*1 Whether, given that certain ease: this to consti must exist in order circumstances 22.041(b), § the statute
tute an offense under to those
requires culpable mental state as impressed with I am
circumstances.5 While ensuring spirited dedication
the Court’s legisla the intent of the
that we effectuate
ture, in this legislature the intent of regard, simply unclear. this
instance is energy redirect its
suggest that the Court state assuring culpable that a mental
toward surrounding the the circumstances
attach to unless of a child
intentional abandonment since, § un dispensed 22.041
plainly legislature, intent of this that of the
like McQueen re both McClain
Court
mains clear. effectively failure to confront
The Court’s controlling disappointing. cases is
these
Lawyers judges depend on this Court
clarify Plural the criminal law of this State. one, they
ity because are opinions like value,” always precedential limited
“of State, Farris v.
poor regard. in this vehicle (Tex.Crim.App. 502 n. 3
819 S.W.2d
1990). fails to But when the Court also distinguish the case before it meaningfully West, Reaves, Jr., appellant. for Walter M. majority opinions form from the numerous area, body of law in this a decisive case Waco, Toben, Atty., Assist. Dist. Beth especially to bench and bar is disservice Paul, Attorney, Assist. State’s Matthew W. egregious. Huttash, Atty., Austin, Robert A. State’s comments, I these dissent. With Austin, for the State. FOR PETITIONS ON STATE’S
OPINION REVIEW DISCRETIONARY TEER, Appellant, Robert PER CURIAM. ag by a Appellant was convicted Texas, Appellee. The STATE forty kidnapping and sentenced grаvated No. 0578-95. imprisonment. The Court years conviction, but reversed appellant’s affirmed Texas, Appeals of of Criminal Teer v. punishment. judgment as En Banc. (Tex.App. —Waco April 1995). At County District The McLennan Prosecuting Attorney
torney
the State
State”)
for
petitions
filed
(collectively, “the
granted.
discretionary review which we
Majority
germent,
notes. See
legislature’s
as the Court itself
attempt to reveal the
5. The Court's
history
legislative
to deal not
op.
seems
intent via
with child
at 3-4 n. 4
abandonment,
child endan-
but with
*2
Upon careful
grounds
job.
consideration of the
fore no
She did work for a short time as
briefs,
for review and the
we conclude that
housekeeper
During
for her mother.
this
petitions
improvidently
State’s
were
time, she would either walk to her mother’s
granted. Accordingly,
petitions
the State’s
apрellant
house or
drop
her off there.
for discretionary review are dismissed.
times,
also
living
moved numerous
with
several different
appellant.
relatives of the
McCORMICK, Presiding Judge,
offense,
At the time of
only
Christina was
dissenting
petition
on State’s
for
seventeen.
discretionary review.
Christina
separate
appellant
tried to
from
petition
initially
This
granted
was
in order
occasions,
on
retreating
several
each time
to
to determine whether the Waco Court of
her mother’s house.
each
On
of these occa-
Appeals
by:
failing
erred
analyze
sions, appellant would locate her there and
whether the victim was in fact “released”
plead with her until she
him.
returned with
considering
before
whether the release was
ultimately
Christina
decided she wanted no
voluntary
place;
and
it was in a safe
and
appellant
further contact with
and moved
(2) employing
impermissibly
narrow defi
Family
into the
Sep-
Waco
Abuse
on
Center
“voluntary”
nition of the word
in direct con
(at
22,
time, they
tember
had been
flict with this Court’s
decisions Vernon v.
approximately
year).
married
one
While
State, 841
(Tex.Cr.App.1991),
S.W.2d 407
Center,
Family
Christina lived at the
Abuse
Tyra v.
(Tex.Cr.App.
I. get together. manager back of Shooters finally persuaded appellant intervened and A. leave. Christina was scared and called the aggravated kidnap- This case involves the Abuse Two Center. counselors came ping wife, appellant’s estranged of the to Shooters to check on her. Christina Teer. The married years Shooters, Appellant Christina when she was sixteen returned soon old, 8,1992 loaded, August (appellant twenty- on armed with a Winchester Model one). Following marriage, twelve-gauge, pump shotgun. Appellant en- Shooters, dropped high having only out of school com- tered racked a into the round pleted grade. shotgun, dropped gun the tenth She stated she did chamber of the level, crowd, not think pointed would let her return to waist it at the screamed, living together, everybody school. While Christina had “I want down!” Some transportation approximately patrons available to her and there- one hundred ap- makeup and there down, hid, purchased some were others scattered laid some and the began running Appellant forty-five minutes. Later that proximately out the door. her, Christina, gun at approached pointed motel, awak- night at the back me, said, coming “You are bitch.” oral performing by appellant as he ened ensued, shotgun struggle and the dis- away from push her. tried sex on She *3 grabbed charged Appellant into the floor. back, him head and told pushed her. his She began dragging in a headlock and Christina proceeded He then stop, he did not. but wrapped legs the door. her her towards She against with her sexual intercourse legs they around his and both fell to words, “just she laid In her own her will. push gun away, floor. tried to Christina morning appel- it.” The next there and took picked up, it appellant got to it first. He but a can of briefly and returned with lant left bitch, said, up in pointed it her face and “Get can, up lifted took the whipped cream. He you.” got up. or I will shoot Christina chest, shirt, began it on her and sprayed her dragged by her arm and He then her her head covered licking it off. Christina through the front door where he sweater stop.” “please him to pillow, and asked with a ground. Appellant walked shoved her to the did, commenting she eventually after that He Christina, position a in around tо front day, “ruining his fun.” Later face, nothing. pointed gun to her but said appellant to return Christina convinced thought going to kill stated: “I he was She money get his shotgun to and Wal-Mart life, begged me that time.” for her She gun, but They to return the back. tried continuously repeating “please don’t shoot accept it it had would not because Wal-Mart me, anything, just I will do don’t shoot me.” the Huntsville store. purchased not at been hair, Appellant grabbed then her car, in, dragged and pushed her to his her day, reaching the motel the third after On away Highway drove down Six.1 Buffalo, appellant had sex with Christina in they At some time while two more times. Riesel, they reached the town of When motel, again upset became were at suggested let her Christina shotgun Appellant put the to his Waco, with her. gun take the car and back to and she mother’s, going to shoot acted like he was drop him off at his who lived head and himself, him Appellant responded in Riesel. that “he was calmed down. until Christina jail going watching evening and that he would kill p.m., [her] At 6:00 while going jail.” himself first before concerning and news, they saw a broadcast had kidnapping and learned that a warrant abduction, they spent the next After the hearing the After for his arrest. been issued Centerville, days together three at motels in broadcast, appellant scared and com- became Huntsville, they and Buffalo. As were mother, get to call her manded Christina Centerville, checking into the motel then took her drop charges. He her to normal, appellant told Christina to “act don’t mother, she called her pay phone to a where say anything, anything, act scared or don’t Freeman, room, told her she he Mrs. Norma and don’t run off.” Once inside her, charges dropped so that she attempted but she to take shower with wanted directly an- Appellant also refused to go refused. When Christina stood “could home.” repeated questions about whether his during swer this conversation. beside boyfriend, appellant acted or not -she had real- that her mother “acted stated Christina picked going to hit her. He then like he was calm, nothing going on.” short ly like the, going up shotgun and acted like he was (with later, again called her mother time she her, eventually but calmed down. to shoot her) told standing and was beside They there. right all to come that it was they Huntsville and day Thte drove to next for her mother’s Buffalo and headed then left night, ap- That into another motel. checked Teague. house to the mall. pellant took Christina S.W.2d Appeals bluntly this his car.” Teer describes grabbed granted). stating: pet. sequence by simply (Tex.App. "Teer entire —Waco accompany him to and forced her to Chriétina leave, afraid, route, appellant began discussing her if she if she wanted to
While there, get plans get together and if she needed to out of she his for them to back come to the Abuse Center. for her to move with him. When Christina wanted to back him, brakes, Gregory questions so that rebuffed he slammed on the did formulate her they “yes or no” again put shotgun to his head. could be answered with answer, opposed by telling type him that as to a narrative. then calmed down they get together, and told her that she was scared would indeed back they Teague. go “home.” “Home” to Christina continued on to Christina stat- wanted said, Family she did not mean she meant Abuse Center. ed what had but Waco get Gregory Alston. He told him that in order to “home.” then called Detective time; time a second called Christina they arrived at the Freeman resi- When differently so that formulating questions his *4 night, dence late that her mother ran out and yes they answered or no. She was could be him, gave appellant big hug. “I She told to him that she wanted able to communicate glad you okay,” am so and continued to go He her that to the Abuse Center. told “tightly.” him embrace Christina described some officers would come to arrest “really inappropriate.” it as Once inside the center. De- and take her back to abuse house, step-dad nothing to Christina’s said tective Alston then called the Freestone Her her and ran to the back house. County Department instructed Sheriffs and step-sister ignored her. While Christina Teague go them to to Freeman’s house slept living pallet, appellant in the room on a appellant. and arrest and her mother sat on the couch and talked morning, appellant’s nothing happened. They if talked At time that as had some at the Freeman night, discussing appellant and father and aunt arrived late into the appellant came plans. never house. Mrs. Freeman and Christina’s future Christina them. The police gave shotgun and opportunity had an to call the outside gun and aunt then left with the night. father and to Fairfield. went morning, appellant The next directed im- Appellant if learned that his arrest was police to call the and ask them
Christina premises. attempted to leave the they going to arrest him and to “make minent and were away approxi- okay.” initially De- He drove and traveled everything was She called sure road, mately but returned. Police De- one mile down tective Mike Alston of Waco away returned a second to He then drove partment and told that she wanted time, actually the second drop charges. time. After he returned Christina did deputies County arrived charges dropped, scared to Freestone Sheriffs but was want resis- walking and arrested him after some initial say appellant otherwise because arrested, being he was during the conversa- tance. As in and out of the room there, lay suppos- the floor” and made ar- “fell out on Detective Alston. She tion with He was edly suffering from a “seizure.” for her and rangements with the detective Monday put patrol in a car and taken following then appellant to come County Department. Sheriffs During this Freestone bring gun with them. and to Fairfield, appellant man- conversation, a While en route to Detective Alston carried on car patrol rear door of the aged open Christina and did normal conversation with escape. jumped He out of “yes attempted to questions in a or no” not formulate his down, deputy but as the slowed the vehicle type fashion. taken to the on the road. He was fell down [appellant] if it “asked then examined, released, hospital, Fairfield Family okay” to call the be for her then booked. know that she was Center to let them Abuse upset when was scared gave permission her to call right, and he all she appellant and Gregory, deputies arrived to arrest Donna spoke -with them. Shе told the conveyed fear to them. She Gregory the Abuse Center. counselor at that house out of deputies that she wanted if able to talk be- she was asked Christina As place. to a safe to be taken “shaky.” also asked and wanted She cause her voice judgment the trial affirm the being jail, Appeals, appellant was taken to she court. County taken to the Freestone Courthouse reunited with her counselors
were she was kidnapping aggravated person commits Abuse did not from the Center. Christina intentionally knowingly “abducts” return to her mother’s house. specific person, and also has another aggravating one of six other
intent to commit V.T.C.A., B. Penal listed the statute. factors Code, “re- “Abduct” means to 20.04. Section Appellant ag was convicted prevent person the intent to strain” a Code, V.T.C.A., gravated kidnapping. Penal “(A) holding by: secreting or his liberation 20.04(a).2 finding appel Section After likely to place he is not him in a where lant did not release Christina (B) using threatening to use found: place, pun assessed alive a safe V.T.C.A., Code, deadly Section force.” years at 40 confinement in the Texas ishment 20.01. Justice, Department of Institutional Criminal 20.04(b). ap Section On person’s
Division. See id.
restrict a
“Restrain” means to
consent,”
affirmed
peal, the Tenth Court of
inter-
so as to
movements “without
conviction,
judg
moving
appellant’s
liberty, by
but reversed the
substantially with his
fere
punishment.
ment as to
Teer v.
to another or
confin-
him from one
*5
1995, pet.
con-
(Tex.App.
Id. The restraint is “without
S.W.2d 845
him.
—Waco
force,
by
intimi-
granted).
Appeals
accomplished
The
concluded
if
Court of
sent”
it is
dation,
support
deception. Id.
that the evidence was insufficient to
or
jury’s finding
not
the
that Christina was
kidnapping
as a
Aggravating
is classified
voluntarily
place.
released in a safe
Id. at
Code,
V.T.C.A.,
felony.
degree
Penal
first
County
851. The McLennan
District Attor
However, if the actor “volun-
20.04.
Section
(col
ney
Prosecuting Attorney
and the State
in a safe
tarily releases” the victim alive and
State”)
lectively,
petitions
“the
for dis
filed
downgraded to a second
place, the offense is
review,
cretionary
initially granted.
which we
degree felony. Id.
voluntarily re
the defendant
Whether
II.
place
and in a safe
leased the victim alive
inquiry
the
Our initial
concerns whether
jury
decide.
of fact for the
an issue
by failing
of
erred
Waco Court
State,
918,
Thornburg
921
v.
699 S.W.2d
analyze
in fact re-
whether Christina was
1985,
pet.).
no
(Tex.App.
[1st Dist.]
—Houston
considering
the re-
leased before
whether
of
the threshold burden
The defendant has
voluntary
place.
lease was
and in a safe
The
of
to raise the issue
producing evidence
the
State contends that the issue of whether
voluntarily
was
released
whether the victim
(the
released should have been ad-
victim was
of
place
burden
alive and
a safe
State,
contend that
the evi-
dressed first.
851 S.W.2d
production). Williams
support
dence was more than sufficient
the de
(Tex.Cr.App.1993).3 Once
286
issue,
finding
that
never
released
has
has raised the
State
fendant
finding
beyond
ren-
proving
and that such a
a reasonable
the burden of
any subsequent
interpreting
of
did not
der
discussion
that the defendant
doubt
cor-
in a safe
“voluntary” moot. Because the State is
the victim alive and
release
Id.;
(the
Wright
analy-
persuasion).
of
contention of the order
burden
rect
evidence,
(Tex.Cr.App.1978).4
24
sufficiency
as the
sis as well
(1)
Therefore,
there
proved
if the
State
judgment
of the Court
I would reverse
"voluntary
release”
4.In
the issue of
Code refer to
2. All
to the Penal
references
by
Legisla-
designated
defense
indicated.
an affirmative
version unless otherwise
ture,
persuasion
defen-
on the
with the burden of
by
at the
preponderance of the evidence
dant
Although
production is on the
the burden of
3.
Code,
V.T.C.A.,
stage.
issue,
punishment
See
accused,
raising
thus
evidence
20.04(d) (1995).
change
way
burden,
This
par-
may
Section
meeting
come from either
by
Williams,
this case.
the core issues raised
effects
ly.
17
Virgi-
v.
announced
Jackson
familiar one
personal characteristics of the victim
that the
light
must
viewed
the evidence
be
nia:
must be considered.8
verdict, to determine
most favorable
State,
Thirteenth Court
Cortez v.
any
trier of fact could
rational
whether
Appeals acknowledged
are one
that threats
elements of the offense
the essential
found
may
manner in which a victim
be restrained.
doubt. Jackson v. Vir-
beyond a reasonable
(Tex.
State,
372,
Cortez v.
738 S.W.2d
374
2789,
319,
2781,
307,
ginia,
99 S.Ct.
443 U.S.
1987,
App. Corpus
pet.).
Christi
—
(1979). Furthermore, we
560
61 L.Ed.2d
threats,
recognized
an assail
also
that with
of the record
record —all
review the entire
ant
of fear to isolate
creates an environment
there
inferences
and reasonable
evidence
escap
prevent
the victim and
the victim from
sufficiency.
assessing
evidence
from —in
Furthermore,
ing.
under Texas law
Id.
(Tex.Cr.App.1994),
State,
321, 324
v.
Wilkerson
express.
threats need be neither verbal nor
— U.S.-,
denied,
115
t.
cer
State,
(1877);
Herring
Ct.App.
v.
3 Tex.
108
(1994).
671,
It should
L.Ed.2d 604
130
S.Ct.
(1880).9
State,
Tex.Ct.App. 361
Maner v.
8
that this standard concedes
emphasized
be
acts,
may
gestures, or
The threat
consist of
role. The
only a limited
appellate courts
words,
like, which,
may
equally
reviewing court to
require
not
inquiry does
threat
operate upon
person
calculated to
that the evi-
“it” believes
ask itself whether
Maner,
Tex.Ct.App.
For
ened.
8
at 364.
guilt beyond a
trial established
dence at the
example,
may
inspired
threats
consist of fear
319,
Jackson, 443 U.S. at
reasonable doubt.
arms,
presence
angry
regard,
In this
the court
19 use, in its mean- untary” a word common jury The is in a far better is the witnesses. by the ordi- ing clear and well understood position to make that determination because generally not viewing nary person, the and does advantage it has the distinct involved, special live; complicated or seeing and ex- such an evidence the demeanor require defining a thereof. judges meaning as to pressions Appellate of the witnesses. 219, State, 124 cold, 136 Tex.Crim. review one-dimensional records. Joubert 368, (interpreting “volun- trembling 369 are unable to hear mumbled S.W.2d malice tarily” in of a murder with They are a head the context voice. unable to see bowed low, hand, specially quivering averting eye, prosecution). words are an When they by Legislature, are to be Keeton it defined the tear stained cheek. Dean said best allows, and ordinary usage referring рerson being to a restrained understood as when statutory lan- jurors may freely read the by threats: accept- any meaning is guage to have which eases, rise, gives in “This borderline State, 841 speech. in common Vernon able fact, turning upon questions of the details (Tex.Cr.App.1992).10 409 S.W.2d testimony, as to was reason what ably implied the understood and from be determining suffi- Accordingly, when the conduct, defendant’s tone of voice and the support a ciency of the evidence to like, in fully can reflected which seldom verdict, employ reviewing courts must not record, normally are for appellate statutory words which definitions of relevant al., jury.” Page W. Keeton et Prosser than the are or more restrictive different 11, at and Keeton on the Law Torts Sec. jurors legally entitled to themselves were (5th 1984). added). (Emphasis ed. 49 Instead, they Id. must construe use. Although passage references the inten- by opening them to the undefined words imprisonment, princi- tional tort of false understanding in (cid:127)possible the con- broadest forcefully ple equally applicable and as they reasonably susceptible text of which criminal context. can be One restrained ordinary English. Tyra v. alone, implied express, threats (Tex.Cr.App.1995). S.W.2d so, to let the when wiser course is from Appeals deviated Waco Court (or judge) the trial decide if a release has it reviewed common sense rules when these occurred. sufficiency pursuant to a evidence light Viewed most favorable to “voluntary.” According narrow definition verdict, plainly the record evidence suffi- Court, ordinary meaning of to the Waco jury’s support finding сient exclusively: ‘“proceed- “voluntary” includes Christina was not released. free or from one’s own from the will that not did the would hold consent’; by design or inten- choice or ‘done ” by failing err to determine whether Teer, tion’; ‘having power of free choice.’ occurred, a release had but also erred (citing at 849 Merriam Webster’s misapplying applicable re- standard of 1993)). (10th Collegiate Dictionary 1324 ed. view. However, following they failed include page and “ordinary meanings” from the same
III. entry “unconstrained same in Webster’s: “acting or done of one’s Assuming arguendo in interference” and that Christina was released, valuable consideration inquiry next concerns the Ownfree will without fact our legal obligation.” Merriam Webster’s Col- jury may give the word proper definition a 1993). Dictionary legiate “voluntary” aggravated context of the *9 Dictionary also defines “volun- Legislature not Black’s Law kidnapping statute. The did influ- tary” “unimpelled another’s “voluntary” is used in the as: as that term define choice, ence”; “resulting without from free to. The word “vol- statute and did not need Joubert, words, fined.”); 3.01, (“All S.W.2d at 369 see also 124 See Article V.A.C.C.P. words, simple (stating terms used are to be that where phrases terms used in this Code are meaning, jurors ordinary acceptation and are used in their in their usual taken and understood meaning). presumed common language, except specially de- to know such where in common 20 solicitation”;
compulsion or
and “without
from his crimes or to his state of mind. A
valuable consideration.” Black’s Law Dictio-
rational trier of
could
fact
have concluded
(6th
1990).
nary 1575
ed.
The American
that the
would not have released
Heritage Dictionary
“voluntary”
definition of
Christina in the absence of the imminent
“Acting, serving,
willingly
includes
or done
threat of interference
law enforcement.
expectation
and without constraint or
of re- They
appel-
also could have concluded that
Heritage College
ward.” The American
Dic-
lant
have released
had she not
(3d
1993).11
tionary 1613
ed.
called her mother
in order
the
charges dropped or contacted the Waco Po-
acknowledged
The Ninth Circuit has also
Department
persuaded
lice
them not to
broad,
necessity
the
to use a
defini-
inclusive
drop
charges.
arrest
and to
“voluntary”
ag-
tion
the context of an
gravated kidnapping
Hennessy
statute.
Appeals adopted
The
its narrow
Court
Cir.1991).
Goldsmith,
In
Under commonly mately guts the word of its under- tary,” plainly is sufficient to evidence especially pernicious meaning, stood and is Simply to state support jury’s finding. Appellate substitutes its apply because the prove is to that it cannot definition verdict appellant’s as he fled narrow definition to overturn to either the behavior Century dictionary tary.” Twentieth Dictio- every includes a Webster's New 11. It seems that (2d 1983). "voluntary” nary than the much broader definition Dictionary Court’s. The Oxford Reference Waco done, "voluntary” "acting, given defines as understanding “voluntary” not a 12. This will, compul- etc. of one’s own free sion”; not under unique Defense, Penal Code. See Renunciation one in our payment.” "working or done without V.T.C.A., Code, Section 15.04 (1986). Dictionary 918 The Oxford Reference "voluntary” (stating is not that renunciation Dictionary Century Twentieth Webster’s New initially present by circumstances not motivated "acting compulsion persua- without also lists probability apparent that the that increase any profit, payment, or sion” and "done without apprehended). detected or defendant will be of “volun- consideration" as definitions valuable *10 judgment of the trial court and supported by overwhelming In the entire evidence. release,” choosing “voluntary respectfully dissent. not to define Legislature left it to the to construe usage according MANSFIELD,
that tеrm to its common WHITE, MEYERS —its meaning. reviewing It court’s plain is not a JJ., join this dissent second-guess Legislature function to overly of a
imposing an narrow definition Legislature
term the chose not to define. Appeals imposed a defini-
The Court of thus “voluntary” plainly not the
tion of which possible that term and
broadest definition of
plainly commonly not even the most under-
stood definition in direct violation of Vernon
Tyra.
ATKINSON, Appellant,
Hughes
Michael
focusing
analysis
on the
Instead
their
proper
“voluntary”
explain
definition of
Texas, Appellee.
STATE
departure
Tyra,
from Vernon and
Court embarks on an erroneous
Waco
No. 0248-94.
interpretation
unnecessary
an
refuta
of and
Texas,
Appeals of
of Criminal
Court
(Tex.
Wiley
tion of
kidnapper engage in rational cost would analysis during
benefit such a standoff as to prefer he would to be convicted of a
whether ag degree felony under the
first or second statute,
gravated kidnapping fact has
every un incentive release his victim i.e., point, capital and alive at that
harmed Regardless, in no sense could such
murder. rationally at that time deter release “voluntary.”
mined to be summary, a rational could beyond a reasonable doubt
found ap-
Christina Teer was not released released, Assuming
pellant. that she was way termed “vol- could such a release be
untary” properly as that word is understood.
I would therefore also hold that too narrow a definition of “vol- used
untary.” the focus be on the issue Whether voluntariness, this is not an
of release or on grant- improvidently ease to be
appropriate foregoing, I affirm Based on the point time at Wiley, Wiley critical the the evi- does it make Court states that in 13. The Waco jury’s being sought by support kidnapper learns he is dence was found sufficient finding which the victim had not been that the does it conclude authorities and nowhere the victim testified that “he released because vic- in that case because the evidence sufficient only captors heard that the after his released police captors heard after the tim was released Teer, coming.” at 849. were coming. police were that the Wiley. misreading Nowhere This is a total