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Kurtz v. Davis

United States District Court, W.D. Texas, San Antonio Division

June 27, 2018

CHRISTOPHER ARTHUR KURTZ, TDCJ No. 1968855, Petitioner
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          FRED BIERY JUDGE

         Christopher 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 DENIED.

         I. Factual Background

         The 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 town.
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).

         II. Procedural Background

         A grand 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).

         Mr. 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.

         Mr. 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).

         In his 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).

         Specifically, Mr. Kurtz alleges:

         1. The 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 limitations.

         2. He was denied the effective assistance of trial counsel because his counsel:

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 ...

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