Stephan Andrew COX v. The STATE of Texas, State
NO. 02-14-00399-CR
Court of Appeals of Texas, Fort Worth.
May 12, 2016
Rehearing Overruled August 11, 2016
Pointing out that the insurance policy is not in the record, the majority cites cases that do not deal with motions to dismiss under Rule 91a to conclude that Auzenne has not “overcome the strong presumption against conferring third-party beneficiary status.” See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999) (concluding, in appeal brought after bench trial, based on interpretation of contract, that plaintiff had not established third-party beneficiary status); Farias v. Allstate Ins. Co., No. 13-10-00071-CV, 2011 WL 2175220, at *3 (Tex.App.-Corpus Christi June 2, 2011, pet. denied) (mem.op.) (concluding trial court did not err in granting summary judgment because language of insurance policy did not indicate plaintiffs were contemplated as third-party beneficiaries when contract was executed). Merely because there is a presumption against third-party beneficiary status does not mean as a matter of law that the presumption can never be rebutted. Whether Auzenne ultimately will be able to rebut the presumption is not an issue to be decided at this juncture. Here, Auzenne was required only to plead causes of action that have a basis in law or fact. See
Taking the allegations in Auzenne‘s live petition as true—that Auzenne was injured at Snowflake Donuts and the insurance policy contains a medical payments provision that obligates the insurer to “pay medical expenses of persons who sustain injuries at Snowflake Donuts regardless of fault,” I would conclude that Auzenne did not fail to state a cause of action with a basis in law or fact. See Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex.App.--Houston [14th Dist.] 2014, pet. denied) (“In conducting our review, . . . we must construe the pleadings liberally in favor of the plaintiff, look to the pleader‘s intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact.“). I would reverse the trial court‘s order dismissing his causes of action and awarding attorney‘s fees and remand the case.
Sharen Wilson, Dist. Atty., Debra Windsor, Asst. Dist. Atty., Chief of Post Conviction, Melinda Westmoreland, David M. Curl, Asst. Dist. Attys., for State.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
OPINION
BONNIE SUDDERTH, JUSTICE
In five points, Appellant Stephan Andrew Cox appeals his convictions for aggravated kidnapping and sexual assault of a child. We affirm.
Cox was twenty-six years old and living in Columbus, Ohio when he first connected with Zoe,1 a 14-year-old girl2 living in Haltom City, via the social messaging application known as Kik Messenger. Cox initiated the contact with Zoe, and they talked about Zoe‘s life and her family. According to Zoe, he was nice to her at the beginning and told her she was pretty. Zoe testified that at some point he asked her to send suggestive pictures of herself to him, and she did.3 Eventually he asked for her phone number, Zoe provided it, and they began communicating through text messages.
After a while, Cox suggested they should run away to Colombia together. According to Zoe, after first directing her to model some clothing for his approval, Cox then instructed her to pack a bag. They agreed to meet on the street outside of her middle school on April 24, a plan Cox told Zoe not to share with anyone else.4
Complying with his instructions, Zoe did not tell her parents about Cox or their plans to run away to Colombia together, and on April 24, Zoe went to school as usual and took the STAAR test. When school was over, she met Cox outside the campus. Once they were together, Cox gave Zoe various other instructions, including that she should act like she was his little sister, avoid talking, and walk behind him so that it wouldn‘t look like they were walking together. According to Zoe, at some point she forgot to act like his little sister, and this made Cox mad. Zoe added that Cox was “always mad” and when he was mad, he was mean.
From school, they took a city bus to the Greyhound terminal in Fort Worth. While on the city bus, Cox took possession of Zoe‘s cell phone. Zoe testified that Cox had already purchased the bus tickets and that at this point she did not know where the bus would be taking them. They waited for more than an hour for their bus to arrive, during which time Zoe went to the ladies’ restroom once unattended and Cox went to the men‘s restroom, again leaving Zoe unattended.
After the two had boarded the Greyhound bus and were en route to El Paso, Cox destroyed Zoe‘s cell phone. Zoe testified that this frightened her because she realized at that point that she had lost the ability to contact her family.5
Zoe testified that she became increasingly afraid as they continued toward El Paso. According to Zoe, while they were on the Greyhound bus, Cox forced Zoe to perform oral sex on him.6
When Cox and Zoe arrived in El Paso, they checked into a hotel room. Zoe testified that nothing sexual took place between them in the El Paso hotel room, but it was at that point that she realized she
Eventually, Cox and Zoe walked across a bridge and into Juarez, Mexico. Once in Mexico, they checked into a hotel near the border, and at that point whenever Cox would leave the hotel room, he would lock the door so that Zoe could not leave. Zoe testified that this frightened her because she “never really knew what he was going to do when he came back.” Zoe also testified that once they arrived in Mexico, she did not eat because Cox did not provide her with any food. Against her wishes, he also cut her hair. According to Zoe, at one point she tried to run away from the hotel through an open door, but Cox grabbed her and hit her on her face and on her buttocks.7
While in the hotel room in Juarez, Cox and Zoe twice engaged in sexual intercourse. Zoe testified that he forced himself upon her but that she did not protest while it was occurring because she was “in shock.” According to Zoe, Cox did not wear a condom even though he had purchased some. Zoe described it as painful and testified that she was scared to be with him afterwards.
During their journey, the North Richland Hills police had been monitoring Cox‘s and Zoe‘s cell phone activity and had tracked their movements from her school in Haltom City to the Fort Worth Greyhound bus station and on to El Paso. On May 1, however, the police stopped receiving any pings8 on Cox‘s phone. Nevertheless, they were still able to receive outgoing phone call information that indicated that he had crossed the border into Mexico. The North Richland Hills police contacted the Texas Rangers, who, in turn, contacted the Mexican police, to assist in finding Zoe.
On May 2, eight days after the Greyhound bus carrying Cox and Zoe had left for El Paso, the Mexican police notified the North Richland Hills police that they had located Zoe and Cox at a hotel in Juarez. When the Mexican authorities arrived at the hotel, Cox refused to open the door, so the police broke through it and immediately separated Cox and Zoe. The Mexican authorities then took Zoe to a doctor, who performed a vaginal examination and administered medicine to her.9 After that, Texas Ranger Kevin Wright retrieved Zoe and drove her back to El Paso.
The next morning, Zoe was flown to Tarrant County and taken directly to Cook Children‘s Hospital, where a second examination was performed by Edwards, who later testified at trial. Edwards took photographs of Zoe, including photos that showed a hickey on her chest, a bruise on her thigh, and the tattoo on her upper arm. She also obtained swabs of Zoe‘s vaginal area and mouth.10 Edwards de-
After the exam at Cook‘s, Zoe was interviewed by Carrie Paschall, a forensic examiner at Alliance for Children. In that interview, Zoe denied that Cox had told her not to tell her parents about their plan to go to Mexico. Instead, according to Paschall, Zoe related that she had told Cox she wanted to run away with him because her parents fought. But Paschall also testified that during the interview, Zoe said that Cox had threatened both her and her family.
After the examination and interview, Zoe was reunited with her parents. At that point, according to Zoe, she was happy to be home, and at trial she admitted that she had made some “bad decisions” and expressed regret for going with Cox.
At the conclusion of a week-long jury trial, Cox was found guilty of aggravated kidnapping and two counts of sexual assault. He was sentenced to fifty years’ imprisonment on the charge of aggravated kidnapping, ten years’ imprisonment on the first count of sexual assault of a child, and fifteen years’ imprisonment on the second count of sexual assault of a child.
Discussion
A. Evidence of Restraint
In his first point of error, Cox argues that the evidence is insufficient to support the conviction for aggravated kidnapping because there is no evidence that he restrained Zoe.
i. Standard of Review
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim.App.2014).
This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Dobbs, 434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the evidence. See
ii. Application
To show that Cox committed the aggravated kidnapping of Zoe, the State had to prove that he intentionally or knowingly abducted her with the intent to violate or abuse her sexually.
The penal code defines restraint as “restrict[ing] 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.”
Cox argues that the State failed to prove he restrained Zoe so as to substantially interfere with her liberty. In so arguing, he relies on evidence that Zoe acted willingly in meeting Cox and in going with him to Mexico, that she appeared “casual” and unrestrained in surveillance videos from the bus stations and gas station, and that she failed to take advantage of numerous opportunities to escape him or seek help from other travelers or authorities—especially when she acted as a Spanish translator to agents at the Mexican border.11 Cox is correct that there is ample evidence in this record that Zoe was not confined against her will, such that the jury may have weighed that evidence in favor of an acquittal. Jackson, 443 U.S. at 319; Dobbs, 434 S.W.3d at 170. However, the evidence is conflicting. And as there is also sufficient evidence to the contrary that he did restrain her against her will, we must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326; Dobbs, 434 S.W.3d at 170.
The penal code defines neither the term “confine” nor “confining,” and terms that are not defined in a statute are to be given their plain and ordinary meaning. See Courtemanche v. State, 507 S.W.2d 545, 546 (Tex.Crim.App.1974). Webster‘s defines the verb “confine” to mean “to hold within bounds,” “to restrain from exceeding boundaries,” or “to keep in narrow quarters: imprison.” Webster‘s Third New International Dictionary 476 (2002); see also Holmes v. State, 873 S.W.2d 123, 126 (Tex.App.---Fort Worth 1994, no pet.) (defining “confine” as “to shut up, imprison, immure, put or keep in detention, to relegate to certain limits“). Cox acknowledges in his brief that there is no time requirement for determining whether a restraint has taken place. Hines v. State, 75 S.W.3d 444, 447-48 (Tex.Crim.App.2002). Likewise, there is “no minimal requirement for restraint other than the interference with the victim‘s liberty [to] be substantial.” Rogers v. State, 687 S.W.2d 337, 342 (Tex.Crim.App.1985) (quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex. App.-Houston [1st Dist.] 1982, no pet.)).
We must examine the evidence in the light most favorable to the jury‘s verdict, and whether Cox‘s interference with Zoe‘s liberty was substantial or slight was a question for the jury. See Hines, 75 S.W.3d at 448 (“It is up to the jury to distinguish between those situations in which a substantial interference with the
Zoe described Cox as mean and “always mad.” She testified on more than one occasion that he frightened her. She confirmed at trial that Cox threatened to hurt her family if she did not go to Colombia with him. Cox further deprived Zoe of virtual access to friends, family, and emergency personnel when, at the outset of the journey, he took possession of her cell phone and later destroyed it.
Cox argues that this evidence can only be considered as evidence of consent, not restraint, relying on the penal code‘s definition of “restraint” as being accomplished “without consent” if done by “force, intimidation, or deception.”
The jury was presented with evidence that Cox intimidated Zoe through threats and displays of anger. The jury could have reasonably found that these intimidation tactics effectively prevented Zoe from voluntarily extricating herself from his dominion. The jury could also have found that the use of intimidation to move her from her home in Tarrant County to unfamiliar locations, including El Paso and Juarez, Mexico, worked to substantially interfere with her liberty by effectively depriving her of viable opportunities to escape his presence.
Having concluded there was sufficient evidence to support the jury‘s finding that Cox kidnapped Zoe, we overrule Cox‘s first point.
B. Territorial Jurisdiction over Sexual Assault Committed in Mexico
From his home in Ohio, Cox used a popular social messaging application on his phone to prey upon Zoe, a 14-year-old Texas girl. He cultivated an inappropriate and abusive relationship with her, threatening to hurt her and her family if she did not agree to run away with him to Colombia. He then traveled a thousand miles to Tarrant County, Texas, to meet up with her at her middle school and escort her to a bus station, while he demanded that she not talk and that she pretend to be his sister to avoid any suspicion. He took from her the only means of communication she had—her cell phone—thus isolating her from her social support network, her family members, and her peers. Cox‘s subjective awareness of the wrongful and criminal nature of his conduct is evidenced by these steps he took to ensure that the true nature of their relationship was con-
The State concedes that jurisdiction does not exist under section 1.04(a)(1) of the penal code14 and instead argues that it exists under subsection (a)(4) because Cox‘s conduct in Tarrant County was preparatory and in aid of the sexual assault committed in Juarez.
A thorough examination of the entire record in this case reveals no evidence that the sexual conduct that occurred between Cox and Zoe in the Juarez hotel room constituted a crime in the city of Juarez, the state of Chihuahua, or the nation of Mexico. The trial court was not asked to take judicial notice of any foreign law and did not take judicial notice of foreign law, nor have we been asked to take judicial notice of foreign law on appeal. Because there is no evidence that the sexual assault
was a “continuous, unbroken sequence of events” beginning with defendant‘s abduction of the victim in Ohio“); State v. Shrum, 7 Ohio App.3d 244, 455 N.E.2d 531, 531 (1982) (holding that Ohio had jurisdiction over rape committed in Kentucky where the element of force—kidnapping—occurred in Ohio).
Notes
But the inquiry need not stop there. Even if neither section 1.04(a)(1) nor section 1.04(a)(4) provide the basis, we believe Texas may still properly assert jurisdiction under these circumstances.
Section 3.01 of the penal code provides,
In this chapter, “criminal episode” means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
The first sexual assault occurred somewhere in Texas during the bus trip to Mexico. That assault marked the beginning of the criminal episode comprised of sexual assaults by Cox against Zoe. Cox was charged with the offense of kidnapping for the purpose of committing sexual assault. And although he was not charged
would not have occurred but for his conduct[.]”
Alternatively, the Texas legislature has expressed its intent to exercise extraterritorial jurisdiction over criminal conduct involving sexual assault of a child18 through article 13.075, which provides:
An offense under Title 5, Penal Code,[19] involving a victim younger than 18 years of age, . . . that results in bodily injury to a child younger than 18 years of age, may be prosecuted in the county:
(1) in which an element of the offense was committed;
(2) in which the defendant is apprehended;
(3) in which the victim resides; or
(4) in which the defendant resides.
As with Article 13.01, this provision falls under a general heading of “Venue.” However, article 13.075 has never been interpreted to be solely related to venue. Nor is the actual language of article 13.075 so restricted. On its face, notwithstanding
The evidence established that Zoe resided in Tarrant County, Texas. The evidence also supports that Cox caused bodily injury to Zoe by grabbing her and hitting her on the face and the buttocks prior to forcing unprotected sexual intercourse upon her. Furthermore, Zoe testified that the sexual intercourse was painful and it frightened her.
And although the introductory phrase for article 13.075 is entitled “Child Injured In One County And Residing In Another,” the legislative history of this statute clearly indicates that it was enacted with a broader purpose in mind. Article 13.075 was passed in 2011 by the 82nd Legislature in its regular session, as part of Senate Bill 1511. Senate Bill 1511 focused on crimes against children and particularly the abduction of children who are then taken elsewhere, including other states and abroad. See House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 1551, 82d Leg., R.S. (2011). Much like the adoption of section 1.04 of the penal code, SB 1511 was intended to “fill gaps” and cure “an ambiguity or loophole” in interpreting the missing child statutes in place in 2011. See id.; Senate Comm. on Jurisprudence, Bill Analysis, Tex. S.B. 1551, 82d Leg., R.S. (2011). And through the enactment of various statutes included in Senate Bill 1511—and article 13.075 in particular—the Texas legislature expressed its desire to acquire extraterritorial jurisdiction in circumstances just like this one.20 Bowman, 260 U.S. at 97-98.
Reading all statutes together, and keeping the underlying purpose of the penal code and code of criminal procedure in mind, we conclude that the State of Texas has demonstrated its desire to prosecute individuals who would come into this state and prey upon children through threats, kidnapping, and transporting them across international borders in order to sexually assault them. See Torres v. State, 141 S.W.3d 645, 656 (Tex.App.-El Paso, 2004). To allow an individual to escape such prosecution simply by walking across the border to commit the actual crime would create just the sort of jurisdictional gap that the Texas legislature has expressly tried to avoid. See Seth S. Searcy, III & James R. Patterson, V.A.P.C., § 1.04, Practice Commentary, Vol. 1, p. 18 (1974);
C. Jury Instruction Regarding Territorial Jurisdiction
In his third point of error, Cox argues that the trial court erred in refusing to give a jury instruction on the issue of territorial jurisdiction.
In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.App.2012). If error occurred, wheth-
Initially, the trial court included an instruction regarding section 1.04(a)(1) of the penal code which read as follows:
You are instructed that this state has jurisdiction over an offense that a person commits by his own conduct, [if] either the conduct or result that is an element of the offense occurs inside this state.
The trial court subsequently removed that instruction upon sustaining the State‘s objection thereto.21
The legislature has not addressed this issue, and there is a dearth of case law addressing whether this is an issue to be decided by the judge or the jury. See George E. Dix & John M. Schmolesky, 40 Tex. Prac. Series, Criminal Practice And Procedure § 4:12 (3d ed.). Well established, however, is that “a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction.” Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Crim.App.1998) (citing Sanders v. State, 707 S.W.2d 78, 80-81 (Tex.Crim.App.1986), abrogated on other grounds by Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990)), cert. denied, 525 U.S. 1147 (1999). The Legislature has not recognized territorial jurisdiction as a defensive issue, and the court of criminal appeals has not specifically authorized a jury instruction such as the one Cox requested.22 To the contrary, the court of criminal appeals has held that “jurisdiction is not an element of an offense.” Calton v. State, 176 S.W.3d 231, 234-35 (Tex.Crim.App.2005) (citing State v. Mason, 980 S.W.2d 635, 641 (Tex.Crim.App.1998) (“The concept of element of an offense does not include every issue to which the State has the burden of proof; it does not include, for example, venue or jurisdiction.” (internal citation omitted))).23
Some states have held that the issue of territorial jurisdiction is a matter of law for the court to decide, not the jury. See Beverly, 618 A.2d at 1338 (holding the question of territorial jurisdiction is to be decided by the court, as a defendant‘s right to a jury does not extend beyond the factual issues that are relevant to the ultimate question of guilt or innocence under the relevant statute); Mitchell v. United States, 569 A.2d 177, 180 (D.C.) (holding that the question of where an offense took place is “not one of fact for the jury“), cert. denied, 498 U.S. 986 (1990); State v. Pugh, 12
Treating jurisdiction as a threshold matter that should be challenged prior to trial affords substantial procedural safeguards for the defendant and serves the interests of judicial efficiency and economy. If only a jury could determine subject matter jurisdiction, a defendant would always be put through the expense, anxiety, and uncertainty of a trial and the only mechanism to challenge jurisdiction would be an appeal after the conclusion of trial. . . . By contrast, if the issue can be resolved by the court before trial, the defendant will have the opportunity to seek immediate review through a writ proceeding.
People v. Betts, 34 Cal.4th 1039, 23 Cal. Rptr.3d 138, 103 P.3d 883, 890, cert. denied, 545 U.S. 1133 (2005).
Many other states have determined that a jury instruction on territorial jurisdiction is warranted only where the factual basis for such jurisdiction is challenged by the defendant. For instance, the court of appeals of North Carolina has stated,
[W]hen a defendant‘s challenge is not to the factual basis for jurisdiction but rather to the theory of jurisdiction relied upon by the State, the trial court is not required to give these instructions since the issue regarding whether the theory supports jurisdiction is a legal question for the court.
State v. Lalinde, 231 N.C.App. 308, 750 S.E.2d 868, 871 (2013) (emphasis added) (internal quotations omitted); see also State v. Willoughby, 181 Ariz. 530, 892 P.2d 1319, 1327 (1995) (“In the very rare case in which jurisdiction is legitimately in issue because of contradicting jurisdictional facts, Arizona‘s territorial jurisdiction must be established beyond a reasonable doubt by the jury.“), cert. denied, 516 U.S. 1054 (1996); People v. Cullen, 695 P.2d 750, 751-52 (Colo. App.1984) (holding that issue of jurisdiction must be submitted to the jury where it depends upon a resolution of disputed facts); Lane v. State, 388 So.2d 1022, 1028 (Fla.1980) (same); McKinney v. Indiana, 553 N.E.2d 860, 863-64 (Ind.Ct. App.1990) (same); State v. Liggins, 524 N.W.2d 181, 184 (Iowa 1994) (same); State v. Denofa, 187 N.J. 24, 898 A.2d 523, 533 (2006) (same); People v. McLaughlin, 80 N.Y.2d 466, 591 N.Y.S.2d 966, 606 N.E.2d 1357, 1359-60 (1992) (same); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255, 258 (1973) (same); Statė v. Beall, 729 S.W.2d 270, 271 (Tenn.Crim.App.1986) (same).
With regard to jurisdiction in civil cases, in Texas the issue of whether a court has subject matter jurisdiction is generally a question of law, although the supreme court has acknowledged that “in some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact.” Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) (citing Tex. Natural Res. Conservation Comm‘n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002)). Here, however, we need not decide whether territorial jurisdiction is an issue that should be submitted to the jury because the facts underlying a jurisdictional determination in this case are not disputed. The parties do not dispute that the two sexual assaults that Zoe described did not occur in Texas. The facts related to the transport of Zoe from
Because there was no issue of fact to be determined by the jury pertaining to the trial court‘s jurisdiction, and because the legislature has not recognized territorial jurisdiction as a defense or an affirmative defense warranting submission to the jury, we hold that the trial court did not err in declining to instruct the jury as to the issue of jurisdiction. We therefore overrule Cox‘s third point.
D. Tarrant County as the proper venue
In his fourth and fifth points, Cox argues that Tarrant County was not proven to be the proper venue for prosecution of the offenses of kidnapping and sexual assault, as alleged in counts one and two of the indictment. Count one alleged that Cox abducted Zoe and count two24 alleged that Cox, “in the county of Tarrant,” caused the penetration of Zoe‘s mouth with his sexual organ.
Venue must be proven “by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue.”
In addressing Cox‘s first issue, we have held that there is sufficient evidence to support the jury‘s finding that Cox abduct-
ed Zoe in Tarrant County and took her to Mexico. The jury was presented evidence that after contacting Zoe on a social messaging application, Cox traveled to Fort Worth, met her at her middle school, directed her not to speak and to pretend to be his little sister, and took her to the Fort Worth bus station where they caught a bus to El Paso. This evidence is sufficient to establish proper venue in Tarrant County with regard to the charge of kidnapping. We therefore overrule Cox‘s fourth point.
As for count two, the allegation of sexual assault, the code of criminal procedure specifically states that “[s]exual assault may be prosecuted . . . in the county where the victim is abducted.”
Conclusion
Having overruled each of Cox‘s five points, we affirm the judgment of the trial court.
DAUPHINOT, J., filed a concurring opinion.
I do not disagree with the thorough and conscientious majority. I write separately only to say that because the complainant was a child, there is really very little to talk about.
Jurisdiction and Criminal Episode
An offense may be prosecuted in Texas only if Texas has territorial jurisdiction over the offense.1 This state has jurisdiction over an offense if “either the conduct or a result that is an element of the offense occurs inside this state.”2 The Texas Court of Criminal Appeals has held that this statute applies to both conduct and result.3
State courts of Texas have jurisdiction over the prosecution for aggravated sexual assault where the criminal episode forming the basis of charges began within this state.4 The criminal episode began when Appellant began the kidnapping with intent to commit sexual assault. Section 3.01 of the Penal Code provides,
In this chapter, “criminal episode” means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are
connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.5
We learn from the record that the first sexual assault of which the jury convicted Appellant occurred on the bus during the trip to Mexico. To prove kidnapping with intent to commit sexual assault, it was not necessary that the State prove any actual sexual assault, so long as there was evidence of the intent to commit sexual assault.6 The criminal episode under the circumstances of this case included the sexual assaults and ended only with the final release or escape of the complainant from Appellant‘s control.7 The criminal episode began in Texas and concluded in Mexico.8
Aggravated Kidnapping
The trial court charged the jury that
“Restrain” means to restrict a person‘s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him.
Restraint is “without consent” if the victim is a child who is 14 years of age or older and younger than 17 years of age, the victim is taken outside of the state and outside a 120 mile radius from the victim‘s residence, and the parent, guardian, or person or institution acting
The record shows that Appellant moved the complainant, a fourteen-year-old child, from her middle school to Mexico, a location more than 120 miles from her radius and outside the state of Texas, without her parents’ consent or acquiescence and without their knowledge, taking steps to prevent the parents from finding Appellant and the complainant. Nothing more is required to prove kidnapping under the facts of this case.9 Consent is no defense.10
Because the complainant was fourteen years old and Appellant was more than seventeen years old, her mental state and conduct were not relevant.11 Thus, because she was fourteen years of age when Appellant took her to Mexico without her parents’ consent for the purpose of sexually abusing her or sexually assaulting her, he committed aggravated kidnapping.12 The evidence was sufficient to support Appellant‘s convictions.
Conclusion
Based on the statutes as the legislature has drafted them, these are the only relevant issues.