Comment

“Safe Release” Generally. A defendant convicted of aggravated kidnapping may, at the punishment stage of the trial, undertake to prove that he voluntarily released the victim in a safe place. If this is proved, the offense of which the defendant was convicted becomes and is punishable as a second-degree felony rather than a first-degree felony. Tex. Penal Code § 20.04(d). See Butcher v. State, 454 S.W.3d 13, 14 (Tex. Crim. App. 2015) (“The punishment level for aggravated kidnapping is reduced from a first-degree felony to a second-degree felony if the kidnapper ‘voluntarily releases the victim in a safe place.’ See Tex. Penal Code § 20.04(d).”).

If the jury is assessing punishment, whether the defendant has proved “safe release” is a question for the jury under appropriate instructions. Williams v. State, 851 S.W.2d 282, 288 (Tex. Crim. App. 1993) (per curiam), overruled on other grounds, Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998); Wright v. State, 571 S.W.2d 24 (Tex. Crim. App. 1978).

Defining “Voluntarily.” The term voluntarily is not defined in the statutes. In Brown v. State, 98 S.W.3d 180 (Tex. Crim. App. 2003), discussing the sufficiency of the evidence for the jury to reject Brown’s contention that he proved voluntary safe release, the court held that the term was ambiguous: “We decide that the legislatively undefined term ‘voluntarily’ in Section 20.04(d) is ambiguous primarily because it is susceptible to different meanings, some of which would support holding that appellant’s release of the victim was voluntary and some of which would support a contrary decision.” Brown, 98 S.W.3d at 183.

Brown adopted “a narrow interpretation of ‘voluntarily’ in Section 20.04(d) such as the absence ‘of rescue by the police [or others] or escape by the [kidnap] victim.’ ” Brown, 98 S.W.3d at 188. In Ballard v. State, 193 S.W.3d 916 (Tex. Crim. App. 2006), the court approved of the court of appeals’s imposition of a requirement that “in order to trigger § 20.04(d), an accused must have performed some overt and affirmative act that informs the victim that he has been fully released from captivity.” Ballard, 193 S.W.3d at 919.

Neither Brown nor Ballard addressed the wisdom, necessity, or permissibility of instructing juries on the case law’s definition of “voluntarily.” However, Clark v. State, 190 S.W.3d 59 (Tex. App.—Amarillo 2005, no pet.), found no error in the trial judge’s refusal to define either “voluntarily” or “safe place.”

The Committee concluded that a trial judge might properly include the case law’s definition of “voluntarily.” Most members believed, however, that given the risk that this would be a comment on the evidence, the definition should not be included if the defendant objects.

Defining “Release[] in . . . a Safe Place.” In Butcher v. State, the court of criminal appeals concluded that the term safe place as used in section 20.04(d) is also ambiguous “because it is not defined in the Texas Penal Code and the term is susceptible to different meanings based on the facts of each case.” Butcher v. State, 454 S.W.3d 13, 16–17 (Tex. Crim. App. 2015) (using Black’s Law Dictionary’s definition of “safe” to explain in n.5 that “[n]o ‘place’ can be definitively labeled ‘safe’ because whether a place can be described as safe depends on the circumstances”). The court in Butcher decided that, “[a]fter examining the legislative history and debates concerning what a ‘safe place’ is, we conclude that the Legislature intended for the definition of ‘safe place’ to be a fact-specific inquiry made on a case-by-case basis, considering the totality of the circumstances.” Butcher, 454 S.W.3d at 18–19.

Courts may consider seven factors in determining whether a place was safe: “(1) the remoteness of the location, (2) the proximity of help, (3) the time of day, (4) the climate, (5) the condition of the complainant, (6) the character of the location and surrounding neighborhood, and (7) the complainant’s familiarity with the location or neighborhood.” Butcher, 454 S.W.3d at 19–20. However, these factors are “merely nonexclusive aids.” Butcher, 454 S.W.3d at 19 (cited in Zuliani v. State, No. 03-13-00490-CR, 2015 WL 3453942, at *8 (Tex. App.—Austin May 29, 2015, pet. ref’d)).

The Committee considered a proposal to include in the instructions the following definition, which incorporates these seven factors:

The Committee concluded, however, that any jury instruction embodying this approach would be a prohibited comment on the evidence.

The above list is, of course, a useful guide to considerations counsel may urge to juries faced with applying the statute. It is also an important part of appellate review of juries’ rejection of defendants’ safe-release contentions. It is not, however, a permissible part of jury instructions.

Unanimity. The instructions require juries to be unanimous about whether defendants have proved voluntary safe release. Although this has not been addressed in the case law, the Committee saw no legal or logical reason why the general rule of unanimity should not be applied here.