11.4. Aggravated kidnapping West's Key Number Digest West's Key Number Digest, Kidnapping 1 to 6 Legal Encyclopedias C.J.S.

, Kidnapping §§ 1 to 7

Penal Code Section 20.04 defines aggravated kidnapping.[FN1] It is essentially abduction plus the requisite specific intent to commit one of the aggravating factors, including holding for ransom or reward; using the victim as a shield or hostage; facilitating the commission of a felony, including escape; inflicting bodily injury; violating sexually; terrorizing the victim or a third person; and interfering with the performance of a governmental or political function.[FN2] There need be no completed effort with any of the aggravating factors; for example, one is guilty of aggravated kidnapping if one abducts with the intent to abuse the victim sexually—one need not commit the sexual act.[FN3] Abduction is a continuing offense. Thus, a defendant need not have the intent to commit one of the aggravating factors at the commencement of the abduction; if the intent is formed at any time during the abduction before release, Section 20.04 is satisfied.[FN4] Because the crux of aggravated kidnapping is the possibility of death or serious bodily injury to another, the Legislature included the six

aggravating circumstances to cover those situations where the possibility of harm is greatest. There is just as much likelihood of serious harm when the accused forms the intent to commit the aggravating factor some time after the abduction commences as there is where the accused has such intentions at the very moment the abduction begins.[FN5] The use of a victim as a hostage is sufficient to satisfy Section 20.04 even if the defendant has an overall noncriminal intent or objective. There need be no showing that the defendant was engaged in the commission of an underlying crime. The essence of this subsection is the risk to a victim placed in danger in order to protect the defendant.[FN6] The use of a kidnapping victim to facilitate the commission of or escape from a felony is clearly intended to cover any abduction that has an effect of making the commission of the intended felony easier. Thus, it is sufficient if the defendant uses the victim to secure admission into a home for the purpose of committing burglary or if the defendant uses a store clerk to help make the defendant's escape from a robbery more likely.[FN7] If Subsection (4)—the intent to inflict bodily injury or abuse on the victim or to violate sexually—is alleged, the proscribed conduct is abduction with the intent to

commit some physical act of bodily injury or a nonconsensual act upon the victim. There need be no showing that the injury or act was actually committed or even attempted.[FN8] It is, however, mandatory that the intended sexual act be a nonconsensual one.[FN9] If the state elects to prove that the defendant intended to terrorize the victim or a third person, under Subsection (5), it is not sufficient to merely show that the victim was frightened. Such a reaction is considered a natural reaction to being victimized by any criminal act; without more, a victim's fear is not sufficient to satisfy this subsection.[FN10] Although the term “terrorize” is not defined, some courts have resorted to the offense of Terroristic Threat, Penal Code Section 22.07(a)(2), as support for their holdings. Thus, a threat to commit an offense against the victim that involves violence with the intent to place any person in fear of imminent serious bodily injury is sufficient evidence to satisfy Subsection (5). The standard is whether the defendant's conduct is such as to reasonably create a feeling of terror in the mind of the threatened person.[FN11] The Court of Criminal Appeals has held that to terrorize means to fill with intense fear or to coerce by threat or force. Thus, kidnapping someone's spouse in order to get revenge on that third person by causing intense worry or grief will satisfy Section 20.04(a)(5).[FN12] Subsection (b), safe release, is in effect a mitigation element that, if believed by the jury, reduces the offense to a second-degree felony. The defendant must

voluntarily release the victim alive and in a safe place. This element need not be pleaded in the indictment, and the state is not bound to negate any such evidence.[FN13] Courts have been extremely reluctant to sanction this element, going so far as to deny the mitigation where the defendant dropped the victim off on a road at night only two hundred yards from a place of business. Because the spot of release was a vacant lot frequented by “winos and gamblers” and hence unsafe for a woman, this element was not established as a matter of law.[FN14] Various factors include remoteness of the location, proximity of authorities or persons who could assist or aid the victim, the time of day of the release, climactic conditions, the victim's condition, character of location or surrounding neighborhood, and the victim's familiarity with that neighborhood or location.[FN15] The mitigation element is not raised merely by the defendant's intent to release that was never effected because of the timely intervention of the police.[FN16] Further, a defendant may not take advantage of a codefendant's actions to free the complainant, absent evidence that those actions were a concerted or planned event.[FN17] The Court of Criminal Appeals has held that safe release should not be viewed from the standpoint of the victim's physical condition and his or her ability to escape the immediate presence of the defendant. Rather, the defendant must perform some overt and affirmative act that makes clear to the victim that he or she is released

fully from captivity.[FN18] If the mitigation charge is given, it must be given at the punishment phase; it is not an issue that is to be decided at the guilt-innocence phase. It does not create a “lesser” offense.[FN19] Further, if the instruction is given, the burden of proof must be on the state to show that the victim was not released in a safe place beyond a reasonable doubt.[FN20] The 1993 amendments make it clear that the issue is one of punishment. The amendments, however, require the defendant to prove this issue by a preponderance of the evidence.[FN21]

[FNa0] Taos, New Mexico

-------------------------------------------------------------------------------[FN1] V.T.C.A., Penal Code § 20.04. [FN2] Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980) Ex parte Kennedy, 641 S.W.2d 912 (Tex.Crim.App.1982). [FN3] Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980). For these reasons, the constituent elements of the intended crime, such as the sexual assault or the felony to be facilitated, need not be alleged. Bollman v. State, 629 S.W.2d 54 (Tex.Crim.App.1982).

[FN4] Weaver v. State, 657 S.W.2d 148 (Tex.Crim.App.1983). [FN5] Butler v. State, 645 S.W.2d 820 (Tex.Crim.App.1983). [FN6] Butler v. State, 645 S.W.2d 820 (Tex.Crim.App.1983). [FN7] Bowers v. State, 570 S.W.2d 929 (Tex.Crim.App.1978). Whether the defendant has committed the felony is a matter for the jury to decide; whether that conduct, if true, is a felony is a legal question which the court must decide. If the court concludes that it is a felony, if true, the jury may be so instructed. Lucio v. State, 128 S.W.3d 262 (Tex.App.—Houston [1st Dist.] 2003) (indecency with a child is a felony as a matter of law). [FN8] Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980). The Court held that a completed offense of aggravated kidnapping could be proven if the defendant abducted the complainant and merely stated that he intended to rape the complainant. See also Garza v. State, 632 S.W.2d 823 (Tex.App.—Dallas 1982, pet. ref'd). [FN9] Garza v. State, 632 S.W.2d 823 (Tex.App.—Dallas 1982, pet. ref'd). [FN10] Garza v. State, 632 S.W.2d 823 (Tex.App.—Dallas 1982, pet. ref'd). See and compare Richardson v. State, 690 S.W.2d 22 (Tex.App.—Beaumont 1985). [FN11] Padgett v. State, 683 S.W.2d 453 (Tex.App.—San Antonio 1983, no pet.);

Rodriguez v. State, 646 S.W.2d 524 (Tex.App.—Houston [1st Dist.] 1982, no pet.). [FN12] Rogers v. State, 687 S.W.2d 337 (Tex.Crim.App.1985). One court of appeals has held that intent to terrorize is satisfied where the defendant points a gun at the complainant and the complainant testifies that she was “really scared”. Teer v. State, 895 S.W.2d 845 (Tex.App.—Waco 1995, pet. granted). This is debatable; such conduct should fall within that sphere of victim reaction that is the normal reaction to any offense; reviewing courts should focus on intent evinced by the defendant's conduct; did he intend such a result or was the result ancillary to another issue? It is also clear that the mere use of a firearm is not sufficient to elevate a kidnapping to an aggravated kidnapping. The use of a firearm is incident to the culpable mental state: did the defendant intend to secrete the victim in a location where discovery was not likely or intend to use deadly force? The success of that intent does not make the offense aggravated. Curry v. State, 966 S.W.2d 203 (Tex.App.—El Paso 1998, pdr ref'd). [FN13] Smith v. State, 541 S.W.2d 831 (Tex.Crim.App.1976), cert. denied 430 U.S. 937, 97 S.Ct. 1565, 51 L.Ed.2d 783 (1977); Butler v. State, 645 S.W.2d 820 (Tex.Crim.App.1983). [FN14] Gibbons v. State, 652 S.W.2d 413 (Tex.Crim.App.1983). One court of appeals had held that an instruction on safe release did not have to be given, where all of

the evidence regarding that issue was introduced at the guilt/innocence phase, even though the safe release evidence was uncontroverted. Buchanan v. State, 881 S.W.2d 376 (Tex.App.—Houston [1st Dist.] 1994, pet. granted). On PDR, the Court of Criminal Appeals disagreed and held there was no such burden. Safe release imposed on the defendant the burden of producing some evidence of the issue; the burden then shifted to the State to prove beyond a reasonable doubt that the release site was, in fact, unsafe. All of the evidence adduced at trial, regardless of the phase in which it was introduced was to be considered. There is some controversy over whether the defense or mitigation is available if the safe release occurs after the defendant learns of imminent capture by the police. The Beaumont court has held that such a release is not a voluntary one and, therefore, the defense or mitigation element is not a available if the defendant effects the release after he learns the police are about to capture him. Wiley v. State, 820 S.W.2d 401 (Tex.App.—Beaumont 1991). The Waco court on the other hand, disagreed and held that the purpose of the mitigation element is to effect a victim's safe release and, in effect, give a defendant an incentive to so release the victim. If the defense were unavailable once the police commenced their investigation, such victims would, in effect, be written off at that stage. The legislative purpose behind the mitigation element would be better served if it were available regardless of the stage of police investigation. Teer v. State, 895 S.W.2d 845 (Tex.App.—Waco 1995, pet. granted). [FN15] Harris v. State, 882 S.W.2d 61 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd).

[FN16] Rodriguez v. State, 746 S.W.2d 927 (Tex.App.—Houston [1st Dist.] 1988), rev'd on other grds, 753 S.W.2d 161 (Tex.Crim.App.1988). The Court of Criminal Appeals decided to adopt a narrow interpretation of “voluntary” to encourage the safe release of kidnaping victims. Brown v. State, 98 S.W.3d 180 (Tex.Crim.App.2003). The Court rejected the argument that voluntary release in a safe place be made equivalent to the renunciation defense of Section 15.04 (Renunciation is not voluntary if it is motivated in while or in part …. by circumstances not present or apparent at the inception of the illegal conduct which makes apprehension more likely). It thus, seems that any release in a safe place short of rescue by law enforcement or escape by the victim will raise the issue and justify its submission to the fact finder. See also Patterson v. State, 121 S.W.3d 22 (Tex.App.—Houston [1st Dist.] 2003), overruled on other grounds by Cleveland v. State, 2005 WL 826943 (Tex.App.—Houston [1st Dist.] 2005). A kidnapping victim is not safely released merely because the defendant affords an opportunity to escape, Ballard v. State, 193 S.W.3d 916 (Tex.Crim.App. 2006.) (Issue not raised merely because the defendant took his victim on several shopping trips in an unlocked car.) See also Girdy v. State, 175 S.W.3d 877 (Tex.App.—Amarillo, 2005); Clark v. State, 190 S.W.3d 59 (Tex.App.—Amarillo, 2005). [FN17] Wright v. State, 571 S.W.2d 24 (Tex.Crim.App.1978).

[FN18] Wiley v. State, 820 S.W.2d 401 (Tex.App.—Beaumont 1991, no pet.). Carreon v. State, 63 S.W.3d 37 (Tex.App.—Texarkana 2001) (safe release depends on a voluntary act by the defendant). [FN19] Arevalo v. State, 749 S.W.2d 271 (Tex.App.—San Antonio 1988, pet. ref'd). [FN20] Arevalo v. State, 749 S.W.2d 271 (Tex.App.—San Antonio 1988, pet. ref'd). The defendant, at the punishment phase, has the burden of producing evidence that the victim was released in a safe place. Once evidence of the release is adduced, the burden of persuasion shifts to the state to prove that the place of release was not safe. Williams v. State, 851 S.W.2d 282 (Tex.Crim.App.1993). [FN21] V.T.C.A., Penal Code § 20.04(c) (1993).