United States District Court, W.D. Texas, San Antonio Division
CHRISTOPHER ARTHUR KURTZ, TDCJ No. 1968855, Petitioner
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
Kurtz, an inmate in the custody of the Texas Department of
Criminal Justice-Correctional Institutions Division
("TDCJ-CID"), has filed a pro se application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his convictions for aggravated kidnapping,
evading arrest, and tampering with evidence. As required by
Rule 4 of the Rules Governing Section 2254 Cases, the Court
conducted a preliminary review of the petition. Having
considered the habeas application (ECF No. 1), the
respondent's Answer (ECF No. 8), the record (ECF No. 9),
and applicable law, the Court finds the petition should be
following facts were found by the Third Court of Appeals:
Kurtz picked up a friend, April Sanchez, on his motorcycle to
take her to her new job. New Braunfels Police Sergeant James
Bell, who intended to serve an arrest warrant on Kurtz, began
following them and activated his emergency lights. Officer
Andrew Kempker testified that Kurtz initially slowed, then
accelerated at a high rate of speed. Kurtz testified that he
knew he was being pursued by police officers, but was unsure
whether they had the right to detain him. They passed
Sanchez's workplace during the chase. Several officers
joined the pursuit. Video from a police car showed Kurtz
traveling at more than 100 miles per hour, running a red
light by passing between stopped cars, passing a car by
driving on grass, and weaving in and out of traffic at a high
speed. NBPD's Bell testified that Kurtz used the
motorcycle in a way that could have caused death or serious
bodily injury to Sanchez and others. An NBPD supervisor
discontinued the chase. Sometime after the chase stopped,
Kurtz let Sanchez off the motorcycle in Schertz, a nearby
Later that day, Kurtz was captured. Officers found a gun and
keys on top of the gun near where he was found. Kurtz
admitted to having and attempting to hide the gun but stated
that Sanchez had put it in his pocket during the ride and
advised him to avoid the police. Kurtz told police during an
interview that Sanchez wanted to risk her life in his escape.
In recordings of a jailhouse visit with friends, Kurtz said
that Sanchez was scared, beating him in the ribs, and wanting
to stop. He said he told her he was not stopping until he
lost the police.
Sanchez testified that she did not tell Kurtz to run from the
police, but asked him to let her off near a gas station. She
said he agreed and slowed to let her off, but then sped away.
She testified that she continued to ask him to stop, but he
did not let her off until the chase ended. During her police
interview, Sanchez told police that Kurtz drove into oncoming
traffic and that she thought they were going to wreck and
die. She testified that she did not want to travel at 100
miles an hour on the highway and was not free to go. She
testified that she knew Kurtz was running from the police,
not trying to keep her. She also testified that Kurtz was a
friend to whom she did not want anything bad to happen.
Kurtz v. State, No. 03-15-00144-CR, 2016 WL 3679111,
at *1 (Tex. App.-Austin 2016, pet. refd).
jury indictment returned July 2, 2014, charged Mr. Kurtz with
aggravated kidnapping, evading arrest with a vehicle, and two
counts of tampering with physical evidence. (ECF No. 9-14 at
5-7). The indictment further alleged Mr. Kurtz was a habitual
offender based on two prior convictions. (ECF No. 9-14 at 7).
Mr. Kurtz testified at the guilt/innocence phase of his
trial. (ECF No. 9-18 at 16-62). After deliberating for
approximately two hours, the jury acquitted Mr. Kurtz on one
count of tampering with evidence and found him guilty on the
other charges; the jury also found the enhancement
allegations true and found Mr. Kurtz used a deadly weapon
while evading arrest. (ECF No. 9-14 at 36-39, 56, 67; ECF No.
9-28 at 107). The jury assessed prison terms of 70 years for
aggravated kidnapping, 75 years for evading arrest, and 30
years for tampering with evidence, and the trial court
ordered all the sentences be served concurrently. (ECF No.
9-14 at 73, 77, 80).
Kurtz filed a motion for a new trial, which was served on the
State but not filed with the court. (ECF No. 9-14 at 111-12;
ECF No. 9-28 at 36). He took a timely appeal, challenging the
sufficiency of the evidence to support the aggravated
kidnapping conviction, and relief was denied. Kurtz,
2016 WL 3679111, at *3.
Kurtz sought a state writ of habeas corpus, asserting he was
denied the effective assistance of trial and appellate
counsel; the evidence was insufficient to support his
conviction for aggravated kidnapping; the prior convictions
used to enhance his sentence were not proven at trial; and
the trial court lacked jurisdiction because the indictment
was faulty. (ECF No. 9-28 at 11-20). The habeas trial court,
which was also the convicting court, made findings of fact
and recommended the writ be denied. (ECF No. 9-28 at 105).
The Court of Criminal Appeals denied the writ without written
order on the findings of the trial court. (ECF No. 9-24).
federal habeas petition, Mr. Kurtz asserts he was prosecuted
"under a void indictment." (ECF No. 1 at 7). He
also alleges he was denied the effective assistance of trial
counsel and that the Court of Criminal Appeals violated his
right to due process when denying habeas corpus relief. (ECF
No. 1 at 7-13).
Mr. Kurtz alleges:
indictment was void because Kurtz was not charged by the
grand jury sitting at time of his crime, but instead by the
next empaneled grand jury and more than 180 days after his
"commitment," thereby violating the statute of
was denied the effective assistance of trial counsel because
a. failed to assert the indictment was void because it
"exceeded the statute of limitations;"
b. failed to object to introduction of evidence based on the