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11.3.

Kidnapping

West's Key Number Digest

West's Key Number Digest, Criminal Law 45.10


West's Key Number Digest, Kidnapping 1 to 6
West's Key Number Digest, Kidnapping 4

Legal Encyclopedias

C.J.S., Abduction §§ 1 to 27

C.J.S., Kidnapping §§ 1 to 7

Penal Code Section 20.03 defines the conduct constituting kidnapping.[FN1]


The
central concept is abduction, which is basically an aggravated form of
restraint.[FN2] Restraint becomes abduction if done with the intent to
prevent the
victim's liberation[FN3] and the victim is secreted in a place where he or she
is
unlikely to be found or if deadly force is threatened or used.[FN4]

The alternative elements of secreting victims where they are not likely to be
found
or threatening to use deadly force are elements of the culpable mental state
of
intent to prevent liberation rather than elements of the conduct. Kidnapping
is the
knowing and intentional abduction of a person. Abduct means to restrain a
person
with the intent to prevent liberation by either secreting someone where they
are not
likely to be found or using or threatening to use deadly force. These two
alternatives modify the culpable mental state of intent to prevent liberation.
Under
this interpretation the offense is complete once a restraint is accomplished
and
there is evidence that the actor intended to prevent liberation by one of the
two
alternatives, rather than being complete once restraint is accomplished by the
use
of secretion or force.

It is this culpable mental state that distinguishes false imprisonment from


kidnaping. False imprisonment is nothing more than an intentional restraint.
It
becomes a kidnaping once a defendant evidences a specific intent to prevent
liberation by either secretion or deadly force. False imprisonment is not
elevated
by the manner in which restraint is accomplished. The state need only prove
(1) a
restraint was made (2) with a specific intent to prevent liberation with one of
the
two alternatives. In other words, the initial restraint need not be
accompanied by
force. A defendant does not have to compel the restraint by such means. He
need only
effect the restraint with the intent to prevent liberation by either secretion or
the use of deadly force.[FN5]

As noted above, there is no minimum time to accomplish a restraint. If the


defendant
has the requisite intent, that is to either secrete in a location not likely to be
found or to use deadly force, restraint is completed once freedom of
movement is
restricted.[FN6]

An indictment for kidnapping may either (1) allege that a defendant


abducted the
complainant or (2) state that the defendant used or threatened to use deadly
force
or secreted the complainant where he or she was not likely to be found. If
the
latter method is used, the indictment must allege that the abduction was with
the
intent to prevent the complainant's liberation; it is not sufficient to aver that
the abduction was without the victim's consent.[FN7] The latter method is
mandatory
if the defendant files a motion to quash, demanding notice of the manner and
means
of committing the offense.[FN8]

Secreting a victim occurs when the victim is left in a situation where help is
not
likely to be forthcoming. Even if the victim has access to escape or other
persons
or innocent individuals are around the victim, kidnaping occurs if the victim
is
physically unable to take advantage of the opportunity.[FN9]

Deadly force does not require a specific threat; it may be accomplished, just
as in
any other offense, by the mere display of a deadly weapon.[FN10]

[FNa0] Taos, New Mexico

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[FN1] V.T.C.A., Penal Code § 20.03.

[FN2] Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977).


[FN3] Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977); Padgett v.
State, 683
S.W.2d 453 (Tex.App.—San Antonio 1983, no pet.).

[FN4] McIntosh v. State, 686 S.W.2d 759 (Tex.App.—Houston [1st Dist.]


1985, no pet.).

[FN5] Brimage v. State, 918 S.W.2d 466 (Tex.Crim.App.1994); Mason v.


State, 905
S.W.2d 570 (Tex.Crim.App.1995). Here, however, there was no evidence
that the
defendant ever intended to hide his victim or to use deadly force; he simply
drove
around town with him by the use of an artifice. See also Santellan v. State,
939
S.W.2d 155 (Tex.Crim.App.1977). Here the defendant shot the victim in the
head and
then placed the unconscious victim in his car. There was some possibility
that the
victim was still alive but only for a few moments. The Court found this
sufficient
evidence of restraint to uphold the kidnaping element of a capital murder. In
King
v. State, 961 S.W.2d 691 (Tex.App.—Austin, 1998 pdr ref'd), the Court cited
Brimage
and held that the issue in a kidnapping case is whether the defendant
intended to
take his victim to a place where he or she was not likely to be found, or
intended
to use deadly force, not whether the defendant accomplished his purpose.
Price v. State, 35 S.W.3d 136 (Tex.App.—Waco 2000) (Intent to prevent
liberation by
force established when defendant shoved complainant into bathroom and
closed door
when someone knocked at front door and, later, throwing complainant
behind a bed
when a second person knocked on door).
[FN6] Gaffney v. State, 937 S.W.2d 540 (Tex.App.—Texarkana 1996, pdr
ref'd).

[FN7] Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977).

[FN8] Gibbons v. State, 652 S.W.2d 413 (Tex.Crim.App.1983); Reynolds v.


State, 760
S.W.2d 351 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd).

[FN9] Cortez v. State, 738 S.W.2d 372 (Tex.App.—Corpus Christi 1987, no


pet.). See,
however, Beeman v. State, 828 S.W.2d 265 (Tex.App.—Forth Worth 1992,
pet. ref'd).
The court held evidence insufficient to sustain allegation of secreting victim
in
place unlikely to be found where defendant forced the complaining witness
into a
storeroom and sexually assaulted her. The door to the rest of the store
remained
open, and the defendant fled when a customer arrived. The storeroom was
visible to
anyone who entered the back area. The Court held that the evidence did not
show that
the defendant, by means of threats, isolated the complaining witness from
anyone who
could be of assistance. While, in reality, this case was one of sexual assault,
with
the elements of kidnapping incidental to the primary offense, the Court of
Criminal
Appeals has rejected the Model Penal Code analysis that this case employs.

[FN10] Jernigan v. State, 706 S.W.2d 813 (Tex.App.—Fort Worth 1986, pet.
ref'd). See
also Rodriguez v. State, 730 S.W.2d 75 (Tex.App.—Corpus Christi 1987, no
pet.).