dissenting.
I respectfully dissent. The original opinion (see J. Peeples’ dissent) correctly decided this appeal.
The conviction in this case is for aggravated kidnapping (not sexual assault). The statute provides, as relevant to the present case:
*647(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
(4) ... violate or abuse him sexually.
(b) An offense under this section is a felony of the first degree unless the actor voluntarily releases the victim alive and in a safe place, in which event it is a felony of the second degree.
TEX.PENAL CODE ANN. § 20.04 (Vernon 1989). The elements of aggravated kidnapping, as relevant to the instant case, are that a person:
(1) intentionally or knowingly
(2) abducts
(3) another person
(4) with the intent to violate or abuse the person sexually.
Phillips v. State, 597 S.W.2d 929, 932 (Tex.Crim.App.1980). Further, the kidnapping statutes define “abduct:”
In this chapter:
* * * * * *
(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; ...
TEX.PENAL CODE ANN. § 20.01 (Vernon 1989). The indictment in this case alleges, in pertinent part, that appellant did
... knowingly and intentionally abduct [complainant], without her consent, with intent to prevent her liberation, by secreting and holding her in a place where she was not likely to be found, namely: on a dirt road approximately 3/io mile west of Intersection with Mendietta Road, the entrance to said dirt road being approximately Vio mile South of Intersection of El Toro Road and Mendietta Road, and with intent to violate and abuse the said [complainant] sexually.
The ultimate issue in any aggravated kidnapping case is abduction with the requisite specific intent, not whether sexual acts were committed or overtures made. Phillips v. State, 597 S.W.2d at 936. One’s acts are generally reliable circumstantial evidence of his intent. Id. However, they are not the only means of proof. Intent could as easily be shown by words, for example, “I am going to abduct and rape you.” Strictly construing the statute, an abduction with these accompanying words would be a completed aggravated kidnapping. If the abductor did not subsequently rape his captive, this would be relevant in evaluating the sufficiency of proof of intent. However, it would not preclude submitting the issue of aggravated kidnapping to the jury [T]he statute does not rely on acts, but intent, and acts can be probative evidence of such intent. Id. (all emphasis supplied) Thus, the aggravating factor was “ ‘with the intent to violate or abuse [complainant] sexually.’ ”
The majority inappropriately focuses upon the complainant’s consent to sexual intercourse. That is not the consent with which the factfinder must concern itself in a kidnapping case. The “without consent” requisite contained in “abduct”, which is an essential element of aggravated kidnapping, is altogether different. The “without consent” element in kidnapping is proved when the restraint, and not sexual intercourse, is accomplished by force. The complainant testified that she was forcibly pulled into the car after declining to join the men inside. She was not permitted to leave. She was taken without her consent to the isolated rural location. Thus, if the factfinder believed this witness, as it did, abduction had been proved. In addition, it must be proved to the factfinder beyond a reasonable doubt that at the time of the abduction, appellant had the specific intent to violate or abuse the complainant sexually. The aggravating circumstance which raises the level of culpability in this case is the specific intent at the time of the abduction. Premising its reasoning on the complainant’s alleged consent to sexual intercourse, the majority erroneously ignores the requirements of the aggravated kidnapping statute. The required element of want of consent modifies abduction, which had already been established. It was not whether she consented to sexual intercourse once she was secreted at the rural location.
*648The complainant testified she was taken against her will to the isolated location (“abducted without consent”) where clandestine cockfights were conducted. Immediately several men, including appellant, began committing sexual abuses upon complainant. It would not be necessary that appellant actually have sexual intercourse with the complainant. The essential elements of “abduct” and “the intent to violate or abuse her sexually” were proved to the satisfaction of the jury, which had been instructed on the elements of the offense of aggravated kidnapping ... not aggravated rape.
The en banc opinion would improperly allow specific unrelated acts of misconduct of the complainant subsequent to this offense to be shown to the jury. The original opinion (now J. Peeples’ dissent) correctly decides this point and notes that the rules of evidence do not permit such evidence. This would serve only to mislead and confuse the factfinder.
The original opinion (now J. Peeples’ dissent) properly sets out the law in this case. The question whether an allegedly unchaste female can bé the subject of aggravated kidnapping requires an affirmative answer. The en banc opinion should be reversed. For these reasons, I respectfully dissent.