Rodriguez v. State
| Decision Date | 16 December 1982 |
| Docket Number | No. 01-81-0472-CR,01-81-0472-CR |
| Parties | Thomas Vasquez RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Sybil Carr, Houston, for appellant.
Winston Cochran, Jr., Asst. Dist. Atty., Houston, for appellee.
Before PRICE, WARREN and DOYLE, JJ.
This is an appeal from a conviction for aggravated kidnapping with intent to terrorize. The trial court assessed life imprisonment after the jury found the habitual allegations in the indictment true.
In two grounds of error the appellant challenges the sufficiency of the evidence to sustain his conviction.
The indictment alleges, in pertinent part, that appellant:
"on or about March 27, 1981, did then and there unlawfully, intentionally and knowingly restrain Barbara Jean Moore, hereafter styled the complainant, by using and threatening to use deadly force with intent to prevent the liberation of the complainant and with intent to terrorize the complainant."
The elements required to be established by the evidence in order to sustain this conviction for aggravated kidnapping are:
(1) a person
(2) intentionally or knowingly
(3) abducts
(4) another person with intent to terrorize him
V.T.C.A. Penal Code, Section 20.04(a)(5). "Abduct," as defined in Section 20.01(2) is the restraint of a person "with intent to prevent his liberation by (B) using or threatening to use deadly force."
V.T.C.A. Penal Code, Section 20.01(1) defines "restrain" as follows:
The appellant contends that there is insufficient evidence to show that he abducted the complainant or that he intended to terrorize her.
The State's evidence on guilt reveals that on March 27, 1981, Barbara Jean Moore, a seventeen year old high school student, got out of school and walked across the street to a church parking lot where her car was parked. When she opened the car door and rolled down the window, a man, whom she later identified as the appellant, jerked the door open and told her to scoot over. She refused. He kept telling her to scoot over or he would kill her. He had what appeared to be a carpet knife with a curved blade. Moore panicked, tried to shove him out and "just kept hollering no." The man put the knife to her neck, put his hand over her mouth and told her to shut up or he would kill her. The appellant got on top of Moore and tried to push her into the passenger seat. Moore testified that when she was screaming, she felt that he was trying to cut her. She bit him on the hand and tried to knock the knife away, and was severely cut on the thumb and slightly on the neck. She described how she was in fear of imminent bodily injury and death. She stated that she was "terrorized" during the struggle which lasted from two to four minutes.
Several other students testified that they observed the struggle and heard the complainant hollering and screaming for help. As they approached the car, appellant got out of the vehicle, straightened his clothes and hair, put a knife in his pocket and walked away.
After the appellant left the scene, the complainant stayed inside of her car with the windows rolled up and doors locked. She was crying and upset. She told one of the witnesses that he was trying to rape her.
The evidence, viewed in the light that most favorably supports the jury's verdict, demonstrates that appellant, in his effort to prevent Moore's liberation, presented her with the threat of deadly force by using a hook-knife and threatened to kill her while she was confined in the car. The restraint involved was effected through the use of force and intimidation as appellant was on top of her trying to push her into the passenger seat.
Appellant's argument challenging the sufficiency of the evidence to prove "abduction," focuses attention on the definitional element of "restraint" that requires a person's movements to be restricted so as to "interfere substantially" with that person's liberty. In analyzing this element, appellant presents a lengthy historical discussion of the misapplication of kidnapping statutes in other jurisdictions. Other states have held that where the kidnapping is merely incidental to carrying out offenses such as rape or robbery, prosecution should pursue the intended offense, and not the kidnapping. The confinement and restraint must be sufficient enough in themselves to warrant an independent prosecution for kidnapping, and not the type that merges into and becomes a part of the elements of the intended crime. Consequently, many states require that an act of restraint, which is an element of abduction, be a lengthy detention or involve asportation of the victim over a considerable distance.
These states feel that an inherent inequity exists in permitting kidnapping prosecution of those who, in reality, commit lesser or different offenses of which temporary seizure, asportation or detention play an incidental part. The inequity, according to these decisions, is the injustice caused by the disparity in punishment allowing for greater punishment, such as life imprisonment or death, for kidnapping as opposed to some lesser punishment for the intended offense. Because the State determines which offenses are prosecuted, this inequity can be prevented only by restricting the prosecution of kidnapping cases.
In Texas, this disparity in punishment generally does not exist in cases involving kidnapping where abduction is merely incidental to the commission of other intended offenses such as rape or robbery. Aggravated kidnapping is oftentimes a lesser grade of felony than some forms of rape or robbery, as when the assailant voluntarily releases the kidnapped victim alive and in a safe place. Consequently, there is less chance for an abuse of discretion, than exists in other states, where the decision rests with an overzealous prosecutor. However, our State prosecutors are allowed a certain amount of discretion and sometimes criminal conduct requires pursuing a higher grade of felony where the...
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