Kidnapping in Texas
Kidnapping in Texas is a third degree felony offense that occurs when a person intentionally or knowingly abducts another person. Tex. Penal Code §20.03. The distinction between unlawful restraint (a misdemeanor) and kidnapping (a 3rd Degree felony) and aggravated kidnapping (a 1st or 2nd degree felony) in Texas creates a lot of confusion.
Kidnapping requires that the person be “abducted.” The term “abduct” means to restrain a person, with the intent to prevent his or her liberation, by either (1) secreting or holding the person in a place where he or she is not likely to be found, or (2) using or threatening to use deadly force. Tex. Penal Code §20.01(2).
There is no requirement under the Texas kidnapping statute that the State prove the defendant moved the victim a certain distance before one can be found guilty of kidnapping.
What is the difference between Kidnapping and Unlawful Restraint in Texas?
Kidnapping in Texas requires a person to intentionally or knowingly abduct another person. Unlawful restraint in Texas requires a person to intentionally or knowingly restrain another person. The difference between being abducted (kidnapped) and illegally restrained depends on if (1) deadly force was threatened or used or (2) there was an intent to secret the person in a place they were not likely to be found.
The term “abduct” means to restrain a person, with the intent to prevent his or her liberation, by either (1) secreting or holding the person in a place where he or she is not likely to be found, or (2) using or threatening to use deadly force. Tex. Penal Code §20.01(2).
The term “restrain” means to restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, either by moving the person from one place to the another or by confining the person. Tex. Penal Code §20.01(1).
Restraint is without consent if it is accomplished by force, intimidation or deception or if the victim is a child under 17 years old and the parent or other person with legal authority did not agree to the movement or confinement. Tex. Penal Code §20.01(1).
What are examples of kidnapping in Texas?
Examples of kidnapping in Texas include the use of force to take a person some distance away from the area they might be reasonably found and kept isolated from anyone who might be of assistance.
Factors that are considered in determining whether someone has been abducted for purposes of the kidnapping statute in Texas include: (1) the distance, (2) whether the abducted person was isolated away from anyone who might be of assistance, (3) how well the abducted person knows the area, (4) how likely the abducted person is to be found.
Kidnapping charges in Texas can also vary depending on severity; learn more about aggravated kidnapping in Texas here.
Can you kidnap an unborn child in Texas?
You can not be charged with kidnapping an unborn child in Texas. However, you can be charged with murdering an unborn child in Texas. The distinction is in how Texas defines the terms “person” and “individual”.
Texas law distinguishes between the term “individual” and “person.” The Texas kidnapping statutes use the term “person.” A “person” is defined as a “human being who has been born and is alive”. This means the Texas kidnapping statutes do not apply to a fetus or unborn child and you can not be charged with kidnapping an unborn child in Texas.
Alternatively, though, Texas defines the term “individual” to include an unborn child at every state of gestation from fertilization to birth. This means that a defendant can be charged with homicide for murdering an unborn child.
Therefore, if a defendant kidnaps a pregnant woman it will only count as one kidnapping, but the murder of a pregnant woman would count as two murders.
How to Defend Against a Kidnapping Charge in Texas?
It is an affirmative defense to kidnapping in Texas if the abduction was not coupled with the intent to use or threaten to use deadly force, the actor was a relative of the person abducted, and the actor’s sole intent was to assume lawful control of the victim.
In reality this affirmative defense coincides with a parent’s right to discipline a child. There will be few other instances in which the actor has the right to assume lawful control of the victim. A possible exception, however, may be if the actor is appointed the legal guardian of a relative that has been declared incapacitated or not mentally competent by the courts.
Additionally, if you are inclined to take a plea of any kind to an accusation of kidnapping, you should first attempt to see if the State of Texas will reduce or refile the kidnapping charge (a felony) to unlawful restraint (a misdemeanor).
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Attacking the Indictment for Kidnapping Charges in Texas
The indictment for kidnapping charges in Texas should be heavily scrutinized to ensure the accused has proper notice as to what he or she is being asked to defend against.
Specifically, the accused is entitled to know the asserted method of restraint and whether the State is accusing the defendant of restraining the person by “moving” the victim or by “confining” the victim.
Additionally, the accused is entitled to know the asserted method of abduction and whether the abduction involved secreting the person or deadly force.
Can you get a finding of family violence for a kidnapping case in Texas?
Yes, if you are a family or household member or in a dating relationship with the alleged victim, you can be tagged with a finding of family violence for a kidnapping case in Texas. Findings of family violence can have devastating effects on you for the rest of your life.
The kidnapping statute in Texas is located under Title 5 of the Texas Penal Code. All offenses located under Title 5 of the Texas Penal Code are subject to findings of family violence by the court once the defendant pleads no contest or guilty or is found guilty at trial.
If you are concerned about housing, custody of your kids, employment, or the right to bear arms. You must take your case seriously and retain a qualified local criminal defense attorney to defend you against the complications that stem from a finding of family violence.
Also, remember that once you have a finding of family violence all subsequent family violence cases will start out as a third degree felony and can be increased to a higher level of felony offense depending on the facts of the new case.
What do I do if I am charged with kidnapping in Texas?
If you are facing a kidnapping charge in Texas, make sure you retain a local board certified criminal defense attorney right away to help defend you.
Kidnapping charges have serious consequences. It is important for you to understand your rights and to structure a strategic defense to prevent you serving prison time.
Contact Soyars & Morgan Law to make sure your rights and your freedom are protected. We provide free consultations, call us today at (210) 390-0000 to make sure you are doing everything possible to help your defense.