I would reverse the judgment of conviction.
In his initial point of error and in his second point of error appellant contends that the jury charge as submitted over his timely objection was defective and denied him a fair and impartial trial. In support of his contention appellant alleges that the charge as submitted gave the State two opportunities for obtaining a conviction of aggravated kidnapping and wrongfully made the issue of whether or not the complainant was released alive and in a safe place by appellant an element of the offense of aggravated kidnapping. I agree with appellant and would sustain his points of error numbers one and two. *Page 282
The complained of paragraphs read as follows:
V.
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.VI.
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.
There is no lesser included offense of aggravated kidnapping to aggravated kidnapping as erroneously stated by the trial court in application paragraphs V and VI. TEX.PENAL CODE §20.04(b) provides that the crime of aggravated kidnapping is a first degree felony. It further provides for a reduction of punishment by declaring the crime of aggravated kidnapping to be second degree felony if the kidnapper "voluntarily releases the victim alive and in a safe place." Even though this section differentiates between felony of the first degree and felony of the second degree by whether the victim was released alive and in a safe place we can not agree with the trial court that it creates the "lesser included offense of aggravated kidnapping." A lesser included offense is one composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense. BLACK'S LAW DICTIONARY 812 (5th ed. 1979). The elements of aggravated kidnapping are set out in section 20.04(a).
The submitted paragraphs, as worded, erroneously made the release of the victim alive and in a safe place an element of the offense of aggravated kidnapping. Paragraph V instructs the jury to find appellant guilty of aggravated kidnapping if they found, inter-alia, beyond a reasonable doubt that appellant "did not" voluntarily release the victim, Guadalupe Martinez, alive and in a safe place; paragraph VI instructs the jury to find appellant guilty of "the lesser included offense of aggravated kidnapping" if they found, inter-alia, beyond a reasonable doubt that appellant "did" voluntarily release Guadalupe Martinez, the victim, alive and in a safe place. Instruction number VI erroneously instructs the jury that if they "have a reasonable doubt" that the appellant did voluntarily release Guadalupe Martinez alive and in a safe place that they acquit the defendant of aggravated kidnapping. It is well settled that release of the victim alive and in a safe place is not an element of aggravated Page 283 S.W.2d 820, 823 (Tex.Crim.App. 1983). Accordingly, the court erred in submitting paragraphs V and VI as worded.
It is well settled that the automatic reversal rule for "fundamental error" in the court's charge to the jury has been abolished by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). Almanza held that if there was a timely objection to an erroneous charge, reversal is required if the error was "calculated to injure the rights of the defendant" which means no more than there must be some harm. In the instant case there was a timely objection to the charge as submitted. I have therefore looked at the entire charge and find it to mislead the jury in applying the law to the facts and to be of a very confusing nature; I have looked at the evidence presented, including the contested issue of whether or not the victim was released alive and in a safe place; I have looked at the argument of counsel and the entire record including the punishment assessed by the jury and can reach no conclusion other than that the defendant was harmed by the submission of the erroneous charge. Had the charge concerning release of the victim been properly submitted it is very possible that a different result could have been reached by the jury which would have definitely affected defendant's guilt or innocence and his punishment if any were to be assessed.1 I cannot conclude beyond a reasonable doubt that the error made no contribution to the conviction. TEX.R.APP.P. 81(b)(2). Appellant was denied a fair trial. Points of error one and two are sustained.
The judgment of conviction should be reversed and this cause remanded to the trial court for a new trial.
If you have found the defendant guilty beyond a reasonable doubt of the offense of aggravated kidnapping, and you further find beyond a reasonable doubt that the defendant did not voluntarily release (victim) alive and in a safe place you will so state in your verdict, but if you do not so believe or if you have a reasonable doubt thereof, you will find that the defendant did voluntarily release (victim) alive and in a safe place. M. McCORMICK T. BLACKWELL, TEXAS CRIMINAL FORMS AND TRIAL MANUAL § 94.03 (Texas Practice 1985).