Elements of ''Aggravated Kidnapping'' In Texas
A person commits the offense of kidnapping if he "intentionally or knowingly abducts another person." TEX. PENAL CODE ANN. 20.03(a) (Vernon 1994). "
'Abduct' means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found;
(B) using or threatening to use deadly force." TEX. PENAL CODE ANN. 20.01(2) (Vernon Supp. 2000). " 'Restrain' means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person."
In pertinent part, restraint is "without consent" if it is accomplished by "force, intimidation, or deception." Id. 20.01(1)(A).
Aggravated kidnapping occurs when the actor abducts the victim with intent to inflict bodily injury. See id. 20.04(a)(4).
Aggravated kidnapping is a first degree felony offense, unless the defendant proves he voluntarily released the defendant in a safe place, then the offense is a second degree felony. Id. 20.04(c), (d).
A person commits the offense of unlawful restraint if he "intentionally or knowingly restrains another person." Id. 20.02. Unlawful restraint is normally a class a misdemeanor. Id. 20.02(c).
However, if the actor recklessly exposes the victim to a substantial risk of serious bodily injury, the offense is a third degree felony. Id. 20.02(c)(2).
Thus, kidnapping is accomplished by abduction, which includes restraint, but unlawful restraint is committed by restraint only.
Consequently, as the State concedes, unlawful restraint is a lesser included offense of kidnapping and aggravated kidnapping. See Schweinle, 915 S.W.2d 17 at 19.
Aggravated kidnapping is governed by section 20.04 of the Penal Code. It provides:
(d) at the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree. TEX. PENAL CODE ANN. 20.04(d) (Vernon Supp. 2000).
This question was submitted to the jury, and the jury found appellant did not voluntarily release Monica in a safe place.
In determining whether the victim was released in a safe place, the following factors are considered:
(1) the remoteness of the location;
(2) the proximity of authorities or persons who could aid or assist;
(3) the time of day;
(4) climatic conditions;
(5) the condition of the victim;
(6) the character of the location or surrounding neighborhood;
(7) the victim's familiarity with the location or surrounding neighborhood Lavarry v. State, 936 S.W.2d 690, 696 (Tex. App.--Dallas 1996, pet. dism'd).