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

CLERKAppellee: 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 DistrictAttorney 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

nTABLE OF CONTENTS NAMES OF PARTIES TABLE OF CONTENTS iu INDEX OF AUTHORITIES iv STATEMENT OF THE CASE 2 

### AHays 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 insaid cause and was sentenced toLife inPrison 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 QUESTIONTOVENIREPANEL. 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

niINDEX 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 Butcherv. 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 

### FullerV. 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

### Martinv. State, 200S.W.3d 635 (Tex. Crim. App. 2006) 4 Mathis V. State, 576 S.W.2d 835 (Tex. Crim. App. 1979) 4 Moorev. 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.2d641 (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) 8NOS. 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 1STATEMENT 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 werejoined? Appellant pled not guilty. Ajury trial commenced on February 9, 2015.'^ Appellant
was convicted insaid cause and was sentencedto 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 offacts, 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 CR93; CR-12-0637 CR 116,118.

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

, 118. Page 2SUMMARY OF THE ARGUMENT 

### The State's hypotheticaljuryquestion falls far short ofattempting tocommit a 

### venirememberto 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, ifany, is harmless. Additionally, it is clearfi*om theevidence attrial 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, theevidence is legallysufficient to support thejury'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 of Review 

### The trial court has broad discretion over the jury selection process.^ The propriety ofa particular question is within the trial court's discretion and will not be 

### disturbed absent an abuse ofdiscretion.^ A trial court's discretion is abused only when aproper question about a proper area ofinquiry 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.2dat 163; Faulderv. 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 ajuror's views on an issue applicable to the case.^^ An otherwise proper question is impermissible, however, if it attempts to commit the 

### jurorto aparticularverdictbased onparticular facts/* Both theState and defense are entitled tojurors 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 themaximum 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 fromjurors, such as considering the full range ofpunishment, an attomey may askprospective 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 toconsidertheminimum sentence based onspecific 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 tobind 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 ofone 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 askwhetherjurors couldbe unpartial in a caseinvolving a victimwho was eightto ten yearsold); Moorev. 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 whethervictim-impact evidence would prevent ajurorfrom assessing a lifesentence).

Halprinv. 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 theprospectivejuror wouldresolve orrefrain fromresolving an issuein the case on the basis of one or more facts containedin the question." Page 5restaurant 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'sworried. He's becoming agitated that she's not giving in to his advances in the car. He starts kissing on her 

### neckand she'spushingaway, and heslaps her, and she ispushing away and he punches her. All right. Maybe he pulls herpants 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 tohim. Is thereanybody here 

### underthose hypothetical facts that would not considerprobation?^^ 

### This question was not improper.^' The voir dire record's totality reflects that the prosecution explained that theveniremember shouldhave an open mind andconsider
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. Thefacts in this cause are drastically different thanthose 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 forhervehicle.^^ Instead of taking M.A. to agas station, Montoyapulled
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 toperform oral 

### sex on Montoya.^^ Montoya then penetrated M.A.'s sexual organ with his penis.^^ M.A. reached for abeer bottle in thetruck and struck Montoya over thehead.^^ Both 

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

### cell phone, onthe ground ather feet and left.^'^ M.A. then calledthepolice.^' TheState's hypotheticaljuryquestion falls farshort ofattempting to commit a 

### venirememberto consider the minimum sentence based onspecific evidentiary facts. Therefore, thetrial court didnotabuse itsdiscretion asthis question was not an 

### improper commitment question.^^

M.A. is a pseudonymused 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, theerror is subject to aharmless 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 

### biasedjuror—one who had explicitly orimplicitly promised toprejudge some aspect 

### ofthe case because ofthe State's improper questioning—actually sat on thejury."^^ 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 importantto theverdict.^^ In determining whether the State's improper commitment questions to the 

### venire panel were harmfiil, appellate courts might considerthefollowing factors; 1) whether the questions were unambiguously improper and attempted to commitone or moreveniremembers to a specific verdict or courseof action; 2) how many, ifany, 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 orinfluence indetermining thejury'sverdict.").

Sanchez, 165 S,W.3d at 713. ''Id. Page 83) whether the venire members who agreed to commit themselves actually served on thejury; 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 ofaction 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 ofaction as a result ofthe 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, ifany, did not affectMontoya's substantial rights. Error, ifany, is harmless. Montoya's issue one claim is meritless.

Page 9STATE'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 of EvidenceStandard of Review 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 thatthejuryresolved conflicts in thetestimony, 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 actrationally[;]... [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.3d893,912 (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 thetestimony, to weightheevidence, 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, thejury's credibility determination is paramount.'^'^ Therefore, a decision is not manifestly unjust solely because a court of appeals would have resolved the 

### conflicting evidence inadifferentway."^^ 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) theproximity ofauthorities orpersons who couldaid or assist; (3) the time ofday; (4) climatic conditions; (5) the condition ofthe victim; (6)the character of the location or surrounding 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,983 S.W.2d 249,254 (Tex. Crim. App. 1998). Page 11Factors 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.""^^ Forexample, the age ofthe complainantmaybe significant, or otherfactors such as the competency of the complainant or whether the complainant 

### has aphysical disability maybesignificant."^^ Analysis: Evidence sufficient to support jury's unsafeplacefinding Sufficient evidence was presented such that a rational trier offact 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. TheCourts havefound that this timeofday is not safe.^^ Climatic conditions: It was a coldFebruary evening and M.A. was wearingher work 

### polo and a jacket.^' Further, M.A. had her clothes torn during the violent assault.^^ Theremoteness 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 [14thDist.] 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 andattempt to walk down theinterstate 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 aride to agas station, because there wasn't a gas station around, andit wascold out."^^ The character ofthe location or surrounding neighborhood: M.A. affirmed that 

### there were no spotlights orstreetlights inthe 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 ofauthorities or persons who could aid or assist: After the assault, 

### M.A. was left at this interstate underpass, out ofother motorists' view.^^ M.A. was 

### not able to get her phone working immediately because it was placed in airplane mode by someone otherthan herself^* 

### The victim's condition: M.A.'s clothes were ripped.^^ She was injured, scared, and herbelongings 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 13The 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 haverelied 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 hypotheticaljury question falls far short ofattempting to commita 

### veniremember to consider theminimum sentence based on specific evidentiary facts. Therefore, the trial court did not abuse its discretion as this was not an improper 

### commitment question.^^ Ifthis Court finds an abuse ofdiscretion, error, ifany, 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 14safeplace. 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 thejury's verdict, Respectflillvg^mitted,

rsKine iaR^ 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 15CERTIFICATE OF COMPLIANCE WITH TEX. R, APR P., RULE 9.4 

### I certify thatthis briefcontains 2,350 words, exclusive of the caption, identity ofparties and counsel, statement regarding oral argument, table ofcontents, index of 

### authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement ofprocedural history, signature, proofofservice, certification, certificateofcompliance, and appendix.



### ^-^mn^rskin^

Asst. Criminal District Attorney

Page 16CERTIFICATE OF SERVICE I certifythat a true copy of the foregoing brief has beenemail-delivered to: 

### Ariel Payan viaemail: arielpayan@hotmail.com on this the 13th day ofJune, 2016.

fan Erksine Asst. Criminal District Attorney

Page 17