### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00581-CR

Hector L uis Marti nez, Jr. , Appellant

v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF BE LL COUNT Y, 264TH JUDICIAL

DISTRICT NO. 49, 977, HONORAB LE MARTH

A J. TRUDO, JUDGE

PRESIDING A ju ry f ou nd ap pe ll an t He ctor L

ui s M art in ez , Jr
. , g ui lt

y o f c ap it al

mu rde r. See Tex. P en al C o d e A n n . § 1 9
. 0 3 ( a) ( 2 ) ( We st 1 9 9 4 )
. Be caus e th e St ate did no t seek t he death penalty, the trial cour t assess ed punishment at imprisonment for life. See id
. § 12. 31(a) (West 1 994); Tex. Code Cr im. Pr oc. Ann. art. 37. 071, § 1 (West Supp. 2001). In three issues , Martinez ar gues that the evidenc e is leg ally and fa ctually in sufficien

t to support the verdi ct and challenges the admission of his written confessions. We will affirm the conviction.
BACKGROUND Appellant fathered a chi ld with

the victim, Jessica

Vasquez. Appellant’s aunt, Sarita Bla in, had legal custody

of the child. In March of 1999, according to appellant, Vasquez and her fiancé
we re planning to move with the child to Oklahoma. Appellant confessed that in order to pr event her from moving out o f sta te with the child, he and B lain decided to murder Vasquez. On the evening of March 3, 1999, appellant and B lain lured Vasquez into their car by asking h er to2

accompany

them to pick

up a friend’scar, and she agreed. Vasquez sat in the front passenger seat while B lain drove the car. Appellant sat in the back seat with a grocery ba

g con taini ng a k nife and rubber gloves. B lain drove to a w ooded, undeveloped area in Har ker Heights, Texas. At
somepoint during the r ide, appellant attacked Vasquez w ith a knife. The Stat e’s f orensic pathologi st

testified that

based on numerous defensive wounds on Vasque z’s hands and arms, she had likely resistedappe llant ’s attack. The recor d reflects that the attack continued outside the car aft er B lain stop ped on the roadside. Appellant then left Vasquez’s body in a ditch. B lain and appellant abandoned the car, and appellant retur ned to his apartment in Killeen. OnMarch 4, 1999, area police d iscove red the aband

oned ca r and traced it to app ellant. Appellan t con sented to a search of his residence; he was arrested after police discovered incriminating items in the apartment. Appellant was then taken to t he Harker Hei ghts police station and questioned. He gave the interr ogating officers a wr itten statement admitting the crime. When questioned again on March 9, 1999, in the B ell County jail, appellant gave a second written stateme nt admittin

g his guil t. Appellant was indicted for committing mur der in the cour se of kidnapping the victim and
was tried before a jury. The Sta te introduced b oth written confessions during the guilt or innocence phase

of the trial. The jury found appe ll ant guil ty of capital murder , and he now appeals his conviction.3 DISCUSSI ON Suff iciency of the Evidence

Byhis first and second issues, appellant argues that the eviden ce is legally and factually insufficie

nt to supp ort his conviction. In determining the legal sufficiency of the evidence to support a cri minal convicti on, we view a ll the evide

nce in the light most

favorable to the verdict and determ ine whether any r ational trier of fact could have found the essential elements of the offens e beyond

a reasonab le doubt. Jacks on v. Virgin ia , 443 U. S. 307, 318-1 9 (197 9); Staleyv. State , 887 S. W. 2d 885, 8 88 (Tex. C rim. App. 1994). Any inconsistencies in the evidence should be resolved in fa vor of the verdict. More

no v. State , 755 S. W. 2d

866, 867 (Tex. Crim. App. 1988)
.

When conducting a factual sufficiency review, we do not view the evidence in the light most favo rable to the ve rdict. Johnso n v. State , 23 S
. W. 3d 1, 6-7 (Tex
. Crim. App. 2000)
. Instead, we consider all evidence in a neutral light. Id
. B ut we do not substitute our judgment for that of the jury and will set aside a verdict only if it is so contr ary to the over whelming weight of the evidenc e as to b e clearly wrong and unjust. Clewis v. State , 922 S. W. 2d 126, 129 (Tex. Crim. App. 1996)
.

Appellant concedes that

he intend ed to kill Vasquez, but argues that he moved her to a wooded area only to facilitate concealing her body and thus neither committed nor attempted to commit a ki dnapping
. Appellan t thus contends t

hat the trial co

urt err ed in

o verruling his motion for an instr ucted verdict of not guilty on the char ge of capital murder
. We disagree.4 A person commit s the offen se of ca pital murder if he intent

ionally or knowingly causes an individual’s death in the c ourse of committing or attempting to commit a kidnapping. Tex. Penal Code Ann. §§ 19. 02(b)(1), 19. 03(a)(2) (West 1994). B ecause appellant did not contest that he intentionally killed Vasquez, the State had the burden of proving that he caused her death during a completed or attempted kidnapping.

A person commit s the offense of kidnapping when he knowingly or intentiona lly abducts another per son. Id . § 20. 03(a) (Wes t 1994). To “ abduct” means to restrain a person w ith intentto prevent her liberation b y either: (1) secreting or holdin g her in a place

where she is

not likely to be found, or (2) using or threatening to use deadly force. Id
. § 20. 01(2) ( West 1994)
. The statute contains two components: a r equired cr iminal act and a requir ed culpable mental s tate
or mens rea . King

v. State , 961 S. W. 2d 691, 694 (Tex. App.

— Austin 1998, pet. ref’d)
. Texas courts have established

that secretion and

use or thr eat of deadly force ar e part of the mens rea of kidna pping , not th e ac t its elf. Brima ge v. State , 918 S. W. 2d 466, 475 (Tex
. Cri m. App
. 1996) ; King , 961 S
. W. 2d at 694. Inother wor ds, a kidnapper must intend to preve nt his victi m’s liberation by secretion or use or threat of deadly force. The sole

“ act” involved in a kidnapping is “ restraint. ” Maso n v. State , 905 S
. W. 2d 570 , 575 (Tex. Crim. App. 1995)
.

The State need no t prove that the accused completed a kidnapping. Tex. Penal Code Ann. § 19. 03(a)(2). One can be guilty of capital

murder if

the State can show the

murder
occurr ed during an a t tempt to kid nap the vi ctim. Id
. Cri minal attempt requir es both the commission

of an act that amounts to more than mere pr eparation and a specific intent to c ommit the offense. Id
. § 15. 01 (We st 19 94).5 To establish that appellant kidnapped or attempted to kidnap Vasquez, therefor e, th e S ta te had t he bu rde n o f p rov in g ( 1) th at

ap pe ll an t re st rai ne d V as quez

or a cc om pl ishe d m ore thanmere preparation for restraint, and (2) that he acted with th e specific intent to prevent her liberation by either secretion or use or threat of deadly for ce.

Tu rn ing to the State’s first burden, appellant argues that because Vasquez voluntarily ac companie d him in the car, she wa s not restrained a gainst her will. “ Restraint” is defined as res tri ct in g a pers on ’smo vement

with ou t c on se nt , so as to in terfere substa

ntially wit

h the person’s liberty, by moving the person fr om one place to another or by confining the person. Id
. § 20. 01(1). Restraint is without consent if it is accomplished by force, inti midation, or de ce ption
. Id
. § 20. 01(1)(A). Evidence in the recor d reveals that on the evening of March 3, 1999, appella

nt and his

aunt conc octed a s cheme to lure Vasque z into the car wi th them under false pretenses. They told her that they needed her help to pick up a friend’s car
. No such car existed. This decept ion was used specif ically and succ ess fully t o get Vas quez into a ppel lant’ s vehicle and to move her to an undeveloped, wooded area. This evidence is sufficient to allow a rational jur y to determine that appellant either r estrained or attempted to r estrain Vasquez.

Turning to the State’s second burden, appellant concedes that he intended to murder Vasquez and to hide her body in

the woods
. He argues, however, that he di d not have the spe cific intentto prevent her liberation either by se creting her or by using or threatening to use de adly fo rce ag ai ns t h er. Under Texas law, the req uisite culpable intent must have been developed either be fo re or concurrent withVasquez’s death. Santellanv. State , 939 S. W. 2d 155, 162 (Tex. Crim.1 The ar t icle 38. 22 w ar nings st at e t hat t he ac cus ed ( 1) has t he r ight to remai n si le nt an d no t make a ny sta t ement at all and t hat any st at ement he make s may be us ed ag ain st him at his trial ; (2) any statement he m

akes m ay be used as

evi dence agains t hi m i n court; (3) he has the ri

ght to have a la wyer pr es en t t o ad vise him

pr ior t o a nd du ring question i ng; (4) i f he i s un ab l e to em

pl oy a l awy er, 6 App. 1997)
. In Santellan , the court found th e accus ed had de veloped t he requisite

intent when, immediate lyafter fatally

shooting the victim

but moments

before her clinical death, he placed her in to hi s c ar. Id. at 164.

Here, the recor d shows that appella nt and his aunt lured Vasquez into their car and headed directly to an isolated area. During the drive, appella nt attack ed Vas quez with

a deadly weapon. The attack took place over some period of time. Vasquez resisted the attack, sustaining
numerous defensive injuries to her rig ht and lef t hands and ar ms. The attack continued within the vehicle until it was stopped and t hen continu ed outside th e vehicle. F rom these evidenti ary f acts, the jury could conclude that appellant formed the specific intent to prevent Vasquez’s liberation by deadly force or secretion eithe

r at the time of he

r death or before that point. B ased on our r eviewof the evidence, we hold that a rational jur y could have found the essential elements of the offense beyond a reasona b le doubt and that the ver dict is not so
co nt rary to th e overwhelming weight of the evidence as to be clearly wrong and unjust. We
over rul e appellant’ s fir st and second issues.
Admission of Confession

Byhi s t hird i ss ue , ap pe ll an t a rgu es th at th e t ria l c ou rt err ed in denying his motion to suppress his tw o written con fess ions beca use of comm ents made by the interrogating of ficer while givi ng appellan t the ar ticle 38. 22 war nings. 1he has the ri ght to have a l awy

er appointed

t o a dvise him prio r t o a nd du ring any que st ioning; a nd (5) he ha s the ri ght to term

i na te the i nterv i ew at a ny tim e. Tex. Code Crim. Proc. Ann. art. 38. 22, § 2 (We st 19 94).
2 Miranda warni

ngs are sub stantial

ly si mi la rto article 38.22 warni

ngs, but under the language of the deci sion i

tself do not ex

pli ci tly i nc l ude the ri ght to term

i na te an i nterv i ew at a ny tim e. See Miranda v. Arizona , 384 U .S. 436, 4 44-45 (1966 ).
3 The s tatement f

orm simp ly ch ange d the

pronoun from “ he” to “ I. ” 7 Inreviewing a trial cour t’s ruling on a motion to suppress, we give great deference to the trial cour t’s determination of histor ical facts supported by the recor d. Guzmanv. State , 955 S. W. 2d 85, 89 (Tex. Crim. App. 1997). We show the sa me deference tomixed questions of law and fact if the resolution turns on the credi bility an d demeanor of witnesses. Id
. at 89. On the other hand, we review the trial cour t’s application of the law de novo , without deference to the trial cour t’s ruling. Carmo uche v. State , 10 S
. W. 3d 323 , 327 (Tex. Crim. App. 2000)
.

Appellant was given his Miranda warnings duri ng his first en co unte r w ith law enforcement offici als on Mar ch 4, when they came to his r esidence, infor med him he wa s a suspe ct, and asked for consent to search his apartmen t. 2 Dur ing h is initial questioning at the Harker Heights Police D epartment that sa me day, he was

given exp licit warnings

set out i narticle 38. 22. B efore making his first confession, appella

nt was a gain warned in

accordance

with article 38. 22 and in itiale d each of the five warnings print ed at the top of the statement form that each track the statutory language. 3 On March 9, appella nt signe d another written confession at the B ell County Jail. At this time, appellant was again warned under article 38. 22 and aga in place d his initials beside each wa rning printed at the top

of the sta

tement form.8 I naddition to

the sta tutory warnings, the interrogating office r gave appell an t additional instructions. The officer t old appellant that during the interview appellant could answer only those question s he chose to answ er and could mov e on to another question should he decide notto respond to a question. This option is notmandated by article 38. 22, and appellant contends that somehow this tainted

the writ te n w arni ng p roce ss . He argues that he was improper ly advised he could refuse to a nswer ques ti on by question rather than being told he could ter minate the interview completely.

When analyzi ng whethe

r warnings were proper, th e reviewing c ourt must deter mine whether the warnings substantially complied with article 38. 22. Ex parte Gardner , 959 S. W. 2d 189, 192 (Tex. Cri m. App. 1996) (Mansfield, J. , concurr ing) (discussing California v. Prysock , 453 U. S. 355 (1 981)). The recor d reflects that appellant twice received warnings fully compliant with th e sta tu te be fo re making his first wr itten statement offered into evidence by the State, and
a third time befor e making the second statement offered. Appellant was repeatedly informed that he had a right to make no statement at all and a right to ter minate the interview at any time.

Ina similar case, an accused argued that although he received proper warnings, the office r’s ad di ti on al co mm en ts we re confusing or misleading. De La Rosa v. Texas , 743 F
. 2d 299, 301-03 (5th Cir. 1984)
. The court obser ved, “ We cannot accept the pr oposition that would have
us ignore the repeated, full, and accurate warnings to focus only on the r emark that appointing
anattorney would take some time. ” Id
. at 30 2. Thecourt

determined that the “ cumulative effect of the repeated in cant

ation s of Miranda ” fully informed the a ppellant of his constituti onal r ights. Id
. We find the

Fifth Cir cuit’s reas oning app osite to the cas e at b ar. Here, the repeated and9

accu rate warnings appellant received wer e not nullified by the additional comments of th e in terrog at in g o ff ic er. F urther more, during the suppr ession hearing, appellant adduced no evidence that he was confused or misled about the meaning of his right s under article 38. 22. Nor does the record reflect that

he at tempt ed toexerci se a

ny of his right s during

the in terrogation its elf. Based on o ur re view o f the re co rd we c onc lude t hat t he wa rnings g iven to app ellant
were suf fi ci ent and com

pli ed wi th the l aw and that the trial court did n

ot err in adm ittin g hi s two wri tten con f ess i ons. W

e ove rrule app el

l an t’s th i rd i ssue. CONCLU SION Having o ver ru led all thr ee issu es p re sent ed, we a ffi rm t he judg ment o f co nvictio n.

____________________________________ Mari ly n A boussi e, Chief J

ustice Be f ore C hi ef Ju sti ceA bou ss i e, J us ti ce s Y ea

ke l an d Pa tters on Af fi rmed File d: March 8, 2001 Do No t Publis

h