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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
The definition of “abduct” may give rise to some doubt about what the state must prove the defendant actually did and what is sufficient for the state to prove the defendant intended to do.
Regarding Texas Penal Code section 20.01(2)(A), the court of criminal appeals has explained:
[T]he State is not required to prove that the defendant actually secreted or held another. Instead the State must prove that the defendant restrained another with the specific intent to prevent liberation by secreting or holding the person. The offense of kidnapping is legally completed when the defendant, at any time during the restraint, forms the intent to prevent liberation by secreting or holding another in a place unlikely to be found.
Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009) (citing Brimage v. State, 918 S.W.2d 466, 475–76 (Tex. Crim. App. 1994)); see also Coleman v. State, No. AP-75,478, 2009 WL 4696064, at *4 (Tex. Crim. App. Dec. 9, 2009) (noting that “a rational factfinder can infer the intent to secret or hold a person in a place where that person is unlikely to be found when a defendant isolates a person from anyone who might be of assistance”).
The same analysis undoubtedly applies to section 20.01(2)(B). As a result, kidnapping does not require proof that the defendant actually did anything beyond what is required for unlawful restraint. Kidnapping does require that the defendant, as he “restrain[ed]” the victim, have had the intention to prevent the victim’s liberation and specifically intended to do so by either secreting or holding the victim in a secret place or by using or threatening to use deadly force.
The Committee had some concern whether the definition of the distinguishing element of kidnapping in the instructions made Laster’s holding adequately clear. It could not, however, draft reasonably precise language better conveying Laster’s law.