This case is on remand from the court of criminal appeals. Appellant Henry Brown (“Appellant”) was convicted of aggravated kidnapping, a first degree felony. Tex. Pen.Code Ann.. § 20.04 (Vernon Supp. 2001). During the punishment phase of the trial, Appellant raised the issue of whether he voluntarily released the victim in a safe place. However, the jury found that Appellant did not voluntarily release the victim and sentenced Appellant as a first degree felon to thirty years of imprisonment. 1 In his sole issue on original submission, Appellant challenged the fac *551 tual sufficiency of the evidence to support the jury’s finding.
In considering the issue, this court adоpted a broad construction of the term “voluntarily” and affirmed the judgment of the trial court.
Brown v. State,
We reverse .and remand for a new punishment hearing.
Background
Appellant stabbed LaVonne Brown (“Brown”), his former wife, in the neck with a knife. The stabbing occurred at Appellant’s plаce of employment in Tyler, Texas. Appellant then kidnapped Brown and drove her out of town to а vacant lot where Brown’s prior residence had burned. While they were at the location, Brown repеatedly asked Appellant to take her to the hospital. Finally, Appellant drove the ear very slоwly onto a four-lane highway. Although he initially entered the outside lane of the highway, he subsequently moved to the inside lane. At that point, Brown was afraid that Appellant planned to turn around and go back to where the house had burned. She testified that she looked at him and said, “If you’ll please take me to a hospital, I’ll tell thеm I did it.” His response was “You promise you’ll do that? You promise you’ll do that?” Brown testified that she was crying and told him she promised she would if he would take her to the hospital. In response, he drove her back to Tyler and delivered her to a hospital emergency room.
Voluntary Release
Standard of Review
At the punishment stage of an aggravated kidnapping triаl, the defendant may raise the issue of whether he voluntarily released the victim in a safe place. Tеx. Pen.Code Ann. § 20.04(d). If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a second degree felony.
Id.
Because Appellant had the burden of prоof, we determine the factual sufficiency of the evidence by considering all the evidence relevant to the issue of voluntary release to determine whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust.
Meraz v. State,
Analysis
At trial, the threshold burden of production was on Appellant to introduce evidence showing that he voluntarily released Brown in a safe placе.
See Lavarry v. State,
The State argued to the jury that Appellant released Brown only because Brown *552 “tricked” him by agreeing to tell them “[she] did it.” Therefore, according to the State, the release cоuld not be voluntary because “if somebody fools you into doing something that you wouldn’t otherwise do, it’s not voluntary.” On аppeal, the State reasserts its contention that Appellant released Brown because hе was induced to do so by Brown’s promise to falsify the police report as to the cause of her injury. Thus, thе State argues, it met its burden of persuasion at trial and the jury was free to conclude that Appellant’s аct was not voluntary.
The court of criminal appeals has concluded that a narrow rather than а broad interpretation of the term “voluntarily” is likely to effectuate the legislative purpose of sеction 20.04(d), which is to encourage kidnappers to release their kidnap victims.
Brown,
Conclusion
Having concluded the evidence is factually insufficiеnt to support the jury’s finding that Appellant did not voluntarily release Brown, we reverse the judgment of the trial cоurt as to punishment only and remand for a new hearing on punishment in accordance with article 44.29(b) of the Tеxas Code of Criminal Procedure.
Notes
. If the defendant proves the issue by a preponderance of thе evidence, the offense is a second degree felony. Tex. Pen.Code Ann. § 20.04(d) (Vernon Supp.2001). The maximum term of imprisonment for a second degree felony is twenty years. Tex. Pen.Code Ann. § 12.32 (Vernon 2003).