Is Punishment Reduced If a Kidnapper Releases the Victim ?
Section 20.04 of the Penal Code provides that aggravated kidnapping is reduced to a second degree felony if, at the punishment stage of his trial, a defendant establishes by a preponderance of the evidence that he voluntarily released the victim in a safe place. Tex. Penal Code Ann. 20.04(d).
In Lavarry v. State, 936 S.W.2d 690, 696 (Tex.App.--Dallas 1996, pet. ref'd), the court suggested several factors that might be utilized in determining whether a defendant has satisfied his burden of proving voluntary release.
Those suggested factors are:
(1) where the victim was released;
(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.
The decision, however, must be made on a case-by-case basis.
While the suggested factors are helpful, it must be remembered that they are only aids to be used in making the ultimate decision; namely, whether the evidence, after considering all the surrounding circumstances existent in the case, shows the jury's finding was manifestly unjust.