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My AccountChapter 20
- 20.1 Statutory Framework
- 20.2 Defining “Restrain” and “Abduct”
- 20.3 Defining Required Culpable Mental States
- 20.4 Restriction of Movement “Incident to” Other Offenses
- 20.5 Defining “Abduct” in Terms of Intent Accompanying Restraint
- 20.6 “Safe Release” Punishment Issue in Aggravated Kidnapping Prosecutions
- 20.7 Instruction—Unlawful Restraint
- 20.8 Instruction—Kidnapping
- 20.9 Instruction—Aggravated Kidnapping
- 20.10 Instruction—Aggravated Kidnapping by Deadly Weapon
- 20.11 Instruction—Aggravated Kidnapping—Safe Release Punishment Issue
Comment
Courts and legislatures in many states have addressed whether there is or should be a limit on the application of kidnapping-like crimes to situations in which the defendants’ movement or seizing of the victims is in some sense incidental to other offenses, such as murder, robbery, or sexual assault.
Some courts have held that conduct literally covered by kidnapping-like offenses that is incidental to such other offenses is not also kidnapping, at least in the absence of evidence that it increased the risk to the victims or otherwise distinguished the situations from “usual” murders, robberies, or sexual assaults.
The court of criminal appeals in Hines v. State, 75 S.W.3d 444 (Tex. Crim. App. 2002), rejected any such interpretation of the Texas Penal Code chapter 20 offenses, at least “as a matter of law.” In Hines, the court of appeals had held that Hines’s restraint of his victim in the course of a robbery was not sufficient to give rise to an aggravated kidnapping as well as a robbery. Under Penal Code section 20.01(1), it held, “to ‘interfere substantially’ means more than a ‘temporary confinement or slight movement which is part and parcel of the commission or attempted commission of another substantive criminal offense.’ ” Hines, 75 S.W.3d at 446 (quoting Hines v. State, 40 S.W.3d 705, 713–14 (Tex. App.—Houston [14th Dist.] 2001)).
Rejecting this analysis, the court of criminal appeals held instead that a rational juror could have found that the victim was abducted by the defendant. The court first made clear that—
there is nothing in the Texas statute that even suggests that it is necessary for the State to prove that a defendant moved his victim a certain distance, or that he held him a specific length of time before he can be found guilty of kidnapping. In fact, we have consistently held that under the kidnapping statute, there is no specific time requirement for determining whether a restraint has taken place.
Hines, 75 S.W.3d at 447–48.
It then added:
There is also nothing in the statute indicating that the Legislature intended to bar the prosecution of a kidnapping that is part and parcel of another offense. Clearly the Legislature did not intend for every crime which involves a victim whose liberty has been interfered with to turn into a kidnapping. It is up to the jury to distinguish between those situations in which a substantial interference with the victim’s liberty has taken place and those situations in which a slight interference has taken place. This can be established by looking at all of the circumstances surrounding the offense. There is, however, no per se bar to a kidnapping prosecution for conduct that occurs during the commission of another offense.
Hines, 75 S.W.3d at 448. Accord Reyes v. State, 84 S.W.3d 633, 636–37 (Tex. Crim. App. 2002) (Hines, as applied to capital murder conviction, permitted finding that defendant committed kidnapping as well as murder).
Under Hines, whether a restriction of liberty during a non–chapter 20 crime permits conviction for a chapter 20 crime, as well as the other offense, depends on whether “a substantial interference with the victim’s liberty has taken place.” Hines, 75 S.W.3d at 448.
Hines does not make clear whether the trier of fact may or perhaps must consider the interference with the victim’s liberty arising from (or perhaps necessarily involved in) the non–chapter 20 crime and ask whether there was an incrementally additional substantial interference with the victim’s liberty.
Is a defendant entitled to have the jury instructed regarding the analysis necessary under Hines to determine whether restriction of the victim’s movements during robberies, sexual assaults, and other crimes gives rise to a chapter 20 offense?
Hines and other cases on the issue involve challenges to the sufficiency of the evidence. Nothing indicates that defendants have ever sought such instructions or that the need for or propriety of them has been before the appellate courts.
The Committee does not recommend an instruction for these situations, on the rationale that this would constitute a prohibited comment on the evidence.
Such an instruction, if permissible and desirable, might be worded along the following lines:
If you have found the defendant guilty of the offense of [insert specific offense, e.g., robbery], you may have found that the defendant in the course of committing that offense interfered with [name]’s liberty. If you have so found, you may consider this in deciding whether, for purposes of [unlawful restraint/kidnapping/aggravated kidnapping] the state has proved the defendant interfered substantially with [name]’s liberty.
If you determine that the defendant did not substantially interfere with [name]’s liberty beyond what was [necessarily] involved in the commission of the [insert specific offense, e.g., robbery], you may find that the defendant did not interfere substantially with [name]’s liberty and thus did not commit [unlawful restraint/kidnapping/aggravated kidnapping] in addition to committing [insert specific offense, e.g., robbery].