Fann v. State

696 S.W.2d 575, 1985 Tex. Crim. App. LEXIS 1410

• Court: Court of Criminal Appeals of Texas
• Decided: July 24, 1985
• Docket: 65785
• Status: Published

Opinions

OPINION

McCORMICK, Judge.

Appellant was convicted of kidnapping and sentenced to a term of five years’ confinement.

In two grounds of error, appellant argues that the evidence is insufficient to sustain a conviction for kidnapping in that there is no evidence to show that the victim, DeRhonda Bacak, “was at any time secreted or held in a place where she was not likely to be found.”

The indictment in accordance with V.T. C.A., Penal Code, Section 20.03(a), alleged that appellant did:

“intentionally and knowingly abduct another person, namely: DeRhonda Marie Bacak.”

V.T.C.A., Penal Code, Section 20.01, reads in pertinent part:

“In this chapter:

“(1) ‘Restrain’ means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Restraint is ‘without consent’ if it is accomplished by:

“(A) force, intimidation, or deception; or

“(B) any means, including acquiescence of the victim, if he is a child less than 14 years of age ...

“(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; or

“(B) using or threatening to use deadly force.”

The trial court charged the jury that they could convict appellant if they found that he restrained the victim “by moving her from one place to another or by confining her ... or holding her in a place where she was not likely to be found....”

The evidence showed that the victim of the kidnapping, a sixteen month old infant, along with her mother, was abducted sometime after 9:00 p.m. while visiting the grave of a deceased brother. They were forcibly driven away from the cemetery and around other parts of the city. The evidence reveals a constantly shifting path throughout the City of Irving. The victims were taken some distance from the area in which they might reasonably have been found and were kept isolated from anyone who might have been of assistance. They were later returned to the cemetery by appellant. Viewing the evidence in the light most favorable to the verdict, we find that this forcible removal against their will and the taking of them to some other, unknown places was sufficient for the jury to conclude that the offense was committed as charged to them in the court’s instructions, and is sufficient to support their verdict.

Appellant also asserts for the first time that the indictment did not adequately give him notice of the offense charged in that it did not define “abduct”. No motion to quash was filed.

A similar contention was made in Pollard v. State, 567 S.W.2d 11 (Tex.Cr. App.1978), an aggravated kidnapping case. This Court held that although the indictment did not define “abduct”, it was legally sufficient to state an offense. We agree. The indictment is not fundamentally defective. See also Sanders v. State, 605 S.W.2d 612 (Tex.Cr.App.1980); Ex parte Pousson, 599 S.W.2d 820 (Tex.Cr.App. 1980).

Appellant’s grounds of error are overruled and the judgment is affirmed.

MILLER, J., concurs in result. CLINTON, J., not participating.