Brown v. State

• Decision Date: 12 February 2003
• Docket Number: No. 2475-01.,2475-01.
• Citation: 98 S.W.3d 180
• Parties: Henry BROWN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

98 S.W.3d 180

Henry BROWN, Appellant, v. The STATE of Texas.

No. 2475-01.

Court of Criminal Appeals of Texas.

February 12, 2003.

Donald F. Killingsworth, Tyler, for Appellant.

Edward J. Marty, Asst. DA, Tyler, Matthew Paul, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, and HOLCOMB, JJ., joined.

The punishment level for aggravated kidnapping is reduced from a first degree felony (5 to 99 years or life) to a second degree felony (2 to 20 years)¹ if the kidnapper "voluntarily released the victim in a safe place." See Section 20.04(d), Texas Penal Code. In this case we decide that the Court of Appeals applied an improper definition of "voluntarily" in deciding that appellant's release of the victim in a safe place was not voluntary.

The evidence showed that appellant stabbed the victim in the neck with a knife and kidnapped her. The seriously injured victim later persuaded appellant to release her at a hospital by promising appellant that she would "tell them [that she] did it." After a jury convicted him of aggravated kidnapping, appellant asked the jury to sentence him as a second degree felon because he voluntarily released the victim in a safe place. The prosecution responded that appellant's release of the victim was not voluntary because the victim "tricked" appellant into releasing her.

Now, the only time he ever gave her medical treatment — allowed her medical treatment was when she fooled him, when she said, "Okay, I will tell them it was an accident." Does that sound like it was a voluntary release on his part, or was he tricked into it?

* * * * * *

This was not a voluntary release in a safe place. He was tricked into releasing her. He was tricked into taking her to the hospital under the pretense that he wouldn't get caught for it, and that is not voluntary.

* * * * * *

I submit to you that if somebody fools you into doing something that you wouldn't otherwise do, it's not voluntary. If somebody fools him into doing something that he wouldn't have otherwise done, it wasn't voluntary.

And that's exactly what [the victim] did. Desperate to save her own life, she fooled him into taking her to the hospital, 'cause she convinced him she would say it was an accident.

Do you remember that? Do you remember that testimony? That's not voluntary. He was tricked into doing that. And I'm glad that she was able to fool him and able to do that because it probably saved her life.

Now, Counsel said it's — this is too simple, too easy. Well, what's too simple and too easy would have been for him, the moment after he stabbed her in the neck, to drive her to [the hospital] which was, what, some two minutes from Mr. Tarry's place of business instead of taking her out in the county for an hour-and-a-half and watching her choke and beg for her life. It would have been too easy to go to [the hospital].

[Appellant] doesn't get rewarded for protecting himself. And that's exactly what he did when he drove her to that hospital. He was protecting himself. He knew he was going to get caught. Too much blood. Too much stuff.

He knew he would eventually get caught, and he was protecting himself because [the victim] convinced him she would say it was an accident. And that's what he was doing and nothing else. Please don't be fooled by that. That's all he was doing was protecting [himself].

The prosecution asked the jury to sentence appellant as a first degree felon and to assess a life sentence. The jury found that appellant did not voluntarily release the victim and sentenced appellant as a first degree felon to 30 years.

On direct appeal, appellant claimed only that the evidence was factually insufficient to support the jury's finding that his release of the victim in a safe place was not voluntary. Relying on former Presiding Judge McCormick's dissenting opinion to this Court's refusal of the State's discretionary review petition in Teer v. State, the Court of Appeals rejected this claim. Brown v. State,___ S.W.3d ___, ___ _ ___, slip op. at 3-6 (Tex.App.-Tyler 2001, No. 12-00-00145-CR, delivered November 28, 2001); Teer v. State, 923 S.W.2d 11, 12-21 (Tex.Cr.App.1996) (McCormick, P.J., dissenting to refusal of State's discretionary review petition).

The Court of Appeals decided that the term "voluntarily" in Section 20.04(d) had to be construed according to its "broadest possible understanding." Brown, slip op. at 4, at ___; Teer, 923 S.W.2d at 21 (McCormick, P.J., dissenting) ("voluntary" should be construed according to its "broadest possible definition"). The Court of Appeals construed "voluntary" to mean "the spontaneous product of the actor's free will, uninfluenced by another's persuasion, coercion, or solicitation." Brown, slip op. at 5, at____ (internal quotations omitted) adopting verbatim the definition of "voluntary" set out in Teer, 923 S.W.2d at 20 (McCormick, P.J., dissenting). Applying this definition of "voluntary," the Court of Appeals rejected appellant's factual sufficiency claim. Brown, slip op. at 6, at ___ ("the jury could have reasonably determined that Appellant released [the victim] because of her promise to conceal the circumstances of her injury and not out of concern for her condition"). We exercised our discretionary review authority to address the Court of Appeals' construction of the term "voluntarily" in Section 20.04(d).²

We normally construe a statute according to its plain textual meaning without resort to extratextual sources. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). We will, however, also resort to extratextual sources to construe a statute if we decide that the statute is ambiguous or that construing the statute according to its plain textual meaning will lead to "absurd consequences." See Jordan v. State, 36 S.W.3d 871, 873 (Tex.Cr. App.2001). These general rules of statutory construction are aids to effect our overriding constitutional duty to effectuate what the Legislature intended when it enacted the statute. See Boykin, 818 S.W.2d at 785.

We decide that the legislatively undefined term "voluntarily" in Section 20.04(d) is ambiguous primarily because it is susceptible to different meanings, some of which would support holding that appellant's release of the victim was voluntary and some of which would support a contrary decision. See Teer, 923 S.W.2d at 19-20 (McCormick, P.J., dissenting) (discussing various dictionary definitions of "voluntarily").³ We will, therefore, also resort to extratextual sources to construe "voluntarily" in Section 20.04(d).

The "plain" language of Section 20.04(d) obviously is intended to provide an incentive to kidnappers to release their kidnap victims. See Jordan, 36 S.W.3d at 873 (in construing an ambiguous statute, courts may consider "object sought to be obtained"); Brown v. State, 943 S.W.2d 35, 36 (Tex.Cr.App.1997) (starting point in analyzing the meaning of any statute is the language of the statute itself). An examination of the legislative history of Section 20.04(d)⁴ reveals that prior to 1931, Texas law did not reduce the punishment of a kidnapper who released his kidnap victim. See Texas Penal Code, former Article 1177 (1927) ("[o]ne guilty of kidnapping shall be confined in the penitentiary not less than two nor more than five years or be fined not exceeding two thousand dollars"); Texas Penal Code, former Article 1178 (1927) (if kidnap victim is actually removed from the state, then "the punishment shall be imprisonment in the penitentiary not less than two nor more than ten years").

In 1931, the 42nd Legislature made kidnapping for extortion or ransom punishable "by death or confinement in the penitentiary for any term of years not less than five" unless the kidnapper "returned" the victim "without serious bodily injury having been inflicted" in which case the punishment was "confinement in the State Penitentiary for any term of years not less than five." See Acts 1931, 42nd Leg., p. 12, ch. 12, H.B. 244 codified as former Texas Penal Code, Article 1177a.⁵ In 1933, however, the 43rd Legislature determined that this reduced punishment for a kidnapper who returned the kidnap victim "without serious bodily injury" was "wholly inadequate to deter persons from committing the crime of kidnapping" for extortion or ransom. See Acts 1933, 43rd Leg., p. 51, ch. 17, S.B. 36. The 43rd Legislature repealed this portion of the statute and kept the original punishment from the 1931 statute of "death or confinement in the penitentiary for any term of years not less than five" for kidnapping for extortion or ransom. See id.

The statute remained unchanged until 1973 when the 63rd Legislature enacted the aggravated kidnapping statute in Texas Penal Code, Section 20.04. The 63rd Legislature provided that the punishment level for aggravated kidnapping would be reduced from a first degree felony to a second degree felony if the kidnapper "voluntarily releases the victim alive and in a safe place." See Acts 1973, 63rd Leg., p. 883, ch. 399, S.B. 34, H.B. 514 codified as former Texas Penal Code, Section 20.04(b), (West 1974).⁶ The overriding concern expressed during the legislative hearings and debates in connection with the enactment of former Section 20.04(b) was the meaning of a safe place (e.g., whether releasing a kidnap victim in 20 degree weather or on a railroad track would constitute release in a safe place). These legislative hearings and debates are silent on the meaning of "voluntarily."⁷

Before its enactment by the 63rd Legislature in 1973, former Section 20.04(b) was originally drafted in the Proposed Penal Code to read "[k]idnapping is a felony of the first degree unless the actor voluntarily releases the victim alive and in a safe place before arraignment, in which event kidnapping is a felony of the second degree."⁸ The drafters' comment to this proposed draft was, "[r]eflecting a primary concern...