Affirmed and Majority and Concurring Opinions filed September 27, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00764-CR
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CHRISTOPHER LEE KENNY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183RD District Court
Harris County, Texas
Trial Court Cause No. 1077292
C O N C U R R I N G O P I N I O N
I disagree with the Majority Opinion=s conclusion that the evidence was legally insufficient to prove an intent to prevent liberation by secretion because the victim=s own residence could not be, or was not, a place where she was not likely to be found.
As relevant to this issue, the abduction element of kidnaping means to restrain a person with the intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found. See Tex. Pen. Code Ann. ' 20.01(2)(A) (Vernon Supp. 2006), ' 20.03(a) (Vernon 2003). Importantly, the secreting or holding of the victim in a place where she is not likely to be found is solely part of the intent element, not the conduct element. See Brimage v. State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994). Therefore, it is not necessary for the State to prove that a restraint is accomplished by secreting or holding the victim in such a place, but only that a restraint occurred, and the defendant evidenced an intent to prevent liberation in that manner. Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995); Brimage, 918 S.W.2d at 476. Rather, when a defendant keeps a person isolated with an intent to prevent the victim=s liberation by anyone who might be capable of helping the victim, abduction is proven, and Athe claim that the person was not held in a place where the person was not likely to be found is of no importance.@ Wilson v. State, 863 S.W.2d 59, 66 (Tex. Crim. App. 1993).
In this case, the evidence showed that appellant forced the complainant into his pickup truck, bound her, and took her to their home where he restrained and assaulted her. This evidence is sufficient to prove appellant=s intent to prevent the complainant=s liberation by anyone capable of helping her, regardless of the location. See, e.g., People v. Pasch, 604 N.E.2d 294 (Ill. 1992)(noting that a person can be secretly confined as effectively in her own home as in a remote and isolated location). The Majority=s interpretation that someone can be kidnaped in his own home only with an intent to use deadly force, and not an intent to secret, is not indicated by the statutory language or case law and produces an absurd result. Therefore, I would overrule appellant=s challenge to the sufficiency of the evidence to prove a restraint with intent to prevent liberation by secreting or holding the complainant in a place where she was not likely to be found.
/s/ Richard H. Edelman
Senior Justice
Judgment rendered and Majority and Concurring Opinions filed September 27, 2007.
Panel consists of Justices Yates, Seymore, and Edelman.* (Yates, J., majority)
Publish C Tex. R. App. P. 47.2(b).
* Senior Justice Richard H. Edelman, sitting by assignment.