Joshua Molinar v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00201-CR

JOSHUA MOLINAR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. DC-2025-CR-1204, Honorable Douglas H. Freitag, Presiding

April 2, 2026
OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Joshua Molinar, appeals from his conviction for the offense of

aggravated kidnapping and resulting sentence of 55 years’ incarceration. 1 Appellant’s

sole issue contends that the trial court abused its discretion by denying Appellant’s

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

1 Appellant was convicted of one count of aggravated kidnapping and one count of aggravated

sexual assault. He was sentenced to 55 years’ incarceration for each offense. While Appellant’s notice of
appeal simply challenges the judgment, his sole appellate issue is addressed exclusively to the aggravated
kidnapping conviction.
Concluding that Appellant failed to preserve his appellate issue, we affirm the trial court’s

judgment.

BACKGROUND

On March 29, 2023, Deborah Martinez approached Appellant, who was on the

front porch of his home, and asked if she could use his phone. According to Martinez, as

soon as she entered Appellant’s home, he dragged her by the hair into a back bedroom

where he physically and sexually assaulted her for hours. At some point, Martinez broke

the bedroom window. When Appellant attempted to move Martinez, she was able to

escape his grasp and run out of the house. Law enforcement was contacted. Martinez

was taken to a hospital and police responded to Appellant’s home. Appellant’s father

gave the police consent to search the home. Appellant was found in a handmade bunker

in the backyard. After Appellant refused to come out of the bunker, police deployed tear

gas, which forced Appellant out. Appellant was then taken into custody.

Appellant was indicted on one count of aggravated kidnapping and one count of

aggravated sexual assault. The case proceeded to trial. At the close of evidence,

Appellant requested that the jury charge include an instruction on the lesser-included

offense of unlawful restraint. This request was denied by the trial court. At the close of

trial, Appellant was found guilty of both counts and sentenced as provided above. After

his motion for new trial was denied by operation of law, he timely filed the instant appeal.

STANDARD OF REVIEW

The denial of a lesser-included offense instruction is reviewed for an abuse of

discretion. Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023). Whether a
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defendant is entitled to a lesser-included offense instruction depends on a two-part

inquiry. Id. First, courts must compare the statutory elements of the alleged lesser

offense with the statutory elements of the greater offense as stated in the charging

instrument to determine whether the lesser offense is included within proof of the greater

offense. Id.; Lang v. State, 664 S.W.3d 155, 164 (Tex. Crim. App. 2022). If it is, the

lesser-included offense must be submitted if some evidence in the record would permit a

rational jury to find that, if the defendant is guilty, he is guilty only of the lesser-included

offense. Chavez, 666 S.W.3d at 776; Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App.

2007). This guilt-only requirement is met if there is affirmative evidence that raises the

lesser offense and rebuts or negates other evidence establishing the greater offense.

Chavez, 666 S.W.3d at 776. The evidence must present the lesser-included offense as

a valid, rational alternative to the greater offense. Id. at 777. “[I]f the defendant presents

evidence that he committed no offense at all . . . a charge on [a] lesser offense . . . is not

required.” Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).

ANALYSIS

Appellant’s sole issue contends that the trial court abused its discretion in refusing

to instruct the jury regarding unlawful restraint. As previously identified, we must first

determine whether the requested instruction is for an offense that is statutorily a lesser-

included offense to the charged offense. Chavez, 666 S.W.3d at 776. If it is, then we

must determine whether some record evidence would permit a rational jury to find

Appellant guilty only of the lesser-included offense. Id.

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Unlawful restraint has been held to be a lesser-included offense of aggravated

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

false imprisonment, which has been renamed unlawful restraint, to be lesser-included

offense of aggravated kidnapping); Mayer v. State, 274 S.W.3d 898, 900 (Tex. App.—

Amarillo 2008, pet. ref’d) (unlawful restraint is lesser-included offense of aggravated

kidnapping). Thus, Appellant has satisfied the first part of the test. Aggravated

kidnapping, as alleged in the present case, required the State to prove that Appellant

intentionally or knowingly abducted Martinez with the intent to inflict bodily injury on her

or to violate or abuse her sexually. See TEX. PENAL CODE § 20.04(a)(4). Unlawful restraint

would require proof that Appellant intentionally or knowingly restrained Martinez. See id.

§ 20.02(a).

Next, we must determine whether some record evidence would allow a rational

jury to determine that, if Appellant is guilty, he is guilty only of unlawful restraint. Appellant

contends that his custodial statement to Detective Winters required the trial court to

submit an instruction on the offense of unlawful restraint. Most of the evidence highlighted

by Appellant indicates that he did not commit either kidnapping or unlawful restraint. 2 See

Aguilar, 682 S.W.2d at 558 (lesser-included offense instruction not required when

defendant presents evidence that he committed no offense). The only evidence Appellant

points to that could raise the issue that Appellant was guilty only of unlawful restraint is

his statement, referring to Martinez, that “I ain’t fixing to let you leave like that . . . cause

2 Appellant highlights his version of the events, in which he claims that Martinez voluntarily entered

his residence, voluntarily walked to his bedroom, had an anxiety attack that led to her breaking his window,
and offered Appellant $100 or sex as payment for having broken the window. Clearly, if the jury believed
this evidence, Appellant would not be guilty of either kidnapping or unlawful restraint.

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you’re all bleeding and I wanted you to sit there and like clean yourself up.” Appellant did

not specifically refer to this evidence when arguing for inclusion of an instruction on

unlawful restraint.

“To preserve error with respect to a requested [lesser-included offense] instruction,

the defendant must point to evidence in the record that raises it.” Green v. State, 713

S.W.3d 865, 875 (Tex. Crim. App. 2025) (citing Williams v. State, 662 S.W.3d 452, 461

(Tex. Crim. App. 2021)). In other words, the defendant “must specify the evidence that

negates the greater offense and supports the lesser.” Id. “Absent that specificity, any

error in refusing the instruction would be preserved only if the specific evidence raising

the [lesser-included offense] is manifest.” Id. (citing Williams, 662 S.W.3d at 462).

At the charge conference, Appellant objected to the jury charge failing to include

an instruction on unlawful restraint. However, Appellant’s request did not specify any

evidence either raising the offense of unlawful restraint or negating the offense of

aggravated kidnapping. Appellant’s counsel said,

Judge, we still believe that we should be entitled to unlawful restraint. 3 I
believe the Court has not added that in there. Regarding unlawful restraint,
your Honor, we believe that in Court of Criminal Appeals, I don't know how
to say that, Schwiele vs. Texas, S-C-H-W-I-E-L-E. We believe that
particularly, Judge, in the Court’s opinion the Court indicates that
kidnapping is accomplished by abduction, which includes restraint. And
then -- but false imprisonment was committed by restraint only. Thus[, f]alse
imprisonment is a lesser[-]included offense of kidnapping and aggravated
kidnapping. And, Judge, as the Court well knows since then false
imprisonment has been changed to unlawful restraint. So, for that reason,
Judge, we believe that should be added.

3 Our review of the record reflects that Appellant did not previously raise the issue of his entitlement

to an instruction on unlawful restraint.

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Appellant’s request simply argued that unlawful restraint is a statutory lesser-included

offense of aggravated kidnapping and, thus, the jury charge should instruct the jury on

unlawful restraint. Because Appellant did not point to any evidence that would have

entitled him to an instruction on unlawful restraint, he failed to preserve his complaint

unless the evidence was manifest. Id. The evidence Appellant points to on appeal as

raising the issue consists solely of a single statement he made during an hour-long

interview that was presented during a four-day trial. We cannot conclude that such

evidence manifestly raises the issue of unlawful restraint. Because we conclude that

Appellant failed to preserve his complaint regarding his requested lesser-included

offense, we overrule his sole issue.

CONCLUSION

Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.

Judy C. Parker
Chief Justice

Publish.

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