Comment

The initial question faced by the Committee was how closely the jury instructions should follow the statutory framework. This also put into issue how much of the sometimes overlapping statutory language should be included in the instructions and how the statutory language should be presented.

Traditionally, jury instructions define the charged offenses as requiring restraint or abduction. The instructions then provide definitions of those terms.

The Committee concluded that this approach fails to provide juries with convenient and comprehensive lists of the actual elements of the major Texas Penal Code chapter 20 offenses. As a result, the instructions in this chapter define the offenses in a manner that incorporates the statutory definitions of “restraint” and “abduct.”

Texas pleading law confirms the wisdom of this approach. A kidnapping indictment alleging simply that the accused “restrain[ed]” the victim fails to provide required notice. The defendant is entitled to have the state plead whether it will show—in terms of the subelements of restraint—that the defendant moved the victim or confined him. Reynolds v. State, 723 S.W.2d 685, 686 (Tex. Crim. App. 1986) (state must allege, in face of motion to quash, which statutory alternative manner or means of restraint it seeks to prove, whether by moving victim from one place to another or confining victim). That the subelements of restraint are of such significance that at least some of them must be specified in the charging instrument suggests they should also be explicitly identified as constituent elements of the offense in the jury instructions.

Should or must the jury instructions include the terms restrain and (for kidnapping) abduct? Or would it be permissible—and, if so, also desirable—to avoid use of these terms and put the matter to juries in terms of the constituent subelements?

Unlawful restraint, for example, could be defined without reference to the term restrain by setting out the subelements of restraint as defined in Penal Code section 20.01(1). Thus the offense would be defined as consisting of restricting a person’s movements by movement or confinement. No mention would be made of the term restrains as used in the basic definition of the offense set out in section 20.02(a) (“A person commits an offense if he intentionally or knowingly restrains another person.”). This approach would arguably simplify the instructions.

The Committee decided, however, that the terms restrain and abduct are quite central to the legislature’s meaning of the offenses. Further, the legislature has made them elements of the offenses. Consequently, those terms are incorporated into the instructions’ statements of the elements of the offenses.

Submission of a lesser included offense would be facilitated by the Committee’s approach. Kidnapping consists of four of the five elements of aggravated kidnapping, and unlawful restraint consists of three of the four elements of kidnapping. This should make quite clear to jurors the relationship between the three major chapter 20 offenses.