Butcher v. State

• Decision Date: 28 January 2015
• Docket Number: NO. PD–1662–13,PD–1662–13
• Citation: 454 S.W.3d 13
• Parties: Charles E. Butcher, II, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

454 S.W.3d 13

Charles E. Butcher, II, Appellant

v.The State of Texas

NO. PD–1662–13

Court of Criminal Appeals of Texas.

Delivered: January 28, 2015

Rehearing Denied March 18, 2015

Alexander L. Calhoun, for Charles E. Butcher, II.

Rosa Theofanis, for The State of Texas.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., KEASLER, ALCALA, RICHARDSON, YEARY, and NEWELL, JJ., joined.

The punishment level for aggravated kidnapping is reduced from a first-degree felony to a second-degree felony if the kidnapper “voluntarily releases the victim in a safe place.” See Tex. Penal Code § 20.04(d). The court of appeals concluded that the evidence was legally and factually sufficient to support the jury's rejection of Appellant's mitigating defense of release in a safe place. See Butcher v. State, No. 11–11–00288–CR, 2013 WL 5891603, at *9 (Tex.App.–Eastman Oct. 31, 2013) (mem.op.) (not designated for publication). We granted review to examine the holding of the court of appeals,¹ and because we agree with the judgment of the court of appeals, we shall affirm.

On September 24, 2009, in the pre-dawn hours, the nine-year-old complainant (JG) was walking alone down a long, dark, desolate driveway by herself from her condominium complex to her school bus stop. Appellant approached her from behind, grabbed her around the waist with one arm, covered her mouth with his other hand, and threatened to cut her with a knife if she screamed.² Appellant then put JG on the floorboard of his truck and drove her to his apartment. While she was in Appellant's car, JG reached into her backpack claiming to look for a snack, but she grabbed her mobile phone to seek help. Because it was still dark outside, Appellant saw the light from JG's phone when she activated it, and he took it from her. He then pried the battery out with a knife.³ Once at Appellant's apartment, JG was put into a closet with her hands bound. After eight hours Appellant decided to release JG. He put her back on the floorboard of his truck and drove her to an apartment complex near where she lived. But when she told him that she did not know how to get home from where they were, Appellant took her back to the site of the kidnapping and released her there.

JG returned home to an empty house: her mother was not there because she was at the police station. JG was unable to call anyone for help because Appellant still had her mobile phone, and JG and her mother did not have a home phone. JG walked to a neighbor's house and used their telephone to call her mother. A little while later, her mother and police arrived.

Construing “safe place”

Section 20.04 of the Texas Penal Code deals with aggravated kidnapping, and it states,

(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:

(1) hold him for ransom or reward;

(2) use him as a shield or hostage;

(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;

(4) inflict bodily injury on him or violate or abuse him sexually;

(5) terrorize him or a third person; or

(6) interfere with the performance of any governmental or political function.

(b) A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.

(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

Tex. Penal Code § 20.04.

When construing a statute, we first look to its literal language to ascertain its meaning. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). If the language of the statute is plain, then we interpret the statute according to that plain language. However, if the language of the statute is ambiguous or the plain meaning would lead to absurd results, then we examine extratextual sources to discern the meaning of the statute. See Brown v. State, 98 S.W.3d 180, 183 (Tex.Crim.App.2003). We employ these rules of statutory construction to fulfill this Court's constitutional duty to construe the meaning of a particular statute in the way intended by the legislators who enacted the law. See id. ; Boykin, 818 S.W.2d at 785–86.

A. Arguments of Appellant

Appellant argues that certain facts adduced at trial supported his affirmative defense. For example, the fact that JG was released during the day, that she was released to the location from where she was abducted, that her mother would allow her to walk to and from the school bus stop by herself before this incident, that JG did not ask a passing mailman for help after she was released, and that JG's mother described JG as independent. However, we do not agree with Appellant that those facts warrant reversing the judgment of the court of appeals or the determination of the jury.

For example, the fact that Appellant released the complainant during the day is not dispositive of whether a place is “safe”; many places that are dangerous at night remain dangerous during the light of the day. In addition, other relevant facts in this case included that the complainant was a nine-year-old girl; she had lived at that condominium complex for only three months; Appellant released JG without her mobile phone, thus preventing her from seeking immediate help; and after being released, JG returned home to an empty home and had to leave it—after being kidnapped that morning near her home at knife point—to seek help. Also, after JG was kidnapped, her mother and JG no longer felt safe at the condominium complex, and the school adjusted the bus route to pick up and drop off JG directly in front of her condominium unit. Finally, although JG testified that she went to the home of a neighbor whom she knew and was comfortable with, she also did not ask for the neighbor's help despite their familiarity. Instead, she asked to use the phone to call her mother. Thus, while it was possible to infer that JG may have felt safe once she came upon the mailman because she did not ask for help, it is equally possible to infer that JG did not want to ask a stranger, or even a neighbor she was comfortable with, for help after being kidnapped by a stranger that morning so near her home. Moreover, a factfinder could infer that even an independent nine-year-old girl would be afraid to ask a passerby for help after suffering severe trauma by being kidnapped, having a knife held to her throat, and held, bound, for eight hours against her will.⁴

B. The term “safe place” is ambiguous, and the determination of whether a place is safe should be made on a case-by-case basis.

We conclude that the term “safe place” as used in Section 20.04(d) of the Texas Penal Code is ambiguous because it is not defined in the Texas Penal Code and the term is susceptible to different meanings based on the facts of each case.⁵ See Brown, 98 S.W.3d at 183 (holding that the term “voluntarily” was ambiguous as used in the language of the aggravated-kidnapping statute because it was “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”). Likewise, we must resort to extratextual sources to determine the intent of the enacting legislators in their use of “safe release” defense.

In Brown, this Court exhaustively reviewed the legislative history of the kidnapping statutes in Texas. See Brown, 98 S.W.3d at 184–87. We review that history, as it is germane to the issue of safe release.⁶ The origins of the modern-day defense of release in a safe place can be traced back to the 63rd Legislature and its adoption of the 1973 Penal Code. Section 20.04 dealt with aggravated kidnapping, and subsection (b) was the safe-release defense. See Acts of May 25, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 915, 915 (current amended version at Tex. Penal Code § 20.04(d) ).⁷ And while many provisions of the new penal code were debated extensively, the Legislature spent relatively little time discussing what may constitute a safe place or how to define the term “voluntarily release”—which was the subject of this Court's opinion in Brown.See Brown, 98 S.W.3d at 182. However, three comments were made with respect to “safe place,” and those were that leaving a person in twenty-degree weather in snow or tied to railroad tracks would not be a safe place, and that the determination of whether a place is a safe for purposes of the aggravated-kidnapping statute will usually be a fact-specific inquiry. We note that the case-by-case analysis suggested during the debates of the Legislature is supported by the examples the Legislature discussed and our conclusion that whether a place is safe necessarily turns on the circumstances of each case.

In addition, although the 1973 Practice Commentary to Section 20.04 notes that the aggravated-kidnapping provision was modeled after Section 212.1 of the Model Penal Code,⁸ neither the 1973 Practice Commentary nor the comments to the Model Penal Code define “safe place.” See Practice Commentary to Section 20.04, 259–61 (1989); Model Penal Code, Section 212.1 (Official 1962 Draft and Revised Comments) (The American Law Institute 1980).

In 1993, the 73rd Legislature amended Section 20.04 of the Texas Penal Code. Act of May 31, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3615, 3615 (the safe-release defense was moved to newly created subsection (c), the defense was turned into an affirmative defense, and the word “alive” was removed as a requirement of the defense). However, the amendments and accompanying legislative history reveal nothing about how the term “safe place” in the aggravated-kidnapping statu...