Introduction and definitions West's Key Number Digest West's Key Number Digest, False Imprisonment 43 to 44 West's Key Number Digest, Kidnapping 1 to 6 Legal Encyclopedias C.J.S., False Imprisonment §§ 70 to 71 C.J.S., Kidnapping §§ 1 to 7

Penal Code Chapter 20 defines the relevant conduct constituting false imprisonment, kidnapping, and aggravated kidnapping. Section 20.01 provides the definitions for the chapter.[FN1] “Restraint” is defined as restriction of a person's movements; the restriction must interfere substantially with the person's liberty and can be accomplished either by moving the person from place to place or by confining the person. The definition of restraint requires, as an element, that the defendant's conduct be without the complainant's consent. This definition is not the same as the definition of lack of consent contained in Penal Code Section 1.07(a)(12), but is much broader in that it includes within its prohibition consent obtained by force, intimidation, or deception, or by any means if the victim is under age fourteen, or mentally incompetent and the appropriate guardian does not consent.

“Abduction” means restraint with the intent to prevent liberation either by hiding the complaining witness or by using or threatening deadly force. The meaning of “deadly force” in the abduction definition is much broader than the definition in Chapter 9 of the Penal Code, which applies only to Chapter 9 offenses.[FN2] The definitions of “relative” apply to the affirmative defenses of Sections 20.02 and 20.03. The structure of the offenses of false imprisonment, kidnapping, and aggravated kidnapping can be pictured as a rough inverted pyramid. False imprisonment centers on the concept of restraint. Kidnapping is, in effect, false imprisonment plus the aggravating circumstance of abduction, namely, the intent to conceal the complainant either by hiding the complainant where he or she is not likely to be found or by using deadly force. Aggravated kidnapping is kidnapping with the intent to commit certain additional aggravating factors. Thus, concepts defined in the lesser offenses serve in discussions of the greater offenses as well. In addition, because of the interrelationship of these three offenses, the lower offense, assuming the proof raises the issue that the defendant is guilty only of that offense, always stands as a lesser included offense of the greater offense.[FN3] The 1970 Proposed Code created only two offenses: kidnapping and false imprisonment.[FN4] Only the differences between the proposed statutes and those ultimately adopted need be noted here. Under the Proposed Code kidnapping required

that the complainant be either detained for a substantial period of time or moved a substantial distance from the vicinity where he or she was originally found. False imprisonment required that the complaining witness be moved a substantial distance. This language was adopted from the Model Penal Code, which would not have allowed a kidnapping conviction for conduct that was essentially an adjunct to another offense. For example, in the celebrated Caryl Chessman case, Chessman was convicted of kidnapping arising out of a robbery and rape where the victim was moved a total of twenty-two feet. The use of the kidnapping statute allowed the California Supreme Court to affirm Chessman's death sentence. The Model Penal Code statute and the 1970 proposed statutes would have eliminated such distortions of kidnapping statutes, as in the case of a store clerk held against the wall at gunpoint, and would have required a much stricter application. The statutes that were ultimately adopted are not so strict.[FN5] The Court of Criminal Appeals has responded accordingly. It has held that the interference with liberty must be substantial but that there need be no minimal time requirement.[FN6] Thus, the evidence was sufficient to show a substantial interference with liberty where a defendant stole a car with a young boy inside and then drove around the city for one hour, exhibiting evidence of an intent to abuse the child sexually.[FN7] Also, evidence was sufficient to show substantial interference where the defendant admitted going to see the complainant, after which a scream was heard and a body was seen lying on the ground motionless, the defendant

was seen speeding from the scene with clothing of the body hanging outside the car's window, and the complainant was never found.[FN8] The Court of Appeals found sufficient evidence of substantial interference where a defendant entered the complainant's car and threatened to kill her with a knife if she did not “scoot over,” whereupon the two struggled for two to four minutes.[FN9] Substantial interference also was found where the victim, too young to consent to the restraint, was found in a secluded wooded area, shot in the head and with her hands bound behind her neck.[FN10] The Practice Commentary notes another problem with the statutes ultimately adopted. By creating three statutes, the Legislature blurred the distinctions between the concepts to the point where there is relatively little difference between felony false imprisonment, kidnapping, and aggravated kidnapping. The Practice Commentary notes that conduct that would constitute abduction under Section 20.03, as in the use of a gun to restrain the complainant, would also constitute aggravated kidnapping, as in the intent to terrorize by pointing that same gun.[FN11] The problems anticipated by these concerns, however, have not materialized to the extent projected by the Practice Commentary; it remains to be seen whether they will do so in the future.

[FNa0] Taos, New Mexico

-------------------------------------------------------------------------------[FN1] V.T.C.A., Penal Code § 20.01. [FN2] Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980). [FN3] See e.g. Ex parte Gutierrez, 600 S.W.2d 933 (Tex.Crim.App.1980) (false imprisonment is a lesser included offense of felony false imprisonment); Padgett v. State, 683 S.W.2d 453 (Tex.App.—San Antonio 1983, no pet.) (kidnapping is a lesser included offense of aggravated kidnapping). See also McIntosh v. State, 686 S.W.2d 759 (Tex.App.—Houston [1st Dist.] 1985, no pet.). See Because abduction is a concept central to both kidnaping and aggravated kidnaping, a defendant raises a lesser included offense of false imprisonment if he introduces evidence that refutes the abduction element. He need not, in an aggravated kidnaping case, refute the aggravating factor. Schweinle v. State, 915 S.W.2d 17 (Tex.Crim.App.— 1996). Because abduction is a concept central to both kidnaping and aggravated kidnaping, a defendant raises a lesser included offense of false imprisonment if he introduces evidence that refutes the abduction element. He need not, in an aggravated kidnaping case, refute the aggravating factor. [FN4] Proposed Penal Code §§ 20.01, 20.02 (1970). [FN5] V.T.C.A., Penal Code § 20.04, Practice Commentary. [FN6] Rogers v. State, 687 S.W.2d 337 (Tex.Crim.App.1985).

The Court of Criminal Appeals has now significantly expanded the concept of restraint and its requirement of substantial interference. In Hines v. State, 75 S.W.3d 444 (Tex.Crim.App.2002), the Court overturned the decision of the Court of Appeals, see Hines v. State, 40 S.W.3d 705 (Tex.App.—Houston [14th Dist.] 2001), which had held that a conviction for kidnapping would not lie where the conduct was incidental to another offense. Hines and a codefendant robbed a bank at gunpoint, forcing a teller to move from place to place within the bank to get the money. The Court of Appeals held that the substantial interference was merely incidental to the principal offense of aggravated robbery and held that such temporary confinement or slight movement which is part and parcel of another offense would not satisfy the definition of restraint. The Court of Criminal Appeals disagreed and held there was nothing in the statute's language which would indicate the Legislature's intent to bar a prosecution for kidnapping that is part and parcel of another offense. While the Legislature did not intend “for every crime which involves a victim whose liberty has been interfered with to turn into a kidnapping,” the Court left it up to juries to decide whether kidnapping would be appropriate. See also Megas v. State, 68 S.W.3d 234 (Tex.App.—Houston [1st Dist.] 2002) (substantial interference does not require a quantitative analysis of how much interference was accomplished.); Reyes v. State, 84 S.W.3d 633 (Tex.Crim.App.2002). Even though the kidnapping can be only an incidental sidelight of the murder, it is nevertheless incumbent upon the state

to demonstrate that the victim was in fact, alive at the time of the murder. See Herrin v. State, 125 S.W.3d 436 (Tex.Crim.App.2002). [FN7] Sanders v. State, 605 S.W.2d 612 (Tex.Crim.App.1980). [FN8] Rogers v. State, 687 S.W.2d 337 (Tex.Crim.App.1985). [FN9] Rodriguez v. State, 646 S.W.2d 524 (Tex.App.—Houston [1st Dist.] 1982, no pet.). [FN10] Earhart v. State, 823 S.W.2d 607 (Tex.Crim.App.1991), cert. granted and judgment vacated 509 U.S. 917, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993). [FN11] V.T.C.A., Penal Code § 20.04, Practice Commentary.