IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. AP-77,110
TAYLOR RENE PARKER, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. 20F1345-202 IN THE 202nd JUDICIAL DISTRICT COURT BOWIE COUNTY
WALKER, J., filed a concurring opinion in which SCHENCK, P.J., and RICHARDSON and PARKER, JJ., joined.
CONCURRING OPINION
Today, this Court affirms Appellant’s capital murder conviction. See Tex. Penal
Code Ann. § 19.03(a)(2). I write separately to highlight an important distinction within the
Penal Code regarding the two definitions for what constitutes an “individual.” See id. §§
1.07(a)(26), 20.01(5).
Appellant was convicted of capital murder under § 19.03(a)(2) for committing a 2
murder while committing or attempting to commit a kidnapping. See id. § 19.03(a)(2).
Kidnapping falls under Chapter 20 of the Penal Code. Id. §§ 20.01–20.07. A person
commits the offense of kidnapping when he “intentionally or knowingly abducts another
person.” Id. § 20.03(a). As the majority correctly notes, under the kidnapping provisions,
a “person” is an “individual.” Majority op. at 8; Tex. Penal Code Ann. § 20.01(4). The
kidnapping statute further defines what is an “individual,” specifically stating:
“Notwithstanding Section 1.07, ‘individual’ means a human being who has been born and
is alive.” Tex. Penal Code Ann. § 20.01(5).
The term “notwithstanding” should be emphasized. Generally, notwithstanding
means “in spite of” or “nevertheless.” Notwithstanding, BLACK’S LAW DICTIONARY (12th
ed. 2024) (“1. Despite; in spite of . . . ; 2. Not opposing; not availing to the contrary”);
Notwithstanding, Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/notwithstanding (last visited Oct. 16, 2025) (Prep. “despite”; adv.
“nevertheless, however”; conj. “although”). Thus, the statute signals that despite the
definition in § 1.07 of the code, an “individual” here, as applied only to the kidnapping
statute, means a person that has been “born and is alive.”
So, what does § 1.07 say, in that we should be ignoring it for kidnapping offenses?
Section 1.07 contains definitions that apply to the entire code. See Tex. Penal Code Ann. §
1.07(a). A “person” still means an “individual.” Id. § 1.07(a)(38). But an “individual” here
is “a human being who is alive, including an unborn child at every stage of gestation from
fertilization until birth.” Id. § 1.07(a)(26) (emphasis added). This definition is very
different from that in the kidnapping statute. Under the kidnapping statute, a person can 3
only commit an offense against another who has been born and is alive. On the other hand,
for all other criminal offenses committed against an “individual,” unless otherwise
specially designated, the code covers individuals both “born and alive” as well as all
“unborn children at every stage of gestation from fertilization until birth.”
The effect of the separate definitions is critical. For example, a person commits the
offense of murder when that person “intentionally or knowingly causes the death of an
individual.” Id. § 19.02(b)(1). Because an “individual” is not explicitly defined in the
murder statute, it follows the overall Penal Code definition. In other words, a person
commits murder when he intentionally or knowingly causes the death of “a human being
who is alive, including an unborn child at every stage of gestation from fertilization until
birth.” Id. §§ 1.07(a)(26), 19.02(b)(1). The same construction can be said for the offense
of manslaughter. Id. §§ 19.04(a); see Brown v. State, 303 S.W.3d 310, 318–19 (Tex. App—
Tyler 2009, pet. ref’d) (upholding dual intoxication manslaughter convictions for causing
death of pregnant mother and unborn child against a double jeopardy challenge). Even
capital murder can be sustained for the death of a pregnant mother. See Tex. Penal Code
Ann. § 19.03(a)(7)(A) (“the person murders more than one person . . . during the same
criminal transaction”); Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007)
(“It follows from these provisions that a person who intentionally or knowingly causes the
death of a woman and her unborn child, at any stage of gestation, commits capital
murder.”); see also, e.g., Estrada v. State, 313 S.W.3d 274, 279 (Tex. Crim. App. 2010)
(citing §§ 19.03(a)(7)(A) and 1.07(a)(26), explaining that “Appellant was convicted of
capital murder for murdering [a mother and her] thirteen-week-old unborn child.”). But the 4
same cannot be said for kidnapping. Because of the plain language of § 20.01(5), an
offender cannot be charged with two counts of kidnapping for abducting a pregnant mother.
See Tex. Penal Code Ann. §§ 20.01(5), 20.03(a).
With this in mind, how do these two definitions impact this case? The State charged
Appellant with capital murder for causing the death of Braxlynn’s mother, while in the
course of kidnapping or attempting to kidnap Braxlynn herself. Meaning, the evidence had
to show Appellant kidnapped Braxlynn while she was born and alive and not in gestation.
This makes the definition of “individual” under the kidnapping statute important here—it
was arguably the most contested issue in the case.
Further, the kidnapping statute’s definition of “individual” means we must set aside,
for the purposes of the kidnapping question, the general definition of “individual” that says
unborn children are people too. Because the statute limits which victims can be kidnapped,
proof of Braxlynn having been born and alive was essential. If this had not been the case,
if the State could have convicted Appellant for kidnapping or attempting to kidnap
Braxlynn whether she was “born and alive” or still in gestation, then the issue of whether
Braxlynn took her first breath would not have been determinative of the case. See Majority
op. at 22–26. Taking this into account, the evidence was sufficient to show, Braxlynn was
born and alive—undeniably a person and an individual. Id. Critically, one would not truly
see the dichotomy without keying in on the word “notwithstanding,” and how important
that word really is to lawyers.
The bench and the bar are prone to home in on “trigger” words like
“notwithstanding.” Law school teaches perspective lawyers to be wary of these modifiers. 5
And it would be imprudent for a practitioner to see a definition that uses words like
“notwithstanding” and not compare it to the referenced section. This is simple statutory
construction. But while those who have studied the law are aware of these flags, it does not
mean that members of the public are prone to that understanding as well.
The public may be better aided if the kidnapping statute more clearly signaled that
its definition of an “individual” is not the same as the definition of an “individual” as it
applies to the rest of the code. A more universally understood signal such as “despite” or
“regardless of” could be useful. But an added explanation clarifying the difference between
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. AP-77,110
TAYLOR RENE PARKER, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. 20F1345-202 IN THE 202nd JUDICIAL DISTRICT COURT BOWIE COUNTY
WALKER, J., filed a concurring opinion in which SCHENCK, P.J., and RICHARDSON and PARKER, JJ., joined.
CONCURRING OPINION
Today, this Court affirms Appellant’s capital murder conviction. See Tex. Penal
Code Ann. § 19.03(a)(2). I write separately to highlight an important distinction within the
Penal Code regarding the two definitions for what constitutes an “individual.” See id. §§
1.07(a)(26), 20.01(5).
Appellant was convicted of capital murder under § 19.03(a)(2) for committing a 2
murder while committing or attempting to commit a kidnapping. See id. § 19.03(a)(2).
Kidnapping falls under Chapter 20 of the Penal Code. Id. §§ 20.01–20.07. A person
commits the offense of kidnapping when he “intentionally or knowingly abducts another
person.” Id. § 20.03(a). As the majority correctly notes, under the kidnapping provisions,
a “person” is an “individual.” Majority op. at 8; Tex. Penal Code Ann. § 20.01(4). The
kidnapping statute further defines what is an “individual,” specifically stating:
“Notwithstanding Section 1.07, ‘individual’ means a human being who has been born and
is alive.” Tex. Penal Code Ann. § 20.01(5).
The term “notwithstanding” should be emphasized. Generally, notwithstanding
means “in spite of” or “nevertheless.” Notwithstanding, BLACK’S LAW DICTIONARY (12th
ed. 2024) (“1. Despite; in spite of . . . ; 2. Not opposing; not availing to the contrary”);
Notwithstanding, Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/notwithstanding (last visited Oct. 16, 2025) (Prep. “despite”; adv.
“nevertheless, however”; conj. “although”). Thus, the statute signals that despite the
definition in § 1.07 of the code, an “individual” here, as applied only to the kidnapping
statute, means a person that has been “born and is alive.”
So, what does § 1.07 say, in that we should be ignoring it for kidnapping offenses?
Section 1.07 contains definitions that apply to the entire code. See Tex. Penal Code Ann. §
1.07(a). A “person” still means an “individual.” Id. § 1.07(a)(38). But an “individual” here
is “a human being who is alive, including an unborn child at every stage of gestation from
fertilization until birth.” Id. § 1.07(a)(26) (emphasis added). This definition is very
different from that in the kidnapping statute. Under the kidnapping statute, a person can 3
only commit an offense against another who has been born and is alive. On the other hand,
for all other criminal offenses committed against an “individual,” unless otherwise
specially designated, the code covers individuals both “born and alive” as well as all
“unborn children at every stage of gestation from fertilization until birth.”
The effect of the separate definitions is critical. For example, a person commits the
offense of murder when that person “intentionally or knowingly causes the death of an
individual.” Id. § 19.02(b)(1). Because an “individual” is not explicitly defined in the
murder statute, it follows the overall Penal Code definition. In other words, a person
commits murder when he intentionally or knowingly causes the death of “a human being
who is alive, including an unborn child at every stage of gestation from fertilization until
birth.” Id. §§ 1.07(a)(26), 19.02(b)(1). The same construction can be said for the offense
of manslaughter. Id. §§ 19.04(a); see Brown v. State, 303 S.W.3d 310, 318–19 (Tex. App—
Tyler 2009, pet. ref’d) (upholding dual intoxication manslaughter convictions for causing
death of pregnant mother and unborn child against a double jeopardy challenge). Even
capital murder can be sustained for the death of a pregnant mother. See Tex. Penal Code
Ann. § 19.03(a)(7)(A) (“the person murders more than one person . . . during the same
criminal transaction”); Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007)
(“It follows from these provisions that a person who intentionally or knowingly causes the
death of a woman and her unborn child, at any stage of gestation, commits capital
murder.”); see also, e.g., Estrada v. State, 313 S.W.3d 274, 279 (Tex. Crim. App. 2010)
(citing §§ 19.03(a)(7)(A) and 1.07(a)(26), explaining that “Appellant was convicted of
capital murder for murdering [a mother and her] thirteen-week-old unborn child.”). But the 4
same cannot be said for kidnapping. Because of the plain language of § 20.01(5), an
offender cannot be charged with two counts of kidnapping for abducting a pregnant mother.
See Tex. Penal Code Ann. §§ 20.01(5), 20.03(a).
With this in mind, how do these two definitions impact this case? The State charged
Appellant with capital murder for causing the death of Braxlynn’s mother, while in the
course of kidnapping or attempting to kidnap Braxlynn herself. Meaning, the evidence had
to show Appellant kidnapped Braxlynn while she was born and alive and not in gestation.
This makes the definition of “individual” under the kidnapping statute important here—it
was arguably the most contested issue in the case.
Further, the kidnapping statute’s definition of “individual” means we must set aside,
for the purposes of the kidnapping question, the general definition of “individual” that says
unborn children are people too. Because the statute limits which victims can be kidnapped,
proof of Braxlynn having been born and alive was essential. If this had not been the case,
if the State could have convicted Appellant for kidnapping or attempting to kidnap
Braxlynn whether she was “born and alive” or still in gestation, then the issue of whether
Braxlynn took her first breath would not have been determinative of the case. See Majority
op. at 22–26. Taking this into account, the evidence was sufficient to show, Braxlynn was
born and alive—undeniably a person and an individual. Id. Critically, one would not truly
see the dichotomy without keying in on the word “notwithstanding,” and how important
that word really is to lawyers.
The bench and the bar are prone to home in on “trigger” words like
“notwithstanding.” Law school teaches perspective lawyers to be wary of these modifiers. 5
And it would be imprudent for a practitioner to see a definition that uses words like
“notwithstanding” and not compare it to the referenced section. This is simple statutory
construction. But while those who have studied the law are aware of these flags, it does not
mean that members of the public are prone to that understanding as well.
The public may be better aided if the kidnapping statute more clearly signaled that
its definition of an “individual” is not the same as the definition of an “individual” as it
applies to the rest of the code. A more universally understood signal such as “despite” or
“regardless of” could be useful. But an added explanation clarifying the difference between
§ 1.07(a)(26) and § 20.01(5) may be ideal. For example, the statute could read: “Despite
the Section § 1.07 definition of an ‘individual,’ which includes unborn children at every
stage of gestation from fertilization until birth, an ‘individual’ under this Chapter means
only a human being who has been born and is alive.” Regardless, until an update is made,
we are bound to the comprehension of the term “notwithstanding.” To make our holding
today simple and to assist citizens in deconstructing these small but mighty distinctions, I
write to emphasize the two definitions of an “individual” in the Penal Code.
All things considered, this Court is well-aware of the clear meaning of the Penal
Code. Many criminal offenses can be committed against a person, including an unborn
child—a child whose life begins at fertilization. Tex. Penal Code Ann. § 1.07(a)(26) (“at
every stage of gestation from fertilization until birth”). Under the Penal Code, unborn
children are individuals. But limiting its class of victims, per the kidnapping statute, a
person can only kidnap an “individual” who is “born and alive.” Id. § 20.03(a).
I concur with the Court’s holding on the merits but write separately to make it 6
clear—for the benefit of the parties and the public alike—that in the Penal Code unborn
children are individuals and therefore people too. For the record, I will also say that I
strongly agree with the § 1.07(a)(26) definition of “individual.” Yet, there lies a critical
difference in the kidnapping statute’s definition of an “individual” compared to that which
we apply to the rest of the code.
Filed: November 6, 2025
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