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Aggravated kidnapping

West's Key Number Digest

West's Key Number Digest, Kidnapping 1 to 6

Legal Encyclopedias

C.J.S., Kidnapping §§ 1 to 7

Penal Code Section 20.04 defines aggravated kidnapping.[FN1] It is

abduction plus the requisite specific intent to commit one of the aggravating
factors, including holding for ransom or reward; using the victim as a shield
hostage; facilitating the commission of a felony, including escape; inflicting
bodily injury; violating sexually; terrorizing the victim or a third person; and
interfering with the performance of a governmental or political
function.[FN2] There
need be no completed effort with any of the aggravating factors; for
example, one is
guilty of aggravated kidnapping if one abducts with the intent to abuse the
sexually—one need not commit the sexual act.[FN3]

Abduction is a continuing offense. Thus, a defendant need not have the

intent to
commit one of the aggravating factors at the commencement of the
abduction; if the
intent is formed at any time during the abduction before release, Section
20.04 is
satisfied.[FN4] Because the crux of aggravated kidnapping is the possibility
death or serious bodily injury to another, the Legislature included the six
aggravating circumstances to cover those situations where the possibility of
harm is
greatest. There is just as much likelihood of serious harm when the accused
the intent to commit the aggravating factor some time after the abduction
as there is where the accused has such intentions at the very moment the

The use of a victim as a hostage is sufficient to satisfy Section 20.04 even if

defendant has an overall noncriminal intent or objective. There need be no
that the defendant was engaged in the commission of an underlying crime.
The essence
of this subsection is the risk to a victim placed in danger in order to protect

The use of a kidnapping victim to facilitate the commission of or escape

from a
felony is clearly intended to cover any abduction that has an effect of
making the
commission of the intended felony easier. Thus, it is sufficient if the
uses the victim to secure admission into a home for the purpose of
burglary or if the defendant uses a store clerk to help make the defendant's
from a robbery more likely.[FN7]

If Subsection (4)—the intent to inflict bodily injury or abuse on the victim or

violate sexually—is alleged, the proscribed conduct is abduction with the
intent to
commit some physical act of bodily injury or a nonconsensual act upon the
There need be no showing that the injury or act was actually committed or
attempted.[FN8] It is, however, mandatory that the intended sexual act be a
nonconsensual one.[FN9]

If the state elects to prove that the defendant intended to terrorize the victim
a third person, under Subsection (5), it is not sufficient to merely show that
victim was frightened. Such a reaction is considered a natural reaction to
victimized by any criminal act; without more, a victim's fear is not sufficient
satisfy this subsection.[FN10] Although the term “terrorize” is not defined,
courts have resorted to the offense of Terroristic Threat, Penal Code Section
22.07(a)(2), as support for their holdings. Thus, a threat to commit an
against the victim that involves violence with the intent to place any person
fear of imminent serious bodily injury is sufficient evidence to satisfy
(5). The standard is whether the defendant's conduct is such as to reasonably
a feeling of terror in the mind of the threatened person.[FN11] The Court of
Criminal Appeals has held that to terrorize means to fill with intense fear or
coerce by threat or force. Thus, kidnapping someone's spouse in order to get
on that third person by causing intense worry or grief will satisfy Section

Subsection (b), safe release, is in effect a mitigation element that, if believed

the jury, reduces the offense to a second-degree felony. The defendant must
voluntarily release the victim alive and in a safe place. This element need
not be
pleaded in the indictment, and the state is not bound to negate any such
evidence.[FN13] Courts have been extremely reluctant to sanction this
element, going
so far as to deny the mitigation where the defendant dropped the victim off
on a
road at night only two hundred yards from a place of business. Because the
spot of
release was a vacant lot frequented by “winos and gamblers” and hence
unsafe for a
woman, this element was not established as a matter of law.[FN14] Various
include remoteness of the location, proximity of authorities or persons who
assist or aid the victim, the time of day of the release, climactic conditions,
victim's condition, character of location or surrounding neighborhood, and
victim's familiarity with that neighborhood or location.[FN15]

The mitigation element is not raised merely by the defendant's intent to

that was never effected because of the timely intervention of the
Further, a defendant may not take advantage of a codefendant's actions to
free the
complainant, absent evidence that those actions were a concerted or planned

The Court of Criminal Appeals has held that safe release should not be
viewed from
the standpoint of the victim's physical condition and his or her ability to
the immediate presence of the defendant. Rather, the defendant must
perform some
overt and affirmative act that makes clear to the victim that he or she is
fully from captivity.[FN18]

If the mitigation charge is given, it must be given at the punishment phase; it

not an issue that is to be decided at the guilt-innocence phase. It does not
a “lesser” offense.[FN19] Further, if the instruction is given, the burden of
must be on the state to show that the victim was not released in a safe place
a reasonable doubt.[FN20] The 1993 amendments make it clear that the
issue is one of
punishment. The amendments, however, require the defendant to prove this
issue by a
preponderance of the evidence.[FN21]

[FNa0] Taos, New Mexico


[FN1] V.T.C.A., Penal Code § 20.04.

[FN2] Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980) Ex parte

Kennedy, 641
S.W.2d 912 (Tex.Crim.App.1982).

[FN3] Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980). For these

reasons, the
constituent elements of the intended crime, such as the sexual assault or the
to be facilitated, need not be alleged. Bollman v. State, 629 S.W.2d 54
[FN4] Weaver v. State, 657 S.W.2d 148 (Tex.Crim.App.1983).

[FN5] Butler v. State, 645 S.W.2d 820 (Tex.Crim.App.1983).

[FN6] Butler v. State, 645 S.W.2d 820 (Tex.Crim.App.1983).

[FN7] Bowers v. State, 570 S.W.2d 929 (Tex.Crim.App.1978).

Whether the defendant has committed the felony is a matter for the jury to
whether that conduct, if true, is a felony is a legal question which the court
decide. If the court concludes that it is a felony, if true, the jury may be so
instructed. Lucio v. State, 128 S.W.3d 262 (Tex.App.—Houston [1st Dist.]
(indecency with a child is a felony as a matter of law).

[FN8] Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.1980). The Court

held that a
completed offense of aggravated kidnapping could be proven if the
defendant abducted
the complainant and merely stated that he intended to rape the complainant.
See also
Garza v. State, 632 S.W.2d 823 (Tex.App.—Dallas 1982, pet. ref'd).

[FN9] Garza v. State, 632 S.W.2d 823 (Tex.App.—Dallas 1982, pet. ref'd).

[FN10] Garza v. State, 632 S.W.2d 823 (Tex.App.—Dallas 1982, pet. ref'd).
See and
compare Richardson v. State, 690 S.W.2d 22 (Tex.App.—Beaumont 1985).

[FN11] Padgett v. State, 683 S.W.2d 453 (Tex.App.—San Antonio 1983, no

Rodriguez v. State, 646 S.W.2d 524 (Tex.App.—Houston [1st Dist.] 1982,
no pet.).

[FN12] Rogers v. State, 687 S.W.2d 337 (Tex.Crim.App.1985). One court of

appeals has
held that intent to terrorize is satisfied where the defendant points a gun at
complainant and the complainant testifies that she was “really scared”. Teer
State, 895 S.W.2d 845 (Tex.App.—Waco 1995, pet. granted). This is
debatable; such
conduct should fall within that sphere of victim reaction that is the normal
reaction to any offense; reviewing courts should focus on intent evinced by
defendant's conduct; did he intend such a result or was the result ancillary to
another issue? It is also clear that the mere use of a firearm is not sufficient
elevate a kidnapping to an aggravated kidnapping. The use of a firearm is
to the culpable mental state: did the defendant intend to secrete the victim in
location where discovery was not likely or intend to use deadly force? The
of that intent does not make the offense aggravated. Curry v. State, 966
S.W.2d 203
(Tex.App.—El Paso 1998, pdr ref'd).

[FN13] Smith v. State, 541 S.W.2d 831 (Tex.Crim.App.1976), cert. denied

430 U.S.
937, 97 S.Ct. 1565, 51 L.Ed.2d 783 (1977); Butler v. State, 645 S.W.2d 820

[FN14] Gibbons v. State, 652 S.W.2d 413 (Tex.Crim.App.1983). One court

of appeals
had held that an instruction on safe release did not have to be given, where
all of
the evidence regarding that issue was introduced at the guilt/innocence
phase, even
though the safe release evidence was uncontroverted. Buchanan v. State, 881
376 (Tex.App.—Houston [1st Dist.] 1994, pet. granted). On PDR, the Court
of Criminal
Appeals disagreed and held there was no such burden. Safe release imposed
on the
defendant the burden of producing some evidence of the issue; the burden
shifted to the State to prove beyond a reasonable doubt that the release site
in fact, unsafe. All of the evidence adduced at trial, regardless of the phase in
which it was introduced was to be considered.
There is some controversy over whether the defense or mitigation is
available if the
safe release occurs after the defendant learns of imminent capture by the
The Beaumont court has held that such a release is not a voluntary one and,
therefore, the defense or mitigation element is not a available if the
effects the release after he learns the police are about to capture him. Wiley
State, 820 S.W.2d 401 (Tex.App.—Beaumont 1991). The Waco court on the
other hand,
disagreed and held that the purpose of the mitigation element is to effect a
victim's safe release and, in effect, give a defendant an incentive to so
the victim. If the defense were unavailable once the police commenced their
investigation, such victims would, in effect, be written off at that stage. The
legislative purpose behind the mitigation element would be better served if it
available regardless of the stage of police investigation. Teer v. State, 895
845 (Tex.App.—Waco 1995, pet. granted).

[FN15] Harris v. State, 882 S.W.2d 61 (Tex.App.—Houston [14th Dist.]

1994, pet. ref'd).
[FN16] Rodriguez v. State, 746 S.W.2d 927 (Tex.App.—Houston [1st Dist.]
1988), rev'd
on other grds, 753 S.W.2d 161 (Tex.Crim.App.1988).
The Court of Criminal Appeals decided to adopt a narrow interpretation of
“voluntary” to encourage the safe release of kidnaping victims. Brown v.
State, 98
S.W.3d 180 (Tex.Crim.App.2003). The Court rejected the argument that
release in a safe place be made equivalent to the renunciation defense of
15.04 (Renunciation is not voluntary if it is motivated in while or in part ….
circumstances not present or apparent at the inception of the illegal conduct
makes apprehension more likely). It thus, seems that any release in a safe
short of rescue by law enforcement or escape by the victim will raise the
issue and
justify its submission to the fact finder. See also Patterson v. State, 121
22 (Tex.App.—Houston [1st Dist.] 2003), overruled on other grounds by
Cleveland v.
State, 2005 WL 826943 (Tex.App.—Houston [1st Dist.] 2005). A
kidnapping victim is
not safely released merely because the defendant affords an opportunity to
Ballard v. State, 193 S.W.3d 916 (Tex.Crim.App. 2006.) (Issue not raised
because the defendant took his victim on several shopping trips in an
unlocked car.)
See also Girdy v. State, 175 S.W.3d 877 (Tex.App.—Amarillo, 2005); Clark
v. State,
190 S.W.3d 59 (Tex.App.—Amarillo, 2005).

[FN17] Wright v. State, 571 S.W.2d 24 (Tex.Crim.App.1978).

[FN18] Wiley v. State, 820 S.W.2d 401 (Tex.App.—Beaumont 1991, no
Carreon v. State, 63 S.W.3d 37 (Tex.App.—Texarkana 2001) (safe release
depends on a
voluntary act by the defendant).

[FN19] Arevalo v. State, 749 S.W.2d 271 (Tex.App.—San Antonio 1988,

pet. ref'd).

[FN20] Arevalo v. State, 749 S.W.2d 271 (Tex.App.—San Antonio 1988,

pet. ref'd). The
defendant, at the punishment phase, has the burden of producing evidence
that the
victim was released in a safe place. Once evidence of the release is adduced,
burden of persuasion shifts to the state to prove that the place of release was
safe. Williams v. State, 851 S.W.2d 282 (Tex.Crim.App.1993).

[FN21] V.T.C.A., Penal Code § 20.04(c) (1993).