KHRISTIAN CLOUD v. THE STATE OF TEXAS (2026)

OPINION

A jury found Khristian Cloud guilty of aggravated kidnapping and aggravated robbery with a deadly weapon. See TEX. PENAL CODE §§ 20.04, 29.03. The trial court sentenced him to 25 years in prison for each crime to be served concurrently.

On appeal, Cloud raises two issues. First, he argues that he lacked appointed counsel despite his indigency during most of the period in which he could have filed a new trial motion. He asks that we abate and remand to allow him to file one. Second, Cloud argues that he received a harsher sentence than he should have because the trial court, sitting as factfinder during the punishment phase, erroneously rejected his affirmative defense that he released the two women he kidnapped in a safe place.

We reject both challenges. Though we agree that Cloud lacked appointed counsel during most of the period in which he could have moved for a new trial, he has not presented a facially plausible claim that he could assert in a new trial motion. His lack of counsel was therefore harmless beyond a reasonable doubt. As to his affirmative defense, the evidence is sufficient to support the trial court's finding that he did not release the women in a safe place. Consequently, the trial court did not err in rejecting Cloud's affirmative defense.

We affirm.

BACKGROUND

Best friends Dyani Khan and Anahi Osorio were talking on the street near their parked cars late one evening after enjoying a meal out. Before they could finish their conversation, a jeep pulled up and two masked gunmen got out and demanded the women stand and deliver. It quickly became apparent that, as young college students, Khan and Osorio had little in the way of valuables to satisfy this demand. With their demand frustrated, the gunmen forced the two women into the jeep.

Once on the road with their captives, the two gunmen interrogated Khan and Osorio about their bank accounts, intending to force the women to withdraw cash from ATMs. Osorio had little in her account. But Khan had several thousand dollars in hers. The gunmen tried to withdraw Khan's money from ATMs, but they were in large part thwarted from doing so by the account's daily withdrawal limit.

Stymied by the withdrawal limit, the gunmen devised another plan to get Khan's money. In the early hours of the morning, they picked up a female accomplice, whom they armed with a handgun. Her role would be to hold Osorio hostage at a motel. Meanwhile, the gunmen would drive Khan to a branch of her bank and wait in the jeep while she withdrew most of the money from her account, with her best friend's life as the security for her cooperation. All went to plan.

With Khan's money in hand, the gunmen returned with Khan to the motel to collect Osorio, but not before stopping off at a Walmart, where one of the gunmen made Khan sell the women's cell phones. Eventually, the gunmen released Khan and Osorio not too far—a 10-to-15-minute drive—from where they abducted the women. But the gunmen kept the women's belongings, including their IDs, threatening that they knew where Khan and Osorio lived should the women call the cops.

Once released, Khan and Osorio sought help at a nearby business. In the ensuing police investigation, Cloud was identified as one of the gunmen. He was indicted for aggravated kidnapping and aggravated robbery with a deadly weapon, the charges were tried to jury, and it found him guilty of both crimes. He appeals.

DISCUSSION

I. Cloud has not shown he could have presented a facially plausible claim for new trial but for his lack of appointed counsel during most of the period for filing a new-trial motion. Thus, his lack of counsel was harmless.

An indigent defendant, like Cloud, is constitutionally entitled to the assistance of counsel during the period of time in which he may move for a new trial. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007). Cloud contends—and the State concedes—that he lacked counsel for most of this period. So, he asks us to abate his appeal and remand this cause to the trial court to allow him to seek a new trial.

Hold on, says the State. In its view, Cloud has not shown he has a facially plausible claim for a new trial, so he was not harmed by lack of counsel. See id. at 911–12 (lack of counsel during time to move for new trial was harmless because claims appellant said he would raise in new-trial motion were conclusory).

On this record, we agree with the State. Cloud has not shown he has a facially plausible claim for a new trial, which means that he lost nothing by being without counsel for most of the period in which he could have moved for a new trial. Under these circumstances, lack of counsel was harmless beyond a reasonable doubt.

A. Under controlling precedent, Cloud has the burden to show his lack of counsel harmed him, and this court has an independent duty to evaluate whether constitutional error is harmful in any event.

At the threshold, Cloud asserts he does not bear the burden to show he was harmed by his lack of counsel. Instead, he maintains that the State bears the burden to show that his lack of counsel was harmless beyond a reasonable doubt.

We agree with Cloud to the extent he says the dispositive issue is whether his lack of counsel was harmless beyond a reasonable doubt. Because the right to counsel is constitutional, deprivation of counsel for most of the period in which Cloud could have moved for a new trial requires relief “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a) (“Constitutional Error”); see also Cooks, 240 S.W.3d at 911–12 (applying this constitutional-error standard by holding that lack of counsel during time for filing new-trial motion “was harmless beyond a reasonable doubt”).

But we reject Cloud's attempt to assign this burden to the State. In Cooks, the Court of Criminal Appeals put this burden on the appellant by determining that his lack of counsel during the period for filing a motion for new trial was “harmless beyond a reasonable doubt” because the appellant “presented no ‘facially plausible claims’ that could have been presented in a motion for new trial.” 240 S.W.3d at 911–12. And since Cooks, our court has repeatedly assigned the burden to show harm to the appellant in situations, like this one, in which an appellant lacked counsel for part of the period in which his new trial motion was due. E.g., Eaglin v. State, 710 S.W.3d 833, 849 (Tex. App.—Houston [1st Dist.] 2024, pet. ref'd). Our colleagues across the hall have assigned this burden to the appellant too. E.g., Thomas v. State, 286 S.W.3d 109, 115 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

Cloud does not acknowledge the assignment of the burden to show harm in Cooks or in later decisions applying Cooks, like our court's Eaglin decision. As we must, we hew to this precedent, under which Cloud has the burden to show lack of counsel harmed him by depriving him of the opportunity to raise a facially plausible claim in a motion for new trial. Cooks, 240 S.W.3d at 911–12; Eaglin, 710 S.W.3d at 849.

In any case, regardless of who bears the burden, this court has an independent duty to evaluate harmlessness. See Smith v. State, 726 S.W.3d 466, 476 (Tex. Crim. App. 2025) (court of appeals erred in not evaluating harmlessness of constitutional error even though State did not brief it). We now turn to the issue of harm.

B. Cloud has not shown he has a facially plausible new trial claim, and our independent review of the record shows that he lacks one.

As we have explained, in this context, an appellant carries his burden to show harm by presenting a facially plausible claim that he could have presented in a motion for new trial but for his lack of appointed counsel. Cooks, 240 S.W.3d at 911–12; Eaglin, 710 S.W.3d at 848, 853. To present a facially plausible claim, the appellant must do more than make conclusory allegations. Cooks, 240 S.W.3d at 912; Eaglin, 710 S.W.3d at 848. The appellant must identify particular evidence or information and explain how this evidence or information would have changed the outcome of his case. Cooks, 240 S.W.3d at 912; Eaglin, 710 S.W.3d at 848, 853.

Here, Cloud says he could have presented a facially plausibly claim that his lawyer rendered ineffective assistance of counsel during the trial's punishment phase. Cloud argues that some evidence in the record indicates he has mental health issues and a history of substance abuse and has experienced childhood trauma. This evidence, Cloud posits, “raises questions about why counsel presented no evidence as to Cloud's mental health or any other mitigation evidence at punishment.”

But as our court has held, raising questions is not enough to show a facially plausible ineffective-assistance claim. See Eaglin, 710 S.W.3d at 853 (rejecting appellant's contention that counsel's possible lapses in investigation and case presentation—including extent of investigation into mitigating evidence and issues relating to punishment—presented facially plausible ineffective-assistance claim because he merely identified these possible lapses as subjects meriting inquiry, rather than identifying evidence or information that would result from this inquiry and explaining how this would alter outcome). While Cloud need not marshal all the evidence that he would use to support his ineffective-assistance claim, “he cannot show that he lost the opportunity to present facially plausible claims in a new-trial motion simply by identifying issues counsel could have investigated that potentially might have led to the presentation of ineffective-assistance arguments.” Id.

In this regard, we note that the general topics Cloud faults his lawyer for not investigating or presenting evidence about during the punishment phase of trial—mental health issues, history of drug use, and childhood trauma—are all matters peculiarly within his personal knowledge. Yet, Cloud does not identify the particular evidence or information he would present in a new trial motion, even if only in broad outline, or explain why this particular evidence or information would have resulted in a lesser sentence had it been presented in the punishment phase.¹ Without this elaboration, Cloud's ineffective-assistance claim consists of mere conclusory allegations. See id. at 854 (rejecting claim that lawyer should have investigated appellant's background to present mitigation evidence in punishment phase as conclusory because he did “not describe the omitted evidence, not even his personal background, even though he is uniquely knowledgeable on this subject”); see also Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (court can't fault lawyer's failure to offer unidentified mitigating evidence as ineffective assistance).

Moreover, Cloud does not even unequivocally assert that his trial lawyer neglected to investigate these general subjects or only did so inadequately. Instead, he merely says “the extent of trial counsel's investigation into mitigation of punishment” is an “area that should have been pursued” in a new trial motion. But Cloud does not identify any evidence or information regarding his lawyer's investigation that he could present in support of an ineffective-assistance claim. Nor does he identify any evidence as to his lawyer's strategic thinking about the punishment phase of trial, including whether he considered offering evidence of Cloud's mental health, substance abuse, or childhood trauma in mitigation.

Cloud's failure to identify evidence or information about his lawyer's investigation and decision-making renders his ineffective-assistance claim speculative. See Garza v. State, 213 S.W.3d 338, 347–48 (Tex. Crim. App. 2007) (rejecting claim that trial lawyer's failure to offer any mitigating evidence, including evidence about appellant's mental capacity, during punishment phase of trial constituted ineffective assistance because record lacked evidence as to reasons for lawyer's conduct, which could have been product of reasonable trial strategy).² And peculation is not enough to present a facially plausible new-trial claim premised on ineffective assistance. See Eaglin, 710 S.W.3d at 854 (speculation and vague possibilities are insufficient to show the existence of facially plausible claim).

For all these reasons, Cloud has failed to carry his burden to show he could have presented a facially plausible claim for a new trial but for his lack of counsel. Having failed to do so, the record shows beyond a reasonable doubt that his lack of counsel during most of the period for seeking a new trial was harmless. See Cooks, 240 S.W.3d at 911–12 (lack of counsel harmless absent facially plausible claim). Likewise, irrespective of the assignment of the burden to make this showing and based on our independent consideration of harm, we conclude for the same reasons already noted that the record shows Cloud lacks a facially plausible new trial claim. See Smith, 726 S.W.3d at 476 (court has independent duty to assess harmlessness).

We overrule Cloud's first issue.

II. The trial court did not err in rejecting Cloud's affirmative defense that he voluntarily released the two victims he kidnapped in a safe place.

Aggravated kidnapping is generally a first-degree felony. TEX. PENAL CODE § 20.04(c). But the statute further provides that, in “the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.” Id. § 20.04(d).

Cloud raised this issue in the punishment phase, but the trial court found that he had not proved his victims were released in a “safe place.” On appeal, Cloud argues that the evidence at trial shows the contrary. We reject Cloud's argument.

A. Whether the place where a kidnapper released his victim was safe is a case-specific inquiry turning on the totality of circumstances, and we review the factfinder's finding for evidentiary sufficiency.

The Texas Penal Code does not define “safe place.” Butcher v. State is the leading decision as to the term's meaning. 454 S.W.3d 13 (Tex. Crim. App. 2015). In Butcher, the Court of Criminal Appeals held that this phrase is ambiguous. Id. at 16–17. Because of this ambiguity, the Court further held that deciding whether a kidnapper released his victim in a “safe place” is “a fact-specific inquiry made on a case-by-case basis, considering the totality of the circumstances.” Id. at 18–19.

An appellant may challenge the legal and factual sufficiency of the evidence supporting a safe-place finding. See id. at 20 (explaining that while factual-sufficiency review is abolished as to criminal convictions, legal and factual sufficiency of evidence supporting affirmative defenses may be challenged).

The evidence is legally insufficient to support a trial court's finding that a kidnapper did not release his victim in a safe place only if the evidence conclusively proves the place of release was safe. See id. The evidence is factually insufficient only if this finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or reflect clear bias. See id.

In reviewing the sufficiency of the evidence to support the factfinder's safe-place finding, an appellate court may consider several factors, including the remoteness of the place, proximity of help, time of day, climate, victim's condition, character of the place and its surroundings, and victim's familiarity with the place. Id. at 19. But these factors are not exclusive, and they are intended only to guide the court in its case-specific evaluation of the totality of the circumstances. Id. They are not a substitute for the consideration of the totality of the circumstances. See id.

B. The evidence is sufficient to support the trial court's finding that Cloud did not voluntarily release Khan and Osorio in a safe place.

Cloud insists the evidence either conclusively shows he released Khan and Osorio in a safe place or, at the very least, that the trial court's contrary finding is against the great weight and preponderance of the evidence. Cloud emphasizes that he released them in May, during daylight hours, physically unharmed, in an area of Houston that is not dangerous, in which open businesses were nearby, and only a short drive—10 to 15 minutes or so—from where they had been kidnapped.

At first blush, the evidence Cloud relies on sounds quite favorable to his position. However, as we go on to discuss, the evidence admitted at trial relating to section 20.04's safe-place provision was quite limited in scope and was often more ambiguous than Cloud acknowledges. These limitations matter here because section 20.04 is an affirmative defense and it was Cloud's burden to prove it by a preponderance of the evidence. See TEX. PENAL CODE § 20.04(d) (providing defendant must prove issue by preponderance); Butcher, 454 S.W.3d at 18, 20 (holding this provision constitutes an affirmative defense); see also Dominguez v. State, 467 S.W.3d 521, 527 (Tex. App.—San Antonio 2015, pet. ref'd) (to prove section 20.04's affirmative defense by preponderance of evidence, defendant “must create, by the greater weight of the credible evidence, a reasonable belief that the defendant voluntarily released the victim in a safe place”). As we explain, on the scant record before us, we can only affirm the trial court's finding that Cloud did not release Khan and Osorio in a “safe place.” See Butcher, 454 S.W.3d at 20 (issue on appeal is not whether appellate court would attach same importance to each fact that factfinder did or whether appellate court agrees with factfinder's finding).

We begin by noting that the defense did not put on any witnesses or evidence during the punishment phase relating to whether Cloud released his victims in a “safe place.” This is not fatal. He was entitled to rely on any relevant evidence from the guilt–innocence phase, which the trial court readmitted for purposes of punishment. See Buchanan v. State, 911 S.W.2d 11, 14 (Tex. Crim. App. 1995) (no need to reintroduce safe-place evidence from trial's guilt–innocence phase during trial's punishment phase). But the guilt–innocence phase of trial included little evidence on the safety of the place where Cloud released Khan and Osorio.

And Cloud overstates in some ways the extent to which the limited evidence contradicts the trial court's adverse finding. For example, the only direct evidence about the safety of the place where Cloud released Khan and Osorio came from the testimony of J. Anderson, the responding peace officer, and his testimony was sparing and fairly inconclusive. Anderson agreed that when he took his report from the victims shortly after their release, it was daylight, a normal day in a normal parking lot. When asked whether the area in question—“sort of a public area” in “Midtown Houston”—seemed threatening or was a high crime location, he did not describe it as a high crime area, but he did note that he had patrolled there for a few years and that it had experienced some crime (without specifying the frequency or seriousness of these crimes). Similarly, while he said the area did not seem “dangerous at the time when [he] took the report,” a representation that a place is not dangerous is not necessarily the same thing as saying that it is safe.

Then there is the vulnerability of the victims. Osorio testified that Cloud released her and Khan in the vicinity of a dental office, a restaurant, and some apartments. No foot traffic was around. Cloud and his partner in crime had robbed Osorio and Khan of their cell phones and money, so that the two college-aged women had to seek out help, depending on the kindness of strangers, all under the cloud of their armed kidnappers' final threats: “They told us not to look at where they were going․ They threatened—they threatened us if we did not look away.”

Osorio and Khan walked to the dental office, where they found the help they needed. But being released in a safe place and seeking out and finding safety after release are not one and the same. That they successfully sought out the help they needed soon after their release is not proof that this outcome was inevitable.

In addition, Cloud discounts the condition in which he released his victims, relying on the fact he and his accomplice released them without injury. But the evidence shows that they did leave Khan and Osorio quite traumatized. Once Khan and Osorio were at the dental office, Khan called her mother to come get them. When Khan's mother arrived, she found the two “hugging one another, crying.” Officer Anderson said they remained “highly emotional” even after he arrived.

Cloud argues that kidnapping is bound to be upsetting, so neither the factfinder nor we should give much, if any, weight to Khan's and Osorio's psychological trauma in evaluating whether he released them in a safe place. His argument is not altogether without merit, but precedent instructs that the condition of the victims is one consideration relevant to evaluating whether a kidnapper released them in a safe place, and precedent does not limit this consideration to their physical condition alone. See Butcher, 454 S.W.3d at 16 (taking into account severe trauma victim experienced as a result of kidnapping in assessing safety of place of her release); see also Grant v. State, 475 S.W.3d 409, 415 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (taking into account evidence of victim's mental and emotional harm in evaluating safety of place of release); Woods v. State, 301 S.W.3d 327, 332 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (taking into account that victim “was in a state of hysteria and fear upon her release” in rejecting challenge to finding that she had not been released in “safe place”).

Even so, if the evidence here was limited to trauma merely associated with the kidnapping itself, we might agree with Cloud that the “highly emotional” state Khan and Osorio were in when released did not affect the safety of the place where they were released in this particular instance. But the evidence is not so limited. Here, the evidence shows that Khan and Osorio were traumatized not only by their abduction, but also by threats to find and hurt them and their families if they contacted the authorities afterward. Cloud and his confederate kept Khan's and Osorio's IDs and told Khan and Osorio they knew where the women lived. In her testimony, Osorio ably conveyed the state of fear in which they were released:

Q. Did you feel intimidated to report a crime to the police?

A. I felt like even if I did get help, it wouldn't be enough. Because they knew where I lived. They knew where my family lived. And they had threatened that they would do something to our family, because they knew where they lived.3

On this record, the trial court, sitting as factfinder, could have reasonably given some weight to the evidence of these threats. Cloud and his accomplice informed Khan and Osorio that they were not safe despite their release. For a kidnapper to successfully invoke the affirmative defense of safe release, the evidence must show that the release “occurred in a place and manner which realistically conveyed” to his victim that she had been “fully released from captivity” and “in circumstances and surroundings wherein aid was readily available.” Harrell v. State, 65 S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet ref'd) (internal quotation marks and citation omitted). From this, it follows that a factfinder may consider threats that call into question whether a victim is truly free of her captors or entitled to seek aid without fear of their reprisal upon release in evaluating whether the victim was released in a “safe place.”⁴ See McLaren v. State, 104 S.W.3d 268, 273 (Tex. App.—El Paso 2003, no pet.) (factfinder “may also consider the victims' subjective feeling of safety, but these feelings should not be the overriding factor” in assessing whether victim was released in safe place); see also Saucedo v. State, Nos. 05-23-01277-CR & 05-24-00385–86-CR, 2025 WL 1140398, at *8 (Tex. App.—Dallas Apr. 17, 2025, no pet.) (mem. op., not designated for publication) (facts did not conclusively prove that appellant released victim in safe place, given evidence that he “continued to assert power and control over” her by, among other things, “threatening her with death” and conditioning release on “continuation of the relationship with appellant”).

In sum, the limited evidence as to whether Cloud released Khan and Osorio in a safe place is mixed. As some evidence supports the trial court's finding that the place of release was not safe, the evidence is legally sufficient. See Butcher, 454 S.W.3d at 20 (evidence is legally sufficient when some evidence supports finding). And while some evidence is to the contrary, this does not render the evidence supporting the trial court's finding factually insufficient. See id. Here, the trial court's finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or reflect clear bias. See id. (factual-sufficiency standard of review).

We overrule Cloud's second issue.

CONCLUSION

We affirm the trial court's judgments.

FOOTNOTES

1.   When an appellant asserts his lawyer gave ineffective assistance during the punishment phase, to prove harm he must show a reasonable probability that, but his lawyer's deficient performance, the judge or jury assessing his punishment would have rendered a more favorable verdict. Pham v. State, 639 S.W.3d 708, 713 (Tex. Crim. App. 2022). It is not enough to show that the lawyer's deficient performance merely “had some conceivable effect on the outcome of the punishment assessed.” Id. (internal quotation marks and citation omitted).

2.   Assuming mitigating evidence exists, the decision whether to offer it in the punishment phase is a matter of trial strategy, which may turn on the lawyer's professional judgment as to whether the witnesses or other evidence may be more harmful than helpful to the client's cause. See Haley v. State, No. 01-17-00576-CR, 2018 WL 3233601, at *2 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem. op., not designated for publication). Absent evidence to the contrary, appellate courts “presume trial counsel's decision not to present any mitigating evidence was rational and strategic.” Id.; see also Lumpkin v. State, 129 S.W.3d 659, 665 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (declining to find ineffective assistance for failure to call witnesses in punishment phase as record was “silent as to counsel's tactics or strategy” on punishment).

3.   And the fear lingered long after their release. Khan testified she feared for her life even after the event and was in therapy, and Osorio said she needed therapy. Khan's mother testified that her daughter more than once panicked when strangers came to their home or neighborhood due to the fear resulting from their home address being compromised.

4.   A sister court has held that a kidnapper's threat to harm or kill his victims if they contact police after their release cannot “transform an otherwise safe place into an unsafe place.” Lavarry v. State, 936 S.W.2d 690, 697 (Tex. App.—Dallas 1996, pet. dism'd). But as its “otherwise safe place” language suggests, it held so in a materially different context. There, one victim was released in her own car in a familiar area. Id. at 696. The other was released in the first one's apartment, a place with which he too was familiar. Id. at 692–93, 696. Nothing in the record showed these places were unsafe. Id. at 696. Indeed, both victims “testified that they were released in a safe place.” Id. at 697. On that record, the court rejected the State's contention that “when the defendant threatens the victim, no place of release could be a safe place.” Id. at 696–97.However, the situation before us is not comparable to the one addressed by the Lavarry court. Khan and Osorio did not testify they were released in a safe place, there is no evidence regarding their familiarity with the place, and this is not an instance in which nothing in the record calls into question whether it was a safe place. As a result, we are not faced with the dilemma of whether the threats Cloud and his accomplice made transformed an “otherwise safe place” into an unsafe one. Instead, we merely consider their threats as one circumstance among others. See id. at 697 (acknowledging that “victim's feelings of safety may be a factor in determining the safety of a place” but qualifying this acknowledgment by observing that “in no case has it converted an otherwise safe place (like a victim's home or operable car) into an unsafe place”).

David Gunn Justice