Weaver v. State, 68125
| Decision Date | 28 September 1983 |
| Docket Number | No. 68125,68125 |
| Citation | 657 S.W.2d 148 |
| Parties | Joe Jay WEAVER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
A jury found appellant guilty of aggravated kidnapping and assessed punishment at life.
Appellant asserts three grounds of error. First, he contends that there is insufficient evidence to prove that at the time of the abduction, appellant had the requisite intent to violate or abuse the victim sexually. Second, appellant claims that the trial court erred in failing to include in its charge, definitions or instructions concerning the phrase "violate or abuse her sexually." Appellant's last ground of error concerns the court's refusal to allow issuance of subpoenas for out-of-state witnesses.
On May 22, 1978 appellant went to his stepson's house, where his stepson, D.G., his stepson's wife, B.G., and their four and one-half week old baby lived. After fifteen or twenty minutes of conversation, appellant pulled a butcher's knife from behind his back; forced his stepson to lie on the floor; and tied his hands and feet with electric cords that he took out of his pocket. Appellant repeatedly threatened to kill D.G. and B.G. Appellant forced B.G., at knife point, to go with him outside the house and then back inside, into the bedroom. Appellant fondled B.G. and forced her to take her clothes off and lie on the bed. Appellant took his pants off, lay on top of B.G. and told her "he was going to fuck me." At this point, B.G.'s husband managed to free himself and hit appellant several times with a softball bat. Appellant was arrested later that night.
Appellant asserts that V.T.C.A. Penal Code, § 20.04(a)(4) 1 "implies that the abduction must be coupled with the alleged intent," and that the evidence is insufficient to show any act or statement by appellant that would indicate that at the time the abduction occurred appellant had the requisite intent to violate or abuse the victim sexually.
Appellant, in essence, argues that the abduction occurred only at the exact time that he pulled the knife and that there is no evidence of intent to violate or abuse the victim sexually at that time.
Abduct "means to restrain a person with intent to prevent his liberation by: ... (B) using or threatening to use deadly force." V.T.C.A., Penal Code § 20.01(2).
Restrain means to restrict a persons' 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 it is accomplished by: (a) force, intimidation, or deception; ... V.T.C.A., Penal Code Section 20.01(1).
The evidence clearly demonstrates that appellant abducted and restrained B.G. by threats of deadly force. Appellant does not dispute the proof of abduction, rather he claims that the aggravating element of intent to violate or abuse sexually was not proved to be present at the time of abduction, which time he claims is at one specific moment. Appellant seems to claim that the time of abduction was only at the one moment when appellant pulled the knife and that the aggravating element, the intent, did not exist at that specific time. This argument seems analogous to the offense of burglary in which the required intent must exist at the time of entry. This argument is incorrect because abduction, unlike burglary, is a continuing offense. Recall the definitions of "abduct" and "restrain". A burglary is complete once entry is made with the requisite intent. The restraint in abduction does not necessarily "occur" only at one specific time. B.G. was restrained from the moment appellant pulled the knife, threatened her, and forced her to go to certain places within and outside the house. The abduction was a continuous, ongoing event. There is no time limit for abduction. Sanders v. State, 605 S.W.2d 612, 614 (Tex.Cr.App.1980). See the discussion of "seizure" and "detention" in Hardie v. State, 140 Tex.Cr. 368, 144 S.W.2d 571, 575 (Tex.Cr.App.1940).
The intent to violate or abuse B.G. sexually was proved by the testimony of B.G. and D.G. B.G. stated that appellant fondled her; forced her to undress; told her "that he had always wanted to do this ever since he had first seen me ..."; took off his pants and then fondled and lay on top of B.G. Appellant forced B.G. to do this at knife point accompanied by repeated threats of death. There is sufficient evidence to show the ongoing abduction together with the intent to violate or abuse sexually.
This ground of error is overruled.
In his second ground of error, appellant contends that the trial court erred in failing to include definitions or instructions in the charge to the jury concerning the phrase "violate or abuse her sexually."
Appellant acknowledges that this Court has answered this contention unfavorably to his position in Sanders v. State, supra, and Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980). Appellant invites this Court to overrule Phillips and Sanders. We decline the invitation.
This ground of error is overruled.
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