St. Mary's Law Journal


Karen Bartlett


This Recent Development asserts that the Texas Court of Criminal Appeals’ refusal to define “substantial interference” in relation to the kidnapping statute, opens the floodgates for every act of confinement or movement committed in the course of a substantive offense constituting kidnapping. The Court maintains it is up to the jury to define the term. If the Texas Legislature does not narrowly define the kidnapping statute, virtually every assault, robbery, sexual assault, and some murders will constitute both the substantive offense plus kidnapping. Furthermore, such logic would in effect bootstrap murder into capital murder, which happened in Herrin v. State. The defendant in Herrin moved the victim during the course of committing the murder. He was convicted of capital murder for having committed murder in the course of committing or attempting to commit kidnapping. The Court of Criminal Appeals overturned Herrin's capital murder conviction on the premise that he only intended to murder, not kidnap. This Recent Development proposes "substantial interference" must be defined in relation to acts of confinement or movement committed in the course of another substantive offense to also constitute kidnapping. Otherwise, every assault, sexual assault, robbery, and murder could erroneously be tantamount to kidnapping. Texas should adopt the Model Penal Code's kidnapping definition. For the offense of kidnapping to exist in addition to another substantive offense, the state must find that the movement or restraint: (1) was not incidental to the underlying offense; and (2) substantially increased the risk of harm inherent in the substantive offense. Kidnapping indictments should be dismissed unless the movement or detention is substantial to the underlying crime and the movement or "detention which occurs during the course of the commission of another crime 'significantly increases the dangerousness or undesirability of the defendant's behavior.’”


St. Mary's University School of Law