dissenting.
There is amply sufficient proof that the victim was subjected to hideously horrendous violent physical abuse that led to his death and that Cynthia Ann Hudson was the person who perpetrated that treatment. Because of the degree and length of the various means of physical abuse administered to the child by his mother, Hudson, the jury could certainly rationally infer the requisite mens rea to convict Hudson of murder. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995).
The problem in this case lies with the proof necessary to meet all of the elements of capital murder. Here, the State alleged (and the jury found) that the murder of the child occurred in the course of “committing or attempting to commit kidnapping.” Tex. Penal Code Ann. § 19.03(a)(2) (West 2011).
The Due Process Clause of the United States Constitution protects a person from conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Byrd v. State, 336 S.W.3d 242, 246 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Therefore, in order to prove capital murder as charged here, it was necessary for the State to prove all of the elements of kidnapping, a crime encapsulated in the capital murder charge. As the majority correctly notes, under the charges leveled against Hudson, the only way the State could prove kidnapping was to prove that Hudson restrained her victim with the intent to prevent his liberation by using or threatening to use deadly force. Tex. Penal Code Ann. § 20.01(2)(B) (West 2011).
It would appear that in order to prove the requisite mens rea, the State had the obligation to show that at least some of the threatened or applied deadly force existed as the result of Hudson’s intention of preventing her victim’s liberation. Laster v. State, 275 S.W.3d 512, 521 (Tex.Crim.App.2009); Brimage v. State, 918 S.W.2d 466, 475-76 (Tex.Crim.App.1994). All of the evidence in this case pointed to the fact that the deadly force was threatened and (brutally) applied with a different objective than prevention of the victim’s liberation in mind: to somehow purge the boy from feelings of lust or to convince him to remove that lust from himself. As stated before, there is overwhelming evidence that force was used against the child, resulting in death. There is, however, simply no evidence from which the jury could rationally infer that the sickeningly, deadly, and lengthy force employed by Hudson was done with the intention of preventing the child’s liberation. There was plainly another motive — the intention to exorcise the feelings of lust which Hudson apparently believed to have been residing in the child. It is too great a step for the jury to have reasonably inferred from the evidence that the deadly force visited on the child by Hudson was prompted by her intention to prevent his liberation.21 As such, the causal relationship between the deadly force applied and the intention to prevent the child’s liberation are lacking.
*894The sole element upon which the State relies to elevate Hudson’s crime from murder to capital murder is the kidnapping element. Although it would appear that there was ample evidence to prove murder, the evidence is legally insufficient to prove that Hudson committed the murder during a kidnapping, the requisite element here of capital murder.
. The trial court gave the jury a most unusual instruction: “You are instructed that in this case, you may find the defendant ... guilty of kidnapping only if you find beyond a reasonable doubt that the said defendant accomplished the kidnapping, if she did, by binding the hands and legs of [the victim] with plastic zip ties, and in no other manner.” It would appear from this that the trial court likewise did not tie the deadly force to an intention to prevent liberation.