Texas Penal Code § 20.04 – Aggravated Kidnapping in Texas

What is Aggravated Kidnapping in Texas?

Kidnapping becomes aggravated kidnapping when the person abducts another and uses or exhibits a deadly weapon. The abduction may also be aggravated kidnapping if the person intends to hold the victim as a hostage or for ransom, to terrorize or sexually violate the victim, or to facilitate committing another felony or interfere with any governmental or political function.

WHAT IS THE AGGRAVATED KIDNAPPING LAW IN TEXAS?

Tex. Penal Code § 20.04. AGGRAVATED KIDNAPPING.

(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.

(b) A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.

(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

WHAT IS THE PENALTY CLASS FOR AGGRAVATED KIDNAPPING IN TEXAS?

Aggravated kidnapping is a first degree felony, punishable by five to 99 years or life in prison, and up to a $10,000 fine. If a person is convicted, but shows he voluntarily released the victim to a safe place, the punishment range may be reduced to a second degree felony, punishable by two to 20 years in prison.

WHAT IS THE PUNISHMENT RANGE FOR AGGRAVATED KIDNAPPING IN TEXAS?

Aggravated kidnapping punished as a first degree felony carries five to 99 years or life in prison, and a maximum fine of $10,000. If the judge or jury finds the defendant voluntarily released the victim to a safe place, the offense may be punished as a second degree felony, with a prison sentence between two and 20 years, and a maximum fine of $10,000.

• Does a person charged with aggravated kidnapping face automatic life in prison? Under certain circumstances, a conviction for aggravated kidnapping with intent to sexually violate the victim carries an automatic life sentence. The sentence is automatic life if the person convicted of aggravated kidnapping has been previously convicted of:

• Sexual Performance by a Child;
• Possession or Promotion of Child Pornography;
• Trafficking of persons, if the victim is under 18, and the trafficking was for sexual purposes;
• Obscenity, if the obscene visual material depicts a child under 18;
• Indecency with a Child
• Continuous Sexual Abuse of Young Child or Disabled Individual;
• Sexual Assault;
• Aggravated Sexual Assault;
• Prohibited Sexual Conduct; 
• Burglary of a habitation, if the person intended to commit one of the listed offenses above during the burglary.

WHAT ARE THE PENALTIES FOR AGGRAVATED KIDNAPPING IN TEXAS?

A person charged with aggravated kidnapping may be eligible for probation after a conviction, or deferred adjudication without a conviction, in limited circumstances. The period of community supervision, if granted, will be between five and ten years.

• What is probation eligibility for aggravated kidnapping? A judge may not grant probation to a person convicted of aggravated kidnapping. A jury who finds a person guilty of aggravated kidnapping may recommend the defendant be placed on community supervision if:

• the jury assesses a prison term of ten years or less;
• the victim was older than 13; and 
• the defendant did not intend to sexually violate the victim.

• Is a person charged with aggravated kidnapping eligible for deferred adjudication? A person charged with aggravated is eligible for deferred adjudication after a plea of guilty or nolo contendere (“no contest”) to a judge, for a maximum period of ten years.

WHAT ARE THE DEFENSES TO AGGRAVATED KIDNAPPING IN TEXAS?

The justification defenses, such as necessity and defense of a third person, may be raised during an aggravated kidnapping trial, most commonly when a parent is accused of kidnapping his or her child.

• What if a former spouse kidnaps a shared child? Contentious child custody disputes and violations of custody orders may occasionally lead to kidnapping allegations, but the affirmative defense in the kidnapping statute often discourages the prosecution of such allegations. If a parent does not threaten the child or use deadly force, and there is a possibility the parent was assuming lawful custody at the time, there is a strong chance he or she will prevail over a kidnapping charge. However, if a parent violates a court order by taking unlawful custody of a child, he or she may be charged with aggravated kidnapping to facilitate the commission of interference with child custody.For example, a mother fled with her son to Mexico after the child’s father was awarded sole managing conservatorship. The mother and child were apprehended three years later, and she claimed at trial that taking her son was necessary to protect him. She proffered evidence that, years prior, her son was sexually abused by the father’s family. However, both the trial court and appellate court rejected this defense, explaining that there was no “emergency situation necessitating a split-second decision made without time to consider the law.” Dewalt v. State, 307 S.W.3d 437 (Tex. App.—Austin 2010, pet. ref’d).

• What is a “safe place” to leave the victim in an aggravated kidnapping? An accused on trial for aggravated kidnapping may attempt to prove by a preponderance of the evidence that he or she voluntarily released the victim to a safe place. If proved, the offense becomes punishable as a second degree felony, rather than a first degree felony. Whether the victim’s ultimate location is a “safe place” may be determined by: (1) the remoteness of the location; (2) the proximity of help; (3) the time of day; (4) the climate; (5) the victim’s condition; (6) the character of the location and surrounding neighborhood; and (7) the victim’s familiarity with the location or neighborhood.To illustrate, a defendant took a nine-year-old girl in the early morning hours as she was walking to her bus stop. He threatened to cut her with a knife if she screamed, and kept her in his apartment closet with her hands bound for eight hours. He then took her back to the site of the kidnapping and released her, but kept her phone. The jury rejected his affirmative defense, and sentenced him to life. The CCA affirmed; there was no one around, the victim had no phone, and was where she was abducted. The evidence supported the jury’s rejection of the affirmative defense. Butcher v. State, 454 S.W.3d 13 (Tex. Crim. App. 2015).

WHAT IS THE STATUTE OF LIMITATIONS FOR AGGRAVATED KIDNAPPING IN TEXAS?

The limitation period for aggravated kidnapping, a first degree felony, is five years. If the victim was younger than 17 years old at the time of the offense, and the person intended to sexually violate the victim, the limitation period is 20 years from the victim’s 18th birthday.

AGGRAVATED KIDNAPPING IN TEXAS

A person commits aggravated kidnapping by restraining another with the intent to secrete or hold the victim where the victim is not likely to be found, with additional aggravating factors, such as using a deadly weapon, or holding the victim for ransom, or to sexually abuse or terrorize the victim. The punishment for a first degree felony aggravated kidnapping conviction may be reduced to the second-degree felony range of two to 20 years in prison if the accused proves he or she voluntarily released the victim in a safe place.

TEXAS AGGRAVATED KIDNAPPING COURT CASES

The case law regarding aggravated kidnapping in Texas shows the intent to hold the victim in a place where he or she is unlikely to be found may be formed at any time during the abduction.

A defendant was with his ex-girlfriend, the victim, at his home. She decided she wanted to leave, but he took her phone and keys, and began hitting her. He then forced her into her car, and drove her around Houston with the car doors locked, refusing to let her go. The defendant threatened to drive off a bridge, but the victim jumped out in slow traffic. The defendant was convicted of aggravated kidnapping with intent to inflict bodily injury or terrorize the victim. The appellate court affirmed; the jury could infer the defendant intended to move the victim to a place where she was not likely to be found. Renfro v. State, No. 01-21-00292-CR (Tex. App—Houston [1st Dist.] Aug. 25, 2022, pet. ref’d).