I agree with the majority that a narrow construction of the word "voluntarily" as used in Texas Penal Code section 20.04(d) encourages kidnappers to safely release their victims and more closely reflects the intent of the legislature. The inclusion of the defendant's subjective moral culpability or free will in the definition of the term "voluntarily" would lead to an analysis that this Court does not normally undertake when discussing voluntariness.

We consider whether a defendant's actions were voluntary in the context of confessions, consents to search, waiver of rights, and guilty pleas. In each of those situations, we consider only whether the defendant acted without coercion, threat, duress, or force. We do not consider the defendant's subjective motives in those contexts, nor should we here.

I prefer an objective analysis of voluntariness. If we look at a defendant's actions objectively--whether it be his release of a victim, his confession, his consent to search, the waiver of his rights, or his guilty plea--and find no overt reason for his actions, then the actions should be considered voluntary. This is clearly not the case when a defendant is being pursued or coerced by the police, has a gun to his head, when a victim escapes, a third party intervenes, or ransom is paid. In each of those situations, the defendant's reason for releasing his victim is obvious and the presence of such a clear reason for the release indicates that it was not a voluntary act. However, deception, misrepresentations, inducements, trickery, and ruses by the victim do not constitute coercion and do not make the defendant's conduct involuntary.

A breakdown of the mitigation issue that adds a subjective element to the definition of "voluntarily" is not necessary. When a defendant releases his victim in a safe place there is no need to delve into his mind or attempt to examine his subjective intent or subconscious motives. We do not need to know whether he always intended to release the victim and was acting according to his plan, he had a moral awakening, or he simply changed his mind. Nor do we need to know whether something the victim said is what influenced his decision. The point is that the defendant decided, for reasons not outwardly obvious, to release the victim in a safe place. This uncoerced decision is what makes the release voluntary.

The prosecution in this case argued that the defendant only took the victim to the hospital because he was protecting himself. However, the fact that the defendant's motive was to protect himself rather than to protect his victim does not mean that he wasn't acting voluntarily when he released her. The reason for having a mitigation statute and for offering a lighter sentence is to use the basic human characteristic of self-preservation to induce release for the benefit of the victim. Perhaps the kidnapper read section 20.04(d) after he kidnapped his victim and decided that because he wanted to spend less time in jail he would release his victim in a safe place. Does the fact that his motive for the release was simply to get a shorter prison sentence and not due to a genuine concern for the welfare of his victim make the release involuntary? Surely not. However a broad definition of "voluntary" would seem to say that due to the inducement and the lack of a moral awakening, the release is not mitigating.

In the context of Texas Penal Code section 6.01(a), we have said that voluntariness of conduct is separate from the issue of culpable mental states. Brown v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002); Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993); Alvarado v. State, 704 S.W.2d 36, 38 (Tex. Crim. App. 1985). This applies equally well to the voluntariness of release under the kidnapping statute. The separation of the voluntariness of conduct from the mental state or motivation behind the conduct indicates that it is not necessary for a defendant to have a sudden realization of right and wrong to make the act of releasing a victim voluntary.

This is not to say that anytime the victim is no longer in the physical custody of the defendant the victim has been voluntarily released. There is a difference between abandonment and a voluntary release. This is the purpose of the statute's requirement that the victim be released in a safe place. "Dumping" a victim does not constitute releasing. Additionally, a bound and gagged victim who has been left somewhere by the kidnapper cannot be considered to have been voluntarily released in a safe place.

Because an objective analysis of appellant's conduct indicates that he voluntarily released his victim in a safe place, I concur with the majority's decision to reverse the judgment of the Court of Appeals.

Meyers, J.

Filed: February 12, 2003

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