11.2. False imprisonment West's Key Number Digest West's Key Number Digest, False Imprisonment 43 to 44 Legal Encyclopedias C.J.S.

, False Imprisonment §§ 70 to 71

Penal Code Section 20.02 defines the offense of False Imprisonment.[FN1] The gravamen of the offense is restraint of the complainant without his or her consent.[FN2] Because the offense may be committed by interfering substantially with the complainant's liberty, by moving the complainant from one place to another, or by confining the complainant, and because lack of consent may be shown by the defendant's use of force, intimidation, or deception, or any means against a child, the manner and means of effecting that restraint must be alleged in the charging instrument if the issue is raised by a motion to quash.[FN3] The charging instrument, however, need only allege restraint to confer jurisdiction on the trial court; it need not allege that the restraint was without the complainant's consent.[FN4] It is not sufficient to show unlawful restraint to merely prove that the accused intended to or did, in fact, restrict the complainant's liberty; the fact of the confinement or restraint must be made apparent to the complainant.[FN5] The use of unlawful authority to restrict another's movement can constitute false

imprisonment.[FN6] In order to establish restraint, the state is permitted to show all circumstances, including the defendant's physical ability to commit the offense.[FN7] It makes no difference, for purposes of showing restraint, that the complainant initially agreed to associate or go with the defendant.[FN8] Restraint, and consequently abduction, commences when the complainant is no longer free to go where and when he or she pleases and that lack of freedom is occasioned by the use of force, intimidation, or deception.[FN9] False imprisonment is a felony if the complainant is exposed to a substantial risk of death or serious bodily injury by the defendant's conduct. This concept is an essential element of the offense; it is not merely a matter of punishment. Thus, it must be alleged in the indictment and the jury must be instructed to find it before the defendant can be convicted of the felony.[FN10] An indictment alleging merely that the defendant recklessly exposed the complainant to serious bodily injury is not defective.[FN11] While substantial risk of serious bodily injury is not defined in the Code, the Court of Criminal Appeals has defined it as a real and true risk of such injury.[FN12]

[FNa0] Taos, New Mexico

-------------------------------------------------------------------------------[FN1] V.T.C.A., Penal Code § 20.02. [FN2] Ashley v. State, 527 S.W.2d 302 (Tex.Crim.App.1975). Restraint is without consent if the complainant is a child less than 14 and his or her parents do not agree to the movement. Price v. State, 35 S.W.3d 136 (Tex.App.—Waco 2000). [FN3] Reynolds v. State, 760 S.W.2d 351 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd). [FN4] Ward v. State, 642 S.W.2d 782 (Tex.Crim.App.1982). [FN5] Massey v. State, 624 S.W.2d 576 (Tex.Crim.App.1981). The defendant, a nursing home administrator, told the complainant's son that the complainant would not be allowed to leave the home unless the home's bill was paid. None of this was ever communicated to the complainant. See, however, Langley v. State, 723 S.W.2d 813 (Tex.App.—Tyler 1987, pet. ref'd) where, during a prison escape, the guard was tied, bound, and blindfolded. He was never threatened with physical injury in any manner. The would-be escapees, however, told the warden that if any attempt was made to liberate the guard, they would kill him. This was sufficient to show, for purposes of abduction, that the complainant was restrained by the use or threatened use of deadly force. See V.T.C.A., Penal Code § 20.01(2).

[FN6] Austin v. State, 541 S.W.2d 162 (Tex.Crim.App.1976). [FN7] Ashley v. State, 527 S.W.2d 302 (Tex.Crim.App.1975). [FN8] Rodriguez v. State, 730 S.W.2d 75 (Tex.App.—Corpus Christi 1987, no pet.). [FN9] For good examples of the use of deception to accomplish restraint, see Pack v. State, 651 S.W.2d 389 (Tex.App.—Fort Worth 1983 pet. ref'd); January v. State, 678 S.W.2d 243 (Tex.App.—Corpus Christi 1984, pet. ref'd). [FN10] Ex parte Gutierrez, 600 S.W.2d 933 (Tex.Crim.App.1980); Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977). [FN11] Cantu v. State, 662 S.W.2d 455 (Tex.App.—Corpus Christi 1983, no pet.). The reasoning here is somewhat suspect. The court merely concluded that recklessly exposing someone to serious bodily injury is more restrictive than recklessly exposing someone to a substantial risk of serious bodily injury, thus imposing a greater burden of proof on the state. It is doubtful whether this conclusion would stand up to more rigorous analysis. [FN12] Taylor v. State, 550 S.W.2d 695 (Tex.Crim.App.1977). The Court, unfortunately, went on to hold that the complainants' testimony that they could have

been so injured if a number of hypothetical events had happened was sufficient to sustain the allegation.