This is an appeal from a conviction for aggravated kidnapping. TEX.PENAL CODE ANN. § 20.04(a)(5) (Vernon 1974). It is a companion case to Miguel Arevalo v.State, 749 S.W.2d 271 (Tex.App. 1988).
During the first phase of the trial the jury found the appellant guilty of aggravated kidnapping and further found that he did not voluntarily release the victim alive and in a safe place. Appellant's punishment was assessed by the jury at twenty-five (25) years' confinement and a fine of $10,000.00.
In four points of error appellant complains of the charge submitted to the jury during the guilt-innocence phase, of prosecutorial misconduct during voir dire, and of the court's refusal to accept proffered mitigation testimony during the punishment phase. He does not complain of the sufficiency of the evidence. We affirm the judgment of conviction.
In his initial point of error appellant contends that the jury charge as submitted was defective in that it did not call for a separate finding on whether or not the victim was released alive and in a safe place. In his second point of error appellant complains that the charge gave the State two opportunities for obtaining a conviction for aggravated kidnapping.
The challenged paragraphs in the charge read as follows:
Now if you find from the evidence beyond a reasonable doubt that on or about the 7th day of March, 1986, in Webb County, Texas, the defendant SIMON AREVALO, did then and there knowingly abduct another person, to-wit: Guadalupe Martinez and without Guadalupe Martinez's consent did then and there restrain Guadalupe Martinez with intent to prevent liberation of Guadalupe Martinez by secreting and holding him in a place where he was not likely to be found with the intent to terrorize the said Guadalupe Martinez and you further find beyond a reasonable doubt that the defendant did not voluntarily release Guadalupe Martinez alive and in a safe place, you will find the defendant guilty of the offense of Aggravated Kidnapping and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of aggravated kidnapping and proceed to consider whether the defendant is guilty of a lesser included offense of aggravated kidnapping.
Now if you find from the evidence beyond a reasonable doubt that on or about the 7th day of March, 1986, in Webb County, Texas, the defendant SIMON AREVALO, did then and there knowingly abduct another person, to-wit: Guadalupe Martinez and without Guadalupe Martinez's consent did then and there restrain Guadalupe Martinez with intent to prevent liberation of Guadalupe Martinez by secreting and holding him in a place where he was not likely to be found with the intent to terrorize the said Guadalupe Martinez and you further find beyond a reasonable doubt that the defendant did voluntarily release Guadalupe Martinez alive and in a safe place you will find the defendant guilty of the lesser included offense of aggravated kidnapping and so say by a verdict; but if you do have a reasonable doubt thereof, you will acquit the defendant of the lesser included offense of aggravated kidnapping and proceed to consider whether the defendant is guilty of the lesser included offense of kidnapping.
Though there are obvious imperfections in the above charge, we can only consider *Page 280 those errors preserved below by objection or special requested instruction, TEX.CODE CRIM.PROC.ANN. arts. 36.14 36.15, or errors so egregious that the appellant was deprived of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).
Appellant's attorney adopted the objections voiced by the counsel for co-defendant Miguel Arevalo. They were merely repetitive of appellant's objections dictated to the reporter. Appellant complains that incorporating the issue of voluntary safe release of the victim into paragraphs V and VI "doesn't track the indictment . . . and adds an additional element to the indictment in the charge . . . It provides the State . . . with two shots at the defendant." The appellant argued that the jury should be instructed to make a separate finding on release of the victim apart from the finding of guilt and referred the court to appellant's proposed charge.
The proposed charge instructed the jurors to make a separate finding on voluntary safe release of the victim. The proposed charge was basically flawed in that it only addressed the offense of kidnapping, whereas the appellant was charged with aggravated kidnapping.
No criminal defendant has a right to have a special issue submitted except in a capital case. Stewart v. State,686 S.W.2d 118, 124 (Tex.Crim.App. 1984). The request for a separate finding on voluntary safe release was properly denied. The argument that including the safe release issue in paragraphs V and VI did not track the indictment and added an element to the offense is without merit. The safe release issue is not an element that must be plead. Smith v.State, 541 S.W.2d 831, 838 (Tex.Crim.App. 1976). It is a fact issue mandated by TEX.PENAL CODE ANN. § 20.04(b) requiring a finding by the trier of fact. Thornbury v.State, 699 S.W.2d 918, 921 (Tex.App. — Houston [1st Dist.] 1985, no pet.).
The additional argument that the charge as submitted gave the State two opportunities to convict for aggravated kidnapping is also meritless. The charge, though awkward, gave the jury one opportunity to return a general verdict of guilty of aggravated kidnapping with a finding that the appellant did not voluntarily release the victim. The next paragraph gave the jury the alternative opportunity to return a general verdict of guilty of aggravated kidnapping with a finding that the appellant did voluntarily release the victim.1
Though there are no Texas cases reversing an aggravated kidnapping case for submitting the issue of voluntary safe release during the guilt phase of the trial, since the issue relates only to punishment, the far better practice would be to submit the issue during the punishment phase. See Brazilev. State, 497 S.W.2d 302, 304 (Tex.Crim.App. 1973) (Issue of malice in a murder trial). In Wright v. State,571 S.W.2d 24, 25 (Tex.Crim.App. 1978) the Court of Criminal Appeals approved in substance a charge submitting the issue in the jury charge on punishment. This authority was followed inThornburg v. State, supra and Williams v.State, 718 S.W.2d 772, 773 (Tex.App. — Corpus Christi 1986, pet. granted). The appellant here did not object to the submission during the guilt phase, only that there was no separate submission.
Since the jury verdict stated that they found the appellant guilty of aggravated kidnapping and further found beyond a reasonable doubt that the appellant did not voluntarily release the victim alive and in a safe place, no harm amounting to reversible error is shown. Almanza v. State, supra. We conclude beyond a reasonable doubt that the error urged made no contribution to the conviction or the punishment. The first and second points of error are overruled.
In his third point of error appellant contends that the prosecutor's comments during voir dire that the victim was not present due to intimidation by appellant *Page 281 prevented appellant from selecting a fair and impartial jury.
The following colloquy occurred during the general voir dire of the jury panel:
MR. CZAR (Attorney for appellant): Now, part of the right we all have, also, is the right to confront our accusers. In other words, the State will have to bring the accusers in to confront the defendant so the defendant has a chance to see his accusers in court.Now, you all saw here today they're not here today. We don't know if they're here; we don't where —
MR. RIOS (State's attorney): Objection, Your Honor.
THE COURT: Sustained
MR. RIOS: He know why he was here —
(Judge using gavel)
MR. RIOS: We ask the court to instruct the jury. He knows the purpose, reason, because of intimidation, Your Honor.
THE COURT: All right, counsel. That's a misstatement.
MR. CZAR: Your Honor, we ask that that — that the panel be asked to strike that response by the Assistant D.A. at this time, Your Honor, and we move for a mistrial at this time.
THE COURT: Mistrial is denied.
MR. ALVA (co-defendant's attorney): We join in that Motion, Your Honor.
THE COURT: Denied. All right. Let me advise the panel. The State has announced ready, that they're ready to go. They do not have to have their witnesses at this point. They told you who those witnesses are; that is enough. That is sufficient within the law, and they told you they're ready to go. Let's not state it, counsel. Let's go on.
MR. CZAR: As I stated to you, the victims are not present here today, and therefore the defendant's do not have the right on this occasion to meet —
MR. RIOS: Objection, Your Honor. Again, he's —
MR. CZAR: — the persons accusing.
THE COURT: All right, sustained, counsel. There's no right of confrontation at this time. Now let's go on.
In our opinion the point of error is without merit, and the trial court did not err in failing to grant a mistrial. Appellant has failed to show harm; he points out nowhere in the record where he was tried by an unfair jury as a result of the prosecutor's comments. Further, we refuse to conclude that the prosecutor referred to the absence of the complainant as due to intimidation by appellant or any other person. The prosecutor's only comment was that there was intimidation of someone. The prompt instruction by the court cured any possibility of harmful error. Campos v. State, 589 S.W.2d 424, 428 (Tex.Crim.App. 1979).
In his final point of error, appellant contends that the court erred in refusing to permit testimony of appellant's relatives which was proffered by appellant during the punishment phase concerning appellant's "desire, potential and ability to rehabilitate." Appellant has failed to show how the exclusion of the testimony prejudiced or biased the jury assessment of punishment. The point of error is overruled.
The judgment of conviction is affirmed.