be found. Okay. She's worried. He's becoming agitated that

she's not giving in to his advances in the car. He starts kissing on her

neckand she'spushing away, and heslaps her, and she ispushing away

and he punches her. All right. Maybe he pulls her pants down and he

touches her. Okay. And she pushes away, she opens the door and she

runs, and she calls the cops. So you have contact, right, with her sexual

organ. You have aggravated sexual assault You have aggravated

kidnapping. Let's assume for the moment that those set offacts meet the

elements ofthat crime. Now, that man has never before ever committed

any crime. He's young. He has a job. He's remorseful. Probation is ten

years, fines, classes, course work, intensive supervision. He's a

candidate. A good one. And it is available to him. Is there anybody here

under those hypothetical facts that would not consider probation?^^

This question was not improper.^' The voir dire record's totality reflects that the

prosecution explained that the veniremember shouldhave an open mind and consider

all ofthe evidence.

Appellant asserts the question allowed by the trial judge was a commitment

question, which propounded facts that were unnecessary to a proper question as to

the juror's ability to consider the full punishment range in a case. Appellant further

objects to the italicized facts in the State's hypothetical as unnecessary to reach the

stated question. The facts in this cause are drastically different than those espoused

in the State's hypothetical.

2 RR 120-122. Emphasis as reflectedin Appellant's brief,pg. 8.

See Standefer, 59 S.W.3d at 180-82.

Appellant's brief, pg. 8.

Page 6
Prior to the assault, and Montoya were unknown to each other.^'*

Montoya picked M.A. up from the side of the interstate and offered to help her

retrieve gas for her vehicle.^^ Instead oftaking M.A. to agas station, Montoya pulled

over near a secluded underpass in a construction yard and M.A. attempted to run

away. M.A. was assaulted, dragged back into the vehicle and forced to perform oral

sex on Montoya.^^ Montoya then penetrated M.A.'s sexual organ with his penis.^^

M.A. reached for a beer bottle in the truck and struck Montoya over the head.^^ Both

M.A. and Montoya exited the vehicle and Montoya threw M.A.'s stuff, including her

cell phone, on the ground at her feet and left.^'^ M.A. then called the police.^'

TheState's hypothetical jury question falls farshort of attempting to commit a

veniremember to consider the minimum sentence based on specific evidentiary facts.

Therefore, thetrial court didnot abuse its discretion asthis question was not an

improper commitment question.^^

M.A. is a pseudonym used for the victim in this cause.

^^3RR181.

^^3RR181.

" 3 RR 184-191.

3 RR191-193.

3 RR195-196.

3 RR 196-202.

^'3RR203.

See Standefer, 59 S.W.3d at 180-82.

Page 7
Even if the trial court abused its discretion by allowing the State's improper

commitment question, the error issubject to a harmless error analysis.^^ The standard

of harm set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure is the

proper test to determine whether a defendant has been harmed by an improper

commitment question.^'^ In determining harm, appellate courts "assess the potential

harm of the State's improper commitment questioning by focusing on whether a

biased juror—one who had explicitly orimplicitly promised to prejudge some aspect

ofthe case because ofthe State's improper questioning—actually sat on the jury."^^

The reviewing court must ultimately determine whether thejury as a whole, or any

specific juror, was "poisoned" by the State's improper commitment questions on a

legal orfact issue important to theverdict.^^

In determining whether the State's improper commitment questions to the

venire panel were harmfiil, appellate courts might consider thefollowing factors;

1) whether the questions were unambiguously improper and attempted

to commitone or moreveniremembers to a specific verdict or courseof

action;

2) how many, if any, venire members agreed to commit themselves to a

specific verdict or course of action if the State produced certain

evidence;

Gonzalesv. State,994 S.W.2d 170,171 (Tex. Crim. App. 1999).

Sanchez v. State, 165 S.W.3d 707, 713 (Tex. Crim. App. 2005); see TEX. R. APP. P. 44.2(b) (inquiiy is

whether defendant's substantial rights were affected by error); see also Woods v. State, 152 S.W .3d 105,

109-110 (Tex. Crim. App. 2004) ("A substantial ri^t is affected when the error has a substantial and

injurious effect or influence in determining thejury'sverdict.").

Sanchez, 165 S,W.3d at 713.

''Id.

Page 8
3) whether the venire members who agreed to commit themselves

actually served on the jury;

4) whether the defendant used peremptory challenges to eliminate any

or all ofthose venire members who had committed themselves;

5) whether the defendant exhausted all of her peremptory challenges

upon those venire members and requested additional peremptory

challenges to compensate for their use on improperly committed venire

members;

6) whether the defendant timely asserted that a named objectionable

venire member actually served on the jury because she had to waste

strikes on the improperly committed jurors; and

7) whether there is a reasonable likelihood that the jury's verdict or

course of action in reaching a verdict was substantially affected by the

State's improper commitment questioning during voir dire?^

Here, there is nothing in the record to indicate whether any identifiable venire

members explicitly or implicitly agreed to commit themselves to a specific verdict or

course of action as a result of the purported improper commitment question. Thus,

there is no way to know whether that venire member was struck for cause or

peremptorily, or whether he or she was chosen to sit on the jury. Therefore, the

record does not show that an objectionable venire member actually served on the

jury. In addition, the record is silent as to whether Montoya exhausted all of his

peremptory challenges. It does not show that Montoya requested more peremptory

challenges. Accordingly, based on the record, error, if any, did not affect Montoya's

substantial rights. Error, ifany, is harmless. Montoya's issue one claim is meritless.

Page 9
STATE'S RESPONSE TO POINT OF ERROR TWO

EVIDENCE IS SUFFICIENT FOR A RATIONAL TRIER OF FACT

TO HAVE FOUND VICTIM WAS RELEASED IN AN UNSAFE

PLACE.

Sufficiency ofEvidence Standard ofReview

Due process requires the State to prove beyond a reasonable doubt every

element ofthe crime charged.^^ In Texas, the Jackson standard is the only standard

apphed when courts are reviewing sufficiency of evidence claims.^^ Under the

Jackson standard appellate courts:

(1) view all the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the

essential elements ofthe crime beyond a reasonable doubt, and

(2) assume thatthejury resolved conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to

ultimate facts,'*"

The appellate court's "role on appeal is restricted to guarding against the rare

occurrence when a factfmder does not act rationally[;]... [it] will uphold the verdict

unless a rational factfinder must have had reasonable doubt as to any essential

element."^* There must be an objective basis in the record in order to say that the

Jackson v. Virginia, 443 U.S. 307 (1979).

SeeBrooksv. State, 323 S.W.3d 893,912 (Tex. Crim.App. 2010).

Lopez V. State, 03-11-00086-CR, 2013 WL4487555 (Tex. App.—^Austin Aug. 15, 2013, no.pet. h.)(citing

Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009) (statingthat under the Jackson standard, "it is

thejury's duty 'to resolve conflicts in the testimony, to weighthe evidence, and to drawreasonable inferences

from basic facts to ultimate facts").

Laster, 275 S.W.3d at 522.

Page 10
great weight and preponderance of the evidence contradicts the jury's verdict.'^^

Because the jury is the sole judge of a witness's credibility, and the weight to be

given the testimony, it may choose to believe some testimony and disbelieve other

testimony.'^^ Where testimony at trial definitively favors or contradicts the jury's

verdict, the jury's credibility determination is paramount.'^'^ Therefore, a decision is

not manifestly unjust solely because a court of appeals would have resolved the

conflicting evidence ina different way."^^

The jury alone decides whether to believe testimony and how to resolve any

conflicts orinconsistencies in the evidence."^^ Several factors might be considered in

determining whether the place in question was safe:

(1) the remoteness ofthe location;

(2) the proximity of authorities or persons who couldaid or assist;

(3) the time of day;

(4) climatic conditions;

(5) the condition ofthe victim;

(6)the character of the location orsurrounding neighborhood; and

(7) the victim's familiarity with thelocation orsurrounding neighborhood."^^

Watson V. Stale, 204 S.W.3d404,417 (Tex.Crim.App. 2006).

Margraves v. State, 34 S.W.Sd 912, 919 (Tex. Crim.App. 2000).

Watson, 204 S.W.Sd at 417.

Id.

Mosley v. State,983S.W.2d 249,254 (Tex. Crim. App. 1998).

Page 11
Factors other than the seven listed may also be considered, as this list includes merely

nonexclusive aids that may be considered to guide determination under the totality of

the circumstances of each case whether the place at which the complainant was

released was "safe.""^^ For example, the age ofthe complainant may be significant, or

other factors such as the competency of the complainant or whether the complainant

has aphysical disability may besignificant."^^

Analysis: Evidence sufficient to supportjury's unsafeplacefinding

Sufficient evidence was presented such that a rational trier of fact could have

found victim was left in an unsafe place.

The time ofday: M.A. left work in Buda, Texas around 1:15am, travelling towards

her home in New Braunfels, Texas. The Courts have found that this time ofday is not

safe.^^

Climatic conditions: It was a coldFebruary evening and M.A. was wearingher work

polo and ajacket.^' Further, M.A. had her clothes torn during the violent assault.^^

The remoteness ofthe location: M.A. ran out of gas but was able to pull her car to

the roadway shoulder somewhere on the interstate north of San Marcos, Texas.^^

Williams v. State, 718 S.W.2d 772, 774 (Tex. App.—Corpus Christi 1986), rev'd on other grounds, 851

S.W.2d 282 (Tex. Crim. App. 1993).

Butchery. State, 454 S.W.Sd13 (Tex.Crim.App. 2015).

Id.

3 RR 172-173. Harris v. State, 882 S.W.2d 61, 65 (Tex. App.—^Houston [14th Dist.] 1994, pet. refd)

(2:30am is not a safe time ofday).

^'3RR174.

" 3 RR 187-188.

Page 12
M.A. attempted calling friends and family for help to no avail.^"^ M.A. had no choice

but to leaveher car and attempt to walk down the interstate to find a gas stationin the

middle ofthe night.^^ "[M.A.] knew there wasn't one close by, probably for another

two exits or so."^^ "[Montoya] offered a ride to a gas station, because there wasn't a

gasstation around, andit was cold out."^^

The character of the location or surrounding neighborhood: M.A. affirmed that

there were no spotlights orstreetlights in the area where Montoya picked her up.^^

Montoya then drove M.A. to an underpass below the interstate and parked in "a

space onthe underpass, where they have, like, the highway bricks."^^

Theproximity of authorities or persons who could aid or assist: After the assault,

M.A. was left at this interstate underpass, out of other motorists' view.^^ M.A. was

not able to get her phone working immediately because it was placed in airplane

mode by someone other than herself^*

The victim's condition: M.A.'s clothes were ripped.^^ She was injured, scared, and

her belongings were scattered on the pavement.^^

^^3RR177.

3 RR 179-180.

3 RR 179-180.

^^3RR180.

"3RR181.

^^3RR181.

3 RR 183; State's Exhibits 2-16.

^''3RR182; State's Exhibit 1.

3 RR 202-203.

3 RR 187-188.

Page 13
The victim'sfamiliarity with the location or surrounding neighborhood: Appellant

asserts M.A. was "very familiar" with the area because M.A. stated '\o]n my way to

school on the weekends, I would pick up my friend, Mindy, that lives in a mobile

home down the street from there.^"^ At best, M.A. knew of the exit and that a

neighborhood may be nearby. There is no evidence in the record to support M.A.

knew the neighborhood was directly north of her location or a less than one mile

distance approximation as asserted byAppellant.^^

It is clear from the evidence at trial that Montoya did not leave M.A. in a safe

place. Thejury could have relied on M.A.'s testimony to ascertain whether Montoya

left her in a safe place. Therefore, the evidence is legally sufficient to support the

jury's verdict. Montoya's issue two claim is meritless.

CONCLUSION

The State's hypothetical jury question falls far short of attempting to commita

veniremember to consider the minimum sentence based on specific evidentiary facts.

Therefore, the trial court did not abuse its discretion as this was not an improper

commitment question.^^ If this Court finds an abuse of discretion, error, if any, is

harmless. It is clear from the evidence at trial that Montoya did not leave M.A. in a

3 RR 187-188; 197-201; State's Exhibits 17-34,43A-F, 44,45.

"3RR182.

Appellant's Brief, pg. 16.

See Standefer, 59 S.W.3d at 180-82.

Page 14
safe place. The jury could have relied on M.A.'s testimony to ascertain whether

Montoya left her in a safe place. Therefore, the evidence is legally sufficient to

support the jury's verdict,

Respectflillvg^mitted,

iaR^rsKine

Assistant Criminal District Attorney

712 South Stagecoach Trail, Suite 2057

San Marcos, Texas 78666

State Bar No. 24074182

Attorney for the State ofTexas

brian.erskine@co.hays.tx.us

Page 15
CERTIFICATE OF COMPLIANCE

WITH TEX. R, APR P., RULE 9.4

I certify that this brief contains 2,350 words, exclusive of the caption, identity

ofparties and counsel, statement regarding oral argument, table of contents, index of

authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proofof service, certification,

certificateofcompliance, and appendix.

^-^mn^rskin^

Asst. Criminal District Attorney

Page 16
CERTIFICATE OF SERVICE

I certifythat a true copy of the foregoing brief has been email-delivered to:

Ariel Payan via email: arielpayan@hotmail.com

on this the 13th day ofJune, 2016.

fan Erksine

Asst. Criminal District Attorney

Page 17