*1 negligence per Specifical struetion on se.
ly, argues Department Houser (the
Trаnsportation regulation regulation) groove depth put tire
concerning fails public the required notice of con
duct, fault, imposes liability without adopted by
has never been a court as
defining specific standard care. At
trial, objected liability to the ques Houser
tion on the the regulation basis that did or support constitute submission of
negligence per se it would be ordinary within negli
subsumed care or
gence. objection Houser’s was overruled. object
Houser did not to the submission of per se negligence instruction on the bas
es appeal. Accordingly, raised on Houser v. Horany, issue. Cantu
has waived this (Tex.App.-Dallas (even
no if pet.) objections appear*merito appeal, they preserved
rious on are
appellate review if record does not show court).
complaint made to trial needWe
not further address Houser’s second issue. judgment.
We affirm trial court’s KENNY,
Christopher Appellant, Lee Texas, Appellee.
The STATE of
No. 14-06-00764-CR. Texas, of Appeals
Court Dist.). (14th
Houston
Sept. 2007.
Discretionary Review Refused
April 2008. *2 Houston, TX, Wicoff, appellant.
Bob Houston, Holloway, appellee. Bridget YATES, Panel consists of Justices rectly across from her position at the bar. SEYMORE, Later, and EDELMAN.* as appellant approached the com- plainant to a cigarette access machine lo-
MAJORITY OPINION her, cated behind she him why asked he her, by would not sit and he did not re- YATES, B. LESLIE Justice. spond. Appellant then returned to his A jury appellant convicted Christopher seat, drink, had a talked to patrons, оther Kenny Lee of kidnapping, and the trial and complainant. smiled at the She stated court punishment years’ assessed at two that appellant’s behavior her made a “little issues, In confinement. five challenges he Appellant nervous.” left after having a and legal factual of the “couple of drinks” and without to speaking to jury’s finding complainant. complains element abduction and Thereafter, a man complainant who the the trial court erred to refusing instruct had to pub talked at the give offered to her on various defenses. We affirm. a ride home. accepted She because she I. Factual and Procedural felt “tipsy” and probably she
Background should not drive. midnight, Around owned, man her drove to a rental house he Appellant complainant and the dated house, rаther than her because she ex- together and lived at residence in Katy, plained to him she was go- nervous about evening Texas. theOn of June ing home of appellant’s because behavior. he complainant and the went to dinner at a stayed She at the house drank and water local restaurant where he drank one-and-a- with twenty the man for about twenty- half bottles of sake and she drank two to five minutes. After the man made an dinner, three glasses of wine. During her, unsolicited sexual advance at which dispute finances, arose over the couple’s rejected, he drove her back her car and appellant stopped talking to the com- pub’s parking lot midnight. after plainant. they finished, After complainant and the drove home without According complainant, to the when she speaking to one another in the car. car, exited the appel- man’s she observed trial, At complainant standing and lant her car rope. differing offered versions of car, the events As she enter appel- her occurring complainant her, arm, thereafter. The lant yelled grabbed pulled her truck, testified that she tried to speak appel- her his pickup opened the truck’s lant when door, returned passenger and forced her inside. respond. twenty would not thirty After complainant The point, stated that this minutes, telling appellant, without she left the man who dropped off had left the pub “up drove premises, the road.” The and no one else in the parking complainant stayed stated that she at the lot witnessed these events. She further pub hours, have, about two or three having еxplained that point at this she could approximately remember, glasses three four of but did not trying get out wine talking to other patrons. At Appellant truck. then walked some point, the complainant ap- truck, inside, observed side of got driver’s his pellant pub, enter the began smile and wave at tying wrists “ex- her —which together “scared” her—and then sit di- tremely tightly” with the rope. * sitting by Senior assignment. Justice Richard H. Edelman stairs, something appel- to anger she said appel- biting reacted claimed that lant, forearm. She In the on his left he “came after” her.
lant seat, against threw her then bedroom, appellant pinned the hands, his there with pinning She spanked her. on the bed and down from her wrists rope excess placed some said, then “Let’s see claimed about four or five her neck for around doing,” he’s and forced what stuff been seconds, pain pre- which caused her Eventually, ap- vagina. into her fingers At breathing. point, this her from vented sleep. pellant and the went life, for her decid- complainant, fearing *4 morning, appellant had left In the when appellant “[j]ust with cooperate toed work, her sister complainant for the called him he going and let do what was sit there previous night’s to inform her of the appellant When released [her].” to do to advice, Upon the com- events. her sister’s neck, rope complainant’s the he the from police. the The com- plainant contacted in together it tie her ankles such used to employ- one of her plainant also contacted now way that her ankles and wrists were ees, house. Betty who came to her Dudley, tight- he control the connected and could complainant Dudley helped the write using the of the ness of this connection end police they for the when arrived statement complainant caused excru- rope.1 This the to her were too swollen because wrists feeling ciating pain, which she described as write. coming like “knees out of the her [were] socket,” to appellant, and she screamed cross-examination, complainant the On complain- to the stop.” According “Please dropped man admitted that after the had ant, get I responded, “Wait till appellant lot, pub’s parking appellant off in the her going you I’m to torture
you home.
her,
“Why
you
off with
go
told
would
home, using
drove
Appellant
more.”
then
hurt
you could have been
stranger because
other to hold the
one hand to drive and the
girl
The com-
the idiot
in Aruba?”
like
end of
arrived
rope.
the
When
that,
ap-
plainant further conceded
when
complainant
appellant
the
stated
truck,
hoped
his
pellant put her inside
she
pulled
out of the truck’s driver’s side
her
harm
just
he
take her home and not
would
as
hop
and forced her
inside
he contin-
her,
she
that she also want-
explained
but
tightness
of the
manipulate
ued
the
home
she was
ed to drive herself
because
rope.
appellant.
exception
scared
With the
home, appellant
the
told
When inside
details,2
the
Dudley,
complainant’s
some
the
to sit
in the kitchen
complainant
down
re-
sister,
who
police
two
the
officers
coffee,
he
her
while he made
which
forced
the
sponded
complainant’s
to the
call
drink,
verbally
he
hеr.
then
abused
incident,
forensic
morning after the
and a
ropes
She
that the
had loosened
explained
com-
examiner who examined the
nurse
now,
hold
cup
which allowed her to
the
plainant’s injuries,
largely corroborated
Thereafter,
according
coffee.
the com-
events
plainant,
walking
the
version
the
began
up
as she
recounting.
complainant explained
appellant
police
1. The
officers recalled her
two
examiner,
hand,
"hog-tied”
had
her.
re-
nurse
other
giving
ac-
complainant
the same
called
2. The most notable detail involved whether
trial,
in which
count as she did at
appellant placed
rope around the com-
against the
truck
pinned her neck
seat of his
plainant's
eat-
neck as she stood outside of her
rope.
using the
pub's parking
dragged
in
her
lot and then
truck,
Dudley
the version that
trial,
testimony
including
with
in- hands.
their
As
open
ankles,
wrists,
and neck.
juries
door,
to her
passenger
side
against
leaned her forehead
the truck with
According to
who
appellant,
served as
eyes
her
closed and looked
though
she
witness,
the defense’s sole
he went to the
“was kind of
off.”
drifting
looking
un-
pub
for the
after
successfully
trying
reach her on her cell
After
down
sat
in the
phone. He looked
her
about five
seat
passenger
had closed
entering
pub
after
minutes
noticed
door,
he said
from outside the
sitting
him only
across from
after he vehicle, “It’s 1:00
in
o’clock the
I
morning.
had ordered a drink and sat down at the
can’t believe this shit.” The complainant
to her
waving
bar. He admitted
when he
door,
then
opened
passenger’s side
her, doing
saw
denied
so to intimidate
and, while she
sat
the truck
he
her.
him to
When
motioned
come sit
outside,
stood
an argument
ensued
her,
similarly
with
motioned her to sit which she reiterated that she knew how to
him,
Upon seeing
but she refused.
drive drunk and
should follow
*5
complainant
pay
summon the bartender to
Eventually,
her home.
appellant shut the
tab,
home,
her
left
appellant
and drove
door, and walked back to the driver’s side
later,
he
assuming
see her there
would
and
the
truck. The complainant again
a.m.,
sleep.
went
He awoke at 1:00
door,
opened the passenger’s side
a
and
cell phone,
checked his
and noticed
had
he
argument
further
ensued.
point,
At this
three
from
complainant.
missed calls
the
thought
because he
the complainant clear-
her,
He
to call
tried
but she did not an-
ly
intended
drive and
see
“didn’t
much
swer, and, concerned, he decided to drive
option,”
a
appellant
rope
took work
from
pub
back to the
to look for her. Although
truck,
the back of his
demanded the com-
saw
appellant
parked
her car
same
the
plainant
wrists,
put
forward her
and
spot, he could not find her inside
pub.
the
loop
formed a
around her wrists with the
After
a
walking
nearby
convenience
rope. Appellant
ignition,
then started the
store to look for
complainant,
the
he re-
reversed, and,
forward,
pulled
as he
he
stating
ceived a call from her
was
she
claims
complainant
rope
loosened
coming home
failing
specify
but
where
wrists,
around her
reached across to the
she
appellant
was located. As
returned to
side,
driver’s
and bit
left arm.
In
his
lot,
the pub’s parking
he observed hеr
response,
pushed
he
her back into her
walking
him in an
towards
uncoordinated
complainant
seat.
repeatedly
After
Ap-
manner from the far end of the lot.
glove compartment,
kicked the
pellant noted that her dress looked dishev-
eventually
complainant’s
retied the
wrists
eled,
bloodshot,
eyes,
she had
glazed-over
rope
with the
again
and held the end of the
and her breath
“turpentine
smelled like
rope,,
“complacent”
and he claims she was
and cigarettes.” Appellant
concluded
when he
Appellant
did so.
denied ever
the complainant
“ap-
was intoxicated and
tying
together
feet
peared
danger
to be a
anything
on the
using
rope
to choke
Appellant
her.
road.”
he
going
He told her was
to drive
telling
further denied ever
home,
her
to get
shе
in her
that he would “torture her more” at home.
car
repeated
that she was “going
home,”
Upon arriving
that he
could follow her in his
let the
truck,
door,
and that
knew how
out
un-
she
to drive
the driver’s side
wrists,
drunk. He
helped
claims he then
walk
tied the
from her
rope
helped
her
by steadying
his truck
with
her inside. He retrieved a chair from the
Sufficiency
Legal and
II.
Factual
down,
room,
made
her to sit
told
living
Eventually,
retired
when
her coffee.
two,
con
In
one and
issues
upstairs, the
to the bedroom
and fac
is both
tends
evidence
twenty minutes
to the bathroom
jury’s
went
tually insufficient to
calls
respond
the com
abducted
finding
and would
out,
evaluating
legal
a
appel-
plainant.
came
In
her name. When
guilt, we
jury’s finding
a
attacking
claim
a
about his
made
comment
claims she
lant
most favor
light
in the
view
was, and he
for where she
lack
concern
State, 29
able to
verdict. Wesbrook
hiney” in
on the
couple
pops
“gave her
his fin-
placing
ever
response. He denied
evi
we believe the
do not ask whether
vagina.
gers inside
beyond
guilt
dence at trial established
aggra-
appellant for
indicted
State
Virginia,
reasonable doubt.
Jackson
initially
“in-
alleging
kidnapping,3
vated
307, 318-19,
99 S.Ct.
U.S.
...
knowingly
tentionally
abduct[ed]
(1979). Rather, we determine
L.Ed.2d 560
...
con-
without
Complainant,
[her]
of fact could
only whether
rational trier
sent,
intent to
[her]
with
found the
elements of
have
essential
secreting
[her]
beyond a
crime
reasonable doubt. Carde
(Tex.Crim.
to be found and
where
[she]
nas
review,
sexu-
great
to violate and abuse
In our
we accord
App.2000).
[her]
with intent
“
responsibility
...
deference
‘to the
bodily
and inflict
ally
terrorize
*6
conflicts in
fairly]
trier of fact
resolve
[to
The State later modified
injury on [her].”
evidence,
testimony, weigh
the
the
allege
“in-
that
the indictment
inferences from basic
draw reasonable
...
tentionally
knowingly abduetfed]
”
State,
facts to ultimate facts.’
v.
Clewis
... with intent to violate
Complainant,
the
126,
(Tex.Crim.App.1996)
922 S.W.2d
bodily
sexually and inflict
[her]
and abuse
Jackson,
(quoting
founded on sufficient evidence. See Secreting A. id. 417. We cannot conclude that a “clearly wrong” is finding “manifestly requirement of secreting the because, unjust” simply quantum on the of victim or holding her in a where she admitted, we would have voted likely is not to be found is a part differently had we the fact been finder. offense, mens rea of the actus reus. See id. Nor can we declare that conflict Brimage 918 S.W.2d justifies simply the evidence a new trial Thus, (Tex.Grim.App.1994). once restraint may disagree because we with the factfin- proven, has been the offense of kidnapping der’s resolution that conflict. See id. complete is when the actor evidences a Rather, trial, before ordering new specific prevent intent to liberation this say, objec- must first be with id,. able some manner. Accordingly, See the State record, great tive basis in the prove need not accomplished actor (albeit weight preponderance of the restraint secretion sufficient) evidence contradicts the actor completed a restraint and evidenced verdict. See id. a specific intent to prevent liberation secretion. id. at 476. Intent can be A commits if person kidnapping he in- conduct, an inferred from accused’s re tentionally or knowingly abducts another marks, and surrounding circumstances. 20.03(a) person. Tex. Penal Ann. Code See Turner v. 600 S.W.2d (Vernon 2003). “Abduct” means to re- (Tex.Crim.App.1980); Murchison a person strain with intent to 254 (Tex.App.-Houston (a) secreting or holding him 'd). 2002, pet. [14th ref Dist.] in a place where he is (b) using threatening found Appellant argues use the evidence *7 20.01(2) (Vernon force. See id. appellant shows that intended to take 2003). Appellant complainant contends there is to their home and that it and factually insufficient evidence that is to imagine he “hard a situation where tak- intended to prevent ing li- someone to his or her residence can be by secreting beration or her in holding having a consistent with intent to secrete place likely where she was be place they likely not found them in a not were to be 20.01(2)(A) under section of the Penal found.” The State counters that the Court ('ode. correctly He applica- that the a Appeals *8 go how would disputed she primarily fense). a victim’s own assuming Even go home. not whether would place constitute such a un- residence could ap no there is evidence Additionally, statute, any der the we do not find facts sought the affirmatively to isolate pellant justify in this a conclusion record to such poten could complainant people from who here. Megas her. tially Compare aid to render State, (Tex.App.
Moreover, sugges- S.W.3d 237 reject we the State’s 68 ref'd) (find pet. tion shows in- Houston [1st Dist.] that the evidence factually sufficient evidence complainant ing the tended secrete hold the in fact acknowledge party suggests that 4. We Court of Criminal the voluntarily accompanied appellant into his Appeals voluntarily accompany- held that has Boyle pre- ing truck he drove home. See into a vehicle does not before defendant (Tex.Crim.App. 820 may defendant S.W.2d 138 possibility clude that the the 1989). ride, during kidnap victim the neither the
97 where, during physical fotmd, of intent to secrete then will you [appellant] find guilty added). of kidnapping” (emphasis in which appellant’s and verbal altercation There- fore, application paragraph exit the girlfriend appellant’s of on charge car parked highway, appellant kidnapping expressly on side of authorized girlfriend a conviction dragged secreting back into car and under the drove man- ner of away stopped pursuant from motorist who had abduction to section aid). 20.01(2)(A). conduct, reason, render Based on For this remarks, may contends we sufficiency and the unusual circum conduct a incident, review the surrounding jury’s findings stances can abduction under the deadly not conclude that one could alternative reasonably force defini- 20.01(2)(B). tion in infer that intended to section secrete or hold the in his within truck However, the Court of Appeals Criminal 20.01(2)(A). the meaning of section See has established we do not measure Turner, 929; Murchison, 600 S.W.2d 93 the by the jury at 254. S.W.3d but, rather, charge given actually by the elements of by the offense as defined We therefore hold that there is legally hypothetically jury charge. correct See insufficient evidence that abduct- Malik v. ed the with intent to (Tex.Crim.App.1997); see also Gollihar v. secreting by (Tex.Crim.App. S.W.3d
in where she to be 2001). charge Such “accurately sets out found. We now turn to the alternative law, indictment, is authorized “deadly force” manner of abduction under does not unnecessarily increase the State’s 20.01(2)(B). section of proof
burden
or unnecessarily restrict
Using
Threatening Deadly
the State’s
liability,
B.
theories of
Force
ade
quately
the particular
describes
offense for
initially
address whether we
Malik,
which the defendant was tried.”
may
sufficiency of
rеview the
the evidence
98 20.01(2). 68, (Tex.App.-Houston Dist.] 73-74 [14th Although in section lined 1999) type specify jury of generally (applying hypothetically State must correct prove, appellant it did sufficiency seeks abduction charge analysis conducting and indictment or other quash not move theory murder of review under party thus, validity, may to its object wise only alleged application paragraph where the indictment was flawed allege not now theory), grounds, oil other principal rev’d him give notice of the failing to (Tex.Crim.App.2001); 36 How S.W.3d 878 State, Teal v. 230 S.W.3d charges. See (Tex. 821, State, 966 ard v. S.W.2d 824-25 (holding (Tex.Crim.App.2007) 176-78 ref'd) hy pet. (applying App.-Austin any object must error in that defendant pothetically jury charge analysis correct trial); Curry, 30 before S.W.3d indictment conducting sufficiency under review (“[T]he allege, State must in the at 403 party theory of murder where type quash, which of motion face of ap but charge party included instruction give prove it order abduction seeks not).5 plication paragraph did added)); (emphasis notice.” the defendant Farm, (rejecting argu 576 696 S.W.2d at hypo Having determined that fundamentally ment that indictment was thetically charge have jury correct would failing to define “abduct” defective for kidnapping a conviction for un authorized failed file motion to where abduction, deadly der the force manner Therefore, quash). aggravat because now address whether there is indictment is not restricted kidnapping ed factually6 sup sufficient evidence to of abduction sec to either manner under theory. port a conviction under such Ab 20.01(2), hypothetical we conclude the tion 20.01(2)(B) is estab duction under section con ly jury charge correct would authorize by party lished that a intended to offense of viction the lesser-included by us theory either kidnapping under of abduc See threatening deadly or to use force. ing (hold Malik, at 240 tion. See 953 S.W.2d 20.01(2)(B). Tex. Penal Code Ann. hypothetically correct ing charge “Deadly force” is either force intended unnecessarily restrict the State’s “does known the actor to death or cause liability”); see also Swartz v. theories bodily injury capable serious or force State, 781, 785-86 (Tex.App. 61 S.W.3d causing bodily injury or serious death ref'd) 2001, pet. -Corpus (applying Christi use. See. the manner its use intended jury charge analysis hypothetically correct State, v. Ferrel 55 S.W.3d conducting sufficiency review under may (Tex.Crim.App.2001). Threats party of credit principal and theories card words, deeds, actions, communicated por indictment abstract abuse where including amounting “acts to an offer to jury charge alleged tion both theories force.” See Rogers use future paragraph application alleged but theory); party Marvis 3 S.W.3d S.W.2d Curry, Compare (holding apply hypothetically 6. We cor
5.
100 (2) desirability urgency of court none- the trial turn whether now outweigh, in ac- avoiding clearly errоr re- harm reversible committed theless ordinary defenses to of reason- cording on standards fusing to instruct ableness, prevent- kidnapping. sought harm to be conduct; by proscribing the law ed III. Defenses five, through ap three In issues (3) to exclude the purpose a legislative court erro trial complains pellant conduct does claimed for the justification instructions he neously to submit refused plainly appear. not otherwise necessity, the defenses of on requested (Vernon health, confine § life or 9.22 of protection Penal Ann. Tex. Code jury. An 2003). force to the justifiable protec ment the defense Regarding is to an instruction health, entitled accused pro the Penal Code tion of life or the evi issue raised every defensive in using is person justified vides “[a] 804, v. 728 S.W.2d Hayes dence. force, force, against another but not This is true re 807 reasonably degree and to the when evidence is whether such gardless of immediately necessary force is believes the weak, unimpeached or contra strong or committing other from sui dicted, of what trial regardless injury to inflicting bodily cide or serious may may not about the think court 2003). 9.34(a) (Vernon himself.” Id. AId. defen credibility of this evidence. Therefore, both defenses share com alone is raise testimony sufficient dant’s necessity.”9 mon element of “immediate “ an instruction requiring a defensive issue something that is im ‘Imminent’ means charge. Id. review the in the something that is pending, pending; the defensive issue not about to point happening, on the the defense. light in the most favorable to v. 60 S.W.3d happen.” Schier 78 501 S.W.3d See Stefanoff (Tex.App.-Houston Dist.] [14th d).8 2002, pet. (Tex.App.-Austin ref' ref'd). harm’ occurs pet. “An ‘imminent Finding overlap emergency between each there is an situation and significant when we will appellant, ‘immediately necessary’ raised to avoid that of the defenses it is together. Regarding harm, de- is split-second address them decision re when provides necessity, the Penal Code fense time consider law.” quired without if justified that conduct is conduct was Id. A defendant’s belief that necessary (1)the immediately to avoid imminent reasonably believes the actor be deemed unreasonable as necessary may harm immediately conduct is harm; undisputed if facts demon- matter law avoid imminent parties have so assumed in their briefs to parties appellant admit both 8. The debate whether charged, required McGarity generally ted the offense which is this court. See Young necessity. the defense of raise (Tex.App.-San Antonio Stale, (Tex.Crim.App. (noting protection pet.) of life or no 1999). this issue not affect the Because does necessity defense both health defense decision, address outcome of our we need not 'justification” under constitute defenses it. authority Chapter analogizing address- involving ing necessity analyzing pro- issue Although specifically authority find no 9. life). such, they of health or As have tection addressing necessity whether immediate right complain otherwise. See waived the requirement section and section under 9.22 33.1(a). Tex.R.App. P. principles, governed are 9.34 same *12 complete strate a absence of evidence of he the decision made to restrain the com- necessity immediate imminent harm. plainant a split-second without time to State, 155, (Tеx. v. Arnwine 20 S.W.3d alternatives, any legal consider such as 2000, no App.-Texarkana pet.); Brazelton requesting her keys. car Fuentes 644, (Tex.App. 947 S.W.2d 11-05-00003-CR, No. WL 1997, pet.). Regarding Fort Worth no 648343, at *2 (Tex.App.-Eastland Mar. justifiable “defense” confinement as d) (not ref pet. designated for publi- force, Penal provides Code that con cation) trial (holding court properly re- justified justified is finement is when force necessity fused instruction in assault case Chapter Nine of under the Code if the for failure to raise fact on issue immediate actor takes reasonable measures to termi necessity or imminent harm where appel- nate the as he confinement soon as knows lant wrestled wife keys for car for safely he can the person unless confined twenty minutes in attempt keep her been an has arrested fоr offense. See Tex. from driving car occupied while intox- (Vernon 2003); 9.03 Penal Ann. Code icated and slapped her when vehicle was see also Adelman v. moving keys were in ignition); 421 (Tex.Crim.App.1992). 03-02-00041-CR, Jordan No. Appellant clearly contends that “there 2002 WL at (Tex.App.-Aus- *2-3 Complainant was that some evidence (not Sept. tin pet.) no designated home,” was about to drive herself which publication) (holding court proper- trial her necessitated restraint because of the ly necessity refused instruction assault probable result that would “get[ someone ] case for failure raise fact issue on imme- hurt” her if she drove in intoxicated condi- necessity diate or imminent harm because tion. He notes the complainant ad- (1) when tussled with his intoxi- car, was in her going get mitted she cated their girlfriend at home to prevent that she stated she wanted to drive herself taking from his car keys driving, to exit she there was no evidence she was on verge vehicle twice before restrained (2) away, driving five min- waited her. argues He that this evidence shows her, utes after she left on foot look concluding “was reasonable in that the (3) and, when appellant later found at Complainant every had intention to drive store, convenience there no was herself home and do it would soon.” peril). she inwas imminent contending In that the Because the record a complete reveals “soon,” “about to” drive and would drive absence evidence on the elements appellant misinterprets very defini- necessity harm, immediate or imminent we tions of necessity” ] and “im- “immediate[ hold that the trial court properly refused harm,” minent which exclude expressly an to instruct the defenses event happen.” that is “about to See Schi- necessity protection under section 9.22 and er, Indeed, at 343. record of life or health under section 9.34. Addi- complete reveals a absence of immediate tionally, because concedes necessity Appellant imminent harm. an regarding instruction confinement as testified that he the complainant had justifiable force under section 9.03 would argued for least five minutes before he appropriate if an together tied her wrists when instruction under attempt- were, that, ed to exit his vehicle for the section 9.34 second time. conclude such, extension, As his own testimony fails indicate the trial court properly refused libera an intent dant evidenced on confinement
to instruct
*13
State, 905
in
manner. Mason v.
tion
that
section 9.03.
force under
justifiable
Bri
(Tex.Crim.App.1995);
S.W.2d
five.
through
three
issues
We overrule
Rather, when a
at 476.
mage, 918 S.W.2d
with an
keeps a
isolated
person
defendant
IV. Conclusion
the victim’s liberation
prevent
intent to
legally
the evidence is
hold
helping
might
capable of
anyone who
be
appellant’s convic-
to
insufficient
victim,
and “the
proven,
abduction is
secreting
under the
kidnapping
tion for
in
held
a
person
was not
claim that
the actual
included in
abduction
theory of
to
person
likely
was not
be
where the
place
However, we
that the
hold
jury charge.
no
Wilson
importance.”
found is of
factually sufficient
legally evidence is
(Tex.Crim.App.
under the
conviction
appellant’s
to support
1993).
abduction, based
theory of
deadly force
charge.
correct
hypothetically
case,
In
the evidence showed
this
prop-
court
we hold that
trial
Finally,
into
his
appellant forced the
on defenses
erly
the instructions
refused
truck,
her,
and took
to
bound
pickup
shows
because
kidnapping
to
and as
their
where he restrained
home
imminent
necessity
immediate
or
a lack of
is
to
her. This evidence
sufficient
saulted
the trial
Accordingly, we affirm
harm.
prevent
intent
prove appellant’s
judgment.
court’s
by anyone capable
complainant’s liberation
her,
of the location.
helping
regardless
EDELMAN,
H.
Senior
RICHARD
See,
Pasch,
152 Ill.2d
People v.
e.g.,
Justice, dissenting.
(1992)(not-
intent conduct 475- Brimage Therefore, it is necessary that a prove for the State to secreting or accomplished by
restraint is place, the victim in such occurred,
that a defen- restraint notes Criminal has held that mov- tion paragraph of the charge ing place court’s car can constitute a where the expressly limits kidnapping likely the manner of victim is not to be found under sec- (2)(A). abduction to “secreting” under section tion 20.01 See Sanders 605 (2)(A); such, 20.01 as he (Tex.Crim.App.1980); contends State S.W.2d see may rely “deadly not now on the force” also Wilson 863 S.W.2d manner abduction under section (Tex.Crim.App.1993); Fann v. 20.01(2)(B). Notwithstanding 576 (Tex.Crim.App.1985). S.W.2d charge, Thus, he “in an argues argues, appellant abundance of both State ex- caution” that there is legally factually pressed required intent secrete the insufficient support finding evidence to a complainant completed the abduction “deadly abduction a theory. complainant under force” when he forced into his truck, Wo appellant’s sufficiency address argu- taking and his later act of her back thus appellant had his truck and that such ab- negate does not their residence transport the abduction before completed duction. While to their home. ing back there appellant that is agree with a moving car constitute that a can agree factually insufficient evidence legally and found, we likely will not be the victim place complain- that intended State cites in find the cases the secreting holding ant’s liberation Wilson, distinguishable. this assertion likely not a where she was place her in Fann, strang each involved and Sanders case found. The crux be driving them children and abducting ers to drive the stated intention rested on his a to an aimlessly city around either home, and no back to their complainant destination, unfamiliar, which ef remote controverted testimony or other evidence those fectively the victims from isolated Indeed, the com- appellant’s statements. Wil or assist them. See who could find that told her plainant testified Fann, son, 66-67; at S.W.2d her home—albeit to to take he intended Sanders, 576; at 605 S.W.2d that she desired to “torture” her—and and the sur 613-14. From this conduct The State does not herself home.4 drive circumstances, in courts rounding cite, found, any authority and we have se intended to appellants ferred residence can a victim’s own place the victims in a where crete hold is “place victim] where [the constitute Here, unlikely were to be found. that, by exten- unlikely found” to be however, girl drove adult sion, take the an intention to expressed to their directly pub from local friend satisfy secreting re- victim could home residence, go nearby place she desired 20.01(2)(A). quirement under section that, noted, does not constitute 17, 19 Schweinle unlikely was to be found place where she rational (holding that (Tex.Crim.App.1996) More un importantly, facts. under these have believed that defendant’s could courts in like the above cases where the house, complainant was held where from the largely ferred intent to secrete will, against did not constitute surrounding appellants’ conduct was where circumstances, ver repeatedly there evidence that found because his intent to take the balized house, key had for- complainant had Indeed, indi the evidence to their home. there, night merly spent and had lived and the cates or four before of- past nights there three