ORIGINAL

NO. PO-loll- 1$

IN THE

COURT OF CRIMINAL

APPEALS

OF TEXAS

DANIEL GONZALES RODRIGUES

Petitioner

V.

THE STATE OF TEXAS

XOURT OF Cru?.'.?-'/:! Af.T m,q

OCT 29 2015

n ,,-

Petition in Cause No. 1380317/ from the

351st District Court of Harris County, Texas

and the Court of Appeals for the First

District of Texas, Case No. O1-13-G>0778-CR.

FILED IN

€URTOF CRIMINAL APPEALS

OCT 29 2315

Abel Acosta, Clerk

PETITION FOR DISCRETIONARY REVIEW

Daniel Gonzalez Rodriguez #1869538

C.T. Terrell Unit

1300 FM 655

Rosharon, TX 77583

Petitioner Pro Se
TABLE OF CONTENTS

Page

Index of Authorities III

Statement Reqardinq Oral Arqument 1

Statement of the Case 1-2

Statement of Procedural History 2

Grounds For Review 2

NO. 1 - WHETHER THE COURT OF APPEALS ERRED IN HOLDING

THAT THE EVIDENCE WAS SUFFICIENT TO SUSTAIN i

PETITIONER'S CONVICTION FOR KIDNAPPING WHEN

IT DEFERED TO THE TRIAL COURT'S RESOLUTION

THAT THE FACTFINDER RESOLVED ANY CONFLICTS

IN EVIDENCE IN FAVOR OF THE VERDICT BECAUSE

THE RESOLUTION WAS NOT RATIONAL UNDER JACKSON

V. VIRGINIA, 443 U.S. AT 326, 99 S.CT. AT 2793.

NO. 2 - WHETHER THE COURT OF APPEALS ERRED WHEN IT

CONCLUDED THAT THE TRIAL COURT DID NOT ABUSE jx:

ITS DISCRETION BY REFUSING PETITIONER'S REOUEST

FOR AN UNLAWFULL RESTRAINT INSTRUCTION.

Arqument

No. 1 - Suoportinq Authorities

Arqument

3

4-6

No. 2 - Supportinq Authorities j

Arqument 7

Prayer For Relief 8

Appendix

II.
INDEX OF AUTHORITIES

Caselaw Page

Alamanza v. State- 586 S.W.2d 157 (Tex.Crim.App.1985) 7

Clark v. Proeunier, 755 F.2d 394 (5th Cir.1985) 4

Cordova v. State, 698 S.W.2d 107 (Tex.Crira.App.1985) 6

Hooper v. State, 215 S.W.3d 9 (Tex.Crim.App.2007) 3,6

In re Winship, 397 U.S. 358 (1970) 4,6

Jackson v. Virginia; 443 U.S. 307 (1979) 2,3,4

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App.2007) . 4

Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983) 4

Wooten v. State, 400 S.W.3d 601 (Tex.Crim.App.2013) 7

Constitutions and Statutes

14th Amendment U.S. Constitution 3

Texas Penal Code, §§ 20.01 & 20.02 5

Texas Penal Code, §20.03 1,5

III.
NO. PD-1071-15

'IN THE

COURT OF CRIMINAL

APPEALS

OF TEXAS

DANIEL GONZALEZ RODx^IGUEZ

Peti tioner

V.

THE STATE OF TEXAS

Petition in Cause No. 1380317 From the

351st District Court of Harris County, Texas

and the Court of Appeals for the First

District of Texas, Case No. 01-13-00778.

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE

COURT OF CRIMINAL APPEALS:

Daniel G. Rodriguez, petitions che Court to review tfte judge

ment affirming his conviction for kidnapping. (Tex. Pen. Code

§20.03, West 2011).

STATEMENT REGARDING ORAL ARGUMENT

Present circumstances considered, oral argument is waived.

STATEMENT OF THE CASE

petitioner was indicted for kidnapping. The indictment con

tained two prior felony convictions for drivinq for intoxicated

for purpose of the enhancement of the punishment, (i CR 21). After

a finding of indigency, the triai courc appointed counsel.

After trial by jury. Petitioner was found guilty as charqed

1.
on July 10, 2013. (1 CR 21). The jury sentenced Petitioner to 30-

years confinement in the Texas Department of Criminal Justice -

Institutional Division. (1 CR 51).

After Petitioner filed a timely notice of appeal, (1 CR 55),

the trial certified Petitioner's right of appeal on July 10, 2013,

(I CR 58). On Aug. 19, 2013, the trial court found Petitioner re

mained indiqent and appointed counsel to represent him on direct

appeal. (1 CR 61).

STATEMENT OF PROCEDURAL HISTORY

On July 18, 2015, the Court of Appeals for the First judi

cial District of Texas, affirmed the iudqeraent of the trial court

in Case No. 01-I3-00778^CR.

Petitioner filed a timely motion for extension of time to

file Petition for Discretionary Review, and a motion to suspend

rule 9.3(b) of the Texas Rules of Appellate Procedure. The Court

qranted both motion on 08^-19-2015, in Case No. PD-1071-15. Peti

tion for review is now due on Oct. 26* 2015.

GROUNDS FOR REVIEW

NO. 1 - THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVID

ENCE WAS SUFFICIENT TO SUSTAIN PETITIONER'S CONVICTION

FOR KIDNAPPING WHEN IT DEFERED TO THE TRIAL COURT'S

RESOLUTION THAT THE FACTFINDER RESOLVED ANY CONFLICT'S

IN EVIDENCE IN FAVOR OF THE VERDICT, BECAUSE THE RE

SOLUTION WAS NOT RATIONAL UNDER JACKSON V. VIRGINIA,

443 U.S. AT 326. 99 S.CT. AT 2793.

NO. 2 - THE COURT OF APPEALS ERRED WHEN IT CONCLUDED THAT THE

TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING

PETITIONER'S REOUEST FOR AN.UNLAWFULL RESTRAINT JURY

INSTRUCTION.

2.
ARGUMENT

•;-N0. 1-WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT

THE EVIDENCE WAS SUFFICIENT TO SUSTAIN PETITIONER'S

CONVICTION FOR KIDNAPPING, WHEN IT DEFERED TO THE

TRIAL COURT'S RESOLUTION THAT THE FACTFINDER RESOLVED

ANY CONFLICTS IN EVIDENCE IN FAVOR OF THE VERDICT

BECAUSE THE RESOLUTION WAS NOT RATIONAL ..UNDER JACKSON

V. VIRGINIA, 443 U.S. AT 326, 99 S.CT. AT 2793.

Supporting Authorities

The Due Process Clause of the 14th Amendment requires that

every State criminal conviction be supported by evidence that a

rational trier of fact could accept as sufficient to prove all of

the elements of the charged offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 316 (1979). The Due Process

quarantee is safeguarded when an appellate court reviews the legal

sufficiency of the evidence.

For the purpose of a Jackson v. Virqinia analysis, jurors

are permitted to draw inferences from the evidence as long as

those inferences are reasonable and supported by the evidence.

Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.Crim.App.2007). Legal

sufficiency analysis does not permit verdicts based on "mere specu

lation or factually unsupported inferences or presumptions." Id at

16-17. For this purpose, an inference is "a conclusion reached by

considering other facts and deducting a logical consequence from

them." Id at 16. Speculation is "mere theorizing or guessing about

the possible meaning of facts and evidence presented." A conclu

sion based on speculation may appear reasonable; however, it will

not support a finding of guilt under Jackson v. Virginia, if it

is not sufficiently supported by record facts, or evidence beyond

3.
a reasonable doubt. Id.

If there is an inference tha appellant is not guilty, a find

ing of guilt is not a rational finding. Wilson v. State, 654 S.W.2d

465 (Tex.Crim.App.1983). If the evidence equally supports both

theories of a case, the evidence is insufficient, and the review

ing court must entertain a reasonable doubt. Clark v. Procunier,

755 F.2d 394, 396 (5th Cri.1985). It is the appellate court's

duty to ensure that the evidence presented actually supports the

conclusion that the defendant committed the charged offense. Wil

liams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).

In Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983), the

court acknowledged that although Jackson v. Virginia, 443 U.S. 307,

set the standard for review of State convictions by federal courts,

the Due Process requirements that it announced were based express

ly on the 14th Amendm^rt..They are binding on the States and con

stitute a minimum'standard for sustaining a conviction. "Under

In re Winship, 397 U.S. 358, 90 S.Ct. 1088 (1970), which esta

blished proof beyond reasonable doubt as an essential of the 14th

Amendment Due Process, it follows that when such a conviction

[that was obtained even when no rational trier of fact could have

found guilt beyond a reasonable doubt]., occurs in state court, it

cannot constitutionally stand. Jackson v. Virginia, 443 U.S. 317-318.

Argument Supported By Record Facts

Petitioner asks whether the Court of Appeals has decided an

important question of State or Federal law in a way that conflicts

with the applicable decisions of the Court of Criminal Appeals or

the Supreme Court of the United States.
Petitioner would argue that the Court of Appeals failed in

its duty to ensure that the evidence presented actually supports

a conclusion that the defendant committed the crime that was

charged. Here, there i® legally insufficient evidence that Peti

tioner intentionally and knowlingly abducted (kidnapped) another

person. Texas Penal Code §20.03. Abduct means to restrain a•person

with intent to prevent his liberation by: (A) secreting of holding

him in a place where he is not likely to be found; or (B) using or

threatening to use deadly"force. Texas Penal Code §20.01(2). Re

strain means to restrict a person's movements without consent....

Texas Penal Code §20.01(1)'.

In this instance, the Court of Appeals improperly found evi

dence of intent to prevent liberation by secreting Jane by Con

cluding that Petitioner: "intended to do so by either secretion

or the use or threatended use of deadly force". The statute re

quires an intent to prevent liberation - not an intent to secrete

or an intent to use or threatening to use deadly force. Petitioner

contends the Court's Opinion is based on speculation and not the

record facts. Here, the record facts support insufficient evidence

to support a charge under Penal Code §20.03:

1. The alleged abduction occurred inside a flea market in the

morning of May 07, 2011. (4 RR 11);

.-2. There were few customers at the market because of the early

morning hour. (5 RR 25, 34, 64, 68);

3. Petitioner had been helping his friend (Jesus Gonzalez) un

load wares at the market since Sept. 2010 (over -years). (5 RR 109);

4. After unloading wares, Petitioner would remain at market and

shop. Petitioner would allways park his pick-up in same place.

(5 RR 112);

5.
5. Testimony of victim reflected that Petitioner made no effort

to hide his identity from her when they met earlier that morning

at the Market's sign in booth. (5 RR 77-78);

6. Petitioner never left the interior grounds of flea market,

signed in at flea market, and did not take child to his vehicle

or utilize exits. (5 RR 17);

7. There is no evidence in the trial record that reflects Peti

tioner was using his truck in the commission of this offense or

that he was attempting a getaway. ( CR & RR).

In reviewing the sufficiency of the evidence, the reviewing

court should look at "events occuring before, during and after the

commission of the offense and may rely on action of the defendant

which show an understanding and common design to do the prohibit

ed act. Hooper v. State, 9, 15-16 (Tex.Crim.App.2007)-(citing

Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985).

The statute under which Petitioner was convicted required the

State to prove that Petitioner restrained a person with intent to

prevent his liberation by secretion or threat of deadly force.

Here, the reviewing court merely required the State to show that

Petitioner "intended" to secrete or use deadly force." ( see

Opinion,at page 5).

Aside from the evidence showing Petitioner was holding the

child's hand and walking around inside the flea market with the

child, without the child's mother's permission. The child was in

an open publid space ^nd unharmed during the period of time she

was missing. The thesis of the Court of Appeals releived the State

of its burden of proving beyond a reasonable doubt of every fact

necessary to sonstitute the crime with which Petitioner was

charged. see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1073..

6.
NO. 2- WHETHER THE COURT OF APPEALS ERRED WHEN IT CON^ , ; , . J

CLUDED THAT THE TRIAL COURT DID NOT ABUSE ITS J> . '.

DISCRETION BY REFUSING PETITIONER'S REQUEST FOR

AN UNLAWFULL RESTRAINT INSTRUCTION.

Petitioner incorporates the argument and authorities from

Ground No. 1, into the Ground.

Supporting Authorities

In Alraanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985),

the court determined, when trial counsel timely requests a charqe

on a lesser-included offense and the trial court fails to give the

requested charqe, reversal is required if the error results in

some harm to the accused.

A harm analysis requires the appellate court to consider (1)

the jury charge as a whole, (2) the argument of counsel, (3) the

entirety of the evidence, and (4) such other relevant factors as

may be present in the record. Wooten v. State, 400 S.W.3d 601, 606

(Tex.Crim.App.2013).

Argument Supported By Record Facts

In this instance, the Court of Appeals failed to consider the

entirety of the evidence and other relevant factors present in the

record as previously asserted in point of error number #1.

[Petitioner respectfully incorporates those same record

facts as presented in Ground #1, in support of Ground #2].

Here, the reviewing courts evaluation of the record appears

to have misconstrued and misapplied the standard for factual suf

ficiency of the evidende review, while overlooking some the the

evidence and some of the harm. In sum, the reviewing court applied

a harsher standard of review than precedent required.-

7.
Prayer

Petitioner prays the court holds that the State did not prove

that Petitioner "secreted or used deadly force," and cannot, on

the record, be infered; and that the Court of Appeals did commit

error when it failed to find that the trial court abused its dis

cretion by refusing Petitioner's request for an unlawfull restraint

jury instruction.

Respectfully submitted,

Daniel G. Rodriguez #1869583

CT. Terrell Unit

1300 FM 655

Rosharon, TX 77583

Certificate of Service

This is to certify that a copy of the above-entitled and

numbered petition for review has been served on State's Prosecu

ting Attorney, P. 0. Box 13046, Capitol Station, Texas 78711,

via first-class U.S. Mail, on this the &lst day of Oct., 2015.

QcJ&rLd?/ [K&Jjiu<

%*£-

8.
Opinion issued July 28, 2015

In The

Court of Appeal*

For The

jftrsit 2Bt*trtct of Cexa*

NO. 01-13-00778-CR

DANIEL GONZALEZ RODRIGUEZ, Appellant

V. , .

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1380317

MEMORANDUM OPINION

Daniel Rodriguez appeals his conviction for kidnapping.1 In two issues, he

contends that (1) there is insufficient evidence of intent to abduct to support the

jury's guilty verdict and (2) the trial court; abused its discretion by denying his

Tex. Penal Code Ann. § 20.03 (West 2011).
request for a jury instruction on the lesser-included offense of unlawful restraint.'

We affirm.

Background

Early one morning, seven-year-old JaneJ was playing on coin-operated

"horses" with a friend at the flea market where her mother was a vendor. Jane's

mother testified that she was keeping an eye on the children but looked away "for

just a minute" while setting up her display. According to Jane, Rodriguez

approached the young girls and offered them quarters to activate the horses. He

then asked Jane ifshe wanted to go to his house. Jane declined both offers.

Suddenly. Rodriguez grabbed Jane's wrist. Jane testified that this "hurt" and

that she was unable to escape Rodriguez's grasp. Rodriguez forced Jane toward an

out-of-sight exit.

Jane's mother looked back and did not see Jane. Jane's friend said that she

had left with her father. Because Jane's father was not at the flea market, Jane's

mother became alarmed and contacted security.

Security personnel found Rodriguez and Jane before they reached the exit.

According to Jane, Rodriguez claimed that she was his daughter. Another witness

testified that Rodriguez said that Jane's mother gave him permission to take Jane.

These ruses did not work, and Jane was returned to her mother.

Tex. Penal Code Am. § 20.02 (West 2011).

We refer to the complainant by this pseudonym to protect heridentity.
Rodriguez was convicted of kidnapping. He timely appealed.

Sufficiency of the Evidence

In his first issue, Rodriguez contends that the evidence is insufficient to

support the jury's guilty verdict.

A. Standard ofreview

We review a challenge to the sufficiency ofthe evidence under the standard

announced in Jackson v. Virginia, 443 U.S. 307, 318-20, 99 S. Ct. 2781, 2788-89

(1979). See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).

Under the Jackson standard, evidence is insufficient to support a conviction if,

considering all of the record evidence in the light most favorable to the verdict, no

rational factfinder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 317-19, 99 S.

Ct. at 2788-89; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).

We consider both direct and circumstantial evidence and all reasonable inferences

that may be drawn from the evidence in making our determination. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

The Jackson standard defers to the factfinder to resolve any conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from "basic

facts to ultimate facts." Jackson, AA3 U.S. at 318, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778. We presume that the factfinder resolved any conflicts in the
evidence in favor of the verdict and defer to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

Evidence is insufficient when (1) the record contains no evidence, or merely

a "modicum" of evidence, probative of an element of the offense, (2) the evidence

conclusively establishes a reasonable doubt, or (3) the acts that the State alleges, if

true, do not constitute the charged crime. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007);see Jackson, 443 U.S. at 314-19, 99 S. Ct. at 2786-89. If

an appellate court finds the evidence to be insufficient under this standard, it must

reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S.

3.1,41, 102 S.Ct. 2211,2217 (1982). i

B. Definition of kidnapping

"A person commits [kidnapping] if he intentionally or knowingly abducts

another person." Tex. Penal Code Ann. § 20.03 (West 2011) (emphasis added).

"'Abduct" means to restrain a person with intent to prevent his liberation by:

(A) secreting or holding him in a place where he is not likely to be found; or

(B) using or threatening to use deadly force." Tex. Penal Code Ann. § 20.01(2)

(West 2011) (emphasis added). "'Restrain' means to restrict a person's movements

without consent. . .." Tex. Penal Code Ann. § 20.01(1). Thus, "[a] kidnapping

becomes a completed offense when a restraint is accomplished, and there is

evidence that the actor intended to prevent liberation and that he intended to do so
by either secretion or the use or threatened use of deadly force." Mason v. State,

905 S.W.2d 570, 575 (Tex. Crim. App. 1995).

C. Evidence of intent to prevent liberation by secreting Jane

Rodriguez concedes that the evidence is sufficient to conclude that he

restrained Jane, but he contends that the evidence is insufficient to conclude that he

intended to prevent her liberation and that he intended to do so by secretion or

deadly force. We disagree. Jane testified that Rodriguez asked her to go to his

house before grabbing her wrist and dragging her toward an exit. An eyewitness

saw Rodriguez "walking . . . with a purpose. ... He was walking towards the exit

like he needed to go." When confronted by security, Rodriguez lied that he was

Jane's father. Rodriguez told Jane that she could watch television once she was in

his house. From this evidence, a reasonable jury could conclude that Rodriguez

intended to prevent Jane's liberation and that he intended to do so by secreting her

away to a location where she was unlikely to be found. See Laster v. State, 275

S.W.3d 512, 522-23 (Tex. Crim. App. 2009) (evidence that defendant grabbed

child complainant and attempted to drag her into his car was sufficient to show

intent to secret away).

Rodriguez argues that Jane's testimony should be given no weight because

(1) he did not use exits closer to Jane's location, (2) he chose an exit far away from

his truck, (3) Jane was unattended, (4) an eyewitness testified that Jane was calm
when found and reluctant to leave Rodriguez, and (5) Jane reported no wrist pain

to her doctor several days later. How these factors impact the weight of Jane's

testimony is for the jury to decide. Following Jackson, we presume that the jury

resolved the weight of evidence in favor of the verdict, and defer to that finding.

See Jackson, 443 U.S. at 326; 99 S. Ct. at 2793.

Accordingly, we overrule Rodriguez's first issue.

Lesser-Included Offense

In his second issue, Rodriguez contends that the trial court erred by denying

his request for a jury instruction on the lesser-included offense of unlawful

restraint.

A. Standard ofreview

"In determining if the jury should be charged on a lesser offense, this Court

applies a two-step analysis." Segundo v. State, 270 S.W.3d 79, 90 (Tex. Crim.

App. 2008). "First, we decide if the offense is a lesser-included offense of the

charged offense . . . ." Id. This "is a question of law," and the standard of review is

de novo. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

"The second prong of the test then requires an evaluation to determine

whether some evidence exists that would permit a jury to rationally find that, if the

defendant is guilty, he is guilty only of the lesser offense." McKinney v. State, 207

S.W.3d 366, 370 (Tex. Crim. App. 2006). "We review the trial court's decision
regarding including a lesser-included offense in the jury charge for abuse of

discretion." Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.]

2009, pet. ref d). "In making this determination, this Court should review all of the

evidence presented at trial." Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

1994). "Anything more than a scintilla of evidence" that the defendant is guilty of

the lesser-included offense but not guilty of the charged offense "is sufficient to

entitle a defendant to a lesser charge." Id; see Segundo, 270 S.W.3d at 90-91.

B. An ineffective getaway is not evidence of restraint without abduction

Rodriguez argues that the jury should have been allowed the option of

convicting him of unlawful restraint. A person commits the offense of unlawful

restraint "if he intentionally or knowingly restrains another person." Tex. Penal

Code Ann. § 20.02(a) (West 2011). Unlawful restraint is a lesser-included offense

of kidnapping. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).

To be entitled to an instruction on a lesser-included offense, it is not enough

that the jury could have disbelieved some portion of the evidence; rather "there

must be some evidence directly germane to an unlawful restraint offense for such

an instruction to be warranted." Anderson v. State, 125 S.W.3d 729, 731 (Tex.

App.—Texarkana 2003, no pet.). Thus, "[t]he next step of the analysis is to

determine whether there was evidence that if guilty, appellant was guilty only of

restraining the complainant, without intending to prevent her liberation
by . . .secreting or holding her in a place where she was not likely to be

found . . . ." Schweinle, 915 S.W.2d at 19.

Rodriguez argues that his decision to drag Jane toward a main exit, ignoring

other nearby exits that could have facilitated an easier escape, is some evidence

that he restrained her but did not intend to secret her away. But this is not evidence

of restraint without abduction. Although Rodriguez could have chosen a more

efficient getaway route, he was nevertheless heading toward an exit with Jane. This

exit was not visible from Jane's original location. Rodriguez attempted to prevent

Jane's escape by lying to security. There is no evidence that Rodriguez restrained

Jane without intending to prevent her liberation by removing her to a location

where she was unlikely to be found.

We conclude that the trial court did not abuse its discretion by refusing

Rodriguez's request for an unlawful-restraint instruction. Accordingly, we overrule

his second issue.

Conclusion

We affirm the judgment ofthe trial court.

Harvey Brown

Justice

Panel consists ofJustices Jennings, Bland, and Brown.

Do not publish. Tex. R. App. P. 47.2(b).