Because the majority refuses to follow the "gist of the offense theory" approved in both Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App. 1976), and Clark v. State, 558 S.W.2d 887 (Tex.Cr.App. 1977), I must dissent.
It is petitioner's contention that the indictment under which he was charged is fundamentally defective for failing to allege that he "intentionally or knowingly abducted" the alleged victim. The pertinent portions of the indictment allege that:
*Page 916". . . JEREL LYNN KENNEDY hereinafter styled Defendant, on or about the 26 day of November in the year of our Lord One Thousand Nine Hundred and 79 in the County and State aforesaid, did unlawfully, then and there with intent to prevent the liberation of Carey Earle and without her consent, did restrain said Carey Earle by holding her in a place by using deadly force, to-wit: a shotgun, on
said Carey Earle, with intent to terrorize the said Carey Earle."
V.T.C.A. Penal Code, Section 20.04, provides, in part:
"(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."
Further, V.T.C.A. Penal Code, Section 20.01, provides:
" * * *
"(2) 'Abduct' means to restrain a person with intent to prevent his liberation by:
"(A) secreting or holding him in a place where he is not likely to be found; or
"(B) using or threatening to use deadly force."
The contention made here is not unlike that made by the appellant in Teniente v. State, supra. There it was argued that the indictment for burglary was fundamentally defective for failure to allege a knowing or intentional entry. In overruling appellant's contention, this Court wrote:
"The conduct that is the gist of the offense or burglary in this case is the entry into the habitation with the requisite intent. The indictment alleges the culpable mental state with which the appellant entered the habitation; it alleges he entered the habitation 'with the intent to commit theft.' " Teniente v. State, supra.
Similarly, the indictment in the case at bar, which alleged the "abduction" in terms of the statutory definition of Section 20.01(2), supra, alleges the "restraint" was "with intent to prevent the liberation" of the victim. Such an allegation is equivalent to an allegation that petitioner "intentionally abducted" the victim. See Clark v. State, supra.
Finally, V.T.C.A. Penal Code, Section 6.03(a), provides:
"A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." (Emphasis added)
The indictment before us sufficiently alleges that the petitioner engaged in conduct (restrain) with intent to cause the result (prevent[ing] the liberation of the victim).
The mere citation of Ex parte Santellana, 606 S.W.2d 331 (Tex.Cr.App. 1980), by the majority is not, despite assertion to the contrary, "enough" to grant relief. I fail to perceive how the majority arrives at the conclusion thatSantellana controls the instant case. Santellana held that two criminal acts were implicit in the definition of aggravated robbery, to wit: a theft, whether attempted, in progress or completed, and an assault. There are no two criminal acts implicit in the definition of aggravated kidnapping as charged in the instant indictment.
ROBERTS and DALLY, JJ., join in this dissent. *Page 917